Supreme Court: No Day in Court for Canadian Rendition Victim Maher Arar

NEW YORK - Today, the United States Supreme Court decided not to hear the Center
for Constitutional Rights (CCR) case on behalf of Canadian citizen Maher
Arar against U.S. officials for their role in sending him to Syria to
be tortured and detained for a year. The decision of the U.S. Court of
Appeals for the Second Circuit, which the Supreme Court declined to
review, was decided on the legal ground that Congress, not the courts,
must authorize a remedy. As a result, the substance of Mr. Arar's case,
first filed in January 2004, has never been heard and now never will be.

Mr. Arar said, "Today's decision eliminates my last bit
of hope in the judicial system of the United States. When it comes to
‘national security' matters the judicial system has willingly abandoned
its sacred role of ensuring that no one is above the law.  My case and
other cases brought by human beings who were tortured have been thrown
out by U.S. courts based on dubious government claims. Unless the
American people stand up for justice they will soon see their hard-won
civil liberties taken away from them as well."

Last month, the Obama administration chose to weigh in on Mr. Arar's
case for the first time. The Obama administration could have settled the
case, recognizing the wrongs done to Mr. Arar as Canada has done. 
(Canada conducted a full investigation, admitting wrongdoing, exonerated
Mr. Arar, apologized, and paid him $10 million in damages for their
part in his injuries.)  Yet the Obama administration chose to come to
the defense of Bush administration officials, arguing that even if they
conspired to send Maher Arar to torture, they should not be held
accountable by the judiciary.     

Said CCR cooperating attorney David Cole, "The courts
have regrettably refused to right the egregious wrong done to Maher
Arar. But the courts have never questioned that a wrong was done. They
have simply said that it is up to the political branches to fashion a
remedy.  We are deeply disappointed that the courts have shirked their
responsibility. But this decision only underscores the moral
responsibility of those to whom the courts deferred - President Obama
and Congress - to do the right thing and redress Arar's injuries." 

Lower courts concluded that Mr. Arar's suit raised too many sensitive
foreign policy and secrecy issues to allow his case to proceed, and that
therefore it was the role of the political branches to authorize a
remedy.

Mr. Arar alleges that the U.S. officials named in the suit conspired
with Syrian officials to have him tortured in Syria, delivered Mr. Arar
to his torturers, provided them with a dossier on him and questions to
ask him, and obtained the answers tortured out of him. The legal
arguments in the case revolved around whether U.S. officials can be sued
for damages if that is the only remedy available to the victim, whether
the officials acted "under color of foreign law" when they conspired
with Syria to have Mr. Arar tortured there, and whether Mr. Arar has a
right to pursue his claims under the Fifth Amendment and the Torture
Victim Protection Act.

Said CCR Senior Attorney Maria LaHood, "The Supreme
Court has effectively condoned torture by denying Maher's right to seek a
remedy.  It is now up to President Obama and Congress to apologize to
Maher for what the Bush administration did to him, to make clear that
our laws prohibiting torture apply to everyone, including federal
officials, and to hold those officials accountable."

For more on Mr. Arar's case, including a timeline and links to videos,
court papers and other documents, go to http://ccrjustice.org/ourcases/current-cases/arar-v.-ashcroft.

Katherine Gallagher of CCR, and Jules Lobel, professor at
University of Pittsburgh Law School and CCR cooperating attorney, are
co-counsel in Mr. Arar's case.

The Center for Constitutional Rights represents other victims of the
Bush administration's programs, from Iraqis tortured and abused at Abu
Ghraib prison to Muslim and Arab men rounded up and abused in
immigration sweeps in the U.S. in the aftermath of 9/11, to Guantánamo
detainees and their families.

BACKGROUND

Mr. Arar, a Syrian-born Canadian citizen, was detained at JFK Airport 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.

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

The Canadian government, after an exhaustive public inquiry, found that
Mr. Arar had no connection to terrorism and, in January 2007, apologized
to Mr. Arar 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
Mr. 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.

Two Congressional hearings in October 2007 dealt with his case. On
October 18, 2007 Mr. 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 Mr.
Arar 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 next week, on October 24, Secretary of
State Condoleezza Rice admitted during a House Foreign Affairs Committee
Hearing that the U.S. government mishandled his case.

The Court of Appeals case was heard a second time in December 2008
before twelve Second Circuit judges after a rare decision in August 2008
to rehear the case sua sponte, that is, of their own accord before Mr.
Arar had even sought rehearing. On November 2, 2009, the Second Circuit
Court of Appeals en banc affirmed the district court's decision
dismissing the case.

In a strongly worded dissent, 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."