Arar v. Ashcroft et al

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Victim of U.S. torture state gets a taste of "American Justice"

By Kenneth J. Theisen

 On November 2, 2009, the Second U.S. Circuit Court of Appeals in New York in a 7-4 decision dismissed Canadian citizen Maher Arar's law suit against various U.S. officials for their illegal role in sending him to Syria to be tortured and interrogated for a year.  Arar is a victim of the U.S. government's kidnapping and torture program known as extraordinary rendition. He is now also a victim of "American Justice"...

The appellate court ruled that Arar can not utilize the courts to pursue his legal claims against the government unless the government's legislative branch enacts legislation allowing him to sue by  spelling out in detail how a case as unusual as Arar's claims can be brought and what legal remedy exists. The court stated that allowing the case to be heard would "offend the separation of powers and inhibit this country's foreign policy." The court went on to say it would not create "a new damages remedy that Congress has not seen fit to authorize...Even the probing of these matters entails the risk that other countries will become less willing to cooperate with the United States in sharing intelligence resources to counter terrorism." 


In effect the court held that justice for the individual was subservient to the needs of U.S. imperialism. It also ruled that the government gets to decide who can sue it when individual rights are violated and U.S. officials break the law. Ironically the government gets to determine who and when someone can sue it.  This is justice?


Arar is represented by the Center for Constitutional Rights (CCR) which has repeatedly gone to court to challenge the actions of the U.S. government in its illegal war of terror. The appellate court concluded that Arar's case raised too many politically sensitive foreign policy and secrecy issues to permit any judicial relief - in other words it would expose the crimes of the U.S. government to the eyes of the world.  The court's decision leaves the federal officials involved in Arar's abuse free of any legal accountability for the crimes they committed.


Maher Arar issued the following statement in response to the court's action: "After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch. Unfortunately, this recent decision and decisions taken on other similar cases, prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law."


The Obama Department of Justice (DOJ) has repeatedly gone to court to cover-up and defend the actions of the Bush regime in the U.S. war of terror. This case is just the latest in a long line of such "national security" cases where the Obama administration has furthered the fascist political trajectory begun under Bush.


Georgetown law professor and CCR cooperating attorney David Cole, who argued the Arar case stated, "This decision says that U.S. officials can intentionally send a man to be tortured abroad, bar him from any access to the courts while doing so, and then avoid any legal accountability thereafter. It effectively places executive officials above the law, even when accused of a conscious conspiracy to torture. If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments."   But that is the problem - the rule of law means nothing to the U.S. government if it interferes with the interests of the U.S. imperialists. They use the law to suit their purposes and ignore it if it interferes with those purposes.


CCR Senior Staff Attorney Maria LaHood said, "With this decision, we have lost much more than Maher Arar's case against torture - we have lost the rule of law, the moral high ground, our independent judiciary, and our commitment to the Constitution of the United States." 


The Arar case was re-heard before twelve Second Circuit judges after a rare decision in August 2008 to rehear the case sua sponte, that is, of their own accord before Arar had even sought rehearing. This was a political decision to head off further exposures of U.S. government crimes in the case, which has already exposed more than the government wanted the public ever to know.


Mr. Arar, a Syrian-born Canadian citizen, was detained at New York's JFK Airport in September 2002 while changing planes on his way home to Canada. The Bush regime labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated, and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity. Ironically, Syria was on the U.S. State Department's list of countries that supported terrorism and also of countries that violated human rights through torture.  But the Bush regime and the Obama administration have both repeatedly stated that they do not send "terrorism suspects" to other countries to be tortured and that they receive a promise from the country of rendition not to torture suspects. But that is just one of many lies told by both administrations.

In January 2004, just three months after he returned home to Canada from his ordeal, CCR filed a suit on Mr. Arar's behalf against then Attorney General John Ashcroft and other U.S. officials, the first case to challenge the government's policy of "extraordinary rendition," also known as "outsourcing torture." 

The Canadian government conducted an exhaustive public inquiry which found that Mr. Arar had no connection to terrorism and, in January 2007, apologized to Mr. Arar for Canada's role in his rendition and awarded him a multi-million-dollar settlement. But in the U.S., both the Executive and Judicial branches of the United States government have barred inquiry into the case and refused to hold anyone accountable for ruining the life of an innocent man. Nevertheless the U.S. government has not been totally successful in keeping the case out of the limelight.


Two Congressional hearings in October 2007 dealt with Arar's case. On October 18, 2007 Mr. Arar testified via video at a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture.  During that hearing - the first time Mr. Arar was allowed to testify before any U.S. governmental body - individual members of Congress publicly apologized to him, though the U.S. government still has not issued a formal apology. The next week, on October 24, Secretary of State Condoleezza Rice had to admit during a House Foreign Affairs Committee Hearing that the U.S. government mishandled his case. Her real regret is that the case became known to the public.


The Arar is not the only extraordinary rendition case to be heard in the U.S. courts where the Obama DOJ has gone to court to suppress the truth.  The ACLU has filed a case against Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the rendition program. Jeppesen provided critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear people to detention and interrogation. In that case DOJ is claiming that allowing the case to be heard would endanger national security by disclosing "state secrets."  The Jeppesen case is being heard before the 9th Circuit Court of Appeals.


In April of this year, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a lower court dismissal of the lawsuit, brought on behalf of five men who were kidnapped, forcibly disappeared, and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The Obama administration's appeal of that decision will be heard by an "en banc" panel of 11 judges.


Ironically one of the judges who sits on the 9th Circuit bench is Jay Bybee.  Justice Bybee had to recuse himself from hearing the case. Why?  Because Bybee was one of the lawyers in the Bush regime's DOJ who wrote legal memos justifying torture, rendition and various other crimes of the regime. Bybee was John Yoo's supervisor. His reward for his participation in these crimes was a lifetime appointment to the federal bench.


It says quite a bit about American justice when judges must recuse themselves because of complicity in the very crimes on which they must rule. Is it any wonder to see outrageous rulings like that in Arar case?


CCR attorneys think it is likely that they will appeal the latest ruling in the Arar case.  World Can't Wait will continue to report on this and other "national security" cases.


To see more about the Arar case see:


More information about the ACLU Jeppesen

case is available online at:

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This page contains a single entry published on November 4, 2009 12:27 PM.

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