This week the Supreme Court refused without comment to hear the appeal of Maher Arar, a Canadian-Syrian citizen detained while changing planes in JFK, held in solitary confinement in the US before being shipped by our government to Syria, where he would be tortured repeatedly. Syria, which has been publicly hostile to US interests for years, was doing the dirty work for our intelligence forces in cases like this, using brutal interrogation methods that we outsourced. After a year, Arar was released to Canada. He had no ties to terrorists, no connection to unlawful activity - except those extra-legal actions used against him.
The Canadian government, which was complicit in this process, has apologized to Arar and awarded him C$10.5 million in damages. A thorough, public investigation of the Canadian forces' role in the US rendition of Arar exonerated him of any links to terrorism. It's completely different in the United States. The Bush administration did not surprise anyone with its stonewalling tactics. Mistakes were made, Condoleezza Rice almost managed to say, but only in regard to our communications with Canada. One expected a better performance from the Obama team, and instead, we get more of the same. Acting Solicitor General Neal Katyal urged the Supreme Court not to take the case because to do so would require an evaluation of our past practices and the motives behind them. Of course it would; that's what the courts are for. When there is injustice perpetuated by the government, we should understand why and how it occurred. Otherwise, it is all too likely to happen again and again.
I've just read Ruth Harris' excellent new book Dreyfus: Politics, Emotion and the Scandal of the Century. In the fall of 1894 a cleaning lady in the German Embassy in Paris found a discarded piece of paper on which military secrets had been written. Four months after the document's discovery, the convicted Captain Alfred Dreyfus was put through the "ceremony of degradation" in the courtyard of the Ecole Militaire. Dreyfus was a Jew, and the crowds around him cried out for blood as his epaulettes were torn off his uniform and his sword was broken in two. He was sent off to solitary confinement on Devil's Island in a specially constructed cell from which he was unable even to glimpse the seas that surrounded him. Given the conditions there, he was not expected to survive long.
Dreyfus was framed, and the frame was weak. The real author of the notes on the torn paper was discovered, but the military closed ranks around its initial decision. Officers forged documents, politicians knowingly lied, and agitators inspired street disturbances. Claims for his innocence, many felt, would undermine the nation. But the claims were made, most famously by the novelist Emile Zola in J'Accuse. Citizens rallied to the idea of a Republic based in law and reason, not blood and soil, and they held those in authority responsible for this violation of an innocent man's rights. Eventually, Dreyfus would be pardoned, though the army still refused to reverse its verdict.
Reading about the Dreyfus Affair brought me back to 19th century French history. Reading about the Arar Affair reminds me that we still need to call our government to account when it fails to observe basic principles of due process in the name of national unity and security. We have grown to expect the Supreme Court to abdicate its responsibility to protect the rule law when the specter of national security is conjured. Must we be resigned to the Obama administration's complicity with cover-up? The failure to give Maher Arar his day in court is another shameful episode of how our highest court and the current administration continue to protect the abusers of human rights and of the rule of law who ran amok in the Bush years.