Facts
- Maher Arar, a dual citizen of Syria and Canada who lived in Canada, was detained in September 2002 while changing planes at JFK Airport in New York.
- Canadian authorities had warned U.S. officials that Arar allegedly had ties to al Qaeda, and U.S. officials questioned him about suspected terrorist associations.
- Arar was interrogated by federal authorities, including the FBI and immigration officials, while held in U.S. custody.
- On October 1, 2002, the INS initiated removal proceedings and notified Arar that he could not be admitted to the United States because he allegedly belonged to a terrorist organization.
- Arar later learned that immigration authorities had ordered him removed to Syria and barred him from reentering the United States for five years.
- U.S. officials flew Arar to Jordan, where he was then transferred to Syrian custody.
- Arar alleged that Syrian officials detained him for about a year, interrogated him, and brutally beat and tortured him before releasing him in October 2003.
- After his release, Arar was taken to the Canadian embassy and returned to Canada.
- Arar sued the U.S. Attorney General and other senior federal officials (including the Secretary of Homeland Security and the Director of the FBI), as well as unnamed agents, seeking damages and other relief.
- Arar asserted a Bivens claim, alleging that the defendants’ actions in arranging and carrying out his U.S. detention and removal to Syria violated the Fifth Amendment’s Due Process Clause.
- Arar also asserted a claim under the Torture Victim Protection Act (TVPA) based on his alleged torture in Syria.
- The district court dismissed the complaint, a panel of the Second Circuit affirmed, and the Second Circuit reheard the case en banc.
Issues
- Whether federal courts should recognize a new Bivens damages remedy under the Fifth Amendment for claims that senior U.S. officials caused or facilitated Arar’s detention in the United States and his removal to Syria, where he alleged he was tortured.
- Whether “special factors counselling hesitation,” including national security, foreign relations, and immigration/removal decisions, required courts to refuse a Bivens extension and leave any damages remedy to Congress.
- Whether the TVPA authorizes a damages action against U.S. officials based on alleged involvement in torture carried out by foreign officials abroad.
Decision
- The en banc Second Circuit affirmed the dismissal of Arar’s complaint.
- The court refused to create a new Bivens remedy for Arar’s Fifth Amendment claims.
- The court held that Arar’s TVPA claim could not proceed against the U.S. officials on the theory pleaded.
- The Supreme Court denied certiorari.
Legal Principles
- A Bivens remedy is not extended to a new context when “special factors counselling hesitation” indicate that Congress, not the judiciary, should decide whether a damages action should exist.
- Claims that implicate national security, intelligence activities, foreign policy, and immigration or removal decisions present strong reasons for judicial restraint in implying a damages remedy against federal officials.
- When Congress has legislated extensively in an area (including immigration, terrorism, and protections related to torture) but has not created a damages remedy for the type of claim asserted, courts treat that silence as a reason to refrain from creating one through Bivens.
- Litigation that would require probing sensitive executive-branch judgments—such as information sharing with foreign governments, choices about exclusion or removal of noncitizens, and decisions linked to counterterrorism operations—raises separation-of-powers concerns that weigh against recognizing a Bivens action.
- The TVPA is aimed at providing a cause of action for torture committed under color of foreign law; it does not, as applied by the court here, authorize damages claims against U.S. officials for alleged participation in, or responsibility for, torture committed by foreign officials abroad.
Conclusion
Arar v. Ashcroft held that federal courts should not extend Bivens to allow Fifth Amendment damages claims against senior U.S. officials for alleged extraordinary rendition and related detention and removal decisions leading to torture in Syria, because the claims raised national-security, foreign-relations, and immigration concerns better left to the political branches; the en banc Second Circuit also affirmed dismissal of Arar’s TVPA claim and the Supreme Court denied review.