The DHS Report on Maher Arar

Marty Lederman links to the DHS OIG report on Maher Arar’s transfer to and subsequent torture in Syria. It’s really really ugly reading, even though they’ve obviously redacted a lot of the paragraphs that ought to reveal the decision making process by which we decided sending Arar home to Canada or even to Switzerland so instead sent him to be tortured (many of the redacted paragraphs are marked with "U’s,"
signifying they’re unclassified).

Anyway, some more light reading to bring with me on my trip to Minneaplis this weekend for the Media Reform Conference.

In the meantime, I’m struck by this bit from Marty:

Interestingly, in his own testimony today, the Homeland Security IG states that "we have reopened our review into the Mr. Arar matter because, less than a month ago, we received additional information that contradicts one of the conclusions in our report. As such, we are in the process of conducting additional interviews to determine the validity of this information to the extent we can."

It’s not clear what the IG is treating as conclusions. But one of the big issues in the report–predictably–was how the hell it was that DOJ reviewed Syria’s human rights record and didn’t notice (right, yeah) that Arar was likely to be tortured. So I’m curious if the IG learned some new details about that decision-making process.

38 replies
  1. MrWhy says:

    Since NOFORN has been stricken, us Canadians are allowed to download and read, I’ll presume.

  2. KenMuldrew says:

    About the only conclusion that this could refer to is that “no laws were broken”. That conclusion rested on the fact that nobody could remember why they sent him to Syria (and nothing was written down to explain that decision).

  3. KenMuldrew says:

    I’ll repost a comment that I stuck in the working thread where it was OT (but that’s where TW3K put a link to the textified version):

    At approximately 4:30 a.m. on Tuesday, October 8, 2002, Arar was served with the I-148 while being transported to an airport in New Jersey. The I-148 specified … his impending removal to Syria. An unclassified addendum was provided to Arar included with the I-148, which Arar had never seen before. … Arar never responded to the I-147. The unclassified addendum mentioned the classified addendum, which Arar never saw.

    Arar was transported by nine members of INS’ Special Response Team (SRT) in a convoy of four vehicles. The SRT members were equipped with their service weapons in addition to Remington 870 shotguns and M-4 rifles. They were wearing ballistic vests and helmets.

    Arar’s immigration attorney attempted to locate Arar by calling the Elizabeth, N] detention facility on Tuesday, October 8, 2002. However, facility officials were unable to locate Arar at the facility. … Arar’s immigration attorney learned through media articles published weeks later that Arar had been removed to Syria.

    The report indicates that he should have made a habeus petition when presented with the I-148. I know that’s what I would do when being hauled to the airport at 4:30 in the morning by nine thugs with semi-automatic weapons.

    The report concludes that because nobody remembers why they decided to send him to Syria (other than some vague recollection that if they sent him anywhere else, he could get back to Canada, and if he got to Canada, then he could get to the U.S.), no laws were broken.

      • KenMuldrew says:

        I doubt it’s anything that good. But if there was evidence that INS or DOS knew that Arar’s Syrian passport had expired in the 90’s, then a case might be made that deportation to Syria was not a legal option.

        • Petrocelli says:

          Didn’t Bush declare Syria to be one of the 3 in the “Axis of Evil” ? If Syria is such a risk to America (& other democracies like Canada) what risk might a citizen, being placed into their hands, face ? – this is what really steams me about this sordid affair.

  4. Petrocelli says:

    I just heard about this on the radio (Toronto) … thanks for getting on it so quickly, given all the fires you’re tending at present.

    There is going to be a lot of heated discussion in Canada about this … many up here feel both our governments broke laws re. Arar and knowingly committed serious Human Rights violations.

    • BoxTurtle says:

      They’re right.

      Boxturtle (And cleaning this up is going to take more than just our two countries)

  5. Funnydiva2002 says:

    My goodness, Marcy, you are one busy lady today!
    I haven’t caught up with the posts yet, let alone the comments, but wanted to thank you for all your awesome and timely work. Thanks, too to all you awesome commenters.


  6. JohnLopresti says:

    re: CAN: while I review the locally archived document set and ew’s and ML’s ever insightful, and new discussions of Arar, I wonder what came of this bulletin in August 2007 which pointed to a recension in Canada which removed some of the redactions the Canadian government included in the first publicised version of the “Report of the Events Relating to Maher Arar, Factual Background” by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. The latter three discursive documents appeared in 2006 predating by ten months the court settlement of the unredactions in 2007.

    • skdadl says:

      JL, I can’t read your first link because it seems to be behind the G&M’s silly sub wall (which in theory came down last weekend, but in practice does not include the archives). I would really like to read that text, though, if you have it.

      As I understand the situation with the redactions, Justice O’Connor contested them before the Federal Court, which mostly deferred to the government but gave in a bit. He is now appealing that decision to the Federal Appeals Court, and beyond them is the Supreme Court. Hey — the guy wants to be published! And we all love him for it.

      We also all know what the redactions are — CYA, all the way. This makes me so angry.

  7. WilliamOckham says:

    Scott Horton seems to think that the conclusion that needs revisiting is something like this:

    Even more amazingly, the entire panel of speakers (including the two IGs) agreed that it would be appropriate for a criminal investigation to be commenced looking into violations of the anti-torture statute by those involved in the case, particularly figures in the Deputy Attorney General’s office.

  8. Petrocelli says:

    My forte is yoga/meditation and so I will defer to the Canadian Legal Eagles who comment here, for greater clarity about this

  9. skdadl says:

    This will be important reading for a lot of us up here.

    I realize that the DoJ OIG’s report focused on the FBI’s activities at the main overseas sites, not on individual renditions like Arar’s, but I meant to ask masaccio whether he had run into any references to Arar (or other “rendered” subjects), or whether he could check for them. The FBI were definitely involved at the very beginning of Arar’s story. From vol. 1 of Justice O’Connor’s report:

    “At 12:55 p.m. on September 26, 2002, Staff Sergeant Patrick Callaghan of Project A-O Canada received a call from the FBI legal attaché’s office in Ottawa. The American official indicated that Maher Arar was flying into New York and was due to land about two o’clock that afternoon. According to this official, the Americans intended to question Mr. Arar, and then deny him entry into the United States. He said that Mr. Arar would be sent back to Zurich, where his flight to New York had originated. When the official asked if the RCMP had any questions for Mr. Arar, Staff Sergeant Callaghan replied that he would check and
    get back to him.”

    According to Arar’s own timeline, he seems to be saying that he knew of FBI involvement for only the first day. It sounds to me as though someone else took over at that point.

    I should add that I am so grateful to masaccio for his notes about DoJ OIG back on the Condi thread and the earlier working thread. I was just reading those early yesterday morning when my modem fried itself out. I’ve only just re-established the old connectivity (wow, but is my house clean, and I wrote half a book, ate real food, talked to real people — shame about the tooth marks in the pillows, but I don’t have a problem …). When I realized that the Condi thread was all I had to read for the indefinite future, and that even that would go when I powered down, I copied masaccio’s comments into my Word program so that I would have company for a few days (I thought it could take until Monday). I now have masaccio absolutely memorized. I could sing him.

  10. Mary says:

    A few quick points.

    *Fri – Sept 27, 2002, something happened that is not being included in the IG’s report. The Eastern Regional Director for INS did not just pull an objection to Arar being returned to Switzerland or sent to Canada out of his backside. I’d guess there were DOJ spoons in the pot at about that point – the JTTF saying he had no value must have pissed someoen off.

    *Larry Thompson, then DAG and Acting AG since Ashcroft was out of country, DIRECTLY INTERVENED to set up the torture. This isn’t the “issue a hypothetical opinion” crap, this is the Acting AG diretly intervening to direct that a detainee be sent to Syria. This is the Larry Thompson that got together with Comey and Philbin and Goldsmith to try to pressure the SJC on Haynes. This is the Larry Thompson who has been gen counsel for Pepsico for years since sending Arar off for the resulting Syrian torture, all with no one every hardly mentioning his name.

    *The Arar lawsuit was filed and on record when Clement was arguing to the Sup. Ct, that the US did not engage in things like torture. The Arar lawsuit has been on file for years worth of NO ONE at DOJ issuing lit holds on all the torture evidence littering file 13s throughout the Executive Branch.

    *The IG very likely knows darn good and well that deliberate obstuction is taking place and is bending over backwards to insulate the perpetrators by making a “finding” that all the road blocks thrown up were in good faith and not for the purpose of impeding the investigation. Bull – it’s a bare assertion with no factual context to support it.

    * The report doesn’t mention having him go without food for two days (as is in the Complaint), or the abusive questioning, or the strong arm efforts to force him to sign an authorization to send him to Syria, or the strip search, or the solitary confinement, or the fact that his family only contacted a lawyer, etc. after his call and until then they were living every day thinking he may have been killed since he had been “disappeared” from them, or the false infomration given to his lawyer [that he was being sent to a detention facility in NJ, etc.

    * the information about contacting ROME as well as Aman is pretty interesting – if the Arar torture flight touched down in Rome as well, Spataro may have another case.

    *the report fails to mention that Arar also complained of being beaten in Jordan – pretty “cleansed” on the Jordan connection all around.

    Here’s the link to Arar’s Complaint, which spells out its own progression of events.….._FINAL.pdf

    • emptywheel says:

      Thanks for those details, Mary.

      Can you clarify this, I’m not sure I understand what you think happened.

      *Fri – Sept 27, 2002, something happened that is not being included in the IG’s report. The Eastern Regional Director for INS did not just pull an objection to Arar being returned to Switzerland or sent to Canada out of his backside. I’d guess there were DOJ spoons in the pot at about that point – the JTTF saying he had no value must have pissed someoen off.

      Agree about the Thompson stuff. I wonder whether–after Thompson got named directly–he decided to bring others down with him. Horton said that people in DOJ back in November were stalling the release of this. So what unnamed ODAG lawyer was still in DOJ in NOvember that is both directly implicated and still in a position to stall the release of this?

  11. Mary says:

    OT – but related.

    Bush’s DOJ has filed a response brief to the motions by GITMO lawyers seeking to obtain information on whether they have been subjected to NSA’s illegal TSP.…..legally-sp

    Gov says it can’t answer whether or not it has been spying on US lawyers’ communications with clients without a warrant, because if it did, then North Korea and Iran could file a FOIA request to find out when and how they are being spied upon.

    Talk about your basic unethical pressure to force lawyers out of representation of the GITMO clients – telling them that their whole client pool may be facing ongoing illegal govt surveillance based on the lawyer’s continued representation of someon in the legalleper colony the loyal Bushies have set up at GITMO.

    • WilliamOckham says:

      Wow, the govt appears to say in its brief that is a-ok to classify illegal and unconstitutional acts as long as they have a good reason to classify them.

      • emptywheel says:

        I think 95% of teh lawyers in this country are going to cheer mightily on January 20, if for no other reason than these people have so badly abused the rule of law.

  12. Mary says:

    18 – I’m not sure which “this” you mean on the stalling, but I tend to wonder about the involvement of Keisler & Wainstein who are still around. Both of them have had lots of deference granted to them on nat security grounds/issues and both might well have been involvedin disucssions. And even with those who are gone, like Comey (who filed the State Secrets report) or Ashcroft, there might be friends, pals and buddies who want to keep the lid on.

    But more directly, IMO what happened involved some kind of input directly from Rice or Bush (or both) and all their apparatus to cover up culpability is still there, even if others are gone. There have been lots of allegations that “everything” got approvals from the highest levels. Thompson IMO wouldn’t have signed off (remember, this is the Thompson who began refusing to sign off on FISA applications per Lichtblau) without someone higher up making that direction. Ashcroft perhaps, or the “primaries” or the President or the Nat Sec Advisor. Bush and Rice have all kinds of backing around without it having to be someone in DOJ who was directly implicated, if I follow the question correctly.

    Someone really needs to ask Powell if anyone asked him anything about Arar. IIRC, the “modus operandi” Scheuer mentioned once upon a time was to have the Sec of State sign off on something that said the country agreed it wouldn’t torture the person being sent (not that anyone believed the represenations, but it papered the file for them).

    FWIW, I don’t think Thompson has really had to worry about taking others down – no one has pushed on him at all and DOJ & Congress have bent over backwards to protect and insulate him. Outing others will only alienate him from “the Bush club” and right now that’s the last thing he wants I would think. And let’s face it – impeachment is off the table, IGs and OPR will make sure no one has any problems for obstruction and lies, el-Masri’s suit and Trager’s opinion in Arar’s suit stand as testaments to the failure of the courts to do anything about a little Exec Branch torture – there’s really no reason for Thompson to drag anyone into a cesspool bc he hasn’t been pushed into one yet IMO. all fwiw

    Lockheed, Pepsico, Chevron, Boeing etc. – no one seems all that interested in torture connections of their lawyers.

  13. Mary says:

    21 – I won’t be cheering bc the damage done isn’t easily undoable. And no candidate running seems that interested in undoing it anyway.

    I don’t think people truly realize how pernicious all the changes to statutes and all the torture case law that has been developed over the last few years are going to be, even without the years of planting Monica’s and Rachel’s throughout DOJ and even without looking at what people become after supporting Exeuctive torture-on-a-whim for years and years.

    If some ex-AGs and ex-DAGs and ex-DOJ and ex-Presidents start looking at criminal charges, then’ll I crack out the cheer. But it just isn’t going to happen.

  14. WilliamOckham says:

    Ok, something has been bugging me all day about the dates on the Arar thing and it just dawned on me. This happened while the torture bigwigs were down at GITMO. Arar arrives at JFK at noon on Sept. 26, 2002. According to Phillipe Sand:

    On September 25, as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantánamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel.

  15. MrWhy says:

    p. 29 of 52

    On Sunday, October 6, 2002, the operations order to remove Arar was prepared, and the country clearances were requested for the escort officers and flight crew and sent to the U.S. Embassies in Rome, Italy and Amman, Jordan. These actions were taken before the protection interview was conducted, before the completion and serving of the I-148, before the CAT assessment was made, and before the assurances were provided to INS.

  16. 4jkb4ia says:

    Grammar police

    “decided sending Arar” is probably “decided against sending Arar”

  17. emptywheel says:

    footnote 27

    Seems likely the redacted bit says, in part, “AG Ashcroft declined to be interviewed for this report.”

    Or maybe it says DAG THompson did.

    Ashcroft would easily avoid being interviewed for THIS report if he was going to skip out on DOJ IG’s report. Though I need to read closer to see if contextually it’d be Ashcroft or Thompson.

  18. Mary says:

    24 – it may be that what happened on the 27th is just that the torture kids were back in town.

    The reported torture crew were, from MSNBC’s report:

    Alberto R. Gonzales, then the White House counsel and now attorney general; David S. Addington, legal counsel to Vice President Dick Cheney, now his chief of staff; Timothy E. Flanigan, the deputy White House counsel; William Haynes III, the Pentagon general counsel; Larry Thompson, then deputy attorney general; Christopher A. Wray, the principal associate deputy attorney general, now head of Criminal Division at the Justice Department; and John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel,

    and, via sailmaker citing Goldsmith’s book…..nt-1416223 :

    Goldsmith, in his book ‘The Terror Presidency” says that Addington, Philbin, Rizzo, Haynes, Alice Fisher, Goldsmith, along with several Pentagon lawyers went to Guantanemo, to the military brig in Charleston (Padilla), and Norfolk (Hamdi), on September 26, 2002. pages 99-101

    I’m not sure when Ashcroft left town, but it’s interesting that he and Thompson were both gone so close in time and that Thompson went in lieu of Ashcroft.

  19. WilliamOckham says:

    There is a problem with this:

    However, in a letter to the INS Eastern Regional Director, dated Monday, October 7, 2002, the Acting Attorney General disregarded Arar’s request to return to Canada because it would be “prejudicial to the interest of the United States.”15

    15 The Deputy Attorney General signed this memorandum as the Acting Attorney General because the Attorney
    General was out of the country at the time.

    Ashcroft wasn’t ever out of the country during this time frame. On the Oct. 7, 2002, he gave a speech in Minneapolis, MN. On previous Friday, he was in D.C. giving a press conference and speech. Of course, maybe Thompson did the letter over the weekend and Ashcroft was out of the country then.

      • bmaz says:

        Maybe he was hiding, like when there was curiously just nobody around to sign the application for the warrant that could have saved soldier’s lives.

        • WilliamOckham says:

          I’m wondering if there is something really significant about this. A brief google by this non-lawyer leads me to believe that only the AG should have been able to make the determination not to send him to Canada. Ashcroft was in D.C. on Friday when the INS attorneys say the decision was made to send him to Syria. He was back in D.C. on October 8. It looks like they cheated on the paperwork in their rush to get him out of the country before his immigration attorney figured out what was going on and filed a habeas petition.

          • MrWhy says:

            p.22 of 52

            On Wednesday, October 2, 2002, an INS attorney was brought into the Arar case for the purpose of helping to conduct the CAT assessment. The INS attorney did not know when the Syrian country determination was made, but that it was likely made before Wednesday, October 2, 2002. By that date, it appeared to the attorney that the section 235(c) proceeding and Syrian removal decisions were finalized, which triggered the need for a CAT assessment.

  20. masaccio says:

    And thanks for your kind words. And, no matter what bmaz says, I rarely sing in public when not in costume.

    Ok, I lied, my kids wouldn’t go places with me for years without extracting a promise not to sing.

  21. Mary says:

    LHP or someone with more experience on the DC front will have to chime in, but I think that whenever the AG is travelling the DAG becomes Acting because so much of what the AG needs to do is DC oriented and based. See, e.g., the fiasco that bmaz referenced with McNulty running out of the building, Clement not available, and everyone waiting on Gonzales to sign off (non-sequitor: on the application that may have lead to his resignation if it violated earlier rulings and if FISA got tough and was ready to bar him)

    So even if Ashcroft wasn’t travelling out of the country (which seems to be incorrect) if he was travelling Thompson would have been “acting” for purposes of signing off on the paperwork. But it looks like Ashcroft went from speaking at a Voting Integrity Symposium on the 8th, (which was likely in DC) to appearing with Fitzgerald in Chicago on the 9th. So he could have been travelling in the afternoon of the 8th. As a matter of fact, an appearance in Chicago on the 9th would have been good cover for a hopover into Canada on the 8th – maybe to meet with some counterparts re: Arar.

    Hard to say. Then there is the possiblity that Ashcroft was in DC and available on the 8th and that Thompson was acting for some other, yet to be disclosed, reason.

    Arar’s complaint alleges that Thompson signed the order dated Oct 8 (a Tues I think).
    The schedule WO links indicates that

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