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Court Acted Sua Sponte, Deciding to Revisit June Decision Against Arar Before Being Asked
August 14, 2008, New York – The Second Circuit Court of Appeals issued an extremely rare order that the case of Canadian rendition victim Maher Arar would be heard en banc by all of the active judges on the Second Circuit on December 9, 2008. For the court to issue the order sua sponte, that is, of its own accord without either party submitting papers requesting a rehearing, is even more rare.
“We are very encouraged,” said CCR attorney Maria LaHood. “For the court to take such extraordinary action on its own indicates the importance the judges place on the case and means that Maher may finally see justice in this country. As the dissenting judge noted, the majority’s opinion gave federal officials the license to ‘violate constitutional rights with virtual impunity.’ Now the court has the opportunity to uphold the law and hold accountable the U.S. officials who sent Maher to be tortured.”
The Center for Constitutional Rights (CCR) case seeks to hold accountable the high level administration officials responsible for sending Maher Arar to be tortured and interrogated in Syria for a year – a practice known as an extraordinary rendition. Based on faulty information, Mr. Arar was detained as he was changing planes at JFK airport on his way home to Canada from a family vacation. A Canadian citizen, he pled with officials not to send him to Syria, the country of his birth, because he would be tortured there.
After nearly two weeks in New York, with access to counsel and the court obstructed, he was flown to Jordan on a chartered jet in the middle of the night and taken by land to Syria. Mr. Arar was tortured, interrogated and kept in a 3x6x7-foot underground cell for a year until the Syrian government, finding no connections to terrorism, released him home to Canada.
CCR originally filed the case in the Eastern District of New York in January 2004; the first ruling, in February 2006, dismissed the case on the grounds that allowing it to proceed would harm national security and foreign relations. CCR appealed the decision, arguing before a three-judge panel in November 2007, but the Court of Appeals issued a 2-1 decision in June 2008 along similar lines.
In June 2008, the majority on the three-judge panel ruled that Mr. Arar’s constitutional claims for being sent to Syria to be tortured and arbitrarily detained could not be redressed because Congress already provided a remedy by permitting foreign citizens to petition a court to review their removal orders, even though in this case the U.S. officials prevented Mr. Arar from doing so. The court also found these claims could not be heard because they would interfere with U.S. foreign relations and impede national security.
Regarding Mr. Arar’s claim that the U.S. officials obstructed his access to his counsel and the courts, the majority found that foreigners who have not been formally admitted into the U.S. have no right to be assisted by their own counsel. They further ruled that it was not clear from Mr. Arar’s complaint that had he been able to go to court, he would have sought relief under the Convention Against Torture (CAT), which precludes the U.S. from sending people to countries where there are substantial grounds to believe they will be tortured. This despite the fact that Mr. Arar’s complaint alleges that he repeatedly expressed his fear to the U.S. officials that he would be tortured if sent to Syria, and that the officials violated CAT in sending him there.
The court also rejected Mr. Arar’s Torture Victim Protection Act claim that U.S. officials conspired with Syrian officials to subject him to torture, ruling that the U.S. officials could not be held responsible unless they were acting under the influence of the Syrian officials. However, 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 conspire in torture.
The same Court of Appeals ruled in CCR’s landmark 1980 case Filártiga v. Peña-Irala that a Paraguayan official could be held liable in U.S. court for torture of a Paraguayan citizen in Paraguay, yet the June 2008 majority opinion found that U.S. officials who send someone to another country to be tortured cannot be held liable.
In stark contrast to the response of the U.S. government, the Canadian government conducted an exhaustive public inquiry, found that Mr. Arar had no connection to terrorism, and, in January 2007, apologized to him for its role in his ordeal and awarded him $10 million compensation. For more information on Maher Arar’s case, visit CCR's Arar v. Ashcroft case page.
The Center for Constitutional Rights represents other victims of the Bush administration’s unlawful practices, 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. For more information on CCR’s work on illegal detention, torture and abuse at Guantánamo Bay, visit the CCR website.
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.