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 Posted: Sat Nov 07, 2009 1:13 am |
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http://www.informationclearinghouse.info/article23896.htm
A Court Decision that Reflects What Type of Country the U.S. is
Even when government officials purposely subject an innocent person to
brutal torture, they enjoy full immunity.
By Glenn Greenwald
November 04, 2009 "Salon" -- It's not often that an appellate court
decision reflects so vividly what a country has become, but such is the case
with yesterday's ruling by the Second Circuit Court of Appeals in Arar v.
Ashcroft (.pdf). Maher Arar is both a Canadian and Syrian citizen of Syrian
descent. A telecommunications engineer and graduate of Montreal's McGill
University, he has lived in Canada since he's 17 years old. In 2002, he was
returning home to Canada from vacation when, on a stopover at JFK Airport,
he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c)
held for two weeks incommunicado and without access to counsel while he was
abusively interrogated, and then (d) was "rendered" -- despite his pleas
that he would be tortured -- to Syria, to be interrogated and tortured. He
remained in Syria for the next 10 months under the most brutal and inhumane
conditions imaginable, where he was repeatedly tortured. Everyone
acknowledges that Arar was never involved with Terrorism and was guilty of
nothing. I've appended to the end of this post the graphic description from
a dissenting judge of what was done to Arar while in American custody and
then in Syria.
In January, 2007, the Canadian Prime Minister publicly apologized to Arar
for the role Canada played in these events, and the Canadian government paid
him $9 million in compensation. That was preceded by a full investigation
by Canadian authorities and the public disclosure of a detailed report which
concluded "categorically that there is no evidence to indicate that Mr. Arar
has committed any offense or that his activities constituted a threat to the
security of Canada." By stark and very revealing contrast, the U.S.
Government has never admitted any wrongdoing or even spoken publicly about
what it did; to the contrary, it repeatedly insisted that courts were barred
from examining the conduct of government officials because what we did to
Arar involves "state secrets" and because courts should not interfere in the
actions of the Executive where national security is involved. What does
that behavioral disparity between the two nations say about how
"democratic," "accountable," and "open" the United States is?
Yesterday, the Second Circuit -- by a vote of 7-4 -- agreed with the
government and dismissed Arar's case in its entirety. It held that even if
the government violated Arar's Constitutional rights as well as statutes
banning participation in torture, he still has no right to sue for what was
done to him. Why? Because "providing a damages remedy against senior
officials who implement an extraordinary rendition policy would enmesh the
courts ineluctably in an assessment of the validity of the rationale of that
policy and its implementation in this particular case, matters that directly
affect significant diplomatic and national security concerns" (p. 39). In
other words, government officials are free to do anything they want in the
national security context -- even violate the law and purposely cause
someone to be tortured -- and courts should honor and defer to their actions
by refusing to scrutinize them.
Reflecting the type of people who fill our judiciary, the judges in the
majority also invented the most morally depraved bureaucratic requirements
for Arar to proceed with his case and then claimed he had failed to meet
them. Arar did not, for instance, have the names of the individuals who
detained and abused him at JFK, which the majority said he must have. As
Judge Sack in dissent said of that requirement: it "means government
miscreants may avoid [] liability altogether through the simple expedient of
wearing hoods while inflicting injury" (p. 27; emphasis added).
The commentary about this case from Harper's Scott Horton perfectly captures
the depravity of what our Government has done -- and continues to do -- to
Arar. His analysis should be read in its entirety, and he concludes with
this:
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.
I want to add one principal point to all of this. This is precisely how the
character of a country becomes fundamentally degraded when it becomes a
state in permanent war. So continuous are the inhumane and brutal acts of
government leaders that the citizens completely lose the capacity for moral
outrage and horror. The permanent claims of existential threats from an
endless array of enemies means that secrecy is paramount, accountability is
deemed a luxury, and National Security trumps every other consideration --
even including basic liberties and the rule of law. Worst of all, the
President takes on the attributes of a protector-deity who can and must
never be questioned lest we prevent him from keeping us safe.
This is exactly why I find so objectionable and dangerous the ongoing
embrace by the Obama administration of these same secrecy and immunity
weapons. Obama had nothing to do with the Arar case -- all the conduct, and
even the legal briefing, occurred before he was President -- but he has
taken numerous steps to further institutionalize the core injustice here,
including in cases that are quite similar to Arar: namely, that the
Executive can use secrecy and national security claims to shield himself
from the rule of law, even when he's accused of torture and war crimes.
That's exactly what happened here, yet again. As Judge Parker wrote in
dissent (click image to enlarge) |
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