Supreme Court refuses Maher Arar torture case
The US Supreme Court declined to take the case of Canadian citizen Maher Arar, who alleged that US officials deported him to Syria in 2002 knowing he would be tortured during terrorism interrogations.
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In denying review of Arar’s case, the high court lets stand a 7 to 4 ruling by the full Second US Circuit Court of Appeals in New York. That court found that because of “special factors” involving national security, Arar’s lawsuit should be dismissed. It also ruled that the Torture Victim Protection Act did not authorize lawsuits against US officials who were acting under US law on American soil.Skip to next paragraph
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"This case does not concern the propriety of torture or whether it should be countenanced by the courts,” wrote Acting Solicitor General Neal Katyal in the US government’s brief urging the court to dismiss the case.
He said because of national security concerns, lawsuits such as Arar’s must be dismissed, even when there is no other legal recourse available to address alleged government misconduct.
It is up to Congress, not the courts, to establish the scope of legal safeguards, he said. “Judicial refusal to create a private cause of action in this context does not leave the executive power unbounded,” Mr. Katyal wrote.
During the Bush administration, Katyal was a law professor who successfully represented Osama bin Laden’s former driver and bodyguard in a Supreme Court case that resulted in the military commission process at Guantanamo being struck down. In public statements back then, he said the effort was aimed at insuring that his client, Salim Hamdan, would receive fair treatment and his day in court.
“We are a land of justice and fairness, and with a system that is strong enough to handle even the most extraordinary of challenges,” he told the Senate Armed Services Committee in 2006.
Lawyers for Arar offered a similar argument. But theirs came with a warning. “To deny petitioner Maher Arar a remedy is to reward federal officials for flouting one of the most fundamental prohibitions that our law recognizes – the prohibition on torture – and for evading the judicial check that Congress established,” Maria LaHood wrote in Arar’s brief, urging the high court to take up the case.
“If US officials are free to deliver a man to be tortured without any legal accountability, the prohibition on torture found in the Constitution and federal statutes is empty symbolism,” she wrote.
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