When I first read, this week, that New York's Second Circuit Court of Appeals was in the process of deciding  Arar v. Ashcroft, I immediately surfed over to  C-Span to check out Sonia Sotomayor's performance in the two hours of oral arguments presented by both sides.

What I found was some of the most interesting television I've seen in a long time and a case that is mystifyingly absent from the media debate about Sotomayor's nomination.  The issue: the rights of  torture victims to sue the U.S. government for damages.

In brief: Maher Arar is a dual Canadian-Syrian citizen. Returning from a family vacation in Tunisia to Canada in 2002, he was detained during a stopover at Kennedy International airport because he was on a watchlist provided by Canadian Intelligence.  Held in solitary confinement for two weeks, denied a lawyer, or the right to contact the Canadian embassy, he was flown to Syria in a chartered plane.  There he was  tortured for close to a year, while asked the same set of questions he'd been asked while confined in the U.S.  When Syria eventually released him, he returned to Canada.

Turns out the evidence for placing him on that watchlist was flimsy. After an exhaustive investigation, the  Canadian government has since issued a formal apology and 10.5 million in damages.

Arar is now trying to sue the U.S. government, and former U.S. attorney general John Ashcroft. First because he  remains on a watchlist and continues to be banned from entering the U.S.  And second because he believes that his extradition was part of a conspiracy between the U.S. and Syria. 

Arar's first attempt was rejected when the U.S. invoked a "state secret" privilege, claiming that the case would force them to reveal documents that might damage the government.  This is why the case is being appealed.

Arar's lawyer has tried to convince the court to  invoke a "Biven's Action." This is an action  used (rarely successfully)  if the court believes the federal agents have committed such a profound violation of constitutional rights that it can grant damages even if there isn't  a statute permitting it. The government is arguing that as a foreign citizen Arar doesn't have contitutional rights.

But sitting in the courtroom with Arar's lawyer (Arar is not there, remember, because he's not allowed in the U.S. to be present at his own trial) is a huge herd of elephants.  All the other victims of "extraordinary rendition," a policy introduced under the Clinton administration that permits the  U.S. government to fly suspected terrorists to countries that have no laws against torture. No one has successfully sued the government for this practice, though the charter plane companies are currently being sued.

 In this video clip from the oral arguments (click on the red Flash button and the video should pop up)  the government lawyer is desperately trying to get the the court to pass off the responsibility to congress.  Arguing that it's really up to them to decide if a new law needs to be put in place. 

Furthermore,  he argues, the case is so inextricably bound with matters of foreign policy that the courts should  stay away from it, to ensure separation of powers. 

Sotomayor, the only justice not physically present, is being beamed into the court via satellite, giving her a Star Trekish immensity.  Watch as she cuts to the chase and sets up a chain of questioning that pretty much dismantles his argument. 

However, this was back in December of 2008, before she was nominated by a President who last week announced vague plans to introduce Indefinite Preventitive Detention Without Trial. This would enable the government to hold suspected terrorists for indefinite periods without access to legal council.

 I'm watching this case because I'm a Canadian.  But if I were a U.S. citizen I'd be watching it for a whole bunch of other reasons. Namely, for clues to how Sotomayor is likely to rule on the similar cases that will no doubt be coming her way if she is appointed to the Supreme Court. 

UPDATE:  Today the New York Times leads with a story about this video.  But the serious issue is, apparently, not extraordinary rendition, but Sotomayor's snippy tongue. 

How disappointing.

UPDATE #2:  Thanks Saturn Smith, for bringing my attention to this NYTimes editorial published in early  February   "The Unfinished Case of Maher Arar".  This editorial calls on Obama to address this case.  Which he hasn't done. You'd think Sotomayor's involvement in the case would be taken by NYTimes as a good reason to bring this issue up again.  Certainly it seems more important than a feature on how she interrupted his government's lawyer. 

UPDATE #3:  Apparently the NYTimes decided mid-day that Sotomayor needed a headline makeover.   So  "Sotomayor's Sharp-Tongue Brings Up Issues of Temperament" was changed to "Sotomayor's blunt style brings up issues of temperament."   Great. When's the story makeover due?

UPDATE #4:

Thanks Norwonk for this embedable clip.  I've left my original link, however, because it shows Sotomayor's line of questioning but also  gives you two other judges to compare her too.  This clip is taken from a C-SPAN show which, again, examines it in the context of her "style" and not the case.