The ultimate in denied-access to the courts
Wednesday, June 16, 2010
In a decision Monday that hasn’t picked up much traction in the media — infer what you will — the U.S. Supreme Court announced that it would not hear an appeal of Arar V. Ashcroft, in which Canadian Maher Arar tried to sue the U.S. government after he was detained in 2002 at an American airport — incorrectly suspected of terrorism ties — and then spirited away to Syria, where he was imprisoned and tortured for a year before being released.
It is a stunningly appalling case, defined by errors and hubris. The Royal Canadian Mounted Police had added Arar’s name to a list of people linked to terrorism. In this case, it thought erroneously that Arar was a friend of someone who might have had terrorism connections. When Arar landed at Kennedy airport in New York en route from Zurich to Montreal, his name popped up on a watch list and he was detained. As one of his lawyers wrote in a New York Review of Books blog on Tuesday, that’s when Arar’s life turned into a Kafka story:
US officials not only delivered Arar to Syrian security forces that they regularly accuse of systematic torture, but did everything in their power to ensure that Arar could not get to a court to challenge their actions while he was in their custody. When they finally permitted him to see a lawyer, on a Saturday ten days into his detention, the government hastily scheduled an extraordinary hearing for the next night—Sunday evening—and only “notified” Arar’s lawyer by leaving a voicemail on her office answering machine that Sunday afternoon. They then falsely told Arar that the lawyer had declined to participate, and questioned him for six hours, until 3 a.m. Monday.
When Arar’s lawyer retrieved the voicemail message later that Monday morning, she immediately called the Immigration and Naturalization Service. They told her falsely that Arar was being moved to New Jersey, and that she could contact him there the next day. In fact, he remained in New York until late that night, when he was put on a federally chartered jet and spirited out of the country. US officials never informed Arar’s lawyer that he had been deported, much less that he had been delivered to Syrian security forces.
Arar was tortured and questioned for a year by thugs wanting to know the same things his American interrogators did. Eventually, after it was clear he had no terrorism ties, the software engineer was released. The Canadians did the right thing. They investigated, found themselves at fault, the police commissioner responsible resigned and Arar was paid about $9.8 million.
The U.S. government’s response? It circled the wagons — first the Bush Administration, then the Obama Administration — and, without denying the essence of what happened, argued that Arar had no standing to sue. In essence, the Appeals Court of the Second District ruled that (in addition to some technical issues), American laws don’t exist to provide Arar with the kind of civil redress he sought.
“[I]f a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”
Wrapped in was the argument that there were national security and international interests at play that could be jeopardized by a trial, the “state secrets” defense. The Supreme Court refused to review the lower court ruling, which embraced the “state secrets” argument, which includes the U.S. v. Reynolds case from 1953. As Pulitzer Prize-winning journalist Barry Siegel* established in his Claim of Privilege, that court precedent was built on a lie, which doesn’t do much to instill faith in the government’s position now.
The New York Times blasted the Supreme Court yesterday for denying Arar access to the courts for redress for illegal actions by the U.S. government.
Amazingly, Mr. Obama’s acting solicitor general, Neal Katyal, urged the Supreme Court not to take the case, arguing in part that the court should not investigate the communications between the United States and other countries because it might damage diplomatic relations and affect national security. It might even raise questions, Mr. Katyal wrote, about “the motives and sincerity of the United States officials who concluded that petitioner could be removed to Syria.”
The government and the courts should indeed raise those questions in hopes of preventing these practices from ever recurring. The Canadian police continue to investigate the matter, even the actions of American officials, though their counterparts here are not even trying.
The Supreme Court’s action was disgraceful, but it had stepped away twice before from cases of torture victims. There is no excuse for the Obama administration’s conduct. It should demonstrate some moral authority by helping Canada’s investigation, apologizing to Mr. Arar and writing him a check.
Seems reasonable to me. But apparently not to the U.S. government. As Arar’s lawyer pointed out, it took the government more than a generation to acknowledge it denied legal rights to tens of thousands of Japanese-Americans by imprisoning them during World War II. Makes you wonder how long it will take the government to acknowledge its most-recent wave of rights-trampling. And to grant access to the courts by those who have been wronged.
* Siegel is a friend and former colleague at the Los Angeles Times.