Roving thoughts and provocations

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He Was Tortured, But He Can’t Sue

Tom Hanson/AP Photo/CP
Maher Arar leaving a news conference discussing the apology and compensation package offered him by the Canadian government and holding a copy of its report clearing him of all terrorism charges, Ottawa, January 26, 2007

On Monday, June 14, the Supreme Court declined to hear Maher Arar’s case, conclusively shutting the door on the Canadian citizen’s effort to obtain redress from US officials who stopped him in September 2002 while he was changing planes on his way home to Canada and shipped him instead to Syria, where he was tortured and imprisoned without charges for nearly a year. In so ruling, the Court refused to reconsider the decision of the US Court of Appeals for the Second Circuit, sitting en banc, which had ruled in November 2009 that Arar’s case raised too many sensitive issues of national security and confidential information to permit its adjudication in a court of law. If he is to obtain any remedy now, it must come from Congress and the President. The courts have washed their hands of the affair, but that does not mean that it is resolved.

I am one of Arar’s lawyers, along with others at the Center for Constitutional Rights in New York. In twenty-five years as a civil rights and human rights lawyer, I have never handled a case of more egregious abuse. US officials not only delivered Arar to Syrian security forces that they regularly accuse of systematic torture, but did everything in their power to ensure that Arar could not get to a court to challenge their actions while he was in their custody. When they finally permitted him to see a lawyer, on a Saturday ten days into his detention, the government hastily scheduled an extraordinary hearing for the next night—Sunday evening—and only “notified” Arar’s lawyer by leaving a voicemail on her office answering machine that Sunday afternoon. They then falsely told Arar that the lawyer had declined to participate, and questioned him for six hours, until 3 a.m. Monday.

When Arar’s lawyer retrieved the voicemail message later that Monday morning, she immediately called the Immigration and Naturalization Service. They told her falsely that Arar was being moved to New Jersey, and that she could contact him there the next day. In fact, he remained in New York until late that night, when he was put on a federally chartered jet and spirited out of the country. US officials never informed Arar’s lawyer that he had been deported, much less that he had been delivered to Syrian security forces.

Arar was beaten and tortured while Syrian officials asked him questions virtually identical to those US officials had asked him in New York. He was locked up for a year without charges and in complete isolation, most of the time in a cell the size of a grave. After a year, Syria released him, finding no evidence that he had done anything wrong. He returned to Canada—this time avoiding any change of planes in the United States.

Canada responded to Arar’s case as a nation who has wronged a human being should. It established a blue-ribbon commission to investigate his case, which wrote a 1,100-page report fully exonerating Arar, and faulting Canadian officials for erroneously telling US officials that Arar was the target of an investigation into possible al-Qaeda links. In fact, Arar was merely listed as one of many persons “of interest” to the investigation, because he was thought to know one of the individuals who was targeted. The commission found, however, that Canadian officials did not know that the United States was planning to send Arar to Syria. That decision was made by US officials with the Syrians and not shared with the Canadians.

Canada, in other words, played a relatively small part in Arar’s injuries, as compared to the United States. Yet Canada’s Parliament issued a unanimous apology, and the government paid Arar $10 million (Canadian) for its role in the wrong done to him.

Here in the United States, the response could not have been more different. US officials have never apologized to Arar. They persist in leaving him on a “no-fly” list, despite the fact that Canada has cleared him of any suspicion, much less wrongdoing. And when we filed suit in 2004 to seek damages from the US officials directly responsible for the decision to send Arar to his torturers, lawyers for the Bush administration argued that even assuming that federal officials had intentionally delivered Arar to Syria to be tortured, and blocked him from seeking court protection while he was in their custody, they could not be held liable for his injuries on the grounds that the case implicated secret communications and national security concerns not appropriate for court resolution.

Regrettably, the courts agreed with the Bush administration position—and so has Obama’s Department of Justice. The US Court of Appeals for the Second Circuit reasoned that hearing Arar’s claims would present too many sensitive issues that courts were ill-equipped to decide. These included, according to the court,

the perceived need for the [extraordinary rendition] policy, the threats to which it responds, the substance and sources of the intelligence used to formulate it, and the propriety of adopting specific responses to particular threats in light of apparent geopolitical circumstances and our relations with foreign countries.

But these questions would be presented only if it is permissible under some set of circumstances for the United States to send a man to another country for the purpose of having him tortured—as Arar alleged happened in his case, and as the courts were required to take as true for purposes of deciding whether his case should be dismissed at the outset. Even the Bush administration lawyers did not argue that sending Arar to be tortured was permissible. Torture is directly contrary to US law and policy. Thus, there can be no “perceived need” for rendering a man to a foreign country to have him tortured, regardless of the “threats to which it responds,” the “geopolitical circumstances,” our “relations with foreign countries,” or the “intelligence” that might underlie it. If, as US law provides, torture is absolutely forbidden, none of the above “sensitive” issues need to be decided.

In addition, the United States did not dispute that if, as was his legal right, Arar had been able to get his claim before a court while he was being detained in the United States—before he was sent to Syria—the federal courts would have entertained his case and could have stopped his rendition. Congress has expressly authorized the courts to review immigration decisions and to bar removal of foreign nationals to any country where they face a risk of torture. Knowing that, US officials made sure Arar could not get to court—denying his initial requests for a lawyer, lying to him and his lawyer, and then flying him out of the country in the dead of night before he or his lawyer could file anything. Arar therefore sought the only remedy left—damages for his injuries. The Second Circuit never explained why Arar’s case, which indisputably could have been adjudicated had he been able to seek review before he was removed, suddenly became too “sensitive” once Arar sought damages for injuries incurred as a result of that removal.

Bush administration officials sent Arar to be tortured, and Bush administration lawyers initially sought to have his damages suit dismissed. But nothing changed when President Obama took office. The Obama administration aggressively defended the Second Circuit’s decision to throw Arar’s case out of court. It opened its brief to the Supreme Court with a paragraph reiterating that torture is never permissible, but then went on to argue at length that federal officials accused of torture should not be held accountable.

In this, the Obama administration’s brief eerily echoed one of the Bush administration’s own “torture memos.” After retracting John Yoo’s infamous August 2002 memo authorizing waterboarding, the Bush administration in December 2004 replaced it with a new memo that opened with the proclamation: “Torture is abhorrent both to American law and values and to international norms.” As we now know, however, that memo went on to approve of the very same torture tactics that Yoo’s memo had approved—including waterboarding. So, too, Obama’s Justice Department opened its brief by proclaiming that torture is always forbidden, but then defended a ruling that said that those who send an innocent man to be tortured cannot be held liable for their actions.

In President Obama’s May 2009 speech on national security and American values, he opposed a commission to investigate torture by arguing that there were proceedings in the courts that could provide accountability. Yet in the Arar case—as in every other civil case that has sought accountability for torture—the Obama administration argued that the courts were not an appropriate forum. To the Obama administration, defending government officials from suit, regardless of the gravity of the allegations, is evidently more important than holding individuals responsible for complicity in torture.

By refusing to hear the case, the Supreme Court has now effectively upheld the Bush and Obama administration positions. The court’s decision has no value as a precedent, because it is merely a decision not to take up the case on its merits. But it is the end of the line for Arar in the courts. It must not be the end of the line for the United States, however. Canada’s legislature and government did the right thing by Maher Arar without a judicial decision. So, too, the United States Congress apologized to the Japanese and Japanese Americans who were interned on the basis of their race during World War II—even though the Supreme Court had years earlier upheld the internment as legal. It took Congress more than 40 years to do right by the World War II internees. We must do better this time around.

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