Extraordinary Rendition and No Apologies

Maher Arar, the poster boy for the U.S. Government's program of "extraordinary rendition" has again been denied his day in court and Congressional efforts to reign in the Bush administration's widespread use of national security as a defense appear to be floundering.

Late last month, a federal Court of Appeals ruled that the lawsuit brought by Arar against former Attorney General John Ashcroft, FBI director Robert Mueller, and other senior government officials, could not be heard. After government lawyers invoked the "state secrets" privilege, the court concluded that hearing Arar's claims would interfere with sensitive matters of foreign policy and national security.

Arar, a Syrian-born Canadian, was detained on suspicion of being a terrorist at New York's John F. Kennedy Airport in September 2002 while in transit to his home in Canada from a vacation in North Africa. Based on information provided to U.S. authorities by the Canadian Government, Arar was held incommunicado for two weeks and then flown to Syria where he was imprisoned, interrogated, and tortured for close to a year. The Bush administration labeled him a member of Al Qaeda.

When the government invokes the "state secrets" privilege, Federal courts have routinely dismissed lawsuits because they cannot proceed with the requested evidence. Most recently, it dismissed a suit over the National Security Agency's warrantless wiretapping program and the government's use of detention, interrogation and "extraordinary rendition."

In a rare move, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watchlist, ruling that the plaintiff, a local businessman, could find out whether his name is on the list.

In one of the Arar case's more bizarre twists, the court ruled that, as a foreigner who had not been formally admitted to the U.S., Arar had no constitutional due process rights. It was the U.S. Government that denied Arar admission to America.

Both the Syrian and Canadian governments said they had found that Arar had no connection to any criminal or terrorist organization or activity. After an intensive two-year investigation, the Canadians apologized to Arar for Canada's role in his rendition and awarded him a $10 million settlement.

The U.S. Government has stopped short of an apology to Arar, but at a recent Congressional hearing, Secretary of State Condoleezza Rice admitted that the U.S. had mishandled the case. "We do not think that this case was handled as it should have been," Ms. Rice told the House Foreign Affairs Committee. "We do absolutely not wish to transfer anyone to any place in which they might be tortured."

The court also rejected Arar's claim that U.S. officials are liable under the Torture Victim Protection Act, for conspiring with Syria to subject Arar to torture under color of foreign law. The TVPA creates liability for torture inflicted under color of foreign law, and courts have held that it applies not only to the torturer, but also to those who aid or abet the torture. Arar alleged that U.S. officials aided and abetted in his torture at Syrian hands, but the court ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority.

Arar's lawyer, Professor David Cole of the Georgetown University Law Center, appearing on behalf of The Center for Constitutional Rights (CCR), told us, "The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1100 page report, formally apologized, and awarded Mr. Arar $10 million in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy."

Maria LaHood, a senior CCR attorney, told us that her organization plans to either petition the appeals court for rehearing, or petition the Supreme Court to decide the case.

She added, "Giving short shrift to the facts, the majority opinion grants impunity to U.S. officials for sending Maher to Syria to be tortured and for preventing him from seeking relief in the courts. The Defendants have again blocked Maher's access to justice, this time with the Court's seal of approval."

Meanwhile, legislation to curb the government's use of the state secrets privilege appears to be stalled in Congress. In April, the Senate Judiciary Committee approved a bill that attempts to limit the government's use of the state secrets privilege. The bill was introduced by Sens. Edward Kennedy, Massachusetts Democrat, and Pennsylvania's Arlen Specter, the senior Republican on the Judiciary Committee.

It would create a uniform set of procedures for federal judges to employ when the government asserts the privilege. It would require the government to produce the evidence it says is protected for review by a federal judge in a classified setting. The government would be unable to rely on affidavits as it has in the past. It also would prevent judges from dismissing cases based on the privilege before plaintiffs have had a chance to engage in evidentiary discovery.

"It's long past time for Congress to address the state secrets privilege. Congress needs to ensure -- and the American people need to feel confident -- that the courts are adjudicating the privilege properly and not just giving the Executive a free pass. No one in America should be above the law. That's why this legislation is so critical," Sen. Kennedy said.

But the bill lacked bipartisan support on the committee. Only one Republican, Sen. Specter, voted to move it to the Senate floor for a vote. The Senate has many bills backed up in its queue and little time to even get them introduced, much less put to a vote. Moreover, its calendar has become increasingly dominated by elections in the fall.

Nonetheless, there has been other recent action in Congress. The Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties and the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight, held a joint oversight hearing in June 2007 on the report of the Department of Homeland Security Office of Inspector General on Arar's removal.

Arar testified at the hearing -- the first time he has appeared before any U.S. governmental body. His testimony was via video because he is still on the government's "no-fly" watchlist. During the hearing, individual members of Congress publicly apologized to him, though the government has not.

At the hearing, DHS Inspector General Richard G. Skinner announced that his office has reopened its investigation of the government's treatment of Arar. He told the hearing that he could not rule out the possibility that immigration officials violated a law that prohibits the American government from sending anyone to a country where he or she is likely to be tortured, especially since investigators were not allowed to question all participants.

Earlier, Skinner's testimony and a 50-page report found that U.S. immigration officials acted appropriately in determining that Arar could be expelled. But he said immigration authorities concluded that sending Arar to Syria "would more likely than not result in his torture" and relied on "ambiguous" assurances from Syria that he would not be. Skinner also questioned U.S. officials' minimal efforts to notify attorneys for Arar before a late-night hearing where he could argue his fear of torture.

Barring the unlikely chance that the Supremes will agree to hear this case, the Bushies will see it as merely another notch in the belt of injustice it has so successfully tied around the neck of the lady with the scales. It will likely fall the next president to start undoing Dubya's sterling legacy.

So the question is: Who do you think is more likely to take this issue on, starting with an official government apology -- Obama or McCain?

Comments

[Sundialsvc4]

Mr. Fisher, I would add to my previous post ... "for example, don't use the words 'extraordinary rendition.'"

Use the d WORD:

Torture.

That's what sent quite a few people at Nuremberg to the end of a noose. Waterboarding caused a number of Japanese officers to be shot. The http://en.wikipedia.org/wiki/Nuremberg_Principles are short-and-sweet... and ...

our own grandfathers wrote them, not sixty years ago!

My God, what has happened to this country?! "Ike was right."

Can this sort of thing cause the United States of America to cease to exist? Absolutely yes. In many ways, in the eyes of the world, it already has.

[Sundialsvc4]

Answer: none of the above. The on-the-record voting records of all three of these Senators, as shown by the Congressional Record at http://thomas.loc.gov, will prove that statement most-abundantly.

Isn't it strange, to anyone, that Congress is so gosh-darned "ineffectual" at "reining-in" an Administration that is so wantonly committing war-crimes?

It should not be strange... not if we grasp the rather obvious fact that, far from being "ineffectual," this Congress is co-conspiring. And it is doing it quite across "party lines."

"We, the People" are being handed a faux choice: "elect either one, we don't really care which, because they are the same ... and thus, the crimes will continue."

Mr. Fisher, we can't go on like this. None of us can. And the press does no one any service at all by wringing its own hands, repeating the same "ineffectiveness" spew, and avoiding the truth that all of us as a nation must now face. "Ike was right." Terribly right. But he was a five(!)-star General before becoming President, and obviously he was an expert in these matters.

Our Republic is built on a "checks and balances" system, and that system has been usurped. If we don't act as one, and tell the truth in our Press instead of what criminals feed us, we can literally lose our nation in less than 50 years. And that's not hyperbole.

[arvay]

We Americans need to realize that this is the kind of nightmare that await us if we don't reverse the police state that the Bush administration has been growing in our country.

It's not far-fetched to anticipate that these kinds of procedures, including the application of the so-secret we can't mention the evidence ruse, will be used to intimidate and crush US dissidents. Kennedy's legislation is crucial.

On thing that might help: a little financial pressure. Anti-war groups overseas should widely publicize this case as a reason tourists should pass by the US as a vacation destination. That would encourage the business lobby to pressure the government to change this policy.

[Sundialsvc4]

"Any civil officer SHALL BE Impeached."

It is the positive duty of the Congress ... to Impeach ... "any civil officer."

The Supreme Law of the Land uses the word "shall," spelling out the one and only explicit law enforcement duty that it contains, and unconditionally imposing that duty upon the Congress.

Nancy Pelosi's actions were not only Unconstitutional, but aided-and-abetted numerous High Crimes.

Two Articles of Impeachment have been introduced in the Congress already. I interpret the mandate set forth by the Constitution to mean that, in the face of this, all other legislative actions before the Congress must be suspended while the Articles are soberly considered... as the actions of any Grand Jury must be. "Is there probable cause to believe that the alleged crimes have been committed, such that a Court of Law might have the basis to render a verdict?" The answer, quite obviously, is Yes. Therefore the civil-officer must be Impeached, and bound-over on the basis of this indictment to a Court of Law.

Thus says the Supreme Law of the Land. Which is NOT a "blee-blee piece of paper."

[arvay]

I agree on impeachment, W is incredibly more deserving than Clinton. I don't think that will happen, though, because it will be seen as a partisan move in an election and might help elect McCain.

However, the Obama Justice department would be free to investigate and prosecute numerous crimes committed by W and his co-conspirators. The sight of a former US president in an orange jumpsuit would be an excellent invigorator for our democracy!

[BobaFett]

I can't wait for this nightmare of George to end on the morning of Nov. 5th.

I'm gonna go register in a swing state!

[egal]

Are you seriously asking this question?

If you are, I take it you haven't checked McCain's record. Whatever the chances of Obama taking on this issue, McCain will support refusing to admit any wrongdoing and continuing to act with such lack of subtlety and respect for rights and American values.

[chalcogens1]

Dear Mr. Fisher,

Thank you for a thought-provoking post. One of the things that makes this case so disconcerting is that the case that the State Secrets Privilege is based upon, is bogus. The Reynolds case launched this privilege, and there were no real secrets, only a desire to cover up military incompetence. Charlie Savage's book (Takeover, the return of the imperial presidency) covers this case quite well.

Chris