The Globe & Mail (11.3.09)

Maher Arar's U.S. lawsuit rejected

Victims of extraordinary rendition have no recourse to sue Washington for torture suffered overseas, appellate court rules

Maher Arar and other victims of U.S. “extraordinary rendition” policies have no recourse to sue Washington for torture suffered overseas unless lawmakers first vote to allow such suits, an appellate court has ruled.

“Our ruling does not preclude judicial review and oversight in this context,” the Second Circuit Appeals Court ruled today in a 7-4 verdict against Mr. Arar's long-standing suit against the Bush Administration. “But if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters.”

The practice of “extraordinary rendition,” which involves U.S. agents secretly facilitating the arrests of terrorism suspects and routing them to foreign jails in either legal limbos or police states, was first pioneered by the Clinton Administration. However, the Bush Administration took a much more aggressive stand in shipping suspects abroad to face interrogation and likely torture.

That includes Mr. Arar, a Syrian-Canadian jailed in his homeland from 2002 to 2003, but later cleared of involvement in terrorism by a Canadian judicial inquiry.

Led by the Central Intelligence Agency, extraordinary renditions are shadowy subjects that a flurry of lawsuits and court complaints have lately shone a light upon. An Italian court is to deliver a verdict this week in a case involving the prosecution of 26 CIA agents who allegedly snatched a fundamentalist cleric off the streets of Milan and sent him to an Egyptian jail. (Washington is refusing to surrender the agents.)

Within the United States, judges are proving highly deferential to presidential authority and state-secret privileges. The suit launched by Mr. Arar was seen by civil libertarians as one of the best hopes of reining in future renditions. (The Obama Administration is poised to continue the practice.)

For years, Mr. Arar, who resides in Ottawa, was seeking to sue Washington for his being tortured in Syria following the unusual decision to deport him from the United States as a presumed al-Qaeda suspect in 2002. A distinct Canadian lawsuit launched by Mr. Arar had been more successful, leading to a mediation with federal government officials that awarded his family a near-record $10.5-million in damages.

The New York-based Center for Constitutional Rights has been backing the Arar case and Monday responsed to the appellate court ruling.

Saying that Mr. Arar “was not available to comment” directly, the group issued the following statement on his behalf: “After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch. Unfortunately… the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law.”

The core allegations in both the Canadian and U.S. lawsuits were essentially the same.

Branded an al-Qaeda suspect in the aftermath of 9/11, Mr. Arar was put under scrutiny by Canadian and American officials who exchanged information about him prior to his Middle East ordeal.

While in transit from Tunisia to Canada, he was arrested in JFK Airport in New York and initially held for two weeks inside the United States. Then, he was hustled onto a U.S. Central Intelligence Agency jet.

Mr. Arar spent most of the next year in a Syrian prison – the same facility where two other Canadian Arab suspects had been jailed and interrogated after first surfacing in the same RCMP investigation.

After nearly a year in custody, Mr. Arar was let go, and fought to clear his name upon returning to Canada.

A groundswell of public opinion led to a Canadian commission of inquiry. Peeling back layers of federal secrecy, Mr. Justice Dennis O'Connor eventually found that Mr. Arar and the other Canadian suspects were severely tortured in Syria.

The inquiry found there was no substance to the initial RCMP allegation that Mr. Arar was a probable al-Qaeda terrorist. The inquiry also found that Canadian officials were unintentionally complicit in overseas torture.

Judge O'Connor's remit never allowed him to explore the actions of U.S. agencies, which took a more direct hand in events, and whose agents have never apologized for their role in Arar affair.

Mr. Arar's U.S. lawyer, Maria LaHood, said Monday that no decision has been reached yet on whether to initiate a Supreme Court appeal.