Second Circuit Court of Appeals on Maher Arar Options

[Magmak1]

The Inhuman Stain: Saying Yes to State Terror
Written by Chris Floyd
Tuesday, 03 November 2009 15:07

I've been writing about the case of Maher Arar since December 2003. He is the innocent Canadian man who was seized by U.S officials on his way back to Canada and then, at the order of the Justice Department, "renditioned" to Syria, where it was known that the authorities would torture the alleged "terrorist." They did, brutally. He was finally released, and his innocence was confirmed by the Canadian government, which paid him some $9 million for its part in his ordeal. – The United States, on the other hand, made no apologies, no restitution; instead, the government has resolutely blocked any attempt by Arar to seek justice in American courts.

Now the Second Circuit Court of Appeals has dismissed his case, ruling instead that the Executive Branch can capture and torture innocent people as they please, with no legal remedy for the victim, as long as they evoke, however spuriously, the sacred doctrine of "national security." Indeed, it is entirely accurate to say that "national security," as determined solely by the president and his designated minions, is now the actual constituion of the United States, the principle by which the state is shaped and governed. Scott Horton at Harper's has the details [below].

Below is the first piece I wrote on the Arar case. It should be noted that all the draconian authoritarian powers discussed in this article – almost six years and two presidential elections later – are still in force, and still being rigorously defended by the Obama Administration.

There is a horrible scandal eating away the heart of the American body politic. Among the many corrupted currents loosed upon the nation by the Bush Regime, this scandal is perhaps the worst, for it abets all the others and breeds new pestilence, new perversions at every turn.

Last month, Maher Arar of Canada detailed his ordeal at the hands of Attorney General John Ashcroft's shadowy security "organs." On his way back home from a family holiday in Tunis, the Syrian-born Arar -- 16 years a Canadian citizen -- was seized at a New York airport. Jailed and interrogated without charges, on unspecified allegations of unspecified connections to unspecified terrorist groups, he was then summarily deported, without a hearing, to Syria. When he told the Homeland Chekists he would be tortured there -- his family was marked down as dissidents by Syria's Baathist regime -- the Chekists replied that their organ "was not the body that deals with the Geneva Conventions regarding torture." They shackled him and flew him to the American-friendly regime in Jordan; from there he was bundled across the border to Damascus.

But this is not the scandal we were speaking of.

For 10 months and 10 days, Arar was held in a dank cell in Syria: a "grave," he called it, a three-by-six unlighted hole filled with cat and rat piss falling down from the grating overhead. He was beaten over and over, often with electrical cable, for weeks on end, kept awake for days, made to witness and hear even more exquisite tortures applied to other prisoners. He was forced to sign false confessions. Ashcroft's Baathist comrades had a pre-set storyline they wanted filled in: that Arar had gone to Afghanistan, attended terrorist training camps, was plotting mayhem -- the usual template. Arar, who had spent years working as a computer consultant for a Boston-based high-tech firm, had done none of those things. Yet he was whipped, broken and tortured into submission.

But this is not the scandal we were speaking of.

Arar's case is not extraordinary. In the past two years, the Bushist organs have "rendered" thousands of detainees, without charges, hearings or the need to produce any evidence whatsoever, into the hands of regimes which the U.S. government itself denounces for the widespread use of torture. Apparatchiks of the organs make no secret of the practice -- or of their knowledge that the "rendered" will indeed be beaten, burned, drugged, raped, even killed. "I do it with my eyes open," one renderer told the Washington Post. Detainees -- including lifelong American residents -- have been snatched from the homes, businesses, schools, from streets and airports, and sent to torture pits like Syria, Morocco, Egypt, Jordan -- even the stateless chaos of Somalia, where Ashcroft simply dumped more than 30 Somali-Americans last year, without charges, without evidence, without counsel, and with no visible means of support, as the London Times reports.

But this is not the scandal we were speaking of.

Of course, the American organs needn't rely exclusively on foreigners for torture anymore. Under the enlightened leadership of Ashcroft, Bush, Donald Rumsfeld and other upstanding Christian statesmen, America has now established its own centers for what the organs call "operational flexibility." These include bases in Bagram, Afghanistan and Diego Garcia, the Indian Ocean island that was forcibly depopulated in the 1960s to make way for a U.S. military installation. Here, the CIA runs secret interrogation units that are even more restricted than the American concentration camp on Guantanamo Bay. Detainees -- again, held without charges or evidentiary requirements -- are "softened up" by beatings at the hands of military police and Special Forces troops before being subjected to "stress and duress" techniques: sleep deprivation (officially condemned as a torture method by the U.S. government), physical and psychological disorientation, withholding of medical treatment, etc. When beatings and "duress" don't work, detainees are then "packaged" -- hooded, gagged, bound to stretchers with duct tape -- and "rendered" into less dainty hands elsewhere.

But this is not the scandal we were speaking of.

Not content with capture and torture, the organs have been given presidential authority to carry out raids and kill "suspected terrorists" (including Americans) on their own volition -- without oversight, without charges, without evidence -- anywhere in the world, including on American soil. In addition to this general license to kill, Bush has claimed the power to designate anyone he pleases "an enemy combatant" and have them "rendered" into the hands of the organs or simply killed at his express order -- without charges, without evidence, with no judicial or legislative oversight whatsoever. The life of every American citizen -- indeed, every person on earth -- is now at the disposal of his arbitrary whim. Never in history has an individual claimed such universal power -- and had the force to back it up.

But this is not the scandal we were speaking of.

All of the above facts -- each of them manifest violations of international law and/or the U.S. Constitution -- have been cheerfully attested to, for years now, by the organs' own appartchiks, in the Post, the NY Times, Newsweek, the Guardian, the Economist and other high-profile, mainstream publications. The stories appear -- then they disappear. There is no reaction. No outcry in Congress or the courts -- the supposed guardians of the people's rights -- beyond a few wan calls for more formality in the concentration camp processing or judicial "warrants" for torture. And among the great mass of "the people" itself, there is -- nothing. Silence. Inattention. Acquiescence. State terrorism -- lawless seizure, filthy torture, official murder -- is simply accepted, a part of "normal life," as in Nazi Germany or Stalin's empire, where "decent people" with "nothing to hide" approved and applauded the work of the "organs" in "defending national security."

This is the scandal, this is the nation's festering shame.This acquiescence to state terror will breed -- and attract -- a thousand evils for every one it supposedly prevents.


http://www.chris-floyd.com/component/conte...ate-terror.html


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Second Circuit Affirms Dismissal of Arar

By Scott Horton

“When the history of this distinguished court is written, today’s majority decision will be viewed with dismay,” writes Guido Calabresi, the former Yale Law dean and a man widely viewed as the most illustrious living member of the Second Circuit Court of Appeals. He is lodging his dissent in a 7-4 decision of the en banc court concluding that a Canadian software engineer named Maher Arar has no right to sue government officials. What has Calabresi so worked up?

This is “hardly an ordinary immigration case,” as the majority concedes. Arar was apprehended in transit from a Mediterranean vacation to his home in Ottawa at the JFK airport. U.S. agents acting on a tip from the Canadian mounties–that turned out to be completely incorrect–seized Arar and held him for several days. Understandably, they were not going to let Arar into the country. This was fine with Arar, who just wanted to go home to Canada. But because Arar was born in Syria, Deputy Attorney General Larry Thompson, acting on the advice of two political appointees serving in the Attorney General’s office, signed an order to send him back to Syria. That decision was taken after an immigration review panel had concluded, with what turned out to be perfect accuracy, that Arar would be tortured if sent there. (Perhaps not coincidentally, Thompson resigned and departed shortly after learning the full story behind the Arar case.) Arar was turned over to the Syrians with a list of questions, and he was indeed brutally tortured for a year—to no point, of course, since Arar had no connections with any terrorist organizations. The Canadian Government, recognizing that its wrongdoing led indirectly to Arar’s mistreatment, conducted a comprehensive investigation, fully acknowledged its mistakes in a voluminous report, issued a formal letter of apology, and awarded Arar $11.5 million (Canadian) in compensation and reimbursement of legal costs. And the United States?

The United States tenaciously refused to acknowledge ever having made any mistakes—even after its own sources did so. It stonewalled Congressional probes and issued a travel ban to stop Arar from testifying before Congress. The Bush Justice Department made aggressive representations to the courts in response to Arar’s suit that strained credulity at almost every step. As in other cases, their trump card was simple: when caught with pants down, shout “state secrets!”

When the two inspectors general, Richard L. Skinner and Clark Kent Ervin, appeared before the House Judiciary Committee to testify on the matter, I was also invited as an independent expert. At one point, a committee member asked, “Is there sufficient basis to open a criminal investigation based on the conduct of the Justice Department in handling this case?” I stated that the evidence set out in the internal investigation showed that, after the immigration board concluded that Arar would likely be tortured in Syria, senior figures in the Justice Department had directed that he be sent there. This presents all the elements of a prima facie conspiracy to torture under the criminal code. Both inspectors general concurred that a criminal investigation was now warranted. Their own report produced ample evidence of gross departures from established procedures, as well as evidence that the entire case was being politically micromanaged by political figures in the attorney general’s office and in the White House, who repeatedly overrode the decisions of the professional staff. Attorney General Mukasey, however, subsequently declined to direct the investigation. It’s noteworthy that the investigation would have focused on the attorney general’s own office, which raises fair questions about why the attorney general would be the person making this decision.

Typical of the care that went into the majority opinion is this passage: “Consider: should the officers here have let Arar go on his way and board his flight to Montreal? Canada was evidently unwilling to receive him.” Had Judge Jacobs, who wrote for the majority, bothered himself a bit with the record, he would have discovered that Canada confirmed it was willing to accept him home. Moreover, this is hardly a trivial error. The gravity of the government misconduct in this case comes from the decision to send Arar to Syria when he could have been returned to Canada, sent to Switzerland, or back to Tunisia, where he had been vacationing. He was sent to Syria for a reason, and that was torture.

In the Arar case, state secrecy claims are preposterous because the diplomatic and intelligence relationship that would supposedly have been compromised was that with Canada, and the Canadians had already come clean about what had happened and confessed to their own part in it, publishing a report as thick as two Manhattan telephone books. In this process, the Canadians behaved just like a modern democracy should. So it is not damage to relations with our neighbor to the North that is a concern. Rather, it is embarrassment of political figures in Washington.

Calabresi generously accepts the suggestion that the Second Circuit acted out of concern for national security. Still, he delivers an appropriate lashing. The majority, Calabresi charges, “engaged in extraordinary judicial activism.” Its activism was aimed at extricating political actors from a precarious predicament and keeping the door firmly shut on what may well be the darkest chapter in the entire history of the Justice Department. In so doing, the court’s majority delivered an example of timidity in the face of government misconduct the likes of which have not been seen since the darkest days of the Cold War. 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

http://harpers.org/archive/2009/11/hbc-90006024

[Magmak1]

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"


http://www.informationclearinghouse.info/article23896.htm

In follow-up: http://utdocuments.blogspot.com/2009/11/blog-post.html

[rla]

How do we get our elected officials to behave in a principled manner? By behaving in a principled manner in our individual communities. If all of us do it, it will began to rub off on our leaders...