No Comment — September 23, 2011, 2:53 pm

Injudicious Judge

Earlier this week, the United States Court of Appeals for the Second Circuit let stand, by a 6–6 vote, a panel decision authorizing an ACLU suit challenging warrantless surveillance of a group of scholars and journalists. At the core of the lawsuit is a challenge to surveillance under the FISA Amendments Act of 2008. The suit raised a number of extremely serious questions about the legislation, seeking injunctive relief that would have restricted its use for surveillance in the future. Justice Department efforts to block the ACLU suit have focused on such technical questions as standing, which governs who can bring a lawsuit and when.

When the Second Circuit opinions were released, most were scholarly discussions of the law. But one was not—an opinion issued by Chief Judge Dennis G. Jacobs. Revealingly, no other judge joined the Jacobs opinion, in which Jacobs called the lawsuit “frivolous” and stated that it was akin to a “plaintiff’s allegation that the C.I.A. is controlling him through a radio embedded in his molar.”

The plaintiffs—all of whom are involved in studying and writing about terrorist groups, and some of whom are eminent authorities regularly relied upon by the U.S. government—express concern that as FISA is apparently being interpreted, their communications would be routinely intercepted and examined by the NSA. The NSA has not credibly denied their contention. Indeed, retired senior NSA officials like Thomas Drake have openly acknowledged that such practices were routine during the Bush years.

A hardened civil-liberties skeptic could of course argue that the government is within its rights to engage in the warrantless surveillance of its citizens, but to compare those who complain about it to tin-hatted loons is irrational. The balance of Jacobs’s opinion was long on hyperventilating political rhetoric, and short on facts and legal argument.

Back in 2007, Jacobs told Adam Liptak of the New York Times, “I haven’t opened up a law review in years.” A review of his opinions bears this out. Indeed, there, no authority appears to surpass Dennis G. Jacobs. A noteworthy example is an opinion addressing the suit brought on behalf of Maher Arar, the Canadian computer engineer who was sent to Syria on the orders of Deputy Attorney General Larry D. Thompson. Arar was brutally tortured in Syria, though it turned out he had been sent there because of some false information given to the Americans by their Canadian counterparts. Canada paid Arar millions in restitution, but the Bush Administration refused even to talk to him and sought to block his suit. In the Second Circuit opinion dismissing it, Jacobs decided that the fact that Canada wouldn’t accept Arar back home was essential to the resolution of the case. Unfortunately for Jacobs and his colleagues, however, this wasn’t, in fact, a fact: Canada had agreed to receive Arar. So the Second Circuit opinion in a highly visible case turned on an invention by Judge Jacobs, making it one of the most embarrassing decisions in the court’s history—one it has yet to correct.

Jacobs’s contempt for lawyers who represent Guantánamo defendants pro bono is famous. Indeed, he made it the subject of a lecture to a conservative audience in which he suggested that “anti-military animus is pervasive” among legal elites. His argument would be familiar to those who listen to the radio broadcasts of Rush Limbaugh, but not to those who have dealt with the pro-bono programs of the law firms involved in Guantánamo defense work, which is founded on a partnership between the firms and uniformed military lawyers, who serve as detailed counsel.

“Great harm can be done when the legal profession uses pro bono litigation to promote political ends,” Jacobs argued in another lecture. This is particularly the case when lawyers oppose the government, he said, terming this an “anti-social influence.” In the Jacobs view, citizens apparently have no business questioning the decisions their government makes on national-security grounds; those who do so are know-nothing busybodies; and the courts should keep out of the entire area. Judge Jacobs’s views are common enough among judges addressing national-security issues around the world, but they are quite unusual among those sitting in democratic societies. Glenn Greenwald sheds more light on his biases and writings here.


Reader James J. Beha II responds:

Scott Horton writes that Chief Judge Dennis G. Jacobs “decided that the fact that Canada wouldn’t accept Arar back home was essential to the resolution of the case.” However, according to a previous Horton post, to which he linked as support, this was not true, and thus “the Second Circuit opinion in a highly visible case turned on an invention by Judge Jacobs, making it one of the most embarrassing decisions in the court’s history.” But the notion that the decision in Arar “turned” on whether Canada would accept Arar into the country is an invention by Horton.

By way of background, Congress has never created an explicit cause of action allowing an individual to sue federal officials for constitutional violations. However, in some circumstances, courts have found an implied right of action for such violations—a so-called “Bivens action,” after a 1971 Supreme Court decision. The Bivens Court noted that it would not find such an implied cause of action in cases involving a “special factor counseling hesitation.” In the years since Bivens, courts have been reluctant to extend the implied Bivens action to other contexts. As the Second Circuit explained in another case, “Because a Bivens action is a judicially created remedy . . . courts proceed cautiously in extending such implied relief.” The Arar case required the Second Circuit to decide whether to recognize a Bivens action against federal officials for deporting Arar to Syria to be tortured.

Judge Jacobs dedicated nearly half of the fifty-nine-page majority opinion to explaining his conclusion that there is no implied cause of action against federal officials for extraordinary rendition because a number of special factors counsel hesitation in that context. Based on these factors—notably separation-of-powers issues—the Court concluded that a Bivens action over extraordinary rendition would be inappropriate.

After reaching this conclusion, the Court discussed some of the difficult policy decisions raised by Arar’s case, leading Jacobs to write the following paragraph:

Consider: should the officers here have let Arar go on his way and board his flight to Montreal? Canada was evidently unwilling to receive him; it was, after all, Canadian authorities who identified Arar as a terrorist (or did something that led their government to apologize publicly to Arar and pay him $10 million). Should a person identified as a terrorist by his own country be allowed to board his plane and go on to his destination? Surely, that would raise questions as to what duty is owed to the other passengers and the crew. Or should a suspected terrorist en route to Canada have been released on the Canadian border–over which he could re-enter the United States virtually at will? Or should he have been sent back whence his plane came, or to some third country? Should those governments be told that Canada thinks he is a terrorist? If so, what country would take him? Or should the suspected terrorist have been sent to Guantanamo Bay or—if no other country would take him—kept in the United States with the prospect of release into the general population?

Under any fair reading of this passage, the Court neither considered it a “fact” that Canada would not accept Arar, as Horton wrote, nor found it essential to its decision. Jacobs was simply describing the difficult decision facing officials who had been told that a traveler passing through JFK was a terrorist. And, indeed, Jacobs later stated that his discussion of the policy implications did not factor into the Court’s decision: “Given the ample reasons for pause already discussed, we need not and do not rely on this consideration in concluding that it is inappropriate to extend Bivens to this context” (my emphasis).


Scott Horton replies:

Mr. Beha makes a fair point in noting Jacobs’s use of the word “evidently,” but he is wrong to dismiss the significance of this counterfactual assumption. The core of the Jacobs ruling is that considerations of national security should provide an exception to the principle, anchored in solemn treaty assurances given by the United States, that government officials are accountable for decisions that result in a person’s rendition to torture. To that end, his counterfactual fantasies about Canada’s unwillingness to permit the return of one of its citizens play a vital animating role — even though the decision turns on the broader concept of a more blanket immunity. Jacobs’s willingness to gin up fake facts in the service of his theory marks this opinion and is a prime reason why, as Judge Calabresi wrote — with his characteristic restraint, “When the history of this distinguished court is written, [Judge Jacobs’s] decision will be viewed with dismay.”

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