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Arar v. Ashcroft et al

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Synopsis

Arar v. Ashcroft is a federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged.

Status

On June 14, 2010, the Supreme Court denied Mr. Arar’s petition for certiorari to review the Second Circuit Court of Appeals' en banc decision dismissing his case, ending his case in U.S. courts.

Description

Arar v. Ashcroft is a lawsuit brought against the former Attorney General John Ashcroft, FBI Director Robert Mueller, and then Secretary of Homeland Security Tom Ridge, as well as numerous U.S. immigration officials. It charges the plaintiffs with violating Mr. 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.

The suit charges 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 U.S. Additionally, the Attorney General and INS officials who carried out his deportation 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. Further, Mr. Arar filed a claim under the Torture Victims Protection Act, adopted by the U.S. Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in U.S. Court. Mr. Arar's claim under the Act against Ashcroft and the INS directors is based upon their complicity in bringing about the torture he suffered. The case was filed in the United States District Court for the Southern District of New York.

The plaintiff, Maher Arar, a Syrian-born, Canadian citizen was detained during a layover at J.F.K. Airport in September 2002 on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer. The Bush administration labeled him a member of Al Qaeda, and rendered him, not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture. The plaintiff seeks a jury trial, compensatory and punitive damages, and a declaration that the actions of Defendants, their agents, and their employees, are illegal and violate Mr. Arar’s constitutional, civil, and international human rights.

Maher Arar was rendered to Syria where he was interrogated and tortured without charge, and forced to falsely confess attending a training camp in Afghanistan. After nearly a year of confinement, Syrian authorities released Mr. Arar, publicly stating that they had found no connection to any criminal or terrorist organization or activity. Upon his return to Canada, Mr. Arar was never charged with any crime; nor has he been charged with any crime by the United States. As a signatory of the International Convention against Torture, the U.S. has an obligation to avoid sending detainees to a nation that regularly practices torture against prisoners.

Maher Arar: JFK to Syriam: No More Secrets

 
 
 
 
 
 
Maher Arar Speaks About His Rendition and Torture

 

 

New York Times logo Click this link to see the cumulative Maher Arar coverage at The New York Times.

 

CPSAN video playerThe December 9, 2008 en banc rehearing, is available via streaming video at C-SPAN's website; use this link (or click on the video player image here) to visit the C-SPAN website in order to watch the video.

 

NPR logoOn December 9th for the show, Morning Edition, Arar told NPR's Renee Montagne that he hopes his case will highlight human rights abuses in situations like his. He also described to her his rendition — and the months he spent in a Syrian jail, as well as the influence of his wife's efforts. Play audio interview with this link.

NPR logoDina Temple-Raston covers the Court of Appeals argument for NPR's show, All Things Considered. "Arar wants to sue the U.S. government for violating his constitutional right to due process — something he has not been permitted to do thus far because the Bush administration has said to do so would imperil national security." CCR Staff Attourney Maria LaHood is interviewed in the piece. Play audio news piece with this link.

Senior Staff Attorney Maria LaHood Responds to the Court of Appeals for the Second Circuit's Decision (November 3, 2009)

 

Timeline

On January 22, 2004, the Center for Constitutional Rights filed suit, on behalf of Mr. Arar, in the U.S. District Court for the Eastern District of New York against Attorney General John Ashcroft, FBI Director Robert Mueller, and Homeland Security Tom Ridge, as well as numerous directors of the U.S. immigration officials.

On January 18, 2005, the U.S. government moved to dismiss the case by asserting the “state secrets” privilege, claiming that the reason Mr. Arar was deemed a member of Al Qaeda and sent to Syria, instead of Canada, are “state secrets.” The government argued that litigating the would disclose these state secrets, revealing intelligence gathering methods, and harming national security and foreign relations.

On March 15, 2005 CCR filed a response, arguing that Mr. Arar could prove his case without privileged information, and even if such information were necessary to establish a defense, procedural safeguards could protect such information.

On February 16, 2006, Judge David Trager of the U.S. District Court for the Eastern District of New York dismissed Mr. Arar's claims against U.S. government officials for "rendering" him to Syria to be tortured and arbitrarily detained. Judge Trager found 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.
Although the district court also dismissed Mr. Arar's claim for the officials' violation of his due process rights while detained in the U.S., the order permitted Mr. Arar to amend his complaint to better allege how he was grossly physically abused in the U.S., how he was injured by being denied access to counsel, and to name defendants who were personally involved.

On April 3, 2006, CCR and co-counsel DLA Piper US LLP filed a Motion requesting that they be permitted to immediately appeal his "rendition" claims to the Second Circuit without waiting for resolution of his U.S. detention claim.

On July, 5, 2006, Judge Trager denied this Rule 54(b) motion.

On July 14, 2006, Mr. Arar filed a notice of intent not to replead, but to instead stand on the allegations of his complaint, and therefore appeal the entire February 16th order.

On August 17, 2006, Final judgment was accordingly entered.

On September 12, 2006, Mr. Arar's Notice of Appeal was filed in the Second Circuit.

On September 18, 2006, the Canadian Commission of Inquiry established by the Canadian Government to Investigate the Actions of Canadian Officials in Relation to Mr. Arar issued its report. The Commissioner concluded "categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada." Canadian investigators, with U.S. cooperation, exhaustively investigated Mr. Arar, and found no information that could implicate Mr. Arar in terrorist activities. The Commission also found no evidence that Canadian officials acquiesced in the U.S. decision to detain and remove Mr. Arar to Syria, but that it is very likely that the U.S. relied on inaccurate and unfair information about Mr. Arar that was provided by Canadian officials.

On December 12, 2006, CCR attorneys filed an appeal in the Second Circuit on behalf of Mr. Arar.

On April 19, 2007, Mr. Arar’s attorneys submitted a reply brief to the Second Circuit Court of Appeals. Mr. Arar's brief is submitted in reply to seven briefs submitted by the defendants that ask the Court of Appeals not to allow Mr. Arar's case to proceed.

On October 18, 2007, Maher testified via video-link before a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture. During the hearing – the first time Maher has 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 the case of Maher Arar.

On November 9, 2007, the appeal was argued before the Second Circuit Court of Appeals.

On June 5, 2008, the Office of the Inspector General (OIG) of the Department of Homeland Security issued its long awaited, albeit heavily redacted, Report on the actions of U.S. immigration officials surrounding the decision to send Maher Arar to Syria. The same day, Inspector General (IG) Richard Skinner testified before Subcommittees of the House Foreign Affairs and Judiciary Committees to answer questions about the Report. The Report found that the "operations order" to remove Maher was prepared and flight clearances were sent to Rome and Amman before Maher's Convention Against Torture (CAT) interview or CAT assessment took place, and before INS received so-called "assurances" to protect him. In fact, the INS determined that if Maher were sent to Syria he would likely be tortured, but that decision was later overridden. Moreover, the OIG found that the "assurances" were ambiguous, and that their validity was apparently not examined. The IG testified that he could not get a satisfactory answer as to why Maher was sent to Syria, and he could not rule out the possibility that it was for the purpose of interrogation under unlawful conditions.

On June 30, 2008, the majority opinion found that adjudicating Mr. Arar’s claims would interfere with national security and foreign policy, a decision that the dissenting judge found gives federal officials the license to “violate constitutional rights with virtual impunity.”  The majority also found that, as a foreigner who had not been formally admitted to the U.S., Mr. Arar had no constitutional due process rights with respect to the government’s interference with his access to a lawyer. The Court dismissed Mr. Arar’s TVPA claims by finding that the federal officials would have had to have acted under the control of the Syrian officials to be held liable.  

On July 10, 2008, members of Congress wrote to Attorney General Michael Mukasey requesting that he appoint an outside special counsel to investigate and prosecute any crimes committed by United States officials in sending Maher to Syria.  On July 23rd, Mr. Mukasey testified before Congress that DOJ would not be appointing special counsel “at this time.” 

On August 12, 2008, the Second Circuit sua sponte issued an order that the case would be reheard en banc.  Oral argument was heard on December 9, 2008, and can be viewed at C-SPAN.

On November 2, 2009, the Second Circuit Court of Appeals en banc affirmed the district court’s decision dismissing the case.

On February 1, 2010, Maher Arar petitioned the Supreme Court for review of the Second Circuit Court of Appeals' en banc decision dismissing his case.

On May 12, 2010, Defendants filed their brief in opposition to Maher Arar's Petition for Certiorari.

On May 24, 2010, reply brief for petitioner was filed.

On June 14, 2010, the Supreme Court denied Mr. Arar’s petition for certiorari.

Attached Files