His suit against certain named U.S. officials for damages under what is known as the Bivens doctrine was dismissed on the grounds of "a special factor" urged by the government that the violation of his rights occurred "during efforts to protect national security and that affected foreign affairs", and that the judiciary was not the branch to balance individual rights against national security. (His lack of U.S. citizenship was not a basis for the dismissal.)The judiciary was created, in part, to reign in abuses by the other branches if they violated the rights granted to individuals. Hopefully, we do not have to debate in this day and age, that persons here and everywhere have the right to be free from torture. Torture, although practiced in many places, is virtually forbidden everywhere and most certainly violates the Fifth Amendment, our laws and our treaties. So what is the balancing that must take place? Is the argument that forbidding torture or compensating someone who has been tortured under the auspices of or in complicity with our government may somehow run contrary to national security?
The judiciary has the role and duty of protecting constitutional rights during times of national crisis and war, even to the extent of limiting the power of the executive branch. In such times, the judiciary should be even more vigilant, because it is in such times that our rights are in the greatest jeopardy. President Truman's seizure of the steel mills during the Korean War (on the grounds that a strike would have affected the war effort) was prohibited by the Supreme Court noting that a president cannot elude the restrictions of the Constitution by the assertion of his military role. Likewise, the First Amendment trumped the government's efforts to block the publication of the Pentagon Papers despite the government's assertion of damage to the national security.
Mr. Arar has no other remedy other than his claim for damages. Congress has not explicitly denied the remedy under these circumstances, nor provided any alternative. The government in a formal submission to the United Nations stated that there is no justification or tolerance for torture. So the balancing, if indeed there is a need for it, has already been done. If we condone the outsourcing of torture and fail to provide a remedy for it, then we are no different than the suicide bombers, who also purport to act in furtherance of their foreign policy.
(I wish to disclose that it is my intention to join with other retired judges in filing an amici brief urging a reversal of the dismissal of Mr. Arar's case.)