Second Circuit Rules Against Maher Arar in Kidnap-Torture Suit

The Second Circuit Court of Appeals has ruled against Maher Arar in his extraordinary rendition and torture lawsuit against the Government. Arar, a Canadian, was detained at JFK, flown to Syria where he was tortured for almost a year, before being returned to Canada. The Canadian government found that Mr. Arar had no connection to terrorism and apologized to him. It also awarded him a multi-million-dollar settlement for its role in the mess. Not our government. Georgetown law professor David Cole, who argued the case, which was brought by the Center for Constitutional Rights says:

“This decision says that U.S. officials can intentionally send a man to be tortured abroad, bar him from any access to the courts while doing so, and then avoid any legal accountability thereafter. It effectively places executive officials above the law, even when accused of a conscious conspiracy to torture. If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments.”

The opinion is available here. The dissent, which begins on p. 61 of the 184 page opinion, is well worth reading. All of our Maher Arar coverage is accessible here.

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    Reading the opinions put Justice Jackson's (none / 0) (#1)
    by Big Tent Democrat on Mon Nov 02, 2009 at 02:35:44 PM EST
    dissent in Korematsu in mind:

    [I]f we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.

    The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.

    In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

    Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." 1 A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.

    It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Hirabayashi v. United States, 320 U.S. 81, when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience.

    In that case we were urged to consider only the curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language will do. He said: "Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew." 320 U.S. at 101. "We decide only the issue as we have defined it -- we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power." 320 U.S. at 102. And again: "It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order." 320 U.S. at 105. (Italics supplied.) However, in spite of our limiting words we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.

    I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.

    Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

    My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner.

    My emphasis.

    I thought this was really outrageous (none / 0) (#7)
    by andgarden on Mon Nov 02, 2009 at 07:32:19 PM EST
    from Parker's dissent:

    Although Arar credibly alleges mistreatment in both the United States and Syria, the circumstances of his detention on American soil are summarily excluded from the majority's Bivens analysis. Instead, the Court concludes that Arar has not pleaded these allegations with the factual detail required by Bell Atlantic Corp. v. Twombly,

    In other words, the events prompting the Canadian government to pay millions in compensation are not "plausible" according to the majority.


    I'm wading through some comments (none / 0) (#2)
    by anniethena on Mon Nov 02, 2009 at 03:47:06 PM EST
    posted by fellow Canadians on the CBC report. I'm shocked at some of the responses - well, maybe not that shocked as I know from emails that anti-immigrant sentiments are on the rise.

    A couple of short ones to give you the idea of anti-Arar sentiment:

    what a pig.....like 10 million is not enough already.....thats enough cash to fund his terrorist group

    - presently has 10 agree, 13 disagree

    10 million for something the Syrians did. Wow!

    I was treated quite rudely in a Minneapolis bar the other day. That oughta be worth a few bucks.

    Now if I can only find the name of Mr. Arar's lawyer.

    - presently has 22 agree and 12 disagree

    Here's one long post(and I really can't cut it down as I think the whole thing is just too good) I'd call this the voice of reason:

    Maher Arar suffered torture in a Syrian prison. This was sanctioned by both the U.S. and Canada. Canada provided false intel to the U.S. who practiced extraordinary rendition, sending Arar to Syria to be "interrogated". Syria is known for using torture. Therefore our government and the U.S. government are guilty of violating Arar's rights. Neither of these governments is supposed to place people in a situation where they will be tortured. It doesn't matter if they did it directly or not. The fact that they sanctioned it and allowed it to happen makes them liable for damages.

    I am sick of hearing people say that Arar should just "get over it" and stop asking for money. It isn't only about the money! It's about holding our government and the U.S. government accountable for their actions! How else is he going to do this? What else will these governments respond to except lawsuits involving tens of millions of dollars?

    If you want to blame someone for the payout of taxpayer money to Arar, then blame the RCMP and CSIS who gave faulty intel to the U.S., resulting in Arar's deportation. Blame the governments who knowingly sent him to be tortured in Syria and left him there to rot until his wife went to the media and demanded they bring him back. Don't blame the victim for holding the organizations who have grievously injured him accountable for their actions! All too often people seem to want to blame the victim for what has been done to them. This is utter rubbish. Arar being Muslim does not give any government a carte blanche to ship him off to be tortured. No government should have the right to torture anyone, terrorist or not! It accomplishes absolutely nothing except degrade Canada's international reputation and increase the hatred others have for us.

    -this presently has 21 agree, 23 disagree

    I personally strongly agree with this last post - I had thought that most Canadians were outraged by the Arar case but didn't think the outrage would be directed at the victim.

    He was given an INS hearing (none / 0) (#3)
    by jimakaPPJ on Mon Nov 02, 2009 at 05:37:54 PM EST
    and it was plain that Canada didn't want him back. So he was sent to his second country of record, Syria.

    The one thing that puzzles me is why they would torture him. Surely no one is going to claim that they did so at our request. They are, after all, an enemy in waiting with no reason to help us.

    He is a Syrian by birth (none / 0) (#5)
    by jimakaPPJ on Mon Nov 02, 2009 at 06:29:34 PM EST
    If returning him to his birth country when his second country, Canada, wouldn't take him back is bad, tell me what we should have done?

    Honorary citizenship and a government pension??


    So what? (none / 0) (#8)
    by jimakaPPJ on Mon Nov 02, 2009 at 08:16:45 PM EST
    He was a Canadian citizen. They knew he was going to have a immigration hearing and didn't show up. That was our fault?

    They didn't want him and they knew that the only thing we could do was deport him to his native country, which we did.

    Our country. Always wrong, eh DA??


    ah, but he does it so................ (none / 0) (#10)
    by cpinva on Tue Nov 03, 2009 at 12:57:45 AM EST
    poorly, and with his usual admirable lack of factual basis.

    No need for your usual hyperbole, PPJ, this time.

    ok, i didn't actually think of that whole quote BTD, but i'm with you. you do have to appreciate the almost kafkaesque nature of the majority opinion:

    "we ignore all the facts, to conclude that, because we ignored all the facts, you have no case."

    i think we've truly run headlong through the looking glass, and arrived in wonderland.

    a 100 years from now (assuming we survive that long), when historians ponder the "age of bush", they'll shake their collective heads, at both the profound damage it wrought to the republic, and the fact that no one involved suffered any real inconvenience for it.

    But (none / 0) (#11)
    by DancingOpossum on Wed Nov 04, 2009 at 09:34:36 AM EST
    Don't evade Obama's responsibility by calling it "the age of Bush." All of these policies have been heartily embraced and even expanded by the current administration, and existed in some form or other in previous ones as well, Democratic and Republican. It's more like "the age of American imperialism" and the sad part is, it's gone on for a long time.