Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Nowhere are the legal, political, and anti-terror philosophies between the United States and Canada more apparent than they are in the case of Maher Arar. He is the Syrian-born Canadian citizen who was traveling back to his home five years ago when he was arrested at Kennedy Airport by U.S. officials. Acting upon faulty intelligence from the Canadians, the feds promptly "rendered" the Ottawa engineer to Syria, where he was tortured.
What did the Canadian government do when it discovered that it had made a grievous mistake? It launched an official inquiry, held hearings, publicly apologized to Arar, and then paid him $10 million in compensation for its errors. What has the American government done? It refused to participate in the Canadian inquiry, stalled a meaningful lawsuit brought by Arar, refused to officially apologize to him and continues whenever possible to call him a member of al Qaeda.
The sorry story is back in the news again because the 2nd U.S. Circuit Court of Appeals held oral arguments Friday to determine whether Arar's civil lawsuit against the U.S. government may proceed toward trial. The feds claim that they have immunity from Arar's lawsuit for money damages and that it may not continue any further because it would require the government to reveal secret interrogation policies and procedures. They argue they don't need to explain in court whether and to what extent they violated the law when they "outsourced" Arar to a nation known for its brutal interrogation tactics.
Early last year, a federal trial judge ruled against Arar, determining that it was not within the province of the judiciary to flesh out his allegations against the government. But that was 20 months ago - an eternity in the legal war on terrorism. And in the interim a lot of bad medicine - namely, distrust - has flowed between the executive and judicial branches when it comes to terror law. Arar's appeal court judges, then, seemed far more sympathetic to his plight than did the first judge who reviewed the case.
In fact, the judges were sympathetic to the point of ridiculing the defendants. When a lawyer for John Ashcroft (he's a defendant because he was attorney general in 2002) asserted that Arar had "unequivocal" membership in al Qaeda, one of the judges, Robert D. Sack, interrupted to ask whether Ashcroft still believed that Arar was a terrorist. Here's how Canada's Globe and Mail reported the rest of the exchange:
The lawyer replied that he was not at liberty to discuss the government's view. "So we will make believe he's a member of al-Qaeda?" asked Judge Sack, as the audience chuckled.
But that wasn't all. Justice Department lawyer Jeffrey Bucholtz argued that the feds in 2002 did the right thing when they shipped Arar to Syria instead of simply ensuring that he returned to Canada (which is where he was headed, remember). "There was no way to make sure he got on the bus to the terminal," Bucholtz told the court. "He was going to Canada!" Judge Sack said. "The question is not whether he was going to be conspiring with al-Qaeda on the bus between the Air Canada terminal and the airport building."
It's hardly a man-bites-dog story any more when federal judges question White House anti-terror policies. But what is astonishing about this in-court episode is our government's continuing failure or refusal to do right by Arar. The feds continue to say that it was in the nation's best interest to send Arar to Syria and that it did not seek Canadian approval or consent to do so. And, just to make sure everyone is clear about how the Americans view Arar, he continues to reside on the government's no-fly list and may not return to the United States until 2012.
The American response to the Arar case does not excuse the Canadian role in the affair. Indeed, this was a conspiracy between and among three nations - including one, Syria, which millions of Americans believe is a terrorist state. No one truly expects common decency and the acceptance of responsibility from the Syrians. And no one truly expects our government to bend over backwards as the Canadians did to get to the bottom of the Arar story. But surely we have a right to expect more accountability from our own government.
A few weeks ago, a few members of Congress formally apologized to Arar when he appeared via satellite before a House panel. But the White House and Justice Department made it clear in court on Friday that no formal legal apologies are in the offing. Instead, and until the courts say otherwise, the Arar story is going to continue here in the States as it began: with poor judgment, bad intelligence and a complete lack of regard for the dignity of a single human being.
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