A Court Decision That Reflects What Type of Country the US Is

Even when government officials purposely subject an innocent person to brutal torture, they enjoy full immunity

It's not often that an appellate court decision reflects so vividly what a country has become, but such is the case with yesterday's ruling by the Second Circuit Court of Appeals in Arar v. Ashcroft (.pdf).
Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A
telecommunications engineer and graduate of Montreal's McGill
University, he has lived in Canada since he's 17 years old. In 2002,
he was returning home to Canada from vacation when, on a stopover at
JFK Airport, he was (a) detained by U.S. officials, (b) accused of
being a Terrorist, (c) held for two weeks incommunicado and
without access to counsel while he was abusively interrogated, and then
(d) was "rendered" -- despite his pleas that he would be tortured -- to
Syria, to be interrogated and tortured. He remained in Syria for the
next 10 months under the most brutal and inhumane conditions
imaginable, where he was repeatedly tortured. Everyone acknowledges
that Arar was never involved with Terrorism and was guilty of
nothing. I've appended to the end of this post the graphic description
from a dissenting judge of what was done to Arar while in American
custody and then in Syria.

In January, 2007, the Canadian Prime Minister publicly apologized to Arar
for the role Canada played in these events, and the Canadian government
paid him $9 million in compensation. That was preceded by a full
investigation by Canadian authorities and the public disclosure of a detailed report which concluded
"categorically that there is no evidence to indicate that Mr. Arar has
committed any offense or that his activities constituted a threat to
the security of Canada." By stark and very revealing contrast, the
U.S. Government has never admitted any wrongdoing or even spoken
publicly about what it did; to the contrary, it repeatedly insisted
that courts were barred from examining the conduct of government
officials because what we did to Arar involves "state secrets" and
because courts should not interfere in the actions of the Executive
where national security is involved. What does that behavioral
disparity between the two nations say about how
"democratic," "accountable," and "open" the United States is?

the Second Circuit -- by a vote of 7-4 -- agreed with the government
and dismissed Arar's case in its entirety. It held that even if the
government violated Arar's Constitutional rights as well as statutes
banning participation in torture, he still has no right to sue for what
was done to him. Why? Because "providing a damages remedy against
senior officials who implement an extraordinary rendition policy would
enmesh the courts ineluctably in an assessment of the validity of the
rationale of that policy and its implementation in this particular
case, matters that directly affect significant diplomatic and national
security concerns" (p. 39). In other words, government officials are
free to do anything they want in the national security context -- even
violate the law and purposely cause someone to be tortured -- and
courts should honor and defer to their actions by refusing to
scrutinize them.

Reflecting the type of people who
fill our judiciary, the judges in the majority also invented the most
morally depraved bureaucratic requirements for Arar to proceed with his
case and then claimed he had failed to meet them. Arar did not, for
instance, have the names of the individuals who detained and abused him
at JFK, which the majority said he must have. As Judge Sack in dissent
said of that requirement: it "means government miscreants may avoid []
liability altogether through the simple expedient of wearing hoods while inflicting injury" (p. 27; emphasis added).

The commentary about this case from Harper's Scott Horton
perfectly captures the depravity of what our Government has done -- and
continues to do -- to Arar. His analysis should be read in its
entirety, and he concludes with this:

the history of the Second Circuit is written, the Arar decision will
have a prominent place. It offers all the historical foresight of Dred
Scott, in which the Court rallied to the cause of slavery, and all the
commitment to constitutional principle of the Slaughter-House Cases, in
which the Fourteenth Amendment was eviscerated. The Court that once
affirmed that those who torture are the "enemies of all mankind" now
tells us that U.S. government officials can torture without worry,
because the security of our state might some day depend upon it.

I want
to add one principal point to all of this. This is precisely how the
character of a country becomes fundamentally degraded when it becomes a
state in permanent war. So continuous are the inhumane and brutal acts
of government leaders that the citizens completely lose the capacity
for moral outrage and horror. The permanent claims of existential
threats from an endless array of enemies means that secrecy is
paramount, accountability is deemed a luxury, and National Security
trumps every other consideration -- even including basic liberties and
the rule of law. Worst of all, the President takes on the attributes
of a protector-deity who can and must never be questioned lest we
prevent him from keeping us safe.

This is exactly why
I find so objectionable and dangerous the ongoing embrace by the Obama
administration of these same secrecy and immunity weapons. Obama had
nothing to do with the Arar case -- all the conduct, and even
the legal briefing, occurred before he was President -- but he has
taken numerous steps to further institutionalize the core injustice
here, including in cases that are quite similar to Arar:
namely, that the Executive can use secrecy and national security claims
to shield himself from the rule of law, even when he's accused of
torture and war crimes. That's exactly what happened here, yet again.
As Judge Parker wrote in dissent (click image to enlarge)

Judge Calabresi -- one of the most respected and non-ideological
appellate judges in the country -- accused the majority of "utter subservience to the executive branch." Surely that's true, but it isn't only the Arar
majority that is guilty of that. It is the nation as a whole --
drowning in infinite claims of "state secrets" and executive immunity
and war necessity and the imperatives of "looking forward" -- that has
meekly acquiesced to the pernicious idea that the President in an
allegedly national security context must never have his actions
disclosed, let alone judicially scrutinized and held accountable, no
matter how criminal, brutal and inhumane those actions are.


Judge's Sack's description of what was done to Arar in Syria, which
accords perfectly with what the Canadian investigation found -- this is
what our Government (both the executive and judicial branches) has
continuously insisted it can purposely cause to happen without any
accountability or even transparency (pp. 13-15):



Judge Sack's equally horrific description of exactly what the U.S. did to cause all of that to happen to Arar is here.

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