Where you have a concentration of power in a few hands, all too frequently men with the mentality of gangsters get control.
Lord Acton
Original Blog US Casualties Contact Donate

July 4, 2008

'State Secrets' Privilege Derails Rendition Suit

by William Fisher

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 security.

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 of al-Qaeda.

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 country.

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 federal authority.

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)

comments on this article?

  • Obama Faces Spate of 'Terror War' Lawsuits

  • Red Cross Report Bolsters Case for Bush Inquiry

  • Obama Follows Bush on Detainees

  • Senate Committee Weighs 'Truth Commission'

  • Lawsuits Challenge Charity Blacklisting

  • Al-Marri Lawyers Seek Supreme Court Review

  • Britain Admits Complicity in U.S. Rendition

  • What About Bagram?

  • Gitmo Report Contradicts Govt. Claims of 'Humane' Detention

  • Court Passes the Buck on Fate of Chinese Muslims

  • Democrats Divided Over 'Reckoning' for Bush

  • Lawsuit Sheds More Light on Terror War Abuses

  • Rendition Case Enters 'Bizarre' Realms of Secrecy

  • 'State Secrets' Privilege Not Gone With Bush

  • The Children of Guantánamo

  • Study Challenges Claims of Gitmo Recidivism

  • Indefinite Detention Case to Test Obama's Pledges

  • Close Torture Loopholes, Physicians' Group Urges

  • Muslim World Hails End of a Despised Symbol

  • Fate of Guantánamo Detainees Still Murky

  • Bagram: Worse Than Guantanamo?

  • 'Bad Apples' Didn't Fall Far From the Tree

  • Immunity Recedes for Private Contractors in Iraq

  • Ret. Officers Urge Obama to Expunge 'Stain of Torture'

  • Freedom Recedes for Uighurs at Guantanamo

  • Next President Will Inherit Guantanamo Dilemma

  • Muslim Charity to Get
    Its Day in Court

  • The Most Secretive Administration Ever?

  • Muslim Charities Negotiate a Minefield

  • Arar Faces Uphill Legal Battle

  • One-Fifth of Iraq Funding Paid to Contractors

  • Hamdan's Future Remains Unclear

  • NGO 'Blacklist' Unfair and Arbitrary, Groups Say

  • New Spying Law Quickly Challenged

  • Hamdan Case to Test Military Tribunals

  • Uyghurs Jailed From Guantanamo to Beijing

  • 'State Secrets' Privilege Derails Rendition Suit

  • Guantanamo Trials Hit Setbacks

  • Lawmakers Seek Probe of 'Media Generals'

  • Abuse Claims Mount Against Pentagon, Contractors

  • Fabricated 'Bioterrorism' Case Collapses

  • Groups Wrangle with CIA over 'Ghost Prisoners'

  • Courts May Get More Latitude on 'State Secrets'

  • Trials of Muslim Charities Likened to a Witch-Hunt

  • Serious Abuses No Bar to US Military Aid

  • Jordan Acted as Hub for US Renditions, Report Says

  • Arab Govts Ever More Draconian, Group Says

  • Reforms Failed to Curb FBI Spying

  • Former Gitmo Prosecutor to Testify for Defense

  • We Don't Do Torture – Especially in Debates

  • Just Waterboarding Under the Bridge

  • Bush, Congress Wrangle Over Domestic Spying

  • Renditions Clothed in State Secrets Mantle

  • Experts Doubt Fair Trials for Gitmo Suspects

  • Bush's Budget Sidelines Transparency

  • Bush: Uniter, Decider, and Now, Interpreter

  • Congress Seeks to Limit 'State Secrets' Privilege

  • Afghan Prison Looks Like Another Guantanamo

  • Terror Prosecutions Shed More Heat Than Light

  • Legal Community Condemns Destruction of CIA Tapes

  • 'Black Site' Survivor Relates Horrific Tale

  • Bush's New Spin Master
    a Lame Duck?

  • Glaring Hypocrisy of Arab Annapolis Participants

  • Civil Libertarians Warn of 'PATRIOT Act Lite'

  • Gitmo Policy Faces Another Supreme Court Test
  • William Fisher writes for Inter Press Service.

    Reproduction of material from any original Antiwar.com pages
    without written permission is strictly prohibited.
    Copyright 2017 Antiwar.com