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Arar v. Ashcroft May Put Sotomayor on the Record on Executive Power, Rendition—A Commentary by Adam Chandler ’11

The following commentary was published on the SCOTUS Blog on June 5, 2009.

Arar v. Ashcroft May Put Sotomayor on the Record on Executive Power, Rendition
By Adam Chandler ’11

Casting further doubt on Sotomayor’s participation in the Arar v. Ashcroft decision, the first footnote in Wednesday’s Second Circuit decision in Wiwa v. Shell Petroleum Development Co. reads: “The Honorable Sonia Sotomayor was removed from the panel subsequent to oral argument. Because the remaining members of the panel are in agreement, we decide this case in accordance with Second Circuit Interim Local Rule § 0.14(b).”

The reason for her removal is not given. The rule cited provides, in relevant part: “If a judge of a panel of the court shall cease to continue with the consideration of any matter by reason of recusal, death, illness, resignation, incapacity, or other reason, the two remaining judges will determine that matter if they reach agreement and neither requests the designation of a third judge.”

Observers of Judge Sotomayor’s nomination have asserted that—barring some unexpected revelation—her eventual confirmation is not seriously in doubt. Even so, a currently undecided national security case has the potential to rival Ricci for the spotlight. If Sotomayor decides that case prior to her confirmation hearings, then no matter how she rules, it will certainly be the subject of significant discussion at the hearings.

Richard Lacayo writes that Sotomayor’s current court, the Second Circuit Court of Appeals, “hears plenty of cases involving business and securities law but not many that touch on the hot-button issues that make for good attack ads. Abortion, the death penalty, gay rights, executive power—those haven’t come up much, if at all, on Sotomayor’s docket.” But the case of Maher Arar, laden with striking facts and political implications, looms as a signal exception. Sotomayor heard the case on December 9, 2008, when it was argued for the Second Circuit, sitting en banc.

Arar is a Syrian-born Canadian engineer who, in September 2002, was seized by immigration officers during a layover at New York’s John F. Kennedy Airport. (He was making his way home to Canada from a family vacation in Tunisia.) His arrest was based on an erroneous tip from Canadian police that Arar was an Islamic extremist with links to al Qaeda. After detaining him for two weeks, the United States deported Arar to Syria to be interrogated, under conditions of torture, as part of the Bush administration’s “special” or “extraordinary” rendition program. He was held for ten months in a cell six feet long, seven feet tall, and three feet wide. After his return to Canada, a Canadian commission cleared him of any ties to terrorism. In January 2007, the Canadian prime minister officially apologized to Arar, and the Canadian government compensated him nearly $10 million in a settlement recommended by the commission.

In the United States, Arar brought a federal suit challenging the legality of his rendition, alleging violations of the Torture Victims Protection Act, the Fifth Amendment, and international law. The district court (E.D.N.Y.) dismissed the suit, a decision that was upheld by a split panel of the Second Circuit. (See Lyle’s post on the panel decision here, a decision that Yale law professor Owen Fiss called “odd in the extreme.”) In a highly unusual move, the Second Circuit decided, sua sponte, to call for rehearing en banc, which is when Sotomayor became involved. During oral argument in December, she was active in challenging the government’s position. (Video of the argument is here, with Judge Sotomayor initiating an exchange with the government attorney at 18:35. Judge Sotomayor was out of town and joined the Court via videoconferencing software.)

Arar’s case is the best-known example of extraordinary rendition, but Maher Arar is not yet a household name in the United States as it is in Canada. That could change with the en banc court’s impending decision in his case by putting Judge Sotomayor on the record in the midst of the national security debate recently reenergized by President Obama and former Vice President Cheney. It is possible, too, that despite participating in the argument, Sotomayor may not take part in the eventual Arar ruling. The median time interval from argument to final disposition in merits cases before the Second Circuit is under a month—the quickest of any of the Circuits—but because of its import and en banc nature, Arar is no average decision and may not be decided before her confirmation. Even if it were, the past practice of Circuit Court judges participating in opinions between their nomination and confirmation to the Supreme Court is unclear. If she does take part, Arar will generate a fresh line of inquiry for her confirmation hearings, but Orrin Hatch, a Republican Senator on the Judiciary Committee, has already predicted that national security issues will not be a major point of contention.

Adam Chandler is a former SCOTUSblogger and a student at Yale Law School.