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Owen Fiss Headshot

The Example of America

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President Obama should support providing legal remedies to those who were victims of torture. Such a stance would provide a measure of justice to the victims of torture and lend credence to President Obama's lofty rhetoric about the future. It would also bring to light constitutional abuses of the past eight years, and enable the public to confront and acknowledge the violations of the Constitution committed in their name. The President should support the judiciary in declaring -- in bold and clear terms -- that the constitutional ban on torture applies to American officials and their instrumentalities wherever they act and against whomever they act.

A special test of these principles is now pending before the Second Circuit. It involves Canadian citizen Maher Arar, who was taken into custody by U.S. officials at JFK airport in September 2002, and then transferred to Syria for interrogation under conditions of torture. At issue is the legality of the practice known as extraordinary rendition, the transportation of individuals suspected of terrorist activity to foreign countries for interrogation, sometimes torture.

After a panel of three judges refused to reach the merits of Arar's claim, twelve judges of the Second Circuit, sitting en banc, reheard the case. They are expected to rule soon. And they should stand up for our constitutional values by making the judgments that the panel before them was unwilling to make.

One reason that the three-judge panel avoided judgment was that Arar asked for monetary damages and a declaratory judgment that the law had been broken. On the first claim, the panel ruled that it did not have congressional authorization to give damages. Such a ruling seems odd in the extreme. It is not clear why Congress, a political body, must give the judiciary authorization before allowing damages for the violation of a constitutional right.

More importantly, even if the panel's unwillingness to award damages is sound, the declaratory judgment claim remains unaffected. A declaratory judgment simply declares what the law is. It requires no congressional authorization and does not penalize any past act. It is an exercise of the core judicial function. It enables the judiciary to remove any lingering uncertainty as to the legality of extraordinary rendition, and thus to restore the sovereignty of the Constitution.

Here, too, the Second Circuit three-judge panel hesitated and dismissed the declaratory judgment claim, this time on the theory that Arar lacked standing, the legal right of an individual to bring a lawsuit. To my mind, Arar suffered sufficient harm to meet the constitutional standing requirements. We all suffer when someone is tortured, because the basic law of the nation is compromised. But the victim of the rendition suffers in a distinct and very particularized way. His personal suffering constitutes an injury in fact and as such should entitle him to invoke the power of the federal judiciary. Arar has every incentive to make certain that the contentions of law and fact are vigorously presented. Moreover, the claim tendered -- that the government acted in violation of the Constitution -- respects the inherently legal function of the judiciary: to say what the law is.

The declaratory judgment does not contain the material component of a damages award, but much like a damages award, it speaks both to the world and to the victim. It says to the world that the government violated basic norms of the legal order -- the Fifth and Eighth Amendments, which prohibit, respectively, deprivations of rights without due process and cruel and unusual punishment. It also addresses the rendition victim and tells him, in a direct and personal way, that he has been wronged -- high American officials violated the basic law of their nation in sending him to Syria for interrogation under conditions of torture. Such a statement may have as much meaning to the victim and give him as much satisfaction as an award of damages. It helps restore his self-worth. It speaks to his soul, not his pocketbook, but there is nothing in the Constitution that prioritizes the material over the spiritual.

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