December 9, 2008, New York – Today the Center for Constitutional Rights (CCR) argued that high-level government officials must be held accountable for sending Canadian rendition victim Maher Arar to torture in Syria. The hearing was held before twelve Second Circuit judges after their extremely rare decision to rehear the case sua sponte, that is, of their own accord without a request by either party, in August of this year.

“I hope the respected judges have listened to my lawyer's oral arguments with their hearts and do not fall in the government's trap of portraying my case as simply an immigration matter,” said Maher Arar. “The panel has the historic opportunity to hold the United States officials accountable for their actions.  Doing so will prove to the rest of the world that America is still a country where the law rules and where wronged human beings, regardless of their religion and color, can obtain justice through the courts.”

In January 2004, three months after he was released home to Canada from Syria, CCR filed Mr. Arar’s suit against John Ashcroft and other U.S. officials, the first to challenge an “extraordinary rendition,” also known as “outsourcing torture.”  In February 2006 the District Court dismissed the case on the grounds that allowing it to proceed would harm national security and foreign relations.

CCR appealed the decision, arguing before Judges Cabranes, McLaughlin, and Sack in November 2007, but the majority issued a decision in June 2008 along similar lines, with Judge Sack dissenting.  Today’s argument will determine whether Mr. Arar’s case may proceed. There is no date set for the ruling, but a decision is expected in 2009.

“The U.S. officials who sent Maher to Syria to be tortured also prevented Maher from coming to this very court to stop them,” said CCR Senior Attorney Maria LaHood. “We are now asking the court to refuse these same U.S. officials’ efforts to prevent Maher from seeking justice yet again.  We are asking the Court to say enough is enough, and to uphold the fundamental constitutional and human rights that truly make our nation free.”

Mr. Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. The Bush administration labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.

“Maher Arar is an innocent man who was stolen from his family--from his life--for a year,” said Co-Counsel Joshua Sohn of DLA Piper US LLP.  “His story should serve as a graphic reminder of what can happen if we abandon the principles upon which this country was built.  This case presents an opportunity for the courts to help us restore what we all lost through what was done to Mr. Arar.”   
The Canadian government, after an exhaustive public inquiry, also found that Mr. Arar had no connection to terrorism and, in January 2007, apologized to Mr. Arar for Canada’s role in his rendition and awarded him a multi-million-dollar settlement. Canada has also reviewed the U.S. government’s information on Mr. Arar and confirmed that it contains no additional evidence.

“U.S. officials in this case sent an innocent man to Syria to be tortured, and made sure he could not get to a court to thwart their illegal plan,” said CCR Board Member David Cole, who argued the appeal before the court. “Unlike the Canadians, the U.S. has never apologized or acknowledged any wrongdoing.  At issue here is whether our legal system provides accountability when high-level US officials violate two of the most important rights recognized by democratic societies – the right not to be tortured and the right to the protection of courts.”

Background

In June 2008, the majority on the three-judge panel ruled that Mr. Arar’s constitutional claims for being sent to Syria to be tortured and arbitrarily detained could not be redressed because Congress already provided a remedy by permitting foreign citizens to petition a court to review their removal orders, even though in this case the U.S. officials prevented Mr. Arar from doing so. The court also found these claims could not be heard because they would interfere with U.S. foreign relations and impede national security. 

Regarding Mr. Arar’s claim that the U.S. officials obstructed his access to his counsel and the courts, the majority found that foreigners who have not been formally admitted into the U.S. have no right to be assisted by their own counsel.  They further ruled that it was not clear from Mr. Arar’s complaint that had he been able to go to court, he would have sought relief under the Convention Against Torture (CAT), which precludes the U.S. from sending people to countries where there are substantial grounds to believe they will be tortured. This despite the fact that Mr. Arar’s complaint alleges that he repeatedly expressed his fear to the U.S. officials that he would be tortured if sent to Syria, and that the officials violated CAT in sending him there.
The court also rejected Mr. Arar’s Torture Victim Protection Act claim that U.S. officials conspired with Syrian officials to subject him to torture, ruling that the U.S. officials could not be held responsible unless they were acting under the influence of the Syrian officials.  However, the TVPA creates liability for torture inflicted under color of foreign law, and courts have held that it applies not only to the torturer himself, but also to those who conspire in torture.

The same Court of Appeals ruled in CCR’s landmark 1980 case Filártiga v. Peña-Irala that a Paraguayan official could be held liable in U.S. court for torture of a Paraguayan citizen in Paraguay, yet the June 2008 majority opinion found that U.S. officials who send someone to another country to be tortured cannot be held liable.

For more information on Maher Arar’s case, visit the Arar v. Ashcroft et al case page.

The Center for Constitutional Rights represents other victims of the Bush administration’s unlawful practices, from Iraqis tortured and abused at Abu Ghraib prison to Muslim and Arab men rounded up and abused in immigration sweeps in the U.S. in the aftermath of 9/11, to Guantanamo detainees in the recent Supreme Court case.  For more information on CCR’s work on illegal detention, torture and abuse at Guantánamo Bay, visit CCR's website.