After suffering a series of stinging defeats of its detention policies in four years of Supreme Court decisions, the George W. Bush administration may be in for yet more bad news.
In what legal scholars describe as a highly unusual move, a federal appeals court in New York last week decided to rehear a case it had decided in June, when a three-judge panel dismissed a lawsuit filed by the man who has arguably become the poster child for the Bush administration’s rendition program.
Bringing the suit is Maher Arar, a Syrian-born Canadian citizen who was detained incommunicado for two weeks at Kennedy Airport in 2002, flown by U.S. authorities to Jordan and then to Syria, where he was held for 10 months and said he was tortured.
The decision by the Second U.S. Circuit Court of Appeals in Manhattan is unusual because the full circuit assembles for a case only once or twice a year and because Arar’s attorneys never asked for a full hearing.
In Canada, a high-level commission concluded that the Canadian police and intelligence officials had erroneously linked Arar to al-Qaeda. The commission found that the Canadians had provided U.S. officials with misinformation. The commission also concluded that Canadian officials had been behind a campaign to discredit Arar after he was released from Syria and arrived in Canada in October 2003.
The Canadian government issued a formal apology to Arar last year and paid him $9.75 million. U.S. Secretary of State Condoleezza Rice said last year that the matter had not been "handled as it should have been." In June, the Department of Homeland Security’s inspector general said at a congressional hearing that the Justice Department’s ethics office was reviewing the decision to send Arar to Syria.
The rehearing will take place in December, this time before all 13 appeals judges.
The defendants include John Ashcroft, who was attorney general when Arar was stopped at Kennedy airport, and other Bush administration officials at the time – among them Robert S. Mueller III, director of the Federal Bureau of Investigation (FBI), and Tom Ridge, then secretary of the Department of Homeland Security – of violating federal law and his civil rights.
In the original decision, the three-judge panel agreed with a lower court decision, ruling 2 to 1 that the federal courts lacked jurisdiction to hear Arar’s complaint. The reason, they said, was that technically, Arar was never in the United States.
But one of the three judges dissented, describing as "a legal fiction" the idea that Arar was not in this country when he was apprehended at Kennedy.
That judge, Robert D. Sack, a Clinton appointee, said that Arar’s case should continue because Arar "was, in effect, abducted while attempting to transit at JFK Airport."
Legal experts believe the rehearing resulted from a request by one of the appeals court judges, though it is not known whether it was Judge Sack. The request was granted by a majority of the appeals judges.
However, a full U.S. appeals court hearing is far from a certainty. Even if Arar is able to establish that he has standing to bring his suit, the chances are the government will invoke its "state secrets privilege," claiming that disclosure of the details of Arar’s case in open court would compromise U.S. national security.
So rare is a judge’s dismissal of a government "state secrets" motion that, when it happens, it becomes front-page news. That’s what happened when a federal judge in Chicago recently disagreed with the government’s use of the privilege in a case involving the Department of Homeland Security’s terrorist watch list. The plaintiff, a local businessman, sued to discover whether his name was on the list. The government called that a "state secret," but the judge disagreed. The government is appealing the decision.
Once rare, the use of the "state secrets privilege" has grown exponentially during the administration of George W. Bush. The privilege has kept many cases from ever coming before any court. Administration critics say it is an essential part of a curtain of secrecy the Bush administration has built, often for nothing more than avoiding political embarrassment.
David Cole, a professor at Georgetown University Law Center and an internationally recognized authority on constitutional law, told IPS, "The administration has argued that the president has unilateral executive power in the ‘war on terror’ to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can’t even rule on that assertion of power because the alleged criminal violation is a ‘state secret.’"
There are currently efforts in Congress to enact legislation to limit the government’s use of the state secrets privilege. The Senate Judiciary Committee has approved a bill that would require the government to produce the evidence it says is protected for review by a federal judge in a classified setting. But the bill lacks bipartisan support on the committee – only one Republican, Sen. Arlen Specter of Pennsylvania, voted to move it to the Senate floor. That makes the future of the measure unclear.
Specter is a sponsor of the bill, the State Secrets Protection Act, along with Democratic Senators Edward Kennedy of Massachusetts and Patrick Leahy of Vermont, chairman of the Judiciary Committee. They said the objective of the proposed legislation is to "provide a systematic approach to the privilege and thereby bring stability, predictability, and clarity to this area of the law and restore the public trust in government and the courts."
A new Judiciary Committee report on use of the state secrets privilege includes dissenting views from several Republican members of the committee, who argue that the existing arrangements already strike the "right balance between openness, justice and national security."
The Supreme Court has consistently ruled against the Bush administration on issues surrounding its detention policies. In 2004, in a case involving a U.S. citizen being detained indefinitely at Guantanamo as an "illegal enemy combatant," the court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.
In the same year, the court ruled that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned.
Two years later, the court that held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." That decision led to Congress’s passage of the Military Commissions Act.
The challenge to that Act was brought by Salim Hamdan, Osama bin Laden’s driver, who recently became the first detainee in seven years to face any kind of trial at Guantanamo. A Pentagon-appointed jury found him not guilty of the most serious charge brought against him – conspiracy to kill U.S. citizens – and convicted him of providing material supporting for terrorism. He could be a free man before the end of the year.
Hamdan is expected to appeal his sentence – and the constitutionality of the military commissions act – to the U.S. civilian courts.
