Wednesday, November 04, 2009

Oh yeah, right, it's all Obama's fault, Part Zwei

Okay. We've got a case here that Obama had nothing to do with, at least not in any direct way. Both the conduct and the legal briefs involved came before he was president. It involves Maher Arar, the Syrian-born Canadian citizen who was seized at JFK Airport in 2002 while waiting to change planes as he returned home to Canada after a vacation. As I wrote when I first mentioned the case in November 2003, he
was snatched by INS agents, questioned, held incommunicado for nearly two weeks, and then deported - to Syria. All based on "evidence" from what Tom Ridge called the "international intelligence community," evidence which of course neither Arar nor anyone else working on his behalf has ever been allowed to see.

After a year in captivity in Syria during which time he was tortured and held in solitary confinement for 10 months, on October 5 he was released to Canada. No charges are filed and the Canadian government says it has no information that would have justified his detention.
When Canada launched an investigation into the incident, both Syria and the US refused to cooperate. In fact, Scott Horton recently wrote in Harper's,
[t]he United States tenaciously refused to acknowledge ever having made any mistakes - even after its own sources did so. It stonewalled Congressional probes and issued a travel ban to stop Arar from testifying before Congress.
However, the Canadian government proceeded with the inquest, as a result of which, Glenn Greenwald noted on Tuesday,
[i]n January, 2007, the Canadian Prime Minister publicly apologized to Arar for the role Canada played in these events, and the Canadian government paid him $9 million [US, $11.5 million Canadian,] in compensation. That was preceded by a full investigation by Canadian authorities and the public disclosure of a detailed report which concluded "categorically that there is no evidence to indicate that Mr. Arar has committed any offense or that his activities constituted a threat to the security of Canada."
Meanwhile, Arar, represented by the Center for Constitutional Rights, sued the US government over the policy of extraordinary rendition. That case, Arar v. Ashcroft, brings us to the point here. (The CCR's site about the case, including background, timeline, and links to filed briefs, is here.)

The government had - of course - insisted the case be dismissed on "national security" and "state secrets" grounds with which the courts had no business interfering. Government lawyers even insisted at one point that foreign citizens merely passing through American airports have almost no rights. That even if they never attempt or even intend to enter the US, they still have to show that they could do so if they desired. If they can't, they can be seized and have no constitutional or legal rights. They can be detained without charge, denied the right to consult a lawyer, and even refused necessities such as food and sleep. And that would remain true, the government insisted, even if they are imprisoned in the US - because, the government claimed, they still would not have "entered" the country.

On Monday, the full Second Circuit Court of Appeals agreed with the government's "national security" claims.
Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing[, Greenwald wrote]. ...

[But y]esterday, the Second Circuit - by a vote of 7-4 - agreed with the government and dismissed Arar's case in its entirety. It held that even if the government violated Arar's Constitutional rights as well as statutes banning participation in torture, he still has no right to sue for what was done to him. Why? Because "providing a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity of the rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns." In other words, government officials are free to do anything they want in the national security context - even violate the law and purposely cause someone to be tortured - and courts should honor and defer to their actions by refusing to scrutinize them.
In different other words, "Don't bother me," "It's not my job," and "I don't wanna get involved."
Reflecting the type of people who fill our judiciary[, Greenwald continues,] the judges in the majority also invented the most morally depraved bureaucratic requirements for Arar to proceed with his case and then claimed he had failed to meet them. Arar did not, for instance, have the names of the individuals who detained and abused him at JFK, which the majority said he must have.
Greenwald, who notes how the case reflects "how the character of a country becomes fundamentally degraded when it becomes a state in permanent war," refers to Horton's analysis of the case and its telling last line:
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.
Footnote: Greenwald appends a description of what was done to Arar in Syria, provided by one of the dissenting judges. Read it while imagining the majority of the Court washing their hands.

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