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February 3, 2005

US Invokes Secrets Privilege in Torture Lawsuit

by William Fisher

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.

"Litigating … 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 Cross.

(Inter Press Service)

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  • William Fisher writes for Inter Press Service.

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