Lawyer: Ruling places executive officials ‘above the law’

A Canadian citizen who was wrongly identified as a terrorist suspect and reportedly tortured in a Syrian prison for nearly a year after US authorities sent him there has lost his bid to sue the US government.

In a 7 to 4 decision, judges on the 2nd US Circuit Court of Appeals ruled that Maher Arar, a Syrian-born Canadian engineer, cannot sue the Justice Department because the lawsuit would “offend the separation of powers and inhibit this country’s foreign policy,” the judges stated.

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In September, 2002, as he headed home to Canada from a vacation, Arar was detained by US authorities at New York’s JFK Airport on suspicion of links to terrorism. After 12 days in US custody, Arar was put on a plane to Syria, the country of his birth, where he says he spent a more than ten months in a “grave-like” cell being interrogated and tortured before being sent home at Canada’s request.

Subsequent investigations found Arar had been wrongly flagged as a terrorist suspect by the Royal Canadian Mounted Police, because he had acted as a reference on an apartment rental application for another individual who was under surveillance in Canada. It also emerged that Canada’s spy agency suspected the US would likely send him to abroad to be tortured.

In 2004, Arar was the first person to sue the US over the practice of “extraordinary rendition,” a program that sent terrorist suspects to countries where they could be tortured within the confines of the local law. Arar named the Justice Department and then-Attorney General John Ashcroft in his lawsuit.

The Circuit Court’s decision “leaves the federal officials involved free of any legal accountability for what they did,” the Center for Constitutional Rights said in a statement released Monday. The CCR is representing Arar in his legal actions against the US government.

“This decision says that US officials can intentionally send a man to be tortured abroad, bar him from any access to the courts while doing so, and then avoid any legal accountability thereafter,” said attorney David Cole, who argued the case before the court. “It effectively places executive officials above the law, even when accused of a conscious conspiracy to torture.”

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In 2006, a Canadian commission of inquiry issued a report (PDF) stating that “there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada.”

Arar has had better luck extracting justice from the Canadian government than he has from the US government. In 2006, Canada agreed to pay him $10 million for his suffering, and issued a formal apology. The US has not followed suit, and the Justice Department continued to claim that Arar was a risk to the US, despite being cleared by the very authorities who alerted them.

The Justice Department has since argued that Arar was sent to Syria based on an “internal threat assessment,” and not on the faulty information handed them by Canada.

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Arar released the following statement on Monday: “Unfortunately, this recent decision and decisions taken on other similar cases prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law.”

The Associated Press reported:

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At stake in the lawsuit was the court’s role in reviewing the practice of “extraordinary rendition” in which someone suspected of supporting terrorism is transferred to a foreign nation for imprisonment and interrogation without formal charges, trial or court approval. The appeals court said it was hesitant to create “a new damages remedy that Congress has not seen fit to authorize.” It added: “Even the probing of these matters entails the risk that other countries will become less willing to co-operate with the United States in sharing intelligence resources to counter terrorism.”

The Center for Constitutional Rights noted that not all judges agreed with the ruling. In a dissenting opinion, Judge Guido Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”