“The U.S. should be conducting its own criminal investigation of the officials responsible for sending an innocent man to Syria for a year to be interrogated under torture, not covering for them.  Again, the Canadians are doing the right thing by criminally investigating not only Syrian officials, but officials from the U.S. as well. The Obama administration should look to the Canadian example and do what’s right – apologize to Maher and hold his torturers accountable.”

I’ll update when I have more.

Update: LaHood tells me that Arar has met with RCMP investigators and the investigation has “been going on for least four years.”

The Center for Constitutional Rights’s Maria LaHood said in a statement that the court ”has effectively condoned torture by denying Maher’s right to seek a remedy. It is now up to President Obama and Congress to apologize to Maher for what the Bush administration did to him, to make clear that our laws prohibiting torture apply to everyone, including federal officials, and to hold those officials accountable.”

The Italian court convicted in absentia a CIA station chief and 22 other agents for abducting a Muslim cleric and sending him to Egypt, where he was tortured. Similarly, a British court recently ruled that a former detainee and torture victim has the right to obtain documents to prove he was mistreated — despite U.S. objections.

In contrast, in a recent case here in the United States, involving the abduction and extraordinary rendition of Canadian citizen Maher Arar to Syria by U.S. authorities, a federal appeals court ruled that Arar — who turned out to be innocent — has no right to redress.

Arar, as we now know, was arrested based on faulty intelligence at John F. Kennedy airport in New York, denied access to a lawyer, and shipped off to Syria for interrogation under torture. Both the Syrian and Canadian governments have since confirmed that Arar had done nothing wrong, and Arar sued U.S. officials for his unlawful treatment. Yet the Second Circuit Court of Appeals in New York recently ruled that the courts should not interfere in cases involving national security and foreign affairs — that’s for the executive and legislative branches alone.

As The Times notes today in an editorial, the ruling was an abdication of the role of the federal judiciary, which, after all, is the branch of government charged with upholding the rights granted in the U.S. Constitution.  Surely the right to be free from groundless abduction, rendition and torture is among them. As The Times’ editorial board puts it: “The ruling distorts precedent and the Constitutional separation of powers to deny justice to Mr. Arar and give officials a pass for egregious misconduct.”

What The Times neglects to mention is that another case, filed just yesterday on behalf of a U.S. citizen, raises precisely the same issues — and could meet the same fate. This time, however, as I explained yesterday, the plaintiff is a U.S. citizen, born and raised in New Jersey, abducted by U.S. authorities and held in three different African prisons where, he says, he was tortured and threatened by FBI agents, among others. He was eventually returned home without charge.

The judges who decided the Arar case earlier this month didn’t uniformly agree that he ought not be allowed to make his case in court. In fact, the 7-4 opinion spawned four dissenting opinions that are among the most eloquent statements on the role of the judiciary in upholding the U.S. Constitution that I’ve ever read.

As Judge Barrington Parker wrote, the court’s decision “risks a government that can interpret the law to suits its own ends, without scrutiny.” Parker cited a memo from former Deputy Assistant Attorneys General John Yoo and Robert Delahunty in the Bush Justice Department’s Office of Legal Counsel advising the top lawyer at the Pentagon in 2002 that the President enjoys “complete discretion” in conducting operations overseas, and that the Constitution’s Bill of Rights — such as the Fifth Amendment right to due process and the Eighth Amendment’s prohibition on “cruel and unusual punishment” — do not apply to overseas interrogations.

Illustration by: Matt Mahurin

Twenty-four-year-old Amir Meshal, the son of Muslim immigrants from Egypt, was a lifelong resident of New Jersey when, after living briefly in Cairo with extended family members, in 2006 he decided to go to Somalia to study Islam and experience living under Islamic law. The country appeared to have stabilized and a new Islamic government was on good terms with the United States.

But Somalia wasn’t as stable as Meshal had thought, and as violence erupted there again in January 2007, Meshal fled, along with many Somali civilians. He was arrested in a joint U.S.-Kenyan-Ethiopian operation along the border of Kenya.

[Law1]During the next four months, Meshal says, he was detained and interrogated in three different African countries without charge, denied the right to speak to a lawyer or family member, and refused the right to even appear before a judicial officer. Although a lifelong U.S. citizen with two U.S. citizen parents, Meshal was repeatedly threatened with torture, rendition to another country where he would be tortured, and forced disappearance. And he believes that U.S. officials, who interrogated him more than 30 times during this process, directed his arrest and treatment.

Those claims are the subject of a new lawsuit being filed Tuesday by the American Civil Liberties Union in Washington. Although it’s not the first lawsuit against U.S. officials seeking damages for torture and other mistreatment abroad, Meshal is only the second U.S. citizen to sue for U.S.-sponsored torture. That and a few other distinctive facts in this case may give him some advantages over those that have been dismissed.

“This is a U.S. citizen who was caught in hostilities abroad, and instead of helping him return, U.S. officials abused him and mistreated him and never charged him with a crime,” said Nusrat Choudhury, one of the lead lawyers from the ACLU representing Meshal. “Should they be allowed to do that without helping a U.S. citizen get home, and instead, denying him access to lawyers?”

That’s the question that will face judges in this case. In the past, the government has managed to convince courts to dismiss torture victims’ cases by saying that government officials are entitled to qualified immunity, or that the case would reveal state secrets, or that courts should not imply a right to sue government officials for constitutional violations when the case involves national security and foreign policy. But will courts be so willing to dismiss a case brought by a U.S. citizen, born to U.S. citizen parents, allegedly tortured directly by U.S. officials, and who has never even been charged with doing anything wrong?

American University Law Professor Stephen Vladeck, an expert on constitutional and national security law, says that although doctrinally the cases are not very different, the fact that Meshal is a U.S. citizen “practically, could make a difference to judges,” he said. “It would just highlight how wrong those other decisions are,” he said.

One of those decisions is Rasul v. Rumsfeld, decided by the D.C. Circuit Court of Appeals last year. In that case, the court dismissed the claims of four British men who’d been detained and allegedly abused at Guantanamo Bay because, the court reasoned, the federal officials were entitled to “qualified immunity” because it was not clear that Guantanamo detainees had rights under the U.S. Constitution at the time of their alleged abuse.

In that case, though, which is still on appeal (the Supreme Court remanded it back to the D.C. Circuit for reconsideration in light of intervening Supreme Court precedents), the court’s reasoning was based in part on the fact that the plaintiffs were all “aliens” — none were lawful U.S. citizens or residents.

Meshal’s U.S. citizenship may make his case more difficult to dismiss. “Mr. Meshal alleges there needs to be discovery in this case to determine whether what those officers did was objectively reasonable,” said Choudury, his lawyer. “Should an FBI officer think it’s objectively reasonable to threaten a U.S. citizen to send him to place where he will be tortured?”

Interestingly, recently released documents produced in the ACLU’s Freedom of Information Act case against the government have revealed memos written by FBI interrogation specialists in 2002 and sent to Defense Department officials specifically explaining that threatening a detainee with torture, death or disappearance is a violation of the U.S. Constitution and the anti-torture law. That could weaken the government’s argument that FBI officials reasonably thought it was legal to threaten Meshal in 2007.

The most recent case decided that presents similar facts is the case of Maher Arar, dismissed this month for the second time by the Second Circuit Court of Appeals. Arar, a Canadian citizen, was arrested by U.S. authorities while he was changing planes at JFK airport in New York in 2002. Arar was held briefly in the states, denied access to a lawyer, then rendered to Syria where he was held in a grave-like cell and interrogated under torture, he says, for almost a year. He was finally released without charge; Syrian authorities acknowledged that they had no evidence against him.

Arar sued the U.S. government for complicity in his treatment abroad. The court last week ruled that he has no right to sue under the U.S. Constitution in this case because the claims would “have the natural tendency to affect diplomacy, foreign policy, and the security of the nation.” As for his claims under the Torture Victims Protection Act, enacted to protect victims of torture in other countries, Arar could not claim compensation from U.S. authorities because it was the Syrians who tortured him, even if U.S. officials knew that he was likely to be tortured when they sent him to Syria, the court ruled.

In addition to the fact that Meshal is a U.S. citizen, his case may stand a better chance because he is suing the actual FBI officials who he claims conducted his interrogation and threatened him with torture, forced disappearance and execution to coerce him into confessing to associations with al-Qaeda that he says he does not have.

“It was a Kenyan jail, but he is alleging that U.S. officials were complicit with those officials in keeping him detained in secret,” said Choudhury. “During interrogations, U.S. government officials threatened to send him to Israel, where they would make him disappear.”

Meshal’s constitutional claims may also fare better because there appears to be nowhere else to bring them — an important factor courts consider. The government claimed that Arar, as a Canadian, could have objected to his rendition before U.S. immigration authorities. (Arar’s lawyers disputed that.)

In this case, there appears to be no alternative means for redress. Meshal has declined to speak to reporters about his ordeal, but according to his legal complaint, while he was in Kenya, Meshal repeatedly asked to speak to a lawyer, to his father, and to the international Committee of the Red Cross; his requests were denied. He was allowed to speak once to a U.S. consular official in Kenya who said he would help Meshal.

Before the consular official could do anything, though, Meshal was handcuffed, hooded and flown to Somalia, where he feared he would be killed, he says. Meshal was deposited in an excruciatingly hot 25-foot-square cave, without windows or toilets. When guards opened the door of the cell, Meshal “noticed that enormous cockroaches were clustered in the corners of the cell and large black millipedes were all over the walls,” the legal complaint charges. Meshal says he was left there, handcuffed in the dark, for two days.

He was then moved to a storage tent where he was given one meal a day of biscuits, marmalade and water. He was left there for about four days until he was transferred to Ethiopia for further interrogation.

The government could still argue that the “state secrets privilege” should doom the case. In many cases charging government wrongdoing in the national security arena, the Justice Department has argued that allowing a lawsuit to go forward would reveal sensitive state secrets and endanger national security. The government’s frequent invocation of the state secrets privilege has become something of a political embarrassment, however. In February, Sen. Patrick Leahy (D-Vt.) introduced a bill, which now has nine co-sponsors, that would severely limit the government’s ability to dismiss cases on that ground. Shortly after, Attorney General Eric Holder in September announced a new policy on state secrets, pledging to use the privilege more sparingly and according to strict new rules. However, he has continued to assert it in situations where advocates say the case should move forward, with the judge simply reviewing any sensitive evidence behind closed doors.

“It seems unlikely the government wouldn’t invoke state secrets again,” said David Luban, a law professor at Georgetown University and expert on legal ethics and international law. In this case, Luban said, the government would likely claim that allowing the cases to move forward would expose sensitive information about the United States’ relationships or agreements with the other countries that Meshal was rendered to. And “if the action is being shut off because of state secrets,” he said, “I don’t think you can get around that.”

“The government can raise that in the course of litigation,” Choudhury agreed. “But that’s not a reason for this case not to go forward.” The government would still have to convince a court that national security would be put at risk simply by responding to requests about the FBI’s treatment of one individual and its role in his rendition and alleged torture. Some courts have been skeptical about that argument, although in the case of German citizen Khaled Al-Masri, a lawsuit filed by a rendition victim against U.S. authorities, a federal judge in Virginia did dismiss the case on state secrets grounds.

And the court could still decide to dismiss the case based on its broader national security implications, as it did in Arar. “What’s been so disturbing is how judges have bent backwards to say this is a new kind of claim,” said Vladeck. In the Arar case, for example, the court cast his claim for compensation for extraordinary rendition as a new kind of constitutional claim that would require the court essentially to create a new right to sue. The court then could easily decline to create that new right, citing the “special factors” involved — in particular, the potential impact on national security and foreign policy. “What’s so distressing about Arar was that the Second Circuit endorsed such a limitless view of special factors,” said Vladeck. “If Arar’s rendition case can’t prevail, then I’m pressed to see what kind of case can win.”

Still, one case has survived dismissal so far. That’s the case of Jose Padilla, a U.S. citizen deemed an “enemy combatant”, who is now suing John Yoo, the former lawyer at the Justice Department who justified torture and Padilla says personally helped to devise his illegal treatment. Although the Obama administration, representing Yoo, tried to have the case dismissed, a federal court in California refused, in part because there was no other way for a U.S. citizen to hold U.S. officials accountable.

Padilla was also the only U.S. citizen to have sued a U.S. official for torture. Until now. Choudhury hopes, at least, that Meshal’s U.S. citizenship might also make some difference. But the outcome is hard to predict. Judges and courts are sharply divided on when a victim of abusive federal government policies should have a right to bring their claims to court.

When the full Second Circuit court ruled in Arar’s case last week, the decision included four powerful dissents.

“The majority would immunize official misconduct by invoking the separation of powers and the executive’s responsibility for foreign affairs and national security,” wrote Judge Barrington Parker, in one of them. “Its approach distorts the system of checks and balances essential to the rule of law, and it trivilializes the judiciary’s role in these arenas,” he continued. The executive’s powers in foreign policy and national security “are not limitless” and their “bounds in both wartime and peacetime are fixed by the same Constitution,” he wrote. The court’s refusal to allow Arar a remedy, he continued, “immunizes official conduct directly at odds with the express will of Congress and the most basic guarantees of liberty contained in the Constitution. By doing so, the majority risks a government that can interpret the law to suits its own ends, without scrutiny.”

Maher Arar is a Canadian citizen who was seized in 2002 while changing planes at John F. Kennedy airport in New York and sent to Syria, where he says he was interrogated under torture and kept in a tiny grave-like cell. He was released almost a year later without charge, and with an acknowledgment by the Syrian government that it had no evidence against him.

After conducting its own investigation, the Canadian government confirmed that Arar had done nothing wrong, apologized for its role in providing faulty information to U.S. authorities, and paid Arar about $10 million in compensation for his ordeal. The United States, on the other hand, has never officially acknowledged the error (although former National Security Adviser Condoleezza Rice once conceded in a congressional hearing that the case had been “mishandled”) and still refuses to allow Arar to enter the country.

Represented by the Center for Constitutional Rights, Arar sued former Attorney General John Ashcroft in January 2004, FBI Director Robert Meuller and other U.S. officials for sending him to Syria where they knew he was likely to be tortured. Today, the full Second Circuit Court of Appeals, which heard the case en banc in a dramatic 2-hour oral argument last December, ruled that Arar has no right to compensation from U.S. officials.

Although the opinion is long and complex, the essence of the court’s decision is that the lawsuit cannot be allowed to go forward because it would “have the natural tendency to affect diplomacy, foreign policy, and the security of the nation.” As for his claims under the Torture Victims Protection Act, Arar can’t claim compensation from U.S. authorities since it was the Syrians who tortured him, even if U.S. officials knew that he was likely to be tortured when they sent him to Syria.

The case does not bode well for other victims of the Bush administration’s “extraordinary rendition” and other abusive interrogation policies, since virtually all of those cases could similarly implicate national security concerns. The other major extraordinary rendition case, brought by five British victims of the policy against a Boeing subsidiary that assisted the CIA, is pending before the Ninth Circuit Court of Appeals. The Obama administration recently won a re-hearing in that case, which it seeks to dismiss on the grounds that the litigation itself would reveal “state secrets” and endanger national security.

The Second Circuit judges voted seven to four to dismiss Arar’s case today. In a strongly worded dissent, Judge Guido Calabresi wrote: “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Here is the court’s opinion, filed today:

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the pressure grows on the Obama administration to close the prison camp at Guantanamo Bay by January, so too does the risk that some of the Guantanamo detainees cleared for release could be returned to countries where they’ll face persecution or torture, say human rights experts. The men remaining at Guantanamo mostly come from countries that are notorious for torturing prisoners. And the Obama administration has not ruled out returning the men to those places, even though, labeled “enemy combatants” by the Bush administration, they could face retaliation back home.

Meanwhile, it remains unclear whether the courts can step in and stop the administration from returning prisoners to countries known to torture. In April, the D.C. Circuit Court of Appeals ruled that the federal courts have no authority to interfere with where the administration wants to send a Guantanamo detainee. The lawyers on that case, Kiyemba v. Obama, plan to appeal to the Supreme Court this month, but in the meantime, men from Algeria, Tunisia, Libya and other countries notorious for abusing prisoners could be returned to those countries over their objections. Their lawyers are now scrambling to try to stop that.

Illustration by: Matt Mahurin

On Tuesday, the Supreme Court deferred its decision in a related case on whether to review a ruling that judges have no authority to order Guantanamo detainees released into the United States. The court’s punt came in the case of 13 Uighurs, the Chinese Muslim prisoners who have been cleared for release by the U.S. government but cannot return to China for fear of persecution there. But while the Uighurs in that case have been denied the right to be released into the United States, in a way, they’re lucky; the Obama administration has said it will not return them to China.

To be sure, the administration has also promised not to send any detainees to countries where they’re likely to be tortured. But it has also said that in some situations it will accept “diplomatic assurances” from those countries that it will treat the returning detainees humanely. These are, essentially, promises from a torturing country that it won’t torture a particular individual being sent there. But how reliable are those “assurances” really?

Human rights advocates say they’re not at all.

“The record on diplomatic assurances is extremely poor,” said Joanne Mariner, Director of the Terrorism and Counterterrorism program at Human Rights Watch. “It’s rare we see the text of the assurances, so it’s not clear what they consist of, and whether there’s a post-return monitoring mechanism. But there are some very well known cases in which people were sent to Egypt and Syria with diplomatic assurances, and then were tortured.”

Judy Rabinovitz, Deputy Director of the ACLU’s Immigrants’ Rights Project, agrees. “We think there are real problems inherently with the reliability of such assurances and the ability to monitor them,” she said. After all, she noted, most of these countries have signed the United Nations Convention Against Torture, but they’re still torturing prisoners. “When you have a country that’s notorious for torturing, how can diplomatic assurances be reliable? They know they’re not supposed to torture. They’ve signed a treaty. How is an assurance worth more than a treaty?”

One of the most infamous recent cases of torture following assurances from a foreign government involved the Canadian citizen Maher Arar, arrested at JFK airport and sent to Syria for interrogation, supposedly with diplomatic assurances that he’d be treated humanely. Arar says he was brutally tortured there. Human Rights watch has released several reports on the increasing reliance of the United States and other countries on such “diplomatic assurances,” and documented that in many cases, they have not worked. What’s more, it’s often impossible to know whether an individual returned has been tortured, since the country that returns the prisoner has no credible way of determining how he was treated, and both countries have an incentive to say the detainee was treated humanely.

Technically, the United States is bound by the Convention Against Torture and the International Covenant on Civil and Political Rights not to send people to countries where they face a real risk of torture. (The Bush administration argued those laws did not apply to prisoners held abroad.) But as Mariner explained, that often leads those countries to rely on “diplomatic assurances” to say the risk has been diminished. That’s exactly what the Bush administration said it did when it sent terror suspects for questioning under its “extraordinary rendition” program, and many of those suspects claim they were subsequently tortured.

The choice, says Mariner, is either to trust the discretion of the executive branch, or to have some sort of system for deciding the legitimacy of the prisoner’s fears. The D.C. Circuit ruling eliminated the possibility of the federal courts playing that role. That ruling took effect in early September, clearing the way for the U.S. government to begin to return Guantanamo detainees to countries known to torture prisoners.

The administration announced earlier this week that it has cleared 75 Guantanamo detainees for release. The list includes nine prisoners from Tunisia, seven from Algeria, four from Syria, three from Libya, three from Saudi Arabia, two each from Uzbekistan, Egypt, the West Bank and Kuwait, and one each from Azerbaijan and Tajikistan. None of these countries has a strong human rights record.

About 30 of the prisoners cleared for release fear return to their home countries, said Mariner.

Ahmed Belbacha is one such prisoner at risk. He fled his home country of Algeria in 1999 during a civil war between government forces and a militant Islamic group. A former soldier in the Algerian army, he was at risk from both sides. He sought asylum in the UK, where he worked cleaning rooms in a hotel. In 2001, however, while traveling in Pakistan where he was offered free Islamic education, he was captured by the Pakistani Army and turned over to the U.S. military shortly after the U.S. invasion of Afghanistan. The U.S. military deemed Belbacha an “enemy combatant” because he had attended prayer services led by a fundamentalist sheik, travelled on a fake French passport and received small arms training in Afghanistan. Belbacha was sent to the prison at Guantanamo Bay in 2002. But in 2007, the Bush administration decided that he did not pose a threat and cleared him for release. But by this time, Belbacha was afraid to go home; he fears retaliation and torture from both the Algerian government and radical Islamists.

In 2007, Belbacha’s lawyers told the court that they’d learned that the U.S. government planned to return their client to Algeria, and filed an emergency motion asking the court to prevent his transfer. The court ruled it did not have the power to do that, and Belbacha appealed. The court of appeals held off deciding the case though, while waiting for the Supreme Court to rule on whether detainees have the right to challenge their detention in federal courts. (It ruled they did last year in Boumediene v. Bush.) In the meantime, the court temporarily enjoined the U.S. government from sending Belbacha to Algeria.

Then, in April, the D.C. Circuit ruled in Kiyemba v. Obama that the courts have no authority over where the government sends the men. Now, Belbacha is worried again, and his lawyers are scrambling to keep the court from issuing an order that will allow the government to transfer Belbacha to Algeria. His lawyers say he’s now even more likely to be tortured by the Algerian government if he returns there because his struggle to avoid transfer there has drawn international attention and support from human rights groups. As his lawyers put in their brief to the court: “He believes that his strenuous and widely-publicized efforts to avoid transfer to Algeria place him in the government’s crosshairs.”

Belbacha’s lawyers have filed a motion with the court asking that his case be “held in abeyance” until the lawyers handling the Kiyemba case have an opportunity to file a petition to the Supreme Court, and then until the Supreme Court decides whether to hear the case. Holding the case off would leave in effect a June 2008 district court order prohibiting the government from transferring him to Algeria.

The Department of Justice, meanwhile, is vigorously fighting to lift that order, arguing that the D.C. Circuit has already decided that the courts don’t have authority to prevent a detainee’s transfer, and that the government has promised not transfer any detainee to a country where “he is more likely than not to be tortured.”

That’s not sufficient assurance for Belbacha and his lawyers, however. “The U.S. has not assured Belbacha that he won’t be sent back,” said David Remes, Executive Director of Appeal for Justice and a lawyer for Belbacha. As the law stands now, there is no court or independent arbiter to whom Belbacha can appeal.

Human rights advocates say that Algeria’s abusive treatment of two other prisoners recently returned there by the UK raises serious concerns. According to Human Rights Watch, the men were reportedly threatened and beaten in custody. Statements coerced from them were used against them at trial, and both were sentenced to several years’ imprisonment.

Lawyers for Guantanamo detainees from Libya and Tajikistan who similarly fear persecution if returned home have also asked federal judges to at least temporarily prevent their clients’ transfer until the Supreme Court can consider whether courts have any authority over the administration’s decisions about where to send them.

The Obama administration, in another context, has similarly indicated that it is willing to send people to countries known to torture. In making recommendations on the transfer of terror suspects to other countries for interrogation – commonly known as renditions – an Obama administration task force recommended that renditions be permitted to countries known to practice torture, so long as the administration obtains assurances that the suspect will be treated humanely. Although the Obama administration has promised to monitor and enforce those assurances, Human Rights Watch has found that “monitoring is no panacea” because the prisoners cannot be guaranteed confidentiality. Their reports of abuse to foreign monitors would be easily traceable to them, placing them at serious risk of retaliation.

According to the Canadian Broadcasting Corporation, a committee in Parliament is planning to recommend that the Canadian government compensate and apologize to three Arab-Canadian men who were imprisoned and tortured in Syria, due partly to information provided by Canadian authorities.

The three men — Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin — were accused of having ties to al-Qaeda, which they all deny. A report by former Supreme Court of Canada justice Frank Iacobucci last year concluded that the three men were tortured, and that Canadian officials’ actions contributed to their treatment.

The cases of these three men, all of whom are now suing the Canadian government, has an obvious parallel with that of Maher Arar, the Canadian citizen captured by U.S. authorities while changing planes at John F. Kennedy International Airport in New York and sent to Syria to be interrogated under torture in 2002. The Canadian government, after conducting a thorough investigation that found Arar had done nothing wrong, apologized for its role in providing information to U.S. authorities and paid Arar $10 million to compensate for his ordeal.

The United States, on the other hand, has refused to acknowledge any wrongdoing on its part, and still won’t allow Arar even to enter the country. In December, the full Second Circuit Court of Appeals in New York heard spirited arguments in his lawsuit against the U.S. government.

Arar was not allowed to attend.

As Sotomayor put it to Jonathan Cohn, the Justice Department lawyer arguing the case before the Second Circuit Court of Appeals: “So the minute the executive raises the specter of foreign policy or national security, it is the government’s position that that is a license to torture anyone, a U.S. citizen or a foreign citizen? License meaning you can do so without any financial consequence. That’s your position?”

Oddly, The New York Times and most media outlets have largely ignored Sotomayor’s questioning at that tense and controversial two -hour-long oral argument in December.  When The Times did report on it, however, the reporters used the exchange not to reveal an insight about Sotomayor’s grasp of the issue or concerns about torture or the abuse of executive power, but to illustrate a point that Jeffrey Rosen had first made in a New Republic article citing anonymous lawyers calling Sotomayor “a bully on the bench.”

Under the headline “Sotomayor’s Blunt Style Raises Issue of Temperament,” (the headline earlier in the day, as Canadian blogger Juliet Waters points out, was “Sotomayor’s Sharp-Tongue Brings Up Issues of Temperament”), reporters Joe Becker and Adam Liptak used the exchange in the Arar case to say that Sotomayor “has a blunt and even testy side” which “was on display in December during an argument before the federal appeals court in New York.”

The reporters largely ignored the substance of the exchange, but characterized Sotomayor has “pepper[ing] a government lawyer with skeptical questions.”

Here’s the Times’ description of Sotomayor’s exchange with the government lawyer:

“So the minute the executive raises the specter of foreign policy, national security,” Judge Sotomayor asked the lawyer, Jonathan F. Cohn, “it is the government’s position that that is a license to torture anyone?”

Mr. Cohn managed to get out two and a half words: “No, your hon—— .”

Judge Sotomayor cut him off, then hit him with two more questions and a flat declaration of what she said was his position. The lawyer managed to say she was wrong, but could not clarify the point until the chief judge, Dennis G. Jacobs, stepped in, asking, “Why don’t we just get the position?”

The Times went on to say that “some lawyers have described her as ‘difficult’ and ‘nasty’” and that this “raises questions about her judicial temperament and willingness to listen.”

In fact, if you listen to the entire two-hour argument, or even just to the complete hour-long section in which the judges question the government’s lawyer, Sotomayor, in context, is mild-mannered compared to many of her colleagues, and far less argumentative.

Judge Calabresi, for example, whose own skepticism of the government’s argument was obvious, dominated the questioning of the government’s lawyer, interrupting him at least ten times to force him to clarify his position and its implications. Other judges, such as Judge Rosemary Pooler (also clearly disturbed by Cohn’s position) and Judge Reena Raggi also interrupted the government’s lawyer repeatedly. And Chief Judge Dennis Jacobs, who was evidently more sympathetic to the government’s position than were many of his colleagues, stepped in at least three more times to ask the other judges to back off and let the lawyer make his case.

“Excuse me, I think all these questions are out of order” Jacobs said at one point, interrupting Judge Parker, one of several judges who was challenging the lawyer with difficult procedural questions in what was an extremely complex and unusual case. “I don’t even know what the question is that’s pending,” he added, with obvious irritation that his colleagues weren’t letting the government’s lawyer present his case.

Of course, in an en banc appellate court argument where 12 judges are questioning a single lawyer at a time, that’s the role of the court — not to sit passively for a lecture from the lawyer, but to challenge the lawyers on all sides to address the difficult and complicated procedural and substantive legal issues that have led the court to take on a full-court argument in the first place. (Most courts of appeals choose to re-hear only one or two cases a year in this manner, and then only the most controversial and important ones.) To argue that Sotomayor was inappropriately abrupt or “testy” makes no sense in the context of the actual court argument.

Putting the lawyers to the test is exactly what the judges are supposed to do, and it’s a role that Judge Sotomayor played extremely well in the case of Maher Arar.

–

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Judge Sonia Sotomayor (Zuma Press)

Most commentators and reporters have assumed that when it comes to Judge Sonia Sotomayor’s record, there’s little to suggest how she might rule on critical matters of executive power and national security that are sure to be among the most controversial issues before the court in the next few years.

One exception to that is a Fox News report on Tuesday, which cites Sotomayor’s March 2003 lecture to a class at Indiana University Law School, where she said, “We have suspected enemy combatants detained in secret and given different process than criminals. One can certainly justify that type of detention under precedents and current law.”

Illustration by: Matt Mahurin

To Lee Ross at Fox News, this was a pronouncement “that could draw criticism from liberal groups.” But in the context of the entire lecture, which Sotomayor provided, along with a mass of other materials, to the Senate Judiciary Committee on Monday evening, the statement appears to be simply an explanation to law students of where the courts had come down on the issue so far. The issues would eventually reach the Supreme Court, which would affirm the government’s right to detain certain enemy combatants indefinitely. But at that time only a district court from the Southern District of New York and the U.S. Court of Appeals for the Fourth Circuit had addressed the questions.

Notably, The New York Times on Wednesday focuses on a different part of the lecture in which Sotomayor expresses skepticism about the government’s authority under the USA Patriot Act “to impose nationwide wiretaps with little judicial supervision” and to monitor use of the Internet.

While reporters and bloggers have noted that Sotomayor has never worked in the federal executive branch and has sat on courts that don’t hear many executive power challenges, her record from the bench is not a blank slate. In fact, just last year, she joined two other judges in ruling that sections of the USA Patriot Act regarding national security letters are unconstitutional. And in the case of the Canadian former detainee Maher Arar, arrested while changing planes at John F. Kennedy airport and rendered by U.S. authorities to Syria to be tortured, he claims, Judge Sotomayor played an active role in a heated two-hour argument before the full 2nd Circuit Court of Appeals in December. (The court has not yet issued its opinion.) Both of those cases — largely overlooked by the media as indicators of Sotomayor’s inclinations on executive power — suggest that Sotomayor will be no wallflower in cases challenging unchecked executive authority in matters of national security.

What Judge Sotomayor actually believes the law is when it comes to the treatment and detention of suspected terrorists, and the type of justice they’re afforded, is critically important to how the Supreme Court will rule on these issues in the coming years, however. As Charlie Savage wrote recently in The New York Times, the impact of a new justice on presidential power could make all the difference. “Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantanamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court,” Savage explained. Justice Souter was a strong proponent of limits on executive power, voting to strike down the first incarnation of military commissions created by President Bush, and voting in favor of providing Guantanamo detainees’ habeas corpus rights. A new judge could swing the majority the other way. And both of those issues — the new Obama military commissions and habeas rights for detainees at other U.S. prisons abroad, such as Bagram — are likely to reach the Supreme Court in the next few years.

“To my mind, this is the most significant issue for the court, especially given the radicalism of Roberts and Alito on presidential supremacy,” wrote Andrew Sullivan on his blog at The Atlantic recently.

In the 2008 ruling Doe v. Mukasey, Judge Sotomayor joined an opinion written by Judge Jon Newman that struck down parts of the USA Patriot Act. The law put a “gag order” on companies that received a National Security Letter from the FBI requiring the company to turn over information about their customers, and required the recipient of the letter to go to court to have the gag order lifted. The three-judge panel of the 2nd Circuit, including Sotomayor, ruled that it was the government’s burden to justify to a court why it had to silence an NSL recipient. The court also invalidated sections of the Patriot Act that required judges to assume as true the FBI’s claims about what would harm national security.

As the court wrote: “There is not meaningful judicial review of the decision of the Executive Branch to prohibit speech if the position of the Executive Branch that speech would be harmful is ‘conclusive’ on a reviewing court, absent only a demonstration of bad faith. … The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. ‘Under no circumstances should the Judiciary become the handmaiden of the Executive.’”

While it’s hardly a radical position for a federal court to reject a government’s arguments that its positions are unreviewable by any court, it does suggest that Sotomayor is willing to stand up to broad executive claims of unreviewable power in matters of national security. That’s likely to come up in cases raising the matter of state secrets, “preventive detention” of suspected terrorists and the creation of military commissions.

Sotomayor herself was explicit about her suspicion of the government’s assertion of unreviewable power in the national security context during the argument in Arar v. Ashcroft. Sotomayor wasn’t physically present in the courtroom, but her larger-than-life image was beamed on a screen via satellite teleconferencing technology, giving her what one blogger called “a Star Trek immensity.”

The government’s lawyer, Jonathan Cohn, was attempting to argue that the case is so “inextricably bound” with matters of foreign policy and national security that the courts should just stay out of it, since those are the exclusive domains of the executive branch.

Sotomayor, like many of her colleagues, was skeptical. In her most striking exchange with the government’s lawyer, she asked, “are you saying that there should be no Bivens action [a right to sue federal officials] for any torture by a federal agent?”

Cohn quickly said no, that’s not the government’s position, unless the issue is “fraught with national security implications.”

Sotomayor pressed the point: “So the minute the executive raises the specter of foreign policy or national security, it is the government’s position that that is a license to torture anyone, a U.S. citizen or a foreign citizen? License meaning you can do so without any financial consequence. That’s your position?”

Although Cohn claimed again that he was not saying that, Sotomayor had correctly seized upon the implication of his argument — that the government cannot be sued for torture so long as it claims that the suit raises foreign policy or national security concerns. And the nature of her questioning suggested strongly that she did not agree.

In the Military Commissions Act of 2006, the same act in which Congress unconstitutionally stripped “enemy combatants” of the right to habeas corpus — a right the Supreme Court eventually restored — “Section 7″ limits the ability of “enemy combatants” to sue the United States over their treatment.

‘(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The effect is, essentially, to shield government officials from liability for abuse, torture and other mistreatment of so-called “enemy combatants.” Another provision of the law makes it retroactive, back to September 11, 2001.

As Dorf puts it, the Military Commissions Act “eliminates any jurisdiction for a civil suit by someone who was detained as Hamdi was.”

Of course, not everyone held by U.S. authorities was deemed an “enemy combatant,” and some have successfully challenged that classification. The British former detainees suing over torture in the case of Rasul v. Rumsfeld, for example, which I’ve written about here, and the Canadian, Maher Arar, who’s suing over his extraordinary rendition and torture — which I’ve also written about — were never determined to be enemy combatants, at least as far as I can tell. And the government hasn’t tried to dismiss their cases based on the Military Commissions Act.

But those who were called “enemy combatants” appear to be out of luck.

In 2006, Congress helped the President and his Justice Department make it virtually impossible for illegally detained and abused prisoners to seek vindication. And, it obviated the need for prosecutors to require Gitmo detainees to sign these controversial waiver agreements promising not to sue for abuse or torture — if, that is, we were the kind of country that would ever do such things.