Maher Arar is not available to comment in person, but is issuing the following statement: “The Court’s 2-1 ruling is outrageous. It basically legitimizes what was done to me, and permits the government to use immigration law as a disguise to send people to torture without regard for due process.”
The majority ruled that Mr. Arar’s constitutional claims that it was a violation of due process to lock him up for two weeks, obstruct his access to a lawyer and a court, and then to ship him to Syria for the purpose of having him interrogated under torture could not be heard in federal court for two reasons. It concluded that adjudicating the claims would interfere with sensitive matters of foreign policy and national security, and that Arar, as a foreigner who had not been formally admitted to the U.S., had no constitutional due process rights with respect to the government's interference with his access to a lawyer and the decision to send him to Syria to be tortured.
The majority also rejected Mr. Arar’s claim that U.S. officials are liable under the Torture Victim Protection Act, for conspiring with Syria to subject Mr. 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 himself, but also to those who aid or abet in the torture. Arar alleged that U.S. officials aided and abetted in his torture at Syrian hands, but the majority ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority.
“We are deeply disappointed,” said Georgetown law professor and CCR Board Member David Cole, who argued the case for Mr. Arar. “The Supreme Court earlier this month held that the Constitution protects foreign nationals held as ‘enemy combatants’ at Guantanamo, yet the Second Circuit has ruled that a Canadian changing planes at JFK has no constitutional right to object to being spirited away to Syria to be tortured.”
In addition, the same Court of Appeals ruled in CCR’s landmark case Filártiga v. Peña-Irala in 1980 that a Paraguayan official could be held liable in U.S. court for torture of a Paraguayan citizen in Paraguay, yet it now finds that U.S. officials who send someone to another country to be tortured cannot be held liable.
CCR Senior Staff Attorney Maria LaHood said, “As the dissenting judge noted, the majority’s opinion gives federal officials the license to ‘violate constitutional rights with virtual impunity.’” She added, “It is the court’s duty to uphold the law, not rubberstamp the Administration’s violations of it.”
Mr. Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. The Bush administration labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.
In January 2004, just three months after he returned home to Canada from his ordeal, CCR filed a suit on Mr. Arar’s behalf against John Ashcroft and other U.S. officials, the first to challenge the government’s policy of “extraordinary rendition,” also known as “outsourcing torture.” In February 2006, Judge David Trager of the U.S. District Court for the Eastern District of New York dismissed the case, finding that national security and foreign policy considerations prevented him from holding the officials liable for carrying out an extraordinary rendition, even if such conduct violates our treaty obligations or customary international law.
Center for Constitutional Rights Volunteer Attorney David Cole argued before the Court of Appeals on November 9, 2007 that rendition victim Maher Arar’s case against U.S. officials should be reinstated.
The Canadian government, after an exhaustive public inquiry, also found that Mr. Arar had no connection to terrorism and, in January 2007, apologized to Mr. Arar for Canada’s role in his rendition and awarded him a multi-million-dollar settlement. The contrast between the two governments’ responses to their mistakes could not be more stark, say Mr. Arar’s attorneys. Both the Executive and Judicial branches of the United States government have barred inquiry and refused to hold anyone accountable for ruining the life of an innocent man.
While the Executive and Judicial branches have denied Mr. Arar justice, there has been some recent motion in Congress. Two recent hearings dealt with his case, and on October 18, 2007 Maher testified via video at a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture. During that hearing – the first time Mr. Arar testified before any U.S. governmental body – individual members of Congress publicly apologized to him, though the government still has not issued a formal apology. The next week, on October 24, Secretary of State Condoleezza Rice admitted during a House Foreign Affairs Committee Hearing that the U.S. government mishandled his case.
The Center for Constitutional Rights represents other victims of the Bush administration’s programs, from Iraqis tortured and abused at Abu Ghraib prison to Muslim and Arab men rounded up and abused in immigration sweeps in the U.S. in the aftermath of 9/11, to Guantanamo detainees in the recent Supreme Court case.
Joshua Sohn of DLA Piper US LLP is co-counsel in Mr. Arar’s case.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.