June 14, 2010, New York – Today, the United States Supreme Court decided not to hear 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. The decision of the U.S. Court of Appeals for the Second Circuit, which the Supreme Court declined to review, was decided on the legal ground that Congress, not the courts, must authorize a remedy. As a result, the substance of Mr. Arar’s case, first filed in January 2004, has never been heard and now never will be.
Mr. Arar said, “Today's decision eliminates my last bit of hope in the judicial system of the United States. When it comes to ‘national security’ matters the judicial system has willingly abandoned its sacred role of ensuring that no one is above the law. My case and other cases brought by human beings who were tortured have been thrown out by U.S. courts based on dubious government claims. Unless the American people stand up for justice they will soon see their hard-won civil liberties taken away from them as well.”
Last month, the Obama administration chose to weigh in on Mr. Arar’s case for the first time. The Obama administration could have settled the case, recognizing the wrongs done to Mr. Arar as Canada has done. (Canada conducted a full investigation, admitting wrongdoing, exonerated Mr. Arar, apologized, and paid him $10 million in damages for their part in his injuries.) Yet the Obama administration 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.
Said CCR cooperating attorney David Cole, "The courts have regrettably refused to right the egregious wrong done to Maher Arar. But the courts have never questioned that a wrong was done. They have simply said that it is up to the political branches to fashion a remedy. We are deeply disappointed that the courts have shirked their responsibility. But this decision only underscores the moral responsibility of those to whom the courts deferred – President Obama and Congress – to do the right thing and redress Arar's injuries."
Lower courts concluded that Mr. Arar’s suit raised too many sensitive foreign policy and secrecy issues to allow his case to proceed, and that therefore it was the role of the political branches to authorize a remedy.
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 revolved 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” when they conspired with Syria to have Mr. Arar tortured there, and whether Mr. Arar has a right to pursue his claims under the Fifth Amendment and the Torture Victim Protection Act.
Said CCR Senior Attorney Maria LaHood, “The Supreme Court has effectively condoned torture by denying Maher’s right to seek a remedy. It is now up to President Obama and Congress to apologize to Maher for what the Bush administration did to him, to make clear that our laws prohibiting torture apply to everyone, including federal officials, and to hold those officials accountable.”
For more on Mr. Arar’s case, including a timeline and links to videos, court papers and other documents, go to http://ccrjustice.org/ourcases/current-cases/arar-v.-ashcroft.
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.
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.”