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| TIME | SPEAKER | TEXT |
|---|---|---|
| 00:00:33 |
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THIS IS C-SPAN "AMERICA AND THE COURTS." NEXT ARGUMENT ON ARAR VS. ASHCROFT. ARAR ALLEGES HE WAS TORTURED... |
| 00:02:42 |
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GOOD AFTERNOON. MAY IT PLEASE THE COURT. THE COMPLAINT IN THIS CASE ALLEGES THAT MAHER ARAR CANADIAN... |
| 00:04:49 |
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BEFORE YOU CAN -- SO YOU CAN BE HELPFUL BEFORE YOU GET TO BIVENS BECAUSE IT'S PART OF YOUR ARGUMENT,... |
| 00:05:26 |
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I THINK, I THINK IT IS ALL OF THE, THE ABOVE, YOUR HONOR. I THINK THAT THE, THAT WHAT'S CRITICAL ABOUT... |
| 00:05:52 |
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BUT YOU, YOU AREN'T CONCEDING THAT THAT, EVEN IF HE HAD HAD ACCESS TO THOSE REMEDYIES THEY WOULD'VE... |
| 00:06:01 |
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NO, BUT I THINK IT MAKES IT A MUCH EASIER CASE, YOUR HONOR, WHEN, WHEN, WHEN GOVERNMENT, WHEN THE... |
| 00:06:28 |
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YOU MEAN BY SERVING, BY INVITING COUNSEL INTO A MEETING AT, BY CALLING COUNSEL'S OFFICE ON 4:00 ON... |
| 00:06:46 |
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THAT'S RIGHT AND IF YOU LOOK AT THE CHRONOLOGY WHAT HAPPENS IS HE IS IN DETENTION FOR TEN DAYS. THEY... |
| 00:07:07 |
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AT HER OFFICE. |
| 00:07:08 |
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AT HER OFFICE. SHE'S NOT. THERE THEY THEN HAVE A SIX-HOUR SESSION FROM 9:00 P.M. UNTIL 3:00A.M.? WHEN... |
| 00:07:26 |
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MR. COAL? |
| 00:07:27 |
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MR. COAL? |
| 00:07:28 |
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THERE'S A QUESTION. |
| 00:07:29 |
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THIS IS JUDGE -- |
| 00:07:30 |
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OH, I'M SORRY. IUM -- I'M SORRY. YES. |
| 00:07:35 |
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I UNDERSTAND YOUR EMPHASIS ON THE VIOLATION OF THE ACCESS TO COURTS BUT I'M NOT QUITE SURE, AND I... |
| 00:08:28 |
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WELL I DON'T THINK YOU CAN -- I THINK BECAUSE THE GOVERNMENT DENIED HIS ABILITY TO PURSUE THAT REMEDY,... |
| 00:09:16 |
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NO, NOT AT ALL. |
| 00:09:17 |
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NOT ONLY BECAUSE HE HAD -- |
| 00:09:19 |
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NO, THAT'S THE POINT. THAT'S WHY I'M TRYING TO UNFIGURE -- FIGURE OUT AND UNTIE YOUR ARGUMENT A INVOLVING... |
| 00:09:37 |
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OKAY. -- |
| 00:09:39 |
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CONSPIRACY TO TORTURE. |
| 00:09:40 |
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RIGHT. IF HE, IF THERE HAD BEEN NO DENIAL OF ACCESS TO COURT, THEN WE WOULDN'T HAVE THE INDEPENDENT... |
| 00:10:18 |
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CONSPIRACY? YOU MEAN WITHIN THE FEDERAL GOVERNMENT? WE USE THAT TERM. |
| 00:10:21 |
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CONSPIRACY BY THE FEDERAL OFFICIALS TO TAKE THIS MAN WHO CANADA WAS WILLING TO ACCEPT WHO LIVED IN... |
| 00:10:34 |
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MR. COAL, WHAT EXACTLY WAS THE CAUSE OF ACTION THAT MR. ARAR WAS BARRED FROM BRINGING BY THE DEFENDANTS... |
| 00:10:44 |
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THE, THE CAUSE OF ACTION WAS A CAT CLAIM, YOUR HONOR, AND IN FACT, THE DISTRICT COURT SAID T. IT IS... |
| 00:11:10 |
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SO DOES THAT MEAN YOU'RE NOT SUGGESTING THAT HE WAS PRECLUDED FROM CHALLENGING THE DECISION TO REMOVE... |
| 00:11:23 |
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WELL, A CAT CLAIM WOULD BE A CHALLENGE TO THE REMOVAL ORDER ON THE GROUNDS OF TORTURE. |
| 00:11:28 |
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I UNDERSTAND THAT BUT THERE WOULD ALSO BE A SEPARATE REMOVAL TYPE PROCEEDING WHICH THE GOVERNMENT... |
| 00:11:50 |
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HE WAS PRECLUDED FROM SEEKING IN A REVIEW OF HIS REMOVAL, INCLUDING THE CAT CLAIM, INCLUDING CHALLENGING... |
| 00:12:08 |
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THE GOVERNMENT SUGGESTS THAT COUNCIL COULD HAVE INITIATED IN THOSE PROCEEDINGS THE NEXT BUSINESS DAY... |
| 00:12:24 |
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WELL, A HABEAS ACTION WOULD HAVE BEEN PREMATURE BEFORE A REMOVAL ORDER WAS ISSUED. |
| 00:12:29 |
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WHY? |
| 00:12:33 |
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BECAUSE THE CLAIM WAS THAT I CANNOT BE SENT TO SYRIA UNTIL OCTOBER 8 AT 4: 30 IN THE MORNING. HE HAD... |
| 00:12:52 |
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HE WOULD HAVE NO INTEREST IN BRINGING EIGHT HABEAS CLAIM IF HE WAS GOING BACK TO CANADA. CHALLENGE... |
| 00:13:08 |
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WHEN WAS HE ISSUED THE FINAL ORDER? |
| 00:13:11 |
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HE WAS ISSUED IT 4:30 IN THE MORNING ON OCTOBER 8th WHILE HE WAS BEING BROUGHT TO THE -- |
| 00:13:16 |
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LET'S ASSUME FOR THE MOMENT THAT HE WASN'T BLOCKED FROM BEING, BRINGING A SUIT. AFTER HE WAS REMOVED.... |
| 00:13:55 |
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WELL PRECISELY AND THAT'S MY ANSWER TO THE PETITION FOR REVIEW BECAUSE THE GOVERNMENT SAYS THERE ARE... |
| 00:14:36 |
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YOU SAID THAT -- |
| 00:14:37 |
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AND AT THAT POINT, THERE WOULD BE NOTHING THAT A PETITION FOR REVIEW WOULD DO. |
| 00:14:42 |
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YOU SAID A MOMENT AGO CANADA WAS WILLING TO ACCEPT HIM. THAT SEEMS STRANGE SINCE IT'S CANADA THAT... |
| 00:15:02 |
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IT'S TRUE. CANADA PROVIDED ERRONEOUS INFORMATION TO THE UNITED STATES. HE WAS A PERSON OF INTEREST... |
| 00:15:08 |
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BUT WHY DO YOU SAY THAT CANADA WAS WILLING TO ACCEPT HIM? |
| 00:15:11 |
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THEY WERE WILLING TO ACCEPT HIM. THEY DID NOT MAKE ANY SUJDS TO THE UNITED STATES THAT THEY WOULD... |
| 00:15:20 |
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WHERE IN THE RECORD DOES IT SAY THAT CANADA WAS WILLING TO ACCEPT HIM? |
| 00:15:23 |
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IT DOESN'T SAY IT IN THE RECORD, YOUR HONOR T. SAYS -- IF YOU LOOK AT THE CANADIAN COMMISSION REPORT,... |
| 00:15:31 |
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IT'S NOT IN THE RECORD. |
| 00:15:32 |
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IT'S NOT IN THE RECORD, YOUR HONOR. I'M NOT SURE IT MATTERS, YOUR HONOR, BUT I THINK THE POINT IS... |
| 00:15:50 |
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HE WAS GOING TO ZURICH URBSHS WASN'T HE? SO IT DOESN'T MATTER -- |
| 00:15:52 |
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NO. ALL IT DOES IS REINFORCES THE PLOSSABILITY -- |
| 00:15:57 |
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IF HE HAD GONE BACK TO ZUREIC WOULD THE UNITED STATES HAD A DUTY TO TELL THE SWISS THAT THE CANADIANS... |
| 00:16:05 |
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THEY MAY WELL HAVE. |
| 00:16:06 |
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THEY MIGHT. |
| 00:16:07 |
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THEY MAY WELL HAVE. |
| 00:16:08 |
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AND WOULD THEY BE ABLE TO PUT HIM ON A PLANE WITHOUT TELLING THE CAPTAIN OR THE OTHER PASSENGERS?... |
| 00:16:28 |
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WELL, THEY COULD'VE SENT HIM OFF TO THE COUNTRY OF HIS CITIZENSHIP AND LET THAT COUNTRY DEAL WITH... |
| 00:16:33 |
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YES BUT OF COURSE THAT GETS BACK TO WHETHER CANADA WAS EWILLING TO ACCEPT HIM. |
| 00:16:37 |
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WELL THERE IS NO INDICATION IN THE RECORD, YOUR HONOR -- |
| 00:16:39 |
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SORRY. |
| 00:16:41 |
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WHY WAS SYRIA CHOSEN? HE DIDN'T HAVE A SYRIAN PASSPORT. |
| 00:16:44 |
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HE DIDN'T -- BUT HE DIDN'T HAVE A SYRIAN PASSPORT BUT HE WAS BORN IN SYRIA AND SO HE WAS TECHNICALLY... |
| 00:16:54 |
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BUT HE TOLD THEM. HE TOLD -- AT WHAT POINT DID HE TELL UNITED STATES OFFICIALS THAT IF YOU SEND ME... |
| 00:17:03 |
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AS SOON AS THEY ASKED HIM WILL YOU GO BACK TO SYRIA. |
| 00:17:08 |
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HE WAS VISITED AT THE -- BY CANADIAN CONSULAR |
| 00:17:12 |
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THAT'S RIGHT. |
| 00:17:14 |
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SO IF THEY DIDN'T WANT HIM BACK WOULDN'T THAT HAVE BEEN THE MOMENT TO SAY TAKE HIM, HE'S YOURS. |
| 00:17:18 |
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YEAH, YEAH, AND THEY DIDN'T -- |
| 00:17:19 |
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IS THERE ANYTHING IN THE RECORD THAT INDICATES THAT SYRIA WOULD TAKE HIM BACK WHEN THEY SENT HEM TO... |
| 00:17:42 |
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I DON'T THINK -- |
| 00:17:44 |
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WELL, THEY COULD'VE SENT HIM IN A PRIVATE PLANE TO CANADA. |
| 00:17:47 |
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IT'S NOT IN THE RECORD BUT IF I, IF I COULD ADDRESS THE ACCESS TO COURT CLAIMS SINCE WE'VE SPENT A... |
| 00:18:19 |
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WHERE DOES THAT COME FROM? IS THAT IN HIS COMPLAINT. |
| 00:18:21 |
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YES. THAT'S AN APALABAMAIGATIONINATE COMPLAINT. THE DOS -- AN ALLEGATION IN HIS COMPLAINT. THE DOSSIER... |
| 00:18:40 |
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COUNSEL, WAS IT THE SAME, THE VERY SAME OFFICIALS WHO TOLD HIS ATTORNEY THAT HE WAS IN NEW JERSEY... |
| 00:18:52 |
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WELL, I DON'T -- I DON'T THINK THAT THAT, THAT'S CLEAR, YOUR HONOR. WHAT'S CLEAR IS THAT TWICE THE... |
| 00:19:19 |
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COUNSEL, YOU BEGAN BY SAYING THIS IS NOT A NEW CONTEXT ANEW BIVENS CONTEXT. COULD I ASK IF YOU COULD... |
| 00:19:30 |
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RIGHT WELL AGAIN THERE'S TWO SEPARATE BIVENS CLAIMS. AN ACCESS TO COURT CLAIM IS A, IS A ATRADITION... |
| 00:20:56 |
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IS THERE ANY INDICATION THAT IT DOESN'T APPLY BECAUSE HE IS AN ALIEN? |
| 00:21:01 |
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NONE WHATSOEVER YOUR HONOR BECAUSE IT'S CLEAR AND THE DEFENDANT'S CONCEDE THAT AS AN ALIEN PRESENT... |
| 00:21:15 |
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MR. COAL, AS YOU SAY, THIS IS A CLAIM FOR A SUBSTANTIVE VIOLATION. OF THE DUE PROCESS CLAUSE OF |
| 00:21:26 |
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RIGHT. |
| 00:21:30 |
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HAS THE BIVENS CLAIM EVER SUBSTANTIVE DUE PROCESS CLAIM BY -- |
| 00:21:32 |
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YES, I BELIEVE SO. I MEAN, WE SIGHT CITE -- |
| 00:21:35 |
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WHICH ONE IS THAT? |
| 00:21:37 |
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I CAN'T PUT MY FINGER ON ONE RIGHT NOW, RIGHT HERE, YOUR HONOR, BUT WE CITE TODAY, YOUR HONOR. |
| 00:21:42 |
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AFTER ALL THIS METICULOUS WORK YOU HAVE DONE ON THIS CASE. |
| 00:21:45 |
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I'M SORRY, YOUR HONOR, BUT THERE ARE TOO MANY CASES. |
| 00:21:47 |
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TOO MANY THAT YOU CAN'T REMEMBER ONE. |
| 00:21:49 |
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IF YOU LOOK AT OUR BRIEF, YOUR HONOR, WE HAVE A FOOTNOTE THAT CITES A WHOLE SERIES OF SECOND CIRCUIT... |
| 00:22:02 |
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IS THAT BECAUSE THE SUPREME COURT HAS HELD THAT WHEREVER THERE IS A DUE PROCESS CLAIM BUT THERE IS... |
| 00:22:35 |
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YEAH. |
| 00:22:36 |
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YOU MUST BRING THE BIVENS ACTION BECAUSE YOU CAN'T |
| 00:22:39 |
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|
| 00:22:41 |
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BUT THERE'S NOTHING THAT SUGGESTS THAT DUE PROCESS IS ANYTHING DIFFERENT FROM THESE OTHERS IN TERMS... |
| 00:22:52 |
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NO -- |
| 00:22:53 |
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THE ONLY REASON YOU DON'T HAVE THAT CASE IS BECAUSE IN EVERY OTHER CASE THERE IS A SPECIFIC UNDERLYING... |
| 00:23:06 |
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WELL, THAT MAY WELL BE THE REASON, YOUR HONOR, BUT I THINK, IN RESPONSE TO, TO JUDGE CABRANES'S QUESTION,... |
| 00:23:32 |
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I DON'T THINK EVEN THE GOVERNMENT IS SUGGESTING THAT TO YOU. THEY CONCEDE TORCHSER ILLEGAL BUT YOU... |
| 00:23:48 |
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YOU DID BUT THEN I WAS ANSWERING JUDGE LIVINGSTON'S QUESTION WHICH ASKED ME TO RETURN TO THE TORTURE... |
| 00:23:55 |
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I'M SORRY IF WE SOMETIMES HAVE YOU CONFLATING YOUR ARGUMENTS. |
| 00:23:59 |
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NO, THAT'S FINE. |
| 00:24:01 |
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BUT TO THE EXTENT YOU TALK ABOUT IT AS AN ACCESS TO COURTS CLAIM YOU DO SUE A NUMBER OF PEOPLE IN... |
| 00:24:35 |
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WE ALLEGE HE INTENTIONALLY CONSPIRED TO KEEP HIM OUT OF COURT. WHAT -- THE FACTS THAT SUPPORT HIM... |
| 00:25:13 |
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WHY WOULD YOU PUT HIM ON THE PLANE AND SERVE HIM THE NOTICE THE NEXT DAY. |
| 00:25:17 |
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HE WAS IN NO HURRY HERE. HE WAS IN SECURITY IN A MAXIMUM SECURITY PRISON. THEY COULD'VE LET THE PROCESS... |
| 00:25:38 |
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COUNSEL, I WANT TO ASK A RATHER DIFFERENT QUESTION, WE REQUIRED BY -- IN A CASE LIKE THIS COURT TO... |
| 00:26:55 |
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AS YOU KNOW, THE PRINCIPAL IS UP ON REVIEW. I READ IT TO SAY YOU HAVE TO DECIDE THE MERITS FIRST AND... |
| 00:27:07 |
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WE HAVE SET IN SOME CASES THAT THAT DOES NOT APPLY. SOME OPINIONS HAVE SAID THAT WHERE THERE ARE OTHER... |
| 00:27:49 |
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IT IS HARD FOR ME TO ANSWER THAT, YOUR HONOR. IN MY VIEW, THERE IS NO REASONABLE ARGUMENT THAT THERE... |
| 00:28:10 |
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GOING BACK TO THE ACCESS TO COURTS, CLAIM, YOU MADE SPECIFIC ALLEGATIONS AS TO WHAT EACH OF THE NAMED... |
| 00:28:20 |
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RIGHT. |
| 00:28:23 |
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AND THERE IS THERE NO ALLEGATION THAT ANY OF THEM ACTED TO INTERFERE WITH ACCEASE TO THE COURTS. ... |
| 00:28:42 |
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WELL, BECAUSE, BECAUSE WE HAVE ALLEGE ADCONSPIRACY TO SEND THIS MAN TO TORTURE, AN ILLEGAL CONSPIRACY... |
| 00:29:14 |
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BUT EACH DEFENDANT WHO READ THE STATEMENT OF WHAT THAT DEFENDANT DID WOULD CERTAINLY BE LEFT WITH THE... |
| 00:29:25 |
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UNLESS IT WAS A CONSPIRACY. |
| 00:29:27 |
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WELL BUT WE ALLEGE THAT IT IS A CONSPIRACY, EXACTLY. THIS WAS A SITUATION, THIS WAS NOT SOME LOW LEVEL... |
| 00:30:08 |
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YOU DIDN'T -- I'M NOT I-- |
| 00:30:10 |
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YOU SUPPLIED US. |
| 00:30:11 |
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YOU DIDN'T PLEAD IT. |
| 00:30:13 |
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YOU SUPPLIED US WITH AN E-MAIL AND I'M TRYING TO UNDERSTAND WHAT USE WE'RE TO MAKE OF THIS AND NOW... |
| 00:30:51 |
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IT IS OUR CONTENTION BUT THE COURT HAS, THE COURT OF THE PANEL HAS, HAS REJECTED THE FILING. |
| 00:30:57 |
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BUT THE PANEL OPINION WAS VACATED BY THE -- NO I KNOW BUT THIS PANEL HAS REJECTED OUR SUBMISSION OF... |
| 00:31:06 |
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I HAVE A -- I WANT TO GET -- |
| 00:31:08 |
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I'D LIKE TO HAVE YOUR UNDERSTANDING -- |
| 00:31:10 |
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HAVE WE? |
| 00:31:11 |
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WE GOT AN ORDER TO THAT EFFECT FROM THE CLERK, RIGHT? YEAH. WE GOT AN ORDER TO THAT EFFECT FROM THE... |
| 00:31:46 |
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MR. COAL, LET ME ASK YOU ABOUT THE SYSTEM THAT WE'RE TALKING ABOUT. COUPLE OF QUICK QUESTIONS. AUTHORIZE... |
| 00:32:05 |
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NOW ANALANT OF THE NATIONAL GOVERNMENT ARE ALSO AUTHORIZED TO REMOVE FROM THIS COUNTRY ALIENS WHO HAVE... |
| 00:32:12 |
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NO. |
| 00:32:15 |
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AND THIS REMOVAL IS A IS ACCOMPLISHED BY WHAT WE CALL ORDERS OF REMOVAL. IS THAT RIGHT? |
| 00:32:22 |
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RIGHT. |
| 00:32:24 |
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HAVE THE FEDERAL COURTS EVER LOW AED FOR SUIT FOR DAMAGES THAT IS FOR MONEY DAMAGES TO PROCEED AGAINST... |
| 00:32:44 |
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NO -- |
| 00:32:47 |
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HAS THERE BEEN ANY RECOGNITION OF ANY SUCH -- |
| 00:32:49 |
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NO, I'M NOT AWARE OF ANY CASE YOUR HONOR, AND I'D SAY TWO THINGS ABOUT THAT. FIRST, WE ARE NOT SUING... |
| 00:33:12 |
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BUT THERE WOULDN'T BE ANY INJURY UNLESS HE WAS TORTURED. |
| 00:33:14 |
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TRUE, TRUE. |
| 00:33:16 |
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SO I'M NOT SURE I QUITE UNDERSTAND THE LAST STATEMENT THAT YOU'RE NOT SUING BECAUSE HE WAS TORTURED.... |
| 00:33:21 |
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RIGHT IT'S NOT A CASE IN WHICH THEY MADE A MISTAKE ABOUT A PREDICTION ABOUT WHETHER HE WOULD BE TORTURED... |
| 00:33:33 |
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I UNDERSTAND. |
| 00:33:36 |
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IT'S AN INTENTIONAL |
| 00:33:37 |
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YES. |
| 00:33:39 |
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SO IF HE WAS SENT TO JORD SCPNT JORDANIANS SAID MY GOD THIS IS CRAZY AND RIGHT THEN AND THERE TURNED... |
| 00:33:58 |
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WELL, THE DAMAGES WOULD BE SIGNIFICANTLY LESS, EXACTLY. |
| 00:34:00 |
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OKAY. |
| 00:34:02 |
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I MEAN WE STILL -- JUDGE SACK, WE STILL HAVE WOULD HAVE AN ACCESS TO COURT CLAIM, RIGHT? WE WOULD... |
| 00:34:23 |
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BUT YOU ARE TALKING ARE YOU NOT TO FEDERAL SUIT FOR DAMAGES CONSEQUENTIAL TO ORDER OF REMOVAL, ISN'T... |
| 00:34:31 |
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NO. I DON'T THINK SO YOUR HONOR. IT HAPPENS THAT THIS CONSPIRACY TO HAVE HIM TORTURED WAS EFFECTUATED... |
| 00:34:58 |
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SURE IT'S A RELEVANT FACT BUT IT DOESN'T I DON'T THINK IT IMMUNIZE ADCONSPIRACY TO SUBJECT SOMEONE... |
| 00:35:06 |
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MR. COAL, HE WAS, MR. ARAR, WAS PREPARED TO BE REMOVED WASN'T HE? |
| 00:35:10 |
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MR. ARAR WAS TRYING TO -- |
| 00:35:12 |
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HE WAS PREPARED TO BE REMOVED TO ZURICH OR CANADA. |
| 00:35:14 |
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SHE WAS TRYING TO GET HOME. IS WHAT HE WAS TRYING TO DO. |
| 00:35:17 |
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BUT HE WAS WILLING TO GO TOO ZURICH AS WELL IF THEY WOULDN'T SEND HIM TO CANADA. |
| 00:35:22 |
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AND ZURICH IS BETTER THAN SYRIA AND FROM ZURIC YOU CAN GET TO CANADA WITHOUT CHANGING PLANES AT JFK.... |
| 00:35:28 |
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SO HE WAS PREPARED TO BE REMOVED? HE WAS PREPARED TO BE REMOVED AT SOME POINT WHEN HE REALIZED THE... |
| 00:35:39 |
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ONLY IN THIS SENSE, YOUR HONOR. HE WASN'T SEEKING TO ENTER THE UNITED STATES EXCEPT FOR PURPOSES OF... |
| 00:35:44 |
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SO IT'S YOUR POSITION THAT THIS -- |
| 00:35:46 |
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ONLY IN THAT -- |
| 00:35:49 |
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REMOVAL IS JUST A FIKS -- HE WAS JUST IN TRANSIT THROUGH KENNEDY TRYING TO GET HOME. |
| 00:35:54 |
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THAT'S RIGHT. |
| 00:35:55 |
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HE WASN'T TRYING TO GET |
| 00:35:56 |
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THAT'S RIGHT AND YOUR HONOR, HAD THEY, JUST IMAGINE THEY HAD PICKED UP MR. ARAR ON THE STREETS OF... |
| 00:36:10 |
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IT'S YOUR VIEW THE COMPLAINT MAKES OUT A CLAIM THAT THE, THE REMOVAL PROCEEDING IS JUST A COVER THAT... |
| 00:36:24 |
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ABSOLUTELY. WE ALLEGE THAT. |
| 00:36:32 |
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I NEED YOU TO HELP ME WITH THAT IN THE MORE TRADITIONAL CASES WE HAVE WITH AN OFFICER ARRESTING SOMEONE... |
| 00:36:56 |
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WELL, TWO THINGS. FIRST, IF YOU HAD A CASE IN WHICH SOMEONE WAS ARRESTED ON A WARRANT, ON VERY STRONG... |
| 00:37:08 |
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OR ON NO PROBABLE CAUSE BUT THERE IS A WARRANT. THE POINT IS THE SCOPE OF THE LEGAL AUTHORITY THEN... |
| 00:37:16 |
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NO BUT I DON'T THINK SO, YOUR HONOR. ON THIS, ON THIS EXAMPLE. YOU ARREST SOMEBODY LEGALLY, YOU HAVE... |
| 00:37:34 |
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WELL, EXCEPT IN -- THAT IN THIS CASE, ONE'S ACCESS TO THE COURTS HAS ITS ORIGINS IN LAW THAT TALKS... |
| 00:37:42 |
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THAT'S RIGHT. |
| 00:37:43 |
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PROCEEDINGS. |
| 00:37:45 |
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AND SO TO THAT EXTENT, STICK WITH ME, I MEAN, I'M CONCERNED THAT IT'S THE AUTHORITY OF REMOVAL THAT... |
| 00:37:53 |
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YEAH. WELL, AGAIN, I THINK YOU HAVE TO TREAT THESE CLAIMS DISTINCTLY FOR PURPOSES OF ANALYSIS. FOR... |
| 00:38:59 |
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PRECISELY BECAUSE THE CONCERN IS -- |
| 00:39:01 |
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MR. COLE? I'LL LET JUDGE SOTOMAYOR GO. |
| 00:39:07 |
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SORRY, JUDGE RAGGI IT'S VERY HARD TO HEAR YOU FROM THAT END. |
| 00:39:09 |
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RIGHT PLEASE YOU GO FIRST. |
| 00:39:26 |
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I'M SORA THE MEASURE OF DAMAGES WOULD BE SOMETHING LIKE THE ACTUAL OBSTRUCTION OF THE COURTS. AND... |
| 00:40:05 |
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OKAY. |
| 00:40:07 |
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I UNDERSTAND YOUR SUBSTANTIVE DUE PROCESS ARGUMENT. MEASURE OF DAMAGES THERE WOULD BE THE ACTUAL... |
| 00:40:45 |
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OKAY. YOU'RE RIGHT TO, TO, TO SEPARATE THOSE OUT, AND I THINK ONE NEEDS TO THINK SEPARATELY ABOUT... |
| 00:41:16 |
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HE CAN'T DO THAT. I MEAN YOU UNDO WHAT HAPPENED. |
| 00:41:19 |
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HE COULDN'T DO SO SO LET'S ASSUME WE PREVAIL ON THAT CLAIM. WHAT WOULD BE THE APPROPRIATE RELIEF? ... |
| 00:41:36 |
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NO. IT WOULDN'T BE -- |
| 00:41:40 |
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COULD YOU HAVE PURSUED, DO YOU NEED A BEVENS MONETARY -- |
| 00:41:43 |
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NO. THAT WOULD NOT BE -- YOU'RE RIGHT. NAT WOULD NOT BE MONETARY RELIEF. THAT WOULD BE DECLARITARY... |
| 00:43:36 |
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|
| 00:43:39 |
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MR. COLE, HOW DO WE -- HOW D A REMEDY OF BEVENS REMEDY, FOR OBSTRUCTION OF ACCESS TO DEPORTED. YOU... |
| 00:44:28 |
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IF HE WAS -- RECOMPENSE. |
| 00:44:30 |
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CONSTITUTIONAL VIOLATION THAT HE WAS DENIED ACCESS TO THE COURTS? |
| 00:44:34 |
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IF HE WAS INTENTIONALLY DENIED ACCESS TO COURT, YES. NOT IF HE JUST WENT TO COURT AND HE LOST, WHICH... |
| 00:45:02 |
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BECAUSE MOST OF THE PLAINTIFFS OR PETITIONERS THAT JUDGE SOTOMAYOR IS DISCUSSING ARE PEOPLE SEEK NOTHINGTRY... |
| 00:45:15 |
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HE WAS SEEKING ONLY FOR THE PURPOSE FOR TRANSIT -- |
| 00:45:18 |
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TRANSIT VISA. HE WASN'T SEEKING TO SETTLE HERE. |
| 00:45:29 |
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I THINK WE ARE TALKING ABOUT CLAIM YOU ARE ASSERTING FROM DAMAGES ARISING FROM MR. ARAR'S REMOVAL... |
| 00:45:57 |
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YOU KNOW, YOUR HONOR, I DON'T THINK SO IN THE SENSE THAT WHAT OUR -- ALL OUR CLAIM REQUIRES THE COURT... |
| 00:46:20 |
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NO BUT IT WOULD MEAN THAT THOSE WHO ARE REMOVED PURSUANT TO THE INA WHO LATER GO BACK TO THEIR COUNTRY... |
| 00:47:01 |
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YEAH. YOUR HONOR, I HOPE THIS CASE STANDS ALONE BUT WITH RESPECT TO THE -- |
| 00:47:06 |
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YOU THINK IT HAS NO EFFECT ON ANY -- ON THE ABILITY OF ANY OTHER ALIENS REMOVALS PURSUANT TO THE INA... |
| 00:47:16 |
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I THINK A HOLDING THAT SAYS WHEN FEDERAL OFFICIALS INTENTIONALLY CONSPIRE TO SUBJECT SOMEONE TO TORTURE,... |
| 00:47:30 |
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I UNDERSTAND. |
| 00:47:31 |
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HE'S ENTITLED TO DAMAGES NOT FROM THE QONS -- CONSQSSS OF THE RE MOVAL, YOUR HONOR. |
| 00:47:36 |
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I AM NOT SURE. |
| 00:47:37 |
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I AM NOT SURE THAT THIS REMOVAL CAN PROPERLY BE DESCRIBED AS PURSUANT TO INA. NOW I CAN'T SAY FOR... |
| 00:48:23 |
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WELL -- |
| 00:48:31 |
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BUT HE COULD GO BACK, IN THESE CIRCUMSTANCES THE ONE THING THEY COULDN'T JUST DO IS SEND HIM TO ACOUNTRY... |
| 00:48:47 |
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THAT GOES BACK TO JUDGE ROGERS' QUESTION AND I WOULD SAY THE MOST CRITICAL FACT IS THAT YOU'RE NOT... |
| 00:49:04 |
|
MR. COLE, THIS IS JUDGE SO AS A VEHICLE AT ALL? IF YOUR POINT STARTS AND ENDS WITH ISN'T THAT WHAT... |
| 00:49:44 |
|
THAT'S RIGHT. |
| 00:49:45 |
|
AND, AND I THINK YOUR HONOR,. |
| 00:50:02 |
|
WHY A SUBSTANTIVE VIOLATION REALLY DOESN'T HAVE MUCH LEGS? YOU'RE INVITING US TO SAY . |
| 00:50:28 |
|
HERE'S WHAT I WOULD SAY, YOUR HONOR. |
| 00:50:29 |
|
WHEN CONGRESS HAS NOT CHOSEN TO CREATE A PRIVATE CAUSE OF ACT A VIOLATION OF AN ADMINISTRATIVE PROCESS.... |
| 00:50:40 |
|
IT'S NOT A VIOLATION OF AN ADMINISTRATIVE PROCESS. YOUR HONOR. IT IS, IT IS, IT IS PRECLUDING AN... |
| 00:50:50 |
|
LET ME ASK YOU THAT BECAUSE I THINK THAT'S DIFFERENT FROM WHAT YOU ARGUED TO US IN YOUR BRIEF. IN... |
| 00:51:54 |
|
I THINK, I MEAN, I THINK IT IS CONFUSING BECAUSE IT WOULD -- IT IS RELEVANT TO BOTH CLAIMS BUT IF... |
| 00:52:21 |
|
THE POINT IS A BIVENS ACTION IS APPROPRIATE HERE. WHERE DEFENDANTS BLOCKED ACCESS TO CONGRESSIONALLY... |
| 00:52:30 |
|
RIGHT. THAT'S POINT ONE BUT POINT 2 OF THE BRIEF YOUR HONOR IS THAT WE HAVE AN INDEPENDENT BIV NLS... |
| 00:53:21 |
|
MR. COLE, 18 USK, -- 18 USC 2340 MAKES IT A FELONY TO, TO ENGAGE IN TORTURE OR IN A CONSPIRACY TO... |
| 00:54:04 |
|
WELL I DON'T THINK IT WOULD TAKE THE LEGS OUT OF 2340 B. I THINK, WHAT 2340 IS, IS A, IS A CRIMINAL... |
| 00:55:36 |
|
THE GOVERNMENT'S RESPONSE JUST SO WE KNOW NOT YOUR POINT IS IT COULD'VE BEEN FILED EVEN A AFTER HE... |
| 00:55:41 |
|
RIGHT. |
| 00:55:42 |
|
AND TO THE EXTENT THAT HE MAY NOT HAVE BEEN IMMEDIATELY IN SYRIA OR THAT THE COURT COULD'VE PRESSED... |
| 00:56:01 |
|
WELL AS I SAID BEFORE, WHAT WE NOW KNOW IS THAT HE WAS, HE WAS TAKEN TO JORDAN, BEATB AND TORTURED... |
| 00:56:15 |
|
HOW DOES THAT CUT IN YOUR FAVOR? HIS LAWYER KNEW HE WASN'T IN TOUCH -- |
| 00:56:19 |
|
-LAST OUR LAWYER KNEW WAS THAT HE WAS IN NEW JERSEY. THAT HE WAS IN NEW JERSEY. THEY NEVER TOLD HER... |
| 00:56:57 |
|
YOU HAVE RESERVED A BIT OF REBUTTAL. I THINK WE ARE WARM TO WEAR YOU OUT. |
| 00:57:05 |
|
AND VICE VERSA, PROBABLY. |
| 00:57:06 |
|
THANK YOU VERY MUCH. |
| 00:57:25 |
|
THANK YOU, AND MAY IT PLEASE THE COURT, I REPRESENT THE UNITED STATES OF AMERICA AND THE FORMER ATTORNEY... |
| 00:58:07 |
|
COURTS HAVE TO EXERCISE CAUTION BEFORE EXTENDING GIVENS. . IT APPROPRIATE TO CONSIDER THAT AT A 12... |
| 00:59:15 |
|
I THINK THE STATE DEPARTMENT MIGHT POSSIBLY BE UPSET. THE QUESTION IS, IS IT NOT AN AGGRESSIVE BEHAVIOR... |
| 00:59:38 |
|
YOUR HONOR, TO ANSWER YOUR QUESTION, IT IS ENTIRELY APPROPRIATE BIVENS TO APPROPRIATE SPECIAL FACTORS,... |
| 00:59:52 |
|
THEY CAN BE ADDRESSED AS A MOTION TO DISMISS WHEN WE HAVE REASON TO KNOW WHAT THOSE SPECIAL FACTORS... |
| 01:00:48 |
|
ABSOLUTELY, YOUR HONOR. T MAKE A CASE TO THE |
| 01:00:55 |
|
ABSOLUTELY. HIS ALLEGATIONS IN THIS CASE, YOUR HONOR IS THERE WAS CONCERTED ACTION BETWEEN INDEPENDENT... |
| 01:01:08 |
|
THAT SUGGESTS THERE ARE REASONS IN ONE DIRECTION BUT IT DOESN'T COPE WITH THE FACT THAT THERE MAY... |
| 01:01:50 |
|
IN ANSWERING THE JUDGE CALABRESI'S ? ADD A FOOTNOTE AND MAYBE YOU CAN INCORPORATE THIS INTO YOUR RESPONSE... |
| 01:03:28 |
|
JUDGE PARKER, I ASSURE YOU THE POSITION YOU'RE HEARING TODAY IS THE POSITION OF THE UNITED STATES.... |
| 01:03:38 |
|
SO THE STATE DEPARTMENT HAS BACKED OFF FROM THEIR PRESENTATIONS ITS SOLICITOR MADE TO THE WORLD COMMUNITY... |
| 01:03:46 |
|
EXCUSE ME, I THINK HIS QUESTIONS ARE OUT OF ORDER. THERE'S A NUMBER OF QUESTIONS THAT HAVE BEEN PRESENTED.... |
| 01:04:08 |
|
THE MIGHT BE OF A QUESTIONS AND I WILL TRY TO PACKAGE ALL THE QUESTIONS JUDGE PARKER AND HIS COLLEAGUES... |
| 01:04:43 |
|
TO YOUR KNOWLEDGE, HAS BIVENS EVER BEEN APPLIED TO A CASE OF TORTURE, PUT THIS CASE ASIDE? |
| 01:04:52 |
|
TO A CASE OF TORTURE I AM NOT AWARE OF THAT -- |
| 01:04:55 |
|
SORRY? |
| 01:04:57 |
|
I CAN SAY BIVENS HAS NOT BEEN APPLIED FIRST OF ALL IN THE REMOVAL CONTEXT WITH ONE EXCEPTION INVOLVING... |
| 01:05:25 |
|
[INAUDIBLE] |
| 01:05:29 |
|
[INAUDIBLE] |
| 01:05:34 |
|
WHETHER YOU VIEW IT AS A CHALLENGE TO THE REMOVAL OR SOMETHING ELSE AT BOTTOM WHAT THIS CASE IS ABOUT... |
| 01:05:45 |
|
WHY WOULDN'T THOSE INTERESTS BE PROTECTED UNDER THE STATE SECRETS DOCTRINE COMMITTED TO THE SOUND... |
| 01:05:56 |
|
WELCOME NO, YOUR HONOR. A COUPLE OF THINGS. FIRST OF THE STATE'S SEEKERS PRIVILEGE ADDRESSES DIFFERENT... |
| 01:06:09 |
|
BUT COULDN'T GET CANDLE THE FOREIGN POLICY AND SECURITY CONCERNS? |
| 01:06:14 |
|
NO, YOUR HONOR FOR A COUPLE OF REASONS. FIRST BECAUSE THE MERE JUDICIAL PROBING INTO THESE ISSUES... |
| 01:06:48 |
|
COUNSEL, DO I UNDERSTAND YOU TO BE BACKING AWAY FROM THE PANEL DECISION WHICH WAS SINCE THIS IS A... |
| 01:07:59 |
|
NO, YOUR HONOR -- |
| 01:08:01 |
|
THAT'S EXACTLY -- |
| 01:08:03 |
|
WE AGREE WHOLEHEARTEDLY WITH THE PANEL AND EXPRESSLY ADOPTED ITS ANALYSIS IN THE BRIEF PERIODS PANEL... |
| 01:08:11 |
|
YOU ARE AWARE THAT -- |
| 01:08:14 |
|
CAN WE GET AN ANSWER? WE HAVE TO GET AN ANSWER. IT IS JUST ON FAIR TO THE COUNCIL TO JUST PEPPER SOMEBODY... |
| 01:08:30 |
|
YOUR HONOR, THERE ARE TWO SETS OF SPECIAL FACTORS. FIRST, BEFORE THE POLICY AND NATIONAL SECURITY... |
| 01:09:19 |
|
I DON'T THINK YOUR ANSWERING ME AS TO WHAT WOULD HAPPEN IF MR. ARAR HAD BEEN AN ORDINARY FEITH RATHER... |
| 01:10:41 |
|
KURAN AR, A COUPLE OF THINGS. EVEN IF THIS DID NOT SECURE A NATIONAL POLICY THERE WOULD BE THE QUESTION... |
| 01:11:22 |
|
WHEN YOU'RE SAYING THAT IF IRIS CHANGING PLANES IN FRANCE AND FRANCE DECIDED THAT I WAS A FIEF AND... |
| 01:11:45 |
|
YOUR HONOR, I DON'T KNOW IF FRANCE DID SOMETHING TO YOU -- |
| 01:11:50 |
|
NO, THEY SEND ME TO SYRIA. [LAUGHTER] I DON'T KNOW WHY SUING OFFICIALS IN THE BIVENS ACTIONS THE GETTING... |
| 01:12:03 |
|
YOU'RE MISSING MY POINT. MY POINT IS THETa b%ha)#7@ @ R,","" |
| 01:12:12 |
|
NOT BE TAKEN OUT OF AIRPORTS IN OTHER COUNTRIES IN SITUATIONS WHICH CANNOT INVOLVE NATIONAL SECURITY... |
| 01:12:34 |
|
THE STATE DEPARTMENT AND THE REST OF THE GOVERNMENT WOULD BE CONCERNED THAT FRANCE PICK YOU UP INCENTIVE... |
| 01:12:58 |
|
WE HAVE A PRIOR QUESTION AND. QUESTION FROM JUDGE POOL. |
| 01:13:05 |
|
SO THIS COLLOQUY WITH JUDGE CALABRESI STARTED WITH ASKING YOU IF YOU ARE RELYING ON THE OPINION OF... |
| 01:13:25 |
|
I'M ON A WHERE IT WAS VACATED. THE BANK ORDER DID NOT VACATE AND THAT MEANS THAT ANY POINT FOR EXAMPLE... |
| 01:13:43 |
|
GOING BACK TO THE DISTRICT COURT'S OPINION WHO GOT UP TO THE POINT OF FINDING BIVENS AND THEN TALKED... |
| 01:13:53 |
|
FORGIVE ME IF I'M NOT UNDERSTANDING THE DISTINCTION BUT WE UNDERSTAND WITH DISTRICT COURT AND THE... |
| 01:14:03 |
|
YOU DON'T AGREE WITH EACH OTHER -- |
| 01:14:06 |
|
ON THE SECOND PRONG OF THE SPECIAL ANALYSIS THE OF CONCLUDED -- |
| 01:14:11 |
|
NOT WITH THE USE OF THE M I A -- |
| 01:14:13 |
|
WE AGREE WITH THE PANEL ON THAT SCORE THAT'S AN INDEPENDENT REASON WHY THIS COURT SHOULD NOT CREATE... |
| 01:14:21 |
|
CAN I ASK A QUESTION ABOUT THE SPECIAL FACTORS CONSIDERATION? IF THE APPELLATE ATTORNEY HAD FILED... |
| 01:14:39 |
|
ABSOLUTELY, YOUR HONOR. |
| 01:14:41 |
|
DOES THAT UNDERCUT YOUR CONCERN AT ALL WITH THE NEED TO ACCESS NATIONAL SECURITY STATE SECRETS RELATED... |
| 01:14:53 |
|
WELL, YOUR HONOR, IT WOULD BE A FUNDAMENTALLY DIFFERENT QUESTION, IT WOULD BE A RECORD PACE QUERY... |
| 01:15:42 |
|
THERE WAS A QUESTION -- |
| 01:15:44 |
|
COUNSEL, I WOULD LIKE TO GO BACK TO JUDGE CALABRESI POSITION ACTION FOR ANY TORTURE BY A FEDERAL AGENT?... |
| 01:16:16 |
|
THAT ISN'T OUR POSITION, YOUR U.S. CITIZEN THAT'S ACTIONABLE UNDER BIVENS? |
| 01:16:24 |
|
IT'S ACTIONABLE UNDER STATUTE, THAT WOULD BE CRIMINAL, YOUR HONOR, AND THE QUESTION IS |
| 01:16:32 |
|
[INAUDIBLE] |
| 01:16:35 |
|
IT DEPENDS UPON THE CONTEXT, YOUR HONOR. BIVENS IS CONTEXT SPECIFIC AND IF THAT ISSUE, AND THIS IS... |
| 01:17:21 |
|
NO, THAT IS NOT THE POSITION. EMPHATICALLY THAT IS NOT OUR POSITION, YOUR HONOR. WE ARE SAYING --... |
| 01:17:28 |
|
WHY DON'T WE JUST GET THE POSITION. |
| 01:17:30 |
|
YOUR HONOR, A COUPLE OF THINGS. FIRST FOCUSING ON THE FOREIGN POLICY AND NATIONAL-SECURITY IMPLICATIONS... |
| 01:18:57 |
|
COUNCIL, WE LOOK AT MATTERS TO RAISE FOREIGN POLICY CONSIDERATIONS EVERY DAY. HARDLY A DAY GOES BY... |
| 01:19:55 |
|
YOUR HONOR, WHAT IS FUNDAMENTALLY DIFFERENT -- |
| 01:19:58 |
|
HELP ME UNDERSTAND. |
| 01:20:00 |
|
AND ALL THOSE CASES YOU MENTIONED THERE IS AN EXPRESS' CAUSE A FACTION THAT CONGRESS CREATED AND OUR... |
| 01:20:17 |
|
WE DON'T LIKE BIVENS BECAUSE IT WAS CREATED BY THE COURTS. BUT BIVENS IS THERE AND IT WAS CREATED... |
| 01:20:30 |
|
I DON'T THINK THE SUPREME COURT LIKE BIVENS EITHER. |
| 01:20:34 |
|
IT MAY NOT BUT IT IS -- SPECIFICALLY YOU SAID SOMETHING VERY INTERESTING. YOU SAID SOMETHING VERY... |
| 01:21:56 |
|
YOUR HONOR, THREE RESPONSES BECAUSE THERE'S A FEW QUESTIONS EMBEDDED IN THERE. FIRST IT SEEMS LIKE... |
| 01:22:49 |
|
ARE THERE OTHER SPECIAL CONSIDERATIONS HERE IN THIS CASE? THAT THE COUNCIL AGAINST OUR RECOGNITION... |
| 01:22:58 |
|
ABSOLUTELY, YOUR HONOR. THIS DIVIDE THEM INTO TWO CATEGORIES. FIRST YOU HAVE THE FOREIGN POLICY NATIONAL... |
| 01:23:04 |
|
WE TALKED ABOUT THAT. I'M NOT SURE YOU WANT TO GO BACK INTO THAT THREE |
| 01:23:09 |
|
I DON'T THINK I NEED TO. IT'S CLEAR FROM THE PANEL AND FROM THE BRIEF BUT NEEDLESS TO SAY THE COST... |
| 01:23:44 |
|
THERE'S ALMOST A SADNESS, YOU TALK ABOUT LIMITED REMATCH, AND THE FACT WE DON'T REALLY HAVE ANY INFORMATION.... |
| 01:25:06 |
|
IT MIGHT BE, YOUR HONOR. |
| 01:25:08 |
|
CAN I SUGGEST SOMETHING SO THERE'S NO CONFUSION? IT ISN'T ENTIRELY ACCURATE BUT YOU CAN FEEL FREE... |
| 01:26:15 |
|
AGAIN, I'M NOT SUGGESTING THE COURT HAS TO SEND THIS CASE BACK EVEN FOR A LIMITED REMAND FOR THAT PURPOSE.... |
| 01:26:21 |
|
WHAT THEY GO FURTHER IF I MADE SINCE WE'RE INTO THE BUSINESS OF PROVIDING EDITORIALS HERE. THE FACT... |
| 01:26:49 |
|
THAT VERY WELL MIGHT BE TRUE AND WE STILL THINK THIS COURT CAN RESOLVE ITS CASE WITHOUT LOOKING AT... |
| 01:27:12 |
|
THE PREFERABLE MANNER WAS NOT FOR US TO DECIDE IT, BUT TO SEND IT BACK. YOU DID SAY WE COULD, BUT... |
| 01:27:34 |
|
YOUR HONOR, I DO NOT BELIEVE I USED THE WORD PREFERABLE. |
| 01:27:39 |
|
YOU DID SAY IT WAS IMPOSSIBLE. |
| 01:27:40 |
|
IF THIS COURT IS TALKING SIMPLY ABOUT SENDING THIS CASE TALKING SIMPLY TO SEND THIS CASE BACK SIMPLY... |
| 01:28:14 |
|
I DON'T THINK WE CAN ASSUME THAT. THAT WAS PROBABLY RHETORICAL |
| 01:28:19 |
|
IT WOULD BE BETTER IN MOST CASES FOR THE COURTS TO DECIDE COMPLICATED QUESTIONS LIKE THIS. ON THE... |
| 01:28:55 |
|
I AGREE AND WE THINK THE COURT CAN RESOLVE THIS CASE BASED UPON THE BRIEFING BEFORE. BUT THE REASON... |
| 01:29:03 |
|
CAN I ASK WHERE IN THE WORLD OF THE GOVERNMENT CAN ALLEGED FOREIGN POLICY CONCERTS AND TERRORISM CONCERNS,... |
| 01:30:10 |
|
WE KNOW THAT'S NOT THE CASE BECAUSE IN DAVIS THERE WAS A FIFTH AMENDMENT DUE PROCESS CLAIM. NONETHELESS... |
| 01:30:21 |
|
THEY WERE IN THE ARMED SERVICEs, WEREN'T THEY, STANLEY WAS. |
| 01:30:23 |
|
LET'S LOOK AT THE ANALYSIS. THERE ARE TWO THINGS THEY LOOK AT. NUMBER ONE, A CONTEXT THAT WAS GENERALLY... |
| 01:30:37 |
|
THAT WOULDN'T -- THAT'S DISTINGUISHABLE FROM THIS CASE. |
| 01:30:40 |
|
EXACTLY. NEW CONTEXT FOR THAT REASON ALONE. THERE'S A SECOND REASON. IN THIS CASE YOU HAVE CONTEXTS... |
| 01:31:29 |
|
YOU READ THE RETIRED FEDERAL JUDGE AMICUS BRIEF, THEY SAID WE'LL BE CREATING A LEGAL NO MAN'S LAND... |
| 01:31:49 |
|
YOUR HONOR THE RETIRED FEDERAL JUDGES ARE CERTAINLY ENTITLED TO THEIR VIEWS. LET'S CONTRAST THAT WITH... |
| 01:32:18 |
|
A WHILE AGO YOU SAID TWO GROUPS OF SPECIAL CONSIDERATIONS THAT COUNSEL CAUTIONED IN RECOGNIZING OR... |
| 01:32:38 |
|
THE SECOND IS THE SIGNIFICANT CONGRESSIONAL ACTIVITY IN THIS AREA, BECAUSE IN ADDITION TO THE INA... |
| 01:32:49 |
|
YOU DID REACH -- |
| 01:32:50 |
|
I DID. JUST TO GIVE YOU A THIRD AND BONUS REASON WHY THISCOURT SHOULD NOT BE ENGAGING IN THE JUDICIAL... |
| 01:33:09 |
|
HOW DOES IT INVOLVE THE IMMIGRATION CONTEXT IN THIS PERSON DOES NOT WANT TO IMMIGRANT? I MUST SAY... |
| 01:33:39 |
|
I CAN EXPLAIN, YOUR HONOR. THIS IS WHAT CONGRESS SAID. THEY DEFINED IN 8USC1225C, THE REMOVAL STATUTE,... |
| 01:34:04 |
|
IS THERE ANY INDICATION -- TEXT IS IMPORTANT, BUT CONTEXT IS MORE IMPORTANT. THERE IS ANY INDICATION... |
| 01:34:54 |
|
FIRST OF ALL, YOUR HONOR, PLAINTIFF HAS CITE NODE LEGISLATIVE HISTORY SUPPORTING THAT VIEW. |
| 01:35:01 |
|
0 I'M NOT TALKING ABOUT WILL GOTIVE HISTORY. I'M TALKING ABOUT CONTEXT AS AGAINST TEXT. WHEN THE ENGLISH... |
| 01:35:14 |
|
YOUR HONOR, A COUPLE THINGS, FIRST OF ALL, I THINK PROBABLY CONGRESS WOULD HAVE WANTED THE IMMIGRATION... |
| 01:35:55 |
|
THAT KIND OF ARGUMENT IS NEVER VERY APPEALING BECAUSE ONE CAN EQUALLY SAY, IF WE ARE WRONG CONGRESS... |
| 01:36:09 |
|
AND THEY PROHIBIT SUCH A CAUSE OF ACTION. |
| 01:36:11 |
|
LET ME FOLLOW UP ON A COMMENT YOU MADE BEFORE AND WHAT KINDS OF INFORMATION MIGHT MEBE HALF '. I'D... |
| 01:36:26 |
|
I CAN CHECK ON THAT FOR YOU, JUDGE PARKER. I CAN ALSO CHECK TO SEE IF THE REMAINDER OF THE CLASSIFIED... |
| 01:36:32 |
|
WHAT DO YOU MEAN YOU CAN CHECK? |
| 01:36:34 |
|
I'M NOT IN THE INSPECTOR GENERAL. |
| 01:36:37 |
|
WE HAVE RIGHT AS A COURT TO SEE ANY MATERIAL THAT IS RELEVANT AND SOMETHING THAT IS REDACTED FOR PUBLIC... |
| 01:36:54 |
|
I THINK -- THIS LAWYER DOES NOT HAVE THE AUTHORITY DO THAT. WE MAY HAVE THE RIGHT TO, AND I LA LIKE... |
| 01:37:23 |
|
BEEN GIVEN AN UNREDACTED COPY. |
| 01:37:25 |
|
OIG REPORT? I DON'T BELIEVE SO. |
| 01:37:27 |
|
THAT WOULD BE A QUESTION, TOO WHETHER YOU WOULD SUPPLY IT TO THE COURT AND PRESUMABLY TO YOUR ADVERSARY.... |
| 01:37:34 |
|
AS WELL AS WHAT LEVEL OF SECURITY WOULD BE -- SECURITY CLARENCE WOULD BE REQUIRED. FOR EXAMPLE, WHETHER... |
| 01:37:50 |
|
IN ANY EVENT, WE HAVE HAD SPECIAL SECURITY CLEARANCES FOR PARTICULAR LAW CLERKS WHO HAVE WORKED ON... |
| 01:38:34 |
|
YOUR HONOR, UNDER THE DEFINITION OF ARRIVING ALIEN IN SECTION 235A AND THE INTERPRETATION OF THAT... |
| 01:38:48 |
|
LO AND BEHOLD THE IMMIGRATION LAWS HAVE SOMETHING TO DO NOT MERELY WITH PEOPLE WHO SIMPLY WANT TO... |
| 01:39:00 |
|
I'M SHOCKED. |
| 01:39:02 |
|
I THINK IT MAKES REALLY GOOD SENSE THAT BEFORE WE LET SOMEONE GET ON ANOTHER PLANE AFTER 9/11 WE MAKE... |
| 01:39:17 |
|
YOUR ADVERSARY SAYS THAT CANADA WAS PREPARED TO TAKE HIM. WHAT'S YOUR POSITION ON THAT? |
| 01:39:23 |
|
YOUR HONOR, THIS GETS INTO INFORMATION WHICH I CAN'T DISCUSS WITH THECOURT BUT IT DOES UNDERSCORE... |
| 01:39:42 |
|
I UNDERSTAND -- EXCUSE ME. MAY I JUST FOLLOW UP ON THAT ONE. I UNDERSTAND YOU'RE TELLING US YOU CAN'T... |
| 01:39:56 |
|
WELL, WHAT PLAINTIFF ALLEGES -- AND ALL WE HAVE HERE IN ESSENCE IS HIS COMPLAINT. HE ALLEGES THAT HE... |
| 01:40:09 |
|
DID NOT PLEAD THAT CANADA WAS PREPARED TO TAKE HIM SO WE HAVE NOTHING ON THE SUBJECT. IS THAT CORRECT?... |
| 01:40:14 |
|
THAT'S CORRECT. |
| 01:40:15 |
|
THERE IS ANYTHING IN THE RECORD THAT SUGGESTS ANY CONSIDERATION GIVEN TO SENDING THIS MAN TO GUANTANAMO?... |
| 01:40:23 |
|
YOURS, THAT'S NOT IN THE RECORD BUT, AGAINST, AS TO WHAT COUNTRY OR WHAT PART OF THE ISLAND OF CUBE... |
| 01:40:58 |
|
THE QUESTION -- |
| 01:41:01 |
|
AS YOU STAND HERE, YOU REPRESENT THE UNITED STATES OF AMERICA. ARE YOU CERTAIN THAT THE CHANGE OF... |
| 01:41:12 |
|
YOUR HONOR, OF COURSE I CAN'T OPINE AS TO WHAT THE NEXT ADMINISTRATION IS GOING TO DO OR SAY, BUT... |
| 01:41:24 |
|
IT'S NOT UNTYPICAL THAT NEW ADMINISTRATIONS SOMETIMES CHANGE LEGAL POSITIONS. |
| 01:41:28 |
|
MAYBE, YOUR HONOR. AGAIN I'M NOT GOING TO OPINE AS TO WHAT THE NEXT ADMINISTRATION IS GOING TO SAY... |
| 01:41:42 |
|
YOU'VE BEEN TELLING US WE SHOULD WAIT FOR TO SEE WHAT CONGRESS IS GOING TO DEVELOPMENT BUT THE EXECUTIVE... |
| 01:41:57 |
|
TO FOLLOW UP ON EARLIER QUESTIONS ABOUT CANADA, DOES THE@@@@@@@@@R YOUR HONOR, WHETHER OR NOT THE... |
| 01:42:43 |
|
THERE ARE PARTS OF THE CANADIAN REPORT WHICH ARE SECRET, IS THAT CORRECT? THE REPORT THEY PUBLISHED,... |
| 01:42:56 |
|
DO YOU KNOW OF ANY CASE IN WHICH A COUNTRY DOES NOT ACCEPT BACK ITS CITIZEN? SOMEBODY WHO IS A CITIZEN?... |
| 01:43:24 |
|
ACTUALLY HAPPENS PRETTY FREQUENTLY. A CASE IN THE SUPREME COURT DEFENDANT WHAT THAT INBECAUSE SOMALIA... |
| 01:43:35 |
|
THE WAS NOT GOVERNMENT. |
| 01:43:36 |
|
NO ACCEPTING HIM BACK. ASIDE FROM JAMA THERE ARE MANY OTHER OKAYS IN WHICH THE COUNTRY OF CITIZENSHIP... |
| 01:43:54 |
|
THE CASE WHICH DEALS WITH WHAT HAPPENS WHEN NO COUNTRY WILL ACCEPT SOMEBODY IS DEALING THAT AMONG... |
| 01:44:05 |
|
YES, YOUR HONOR. |
| 01:44:07 |
|
WE HAVE YET TO HEAR FROM COUNSEL OF MR. THOMPSON. I DON'T KNOW IF THERE ARE ANY FURTHER QUESTIONS.... |
| 01:44:16 |
|
IF HAVE ONE REBUTTAL QUESTION. MR. COHN SEEMED TO INDICATE THAT MR. ARRAY DID NOT ARGUE THAT HIS ... |
| 01:44:32 |
|
ABSOLUTELY. I THINK WHAT THIS HAS SHOWN IS THAT MR. ARAR'S LITIGATING POSITION HAS CHANGED SIGNIFICANTLY.... |
| 01:45:39 |
|
WHAT'S THE SIGNIFICANCE OF THAT? |
| 01:45:41 |
|
THE SIGNIFICANCE OF THAT -- |
| 01:45:43 |
|
THE CONSEQUENCES. |
| 01:45:45 |
|
THE SIGNIFICANT IS THIS, GOING BACK TO THE SUPREME COURT'S DECISION IN HARBURR. THE PLAINTIFF HAS... |
| 01:46:29 |
|
WHAT IS THAT, COUNSEL 4. |
| 01:46:30 |
|
COUNT 4, THE ACCESS CLAIM, AND HE WANTED TO -- COUNT 4 DEALS ONLY WITH THE CIRCUMSTANCES OF DETENTION... |
| 01:47:13 |
|
CAN I ASK ONE OTHER QUESTION ABOUT THE ACCESS CLAIM. I'LL DEFER TO -- |
| 01:47:24 |
|
WE'LL HEAR JUDGE THE REMAINING COUNSEL WHO HAS BEEN VERY PATIENT. |
| 01:47:31 |
|
I DIDN'T HEAR YOU. THE RULE IS NOT AS CLEAR TO ME. COUNSEL, TURNING TO AN RESPONSIBILITY OF THE TBBA... |
| 01:48:54 |
|
YOUR HONOR, THIS QUESTION GOES DOWN TO THE FOLLOWING. WHAT DID CONGRESS MEAN BY COLOR OF FOREIGN LAW,... |
| 01:49:20 |
|
YOU'RE INDICATING THAT IN THIS VERY CASE, ALL THREE JUDGES AGREED THAT ARAR HAD NOT ADEQUATELY ESTABLISHED... |
| 01:49:38 |
|
THAT'S EXACTLY RIGHT, AND JUDGE DRAPER REACHED THE SAME CONCLUSION, AND THREE JUDGES IN D.C. THE SAME... |
| 01:49:45 |
|
THAT DOESN'T MEAN YOU'RE RIGHT, COUNSEL. THAT'S LET'S GO BACK TO TURNED AROUND. THEY ARE USING -- THE... |
| 01:50:55 |
|
YOUR HONOR, I DON'T THINK -- |
| 01:50:56 |
|
I'M NOT SURE WHY THAT DOESN'T MAKE IT ACTING UNDER FOREIGN LAW- INTENSELY PROCURED THIS TORTURE, NOT... |
| 01:51:21 |
|
YOUR HONOR, A COUPLE THINGS. FIRST, THE REASON WHY -- I'LL GET TO YOUR QUESTION IN JUST ONE SECOND.... |
| 01:53:15 |
|
BRIEF FOLLOWUP TO THE QUESTION ABOUT THE ACCESS TO COURT CLAIMS. I UNDERSTAND YOUR ADVERSARY TO SAY... |
| 01:53:35 |
|
ABSOLUTELY. WE DISAGREE, AND THIS COURT'S DECISION ON MICHAEL SHOWS THAT EXTRAORDINARY CASES AND NO... |
| 01:53:55 |
|
IT CHANGED SINCE MICHAEL. |
| 01:53:57 |
|
I KNOW VERY WELL AND I BELIEVE THAT IT WAS CHANGED, PART IN RESPONSE TO MICHAELS TO CLOSE DOWN WHAT... |
| 01:54:05 |
|
YOUR HONOR, THE RISK -- |
| 01:54:08 |
|
ALL -- PERMITS COE HURT COULD PROTECT ITS JURISDICTION, AND THE ACT COULD HAVE BEEN INVOKED. PLAINTIFF... |
| 01:54:55 |
|
TOLD HIM FIVE DAYS? |
| 01:54:56 |
|
YES, YOUR HONOR ISSUE BUT THAT FORM DID NOT INCLUDE INFORMATION ABOUT SYRIA, DID IT. |
| 01:55:03 |
|
DID NOT MENTION SYRIA. |
| 01:55:05 |
|
SO WHILE IT WAS MOVING QUICKLY HE HAD NO REASON TO FEAR THE ULTIMATE MOVEMENT. |
| 01:55:11 |
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TO THE CONTRARY. IN HIS OWN COMPLAINT HE ALLEGES HE WAS AFRAID HE WOULD BE SENT TO SYRIA. |
| 01:55:16 |
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ALWAYS AFRAID AND THEY ASKED HIM, THE GOVERNMENT ASKED HIM IF HE WOULD GO VOLUNTARILY AND HE REJECTED... |
| 01:55:32 |
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ACCORDING TO THE COMPLAINT THEY DID NOT TELL HIM BUT HE HEH STILL HAD THAT CONCERN AND COULD HAVE... |
| 01:55:49 |
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THE NOTICE HE GOSS WAS SUNDAY NIGHT? |
| 01:55:51 |
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IN HABEAS THERE WOULD BE NO BASIS FOR ALLEGING THAT HE'S ABOUT TO BE SENT TO SYRIA WHERE HE FEARS... |
| 01:56:20 |
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IN HIS HABEAS PETITION HE COULD SAY THINGS ARE MOVING QUICKLY, THEY'RE GORE TO SEND KNOW SYRIA, DON'T... |
| 01:56:46 |
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THAT CAUSES THE QUESTION THAT JUDGE LIVINGSTON ASKED. THIS OTHER PART YOU TALKED ABOUT FOR QUITE A... |
| 01:57:11 |
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IF THAT IS THE QUESTION, ANSWER IT. |
| 01:57:12 |
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WHAT I DID. HE COULD OF FOLLOWED THE PETITION FOR THIS COURT TO PRESERVE ITS JURISDICTION. BUT IF... |
| 01:57:32 |
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AND THERE IS ANOTHER CLIMB HERE WITH RESPECT TO HIS TREATMENT WHILE HE WAS SELDOM UNITED STATES, TO... |
| 01:57:57 |
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THAT IS CORRECT, HE COULD HAVE DONE THAT. THANK YOU, COUNSEL. . . |
| 01:58:17 |
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THANK YOU, AND MAY IT PLEASE THECOURT. I'M JEFF LAMPKIN. I WILL BE SPEAK ON BEHALF OF ALL THE INDIVIDUAL... |
| 01:58:30 |
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THE FORMER DEPUTY ATTORNEY GENERAL. |
| 01:58:31 |
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THAT'S CORRECT. I'LL BE ADDRESSING ISSUES FOR ALL THE SHRED DEFENDANTS IN PARTICULAR THE QUESTION... |
| 01:58:39 |
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EVEN THOUGH YOU DON'T REPRESENT THEM. |
| 01:58:44 |
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YES, RATHER THAN HAVE EVERY INDIVIDUAL DEFENDANT PARADE UP HERE, WE ELECTED ONE. |
| 01:58:50 |
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AND I APPROVED THAT ARRANGEMENT. |
| 01:58:51 |
|
I SHOULD -- |
| 01:58:54 |
|
THANK YOU. |
| 01:58:56 |
|
HOPEFULLY WE CAN KEEP THIS BRIEF. I SHOULD EMPHASIZE THAT NONE OF THE INDIVIDUAL DEFENDANTS CONDONES... |
| 01:59:47 |
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HELLO? I'M SORRY? |
| 01:59:51 |
|
I DON'T KNOW WHAT IS |
| 01:59:52 |
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OKAY. |
| 01:59:56 |
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BUT THIS IS AN ELECTRONIC COURTROOM. |
| 01:59:58 |
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I THOUGHT THERE WAS A CASE -- I WAS IN SUCH A LONG LIST, I THOUGHT THERE WAS A CASE CALLED TEST. |
| 02:00:09 |
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I THINK IT'S THE LAST OF THAT LIST, SO WE'LL STOP. THERE THE SUPREME COURT SAID WE HAVE REJECTED THE... |
| 02:00:22 |
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THE CLAIM THAT WE ARE MAKING THAT THEY CONSPIRED IN THE UNITED STATES TO THEM TORTURED OUT. ISN'T... |
| 02:00:51 |
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I THINK I UNDERSTAND THE QUESTION NOT OF STANDING THE INTERRUPTION. IN HARBORY IT THIS THE SAME CLAIM.... |
| 02:01:03 |
|
DOESN'T ANSWER OUR QUESTION. |
| 02:01:05 |
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OF COURSE, BUT FOR PURPOSE OFFICE DETERMINING WHETHER A REASONABLE OFFICER COULD HAVE THOUGHT THE... |
| 02:01:36 |
|
IN CONGRESS AGAIN IS THE CONSPIRACY TO HAND OF TO TORTURE. THAT'S THE CONDUCT WHICH THEY'RE CLAIMING.... |
| 02:02:05 |
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AND THE ANSWER IS, IT CERTAINLY WAS BECAUSE OF THE TERRITORIAL LIMITS ON THE FIFTH AMENDMENT PROTECTIONS... |
| 02:03:17 |
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IN BOTH THOSE THEY INTENDED TO UNDERTAKE. IN THOSE CASES, THE ALLEGATION THAT VERY SUBSTANTIAL DIFFERENCE?... |
| 02:03:33 |
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BUT FOR -- |
| 02:03:36 |
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THOSE CASES -- |
| 02:03:37 |
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IN HEAR -- |
| 02:03:38 |
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IN THOSE CASES -- |
| 02:03:40 |
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I'M SORRY. |
| 02:03:41 |
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GO AHEAD. |
| 02:03:44 |
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IN HARBORY, THE ALLEGATION WAS PRECISELY THAT, THAT PAID CIA ASSETS IN GUAM GUATEMALA, KIDNAPPED AN... |
| 02:04:09 |
|
HE WASN'T HERE. THE HUSBAND WASN'T IN THE UNITED STATES. SPECIFIC PURPOSE OF THOSE ARE DIFFERENCES... |
NOTE: The transcript for this program was compiled from uncorrected Closed Captioning.
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