In the fascinating and important new terrorism case from the Second Circuit in Arar v. Ashcroft, Judge Cabranes has unusually harsh words for Judge Sack, who dissented. The Arar case considers whether there is a Bivens remedy for claims involving the removal of an alien from the United States. Arar was suspected of being a member of Al Qaeda, and the U.S. deported him to Syria, and he was allegedly tortured by Syran officials. The majority of the Second Circuit held that the Bivens doctrine (allowing a civil suit in federal court for a violation of a constitutional right) did not allow a Bivens remedy for such conduct. Judge Sack dissented, arguing that the courts could craft such a remedy.
In his majority opinion, joined by Judge McLaughlin, Judge Cabranes had the following response to Judge Sack:
Such is the freedom enjoyed by the writer of a dissenting opinion. Those charged with rendering decisions that carry the force of law have no such freedom, however. Our task is to deliver a reasoned opinion that conforms to the precedents of the Supreme Court and our Court; we have done so here. We agree, of course, with Judge Sack’s view that threats to the nation’s security do not allow us to jettison principles of “simple justice and fair dealing.” Id. at [55] But these parlous times of national challenge can no more expand the powers of the judiciary than they can contract the rights of individuals. The creation of civil damage claims is quintessentially a legislative function, and the protection of national security and conduct of foreign affairs are primarily executive. Whatever the emotive force of the dissent’s characterization of the complaint, we cannot disfigure the judicial function to satisfy personal indignation.
The majority and dissent disagreed so much they even used different fonts.