Ignoring Maher Arar won't make his torture claims go away.

The law, lawyers, and the court.
June 16 2010 6:14 PM

Nowhere To Hide

Ignoring Maher Arar won't make his torture claims go away.

(Continued from Page 1)

No wonder President George W. Bush can now openly brag about the water-boarding policy he once denied even existed. The courts have become complicit in the great American cop-out on torture. As Arar's attorney Cole explains, in a 2009 speech arguing against the creation of a commission to investigate torture, President Obama insisted that torture suits being filed in the courts would offer sufficient accountability. But since then his administration has acted to thwart every one of those lawsuits and weighed in on the side of the torturers. The courts now refuse to consider the torture issue because it's for the president and Congress to set policy. The president promises that vindication will come from the courts. Each branch of government hides behind the others. This is the separation of powers turned into a constitutional shell game that exists only to evade responsibility.

When the federal courts decide to leave torture policy to the other branches, they duck their judicial responsibility to enforce the torture and conspiracy statutes as well as the Constitution. Doing so under the blurry cover of leaving foreign policy and lawmaking matters to the other branches may seem like judicial modesty, but modesty isn't the sole objective when it comes to doing justice. And when the courts decline to even hear torture cases, they also evade their responsibility to the rest of the world. The 2nd Circuit grounded its dismissal of Arar's complaint in the argument that it should "hesitate" to address Arar's complaint because it "would have the natural tendency to affect diplomacy, foreign policy and the security of the nation." The Obama administration pressed the same rationale in asking the Supreme Court to decline to hear the case. But all this assumes that the court's inaction on the issue of torture would have no effect on American diplomacy, foreign policy, and security. As it turns out, nothing could be further from the truth.


Each time an American court refuses to hear a torture case, the diplomatic and political aftershocks among our allies grow louder. Maher Arar indicated this week that he is now cooperating with the Royal Canadian Mounted Police in a sweeping Canadian investigation of possible criminal wrongdoing by Syrian and American officials involved in his abuse. Americans may chuckle at the prospect of the Mounties conducting a criminal investigation into U.S. torture practices, but it will surely have diplomatic and political repercussions. By the same token, another rendition victim, Khaled El-Masri, also kidnapped and abused by U.S. forces and also turned away repeatedly from the U.S. courts, took his appeal to the European Court of Human Rights this week. Like Arar, Masri has given up on obtaining justice in the United States, and, like Arar, he will seek it through international processes. By pushing the torture question out of the U.S. justice system, we haven't made it go away. We've just ensured that it will be tried in courts around the world. The suggestion that all this evasion has no effect on U.S. diplomacy and foreign policy is absurd. It's just one more way of making the rest of the world clean up our moral messes.

Each of the three branches of government has worked together to prevent a national reckoning over torture. That doesn't mean such a reckoning won't happen. It will simply happen elsewhere, without U.S. participation or involvement or acceptance of responsibility. In the end, sending a torture victim abroad to get justice is just as cowardly as sending him abroad to be tortured.

Become a fan of Slateon Facebook. Follow us on Twitter.



The Ebola Story

How our minds build narratives out of disaster.

The Budget Disaster That Completely Sabotaged the WHO’s Response to Ebola

PowerPoint Is the Worst, and Now It’s the Latest Way to Hack Into Your Computer

The Shooting Tragedies That Forged Canada’s Gun Politics

A Highly Unscientific Ranking of Crazy-Old German Beers


Welcome to 13th Grade!

Some high schools are offering a fifth year. That’s a great idea.


The Actual World

“Mount Thoreau” and the naming of things in the wilderness.

Want Kids to Delay Sex? Let Planned Parenthood Teach Them Sex Ed.

Would You Trust Walmart to Provide Your Health Care? (You Should.)

  News & Politics
Oct. 22 2014 9:42 PM Landslide Landrieu Can the Louisiana Democrat use the powers of incumbency to save herself one more time?
Continuously Operating
Oct. 22 2014 2:38 PM Crack Open an Old One A highly unscientific evaluation of Germany’s oldest breweries.
Gentleman Scholar
Oct. 22 2014 5:54 PM May I Offer to Sharpen My Friends’ Knives? Or would that be rude?
  Double X
The XX Factor
Oct. 22 2014 4:27 PM Three Ways Your Text Messages Change After You Get Married
  Slate Plus
Tv Club
Oct. 22 2014 5:27 PM The Slate Walking Dead Podcast A spoiler-filled discussion of Episodes 1 and 2.
Oct. 22 2014 11:54 PM The Actual World “Mount Thoreau” and the naming of things in the wilderness.
Future Tense
Oct. 22 2014 5:33 PM One More Reason Not to Use PowerPoint: It’s The Gateway for a Serious Windows Vulnerability
  Health & Science
Wild Things
Oct. 22 2014 2:42 PM Orcas, Via Drone, for the First Time Ever
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.