Nemzetbiztonsági érdek v. szabadságjogok - az USA szövetségi bírósága és "extraordinary rendition"

Pár hónappal ezelőtt a United States Court of Appeals for the Second Circuit 11-fős tanácsa egy ún. en banc felülvizsgálat keretében, 7-4 arányban (újra) elutasította a kanadai-szír kettős állampolgár Maher Arar, amerikai tisztségviselők ellen, indított kártérítési keresetét. Az indokolás szerint a a bíróságnak nincs hatásköre, mivel szenzitív külpolitikai és nemzetbiztonsági dokumentumokat is vizsgálnia kellene.

A tunéziai nyaralásából Montreálba tartó Arart a New-York-i Kennedy reptéren tartóztatták fel; az Al-Kaida-hoz fűződő kapcsoltai miatt az USA-ból, mint terroristagyanús személyt kiutasították, majd először Jordániába aztán pedig onnan Szíriába deportálták. A férfit itt több héten keresztül kínozták és hallgatták ki a szír hatóságok.

A 184 oldalas Arar v. Ashcroft, et al. ítélet elolvasása előtt, érdemes először a New York Review of Books-ban megjelent David Cole cikkel kezdeni.

A többségi ítélet szerint:

“A suit seeking a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity and rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns. It is clear from the face of the complaint that Arar explicitly targets the “policy” of extraordinary rendition; he cites the policy twice in his complaint, and submits documents and media reports concerning the practice. His claim cannot proceed without inquiry into the perceived need for the policy, the threats to which it responds, the substance and sources of the intelligence used to formulate it, and the propriety of adopting specific responses to particular threats in light of apparent geopolitical circumstances and our relations with foreign countries”. (p. 39-40.)

Sack bíró a következő szavakkal illette a fentebbieket:

"The majority's notion that because the presumption is likely to be overcome in a particular species of case we should therefore foreclose a remedy or otherwise limit our jurisdiction in order to accommodate the public suspicion of secrecy, is misconceived. Denying relief to a n entire class of persons with presumably legitimate claims in part because some of their number may lose in proceedings that are held in secret or because secrets may cause some such claims to fail, makes little sense to us. It could work endless mischief were courts to turn their backs on such cases, their litigants, and the litigants' asserted rights. We are not aware of any other area of our jurisprudence where the ability to overcome the presumption of openness has been relied upon to deny a remedy to a litigant. We do not think it should be here". (p. 132-133)

A negyedik különvéleményt megfogalmazó Calabresi bíró kirívóan erős szavakkal illette a a többségi ítéletet:

“I respectfully dissent. I join Judge Sack’s, Judge Parker’s, and Judge Pooler’s dissenting opinions in full. But, because I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay, I add a few words of my own, ‘...more in sorrow than in anger.’ Hamlet, act 1, sc. 2.

My colleagues have already provided ample reason to regret the path the majority has chosen. In its utter subservience to the executive branch, its distortion of Bivens doctrine, its unrealistic pleading standards, its misunderstanding of the TVPA and of § 1983, as well as in its persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion goes seriously astray. It does so, moreover, with the result that a person—whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law—is effectively left without a U.S. remedy. See especially dissenting opinion of Judge Parker.

All this, as the other dissenters have powerfully demonstrated, is surely bad enough. 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.[1] 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?” (p. 169-170.)

"Denying a Bivens remedy because state secrets might be revealed is a bit like denying a criminal trial for fear that a juror might be intimidated: it allows a risk, that the law is already at great pains to eliminate, to negate entirely substantial rights and procedures. Even more mystifying is the majority’s insistence that it is respecting “[t]he preference for open rather than clandestine court proceedings.” Maj. Op. at 47.

How, exactly, does the majority promote openness by shaping a constitutional decision around the fact that state secrets might be involved in a claim? The state secrets doctrine is undoubtedly in tension with the public right of access to the courts, but the majority’s approach is more opaque than any state secrets resolution. When a court properly applies the state secrets doctrine, the case at bar will proceed only if the alleged state secrets are not vital to a claim or defense, so there should be little fear that a substantive holding will ultimately turn on secret material. By contrast, consider the harm done to the openness of the court system by what the majority does here. It bars any action in the face of what we are required to assume are outrageous constitutional violations, and it does so simply because state secrets might possibly be involved, without having a court look into that very question. As a result, even if the Government’s claimed need for secrecy turned out to be wholly illusory, there would be no recourse!

Indeed, even if the Government declassified every document relating to this case, even if all four countries involved announced that they had nothing to hide and that Arar’s claim should proceed so that they could be exonerated, there would be no open judicial testing of Arar’s allegations. Which approach should give us more cause to hesitate?" (p. 177-178)

[1] I use this much abused phrase “judicial activism,” in its literal sense, to mean the unnecessary reaching out to decide issues that need not be resolved, the violation of what Chief Justice Roberts called “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. U.S. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring).