End of the Legal Road for Arar

By William Fisher

The quest for justice of a Canadian who was mistakenly tagged as a terrorist by U.S. authorities and shipped off to a Syrian prison for close to a year of abuse came to an abrupt halt yesterday when the Supreme Court declined to hear his case.

Maher Arar is a Syrian-born Canadian and father who was arrested in 2002 while passing through New York’s John F. Kennedy Airport on his way to his home in Canada. The Canadian government provided U.S. authorities with bad intelligence suggesting Arar had ties to Al Qaeda. Arar was deported to Syria where he was held in a 3'x6'x7' cell for 10.5 months, during which time he claims he was tortured.

The Canadian government investigated Arar's case, concluded that he was not a terrorist, had no ties to terrorists, and had been unjustly detained and tortured, apologized and paid him $10.5 million.

The Supreme Court offered no explanation for its refusal to hear the case. But some Court observers have suggested that it was because two justices had previous involvement in the case and would have had to recuse themselves because of perceived conflicts of interest. It was suggested that with only seven justices voting, it would be difficult to reach a fair verdict.

Justice Sonia Sotomayor heard arguments in the Arar case when it came before the appeals court of which she was a member before her appointment to the Supreme Court. Supreme Court-nominee Elena Kagan, currently the Solicitor-General of the U.S., signed off on the government’s case in a lower court filing, claiming that the “State Secrets” privilege should apply because allowing the Arar case to go forward would represent a threat to national security.

Arar is still considered a terrorist by the U.S. but no court has ever heard his case on the merits. Arar and his family remain on a U.S. watch list, and the United States has never officially apologized or admitted it made a mistake. Secretary of State Hillary R. Clinton has said only that the Arar case was not handled well.

Upon his release by Syria – without charges -- Arar sued the Justice Department of former President George W. Bush, but his lawsuit was rejected on State Secrets grounds by a succession of U.S. courts. The Bush Administration invoked the State Secrets privilege routinely.

President Barack Obama Obama pledged to use the State Secrets doctrine less often, but so far those promises have not been kept.

Arar said, "Today's decision eliminates my last bit of hope in the judicial system of the United States. When it comes to ‘national security' matters the judicial system has willingly abandoned its sacred role of ensuring that no one is above the law. My case and other cases brought by human beings who were tortured have been thrown out by U.S. courts based on dubious government claims. Unless the American people stand up for justice they will soon see their hard-won civil liberties taken away from them as well."

The Center for Constitutional Rights (CCR), which has represented Arar in the various iterations of his case, said in a statement that “the Obama administration could have settled the case, recognizing the wrongs done to Mr. Arar as Canada has done. “

The group added, “Yet the Obama administration chose to come to the defense of Bush administration officials, arguing that even if they conspired to send Maher Arar to torture, they should not be held accountable by the judiciary.”

The final possible legal steps for Arar now lie with Congress or President Obama. Congress could theoretically pass a resolution acknowledging the U.S. error. And President Obama could issue an executive order with the same conclusion.

Georgetown university law school professor David Cole, who argued the Arar case, told IPS, “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 added, "The courts have regrettably refused to right the egregious wrong done to Maher Arar. But the courts have never questioned that a wrong was done. They have simply said that it is up to the political branches to fashion a remedy. We are deeply disappointed that the courts have shirked their responsibility. But this decision only underscores the moral responsibility of those to whom the courts deferred - President Obama and Congress - to do the right thing and redress Arar's injuries."

CCR Senior Attorney Maria LaHood said, "The Supreme Court has effectively condoned torture by denying Maher's right to seek a remedy. It is now up to President Obama and Congress to apologize to Maher for what the Bush administration did to him, to make clear that our laws prohibiting torture apply to everyone, including federal officials, and to hold those officials accountable."

But it is considered extremely unlikely that either of these possibilities will come to fruition. People accused of being “Muslim terrorists” – no matter how erroneous the charge -- are distinctly unpopular politically.