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.