Thursday, November 5, 2009

Arar Decision Cripples Torture Rendition Suits

Originally posted at Firedoglake

The Toronto Globe and Mail succinctly summed up the November 2 decision to dismiss the Maher Arar case, delivered en banc by the United States Court of Appeals for the Second Circuit:
Victims of extraordinary rendition have no recourse to sue Washington for torture suffered overseas, appellate court rules

"No recourse." Americans should ponder the meaning of this decision, which explicitly places state interests above individual rights, even when such rights include not being sent to a country that will torture that individual. That such torture was done at the behest of the U.S. government, with written questions given to the torturers, only exacerbates the issue.

Maher Arar was a Syrian-born Canadian who was seized by U.S. authorities at Kennedy International Airport (following upon a bogus RCMP tip), held for thirteen days, and then, with U.S. connivance, and despite the fact Canada said it would accept Mr. Arar, rendered via a CIA jet to Syria for interrogation and torture. He was released in 2003, and the Canadian government, which ascertained Mr. Arar had no connections with terrorism, apologized and forked over a multi-million dollar settlement.

Mr. Arar has tried to find justice in the U.S. courts, and released the following statement after the Second Circuit decision:
“After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch. Unfortunately, this recent decision and decisions taken on other similar cases, prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law.”

The core of the decision appears in this quote from the majority opinion (see full opinion at PDF link; the impressive dissent in the case begins on page 57 -- H/T Jeralyn at TalkLeft).
... we conclude that, when a case presents the intractable “special factors” apparent here, see supra at 36-37, it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress -- and not for us as judges -- to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition, see David Johnston, U.S. Says Rendition to Continue, but with More Oversight, N.Y. Times, Aug. 24, 2009, and not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.

That citation of the August 2009 New York Times article reporting on Obama's embrace of the earlier Bush/Cheney rendition policy (with no more notable "oversight" than anything the Bushites promised) does more to expose the pernicious effect of the current administration's policy on torture than any number of blog postings. The Second Circuit practically shouts it out: if this country wants to do anything about torture, don't look to the courts to rule on "matters that directly affect significant diplomatic and national security concerns," unless Congress directs it by specific, lawful mandate.

And, if anyone were looking for the Democratic-majority Congress to take up these kinds of issues -- if anyone were so credulous as that -- they need look no further than the recent Homeland Security appropriations bill, signed by President Obama, which infamously grants the Department of Defense the authority to continue suppressing photos of prisoner abuse.

Or, the intrepid seeker after Congressional spine could consider the text of recently passed Military Commissions Act of 2009, which, according to Human Rights Watch and other observers, "still departs in fundamental ways from the fair trial procedures used in US federal courts and courts martial." Somehow, many of the due process concerns about the commissions the Obama administration said it would correct never made it into the legislation. Well, it didn't stop the President from signing the bill.

Both the Arar decision and the new laws limiting the release of detainee abuse photos and due process rights in military commissions trials were foreshadowed by a federal court decision on October 16 in the ACLU's FOIA lawsuit, which determined "that the government can continue suppressing [Combatant Status Review Tribunal] transcripts in which former CIA prisoners now held at Guantánamo Bay describe abuse and torture suffered in CIA custody."

There's no doubt that if these varied legal decisions, new laws, and executive branch actions had taken place under the former administration, there would have been no end of dire warnings about the end of democracy, and the maleficent intentions of the ruling classes. But this is a Democratic administration and a Democratic Congress, and while the court decisions cannot themselves be placed upon a particular political party, it's worth remembering that torture victim Maher Arar was denied relief by a U.S. court citing, in part, the current administration's policy on rendition as a limiting factor in its deliberations.

Center for Constitutional Rights attorney and Georgetown law professor David Cole, who argued the case before the Second Circuit, summed up the situation coming out of Monday's ruling on the Arar case (bold emphasis added):
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 Arar decision did not escape the notice of Harper's Scott Horton, either, who concluded, soberly:
The Court that once affirmed that those who torture are the “enemies of all mankind” now tells us that U.S. government officials can torture without worry, because the security of our state might some day depend upon it.

The descent of the United States into a torturing country, all protestations by the president and his supporters aside, has accelerated to a vertiginous pace. Investigations into torture have all the substantiality of the smile of the Cheshire Cat, which, under time and duress, has morphed into the sinister grimace of one Richard Cheney. Interrogations policy continues to embrace a military manual condemned by major civil liberties and human rights organizations. And it all is barely enough to fit into the thimble of a news item in most media settings (although see this fine article on the Arar decision by Glenn Greenwald).

There's only one question left to ask, at this point: how low can we go?

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