May 13, 2010, New York – Late yesterday, the Obama Department of Justice chose to weigh in for the first time on the Center for Constitutional Rights (CCR) case on behalf of Canadian citizen Maher Arar against U.S. officials for their role in sending him to Syria to be tortured and detained for a year.
Lower courts concluded that Mr. Arar’s suit raised too many sensitive foreign policy and secrecy issues to allow his case to proceed. If the Court of Appeals decision is allowed to stand, say rights groups, the federal officials involved will remain free of any civil accountability for what they did to an innocent man.
The Obama Administration has opposed Mr. Arar’s petition for certiorari, arguing that his case was properly dismissed, and that the Supreme Court should not consider it. The Obama administration could have settled the case, recognizing the wrongs done to Mr. Arar – as Canada itself has done. Yet it chose to come to the defense of Bush administration officials, arguing that even if they conspired to send Maher Arar to torture, they should not be held accountable by the judiciary.
CCR attorneys say the Supreme Court should hear the case because the Court of Appeals’ decision not only contradicts other Supreme Court decisions but also raises issues of national importance by failing to hold federal officials accountable for violating Mr. Arar’s constitutional rights and preventing him from going to court to stop his removal to torture, a right explicitly provided by Congress.
Said Georgetown law professor and CCR cooperating attorney David Cole, “The Bush administration sent an innocent man to be tortured in Syria, and blocked his every opportunity to seek judicial protection. Now the Obama administration, instead of acknowledging the wrongs that were done, has continued its predecessor’s claim that there ought not be any accountability. We are deeply disappointed, and hope that the Supreme Court will step in and provide justice where the other branches have utterly failed to do so.”
Mr. Arar alleges that the U.S. officials named in the suit conspired with Syrian officials to have him tortured in Syria, delivered Mr. Arar to his torturers, provided them with a dossier on him and questions to ask him, and obtained the answers tortured out of him. The legal arguments in the case revolve around whether U.S. officials can be sued for damages if that is the only remedy available to the victim, whether the officials acted “under color of foreign law” with Syria, and whether Mr. Arar has a right to pursue his claims under the Torture Victim Protection Act, among others.
Said CCR Senior Attorney Maria LaHood, “The Obama administration did not have to support Bush administration officials in opposing Maher’s quest for justice in the courts. But instead of apologizing to Maher and righting the wrongs of its predecessors, the Obama administration has chosen to hold onto the unbridled power it has been granted and obstruct accountability for torture. That is certainly not ‘change.’”
Maher Arar is not available to comment.
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.”
The Canadian government, after an exhaustive public inquiry, 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.
Two Congressional hearings in October 2007 dealt with his case. On October 18, 2007 Mr. Arar 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 Court of Appeals case was heard a second time in December 2008 before twelve Second Circuit judges after a rare decision in August 2008 to rehear the case sua sponte, that is, of their own accord before Mr. Arar had even sought rehearing. On November 2, 2009, the Second Circuit Court of Appeals en banc affirmed the district court’s decision dismissing the case.
In a strongly worded dissent, Judge Guido Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”
For more information, including a timeline, links to videos, court papers and other documents, go to Mr. Arar's case page. Additional information may be found by entering the search term “Arar” above.
Katherine Gallagher of CCR, and Jules Lobel, professor at University of Pittsburgh Law School and CCR cooperating attorney, are co-counsel in Mr. Arar’s 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 Guantánamo detainees and their families.