In the same case, however, Turkmen v. Ashcroft, the court also sent back the plaintiffs’ claims that they were held in abusive conditions of confinement following the terrorist attacks on Sept. 11, 2001. They’ll have another chance to make those claims, but, significantly, will have to meet the Supreme Court’s new heightened pleading standards set out in Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

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.

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:

Although that may be because the panel did not issue a long written opinion (which Adam Liptak at The New York Times has reported was because the judges couldn’t all agree on one), opting instead to adopt the reasoning of the district court, Armando Llorens, AKA Big Tent Democrat at TalkLeft, actually bothered to read the concurring opinions among the Second Circuit justices that decided, by a majority vote, not to re-hear the Ricci case after the panel’s ruling.

Llorens finds that in fact, the panel (including Sotomayor) was being extremely conservative (as a matter of judicial philosophy, not politics) in briefly affirming the lower court’s decision. He looks to the reasoning of Calabresi, who pointed out that the white firefighters who claimed to have been denied promotions due to race discrimination failed to make the necessary legal argument supporting that claim in the court below:

In this case, the municipality claimed that its actions were grounded solely in the desire to comply with federal law. The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that the city had other less salubrious, and directly racial-political, reasons for what it did.

The district court and the panel readily rejected the notion that the city’s stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives.

Cabranes, who conservatives have cited as “chastising” Sotomayor in urging the full Second Circuit court to re-hear the case, thought that the court should have considered whether New Haven had these “mixed motives,” which might have violated the civil rights law. But for the Second Circuit to have undertaken that analysis on its own, when the district court did not, would have been inappropriate — and activist. As Calabresi explained in his concurrence:

Given the plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. But they nevertheless cannot help but affect how we look at the city’s actions. And they may even influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue.

Difficult issues should be decided only when they must be decided, or when they are truly well presented. When they need not be decided – and rehearing en banc is always a matter of choice, not necessity – it is wise to wait until they come up in a manner that helps, rather than hinders, clarity of thought. That is not so in this case.

The emphasis above is supplied by Llorens, who seems to be the only one to pick up on this important point. For the panel to have decided whether New Haven was motivated by a mixed motive would have been an “activist” position to take. And Sotomayor and her colleagues are no activists.

That should please those Republicans who say they don’t like judicial activism. Then again, some conservatives actually like judicial activism — when it’s promoting an ideologically conservative cause.

Greenwald writes:

Without a trace of sympathy or even interest in the plight of the plaintiff, Sotomayor methodically recounted the evidence of discrimination and, in as coldly and legalistic a manner as possible, concluded that the Norville ‘produced insufficient evidence at trial to show that the hospital’ discriminated against her.

The Norville case, Greenwald continues, “was one where she acted exactly contrary to the Rove-led disparagement of her jurisprudence — the accusation that she disregards objective legal considerations in favor of emotions and sympathy for what Charles Krauthammer euphemistically described as ‘certain ethnicities.’ ”

My own reading of the case is that she not only didn’t let her sympathies get in the way, but she may have gone too far in ignoring human “emotions and sympathy” to rule based on hyper-technicalities. By “emotions and sympathy,” I don’t mean bias; I mean the fact that discrimination cases are inherently about whether a supervisor made an employment decision based on an emotional, rather than an objective, assessment of an employee. And that requires a judge to let herself empathize at least a little with the situation the case presents.

In the case of Wendy Norville, a 56-year-old black nurse who suffered a spinal injury while working at the Staten Island hospital where she’d been employed for 13 years, the question of whether the hospital refused to reasonably accommodate her disability because of her race, her age, or her disability itself is hardly clear. Yet Judge Sotomayor, writing for a three-judge panel on the Second Circuit Court of Appeals, affirmed the dismissal of her race and age claims on extremely technical, legalistic grounds that would seem to me to have been more appropriate for a jury. (Granted, as a lawyer I worked briefly on employment discrimination cases, so I might be considered biased. But as a former law clerk to a  federal appeals court judge, I saw many of these cases and I doubt I would have recommended coming down the way Sotomayor did on this one.)

Take, for example, Sotomayor’s discussion of Norville’s race discrimination claim, which was based “on her allegation that the hospital refused to accommodate her disability despite having made job accommodations for two disabled white nurses,” as Sotomayor described it.

That’s normally enough to create a prima facie case of discrimination that the hospital would then have to rebut. But here, Sotomayor decided against Norville’s claim failed because Norville failed to show that she was “similarly situated” to the two white nurses. One had terminal cancer and due to the treatment often had to leave work early. The other had a herniated disc — as did Norville — but was promoted to Head Nurse around the time of her injury.

That wasn’t good enough to get her claims to the jury, wrote Sotomayor, because Norville did not provide “evidence regarding the specific degree to which either of these nurses was disabled, the type of work they did prior to becoming disabled, or the ways in which they were limited in performing their jobs. Norville thus has failed to demonstrate that they were ‘subject to the same standards governing performance evaluation’ or that they ‘engaged in conduct similar to [hers].’”

Although I don’t have the full trial record before me, that reasoning seems to place a much greater burden on Norville than she should have had to bear before trial. The fact that the hospital accommodated two other white nurses who had serious disabilities — as Norville did, but was not accommodated — at least seems to create a real question as to whether the reason for the hospital’s action was due to Norville’s race. And it’s the jury’s job to provide the answer.

Sotomayor used similar reasoning to dismiss Norville’s claim of age discrimination, based on the fact that a 38-year old nurse was hired for a position that the hospital could have offered her as a reasonable accommodation for her disability (which, it’s worth emphasizing, was due to an injury sustained on the job).  Even though the hospital gave contradictory reasons for choosing the younger nurse over Norville, and Sotomayor concluded that Norville presented sufficient evidence that she was qualified for the job and that the hospital’s reasoning might be pretextual, strangely, that wasn’t enough to create a question of fact about whether the real reason was age discrimination.  Sotomayor seems to require some direct evidence that the reason for the hospital’s decision was Norville’s age — although given that employers rarely state their discriminatory reasons for their actions, showing pretext is usually sufficient to get the case to the jury to decide what was the real motive.

In fact, it was then-Judge (now Justice) Samuel Alito who, as the lone dissenter in the Third Circuit sex discrimination case of Sheridan v. DuPont, insisted that there ought to be some more direct evidence of the kind of discrimination alleged — an issue that caused considerable controversy during his Supreme Court confirmation hearing.

I know this seems like a long and excessively detailed analysis of one judicial opinion, but I do think it says something about Sonia Sotomayor, which  Greenwald alludes to but many others seem to be overlooking:  Sotomayor’s hyper-technical reading of the law may not always be such a good thing. In Norville’s case, for example, did Sotomayor miss the forest for the trees?

The fact that the jury ultimately awarded Norville $1.6 million for her disability discrimination claim alone — which Sotomayor allowed to go forward based on yet another technical (and correct) reading of the law — suggests that she might have.

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