More of a legal disgrace and the great symbolic but often empty reality of "the Rule of Law"

'State Secrets' Privilege Derails Rendition Suit

by William Fishe

Maher Arar, whose "rendition" to Syria is widely viewed as an egregious example of mistaken identity, has again been denied the right to appear in court, and Congressional efforts to rein in the George W. Bush administration's widespread use of national security as a defense appear to be foundering. Late last month, a federal court of appeals ruled that the lawsuit brought by Arar against former Attorney General John Ashcroft, FBI director Robert Mueller and other senior government officials could not be heard. After government lawyers invoked the "state secrets" privilege, the court concluded that hearing Arar's claims would interfere with sensitive matters of foreign policy and national security. Arar, a Syrian-born Canadian, was detained on suspicion of being a terrorist at New York's John F. Kennedy Airport in September 2002 while in transit to his home in Canada from a vacation in North Africa. Based on information provided to US authorities by the Canadian government, Arar was held incommunicado for two weeks and then flown to Syria where he was imprisoned, interrogated, and tortured for close to a year. The Bush administration labeled him a member of al-Qaeda. When the government invokes the "state secrets" privilege, federal courts have routinely dismissed lawsuits because they cannot proceed with the requested evidence. Most recently, the privilege was used to dismiss a suit over the National Security Agency's warrantless wiretapping program and the government's use of detention, interrogation and "extraordinary rendition". In a rare move, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watchlist, ruling that the plaintiff, a local businessman, could find out whether his name is on the list. In one of the Arar case's more bizarre twists, the court ruled that, as a foreigner who had not been formally admitted to the US, Arar had no constitutional due process rights. It was the US government that denied Arar admission to the country. Both the Syrian and Canadian governments said they had found that Arar had no connection to any criminal or terrorist organization or activity. After an intensive two-year investigation, the Canadians apologized to Arar for Canada's role in his rendition and awarded him a 10-million-dollar settlement. The US government has stopped short of an apology to Arar, but at a recent Congressional hearing, Secretary of State Condoleezza Rice admitted that the US had mishandled the case. "We do not think that this case was handled as it should have been," Rice told the House Foreign Affairs Committee. "We do absolutely not wish to transfer anyone to any place in which they might be tortured." The court also rejected Arar's claim that US officials are liable under the Torture Victim Protection Act, for conspiring with Syria to subject Arar to torture under color of foreign law. The TVPA creates liability for torture inflicted under color of foreign law, and courts have held that it applies not only to the torturer, but also to those who aid or abet the torture. Arar alleged that US officials aided and abetted in his torture at Syrian hands, but the court ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority. Arar's lawyer, Professor David Cole of the Georgetown University Law Center, appearing on behalf of the Center for Constitutional Rights (CCR), told IPS, "The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1,100-page report, formally apologized, and awarded Mr. Arar 10 million dollars in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy." Maria LaHood, a senior CCR attorney, told IPS that her organization plans to either petition the appeals court for rehearing, or petition the Supreme Court to decide the case. She added, "Giving short shrift to the facts, the majority opinion grants impunity to US officials for sending Maher to Syria to be tortured and for preventing him from seeking relief in the courts. The defendants have again blocked Maher's access to justice, this time with the court's seal of approval." Meanwhile, legislation to curb the government's use of the state secrets privilege appears to be stalled in Congress. In April, the Senate Judiciary Committee approved a bill that attempts to limit the government's use of the state secrets privilege. The bill was introduced by Sens. Edward Kennedy, Massachusetts Democrat, and Pennsylvania's Arlen Specter, the senior Republican on the Judiciary Committee. It would create a uniform set of procedures for federal judges to employ when the government asserts the privilege. It would require the government to produce the evidence it says is protected for review by a federal judge in a classified setting. The government would be unable to rely on affidavits as it has in the past. It also would prevent judges from dismissing cases based on the privilege before plaintiffs have had a chance to engage in evidentiary discovery. "It's long past time for Congress to address the state secrets privilege. Congress needs to ensure – and the American people need to feel confident – that the courts are adjudicating the privilege properly and not just giving the executive a free pass. No one in America should be above the law. That's why this legislation is so critical," Sen. Kennedy said. But the bill lacked bipartisan support on the committee. Only one Republican, Sen. Specter, voted to move it to the Senate floor for a vote. The Senate has many bills backed up in its queue and little time to even get them introduced, much less put to a vote. Moreover, its calendar has become increasingly dominated by elections in the fall. Nonetheless, there has been other recent action in Congress. The Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties and the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight, held a joint oversight hearing in June on the report of the Department of Homeland Security Office of Inspector General on Arar's removal. Arar testified at the hearing – the first time he has appeared before any US governmental body. His testimony was via video because he is still on the government's "no-fly" watchlist. During the hearing, individual members of Congress publicly apologized to him, though the government has not. At the hearing, DHS Inspector General Richard G. Skinner announced that his office has reopened its investigation of the government's treatment of Arar. He told the hearing that he could not rule out the possibility that immigration officials violated a law that prohibits the US government from sending anyone to a country where he or she is likely to be tortured, especially since investigators were not allowed to question all participants. Earlier, Skinner's testimony and a 50-page report found that US immigration officials acted appropriately in determining that Arar could be expelled. But he said immigration authorities concluded that sending Arar to Syria "would more likely than not result in his torture" and relied on "ambiguous" assurances from Syria that he would not be. Skinner also questioned US officials' minimal efforts to notify attorneys for Arar before a late-night hearing where he could argue his fear of torture. Original article posted here.

Robert Fisk bringing alive the disgrace of the CIA's torture

Robert Fisk: Warning... this film could make you angry

At university, we male students used to say that it was impossible to take a beautiful young woman to the cinema and concentrate on the film. But in Canada, I've at last proved this to be untrue. Familiar with the Middle East and its abuses – and with the vicious policies of George Bush – we both sat absorbed by Rendition, Gavin Hood's powerful, appalling testimony of the torture of a "terrorist suspect" in an unidentified Arab capital after he was shipped there by CIA thugs in Washington.

Why did an Arab "terrorist" telephone an Egyptian chemical engineer – holder of a green card and living in Chicago with a pregnant American wife while he was attending an international conference in Johannesburg? Did he have knowledge of how to make bombs? (Unfortunately, yes – he was a chemical engineer – but the phone calls were mistakenly made to his number.)

He steps off his plane at Dulles International Airport and is immediately shipped off on a CIA jet to what looks suspiciously like Morocco – where, of course, the local cops don't pussyfoot about Queensberry rules during interrogation. A CIA operative from the local US embassy – played by a nervous Jake Gyllenhaal – has to witness the captive's torture while his wife pleads with congressmen in Washington to find him.

The Arab interrogator – who starts with muttered questions to the naked Egyptian in an underground prison – works his way up from beatings to a "black hole", to the notorious "waterboarding" and then to electricity charges through the captive's body. The senior Muhabarat questioner is, in fact, played by an Israeli and was so good that when he demanded to know how the al-Jazeera channel got exclusive footage of a suicide bombing before his own cops, my companion and I burst into laughter.

Well, suffice it to say that the CIA guy turns soft, rightly believes the Egyptian is innocent, forces his release by the local minister of interior, while the senior interrogator loses his daughter in the suicide bombing – there is a mind-numbing reversal of time sequences so that the bomb explodes both at the start and at the end of the film – while Meryl Streep as the catty, uncaring CIA boss is exposed for her wrong-doing. Not very realistic?

Well, think again. For in Canada lives Maher Arar, a totally harmless software engineer – originally from Damascus – who was picked up at JFK airport in New York and underwent an almost identical "rendition" to the fictional Egyptian in the movie. Suspected of being a member of al-Qa'ida – the Canadian Mounties had a hand in passing on this nonsense to the FBI – he was put on a CIA plane to Syria where he was held in an underground prison and tortured. The Canadian government later awarded Arar $10m in compensation and he received a public apology from Prime Minister Stephen Harper.

But Bush's thugs didn't get fazed like Streep's CIA boss. They still claim that Arar is a "terrorist suspect"; which is why, when he testified to a special US congressional meeting on 18 October, he had to appear on a giant video screen in Washington. He's still, you see, not allowed to enter the US. Personally, I'd stay in Canada – in case the FBI decided to ship him back to Syria for another round of torture. But save for the US congressmen – "let me personally give you what our government has not: an apology," Democratic congressman Bill Delahunt said humbly – there hasn't been a whimper from the Bush administration.

Even worse, it refused to reveal the "secret evidence" which it claimed it had on Arar – until the Canadian press got its claws on these "secret" papers and discovered they were hearsay evidence of an Arar visit to Afghanistan from an Arab prisoner in Minneapolis, Mohamed Elzahabi, whose brother, according to Arar, once repaired Arar's car in Montreal.

There was a lovely quote from America's Homeland Security secretary Michael Chertoff and Alberto Gonzales, the US attorney general at the time, that the evidence again Arar was "supported by information developed by US law enforcement agencies". Don't you just love that word "developed"? Doesn't it smell rotten? Doesn't it mean "fabricated"?

And what, one wonders, were Bush's toughs doing sending Arar off to Syria, a country that they themselves claim to be a "terrorist" state which supports "terrorist" organisations like Hizbollah. President Bush, it seems, wants to threaten Damascus, but is happy to rely on his brutal Syrian chums if they'll be obliging enough to plug in the electricity and attach the wires in an underground prison on Washington's behalf.

But then again, what can you expect of a president whose nominee for Alberto Gonzales's old job of attorney general, Michael Mukasey, tells senators that he doesn't "know what is involved" in the near-drowning "waterboarding" torture used by US forces during interrogations. "If waterboarding is torture, torture is not constitutional," the luckless Mukasey bleated.

Yes, and I suppose if electric shocks to the body constitute torture – if, mind you – that would be unconstitutional. Right? The New York Times readers at least spotted the immorality of Mukasey's remarks. A former US assistant attorney asked "how the United States could hope to regain its position as a respected world leader on the great issues of human rights if its chief law enforcement officer cannot even bring himself to acknowledge the undeniable verity that waterboarding constitutes torture...". As another reader pointed out, "Like pornography, torture doesn't require a definition."

Yet all is not lost for the torture lovers in America. Here's what Republican senator Arlen Spector – a firm friend of Israel – had to say about Mukasey's shameful remarks: "We're glad to see somebody who is strong, with a strong record, take over this department."

So is truth stranger than fiction? Or is Hollywood waking up – after Syriana and Munich – to the gross injustices of the Middle East and the shameless and illegal policies of the US in the region? Go and see Rendition – it will make you angry – and remember Arar. And you can take a beautiful woman along to share your fury.

Original article posted here.

When torture isn't enough

The Hounding of Maher Arar

Syria tortured him. Ottawa cleared him. Washington hounds him.

The absurd has nothing on the war on terror. Maher Arar is the Canadian wireless technology consultant who’d been vacationing in Tunisia when, on a lay-over at John Kennedy Airport on Sept 26, 2002, American authorities seized him, sent him to Syria via Jordan (“rendered him” as part of their outsourced torture program) and let Arar languish in a Syrian jail, where he was beaten and “kept in a coffin-size dungeon” for ten months. He was then released, a tacit admission that neither the Syrians nor the Americans had managed to tag him with any link to terrorism. And in fact he had none. Last September, following a federal investigation, the Canadian government essentially said this: “our bad.” Canadians had sent the U.S. faulty information on Arar. “The inquiry, which focused on the Canadian intelligence services, found that agents who were under pressure to find terrorists after the attacks of Sept. 11, 2001, falsely labeled … Arar, as a dangerous radical,” the Post reported. They asked U.S. authorities to put him and his wife, a university economist, on the al-Qaeda “watchlist” without justification, the report said. Arar was also listed as “an Islamic extremist individual” who was in the Washington area on Sept. 11. The report concluded that he had no involvement in Islamic extremism and was on business in San Diego that day. (Makes you wonder how many of those 14,000 individuals illegally heldby American authorities in Iraq, Afghanistan and elsewhere, without charge, have been condemned on the basis of similarly bogus tips.) But the Canadian commission also found that at no point did Canadian authorities agree to the detention or rendition of Arar to Syria.

It gets worse. The Canadian government has since been trying to make amends. In December the Canadian Arar Commission released a second report, this time recommending a full review of intelligence agencies’ procedures, information sharing and cooperative methods with foreign agencies. But the Arar story has already been replicated. Arar himself at his web site explains why he made his story public three years ago. “My third objective,” he wrote, “was to make sure that this does not happen to any other Canadian. Unfortunately this has already happened to three other Canadian citizens: Abdullah Almalki, Ahmad El-Maati and Muayyed Nureddin. The similarities between their cases and mine are striking. We were all detained at the same branch of the Syrian military intelligence, tortured by the same people and asked questions that would be of interest to Canadian police and security agencies. It is my hope that the government acts on its promise and holds an independent review of their cases, as recommended by Justice O’Connor in his report.”

The United States, by the way, never participated in the original inquiry that cleared Arar. Why? Because the United States doesn’t do foreign policy or national security in tandem with other nations unless it has something to gain from it. In the all-telling words of Richard Armitage, the Bush junta’s deputy secretary of state and Colin Powell’s right-hand man, “Look, fucker, you do what we want.” And so, for a while, the Canadians did. This week, the Canadian government asked the U.S. government to remove Arar from a terrorist watch list. The list obviously keeps Arar from traveling freely to the United States, and given the American government’s tendency to share some damaging information about foreigners in its dossiers, it could also make it difficult for him to travel elsewhere. The U.S. government’s response? “It's a little presumptuous for [ Canada] to say who the U.S. can and cannot allow into our country,” the American ambassador to Canada, David Wilkins, told reporters in Edmonton. So Arar’s story comes full circle. The man who’d have likely never raised an eyebrow from American border cops and the FBI but for a warning from Canada that proved false is now tagged for life as a potential terrorist because the United States refuses to comply with a Canadian inquiry clearing Arar of all suspicions.

Kafka wouldn’t have been surprised. The sad fact is that who among us is anymore? This is how the American government operates now, its methods (if not quite its actual governance, yet) no longer substantially dissimilar from those of East Germany, Czechoslovakia and the old Soviet Union in those heady days of cold-eyed suspicions and hot-tempered intrigues. The absurdity of those cold war days lent itself to the sort of comical movies starring Double-Oh Seven and irony drenched novels by Graham Greene and John LeCarré. There was even a touch of humor in the whole situation. But where’s the irony, where’s the humor in any of these stories involving law-abiding citizens plucked out of their lives, literally tortured, returned to their former lives with half-apologies, then kept shackled to the very guilt by suspicion that their government has admitted fabricating?

“I hope that many lessons have been learned from my case,” Arar writes at his web site. “Canadians have invested time, effort and money in this inquiry. Now is the time to make sure this investment pays off, by insisting that the government implements all of Justice O'Connor's recommendations. Doing so will help Canada restore its tarnished reputation for promoting and protecting human rights around the globe.” But Canada is unfortunately a bit player in these affairs. It’s the United States that sets the tone, deciding a man’s fate whether he’s a lost sheepherder on an Afghan plain or a computer engineer across the border from Michigan.

Original article posted here.