How could this happen?
Having read Glenn Greenwald for some time now, I was beginning to think I had lost the capacity to be shocked by the excesses of the War on Terror. Then this happened:
It’s not often that an appellate court decision reflects so vividly what a country has become, but such is the case with yesterday’s ruling by the Second Circuit Court of Appeals in Arar v. Ashcroft (.pdf). Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” — despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured.
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By stark and very revealing contrast, the U.S. Government has never admitted any wrongdoing or even spoken publicly about what it did; to the contrary, it repeatedly insisted that courts were barred from examining the conduct of government officials because what we did to Arar involves “state secrets” and because courts should not interfere in the actions of the Executive where national security is involved.
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Yesterday, the Second Circuit — by a vote of 7-4 — agreed with the government and dismissed Arar’s case in its entirety.
In many respects, the clinical language of the decision is even more frightening than Greenwald’s post. Arar was found “to be a member of a terrorist organization” based on his “association with another suspected terrorist and other (classified) information.” In Syria, he was held in “an underground cell six feet by three, and seven feet high.” He “was beaten on his palms, hips, and lower back with a two-inch-thick electrical cable.” Arar believes that “United States officials conspired to send him to Syria for the purpose of interrogation under torture.”
The court’s rationale for dismissing the case rests on the notion that the legislature and the executive branch are responsible for remedying abuses related to our intelligence and counter-terror policies. Although I’m generally in favor of judicial deference, I really can’t speak to the validity of the court’s legal reasoning.
That said, if the court is going ignore a manifest injustice for the sake of separation-of-powers, shouldn’t they at least have the decency to urge the Administration and Congress to do something about the victims of extraordinary rendition? There doesn’t seem to be any argument over the conditions of Arar’s imprisonment – the Canadian government has, after all, paid him financial compensation for his ordeal. But Obama, despite pledging to review our rendition policies, has not shown any interest in seeking justice for victims of extraordinary rendition. Instead, he’s squelched similar lawsuits by invoking the exact same “state secrets” doctrine as the Bush Administration.
I’ve made similar arguments elsewhere, but I think the case for justices seizing the bully pulpit to urge legislative or executive action is particularly compelling in this context. I understand that courts are institutionally constrained from rectifying many injustices. I also think that judicial deference is an important and worthwhile doctrine. But a major Circuit Court ruling is an unparalleled opportunity for judges to exhort the executive and legislative branches to actually do something to address problems that the court is unable to resolve on its own. In this case, even if the court’s decision was right on the merits, the entire episode strikes me as a colossal missed opportunity to jump-start an important public debate over an issue that deserves more attention.
“Missed opportunity”.
Look at what the court is likely to think will actually happen (or be prevented from happening) because of this decision.
Why wouldn’t that be the goal of the decision?Report
hmm, I think you have it precisely backward. Courts have no business telling legislatures how to legislate, and the rare cases where they do so the opinions sound pathetic. Far better to simply state that relief is not available under the law as currently written.
But the court could have denied the government the use of the privilege, and forced the hand of the Administration and Congress to pass a bill defining the scope of the privilege. The idea that senior officials of the Bush administration did not violate Arar’s constitutional rights is ridiculous. Of course they did; what we have discovered is that — much like the Japanese internment cases — in times of war (and, also, “war”) US courts will continue to duck the hard cases and defer to the Executive.
Can’t have omelets without breaking eggs. Sometimes innocents bear the price of our Empire.Report
Given the torture of Maher Arar, and that none of the three branches of US government find anything wrong with it, I can really only see one thing that Canada ought to do – not that our current government is at all likely to: we need to stop sharing intelligence information with the US. If it’s happening in Canada, or involves a Canadian citizen, we deal with it and they don’t. I don’t care how much more powerful they are than us, nobody has the right to send our citizens off to be tortured. The RCMP is to blame for giving the US inaccurate information, but all the same the correct US response, if they considered him a threat, was to either request extradition and trial, or return him to Canada.
And on a similar topic, we need to bring Omar Khadr back to Canada. There’s pretty good evidence that they claims he killed a US solider are untrue, and even if they were he was 15 at the time, better described as a child soldier than an enemy combatant. I have no idea what they did to him down there – but I want to know.
We Canadians are rapidly moving towards a situation where our allies are more dangerous than our enemies.Report
Madness! How could the country have lost it’s mind so badly? What the hell were Bush and his possey of incompetents thinking? Where the hell were the Democrats in opposition? Damnit!Report
And don’t think that it’s over now that Obama is in office
Same Iron Fist, now with a velvet glove.
If anything, the danger is greater now that pro-civil liberties left is has largely been silenced.Report
Forget opposition. Where the hell are the Democrats in power? On the side of covering up torture, that’s where.Report
I will never understand why anyone allows this (Democrat or Republican) and why it hasn’t been fixed. Where is the political upside to being pro-torture? Who could possibly benefit from this? I guess I shouldn’t expect people to have any shame, but this is disgusting. Is it even possible to elect some people who will enforce some accountability on this?Report
You can’t understand why anyone allows this? Did you see what happened on 9/11 or on the buses London or on the train is Spain? I’m sorry he was tortured but the terrorists want to pay hard ball and we should show them how. Yes unfortunately innocents are harmed in war but that is was this is.Report
This backs up my point above. We need to stop working with the Americans. Torture and disregard for liberties don’t end until it comes back to bite the Americans, hard.
Sending an innocent man to Syria to be tortured didn’t do anything to fight terrorism.Report
How telling that you whine about how this guy was treated but ignore what happened to all of those other innocents, he at least is still alive.Report
And Scott drops the typical answer of a chicken-hawk coward.Report
Actually, right now I’m waiting to see if my application to join the Army Reserve JAG Corps has been approved. I hope they accept me and have seriously considered volunteering for overseas duty which if I do would means that I would have to leave my wife and soon to born child, so F-you.Report
JAG? Volunteer for combat and maybe I’ll get impressed.Report
The point is that I’m putting my money where my mouth is and trying to sign up, besides I could care less what you think.Report
If you’re going to protect the Constitution, then I say good on you.Report
Just what we need – a JAG who casually dismisses all sense of justice, morality, and even the law itself because, hey, innocents get hurt in war so whats the big deal?
So what if we kidnapp and torture a completely innocent person? Shit happens. So what if a US serviceman rapes a 13 year old Iraqi girl and then murders her and her whole family? Innocents get hurt in war.
It’s really easy to be “tough” when it comes to the misfortunes of others. It’s really easy to ignore pain that you don’t have to feel yourself. Of course, the most pathetic thing is that we both know that you’d be a lot less complacent if the innocent in question was someone you loved. Then you’d be out screaming about justice and demanding the justice that you now don’t care about giving to another.
Its hard to put into words the utter contempt I feel for you.Report