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Published on Friday, August 15, 2008 by The Toronto Star

Arar's US Lawsuit Resurrected

New York court makes extraordinary decision to hear case even before getting lawyers' petition

by Tim Harper

WASHINGTON - Canadian torture victim Maher Arar has been given an unexpected - and very rare - opportunity to take another crack at winning redress from the Bush administration in a New York court.

The Second Circuit Court of Appeals announced yesterday it would convene at least 13 judges in December for another hearing for Arar, the Ottawa engineer who was tortured and jailed in a Syrian prison after being whisked out of JFK Airport in September 2002, under a U.S. practice known as "extraordinary rendition.''

A three-judge panel dismissed Arar's lawsuit in June, but the dissenting judge said the ruling gave the U.S. government licence "to violate constitutional rights with virtual impunity.''

Yesterday's decision keeps alive the possibility that Arar could still become the first rendition victim to force the Bush administration to admit its role and compensate a victim in a case it maintains was an immigration matter.

The court made its decision before it even received a petition from Arar's lawyers to examine the suit again, a decision legal observers said was extremely rare.

Even when petitioned, the Second Circuit convenes the entire bench less than once a year, based on recent records.

"This is good news,'' said Maria LaHood, of the New York-based Center for Constitutional Rights lawyer who represents Arar.

"We are getting another shot and certainly the court thinks mistakes were made in the original ruling.

"This means Maher may finally get justice in this country.''

Cristina Rodriguez, a specialist in immigration and constitutional law at New York University Law School, said the decision augurs well for Arar.

"This decision indicates the court is at least interested in investigating it further,'' she said. "Whoever initiated this had very strong views on the matter.''

She said the decision raises the possibility Arar could eventually win his case.

"I wouldn't say it was probable, but if I was his lawyer, I would be excited,'' she said. "It suggests the window is open for that decision.''

Arar is seeking unspecified damages in a lawsuit that names, among others, John Aschroft, who was attorney general when Arar was rendered; Larry Thompson, the deputy attorney general who signed the rendition order; and Tom Ridge, a potential vice-presidential running mate for Republican John McCain, who was head of Homeland Security when Arar was rendered.

In its June decision, the three-judge panel ruled Arar could not petition that court for redress because, under U.S. law, a court already exists where removal orders could be challenged.

In the Arar case, however, testimony has made it clear that he was never given the opportunity to challenge the decision before he was flown out of the country.

The three-judge panel also cited concerns that national security would be hurt and foreign relations damaged if it accepted his claim.

Last month, U.S. Attorney General Michael Mukasey rejected a request from American legislators that he appoint a special counsel to investigate the U.S. role in the case.

Three Democrats sent a letter July 10 asking Mukasey to appoint an outside special counsel to investigate and prosecute any violations of federal criminal laws.

Mukasey said U.S. officials received assurances from Syria that Arar would not be tortured.

"Sending him to Canada could have posed a threat to our country,'' Mukasey said. He said sending him to Syria was "safer.''

A U.S. Justice Department report earlier this year pointed to a perceived porous Canadian border as one reason officials refused to allow a man they suspected of Al Qaeda links to return home.

There are still two investigations underway into the U.S. conduct in the Arar case, one in the Department of Homeland Security and another in the justice department's office of professional responsibility.

Arar, who was cleared of any terrorist links by a Canadian judicial inquiry, was awarded $10.5 million in compensation from the Conservative government.

© 2008 The Toronto Star

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