Maher Arar can't sue U.S. for sending him to Syria to be tortured, says court

November 3, 1:20 PMCivil Liberties ExaminerJ.D. Tuccille

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Maher Arar with his child. (Photo: Center for
Constitutional Rights video)

Fretting that allowing a lawsuit to proceed could interfere with national security concerns and damage U.S. relations with other countries, a majority of judges on the United States Court of Appeals for the Second Circuit ruled that Maher Arar, a Syrian-Canadian, cannot sue the United States after American agents kidnapped him and sent him to Syria to be tortured. The decision suggests that the U.S. government policy of "extraordinary rendition" -- sending terrorism suspects overseas to face torture and interrogation -- may have formally become a safe haven for government officials who want to act beyond the reach of the Constitution or judicial review.

Maher Arar, a Canadian citizen born in Syria, was seized by U.S. officials in September 2002 while changing planes at New York's JFK airport en route from Zurich to Montreal. A telecommunications engineer educated at McGill University, Arar had been tentatively fingered by Canadian authorities as having distant connections to people involved in terrorism. That was enough for U.S. officials, who used the controversial "extraordinary rendition" program, which was implemented in the mid-1990s, to send Arar to Syria, where he was tortured and interrogated for ten months. As the ACLU puts it:

In the words of former CIA agent Robert Baer: "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear -- never to see them again -- you send them to Egypt."

After surviving extended beatings, deprivation and confinement to a three-foot-by-six-foot cell, Arar was eventually returned home. The Canadian government, seemingly motivated by equal parts embarrassment and horror, cleared him of any wrongdoing and awarded him nearly $10 million in compensation for the bad information its agents supplied that helped trigger his ordeal.

Arar also filed suit against the U.S. government for the crimes committed against him by its agents. But the U.S. government has repeatedly claimed that the people it sends to their fates at the hands of third-world secret policemen have no rights under U.S. law, and that the courts have no jurisdiction. By a 7-4 margin, the Second Circuit Court of Appeals agreed. For the majority, Chief Judge Dennis Jacobs wrote (PDF):

A suit seeking a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity and rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns.

He added:

Absent clear congressional authorization, the judicial review of extraordinary rendition would offend the separation of powers and inhibit this country’s foreign policy.

Jacobs also voiced concern that allowing the lawsuit to proceed would require revealing sensitive intelligence information -- a nod to the state secrets privilege the Bush and Obama administrations have invoked in an effort to put many government abuses beyond the reach of adjudication and remedy.

Ultimately, the Secoond Circuit decison in the case of Maher Arar not only denies justice to an abused man -- it arguably reduces the court system to rubber-stamp approval for any horror committed by the U.S. government, so long as the magic words "national security" are uttered along the way.

email J.D.: civilliberties (at) tuccille.com