Another absolute travesty in the arena of illegal torture and rendition, this time perpetrated by the Second Circuit US Court of Appeals. In September of 2002, the United States government detained Canadian national Maher Arad, under suspicion of membership in a terrorist organization. As you read the rest of this post, keep in mind the undisputed fact that no one currently maintains this suspicion. Maher Arad is an international businessman, with a family, who was picked up by mistake. Subsequent to his detainment, Arad was abusively interrogated without access to counsel for two weeks. Despite his pleas that he would be tortured, he was then sent in chains to Syria by way of Jordan for the express purpose of additional interrogation. He spent nearly one year in Syria being starved and beaten and confined in a coffin-sized cell. during the course of this treatment he falsely confessed to being a member of al Qaeda and having trained with terrorists in Afghanistan. (In actuality he had never been to Afghanistan.) Arad's confessions were then reported back to American officials by the Syrians. The details of Arad's American confinement can be found here. The gruesome details of what happened to Arad in Syria can be found here. After a year, Arad was released back to Canada, presumably because the Americans realized there was no point in taking the confessions seriously and that there was no additional evidence.
Arar is, quite reasonably it would seem, suing John Ashcroft and the US Government. It's worth pointing out that the Canadian government has already paid Arad a settlement of $9 million, and has produced a scathing report that not only fully exonerates Arad, but squarely places blame for the incident on both their own laxity and American malfeasance. In the case against the U.S., the government has asserted not an affirmative defense, but a state secrets privilege that, they say, precludes any adjudication of the events of Arad's rendition whatsoever, on the grounds that any investigation of the facts of the case by an independent court would represent a threat to national security. The Second Circuit Court of Appeals has sided with the government in a 7-4 decision.
This is Obama's Justice Department, making the argument that the United States literally cannot be held responsible, in any way, for anything it does in the name of security. Even if it means taking an innocent man from his family to be tortured for a year. The Court isn't saying it finds the government Not Guilty, or that the facts of the case don't support any civil culpability. It's saying that the matter can't even be adjudicated. That the Courts don't have any authority to even address the issue, based solely on the executive's assertion of that non-authority. I can't imagine anything more controversial and repugnant - I mean, one could argue that in 2002, we made some mistakes and our presence of mind should be taken into consideration. But to assert categorically that the victims of our abuses aren't entitled to any recompense, or even a fair hearing of events, seven years after the fact? I mean even if we want to claim that torturing one innocent man is worth it if torturing nine others stops a terrorist attack (an empirically dubious claim at that), wouldn't the slightest sense of human decency demand that we at least offer a formal apology and settlement to the innocent one?
Forget about who's President for a second, and take a moment to consider that this is all happening on our watch. What the American government does, it does only with the acquiescence of the American people. We - you and I and our families - are saying to the rest of the world that we reserve the right to torture innocent people. If you truly believe in self-government, there is no other way to interpret the case of Maher Arar. The longer this goes on, the more difficult it will be to dispute the accusation that America is nothing but an Ordinary Nation, with no claim to principle of any stripe. We must demand better, or in the end it's on us.
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