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.

Maher Arar. Click image to expand.
Maher Arar with his children

This week the Supreme Court denied, without comment, the appeal of Maher Arar, a dual citizen of Canada and Syria who was arrested in transit through JFK airport in 2002, then shipped off to Syria and tortured for 10 months. Arar's abuse allegedly included repeated beatings with electrical cables and confinement in a cell the size of a grave. When they realized they had the wrong guy—the really, totally, and utterly innocent guy—Arar was released without charges. He was then completely exonerated of any link to terror by the Canadian government, which impaneled a commission to investigate the incident, issued a 1,000-plus-page report on the matter, held its own intelligence forces responsible for their role in the screw-up, then apologized and paid Arar $9.8 million. Whereas the U.S. government—as Glenn Greenwald observes —has never apologized, never acknowledged any wrongdoing, never held anyone responsible, and, on President Barack Obama's watch, has only redoubled its efforts to prevent Arar from having even a single day in court.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

With the Supreme Court signing off on the 2nd Circuit Court of Appeals' decision to kick Arar to the curb, he has nowhere left to turn in the American courts. As Arar said in a statement issued by the Center for Constitutional Rights, the "decision eliminates my last bit of hope in the judicial system of the United States." Nor did it take any time at all for the Supreme Court's latest torture smoke signals to travel through the rest of the court system. The very same day the Supremes declined to hear Arar's case, a panel of judges on the 9th Circuit Court of Appeals was hearing arguments about former Bush administration lawyer John Yoo and his alleged role in the state-sanctioned abuse of another accused terrorist, Jose Padilla. Already one of the appeals-court judges was likening the denial of certiorari in Arar's case to the problem in John Yoo's case, worrying aloud about the courts wading in and "imposing liability on a non-policymaking lawyer." The Yoo and Arar cases thus became mirror images of each other in just a few hours: A torture lawyer cannot be held responsible for authorizing torture, and an innocent victim of torture cannot get restitution. Torture slowly becomes a singular act for which nobody will ever be held to account and nobody will ever be made whole.

Advertisement

Each time an American court declines to address this issue because it's novel, or complicated, or a matter best left to the elected branches, it reaffirms yet again that there is no precedent for doing justice in torture cases. By declining to find torture impermissible, they are helping to make it acceptable.

One of the dissenters in the 2nd Circuit's fractured opinions in Arar pointed out how bizarre it is to even suggest that there is something special about torture and rendition that insulates it from any judicial scrutiny. Citing the very language of the Convention Against Torture, Judge Barrington Parker pointed out that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." Given that this is the law, he wondered, why was the majority of the panel searching high and low for some diplomatic, national security, or supersecret policy reason to defer to the other two branches of government to set the parameters of U.S. torture policy. There is no U.S. torture policy. We don't torture. So why are the courts leaving it to Congress to set its boundaries?

There are many reasons to be horrified that the courts have ended Arar's lawsuit before it could even begin, but chief among them is that the U.S. government was responsible for a year of abuse of an innocent Canadian. Having tossed out this unconscionable case, the court makes it impossible to make space for the more ambiguous ones. As David Cole, one of Arar's attorneys put it yesterday, in a piece that ought to be read in its entirety:

In twenty-five years as a civil rights and human rights lawyer, I have never handled a case of more egregious abuse. US officials not only delivered Arar to Syrian security forces that they regularly accuse of systematic torture, but did everything in their power to ensure that Arar could not get to a court to challenge their actions while he was in their custody.

TODAY IN SLATE

History

Slate Plus Early Read: The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

Rehtaeh Parsons Was the Most Famous Victim in Canada. Now, Journalists Can’t Even Say Her Name.

Mitt Romney May Be Weighing a 2016 Run. That Would Be a Big Mistake.

Amazing Photos From Hong Kong’s Umbrella Revolution

Transparent Is the Fall’s Only Great New Show

The XX Factor

Rehtaeh Parsons Was the Most Famous Victim in Canada

Now, journalists can't even say her name.

Doublex

Lena Dunham, the Book

More shtick than honesty in Not That Kind of Girl.

What a Juicy New Book About Diane Sawyer and Katie Couric Fails to Tell Us About the TV News Business

Does Your Child Have Sluggish Cognitive Tempo? Or Is That Just a Disorder Made Up to Scare You?

  News & Politics
History
Sept. 29 2014 11:45 PM The Self-Made Man The story of America’s most pliable, pernicious, irrepressible myth.
  Business
Moneybox
Sept. 29 2014 7:01 PM We May Never Know If Larry Ellison Flew a Fighter Jet Under the Golden Gate Bridge
  Life
Dear Prudence
Sept. 30 2014 6:00 AM Drive-By Bounty Prudie advises a woman whose boyfriend demands she flash truckers on the highway.
  Double X
Doublex
Sept. 29 2014 11:43 PM Lena Dunham, the Book More shtick than honesty in Not That Kind of Girl.
  Slate Plus
Slate Fare
Sept. 29 2014 8:45 AM Slate Isn’t Too Liberal, but … What readers said about the magazine’s bias and balance.
  Arts
Brow Beat
Sept. 29 2014 9:06 PM Paul Thomas Anderson’s Inherent Vice Looks Like a Comic Masterpiece
  Technology
Future Tense
Sept. 29 2014 11:56 PM Innovation Starvation, the Next Generation Humankind has lots of great ideas for the future. We need people to carry them out.
  Health & Science
Medical Examiner
Sept. 29 2014 11:32 PM The Daydream Disorder Is sluggish cognitive tempo a disease or disease mongering?
  Sports
Sports Nut
Sept. 28 2014 8:30 PM NFL Players Die Young. Or Maybe They Live Long Lives. Why it’s so hard to pin down the effects of football on players’ lives.