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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.
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."