The majority affirms the dismissal of the Fourth Claim for Relief on the ground that Arar's complaint does not "specify any culpable action taken by any single defendant" and fails to allege a conspiracy. * * *That's a majority bending over backwards to affirm a dismissal.
It should not be forgotten that the full name of the Bivens case itself is Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (emphasis added). * * *
A plaintiff must, after all, have some way to identify a defendant who anonymously violates his civil rights. We doubt that Iqbal requires a plaintiff to obtain his abusers' business cards in order to state a civil rights claim. Put conversely, we do not think that Iqbal implies that federal government miscreants may avoid Bivens liability altogether through the simple expedient of wearing hoods while inflicting injury.
Judge Sacks also rejects the notion that the court was asked to expand the context of Bivens remedies:
Indeed, even the most "international" of Arar's domestic allegations -- that the defendants, acting within the United States, sent Arar to Syria with the intent that he be tortured -- present no new context for Bivens purposes. Principles of substantive due process apply to a narrow band of extreme misbehavior by government agents acting under color of law: mistreatment that is "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (internal quotation marks omitted). Sending Arar from the United States with the intent or understanding that he will be tortured in Syria easily exceeds the level of outrageousness needed to make out a substantive due process claim.So one would think:
Although the "shocks the conscience" test is undeniably "vague," see Estate of Smith v. Marasco, 430 F.3d 140, 156 (3d Cir. 2005); Schaefer v. Goch, 153 F.3d 793, 798 (7th Cir. 1998), "[n]o one doubts that under Supreme Court precedent, interrogation by torture" meets that test, Harbury v. Deutch, 233 F.3d 596, 602 (D.C. Cir. 2000), rev'd on other grounds sub nom Christopher v. Harbury, 536 U.S. 403 (2002); see also Rochin v. California, 342 U.S. 165, 172 (1952) (holding that the forcible pumping of a suspect's stomach to obtain evidence to be used against him was "too close to the rack and the screw to permit of constitutional differentiation"); Palko v. Connecticut, 302 U.S. 319, 326 (1937) (noting that the Due Process Clause must at least "give protection against torture, physical or mental"), overruled on other grounds, Benton v. Maryland, 395 U.S. 784 (1969); Brown v. Mississippi, 297 U.S. 278, 285-86 (1936) ("Because a state may dispense with a jury trial, it does not follow that it may substitute trial by ordeal. The rack and torture chamber may not be substituted for the witness stand.").Judge Parker, dissenting:
My point of departure from the majority is the text of the Convention Against Torture, which provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Art. 2, cl. 2, December 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (“Convention Against Torture”). Because the majority has neglected this basic commitment and a good deal more, I respectfully dissent. * * *Judge Calabresi, dissenting:
The majority would immunize official misconduct by invoking the separation of powers and the executive’s responsibility for foreign affairs and national security. Its approach distorts the system of checks and balances essential to the rule of law, and it trivializes the judiciary’s role in these arenas. To my mind, the most depressing aspect of the majority’s opinion is its sincerity.
I write to discuss one last failing, an unsoundness that, although it may not be the most significant to Maher Arar himself, is of signal importance to us as federal judges: the majority’s unwavering willfulness. It has engaged in what properly can be described as extraordinary judicial activism. It has violated long-standing canons of restraint that properly must guide courts when they face complex and searing questions that involve potentially fundamental constitutional rights. It has reached out to decide an issue that should not have been resolved at this stage of Arar’s case. Moreover, in doing this, the court has justified its holding with side comments (as to other fields of law such as torts) that are both sweeping and wrong. That the majority--made up of colleagues I greatly respect--has done all this with the best of intentions, and in the belief that its holding is necessary in a time of crisis, I do not doubt. But this does not alter my conviction that in calmer times, wise people will ask themselves: how could such able and worthy judges have done that?A disgraceful decision, and a disgraceful Executive that continues to oppose Arar's claims to have his case heard.