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.
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.
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.
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.
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