US opposes “rendition” review

(SCOTUS blog) The Obama Administration on Wednesday afternoon urged the Supreme Court not to hear a major test case challenging the once-secret program of “rendition” — that is, capture of terrorism suspects and transporting them to other countries.  Solicitor General Kagan’s deputy, Neal K. Katyal, signed the new brief as “Acting Solicitor General.” The new brief is here.

The government brief, filed on behalf of former Attorney General John D. Ashcroft and other federal officials, came in the case of Arar v. Ashcroft (09-923), involving Maher Arar, a dual citizen of Canada and Syria.  He claimed that he was seized at JFK Airport in New York after arriving from Tunisia via Switzerland in the fall of 2002. His lawsuit against Ashcroft and other officials contended that he was taken to Jordan and then to Syria, where he was subjected to harsh questioning and torture by Syrian security officials.

Acting SG Katyal, reacting to “factual allegations and the tenor” of Arar’s plea for Supreme Court review, insisted that the case “does not concern the propriety of torture or whether it should be ‘countenanced’ by the courts.”  Torture, the document said, “is flatly illegal and the government has repudiated it in the strongest terms.”  Federal law makes it a crime, Katyal said, and President Obama has “stated unequivocally that the United States does not engage in torture.”

What is at stake in the case, the brief contended, were “three narrow questions” — the failure of lower courts to recognize his constitutional claim against Ashcroft and others in the government, a claim that U.S. officials were actually acting under Syrian law when they ordered his transfer to that country, and a claim of denial of due process by his detention in the U.S. and the denial of access to U.S. courts.   All of those claims, the brief said, were rejected by the Second Circuit Court, en banc. That ruling, it said,  is correct, and does not conflict with any other court ruling, and so further review is “unwarranted.”

The Supreme Court has not yet scheduled Arar’s case for its initial examination.  The Justices are expected to do so, however, before the current Term ends in late June. 

If the Court were to grant review of the case, it would not be heard and decided until the next Term, starting Oct. 4.  

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