CSPAN video of 2nd Circuit oral argument including Judge Sotomayor (torture and rendition)

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Second Circuit Court of Appeals heard oral argument in Arar v. Ashcroft. The case stems from the Sept. 2002 detention of Maher Arar, a Syrian-born, Canadian citizen during a layover at the J.F.K. Airport in New York City. Arar is challenging his rendition by the U.S. government to Syria, where he alleges he was tortured and released after one year without being charged. The argument was heard in an en banc session, meaning all 12 appeals judges heard the case.
Washington, DC : 2 hr. 25 min.

http://www.c-span.org/Watch/Media/2008/12/13/HP/A/13357/AC+Arar+v+Ashcroft.aspx

[SadeMN]

1. Thanks for this! n/t

[SamCooke]

2. Doesn't make her look good

[elleng]

7. In what respect?

.

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9. I thought she was seeking clarification, the right bloc of the court is looking for a technicality

[elleng]

11. 'right bloc?'

.

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13. sorry, right wing of the court, Raggi, Jacobs

[elleng]

15. 'right wing?'

Where'd that come from?

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19. Most of them came from GWB.

[4lbs]

20. Souter was appointed by GWB Sr. and yet he's been quite progressive during his tenure.

n/t

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21. Exceptions do not disprove a rule, GWB appointed Roberts and Alito, Clinton Ginsburg and Breyer

[elleng]

23. Not "THEM," I'm not talking about members of the court.

Rather, the argument itself.

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24. It comes from a belief that most GWB appointees are more sympathetic to the gov in this case

Do you want to wager on whether the majority of the judges that side with the government on this are Republican appointees?

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25. You will notice that the liberal bloc of the court has more questions for the gov lawyer and are

more skeptical. In fact the chief justice has intervened twice in their grilling of the gov lawyer so far in my watching it.

[Aloha Spirit]

3. Watching it now, thanks

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4. They seem to be nit picking it

[elleng]

8. Nit picking what?

.

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10. What the lawyer is alledging

[4lbs]

12. You need to watch more Circuit and Supreme Court cases. This always happens.

The judges are usually harder on the plantiff than the defendant, because they adhere strictly to the spirit of burden of proof. Thus, the plantiff has a larger responsibility to prove his/her case.

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14. That is true but I think a line is crossed from that to searching for a technicality to justify the

unjustifiable.

[4lbs]

16. They are just being thorough. More cases than you think are decided on stupid technicalities.

n/t

[elleng]

17. or 'mere' technicalities!

The law is FULL of these!

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18. Do you think Raggi is just being thorough? What are the odd she sides with the gov no matter what?

[elleng]

5. THANKS SO MUCH FOR THIS!

I happen to LOVE such. I also think folks here could benefit HUGELY by watching such.

AND I don't understand how the Supremes (or a Circuit Court of Appeals such as this one) could do their jobs with a non-lawyer member.

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6. Calabresi is impressive, Clinton appointee

[Aloha Spirit]

22. Jonathan Cohn's argument about due process is so weak. thanks again for posting.

I'm glad Cohn left, you can tell that man lacks human qualities.

[elleng]

26. Has there been no enbanc decision from the 2d circuit?

Haven't found one.

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28. Here:

http://ccrjustice.org/files/6.30.08%202nd%20Circuit%20Decision%20in%20Arar%20on%20the%20website.pdf

[elleng]

29. Not THIS matter, which was argued December, '08.

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32. This is the full circuit, that was the panel decision prior

[elleng]

33. Right, this is the full panel, EN BANC.

and it appears that there's been no decision on this matter yet.

edit: as stated at the end, by the voice of c-span.

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35. Sorry, I had the meaning of EN BANC juxtaposed. There has been a panel ruling that the full court

is now reviewing.

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37. And to answer your question now that I am not confused, I don't think the court has ruled yet

[elleng]

38. Right, it has not.

.

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40. I would like to see it when it does. I wonder when we might expect it?

[elleng]

41. Its a difficult case,

as we could see from the argument; No bets here.

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27. Note that the dissent in the panel decision was made by Judge Sack, so we know he is not fond of the

gov view on this. And yes, he was a Clinton appointee.

[4lbs]

31. Actually, if you read the whole thing, all the justices agreed on dismissal on 3 of the 4 charges.

Sack only disagreed on whether the plantiff could sue for monetary damages as part of Bivens cause of action and remedy. The majority said no he could not, Sack felt he could.

In this case, it appears that both the Conservative appointed and Liberal appointed justices sided with the government in nearly every instance.

From your link above:

<snip>
Judge Sack concurs in part and dissents in part. Specifically, Judge Sack agrees with the
majority that (1) Arar has made a prima facie showing sufficient to establish personal jurisdiction over Thompson, Ashcroft, and Mueller; (2) Arar’s allegations regarding his removal to Syria do not state a claim against defendants under the TVPA; and (3) Arar has not adequately established federal subject matter jurisdiction over his request for a judgment declaring that defendants acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.

Unlike the majority, however, Judge Sack would accept Arar’s invitation to judicially create a
new Bivens remedy and would permit Arar’s claims for monetary damages to go forward based on his
view that (1) the context giving rise to Counts two and three of Arar’s complaint
<snip>

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34. The full court is now considering additional claims but it is still clear that Sack is already

on board with part of the multiple claims now brought by Arar's attorney. But the fact that Cabranes sided against those claims is not good news for any of us hoping for enough votes to get to 7.

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30. Sotomayor to gov lawyer: "So the minute the executive raises the spector of foreign policy/national

security it is the government's position that that is a license to torture anyone?"

This gives us clear indication that she does not want to follow what the government is asserting relative to legal justifications for torture!

[elleng]

36. DID WE ALL HAVE FUN????

:toast:

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39. I did but am still watching. The political conflict here is juicy, concealed only partially by

judicial respectfulness. :)

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42. kicking in case anyone missed it