After suffering a series of stinging defeats of
its detention policies in four years of Supreme Court decisions, the George
W. Bush administration may be in for yet more bad news.
In what legal scholars describe as a highly unusual move, a federal appeals
court in New York last week decided to rehear a case it had decided in June,
when a three-judge panel dismissed a lawsuit filed by the man who has arguably
become the poster child for the Bush administration's rendition program.
Bringing the suit is Maher Arar, a Syrian-born Canadian citizen who was detained
incommunicado for two weeks at Kennedy Airport in 2002, flown by U.S. authorities
to Jordan and then to Syria, where he was held for 10 months and said he was
The decision by the Second U.S. Circuit Court of Appeals in Manhattan is unusual
because the full circuit assembles for a case only once or twice a year and
because Arar's attorneys never asked for a full hearing.
In Canada, a high-level commission concluded that the Canadian police and intelligence
officials had erroneously linked Arar to al-Qaeda. The commission found that
the Canadians had provided U.S. officials with misinformation. The commission
also concluded that Canadian officials had been behind a campaign to discredit
Arar after he was released from Syria and arrived in Canada in October 2003.
The Canadian government issued a formal apology to Arar last year and paid
him $9.75 million. U.S. Secretary of State Condoleezza Rice said last year that
the matter had not been "handled as it should have been." In June,
the Department of Homeland Security's inspector general said at a congressional
hearing that the Justice Department's ethics office was reviewing the decision
to send Arar to Syria.
The rehearing will take place in December, this time before all 13 appeals
The defendants include John Ashcroft, who was attorney general when Arar was
stopped at Kennedy airport, and other Bush administration officials at the time
among them Robert S. Mueller III, director of the Federal Bureau of Investigation
(FBI), and Tom Ridge, then secretary of the Department of Homeland Security
of violating federal law and his civil rights.
In the original decision, the three-judge panel agreed with a lower court decision,
ruling 2 to 1 that the federal courts lacked jurisdiction to hear Arar's complaint.
The reason, they said, was that technically, Arar was never in the United States.
But one of the three judges dissented, describing as "a legal fiction"
the idea that Arar was not in this country when he was apprehended at Kennedy.
That judge, Robert D. Sack, a Clinton appointee, said that Arar's case should
continue because Arar "was, in effect, abducted while attempting to transit
at JFK Airport."
Legal experts believe the rehearing resulted from a request by one of the appeals
court judges, though it is not known whether it was Judge Sack. The request
was granted by a majority of the appeals judges.
However, a full U.S. appeals court hearing is far from a certainty. Even if
Arar is able to establish that he has standing to bring his suit, the chances
are the government will invoke its "state secrets privilege," claiming
that disclosure of the details of Arar's case in open court would compromise
U.S. national security.
So rare is a judge's dismissal of a government "state secrets" motion
that, when it happens, it becomes front-page news. That's what happened when
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
watch list. The plaintiff, a local businessman, sued to discover whether his
name was on the list. The government called that a "state secret,"
but the judge disagreed. The government is appealing the decision.
Once rare, the use of the "state secrets privilege" has grown exponentially
during the administration of George W. Bush. The privilege has kept many cases
from ever coming before any court. Administration critics say it is an essential
part of a curtain of secrecy the Bush administration has built, often for nothing
more than avoiding political embarrassment.
David Cole, a professor at Georgetown University Law Center and an internationally
recognized authority on constitutional law, told IPS, "The administration
has argued that the president has unilateral executive power in the 'war on
terror' to violate even criminal laws, and when it has been challenged on that
assertion, it has argued that the courts can't even rule on that assertion of
power because the alleged criminal violation is a 'state secret.'"
There are currently efforts in Congress to enact legislation to limit the government's
use of the state secrets privilege. The Senate Judiciary Committee has approved
a bill that would require the government to produce the evidence it says is
protected for review by a federal judge in a classified setting. But the bill
lacks bipartisan support on the committee only one Republican, Sen. Arlen
Specter of Pennsylvania, voted to move it to the Senate floor. That makes the
future of the measure unclear.
Specter is a sponsor of the bill, the State Secrets Protection Act, along with
Democratic Senators Edward Kennedy of Massachusetts and Patrick Leahy of Vermont,
chairman of the Judiciary Committee. They said the objective of the proposed
legislation is to "provide a systematic approach to the privilege and thereby
bring stability, predictability, and clarity to this area of the law and restore
the public trust in government and the courts."
A new Judiciary Committee report on use of the state secrets privilege includes
dissenting views from several Republican members of the committee, who argue
that the existing arrangements already strike the "right balance between
openness, justice and national security."
The Supreme Court has consistently ruled against the Bush administration on
issues surrounding its detention policies. In 2004, in a case involving a U.S.
citizen being detained indefinitely at Guantanamo as an "illegal enemy
combatant," the court recognized the power of the government to detain
unlawful combatants, but ruled that detainees who are U.S. citizens must have
the ability to challenge their detention before an impartial judge.
In the same year, the court ruled that the U.S. court system has the authority
to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay
were rightfully imprisoned.
Two years later, the court that held that the military commissions set up by
the Bush administration to try detainees at Guantanamo Bay lack "the power
to proceed because its structures and procedures violate both the Uniform Code
of Military Justice and the four Geneva Conventions signed in 1949." That
decision led to Congress's passage of the Military Commissions Act.
The challenge to that Act was brought by Salim Hamdan, Osama bin Laden's driver,
who recently became the first detainee in seven years to face any kind of trial
at Guantanamo. A Pentagon-appointed jury found him not guilty of the most serious
charge brought against him conspiracy to kill U.S. citizens and
convicted him of providing material supporting for terrorism. He could be a
free man before the end of the year.
Hamdan is expected to appeal his sentence and the constitutionality
of the military commissions act to the U.S. civilian courts.
(Inter Press Service)