What Foul Deeds Lie Beneath the Cloak of National Security

The Second Circuit Court of Appeals in the case of Arar v. Ashcroft, through a series of machinations declaring certain claims insufficiently pleaded, others bifurcated, and the law permitting government agents to be sued not applicable, has dismissed the claims of Maher Arar. The vote of the Court en banc was 7 to 4 to dismiss. The opinion is very complex and this brief summary may not do justice to the majority in the same way that they did not render justice to Mr. Arar.

The facts are fully set forth in the opinion, but I will try to briefly summarize them. Mr. Arar resides in Canada and is a citizen of both Canada and Syria. At Kennedy airport while on his way home from vacationing with his family, he was stopped "as being a member of a known terrorist group". He was interrogated for 8 hours and persistently denied any contact or involvement with terrorist groups. He was then shackled and imprisoned. The next day he was aggressively interrogated again for about 5 hours, and then taken back to his cell where he was fed for the first time. Repeated requests to make a telephone call or see a lawyer were denied.

He was then transferred to the Metropolitan Detention Center in shackles and chains where he was strip searched and placed in solitary confinement. He remained there for 3 days and his continued requests to make a telephone call and see a lawyer were denied. He indicated his desire to return to Canada and expressed his fear of being sent to Syria, which had been threatened. Counsel was finally obtained and met with Arar, but thereafter counsel received misinformation as to Arar's whereabouts. Arar was determined to be a security danger and was flown out of the country and eventually turned over to Syrian authorities. Neither the Canadian Consulate nor his lawyer were advised of the action until after it happened.

While being detained in Syria for 10 months, he was placed in a "grave cell" measuring 6 feet long, 7 feet high and 3 feet wide which was infested with rats. Cats would urinate on Arar through a small opening above his cell. He lost 40 pounds while incarcerated. He was interrogated 18 hours per day and physically and psychologically tortured. I will not relate the specifics. They are too gruesome. Arar claims that the U.S. sent a series of questions to be asked by the Syrian interrogators (torturers) and the information obtained from him was forwarded to the U.S.

When the Canadian authorities finally located him, he was warned against telling them that he had been tortured or the conditions under which he had been confined. He was than coerced into signing a confession that he had trained as a terrorist in Afghanistan, and then was taken back to a Syrian prison for 6 more weeks. (It was ultimately determined that he was not a terrorist and had no terrorist connections. The Canadian government which was responsible for the original misdesignation, settled his claim against it by paying approximately 11 million dollars). After another week of imprisonment he was released into the custody of the Canadian Embassy and returned home

He contends in his complaint that the United States was an active participant in his arrest, imprisonment, rendition and torture. The Court not only dismissed his claim against the alleged, responsible individuals but concluded that similar claims can only be considered by the courts if Congress specifically authorizes them, which it has not done to date. Thus, despite the facts outlined above, Mr. Maher Arar is without remedy against those who participated in these outrageous and illegal acts against him. There is a doctrine in the law which permits government agents to be sued called Bivens. The Bivens doctrine derives directly from the Constitution itself, not from any Congressional immunity exception. The majority concludes that Bivens does not apply here or in this type of case. Their justification relies upon the interests of national security and the preservation of state secrets. But there are already procedures in place to protect those interests in court proceedings. The majority also warns of graymail, the threat such types of litigation may pose, but as the dissent points out, that danger exists in any suit allowed against government officials. Finally Judge Calabresi in dissent suggests that the majority has gone much further than necessary in deciding the matter----charging "judicial activism" in the literal (not the political) sense.

He sums up the decision by saying that a person who "(a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law---is effectively left without a U.S. remedy" This just can't be! My own sense is that the government is not as concerned with national security and state secrets as it is with concealing its active participation in the capture, rendition and torture of innocent (and possibly guilty) persons.

There is little doubt that Arar was sent to Syria for the specific purpose of having him tortured there and hopefully obtaining information. Others insist that he easily could have been sent to Canada, Switzerland or Tunisia, where he had been vacationing. But there can be no doubt that the bottom line to this ruling is that government agents can torture or procure it with impunity and immunity. To deny relief to someone under the facts outlined above is a grave injustice, particularly when the justification requires gymnastics worthy of an Olympic Gold Medal. Judge Calabresi suggests that we ask ourselves in calmer times: "How could such able and worthy judges have done that?"

I agree with the question but not its postponement. It is in times of risk and fear that we should be most zealous in protecting rights and assuring that the government and its agents do not invade those rights in the name of national security.

Note: A similar suit was instituted today by an American citizen, Amir Meshal

 

Comments

[meldah]

If country cannot be counted on to obey its own laws and if International Law is easier to neglect than enforce, that will lead inextricably to chaos of the sort only to be found only in the nightmares of writers of science fiction.

This case was dismissed against all reason: not only did they ignore the 1992 Torture Victims Protection Act, International Law, Secretary of State Condoleezza Rice admission the U.S. government mishandled the case and finally the Canadian Governments final determination that found “ categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada."
The ‘state secrets privilege is becoming a tired blanket under which gross injustices are perpetrated and becoming all too sociality acceptable. Other courts, in other times, in foreign lands, have used similar arguments to commit crimes. As I recall, the United States lead the charge against those illegal acts, and claimed that it would be impossible to occur in America. The McCarthy era taught us nothing.

If fear and hard times can turn the heads of otherwise good men and women, if blasé is the only word by which to describe our generation, then I fear, do fear for us all.

Judge Sarokin,, does Maher Arar have a case for the U.N. since the U.S. is ignoring international law?

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[Judge H. Lee Sarokin - Huffpost Blogger]

meldah - I completely agree with your comments. As to whether or not Arar can go elsewhere for relief, I am not certain. There are international courts, but I am unsure whether they entertain such claims and whether U.S. agents would be subject to their jurisdiction.

[emmajo]

When we become who we fear what exactly have we protected?

[Judge H. Lee Sarokin - Huffpost Blogger]

Mason - Some commentators have compared it to Dred Scott.

[Neal Jansons]

Most of them, apparently. In fact, when has "state secrets" and "national security" turned out NOT to be a scam to cover up nastiness?

[Judge H. Lee Sarokin - Huffpost Blogger]

Neal -I suppose there are many legitimate uses of state secrets and national security to conceal information, but I fear that it is used too often to conceal wrongdoing.

[Neal Jansons]

The paradox there is how would we ever know? They're, by definition, secret. The only time we find out anything is because some whistle got blown somewhere, and that is always for bad things.

I just don't understand how we got to this point. If we are supposed to be a nation of citizens, participating in a democratic republic, how is that supposed to occur without a combination of education and transparency? Apparently all the "regular" citizens are good for is to work, get scared into voting every now and then, and paying taxes. The rest of the time they want us in the dark, quiet, and compliant.

[sparafucilli]

And how has this come about? Look in part as follows to George Washington's farewell address:

"The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty."

Despotism has arisen indeed when even the courts have been compromised and the public liberty they have been assigned to protect lies shattered by those very same judicial hands.

[Judge H. Lee Sarokin - Huffpost Blogger]

sparafucille- Great quote. I agree that it is a sad day when the courts do not serve to limit the misconduct of the executive branch. Saying that they have to obtain permission from Congress to allow suits for torture by government agents is disheartening.

[meldah]

sparafucilli, It was a real pleasure reading your comment. Thank you!
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[unitron]

"WHAT FOUL DEEDS LIE BENEATH THE CLOAK OF NATIONAL SECURITY?"

Let's save some time and go for the much shorter list of the ones that don't.

[Mason]

I agree with Your Honor.

This atrocious decision is a disgrace. It may not be as bad as the US Supreme Court's Dredd Scott decision, but it's not far behind.