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Getting Away with Torture
In the fall of 2002, Maher Arar, a Canadian citizen on his way home from Tunisia, was pulled out of line by US officials while changing planes at New York's John F. Kennedy Airport. He was locked up for twelve days, much of that time incommunicado, and harshly interrogated. When he was finally allowed to make a phone call, after a week in captivity, he called his mother in Canada, who found him a lawyer.
The lawyer saw Arar on Saturday. The very next night-a Sunday evening-immigration officials held an extraordinary six-hour hearing starting at 9 PM, orchestrated from Washington, D.C. When Arar asked to have his lawyer present, they told him that she had chosen not to participate in the hearing. In fact, the only "notice" they had provided was to leave a message on the lawyer's office voice mail that Sunday night. She got the message Monday morning, and immediately called the immigration service. They told her, falsely, that Arar was being transferred to New Jersey, and she could contact him the next day. In fact, that night federal agents took him on a federally chartered jet to Jordan, and from there to Syria.
In Syria, Arar was handed over to intelligence officials who imprisoned him in a cell the size of a grave, three feet by six feet by seven feet. Syrian security agents tortured him, including beating him with an electric cable, while asking the same questions that FBI interrogators had been asking at JFK-was he a terrorist, was he linked to al-Qaeda, did he know various other persons thought to be associated with al-Qaeda? (The Syrian security forces are widely known for their use of torture, as the US State Department reports every year in its annual Human Rights Country Reports.) After a year, the Syrians released Arar, concluding that he had done nothing wrong.
Arar returned to Canada-this time bypassing JFK. Canada launched a major independent investigation, which concluded that he was wholly innocent, and that Canadian officials had erred in providing the Americans with misleading information about him while he was in US custody. The Canadians erroneously told US officials that Arar was a target of a terrorist investigation; in fact, he had merely been identified as someone who should be contacted to see if he had any information about the target, and was not suspected of any terrorist activity himself. The Canadian parliament offered Arar a unanimous apology, and Canada paid him CAD $10.5 million in compensation.[*]
But the Canadians were unaware that the US intended to send Arar to Syria, and they had no part in that decision. It was the US, not Canada, that locked up Arar without charges, blocked his access to the courts, spirited him off to Syria, and then provided the Syrians a dossier of questions to ask him while he was being tortured. Arar filed suit in a US court, suing the federal officials who had a part in his mistreatment-including Attorney General John Ashcroft, Deputy Attorney General Larry Thompson, and FBI Director Robert Mueller. As a volunteer for the Center for Constitutional Rights, I am one of Arar's lawyers.
Arar's claims were simple: to forcibly send him to Syria to be tortured violates the Constitution's due process clause, which the Supreme Court has interpreted as forbidding conduct that "shocks the conscience," as well as the Torture Victim Protection Act, which allows torture victims to sue those who subject them to torture "under color of foreign law." Courts have long held that torture is the paradigmatic example of conduct that "shocks the conscience" and violates due process. And Arar alleged that the US defendants sent him to Syria for the purpose of subjecting him to torture under Syrian law. These allegations were largely confirmed not only by the Canadian investigation, but also by the Department of Homeland Security's inspector general. In twenty-five years as a lawyer, I have never had a clearer and more egregious case of abuse.
Yet thus far the US courts have shut the door entirely on Arar, not even allowing him to offer proof of his claims. In Arar's latest setback, an eleven-judge panel of the US Court of Appeals for the Second Circuit ruled on November 2, 2009, that "special factors counseling hesitation" barred Arar's core claim that his constitutional rights were violated when he was sent to be tortured. The Supreme Court has ruled that suits for damages are generally available for such violations of constitutional rights, but has refused to permit suits where Congress has provided an alternative remedy, or where "military discipline" would be undermined by permitting soldiers to sue their commanding officers. The Bush administration argued that Arar's claim for damages should similarly be dismissed because it implicated sensitive issues of national security, foreign policy, and secret diplomatic communications between the US and foreign governments. The seven-judge majority agreed, finding that any adjudication would likely involve classified information, and could not proceed
without inquiry into 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.
Two things are remarkable about the majority's reasoning. First, the rationale quoted above appears to presume that sending people to be tortured may be permissible depending on the "geopolitical circumstances" or "the threats to which [the torture] responds." But under our law and international law, torture is never permissible, and thus these concerns ought not even enter the picture. Second, to dismiss Arar's case at this early stage, the court had to find that, even accepting as true his allegations that federal officials sent an innocent man to be tortured, Arar would be entitled to no remedy. The court concluded, without actually reviewing any classified evidence, that Arar's case was too sensitive to adjudicate, because it would require court review of national security policy and confidential diplomacy. The court suggested that Arar ask Congress for a remedy instead-notwithstanding that he is a foreign national with no voice in the US political process, and that US officials have prohibited him from entering the country for any purpose.
Four judges dissented. Judge Guido Calabresi, former dean of the Yale Law School, predicted that "when the history of this distinguished court is written, today's majority decision will be viewed with dismay." Judge Rosemary Pooler dismissed the majority's national security concerns as "hyperbolic and speculative," and maintained that Arar should have a remedy "to reinforce our system of checks and balances, to provide a deterrent, and to redress conduct that shocks the conscience."
Judge Barrington Parker, appointed to the Second Circuit by President George W. Bush, wrote that "if the Constitution ever implied a damages remedy, this is such a case-where executive officials allegedly blocked access to the remedies chosen by Congress in order to deliver a man to known torturers." Had Arar been able to get to a court to challenge his removal before federal officials put him on a plane, the court would plainly have had authority to review the case and forbid the removal; courts routinely enjoin removal when a foreign national faces a substantial risk of torture. The fact that the defendants lied to Arar's lawyer to keep her from filing an action when the torture could have been averted, in Parker's view, only strengthened the case for a damages remedy after the fact; otherwise, the courts are essentially rewarding the obstruction of justice.
Judge Robert Sack reasoned that if Arar had been tortured by federal officials at JFK, he would indisputably have a right to sue, and that the defendants' choice to outsource his torture abroad should not insulate them from liability:
I do not think that whether the defendants violated Arar's Fifth Amendment rights turns on whom they selected to do the torturing: themselves, a Syrian Intelligence officer, a warlord in Somalia, a drug cartel in Colombia, a military contractor in Baghdad or Boston, a Mafia family in New Jersey, or a Crip set in South Los Angeles.
What no judge pointed out, however, is that this is the same court of appeals that has regularly entertained lawsuits for torture and other gross human rights violations against foreign government officials, even when the wrongs were committed wholly outside the United States and affected only foreigners. One might think that such cases, in which we stand in judgment over other countries' alleged wrongs, would be even more diplomatically sensitive to adjudicate. Yet one month after the court dismissed Arar's suit, it affirmed a $19 million judgment against Emmanuel "Toto" Constant, the former leader of a Haitian death squad, for rape, torture, and attempted killing of three Haitian women by forces under his control. Under this precedent, had Arar been able to sue the Syrians who participated in his torture, the federal courts would have been ready and able to hear his claims. (He could not because none of the Syrians were in the United States, a prerequisite to the court exercising jurisdiction.) But because he sought to hold US officials accountable, his claims were too sensitive even to consider. International human rights, it seems, are something the US Court of Appeals for the Second Circuit stands ready to impose on others, but not on ourselves.
The same week that the court of appeals in New York dismissed Arar's case, a court in Milan, Italy, convicted twenty-two American CIA agents, a US Air Force lieutenant colonel, and two Italian military intelligence agents for the "extraordinary rendition" of a Muslim cleric, Abu Omar. He was abducted from the streets of Milan in 2003 and delivered to the Egyptian security service, which imprisoned him for four years without charges and tortured him, before returning him to Italy, uncharged.
That case involved the same sort of secret information, diplomatic communications, and conduct on the part of US officials as Arar's. In Italy, however, the courts did not deny all accountability at the threshold, but instead addressed each of these issues in turn as they arose. Some claims against some defendants were dismissed because they rested on secret information, but the case proceeded against most of the defendants. As the Italian court showed, concerns about national secrets and confidential international communications can be accommodated in the course of litigation, and need not serve as a threshold bar to any accountability whatsoever.
More than sixty years ago, in a series of trials conducted in Nuremberg, Germany, the United States and its allies made history by holding Nazi officials accountable for war crimes and crimes against humanity committed during World War II-including abductions, disappearances, torture, and genocide. The Nuremberg judgments in turn had a critical part in the birth of international human rights. In the ashes of World War II, many nations, working with the United States, created a regime of rights and responsibility designed to affirm the inviolability of human dignity and to ensure that such atrocities would not happen again.
The legacy of that period includes a set of charters defining the scope of human rights, such as the Universal Declaration of Human Rights, the Geneva Conventions, and the international treaty prohibiting torture. Equally if not more importantly, however, the same legacy includes the establishment of forums for holding rights violators accountable-including international war crimes tribunals, regional human rights courts (such as the European Court of Human Rights), the International Criminal Court, and domestic courts that hear international human rights claims. Nuremberg was as much about the necessity of a forum for accountability as it was about the norms themselves. In the absence of effective enforcement, international human rights are mere words on paper.
The last forum I have mentioned-the domestic court-may be the most important. By bringing human rights home, domestic courts give them a concreteness and immediacy that is critical to their effectiveness. Here, too, the United States has been a leader. In 1980, the same court that dismissed Arar's case ruled, in a landmark decision, Filartiga v. Pena-Irala, that federal courts could adjudicate claims by foreign citizens against foreign defendants for human rights violations committed abroad. Filartiga involved a young man who had been abducted, tortured, and killed by a Paraguyan police chief. When the family learned that the officer had fled to the United States, they sued him in US court. The Court of Appeals for the Second Circuit declared that the torturer is the "enemy of all mankind," and therefore may be sued for his wrongdoing wherever he is found.
The usual reluctance to have a US court pass judgment on overseas conduct not involving any American citizens was overcome by the fact that the prohibition on torture is universal. Since that decision, US courts have adjudicated human rights claims involving brutality in Burma, South Africa, Yugoslavia, Nigeria, Mexico, the Philippines, Argentina, and many other nations. The Supreme Court upheld the practice in 2004. Yet according to the Second Circuit, the same sorts of claims are too sensitive to permit adjudication when brought against US officials.
In addition to a forum for enforcement, human rights also require equal application. Their purpose is to identify those norms so fundamental to human dignity that no government may violate them. Indeed, Nuremberg's legacy has always been somewhat clouded by the fact that the Soviet Union, itself responsible for terrible crimes against humanity, participated as a prosecutor, but was never held accountable for its own crimes. If international human rights are to be legitimate, they must be universal, and not a euphemism for "victor's justice." The torture standard does not differ based on whether the United States, Haiti, or Paraguay is engaged in the practice. The Italian court convicted Italians and Americans alike. If anything, it should be easier, not more difficult, to hold one's own government officials accountable than to hold foreign government officials accountable.
The notion that domestic courts can hold another country's torturers accountable is not an American anomaly, as the Italian case illustrates. International law recognizes a principle of "universal jurisdiction," which holds that torturers can be held to account anywhere. Applying that principle, a Spanish judge in 1998 issued an arrest warrant for former Chilean dictator Augusto Pinochet for crimes against humanity, including torture. Great Britain's highest court, the Law Lords, ruled that the warrant could be enforced to extradite Pinochet from England to stand trial. (In the end, Pinochet was returned to Chile on medical grounds, but was then indicted there.) The same Spanish judge, Baltasar Garzón, is currently investigating whether criminal charges should be leveled against the Bush administration lawyers responsible for authorizing torture at Guantánamo-John Yoo, Alberto Gonzales, David Addington, Jay Bybee, William Haynes, and Douglas Feith. The torture they authorized was inflicted on several Spanish citizens at Guantánamo, causing terrorist charges against them in Spain, also prosecuted by Garzón, to be dismissed.
The principle of universal jurisdiction recognizes that if a country is responsibly pursuing accountability for its own wrongs, a foreign court should defer to the domestic process. In his speech at the National Archives on May 21, 2009, President Obama insisted that the Justice Department and the courts "can work through and punish any violations of our laws or miscarriages of justice." Cases like Arar's belie his confidence, as does the Justice Department's failure even to investigate the lawyers who authorized the CIA and the military to engage in torture and disappearances as a means of getting suspects to talk. If we fail to carry out this responsibility, other nations, using principles that the US did much to develop, may take up the charge.