A Canadian citizen has lost his bid to hold US officials accountable for their decision to label him an Al Qaeda suspect and deport him to Syria where he was held without charge for a year and allegedly tortured during US-directed interrogations.
US officials detained Mr. Arar in September 2002 as he attempted to change planes at New York’s Kennedy International Airport for a flight home to Canada from Tunisia. He was held in the US and questioned by federal agents for 13 days before being whisked off to Syria.
Arar asked to be sent home to Canada, complaining that he would be tortured in Syria. Once in Syria, he was housed in a three-foot by six-foot by seven-foot cell. “Syrian officials tortured Arar while asking him questions strikingly similar to those federal agents had asked him in New York,” Arar’s petition to the high court said.
In October 2003, Syrian officials released Arar and allowed him to return to Canada after concluding he had no link to Al Qaeda, to terrorism, or to any other wrongdoing. After an inquiry into his ordeal, the Canadian Parliament and prime minister issued public apologies to Arar and awarded him $10.5 million Canadian dollars in compensation for the Canadian government’s part in his treatment.
Arar filed a lawsuit in the US seeking to hold American officials accountable for their actions. The suit alleged that US authorities held Arar incommunicado under harsh conditions in Brooklyn during days of interrogation. When his family hired a lawyer, officials allegedly deceived her to prevent her from seeking judicial review of Arar’s threatened deportation to Syria.
The suit also alleged that US officials conspired to have Syrian authorities use torture to gain answers federal agents were unable to obtain during questioning in the US.
US officials have denied the allegation that they conspired to have Arar tortured. They said they obtained assurances from Syria that Arar would not be tortured.
To date, the US government position on Arar has been to insist that Arar has no legal right to seek to hold American officials accountable for his ordeal.
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.
"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.