William Fisher Inter Press Service 11/14/07

Maher Arar, arguably the world’s best-known victim of “extraordinary rendition”, went back to court last week to reverse a previous ruling barring him from suing the U.S. government for shipping him off to Syria, where he was jailed and tortured for close to a year.

The Syrian-born Canadian citizen was stopped by U.S. authorities at New York’s John F. Kennedy International Airport in September 2002, as he returned from a vacation in North Africa en route to his home in Canada. He was detained in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.

The U.S. then flew him to his native Syria against his will.

His detention was based on information provided to the U.S. by Canadian authorities, who alleged he was a terrorist who posed a threat to national security.

Following a year in a Syrian prison, he says he was tortured, forced to sign a coerced “confession”, and then released without charges and returned to Canada. A Canadian government commission spent two years investigating the case, which involved the Canadian Security Intelligence Service and the Royal Canadian Mounted Police (RCMP).

The blue-ribbon body found no evidence that Arar was a terrorist or had any connection to terrorists. The head of the RCMP was forced to resign because of the incident. Arar received an official apology and a multi-million-dollar settlement from the Canadian government earlier this year.

Arar’s lawyer, David Cole of the Georgetown University Law Centre, underlined the importance of the current appeal. He told IPS, “The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1,100-page report, formally apologised, and awarded Mr. Arar 10 million dollars in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy.”

Cole is working with the Centre for Constitutional Rights, an advocacy group, in the Arar case.

U.S. officials had confirmed that Arar “was placed on a terrorist lookout list based on information received from Canada”, adding that the decision to remove Arar was made “based on our own assessment of the security threat.” The U.S. declined further comment on the case and refused to cooperate with the Canadian inquiry.

Arar sought vindication through the U.S. court system. In January 2004, he filed suit in the U.S. District Court for the Southern District of New York against former Attorney General John Ashcroft, FBI Director Robert Mueller, and then-Secretary of Homeland Security, Tom Ridge, as well as numerous U.S. immigration officials.

Arar asked for a jury trial, compensatory and punitive damages, and a declaration that the actions of the U.S. government were illegal and violated Arar’s constitutional, civil, and international human rights.

The suit charged that the government violated Arar’s constitutional right to due process; his right to choose a country of removal other than one in which he would be tortured, as guaranteed under the Torture Victims Protection Act; and his rights under international law.

It also alleged that Arar’s Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the U.S. It claimed the U.S. government also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.

Arar also filed a claim under the Torture Victims Protection Act, adopted by the U.S. Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in U.S. court.

But the U.S. Government invoked the so-called “state secrets” privilege, claiming that public disclosure of the documents relating to the case would cause “exceptionally grave or serious damage to the intelligence, foreign policy, and national security interests of the U.S., including defense against transnational terrorism.” The District Court agreed and dismissed the case.

Once a little-used legal manoeuvre, the “state secrets privilege” has been used increasingly during the George W. Bush administration, and has prevented litigation of a number of high profile terror-related and whistleblower cases.

But last week, Arar appealed the District Court decision to a higher court, the U.S. Second Circuit Court of Appeals, which heard oral argument in the case on Nov. 9. One member of the three-judge panel reviewing the case, Robert D. Sack, called the process of rendition “outsourcing”. The appeal court has not yet reached a decision in the case. Should it affirm the lower court decision, it is not yet clear whether Arar will seek final redress in the U.S. Supreme Court.

A Justice Department lawyer argued before the Appeals Court that the U.S. Constitution did not apply to non-citizens who suffered injury abroad.

“In this case, federal officials conspired to send an innocent man to Syria to be tortured and arbitrarily detained, and then did everything within their power to ensure that he could not get to a court to stop them from effectuating their conspiracy,” Cole told IPS. “They lied to him about his lawyer, and lied to his lawyer about him, while spiriting him off to Syria in a chartered jet.”

“Now the government maintains that he has no remedy whatsoever in a court of law, and has the temerity to contend that his only avenue for judicial review was the very one they blocked him from pursuing while he was in their custody,” he said.

At a U.S. Congressional hearing last month, Secretary of State Condoleezza Rice acknowledged that the U.S. had mishandled the case, but stopped short of an apology.

“We do not think that this case was handled as it should have been,” Rice told the House Foreign Affairs Committee. “We do absolutely not wish to transfer anyone to any place in which they might be tortured.”

Arar was taken to Syria under a U.S. government programme that transports detainees to countries where prison authorities are known to practice torture. The programme, which was started during the Bill Clinton administration (1993-2001), has been used extensively by the U.S. Central Intelligence Agency (CIA), which uses leased Gulfstream business jets for its flights. One of the owners of these leased airplanes, a subsidiary of the Boeing Company, is currently being sued for facilitating renditions.

The U.S. government has acknowledged that it uses the rendition practice, but insists that countries to which prisoners are taken provide “diplomatic assurance” that they will be treated humanely. It is generally thought that the rendering practice may be responsible for some of the “ghost detainees” from Iraq and Afghanistan — U.S. prisoners whose identities have been hidden from the International Committee of the Red Cross.

Arar came to Canada in 1987. After earning bachelor’s and master’s degrees in computer engineering, he worked in Ottawa as a telecommunications engineer. He now lives in British Columbia.