The Supreme Court has in some cases been willing to temper the excesses of the war on terror, most notably in ruling that inmates at Guantanamo have the right to challenge their confinement in U.S. courts. But last week, it fell down on the job when it refused to consider the case of Maher Arar, the victim of an egregious and shocking violation of rights by the U.S. government
In September 2002, Arar, a dual Canadian Syrian citizen, was detained while changing planes at New York's John F. Kennedy International Airport, based on inaccurate Canadian intelligence linking him to terrorists. After being held by U.S. authorities for 12 days, he was flown to Jordan and then transported to Syria, where he was imprisoned and tortured for a year. His mistreatment was not the result of blunders by minor bureaucrats. According to Arar's complaint, the deputy U.S. attorney general signed off on his transfer to Syria.
Arar sued several U.S. officials, including former Atty. Gen. John Ashcroft, citing both the Torture Victim Protection Act and the U.S. Constitution's guarantee of due process. The U.S. 2nd Circuit Court of Appeals in New York dismissed Arar's suit, holding that the "special factors" of extraordinary rendition — the program under which suspects were removed to another country for questioning — warranted "hesitation" by the court in recognizing his claims.
Although the court didn't specifically invoke the "state secrets" doctrine asserted by both the Bush and Obama administrations in other litigation, the "special factors" it cited included considerations of "diplomacy, foreign policy and the security of the nation" — matters it suggested were best left to the executive and legislative branches. If someone in Arar's position is to have a claim for damages, the courts said, Congress must legislate new procedures.
The appeals court opinion didn't just ignore the moral imperative of giving a torture victim his day in court. It also gave short shrift to the role of the judiciary in vindicating individual rights and begged a wealth of legal questions that the Supreme Court should have agreed to resolve, including whether U.S. officials can violate a suspect's rights by subcontracting his interrogation to a foreign regime. Yet the high court last week refused to intervene. Its abdication of responsibility leaves it to Congress to right this wrong.
Canada has apologized to Arar and paid him almost $10 million in compensation for his ordeal. President Obama — who has trumpeted his rejection of the Bush administration's anti-terror policy — should insist that Congress do no less.