ARAR REDUX?

By William Fisher

On the heels of a federal appeals court ruling that only Congress and the executive branch of government – not the courts -- can interfere with government-sponsored “extraordinary rendition, ” a U.S. citizen from New Jersey is asking another court to tell the government it wasn’t OK to secretly imprison and abuse him in three different African countries over a period of four months.

The citizen is Amir Meshal, 24, the son of Muslim immigrants from Egypt.
According to the American Civil Liberties Union (ACLU), which filed the lawsuit in Meshal’s behalf, after fleeing hostilities in Somalia in 2006, Meshal was arrested, secretly imprisoned in inhumane conditions and subjected to harsh interrogations by U.S. officials over 30 times in three different countries before ultimately being released four months later without charge,

"This case challenges the US government’s effort to evade accountability for illegal detention and interrogations in counter-terrorism operations by masking and hiding its involvement," Jonathan Hafetz, a staff attorney with the ACLU National Security Project, told IPS.

According to the ACLU, Meshal was studying Islam in Mogadishu, Somalia, in December 2006, when hostilities broke out. With the airport disabled by bombing, Meshal fled to neighboring Kenya, where he wandered in the forest for three weeks seeking shelter and assistance before being arrested. Following his arrest, he was detained and repeatedly interrogated by U.S. officials who threatened to harm him, denied him access to counsel and accused him of receiving training from al-Qaeda, which Meshal denied.

Following his arrest and detention in Kenya, the suit says Meshal was illegally rendered to Somalia and then to Ethiopia where he was imprisoned in secret for over three months. There, U.S. officials subjected him to harsh interrogations while denying him due process and access to a lawyer, his family or anyone else in the outside world.

“The harsh treatment and mental anguish this individual suffered should never be experienced by anyone, let alone an American citizen at the hands of his own government,” said Hafetz. “This violation of basic constitutional rights must be remedied.”

Court filings say that during his detention, Meshal was kept in “filthy, crowded conditions in cells infested with cockroaches and given inadequate access to food, water and toilets. While in Kenya, the Americans who interrogated him repeatedly threatened him with torture. The interrogators warned Meshal that he could be sent to Somalia or Egypt, where the Egyptians ‘had ways of making him talk’, if he refused to answer questions or agree to the interrogators' allegations. Meshal was also threatened with being sent to Israel, where, the interrogators said, the Israelis would “make him disappear.”

At least one consular affairs official from the U.S. Embassy in Nairobi met with Meshal and was aware of his detention, but later claimed he lost contact with Meshal following his rendition to Ethiopia. Meshal was finally released in May 2007 with no additional explanation.

“This is a U.S. citizen who was caught in hostilities abroad, and instead of
helping him return, U.S. officials abused him and mistreated him and never
charged him with a crime,” said Nusrat Choudhury, one of the lead lawyers from the ACLU representing Meshal. “Should they be allowed to do that without helping a U.S. citizen get home, and instead, denying him access to lawyers?”

The complaint was filed in the U.S. District Court for the District of Columbia against two agents of the Federal Bureau of Investigation (FBI) and two other unnamed U.S. government officials.

Last week, another Federal court ruled that the courts have no jurisdiction over matters relating to the practice known as “extraordinary rendition” – kidnapping a person in U.S. custody and sending him/her to a prison in another country.

In a 7-4 decision in the celebrated case known as Arar v. Ashcroft, the appeals court for the second circuit in New York wrote, “If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”

Some legal authorities believe Meshal may have a better chance of influencing the court because he is a U.S. citizen. The only other U.S. citizen whose lawsuit against a U.S. official has not been dismissed is Jose Padilla. Deemed an “enemy combatant” and currently serving a prison sentence for providing material support to terrorists, he is suing John Yoo, the former lawyer at the Justice Department who justified torture and Padilla says personally helped to devise his illegal treatment. A federal court in California refused to dismiss his case, in part because there was no other way for a U.S. citizen to hold U.S. officials accountable.

The ACLU also believes its case is stronger because the FBI agents named in the suit were not acting in a high-level supervisory role but were actually in the room, participated, and threatened him, while Meshal was being interrogated.

The Arar case involves a Canadian citizen, Maher Arar, who was detained by U.S. government officials at Kennedy International Airport in 2002 while enroute to his home in Canada following a vacation in Africa. He was held incommunicado for two weeks, then flown to Jordan and finally to Syria, where he was imprisoned in a coffin-size cell and tortured for ten months before being released by the Syrians without charges or explanation.

A two-year-long Canadian Government inquiry established that Canada had provided the US with incorrect information about Arar, and that he was guilty of nothing. He received an apology from the Canadian government and a cash award of $10 million.

The U.S., far from apologizing to Arar, has barely acknowledged that an error was committed. Condoleezza Rice, who was secretary of state at the time, has said only that the matter was not handled as well as it should have been.

The opinion by a majority of the New York appeal judges said, “For decades the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.”

It ruled that “Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.”

Four judges issued dissenting opinions. One of them, Judge Guido Calabresi, wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Arar’s attorney, David Cole, indicated that the decision would be appealed to the Supreme Court.

He told IPS, “If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments.”

There is at least one other major case involving rendition pending before U.S. appeals courts. In California, four men who claim they were “rendered” to secret prisons where they were tortured are suing a Boeing subsidiary company they say knowingly handled the logistics of their rendition flights for the Central Intelligence Agency (CIA).