Post details: CA2: No Bivens claim for extraordinary rendition where Congress has not spoken
11/09/09
CA2: No Bivens claim for extraordinary rendition where Congress has not spoken
The Second Circuit en banc refuses to recognize a Bivens claim in extraordinary rendition cases where Congress has not spoken. Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc):
Our ruling does not preclude judicial review and oversight in this context. But if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.
Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather, we conclude that, when a case presents the intractable "special factors" apparent here, see supra at 36-37, it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress--and not for us as judges--to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition, see David Johnston, U.S. Says Rendition to Continue, but with More Oversight, N.Y. Times, Aug. 24, 2009, and not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.
Defendant was present, but he was not asked for consent. This did not violate Randolph. Invoking Miranda is not a refusal of consent. Also, he never objected to her consent. United States v. Stanley, 2009 U.S. App. LEXIS 24238, 2009 FED App. 0716N (6th Cir. November 4, 2009) (unpublished)*:
Stanley did not refuse consent to search the apartment. Stanley admits he was present in the apartment when Foster gave her consent to search. Stanley did not object after Foster gave her consent. Again, Stanley cites no authority, and we are unaware of any, that supports Stanley's assertion that the invocation of Miranda rights constitutes an express refusal of consent to search. The district court did not err in ruling that Foster's consent to the search gave the officers legal authority to search the apartment. See Lawrence, 308 F.3d at 626-627.
Failure to include an argument in a motion to suppress is a waiver of that specific argument. United States v. Hamilton, 2009 U.S. App. LEXIS 24435 (10th Cir. November 5, 2009).*
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