Law School Case Brief
Arar v. Ashcroft - 585 F.3d 559 (2d Cir. 2009)
Any allegation arising under the Torture Victim Protection Act requires a demonstration that the defendants acted under color of foreign law, or under its authority. In construing the term "color of law," courts are instructed to look to jurisprudence under 42 U.S.C.S. § 1983. Under § 1983, the traditional definition of acting under color of state law requires that the defendant have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. The determination as to whether a non-state party acts under color of state law requires an intensely fact-specific judgment unaided by rigid criteria as to whether particular conduct may be fairly attributed to the state. A federal officer who conspires with a state officer may act under color of state law, but since federal officials typically act under color of federal law, they are rarely deemed to have acted under color of state law.
Plaintiff Maher Arar alleged that he was detained while changing planes at Kennedy Airport in New York (based on a warning from Canadian authorities that he was a member of Al Qaeda), mistreated for 12 days while in United States custody, and then removed to Syria via Jordan pursuant to an inter-governmental understanding that he would be detained and interrogated under torture by Syrian officials. He filed a claim against the Attorney General of the United States, the Secretary of Homeland Security, the Director of the Federal Bureau of Investigation, and others, including senior immigration officials, alleging violation of the Torture Victim Protection Act (TVPA), and of his Fifth Amendment substantive due process rights arising from the conditions of his detention in the United States, the denial of his access to counsel and to the courts while in the United States, and his detention and torture in Syria. The district court dismissed the complaint, and Arar timely appealed. A three-judge appellate panel of the Court of Appeals for the Second Circuit held, inter alia, the Arar failed to state a claim under the TVPA, as he insufficiently pleaded that the alleged conduct of United States officials was done under color of foreign law. The appellate court then voted to rehear the appeal in banc.
Was the alleged conduct of the United States officials done under color of foreign law, thereby making it fall within the ambit of Torture Victim Protection Act, from which plaintiff can validly base his action?
The Court noted that under 42 U.S.C.S. § 1983, acting under “color of law” meant that the defendant has exercised power possessed by virtue of state law and made possible only because the wrongdoer was clothed with the authority of state law. The Court held that plaintiff failed to allege that the federal officials possessed power under Syrian law or that his removal to Syria and subsequent torture derived from an exercise of that power. According to the Court, the allegation that the federal officials encouraged or solicited certain conduct by foreign officials was insufficient to establish that the federal officials were clothed with the authority of Syrian law or that their conduct was fairly attributable to Syria. Hence, the Court averred that the dismissal of the claim was proper.
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