Monday 2 November 2009

Why shouldn’t the terrorist Mahar Arar be awarded damages?

Mahar Arar is a telecommunications engineer with dual Syrian and Canadian citizenship who resides in Canada. Arar was detained during a layover at John F. Kennedy International Airport in September 2002 on his way home to Canada from a family vacation in Tunis while he was switching planes for his final trip to Canada. He was held in solitary confinement in the United States for nearly two weeks, questioned, and denied meaningful access to a lawyer. The United States government suspected him of being a member of Al Qaeda and deported him, not to Canada, his current home, but to his native Syria, even though its government is known to use torture. Arar claimed he was tortured after he arrived in Syria for a year while he was in Syrian custody. Syria denies that but no one takes their denial too seriously.

The government of Canada ordered a commission of inquiry which concluded that he was tortured. The commission of inquiry publicly cleared Arar of any links to terrorism. The government of Canada later settled out of court with Arar and awarded him a C$10.5 million settlement. The Syrian government reports it knows of no links of Arar to terrorism.

Despite the Canadian court ruling, the United States government has not exonerated Arar and, on the contrary, has made public statements to state their belief that Arar is affiliated with members of organizations they describe as terrorist. As of February 2009, Arar and his family remain on a watchlist which means they will have great difficulty flying anywhere in the world accept in Canada.

His lawyers filed a lawsuit against the United States and various American officials in 2006 pursuant to the Torture Victim Protection Act and the Fifth Amendment to the United States Constitution, in the United States District Court for the Eastern District of New York

In his claim, his lawyers claimed that the defendants violated Arar's constitutional right to due process; his right to choose a country of removal other than one in which he would be tortured, as guaranteed under the Torture Victims Protection Act; and his rights under international law.

The suit charges that Arar's Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the U.S. Additionally, the Attorney General and INS officials who carried out his deportation also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation. The matter went before several courts and finally ended up before the 2nd U.S. Circuit Court of Appeals and on November 1st, 2009, the judges in that federal appeals court voted 7-4 to uphold a decision by a lower court judge dismissing a lawsuit. They based their decision on the premise that it cannot let Arar use the courts to press his claims against the U.S. government without Congress enacting legislation that spells out exactly how a case as unusual as Arar's claims can be brought and what potential remedy exists. The court said that by allowing the lawsuit to proceed would “offend the separation of powers and inhibit this country's foreign policy.”

I see that decision as nothing better than a crock of shit. (Forgive me for my use of those words)

Arar said the ruling and other recent court decisions show that “the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering.” He called the ruling “a loss to all Americans and to the rule of law.”

What the issue was in the lawsuit was the court's role in reviewing the practice of ‘extraordinary rendition’ in which someone suspected of supporting terrorism is transferred to a foreign nation for imprisonment and interrogation without formal charges, trial or court approval.

The president of the United States has already declared that sending other people to countries that conduct torture is not to be permitted anymore so I don’t know why the Court of Appeal felt that the American Congress has to enact legislation that deals with the issue of rendition. Further, the Constitution guarantees everyone who is in the United States that they will get a fair trial and have access to a lawyer so Congress doesn’t have to deal with that issue either.

The appeals court said it was hesitant to create “a new damages remedy that Congress has not seen fit to authorize.” How can the court presume that Congress has not seen fit to authorize the awarding of damages to persons who have been denied a fair trial, denied access to a lawyer and who has been sent to another country to be tortured? The shit just piles higher and higher.

It added: “Even the probing of these matters entails the risk that other countries will become less willing to cooperate with the United States in sharing intelligence resources to counter terrorism.”

Now the shit is right over our heads to such an extent, we have to exchange the crock for a tanker truck.

In one of four dissents to the majority ruling Monday, Judge Barrington D. Parker criticized the statement that permitting Arar to sue “would have the natural tendency to affect diplomacy, foreign policy and the security of the nation.” He further wrote that such a view of the separation of powers “which confines the courts to the sidelines is, in my view, deeply mistaken; it diminishes and distorts the role of the judiciary especially during times of turmoil.” He added that it “distorts the system of checks and balances essential to the rule of law, and it trivializes the judiciary's role in these arenas.”

I think that the decision of the Federal Court of Appeal has harmed the image of the American people. Now people around the world and those in the United States are going to believe that there is no real justice in the United States. And when you consider the great many people in the United States who were convicted of crimes that they were later found innocent, that belief may be well justified.

Arar is appealing that decision and we will have to wait and see if the Supreme Court of the United States has the United States’ government’s interests at heart over the interests and welfare of its citizens and those who visit that country. Don’t hold your breath while waiting for that decision as it normally takes years before decisions from that court are handed down.

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