But one of the three judges dissented, blasting as "a legal fiction" the
idea that Arar was not in this country when he was apprehended at Kennedy.
That judge, Robert D. Sack, a Clinton appointee, said that Arar's case should continue because Arar "was, in effect, abducted while attempting to transit at J.F.K. Airport."
Legal experts believe the rehearing resulted from a request by one of the Appeals Court judges, though it is not known whether it was Judge Sack. The request was granted by a majority of the appeals judges.
However, a full U.S. appeals court hearing is far from a slam-dunk. Even if Arar is able to establish that he has standing to bring his suit, the chances are the government will invoke its "state secrets privilege," claiming that disclosure of the details of Arar's case in open court would compromise America's national security.
However much we may applaud court rulings in the Guantanamo and warrantless wiretapping cases, it is in the area of "state secrets" that the courts have generally been almost universally deferential to the claims of the Executive Branch. No one denies that there are genuine secrets that any government has the right - the obligation - to keep. But, once rare, use of the state secrets privilege has increased exponentially during the Bush years, and the courts with only a few exceptions have been quick to support the government's assertions.
So rare is a judge's dismissal of a government "state secrets" motion that, when it happens, it becomes front-page news. That's what happened when a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list. The plaintiff, a local businessman, sued to discover whether his name was on the list. The government called that a "state secret," but the judge disagreed. The government is appealing the decision.
The bottom line is that invocation of the state secrets privilege has kept many cases from ever coming before any court. It is an essential part of the curtain of secrecy the Bush Administration has built, often for nothing more than avoiding political embarrassment.
There are efforts in Congress to enact legislation to limit the government's use of the state secrets privilege. The Senate Judiciary Committee has approved a bill that attempts to do just that -- it would require the government to actually produce the evidence it says is protected for
review by a federal judge in a classified setting. But the bill lacks bipartisan support on the committee (only one Republican, Sen. Arlen Specter (R-Pa.) voted to move it to the Senate floor). That makes the future of the measure unclear.
Also unclear is the role the Judiciary will play in a new Administration. Several of the current Supreme Court justices are nearing retirement age. John McCain has vowed to appoint replacements in the mould of Roberts, Alito, Scalia and Thomas, i.e. the kinds of conservative judges who have predictably dissented in cases such as those brought by Guantanamo detainees in particular and those involving expansionist presidential power generally. But it's unclear how a President McCain would get their nominations through a Congress dominated by Democrats.
But neither McCain nor Obama have had much to say about issues such as the role of the Judiciary or the limits of presidential power. Apparently these are concerns that both presidential candidates appear to think are so far down in the weeds that American voters won't understand their importance. Or too politically dangerous to discuss. Whatever their reasons, both candidates have been sadly silent on these issues.
Yet voters have a right to demand that their presidential candidates give them more credit for being able to understand complex issues. They need to demonstrate that they can explain these issues in language ordinary voters will understand. They need to tell voters how they would approach those issues. And they need do a better job of explaining the centrality of these issues to the rule of law and to the very definition of who we are as a nation.
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