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 defense
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
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 US 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
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 program 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 US, Arar had no constitutional due
process rights. It was the US government that denied Arar admission to the
Both the Syrian and Canadian governments said they had found that Arar had
no connection to any criminal or terrorist organization or activity. After an
intensive two-year investigation, the Canadians apologized to Arar for Canada's
role in his rendition and awarded him a 10-million-dollar settlement.
The US government has stopped short of an apology to Arar, but at a recent
Congressional hearing, Secretary of State Condoleezza Rice admitted that the
US 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 US officials are liable under the
Torture Victim Protection Act, for conspiring with Syria to subject Arar to
torture under color of foreign law. The TVPA creates liability for torture inflicted
under color 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 US 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
Arar's lawyer, Professor David Cole of the Georgetown University Law Center,
appearing on behalf of the Center 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 apologized, 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 organization 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 US 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 Organizations, 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 US 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 apologized 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 US 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 US 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 US officials'
minimal efforts to notify attorneys for Arar before a late-night hearing where
he could argue his fear of torture.
(Inter Press Service)