And Where Was A.G. Ashcroft? A.W.O.L.

By William Fisher

Bush-era Attorney General John Ashcroft had a busy day in court yesterday.

A Federal Appeals court ruled he could not be held responsible for kidnapping a Canadian citizen in New York and shipping him off to Syria where he was imprisoned for a year and tortured.

But, in another case, five men who had been living in New York and were ultimately deported won a $1.26 million settlement from the U.S. government in a suit accusing Ashcroft and other officials of racial profiling, illegal detention and abuse of Muslim, Arab and South Asian men in the days following the terrorist attacks of September 11th 2001.

Yasser Ebrahim, one of the men held at the Metropolitan Detention Center (MDC) in Brooklyn, NY after the post-9/11 sweeps and now living in Egypt, said: “We were deprived of our rights and abused simply because of our religion and the color of our skin. After seven long years, I am relieved to be able to try to rebuild my life. I know that I and others are still affected by what happened and that communities in the U.S. continue to feel the fallout. I sincerely hope this will never happen again.”

In the second case, a federal Court of Appeals in New York dismissed Canadian citizen Maher Arar’s suit against Ashcroft and other U.S. officials for their role in sending him to Syria to be tortured. The court concluded that Arar’s case raised too many sensitive foreign policy and secrecy issues to permit relief. It leaves the federal officials involved free of any legal accountability for what they did.

In a 7-4 decision, the Court 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.”

Mr. Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. The Bush administration labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.

Georgetown university law school professor David Cole, who argued the Arar case, told Truthout, “This decision says that federal officials can conspire to subject an innocent man to torture, block his access to courts who would enjoin them from getting their way, and then avoid all accountability thereafter because the case would be too sensitive to litigate. The court puts executive officials above the law, and tells an innocent torture victim that concerns about foreign relations are so important that his claim cannot even be considered.”

He indicated that the Arar case would be appealed to the Supreme Court.

The case against John Ashcroft and other Bush-era officials was filed in January 2004, just three months after he returned home to Canada from his ordeal. It was brought by the Center for Constitutional Rights (CCR), and was the first to challenge the government’s policy of “extraordinary rendition,” also known as “outsourcing torture.”

The Canadian government, after an exhaustive two-year public inquiry, found that Mr. Arar had no connection to terrorism and, in January 2007, apologized to Mr. Arar for Canada’s role in his rendition and awarded him a multi-million-dollar settlement.

The contrast between the two governments’ responses to their mistakes could not be more stark, say Mr. Arar’s attorneys. “Both the Executive and Judicial branches of the United States government have barred inquiry and refused to hold anyone accountable for ruining the life of an innocent man,” they said.

Two Congressional hearings in October 2007 dealt with his case. On October 18, 2007 Mr. Arar testified via video at a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture. During that hearing – the first time Mr. Arar testified before any U.S. governmental body – individual members of Congress publicly apologized to him, though the government still has not issued a formal apology. The next week, on October 24, Secretary of State Condoleezza Rice admitted during a House Foreign Affairs Committee Hearing that the U.S. government mishandled his case.

In a strongly worded dissent, 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.”

The racial profiling case, known as Turkmen v. Ashcroft, was filed in September 2002 to challenge the arbitrary detention and mistreatment of immigration detainees by prison guards and high-level Bush administration officials in the wake of 9/11. With no evidence of any connection to terrorism, hundreds of Muslim, Arab and South Asian men were rounded up on the basis of racial and religious profiling and subjected to unlawful detention and abuse.

Among other documented abuses, many of the men had their faces smashed into a wall where guards had pinned a t-shirt with a picture of an American flag and the words, “These colors don’t run.” The men were pushed against the t-shirt upon their entrance to MDC and told, “welcome to America.” The t-shirt was smeared with blood, yet it stayed up on the wall at MDC for months.

All of the men were eventually deported, though several of the plaintiffs returned to New York under strict conditions to participate in depositions for their case against the government in early 2006.

“As with the Japanese internment, history will not look kindly upon the Ashcroft raids,” said CCR Attorney Rachel Meeropol. “This is just the first step, though. To ensure that this never happens again, the former Attorney General and his cronies – the architects of this policy – must also be held accountable.”

The suit named as defendants then-Attorney General John Ashcroft, FBI Director Robert Mueller, former INS Commissioner James Ziglar and officials at the Metropolitan Detention Center in Brooklyn, where the plaintiffs were held.

Some of the abuse included beatings, repeated strip searches and sleep deprivation. The allegations of inhumane and degrading treatment have been substantiated by two reports of the Justice Department’s Office of the Inspector General, and several defendants in the case have recently been convicted on federal charges of beatings and cover-ups of other prisoners around the same time period.