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“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.
More from Scott Horton:
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"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."