NEW YORK - The Justice Department has again asserted "state-secrets
privilege" in seeking to dismiss a lawsuit by Maher Arar, a Syrian-born
Canadian citizen who was detained in the United States in 2002 and sent against
his will to Syria, where he says he was tortured until his release a year later.
The privilege was invoked "in order to protect the intelligence, foreign
policy and national security interests of the United States," wrote Acting
Attorney General James B. Comey in legal
papers filed in the Eastern District of New York.
plaintiff's complaint would necessitate disclosure
of classified information," according to Comey, including disclosure of
the basis for detaining him in the first place, the basis for refusing to deport
him to Canada as he had requested, and the basis for sending him to Syria. He
was never charged with any crime.
Arar, who has been home in Ontario for more than a year, is being represented
by the Center for Constitutional Rights
(CCR), a New York-based civil rights advocacy organization
"Maher Arar's is a very significant case," said his attorney, Barbara
Olshansky, in a statement.
"It involves the torture and arbitrary detention of an innocent man seized
and removed on the basis of uncorroborated and incorrect information, and puts
to the test this administration's commitment to the eradication of torture."
This is the third time the Department of Justice has invoked the "state-secrets
privilege" in recent years.
In 2003, the Central Intelligence Agency (CIA) successfully used the statute
to move for dismissal of a lawsuit brought by Jeffrey Sterling, a former CIA
officer who alleged that he was the victim of racial discrimination by the agency.
That case is on appeal.
The state-secrets privilege was invoked again in 2004 to block a lawsuit brought
by Federal Bureau of Investigation (FBI) whistleblower Sibel Edmonds.
Edmonds, a former Middle Eastern language specialist hired by the FBI shortly
after Sept. 11, 2001, was fired in 2002 after repeatedly reporting serious security
breaches and misconduct in the agency's translation program. She challenged
her dismissal by filing suit in federal court.
Last July, the court dismissed her case when outgoing Attorney General John
Ashcroft invoked the state-secrets privilege. Her appeal will be heard in April.
The Justice Department's inspector general conducted a classified investigation
and concluded that Edmonds' allegations "were at least a contributing factor
in why the FBI terminated her services."
The American Civil Liberties Union (ACLU),
a Washington-based human rights advocacy group that is defending Edmonds, has
been sharply critical of the government. It said the district court "relied
on the government's secret evidence but denied Edmonds the opportunity to prove
her case based on non-sensitive evidence." That approach, it added, "made
a mockery of the adversarial process and denied Ms. Edmonds her constitutional
right to a day in court." The organization said "the government has
relied on the state secrets privilege to cover up its own negligence,"
citing a 1948 Supreme Court case in which "the government claimed that
disclosing a military flight accident report would jeopardize secret military
equipment and harm national security."
However, release of the accident report nearly 50 years later revealed
that the cause of the crash was faulty maintenance of the B-29 fleet.
Arar, a Canadian citizen born in Syria in 1970, came to Canada in 1987. After
earning bachelor's and master's degrees in computer engineering, Arar worked
in Ottawa as a telecommunications engineer.
On a stopover in New York as he was returning to Canada from a vacation in
Tunisia in September 2002, U.S. officials detained Arar, claiming he had links
to al-Qaeda. He was deported to Syria, even though he was carrying a Canadian
passport and asked to be returned to that country.
Arar returned to Canada more than a year later, claiming he had been tortured
during his incarceration. He accused U.S. officials of sending him to Syria
knowing that it practices torture.
U.S. officials have confirmed that "Mr. Arar's name was placed on a terrorist
lookout list based on information received from Canada ," and that "the
decision to remove Mr. Arar ... was made by U.S. government officials based
on our own assessment of the security threat."
Meanwhile, in Mr. Arar's home country, Canada, the case has taken on a high
profile. Following extensive media interest, the government reluctantly agreed
to a judicial inquiry into the case, which involves the Canadian Security Intelligence
Service (CSIS) and the Royal Canadian Mounted Police (RCMP).
According to the Toronto Globe, there is some suspicion that the government
"is attempting to stall the inquiry into irrelevancy by tying it up in
lengthy legal proceedings."
"Although the government asked a judge to conduct a public inquiry, it
seems determined to retain control over what information will be made public
about Mr. Arar, especially as it relates to the activities of the CSIS and the
RCMP," the Globe said.
The U.S. State Department has refused to cooperate with the Canadian inquiry.
Arar was transported to Syria under a U.S. government program known as "extreme
rendering" taking detainees to countries where prison authorities
are known to practice torture.
The program has been used extensively by the CIA, which uses leased Gulfstream
business jets for its flights. The U.S. government has acknowledged that it
engages in "extreme rendering," but insists that countries to which
its prisoners are taken provide "diplomatic assurance" that they will
be treated humanely.
It is generally thought that the rendering practice may be responsible for
some of the "ghost detainees" from Iraq and Afghanistan U.S. prisoners
whose identities have been hidden from the International Committee of the Red
(Inter Press Service)