No Comment — November 2, 2009, 5:57 pm

Second Circuit Affirms Dismissal of Arar

“When the history of this distinguished court is written, today’s majority decision will be viewed with dismay,” writes Guido Calabresi, the former Yale Law dean and a man widely viewed as the most illustrious living member of the Second Circuit Court of Appeals. He is lodging his dissent in a 7-4 decision of the en banc court concluding that a Canadian software engineer named Maher Arar has no right to sue government officials. What has Calabresi so worked up?

This is “hardly an ordinary immigration case,” as the majority concedes. Arar was apprehended in transit from a Mediterranean vacation to his home in Ottawa at the JFK airport. U.S. agents acting on a tip from the Canadian mounties–that turned out to be completely incorrect–seized Arar and held him for several days. Understandably, they were not going to let Arar into the country. This was fine with Arar, who just wanted to go home to Canada. But because Arar was born in Syria, Deputy Attorney General Larry Thompson, acting on the advice of two political appointees serving in the Attorney General’s office, signed an order to send him back to Syria. That decision was taken after an immigration review panel had concluded, with what turned out to be perfect accuracy, that Arar would be tortured if sent there. (Perhaps not coincidentally, Thompson resigned and departed shortly after learning the full story behind the Arar case.) Arar was turned over to the Syrians with a list of questions, and he was indeed brutally tortured for a year—to no point, of course, since Arar had no connections with any terrorist organizations. The Canadian Government, recognizing that its wrongdoing led indirectly to Arar’s mistreatment, conducted a comprehensive investigation, fully acknowledged its mistakes in a voluminous report, issued a formal letter of apology, and awarded Arar $11.5 million (Canadian) in compensation and reimbursement of legal costs. And the United States?

The United States tenaciously refused to acknowledge ever having made any mistakes—even after its own sources did so. It stonewalled Congressional probes and issued a travel ban to stop Arar from testifying before Congress. The Bush Justice Department made aggressive representations to the courts in response to Arar’s suit that strained credulity at almost every step. As in other cases, their trump card was simple: when caught with pants down, shout “state secrets!”

When the two inspectors general, Richard L. Skinner and Clark Kent Ervin, appeared before the House Judiciary Committee to testify on the matter, I was also invited as an independent expert. At one point, a committee member asked, “Is there sufficient basis to open a criminal investigation based on the conduct of the Justice Department in handling this case?” I stated that the evidence set out in the internal investigation showed that, after the immigration board concluded that Arar would likely be tortured in Syria, senior figures in the Justice Department had directed that he be sent there. This presents all the elements of a prima facie conspiracy to torture under the criminal code. Both inspectors general concurred that a criminal investigation was now warranted. Their own report produced ample evidence of gross departures from established procedures, as well as evidence that the entire case was being politically micromanaged by political figures in the attorney general’s office and in the White House, who repeatedly overrode the decisions of the professional staff. Attorney General Mukasey, however, subsequently declined to direct the investigation. It’s noteworthy that the investigation would have focused on the attorney general’s own office, which raises fair questions about why the attorney general would be the person making this decision.

Typical of the care that went into the majority opinion is this passage: “Consider: should the officers here have let Arar go on his way and board his flight to Montreal? Canada was evidently unwilling to receive him.” Had Judge Jacobs, who wrote for the majority, bothered himself a bit with the record, he would have discovered that Canada confirmed it was willing to accept him home. Moreover, this is hardly a trivial error. The gravity of the government misconduct in this case comes from the decision to send Arar to Syria when he could have been returned to Canada, sent to Switzerland, or back to Tunisia, where he had been vacationing. He was sent to Syria for a reason, and that was torture.

In the Arar case, state secrecy claims are preposterous because the diplomatic and intelligence relationship that would supposedly have been compromised was that with Canada, and the Canadians had already come clean about what had happened and confessed to their own part in it, publishing a report as thick as two Manhattan telephone books. In this process, the Canadians behaved just like a modern democracy should. So it is not damage to relations with our neighbor to the North that is a concern. Rather, it is embarrassment of political figures in Washington.

Calabresi generously accepts the suggestion that the Second Circuit acted out of concern for national security. Still, he delivers an appropriate lashing. The majority, Calabresi charges, “engaged in extraordinary judicial activism.” Its activism was aimed at extricating political actors from a precarious predicament and keeping the door firmly shut on what may well be the darkest chapter in the entire history of the Justice Department. In so doing, the court’s majority delivered an example of timidity in the face of government misconduct the likes of which have not been seen since the darkest days of the Cold War. When the history of the Second Circuit is written, the Arar decision will have a prominent place. It offers all the historical foresight of Dred Scott, in which the Court rallied to the cause of slavery, and all the commitment to constitutional principle of the Slaughter-House Cases, in which the Fourteenth Amendment was eviscerated. The Court that once affirmed that those who torture are the “enemies of all mankind” now tells us that U.S. government officials can torture without worry, because the security of our state might some day depend upon it.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2016

Atlas Aggregated

= Subscribers only.
Sign in here.
Subscribe here.

The Origins of Speech

= Subscribers only.
Sign in here.
Subscribe here.

Four in Verse

= Subscribers only.
Sign in here.
Subscribe here.

A Sigh and a Salute

= Subscribers only.
Sign in here.
Subscribe here.

Four in Prose

= Subscribers only.
Sign in here.
Subscribe here.

Don the Realtor

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Martin Amis on the rise of Trump, Tom Wolfe on the origins of speech, Art Spiegelman on Si Lewen, fiction by Diane Williams, and more

In Havana, the past year has been marked by a parade of bold-faced names from the north — John Kerry reopening the United States Embassy; Andrew Cuomo bringing a delegation of American business leaders; celebrities ranging from Joe Torre, traveling on behalf of Major League Baseball to oversee an exhibition game between the Tampa Bay Rays and the Cuban national team, to Jimmy Buffett, said to be considering opening one of his Margaritaville restaurants there. All this culminated with a three-day trip in March by Barack Obama, the first American president to visit Cuba since Calvin Coolidge in 1928. But to those who know the city well, perhaps nothing said as much about the transformation of political relations between the United States and Cuba that began in December 2014 as a concert in the Tribuna Antiimperialista.

Illustration by Darrel Rees
Article
Don the Realtor·

= Subscribers only.
Sign in here.
Subscribe here.

"If you have ever wondered what it’s like, being a young and avaricious teetotal German-American philistine on the make in Manhattan, then your curiosity will be quenched by The Art of the Deal."
Photograph (detail) © Polly Borland/Exclusive by Getty Images
Article
The Origins of Speech·

= Subscribers only.
Sign in here.
Subscribe here.

"To Chomsky...every child’s language organ could use the 'deep structure,' 'universal grammar,' and 'language acquisition device' he was born with to express what he had to say, no matter whether it came out of his mouth in English or Urdu or Nagamese."
Illustration (detail) by Darrel Rees. Source photograph © Miroslav Dakov/Alamy Live News
Article
A Sigh and a Salute·

= Subscribers only.
Sign in here.
Subscribe here.

"Si told me that various paintings had spoken to him, but he wished they had been hung closer together 'so they could talk to each other.' This observation planted a seed that would come to fruition years later in his mature work."
Artwork (detail) by Si Lewen
Article
El Bloqueo·

= Subscribers only.
Sign in here.
Subscribe here.

"Amid the festivities and the flood of celebrities, it would be easy for Americans to miss that the central plank of the long-standing cold war against Cuba — the economic embargo — remains very much alive and well."
Photograph (detail) by Rose Marie Cromwell

Amount traders on the Philadelphia Stock Exchange can be fined for fighting, per punch:

$1,000

Philadelphian teenagers who want to lose weight also tend to drink too much soda, whereas Bostonian teenagers who drink too much soda are likelier to carry guns.

Nuremberg’s Neues Museum filed a criminal complaint against a 91-year-old woman who completed a crossword puzzle that was in fact a $116,000 piece of avant-garde Danish art.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today