TheAgitator.com
En Banc Rehearing for Arar
Monday, August 18th, 2008This is extremely unusual. You may remember Maher Arar, the Canadian man who was arrested on a stopover at JFK airport and sent to Syria where he was tortured for nearly a year. With the help of the Center for Constitutional Rights, he sued the U.S. government. The district court dismissed the case based on the state secrets privilege, saying that it could harm national security to even hear the case. A 2nd Circuit appeals court upheld that dismissal in a 2-1 decision.
Now here comes the unexpected part: the 2nd circuit has announced that it will reconsider the case en banc, which means all the judges on the appeals court will hear it and vote on it. What makes this truly surprising is that Arar’s attorney didn’t ask for it; the court granted the rehearing sua sponte, on its own. That is extraordinarily rare. It suggests that there were a number of judges on the circuit who agitated for the rehearing because they believe it was wrongly decided.
“We are very encouraged,” said CCR attorney Maria LaHood. “For the court to take such extraordinary action on its own indicates the importance the judges place on the case and means that Maher may finally see justice in this country. As the dissenting judge noted, the majority’s opinion gave federal officials the license to ‘violate constitutional rights with virtual impunity.’ Now the court has the opportunity to uphold the law and hold accountable the U.S. officials who sent Maher to be tortured.”
This could be a huge turning point in the law on such things. The state secrets privilege has for far too long been a means of covering up clearly illegal and barbaric actions by the government.
–Ed Brayton
2nd Circuit reverses, U.S. government appeals to Supreme Court, Supreme Court reverses reversal.
U.S. government power is limitless.
This is why there should be a court where judges have Top Secret clearances. That way they could hear the cases and make decisions based on all the evidence without “state secrets” ever being in danger of being exposed. These justices could then decide if a trial should or shouldn’t be had.
Wow, this is interesting. I like this part, “saying that it could harm national security to even hear the case”
These federal judges really are craven idiots. I think the republic could survive if this case were to be heard. I do hope that they are reigning in the unitary executive.
I know Nando… and they could give it a really cool name like the Foreign Intelligence Surveillance Act Court, but I’m just spitballing here.
You could go there and have these super secret court proceedings where the defense doesn’t even get to see the evidence being used against them. It could even allow for the government to wiretap on an emergency basis for 72 hours without having a court order.
But that’s probably too restrictive.
I dunno if SCOTUS would reverse a reversal here….well, 4 of them(Roberts, Scalia, Thomas, Alito) would. As of now, there are 5 justices who seem to be firmly against this sort of thing, if the Gitmo cases are any indication.
The problem with judges having to go through a clearance process is that they would be beholden to the executive branch for maintaining that clearance. Make one decision the president doesn’t like, and say good-bye to your security clearance…
Good way to get rid of judges you don’t like — don’t impeach them, just yank their clearance.
FISA is only for gathering the information, not for prosecuting/hearing the cases. We need a court that can do the latter.
I currently hold a T.S.+ clearance. Investigations are conducted every 5 years (for re-accreditation). In a Judge’s case, we could name them for life, just as in other federal courts, unless their clearances got pulled. And, we could make the agency that conducts the clearances subject to the Senate, rather than the executive branch, so that no one person can interfere.
Nando,
I think Edmund’s point was more that once you start creating special courts and special tribunals to start judging claims held under the secrets act, what you’ll do is create two judicial systems…one that’s responsive to the laws of the land and one that isn’t. And the one that isn’t will be abused by those in power.
FISA was set up to be a watchdog to prevent these sorts of abuses from happening, and yet all it took was a chief executive who doesn’t care about the law or rights to circumvent it. As a former intel guy myself, I’m skeptical that a court set up to hear “classified” cases would be anything more than a rubber stamp for whatever the government wants to do…especially since their reasoning for their decisions will likely not be open to public scrutiny. What seems more likely is that such a court would encourage the government to deem all controversial cases like this as “classified” to take them out of the public eye.
And Frank raises a very valid point as well. You often see people that the government deems as troublemakers in the intel community (many of whom have done little more than raise legitimate objections through proper channels) get their clearances pulled and their livelihoods endangered by getting classified as “mentally unstable”. Putting a court system tasked with overseeing the government in a situation where they have to rely on that same government for their credentials is an open invitation to abuse.
Hell yeah it’s ripe for abuse. Remember the FISA court had rejected maybe two or three ( I forget the exact amount) of the requests put before them throughout it’s 25+ year (not sure exact age when Bush decided it was too restrictive) history. Apparently that record was even too restrictive for the Bush administration so they felt it necessary to go outside the extremely permissive system.
So having another secret court set up is just asking for more trouble.
“I think Edmund’s point was more that once you start creating special courts and special tribunals to start judging claims held under the secrets act, what you’ll do is create two judicial systems…one that’s responsive to the laws of the land and one that isn’t. And the one that isn’t will be abused by those in power.”
Which is exactly the case now. Federal courts in the U.S. and military tribunals in Gitmo.
The U.S. government will do whatever the powers that be deems are in their best interest. Period. No exceptions. End of story.
“The Constitution is not a suicide pact.”
“The Constitution is just a goddamned piece of paper.”
The Constitution has only a single mention of secrecy. That is in a delegation of authority to Congress. Regardless of how it is done in other countries, the US has no delegation of “state secrecy” and no power for Congress to pass legislation allowing for such. Congress may only make such portions of their journals as they deem appropriate secret. IF the government wants secrecy powers then the government should ask permission of the People by sending us an amendment. Remember, There ain’t no good intentions clause in the Constitution! No matter the purpose, the end NEVER justifies the means. Honor above all else!
An easier solution is just to not let the state have secrets.