3constitutional law and international law to be decided by the courts, and to prevent possibleviolations of international law caused by the impunity itself.Of course, the
case is far from the only instance where a plaintiff raised timelyand fundamental constitutional issues, but was unable to have his day in court due to issues of justiciability.
Moreover, while beyond the scope of this article, there are also similar issuesraised by the courts’ use of the state’s secrets privilege
and heightened pleadings standards.
The purpose of this article is not to attempt to make a determination of whether the alleged
, ACLU v. NSA, 493 F.3d 644, 652 n. 5 (6th Cir. 2007) (“this court is presented with acascade of serious questions. Has the NSA violated the United States Constitution—the FirstAmendment, the Fourth Amendment, or the Separation of Powers Doctrine? Or, has the NSAviolated federal statute . . .? If the NSA has violated a federal statute, is that statute constitutionalwhen applied to the NSA in this manner?”); People's Mojahedin Org. of Iran v. U.S. Dep’t. of State, 182 F.3d 17, 23 (D.C. Cir. 1999) (quoting Designation of Foreign Terrorist Organizations,8 U.S.C. § 1189) (political question bars appellate court from reviewing Secretary of State’sdetermination that “the terrorist activity of the organization threatens the security of UnitedStates nationals or the national security of the United States,” leaving the court to uphold theSecretary of State’s determination without any “judgment whatsoever regarding whether thematerial before the Secretary is or is not true”); Idris v. Obama, 667 F. Supp. 2d 25, 29 (D.D.C.2009) (denied next friend standing because ‘next friend’ “never met with petitioner since hisconfinement, counsel cannot be certain that [the 'next friend'] represents petitioner's bestinterests").
, Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (foreignnational’s claim under Alien Torts Statute against company that allegedly participated in U.S.government extraordinary rendition program barred during pleading stage by the government,which intervened in case, on the grounds of state secrets privilege);
State Secrets are a Privilege, Not a Right: Can Foreign Victims of Extraordinary Rendition and Torture Overcome the State Secrets Privilege Using the Alien Tort Statute?
. 118, 121 (2011) (citations omitted) (“The recent ruling by the Supreme Court of the United States denying certiorari in
Arar v. Ashcroft
in addition to the Ninth Circuit's decisionen banc in
Mohamed v. Jeppesen Dataplan, Inc.
have, as of this moment, denied an entire classharmed by the U.S. government from pursuing a judicial remedy.”).
, Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (torture and extraordinary renditionclaims dismissed for failure to state a claim); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (use of
heightened pleading standard led to dismissal for failure to state a claim);
The Substantive Origins of “Plausible Pleadings”: An Introduction to theSymposium on Ashcroft v. Iqbal,
. 1 (2010).