| Please respond to fellow classmate Andreaa Patterson discussion question. Here is the orginial discussion question: 2. What is “extraordinary rendition?” Why did the Court in Arar v. Ashcroft, 585 F.3d 559, cert denied, 130 S. Ct. 3409 (2010) refuse to extend aBivens claim to Mr. Arar’s case? Why did the dissent disagree? Who is legally correct? Who is morally correct? Is it the legitimate function of courts to create remedies where Congress has not provided one? Would allowing courts to create a remedy for victims like Mr. Arar uphold or undermine separation of powers? Below is her Response. Start off by saying, Hi Andreaa, Great Post. Then go into why her post was good or bad. Give some substantive facts that either agree or disagree with Andreaa. Write the reply as if you are talking to Andreaa. Thanks. Here is her post: Andreaa Patterson Question 2: Extraordinary Rendition COLLAPSE What is extraordinary rendition? Extraordinary Rendition is the surrender of a person from one state to another state that has requested him, typically pursuant to an agreement or extradition treaty, for the purpose of criminal prosecution (Dycus, 952). Why did the court in Arar v. Ashcroft (2010), refuse to extend a Bivens claim to Mr. Arar’s case? In Bivens, the Supreme Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights” (Dycus, 958). The purpose of the Biven’s remedy according to the Supreme Court “is to deter individual federal officers from committing constitutional violations” (Dycus, 958). There are two principles that applies to Bivens claim, 1) the special factors, which is substantial enough to justify the absence of a damages remedy for a wrong, and 2) counsels hesitation is counseled whenever thoughtful discretion would pause even to consider (Dycus, 959). Reasons for the Supreme Court not to extend Bivens claim to Mr. Arar was that his claim touched upon “foreign policy and national security fall within an area of executive action in which courts have long been hesitant to intrude absent congressional authorization” (Dycus, 961). Also, Canada alreayd paid Mr. Arar $10 million for the law suit, which implied that Canada cooperated with the American federal officials concerning Mr. Arar’s wherebouts. Why did the dissent disagree? Circuit Judge Barrington D. Parker disagreed with this decision due to the majority leaving Mr. Arar without a remedy in the U.S. courts. “The Court’s pronouncement that it can offer Arar no opportunity to prove his case and no possibility of relief” (Dycus, 969). Also, the judge contends that the Court’s hesitation “today immunizes official conduct directly at odds with the express will of Congress and the most basic guarantees of liberty contained in the Constitution” (Dycus, 969). Who is legally correct? The Court is legally correct because there job is to not undermine the Legislative branch’s role nor the Executive branch’s role, except to interpret the laws of the land. “Courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs” (Dycus, 961). Who is morally correct? Both the Court and the federal government are morally correct, both entities did not violate Mr. Arar’s due process rights under the 4th and 5th amendments. The settlement law suit from Canada awarded Mr. Arar’s $10 million dollars. Mr. Arar was tortured in Syria, by the Syrian government, which the burden of proof of U.S. officials commanding the Syrian government to torture him was insufficient and inconsistent with the allegations he claimed. Is it the legitimate function of courts to create remedies where Congress has not provided one? The function of courts is to interpret the laws of the U.S. Constitution not to interfere and create remedies when Congress has not provided one. “Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs” (Dycus, 961). Would allowing courts to create a remedy for victims like Mr. Arar uphold or undermine separation of powers? Allowing courts to create a remedy for victims like Mr. Arar would undermine separation of powers because the courts’ role is to interpret the laws of the land and to have checks and balances. Courts creating a remedy for terrorists who want to sue the U.S. government would undermine national security affairs and foreign policy that are in placed in order to protect the country, its citizens, and military officials (who are fighting and defending the country). |
