No Comment — June 16, 2010, 11:44 am

The Justice Department and the Torture of Maher Arar

Yesterday the Supreme Court declined to review the Maher Arar case, leaving in place a reprehensible Second Circuit decision that proclaims the immunity of American government officials even in the face of meticulously documented charges that they consciously took steps resulting in the torture of an innocent human being. Congratulations are in order to the Obama Justice Department—it seems on the verge of establishing the legal proposition that officers of the American executive are free to torture and commit other heinous crimes with complete impunity.

The nation’s greatest attorney general, Robert Jackson, reminded the world in 1946 that “legal responsibility cannot be the least where power is the greatest.” He insisted that no doctrine of state immunity could be invoked by individual government actors to shield them from the consequences of committing certain serious crimes, including torture. In 1946, the Justice Department fully backed him up. That was in an era when the Justice Department counseled the president about his obligations to act consistently with his international treaty commitments. Today, notwithstanding President Obama’s assurances in Oslo, we see only evidence that the Justice Department holds those international commitments, specifically those under the Convention Against Torture, in contempt. That convention requires unequivocally that access be afforded torture victims to seek redress for damages. It also requires, again unequivocally, that a criminal investigation be undertaken into how Maher Arar came to be sent to Syria with a set of questions to be put to him by his torturers.

There are powerful reasons to inspect the conduct of the Justice Department in this case. In his brief to the High Court, acting Solicitor General Neal Katyal argued (PDF) that allowing the suit to go forward might disclose embarrassing diplomatic dealings. This specious stock argument only serves to highlight a particular sense of vulnerability at the pinnacle of the Bush Justice Department. Indeed, Katyal as much as acknowledged this when he argued that the litigation, if it were to advance, would bring into question “the motives and sincerity of the United States officials who concluded that petitioner could be removed to Syria.” That’s absolutely correct. An immigration hearing officer reviewed the evidence and concluded that Maher Arar would more likely than not be tortured if he were sent to Syria, and that he should therefore not be sent to Syria. This decision was overturned following the intervention of two young political appointees in the office of the Deputy Attorney General. The Deputy Attorney General himself, Larry D. Thompson, resigned almost immediately after the incident, creating a clear impression that he was disturbed by what had transpired. There is also strong evidence to suggest that the entire process was being monitored and advised by senior figures with the National Security Council—inside the White House.

When an internal investigation was undertaken into these matters by the Department of Homeland Security’s inspector general, senior Justice Department officials turned cartwheels to block the investigation, refusing even to disclose the identity of the political personnel who were involved in the matter, and later insisting on the redaction of almost the totality of the inspector general’s report. As I noted in my own testimony about the matter before the House Judiciary Committee, this obstruction appears to have been driven by two considerations. First, it is now clear that Justice Department lawyers made false or at least extremely misleading and incomplete statements to the federal courts addressing Maher Arar’s claims, in an ultimately successful effort to bat them down. Second, the decisions taken in the office of the deputy attorney general involve all the prima facie elements of a violation of section 2340A, the Anti-Torture Statute, and were therefore liable to be investigated and prosecuted as felonies. (It’s noteworthy that both of the DHS inspectors general involved in preparing the Maher Arar report agreed openly during the hearing with my conclusion that the evidence at hand crossed the threshold to justify a criminal investigation, and agreed that the locus of the misconduct most likely was at the top of the Justice Department.)

Hence, there is every reason to “question the motives and sincerity” of the senior Justice Department officials involved—because they may well have been engaged in criminal conduct and because they used their authority to thwart the criminal investigation that was essential to resolving the matter. But Katyal’s statement discloses another unseemly aspect of the case: rather than appear in court as an advocate of the law and the values it embraces, the Justice Department appeared as criminal defense counsel on behalf of its own officials. This attitude of unaccountability is the essential continuity between the Obama and Bush Justice Departments. It needs to be recognized for what it is: an elevation of the perks and privileges of government power above the fundamental doctrine of accountability for the exercise of such power.

Throughout this litigation, the Justice Department has attempted to hide behind Canada, insinuating that the case, if allowed to proceed, would embarrass an important ally. But our neighbor to the north offers an instructive example of how a democratic state, conscious of its duties and obligations, deals with embarrassing allegations of torture. Canada has made full disclosure of its missteps, publishing a white paper as thick as two Manhattan telephone directories, issuing a full apology to Maher Arar, and making a payment of roughly $10 million to him in compensation for the damages suffered. Most significantly, even as the Obama Administration was attempting to close the door on the matter, Canadian law-enforcement authorities announced the opening of a criminal probe designed to identify and prosecute the government actors responsible for Arar’s rendition to torture.

The Arar case is thus far from over. Arar is still waiting for an apology from the United States, and he still has his right to compensation. The Obama Administration owes both Arar and the American public a full accounting of what transpired in this case, and it owes Arar a considerable sum of money. The unnamed Justice Department political cowboys who sent Arar to be tortured in Syria need to spend some time in the spotlight, and they need to atone for their misconduct in the way the law demands. This end is called justice, and it’s what the Department of Justice has been working feverishly to subvert.

Share
Single Page

More from Scott Horton:

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

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

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

United States Canada

CATEGORIES

THE CURRENT ISSUE

September 2015

Weed Whackers

= Subscribers only.
Sign in here.
Subscribe here.

Tremendous Machine

= Subscribers only.
Sign in here.
Subscribe here.

A Goose in a Dress

= Subscribers only.
Sign in here.
Subscribe here.

The Genealogy of Orals

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Romancing Kano·

= Subscribers only.
Sign in here.
Subscribe here.

I recently spent a semester teaching writing at an elite liberal-arts college. At strategic points around the campus, in shades of yellow and green, banners displayed the following pair of texts. The first was attributed to the college’s founder, which dates it to the 1920s. The second was extracted from the latest version of the institution’s mission statement:

The paramount obligation of a college is to develop in its students the ability to think clearly and independently, and the ability to live confidently, courageously, and hopefully.

leadership
service
integrity
creativity

Let us take a moment to compare these texts. The first thing to observe about the older one is that it is a sentence. It expresses an idea by placing concepts in relation to one another within the kind of structure that we call a syntax. It is, moreover, highly wrought: a parallel structure underscored by repetition, five adverbs balanced two against three.

Article
The Prisoner of Sex·

= Subscribers only.
Sign in here.
Subscribe here.

“It is disappointing that parts of Purity read as though Franzen urgently wanted to telegraph a message to anyone who would defend his fiction from charges of chauvinism: ‘No, you’ve got me wrong. I really am sexist.’”
Illustration by Shonagh Rae
Article
Gangs of Karachi·

= Subscribers only.
Sign in here.
Subscribe here.

“In Karachi, sometimes only the thinnest of polite fictions separates the politicians from the men who kill and extort on their behalf.”
Photograph © Asim Rafiqui/NOOR Images
Article
Weed Whackers·

= Subscribers only.
Sign in here.
Subscribe here.

“Defining 'native' and 'invasive' in an ever-shifting natural world poses some problems. The camel, after all, is native to North America, though it went extinct here 8,000 years ago, while the sacrosanct redwood tree is invasive, having snuck in at some point in the past 65 million years.”
Photograph by Chad Ress
Article
The Neoliberal Arts·

= Subscribers only.
Sign in here.
Subscribe here.

“College is seldom about thinking or learning anymore. Everyone is running around trying to figure out what it is about. So far, they have come up with buzzwords, mainly those three.”
Artwork by Julie Cockburn

Percentage of Britons who cannot name the city that provides the setting for the musical Chicago:

65

An Australian entrepreneur was selling oysters raised in tanks laced with Viagra.

A naked man believed to be under the influence of LSD rammed his pickup truck into two police cars.

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

HARPER’S FINEST

Subways Are for Sleeping

By

“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”

Subscribe Today