UPDATE: Justice Department lawyers were informed earlier Wednesday that Solicitor General Kagan will not be signing any more briefs opposing Supreme Court review of new cases.  Her deputy will sign those.  In addition, it is understood that her participation from here on in any other matters involving the Solicitor General’s office will be quite rare.

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With Supreme Court nominee Elena Kagan not taking part, the Obama Administration on Wednesday afternoon urged the Supreme Court not to hear a major test case challenging the once-secret program of “rendition” — that is, capture of terrorism suspects and transporting them to other countries, often for aggressive questioning and even torture.  Solicitor General Kagan’s deputy, Neal K. Katyal, signed the new brief as “Acting Solicitor General.”  It is unclear whether this was an indication that, while Kagan’s nomination to be a Justice is pending, she will opt to stay out of government cases.  The new brief is here.

The government brief, filed on behalf of former Attorney General John D. Ashcroft and other federal officials, came in the case of Arar v. Ashcroft (09-923), involving Maher Arar, a dual citizen of Canada and Syria.  He claimed that he was seized at JFK Airport in New York after arriving from Tunisia via Switzerland in the fall of 2002. His lawsuit against Ashcroft and other officials contended that he was taken to Jordan and then to Syria, where he was subjected to harsh questioning and torture by Syrian security officials.

Acting SG Katyal, reacting to “factual allegations and the tenor” of Arar’s plea for Supreme Court review, insisted that the case “does not concern the propriety of torture or whether it should be ‘countenanced’ by the courts.”  Torture, the document said, “is flatly illegal and the government has repudiated it in the strongest terms.”  Federal law makes it a crime, Katyal said, and President Obama has “stated unequivocally that the United States does not engage in torture.”

What is at stake in the case, the brief contended, were “three narrow questions” — the failure of lower courts to recognize his constitutional claim against Ashcroft and others in the government, a claim that U.S. officials were actually acting under Syrian law when they ordered his transfer to that country, and a claim of denial of due process by his detention in the U.S. and the denial of access to U.S. courts.   All of those claims, the brief said, were rejected by the Second Circuit Court, en banc. That ruling, it said,  is correct, and does not conflict with any other court ruling, and so further review is “unwarranted.”

The Supreme Court has not yet scheduled Arar’s case for its initial examination.  The Justices are expected to do so, however, before the current Term ends in late June.  Justice Sonia Sotomayor, who as a Second Circuit judge had taken part in the lower court’s en banc hearing (but not its decision) has not yet indicated whether she would take part in the case as it proceeds in the Supreme Court.  So far, the Court has not issued any orders in the case that would show whether she had opted to take part.  Her recusal, however, appears likely.

If the Court were to grant review of the case, it would not be heard and decided until the next Term, starting Oct. 4.  Justice John Paul Stevens will no longer be on the Court then, and Kagan, if approved by the Senate, could be on the bench by then.

The Court’s changing membership, and the prospect that Justice Sotomayor would not participate in the Arar case, might not only have an impact on how the Court would rule if it took on the case, but may well influence whether it is willing to grant review at all.   If, as expected, the case is put to an initial vote this Term on the question of review, the Justices could be deterred from voting to grant because of the possibility of a 4-4 split were the case to be decided. assuming Sotomayor’s recusal.  (Justice Stevens is expected to be on hand for that initial vote.)

If the case were granted, the question would arise whether a new Justice Kagan (assuming Senate confirmation) would take part in the decision.  Although she did not sign the U.S. brief filed Wednesday, it seems highly likely that she had participated in internal discussions of the position the government would take in that brief, and thus might feel compelled to disqualify herself from its consideration by the Court.  That would raise the prospect of a 4-3 split, with the Court’s four most conservative Justices in the majority.  That is a prospect that perhaps could lead those four to vote for review, but could lead the Court’s more liberal Justices to refrain from supporting review.  (Both a 4-4 split, without Sotomayor, and a 4-3 split, without Sotomayor and Kagan, would probably result only if Justice Anthony M. Kennedy declined to side with his more conservative colleagues and voted with the more liberal Justices.)

These various complications might add up, in the end, to a significantly reduced chance of review by the Court, in a case that poses the legality of the “rendition” program in a clear-cut test case.  That program was one of the more controversial of the “war-on-terrorism” initiatives of the George W. Bush Administration, but the Obama Administration has indicated that, while it opposes torture as a valid anti-terrorism measure, it would not necessarily renounce the use of the “rendition” technique in all circumstances.

Posted in Detainee Litigation