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TechnoratiNEW YORK - Maher Arar, whose "rendition" to Syria is widely viewed as an egregious example of mistaken identity, has again been denied the right to appear in court, and Congressional efforts to rein in the George W. Bush administration's widespread use of national security as a defence appear to be foundering.
Late last month, a federal court of appeals ruled that the lawsuit brought by Arar against former Attorney General John Ashcroft, FBI director Robert Mueller and other senior government officials could not be heard. After government lawyers invoked the "state secrets" privilege, the court concluded that hearing Arar's claims would interfere with sensitive matters of foreign policy and national security.
Arar, a Syrian-born Canadian, was detained on suspicion of being a terrorist at New York's John F. Kennedy Airport in September 2002 while in transit to his home in Canada from a vacation in North Africa. Based on information provided to U.S. authorities by the Canadian government, Arar was held incommunicado for two weeks and then flown to Syria where he was imprisoned, interrogated, and tortured for close to a year. The Bush administration labeled him a member of al Qaeda.
When the government invokes the "state secrets" privilege, federal courts have routinely dismissed lawsuits because they cannot proceed with the requested evidence. Most recently, the privilege was used to dismiss a suit over the National Security Agency's warrantless wiretapping programme and the government's use of detention, interrogation and "extraordinary rendition".
In a rare move, 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 watchlist, ruling that the plaintiff, a local businessman, could find out whether his name is on the list.
In one of the Arar case's more bizarre twists, the court ruled that, as a foreigner who had not been formally admitted to the U.S., Arar had no constitutional due process rights. It was the U.S. government that denied Arar admission to the country.
Both the Syrian and Canadian governments said they had found that Arar had no connection to any criminal or terrorist organisation or activity. After an intensive two-year investigation, the Canadians apologised to Arar for Canada's role in his rendition and awarded him a 10-million-dollar settlement.
The U.S. government has stopped short of an apology to Arar, but at a recent Congressional hearing, Secretary of State Condoleezza Rice admitted that the U.S. had mishandled the case. "We do not think that this case was handled as it should have been," Rice told the House Foreign Affairs Committee. "We do absolutely not wish to transfer anyone to any place in which they might be tortured."
The court also rejected Arar's claim that U.S. officials are liable under the Torture Victim Protection Act, for conspiring with Syria to subject Arar to torture under colour of foreign law. The TVPA creates liability for torture inflicted under colour of foreign law, and courts have held that it applies not only to the torturer, but also to those who aid or abet the torture.
Arar alleged that U.S. officials aided and abetted in his torture at Syrian hands, but the court ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority.
Arar's lawyer, Professor David Cole of the Georgetown University Law Centre, appearing on behalf of the Centre for Constitutional Rights (CCR), told IPS, "The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1,100-page report, formally apologised, and awarded Mr. Arar 10 million dollars in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy."
Maria LaHood, a senior CCR attorney, told IPS that her organisation plans to either petition the appeals court for rehearing, or petition the Supreme Court to decide the case.
She added, "Giving short shrift to the facts, the majority opinion grants impunity to U.S. officials for sending Maher to Syria to be tortured and for preventing him from seeking relief in the courts. The defendants have again blocked Maher's access to justice, this time with the court's seal of approval."
Meanwhile, legislation to curb the government's use of the state secrets privilege appears to be stalled in Congress. In April, the Senate Judiciary Committee approved a bill that attempts to limit the government's use of the state secrets privilege. The bill was introduced by Sens. Edward Kennedy, Massachusetts Democrat, and Pennsylvania's Arlen Specter, the senior Republican on the Judiciary Committee.
It would create a uniform set of procedures for federal judges to employ when the government asserts the privilege. It would require the government to produce the evidence it says is protected for review by a federal judge in a classified setting. The government would be unable to rely on affidavits as it has in the past. It also would prevent judges from dismissing cases based on the privilege before plaintiffs have had a chance to engage in evidentiary discovery.
"It's long past time for Congress to address the state secrets privilege. Congress needs to ensure -- and the American people need to feel confident -- that the courts are adjudicating the privilege properly and not just giving the executive a free pass. No one in America should be above the law. That's why this legislation is so critical," Sen. Kennedy said.
But the bill lacked bipartisan support on the committee. Only one Republican, Sen. Specter, voted to move it to the Senate floor for a vote. The Senate has many bills backed up in its queue and little time to even get them introduced, much less put to a vote. Moreover, its calendar has become increasingly dominated by elections in the fall.
Nonetheless, there has been other recent action in Congress. The Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties and the House Foreign Affairs Subcommittee on International Organisations, Human Rights, and Oversight, held a joint oversight hearing in June on the report of the Department of Homeland Security Office of Inspector General on Arar's removal.
Arar testified at the hearing -- the first time he has appeared before any U.S. governmental body. His testimony was via video because he is still on the government's "no-fly" watchlist. During the hearing, individual members of Congress publicly apologised to him, though the government has not.
At the hearing, DHS Inspector General Richard G. Skinner announced that his office has reopened its investigation of the government's treatment of Arar. He told the hearing that he could not rule out the possibility that immigration officials violated a law that prohibits the U.S. government from sending anyone to a country where he or she is likely to be tortured, especially since investigators were not allowed to question all participants.
Earlier, Skinner's testimony and a 50-page report found that U.S. immigration officials acted appropriately in determining that Arar could be expelled. But he said immigration authorities concluded that sending Arar to Syria "would more likely than not result in his torture" and relied on "ambiguous" assurances from Syria that he would not be. Skinner also questioned U.S. officials' minimal efforts to notify attorneys for Arar before a late-night hearing where he could argue his fear of torture.
© 2008 Inter Press Service
12 Comments so far
Show All"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."
-Thomas Jefferson
My Senator was the Republican. My other Senator, is Bob Casey[D] is a dick. Arlen Specter has always been on the side of the Constitution in anything I've asked of the both, Arlen Specter always replies in detail about WHAT I actually said, normally great insofar as Rights, Privacy and those silly little things like TORTURE, Bob Casey Jr., just like his fucking anti-choice, scum Father. Had hoped it skipped a generation.
This government, had it not been responsible for such carnage, has grown cartoonish, a caricature. People, I do hope this happens, when they read of this government I hope their sighs from disbelief are due to fact that they can't believe something as egregious as this occurred and not pineing for the good ol' days when WE had it MUCH better.
lol...Ms Rice, "we" - the united states government - certainly do wish to transport people to places where they will be tortured, and i say that because that's exactly our government's intent when we place them in the company of militaristic and civil interrogators who, by policy, effect torture all the time...gitmo, abu ghraib, and the list goes on. i realize a lot of our citizens are blind to some things that our government does, and some of our citizens are just too stupid to realize that was just a very dumb remark you made, but not most of us, condy...not most of us, i swear.
when they render people, some of the first things that get done to the victim are being sedated, being roughed up, being hooded so he can't breathe too well, probably being denied water, food, likely being beaten on, shoved to the floor, threatened in some not too obscure way - in other words: terrorized and tortured, IF only emotionally.
oh, condy, you are a piece of work, lol.
There are a lot of bad judges out there, with a total contempt for the US Constitution, and with such bizarre reasoning relative to the facts that it must be presumed they are simply lying.
Remember that the next time you are on a jury. Lawyers lie, politicians lie, and judges are both. They are not even under oath.
I used to wonder why it was that no other democracy has followed the "American Model" of government especially since the US was the first to create a model of self-government. The more I have read and studied the Founding, the Founders and the turmoil and compromises of the early years, the more I have come to understand the massive flaws in our system. Only in America is "one party" considered a dictatorship and "two parties" a democracy.
Jefferson felt that it was unreasonable for one generation to bind all future generations to its concept of government, its obligations (debts) or its limitations of world understanding. Yet, we now have "original intent" judges and congresspeople who view our Constitution as Canonized Gospel.
When in the course of human events ... it has become time for a "do over" on our system of government. Every fear the Founders had for the Executive, the Military and influence of priests and religious dogma on government as well as unbridled wealth are upon us now. We don't need 3 parties ... we need 5 or 6 or 10.
Now, the challenge is that the 2 parties (and the entrenched money/power brokers) are certainly not going to just vote to change things. That would be far too much to expect. So, as Jefferson instructed; a little revolution now and then can be a good thing. The Labor Movement was a revolution. The Civil Rights Movement was a revolution. Womens' Sufferage was a revolution. We need a Human Rights Revolution that centers the government's mission on Roosevelt's definition ... Freedom from want; Freedom from need; and Freedom from Fear.
A point on this article. Nowhere in the Constitution does it say rights belong to citizens of the US. It says "people" or "persons" or "individuals". Things like "due process" are for all people not just US citizens. If we believe that is part of what a free human being is entitled to then every "person" is entitled to them because "...all men are created equal ... and endowed at their Creation (Jefferson's original words)..." not just US citizens.
To bad this administration can't be brought back in time so they could be tried after WW2. It would have added a nice symmetry to the Japanese and German executions to put Bu$h the inferior and Shotgun Dick up there with their moral heroes.
"We do not think that this case was handled as it should have been," Rice told the House Foreign Affairs Committee
Yes, the Syrians failed to murder him after the year of torture, and he got free to tell of the USA's War Crimes.
I bet the Nazi's would never allow a court case to proceed against themselves either.
What would be great is if Mr. Arar could give very detailed descriptions of the US people who sent him to and the Syrian people who tortured him, and broadcast those descriptions to the world. What would be great is if those people, all of them, could instantly be recognized by others on the street. What would be even greater is if the US didn't do this heinous practice in the first place!
I don't quite understand what the secret is? Is it that nothing is going to be done to stop this unlawfulness? Is it that Arar isn't one of "US" and mistakenly wasn't one of them either, thus he's a nobody, so what? Is it that there is no functioning US Constitution any longer? Is it that those with the guns and power make the rules?
well Lobster, Jlocke, and sebouhian seem to have some ideas......may we as a People find "our enlightenment" and soon before such becomes regular fair at a theater near you.
Is it true that "We the People" are planning great Gatherings for this September 11th? Maybe I'll find out the secret then and there?
The Arar case reveals the revolution--with impunity--0f the administration against the people and the law. Had the citizens done what our government is doing now they would be opposed by armed, and deadly force. We know this can and did happen at campuses throughout the country when students and non-students peacefully opposed the illegitimate war and the slaughter of civilians in the Vietnam and Cambodian "action." Examples: the massacre of vietnamese villagers at the lead of an officer who later received a "penalty" for not much more than a misdemeanor; and the murder of four unarmed State students, again, for peacefully protesting the invasion of Cambodia. We have a duty to peacefully vote this barbaric government out of office. I hate to think of the alternatives.
"In one of the Arar case's more bizarre twists, the court ruled that, as a foreigner who had not been formally admitted to the U.S., Arar had no constitutional due process rights. It was the U.S. government that denied Arar admission to the country."
The news from the US just keeps getting funnier and funnier. A traveller passing through the US, Arar, in New York, according to this judge, has "no constitutional due process rights" because the people that kidnapped him and sent him overseas to be tortured, didn't "formally" admit him to the US.
That's hilarious. How sloppy of the American Government to not stamp his passport during his two-week stay in the US, during which police were holding him incommunicado, presumably, according to this judge, in some non-American twilight dimension.
"Arar alleged that U.S. officials aided and abetted in his torture at Syrian hands, but the court ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority."
Monty Python couldn't think stuff like this up. So Mr. "Judge", It is ok to kidnap and torture on the public payroll, (under the not so well known federal authority to kidnap and torture, perhaps?), just don't do it on your own time. Is that the message?
Usually what democratic countries have these days are judges that first of all, are properly trained in the legal profession. From what I can gather, what you have here is what we would call a "political hack". These types can very quickly undermine respect for the entire judiciary.
I thought I was taught the individual was more important than the State in the U.S. Was I wrong?
Who do you suppose will want to change planes here, much less visit our country?