Another Legal Setback for Arar Torture Case

A federal appeals court on Monday dismissed a lawsuit brought against a former U.S. attorney general by a Canadian citizen who sought damages for being unlawfully detained by U.S. authorities in New York and then secretly shipped to Syria, where he was imprisoned for a year and claims he was tortured.

The court concluded that the case brought by Maher Arar against George W. Bush-era attorney general John Ashcroft and other officials raised too many sensitive foreign policy and secrecy issues to permit relief. The decision leaves the federal officials involved free of any legal accountability for their actions.

In a 7-4 decision, the court wrote, "If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available."

But Arar’s attorney, David Cole, took a decidedly different view and indicated that yesterday’s decision would be appealed to the Supreme Court.

He told IPS, "This decision says that federal officials can conspire to subject an innocent man to torture, block his access to courts who would enjoin them from getting their way, and then avoid all accountability thereafter because the case would be too sensitive to litigate."

"The court puts executive officials above the law, and tells an innocent torture victim that concerns about foreign relations are so important that his claim cannot even be considered," he said. "If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments."

Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in New York in September 2002 while changing planes on his way home to Canada. The Bush administration labeled him a member of al-Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture.

He was tortured, interrogated, and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.

Monday’s majority opinion cited previous cases in which the practice of rendition was found to be lawful.

It noted that "the renditions of suspected terrorists Ramzi Yousef and Mir Aimal Kansi to the United States and the rendition of Illich Ramirez Sanchez, also known as ‘Carlos the Jackal,’ by French authorities from the Sudan to France," had been upheld by the European Commission on Human Rights.

"For decades," the court wrote, "the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice." It ruled, "Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather, we conclude that … it is for the executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress – and not for us as judges – to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation."

Four judges issued dissenting opinions. In one, Judge Guido Calabresi wrote, "I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay."

The Obama administration has said that it would continue the practice of extraordinary rendition, but would seek diplomatic assurances that those it rendered to other countries would be not tortured. This was also the policy of previous U.S. administrations, dating from the administration of president Bill Clinton and including that of George W. Bush.

However, such "diplomatic assurances" have been largely worthless, since the U.S. retains relatively little control over what happens inside a foreign prison once a person is turned over to another country.

In a statement issued by the Center for Constitutional Rights (CCR), which brought the suit on Arar’s behalf, Arar said, "After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch."

"Unfortunately, this recent decision and decisions taken on other similar cases prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law."

The case was reheard before 12 Second Circuit judges after a rare decision in August 2008 to rehear the case of their own accord before Arar had even sought rehearing.

In January 2004, just three months after he returned home to Canada from Syria, CCR filed a suit on Arar’s behalf against John Ashcroft and other U.S. officials, the first to challenge the government’s policy of "extraordinary rendition," known to some critics as "outsourcing torture."

The Canadian government, after an exhaustive two-year public inquiry, found that Arar had no connection to terrorism. In January 2007, it apologized to him for Canada’s role in his rendition, and awarded him a multi-million-dollar settlement.

The contrast between the two governments’ responses to their mistakes "could not be more stark," say Arar’s attorneys.

"Both the executive and judicial branches of the United States government have barred inquiry and refused to hold anyone accountable for ruining the life of an innocent man," they said.

Two congressional hearings in October 2007 dealt with his case. On Oct. 18, 2007, Arar testified via video at a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture.

During that hearing – the first time he testified before any U.S. governmental body – individual members of Congress publicly apologized to him, though the government still has not issued a formal apology.

The following week, on Oct. 24, then-secretary of state Condoleezza Rice acknowledged during a House Foreign Affairs Committee Hearing that the U.S. government had mishandled his case.

His congressional testimony was via video because Arar was on the "no fly" list of the Department of Homeland Security. He remains on the list today.

Justice Sonia Sotomayor, a former member of the Second Circuit appeals court, participated in the oral argument of the Arar case last December, but was later appointed to the United States Supreme Court by President Barack Obama and did not participate in Monday’s decision.

(Inter Press Service)

Author: William Fisher

William Fisher writes for Inter Press Service.