Mahar Arar – arguably the world’s best-known victim of “extraordinary rendition” – went back to court last week, seeking to reverse a previous ruling barring him from suing the US Government for shipping him off to Syria, where he was jailed and tortured for close to a year.
The Syrian-born Canadian citizen was stopped by US authorities at New York’s John F. Kennedy International Airport in September 2002, as he returned from a vacation in North Africa enroute to his home in Canada. He was detained in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.
The US then flew him to his native Syria against his will.
His detention was based on information provided to the US by Canadian authorities, who alleged he was a terrorist who posed a threat to national security.
Following a year in a Syrian prison, he says he was tortured, forced to sign a coerced ‘confession’, and then released without charges and returned to Canada. A Canadian Government commission spent two years investigating the case, which involved the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP). The blue-ribbon body found no evidence that Arar was a terrorist or had any connection to terrorists. The head of the RCMP was forced to resign because of the incident. Arar received an official apology and a multimillion-dollar settlement from the Canadian government earlier this year
US officials confirmed that Arar “was placed on a terrorist lookout list based on information received from Canada", adding that the decision to remove Arar “was made by US government officials based on our own assessment of the security threat." The US declined further comment on the case and refused to cooperate with the Canadian inquiry.
Arar sought vindication through the US court system. In (month, year) he filed suit in the United States District Court for the Southern District of New York against former Attorney General John Ashcroft, FBI Director Robert Mueller, and then-Secretary of Homeland Security, Tom Ridge, as well as numerous US immigration officials.
Arar asked for a jury trial, compensatory and punitive damages, and a declaration that the actions of the US Government were illegal and violated Arar's constitutional, civil, and international human rights.
The suit charged that the government violated Arar's constitutional right to due process; his right to choose a country of removal other than one in which he would be tortured, as guaranteed under the Torture Victims Protection Act; and his rights under international law.
It also alleged that Mr. Arar's Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the US. It claimed the US Government also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.
Arar also filed a claim under the Torture Victims Protection Act, adopted by the US Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in US Court.
But the US Government invoked the so-called ‘state secrets” privilege, claiming that public disclosure of the documents relating to the case would cause ”exceptionally grave or serious damage to the intelligence, foreign policy, and national security interests of the US, including defense against transnational terrorism.” The District Court agreed and dismissed the case.
Once a little-used legal maneuver, the “state secrets privilege” has been used increasingly during the Bush Administration, and has prevented litigation of a number of high profile terror-related and whistleblower cases.
But last week, Arar appealed the District Court decision to a higher court, the US Second Circuit Court of Appeals, which heard oral argument in the case on November 9. One member of the three-judge panel reviewing the case, Robert D. Sack, called the process of rendition “outsourcing.” The appeal court has not yet reached a decision in the case. Should it affirm the lower court decision, it is not yet clear whether Arar will seek final redress in the US Supreme Court.
A Justice Department lawyer argued before the Appeals Court that the US Constitution did not apply to noncitizens who suffered injury abroad.
Arar’s lawyer, David Cole of the Georgetown University Law Center, appearing on behalf of The Center for Consitutional Rights, underlined the importance of the current appeal. He told IPS, “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.”