Wouldn’t It be Easier Just to Apologize?

By William Fisher

A few years back, the FBI mistakenly linked an American lawyer’s fingerprint to one found near the scene of a horrific terrorist bombing in Madrid, Spain. In the tragedy of errors that followed, the lawyer was jailed in Oregon as a “material witness” for two weeks.

And what did the FBI do? It apologized. That doesn’t happen very often, but it did happen this time. The FBI admitted a blunder that had led to Brandon Mayfield’s unlawful imprisonment.

“The FBI apologizes to Mr. Mayfield and his family for the hardships that this matter has caused,” the bureau said in a statement, adding that the agency also said it would review its practices on fingerprint analyses.

Mayfield, a 37-year-old convert to Islam, sharply criticized the government, calling his time behind bars “humiliating” and “embarrassing” and saying he was targeted because of his faith.

“This whole process has been a harrowing ordeal. It shouldn’t happen to anybody,” said Mayfield. “I believe I was singled out and discriminated against, I feel, as a Muslim.”

And maybe that’s what should have happened long before Maher Arar’s case ended up before a Federal Appeals Court. Consider how much money would have been saved by the government and by Arar’s legal team, and think about how such an action by the government would have undoubtedly ceded the U.S. the moral high ground it desperately needs to regain.

Just to refresh your memory: Maher Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. He was held by U.S. authorities incommunicado – no lawyer, no contact with family, no nothing. 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.

How do we know what the outcome would have been if the U.S. had taken the Canadian road? We know because that’s the road the Canadian Government took. It decided to find out the details of what happened. It impaneled a high-level commission, which spent two years painstakingly sifting through the information that led to Arar’s unlawful arrest, unlawful detention, and unlawful “extraordinary rendition.” It admitted that its people had passed erroneous information to the Americans that led to this travesty in the first place.

Heads rolled. Senior officials were forced to resign. But the Canadian intelligence services didn’t implode. Their sources and methods were never revealed.

And after its exhaustive two-year public inquiry, which found that Arar had no connection to terrorism, the Canadian Government apologized to Arar for Canada’s role in his rendition, and awarded him a multi-million-dollar settlement.

Could there have been a sharper contrast between the two governments’ responses to their mistakes? The Canadians fessed up to a mistake. And with that admission, their credibility catapulted off the charts.

The U.S. Government, on the contrary, has fiercely fought off inquiry of any kind. It has used every tool in its legal back-back to refuse to hold anyone accountable for ruining the life of an innocent man. And, in so doing it has perfectly positioned a large dark cloud over its head.

Inscribed on that cloud? Secret government. Not credible government. Not to be believed government.

We might have harbored a smidgen of hope for better things from our government on the occasion of two Congressional hearings on the Arar case in 2007. On October 18, 2007, 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 he testified before any U.S. governmental body – individual members of Congress publicly apologized to him. But the government stopped well short of any kind of formal apology. The following week, on October 24, then Secretary of State Condoleezza Rice acknowledged during a House Foreign Affairs Committee Hearing that the U.S. government had mishandled his case.

Mishandled his case? Tone-deaf statement of the Year!

BTW, Arar’s Congressional testimony was via video because Arar was on the “no fly” list of the Department of Homeland Security. And he remains on the list today.

But a lot of us were at least a bit more hopeful when we heard our new president usher in a new era of transparency in government. Not that we were under a bunch of naïve illusions that Obama would let our intelligence sources and methods spill out in plain sight. That’s OK for Code Pink.

No, most of us progressives are grown-up enough to appreciate that countries need to have secrets and that sometimes these secrets have to stay that way.

But perhaps we were naïve and full of wishful “Yes We Can” thinking if we thought our society and our government would become more open, more inclined to reconciliation, and less litigious any time soon.

The bottom line is that, as a result of years of government obfuscation, judicial sandbagging and bureaucratic red tape, a case that could have been settled with a pretty straightforward apology and modest compensation found itself inexorably headed for protracted arguments involving some of our smartest lawyers doing their thing before some of our smartest judges in the most powerful courts in our country.

Huzzah! We Americans seem to love nothing more than seeing a bunch of legal gladiators engaged in pitched battle in much the way the Romans did in the Forum. Conjures up images of Gregory Peck as Atticus Finch. Or Spencer Tracy and Frederick March duking it out as Clarence Darrow and Williams Jennings Bryan.

And we weren’t disappointed. Words flew. Milllions of them. From lawyers on both sides. From Friends of the Court, who joined in the fun, adding millions more words. The case bounced up and down the judicial ladder from disrict court to a three-judge panel in the circuit court of appeals, back to the district court for yet another full-throated advocacy joust before an 11-judge en banc court.

All this took seven years and cost millions of taxpayer and private dollars.

And what did anyone get in the end?

An appeals court decision that left enough people so unhappy and unsatisfied that the Supreme Court has to be the next step in climbing this Himalayan obstacle course.

What did the Appeals Court decision tell us?

The court concluded that the case brought by Mahar Arar against Bush-era Attorney General John Ashcroft and other officials raised too many sensitive foreign policy and secrecy issues to permit relief. The decision leaves the federal officials involved free of any legal accountability for their actions.

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.”

But Arar’s attorney, David Cole, took a decidedly different view as he indicated that yesterday’s decision would be appealed to the Supreme Court.

He told us, “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.”

Cole added, “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.”

Yesterday’s majority opinion cited previous cases in which the practice of rendition was found to be lawful. It noted that “the renditions of suspected terrorists Ramzi Yousef and Mir Aimal Kansi to the United States and the rendition of Illich Ramirez Sanchez, also known as ‘Carlos the Jackal’, by French authorities from the Sudan to France,” had been upheld by the European Commission on Human Rights.

“For decades,” the Court wrote, 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, “Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather, we conclude that…it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress--and not for us as judges -- to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition…Not withstanding prolonged public debate, 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.”

The Obama Administration has said that it would continue the practice of extraordinary rendition, but would seek diplomatic assurances that those it rendered to other countries would be not tortured. This was also the policy of previous U.S. administrations, dating from the administration of President Bill Clinton and including that of George W. Bush. However, such “diplomatic assurances” have been largely worthless, since the U.S. retains relatively little control over what happens inside a foreign prison once a person is turned over to another country.

In a statement issued through the Center for Constitutional Rights (CCR), which brought the suit on Arar’s behalf, Arar said, “After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch.”

Now this is where I’m supposed to summon up all my cajones, put out my strongest arguments in my most intrepid voice, and convince one and all that there is only one wisdom – and I have it.

Instead, it seems more appropriate to end this polemic with another look at the wisdom of another:

“After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch.” – Maher Arar