In a controversial en banc holding, the 2d Circuit has held that a Canadian national may not bring a Bivens action against federal officials for his extraordinary rendition from the United States to Syria. Arar v. Ashcroft, 2009 U.S. App. LEXIS 23988. Arar was en route from Tunisia to Montreal in 2002 and had a layover at New York’s JFK airport. He was detained by federal authorities, who concluded that Arar was a member of al Qaeda. Arar was transferred to a detention center, denied access to counsel, then rendered to Syria, where we suffered torture at the hands of Syrian officials.
Arar brought a Bivens action in federal court against various federal officials. Bivens is a Supreme Court decision that allows a plaintiff to state a cause of action for damages against federal officials directly under the Constitution. Arar alleged that federal officials violated his substantive due process rights under the 5th Amendment by denying him access to counsel, subjecting him to unlawful conditions of confinement in the U.S., and conspiring with Syrian officials to subject him to torture and detention in Syria.
Bivens was decided in 1971 and allowed the plaintiff to state a cause of action for damages directly under the 4th Amendment for an unreasonable search and seizure. Two later cases extended Bivens to permit (1) an action against a congressman for gender discrimination under the 5th Amendment, Davis v. Passman (1979), and (2) an action against a prison official for intentional refusal of medical care under the 8th Amendment, Carlson v. Green (1980). But since 1980, the Supreme Court has affirmatively declined to extend Bivens to “new contexts.” In refusing new Bivens actions, the Court has either found (1) “special factors” that “counse[l] hesitation” in recognizing a new cause of action under Bivens or (2) the availability of alternative remedies to the plaintiff (i.e., remedies other than a private cause of action against federal officers).
In refusing to recognize Arar’s Bivens claim, the 2d Circuit found that extraordinary renditions presented a “new context” for Bivens actions, and it rested its holding on numerous “special factors counseling hesitation,” namely diplomacy, foreign policy, and national security. At bottom, separation of powers concerns animated the court. In conclusion, it pointed to its
limited competence, authority, and jurisdiction to make rules or set parameters to govern the practice called rendition. By the same token, we can easily locate that competence, expertise, and responsibility elsewhere: in Congress. Congress may be content for the Executive Branch to exercise these powers without judicial check. But if Congress wishes to create a remedy for individuals like Arar, it can enact legislation that includes enumerated eligibility parameters, delineated safe harbors, defined review processes, and specific relief to be afforded. Once Congress has performed this task, then the courts in a proper case will be able to review the statute and provide judicial oversight….
Judge Calabresi was among the many dissenters in the en banc case. In a puzzling twist of a much-abused phrase — and even admitting it is much-abused — he called the court’s decision “extraordinary judicial activism,” contending that the court could and should have avoided the Bivens issue. This is so, he argued, “because the existence [or non-existence] of a claim meriting a Bivens remedy…is a matter of constitutional interpretation,” and courts should avoid deciding constitutional questions if at all possible.
Judge Calabresi’s view is puzzling in two respects. First, the degree to which Bivens really is a “constitutional” case (and derivatively, the degree to which recognition of a cause of action under Bivens is “constitutional” in nature) is disputed. The prevailing view is that Bivens is federal common law — i.e., changeable at the behest of Congress, not rooted in the Constitution and inviolable. In any event, calling the failure to recognize a Bivens action “extraordinary judicial activism” is overwrought rhetoric, and surely wrong. Judge Calabresi rightly worries that the federal courts can graft their own views onto the Constitution and place certain legal outcomes beyond the legislature’s reach. But that is what the 2d Circuit affirmatively does not do in the Arar case. Because the court fails to recognize a Bivens claim of the type brought by Arar, it clears the path (1) for the Supreme Court to extend Bivens to the “new context” of extraordinary renditions, or even better, (2) for Congress to step in and create the cause of action. Nothing about the court’s decision in Arar prevents either course of action. This is the very opposite of activism. Judge Calabresi’s concerns about constitutional avoidance are surely valid, but that should cause him to praise the court’s decision, not condemn it.
