SCOTUS Denies Cert for Maher Arar

Apparently, this country has deemed it okay to take an innocent Canadian citizen transiting through US airports and instead send them to a third country to be tortured. That seems to be the lesson from SCOTUS’ decision to deny Maher Arar cert in his suit against the US. From a CCR press release on the decision:

Today, the United States Supreme Court decided not to hear the Center for Constitutional Rights (CCR) case on behalf of Canadian citizen Maher Arar against U.S. officials for their role in sending him to Syria to be tortured and detained for a year.

The decision of the U.S. Court of Appeals for the Second Circuit, which the Supreme Court declined to review, was decided on the legal ground that Congress, not the courts, must authorize a remedy. As a result, the substance of Mr. Arar’s case, first filed in January 2004, has never been heard and now never will be.

Mr. Arar said, “Today’s decision eliminates my last bit of hope in the judicial system of the United States. When it comes to ‘national security’ matters the judicial system has willingly abandoned its sacred role of ensuring that no one is above the law. My case and other cases brought by human beings who were tortured have been thrown out by U.S. courts based on dubious government claims. Unless the American people stand up for justice they will soon see their hard-won civil liberties taken away from them as well.”

Last month, the Obama administration chose to weigh in on Mr. Arar’s case for the first time. The Obama administration could have settled the case, recognizing the wrongs done to Mr. Arar as Canada has done. (Canada conducted a full investigation, admitting wrongdoing, exonerated Mr. Arar, apologized, and paid him $10 million in damages for their part in his injuries.) Yet the Obama administration chose to come to the defense of Bush administration officials, arguing that even if they conspired to send Maher Arar to torture, they should not be held accountable by the judiciary.

Said CCR cooperating attorney David Cole, “The courts have regrettably refused to right the egregious wrong done to Maher Arar. But the courts have never questioned that a wrong was done. They have simply said that it is up to the political branches to fashion a remedy. We are deeply disappointed that the courts have shirked their responsibility. But this decision only underscores the moral responsibility of those to whom the courts deferred – President Obama and Congress – to do the right thing and redress Arar’s injuries.”

Lower courts concluded that Mr. Arar’s suit raised too many sensitive foreign policy and secrecy issues to allow his case to proceed, and that therefore it was the role of the political branches to authorize a remedy.

The decision does not bode well for either state secrets cases or for suits trying to hold Bush Administration officials responsible for torture (such as the Yoo appeal being heard in the 9th Circuit today).

Which I guess means we’ve officially become a country that finds protecting those who commit torture more important than justice for those who were tortured.

57 replies
  1. klynn says:

    Which I guess means we’ve officially become a country that finds protecting those who commit torture more important than justice for those who were tortured.

    This is sickening. I hope this is bold headline front page news in all Canadian papers. Please Cananda, please, raise a media stink about the injustice of this.

    Here, it will be buried in the news and hoped no US citizens even learn about it.

    The US IS Nazi Germany.

    • b2020 says:

      “The US is Nazi Germany”

      This might be misleading beyond the hyperbole.

      The Nazis were very intent on law-made-to-order – the legislature’s job was to ensure a consistent legal foundation for any and all atrocities. For example, concentration camps and work camps had their own dedicated office and civil servant recording births (if any) and deaths (in abundance), as a death without complete paperwork ultimately required a homicide investigation under German law. The most prominent – most teutonic – feature of the extermination campaign was not the genocide – there is plenty of that in the history of “civilization”, at least in aspiration – but the compulsive thoroughness with which it was implemented.

      Here in the US, it just looks like Bullshit Hour all day – nobody seems unduly worried about legal consistency and the rule of law, and various courts appear to see fit to write the supremacy of foreign policy concerns straight into the docket. It is impressive, in its own way, but the sloppiness and generally unprofessional conduct involved has nothing on Nazi Germany. The sheer size of the Homeland bureaucracy, and the incessant infighting, are somewhat comparable, and the various actors are certainly trying, but the work ethics just isn’t there. This ain’t the Forth Reich – more like a bonafide Banana Republic, but with nukes and ICBMs. Whether this should be seen as a saving grace of sorts is an open question.

      • thatvisionthing says:

        “I still can’t figure out how you murder three people in a row, accidentally even, with rags down the throat. I mean, after you just killed two, you’re doing it wrong, that’s right in the memo.”

        — Scott Horton, antiwar radio, at 30:35

  2. Mary says:

    Pragmatically, I think you’d have to say that Obama’s crew just killed Americans with pushing for and achieving that result.

    Over and over they have seen that it’s these kind of injustices that feed the desires to strike at the US and they just don’t give a rats ass. Better to protect Bush and to concentrate “power” in the Executive than to allow a little justice and thereby prevent US citizens from becoming the sacrifices to that power.

    The super duper hilarious part is that we have Lockheed et al out there, “teaching” them thar heathen folks in Afghanistan about Justice.

    I think they just learned all they need to know.

    • klynn says:

      Yep. An interesting approach to “lead by example.”

      Note: I do not think it is just Bush we are protecting here. I think we are protecting a few other countries.

      • Mary says:

        I think the sales pitch to the court is that they are protecting the US/Syria diplomatic relationship, since if you delve into whether or not he was tortured and the US knew he’d be tortured, you can’t escape that he was tortured by the US.

        And of course, it’s a good ruling for Pepsico, too. It’s General Counsel, Larry Thompson, was directly involved in the shipment to torture – gee, can’t imagine that Obama and Holder would want to provide lots of cover on that front. /s

        It sounds like maybe Arar needs to start pushing for CAN to start unsealing some of their sealed info since he’s exhausted his other routes.

          • Mary says:

            I guess their commercial response to “I’d like to buy the world a Coke and keep it company” goes something like, “You’d better buy a lot of Pepsi or Larry Thompson will have you rendered to torture” /s

            Grow apple trees and honey bees, and snow white turtle doves.


            Use EITs and object sodomy-s with free passes from the Gov.

      • Mary says:

        That crew has no shame over what they’ve done to this country. THey seriously sit around and pat themselves on the back – while collecting Lockheed & Boeing paychecks and Harvard sinecures – and they don’t even have to bother with flaterring themselves, they have a well-trained press to do it for them.

        • earlofhuntingdon says:

          I think that crew cares as much for the rule of law as a medieval baron cared for his serfs or animals, or a social Darwinist cares about social justice. The concept is anathema to them. That crew cares about only its privileges and its lack of liability, sanctioned by a cooperative church or legislature.

          • Mary says:

            It really does just pile on with having watched Judgment at Nuremberg yesterday.

            It’s like someone tried to make the movie, but without a Janning; just a lot of guys saying “hey, we didn’t realize millions would be murdered and besides, we were protecting our country” and with Spencer Tracy being told “hey, we can’t convict Germany’s leaders, as a matter of national security we need them” and him saying, “damn, I’m gobsmacked, how right you are, let’s see if they can give us a tour, maybe take us out hunting quail or sumpin after we let them off”

            Nothing serious, nothing sacred, nothing even sentient.

            • cregan says:

              The movie would have been even more to the point if they had revealed the number of Jews who were murdered when they did try to return to their homes after the war or get their businesses back. Somewhere around a few thousand in 1946.

              The “leaders” were not the only ones culpable. The citizens were not all that innocent. These things don’t grow out of nothing.

              • Mary says:

                The movie does make the point about the citizens being culpable – it has a lot of very thought provoking argument on where do you cut of liability when the citizens knew what was going on, saw and heard the children loaded into cattle cars, and did nothing.

                And that’s the point here and now as well, isn’t it? We, the people, know what was done to el-Masri, to Errachidi, to Dilawar, to 2 million Iraqis who have been made into refugees; we know what was done to Arar, we know what was done at Haditha, we know what was done at Fallujah, we know abpit the human experimentation and the disappeared children and the innocent men knowingly held in depravity for years – we know. Yet the only care or concern shown is the consideration of whether our department of justice should be a Hammer or a Wrench.

  3. skdadl says:

    I’ll just repeat myself from the last thread: this doesn’t end here. (Well, nothing ever really ends, does it?)

    Arar is not just going for a settlement, either. He is on U.S. watch lists, which gives him trouble travelling elsewhere — for a time it gave him trouble travelling within Canada, until the government stepped on that (presumably because he now has some legal clout here). His is not the only case like that. In answer to direct questions about his status and that of others, Napolitano just fogs (while continuing to damage the lives of real human beings — well, ok, Canadians, but human otherwise).

  4. BoxTurtle says:

    They couldn’t even get 5 votes to HEAR the case. I think we’ve just learned everything about Sotomeyer we need to know.

    Boxturtle (It’s a good thing I believe in karma, or I’d be really depressed)

  5. klynn says:

    Mary @ 7

    It sounds like maybe Arar needs to start pushing for CAN to start unsealing some of their sealed info since he’s exhausted his other routes.


    I think Canada can afford a bit of diplomatic uneasiness between them and the US. How could it get any worse after this decision? Canada has to do something to show their citizens that they will stand up for them against any foreign power. To do nothing is a political and national security risk Canada cannot afford to take.

    • BoxTurtle says:

      One word: Harper. He seems as much a BushCo tool as Obama. He’ll stop anything more than a sternly worded letter.

      Boxturtle (You guys do SWL’s up there?)

      • skdadl says:

        Harper’s government is neocon-Rovian. The leader of the opposition Liberals is a good friend of Cass Sunstein. Need I say more?

        • skdadl says:

          Actually, I will say a bit more. Harper has paid lip-service to the results of the O’Connor inquiry only because it happened before he became PM. In opposition, when Arar was still in Syria, he attacked then-PM Chretien’s government for (belatedly) working to get Arar back. If Harper had been PM in 2002-03, Arar would either still be in Syria or he’d be dead.

          O’Connor’s inquiry was as exhaustive as it could be — and astonishingly public — without the co-operation of the U.S., Syria, and Jordan (also implicated). Harper would never allow an inquiry like that to happen, never, not for any suspect Muslim. See his defiance of Parliament in the Khadr case. Harper loves the GWOT, loves it. He believes people like Khadr should suffer. I’m not making this up.

          • klynn says:

            See his defiance of Parliament in the Khadr case. Harper loves the GWOT, loves it. He believes people like Khadr should suffer. I’m not making this up.

            Thus, his evangelical faith gets in the way of seeing the need to carry out justice.

            He is following his evangelical Christian roots. He is not upholding Canadian justice. Evangelical Christians preach that the Brotherhood of Islam is the greatest threat to Christianity globally and that something must be done. Crusade-like language is usually used in such discussions.

            • skdadl says:

              Well, to be careful (I hate to be fair to Steve, but I should be fair to the facts): With a guy like Steve, we’re never sure we’re looking at a true believer or just a cynic who finds the true believers useful.

              There are true believers in his government, and they are his base, or part of his base. He does belong to an evangelical church (now — I don’t think those are his roots), but he keeps those cards and that language very close to the vest. He understands power, loves it, and is fairly clever at using it (although not as clever as he thinks, methinks). It may be that he actually doesn’t believe in anything else. But at this point in history, that doesn’t seem to make much of a difference, does it.

              • BoxTurtle says:

                With a guy like Steve Barack, we’re never sure we’re looking at a true believer or just a cynic who finds the true believers useful

                Funny, we know JUST where you’re coming from.

                Boxuturtle (Though I’d bet we’d get a lot more votes for “cynic”, nowadays)

            • mattcarmody says:

              If we don’t confront the black and white worldview of fundamentalists we are in for a world of hurt. We dismiss the threat of Christian fascism represented by people like Robertson, Hagee, and groups like the Family at our peril.

          • Petrocelli says:

            I’ll second everything skdadl said … Arer would’ve never gotten justice under a Harper regime.

            Stevie happily played LapDog to Dubya so that his buddies could have a market for their OilSands crude, which they want to increase tenfold … environmental concerns be damned.

              • Petrocelli says:

                Why, I’d fill that Lake with Beer ! *g*

                Seriously, I’d spend some of it to keep our bestest Hockey Players in Canada, so we can win the Cup … or you know, that feedin’ the Orphan thingy has a warm, fuzzy feel to it …

                • skdadl says:

                  Have you watched this vid, Petro? It’s actually kind of infectious — “but not real rubber bullets, that’s cruel,” etc. “But not real canoes, that’s cruel” made me laugh. (Be on alert for the sound cannon if you’re watching that — it comes towards the end.)

                  I think Harper and Clement may have outsmarted themselves with this one — people are really angry about the money, and then everyone in downtown TO is trying to find relatives or friends in the suburbs to stay with for the duration. It’s going to be a ghost town by the time the MOTUs get there.

                  • Petrocelli says:

                    LOL … Excellent video !

                    Between the MOTUs and the anarchists, Toronto will look like a Freak Circus …

  6. substanti8 says:

    This story is one more small part of the ongoing war of “national security” against democracy.  Appeasers on the Left would do well to take note.  The destruction of civil liberties is the inevitable result of allowing secrets in the first place.

  7. cregan says:

    I agree here. This case should have been heard. Not a good sign that it was turned down.

    But, as they say, Congress is the one to put in the remedy. Obama and his party have control, so why don’t they come up with a remedy?

    I do disagree with Afar about seeing our civil liberties vanish. They began vanishing as soon as different people could be taxed differently and not equally–opening the door to use the tax system for punishment as opposed to revenue raising. Equal protection of the laws went out the window on that day.

    Of course, there are a lot of excuses about why equal protection of the laws should apply to two legs and not four legs.

  8. MrWhy says:

    Maher Arar has already had his day in court in Canada, and been exonerated and compensated. I think he’s interested in exoneration in the USA because, the concept of justice aside, his current status prevents him from traveling via the USA.

    • skdadl says:

      Well, the O’Connor inquiry wasn’t exactly a court. We did learn the facts (most of them) of what the RCMP, CSIS, DFAIT, and their political directors did.

      We have yet to see some CSIS and maybe some DFAIT people, plus a few politicians, in a court answering for their active role in what happened in Syria. While they’re there, maybe we could talk to them about their active roles at GTMO. And elsewhere.

      Arar deserves to have his name cleared everywhere, but beyond that, the Canadian people deserve to know what has been done in our name.

      • MrWhy says:

        I agree with every one of your points, each of which is concerned with justice/injustice.

        What options does Arar have for pursuing justice in the USA? Does Arar have an advocate in the US Congress or the Obama administration? John Conyers, Jerry Nadler?

        • skdadl says:

          I don’t know. I run on the presumption that CCR and the ACLU and related orgs are like us: they don’t quit.

          Nadler and Delahunt definitely advocated hard for Arar in the past, and others have been on board, but I don’t know how far beyond a SWL that takes us. Arar’s own government is unlikely to try to start anything up, and we don’t appear to have a better one in the offing.

    • Mary says:

      I dunno what his motivations are, but if I had been tortured by a government that lied about the torture and then prissed around the ME, pretending to be Justice Fairies while they spread depravity – I’d want want the truth. I’d want them to have to allocute.

      That a central feature of mankind and justice – allocution.

  9. b2020 says:

    “Mr. Arar’s suit raised too many sensitive foreign policy and secrecy issues to allow his case to proceed, and that therefore it was the role of the political branches to authorize a remedy.”

    Last time I looked, that read *legislative* branch, and it means they make laws. So I guess there still aren’te enough laws regarding torture already. It’s the Legislative Dodge also applied to war powers – “need more laws”. If the existing law is inconvenient, then ask for a re-affirmation of it, and if *that* ever comes to pass, use a corrupt process to corrupt the result – the new law will be more convenient than the existing law, and the courts can be trusted not to point out the contradiction.

  10. tjbs says:

    Until we deal with the traitors that put bush in office and the roberts and alito result from that treason, nothing will change. That’s the day all hope died.

    kennedy, scalia and thomas destroyed what fragile democracy we had, traitors.

  11. Mary says:

    A particularly bad day for Barbara Boxer to send me an email asking for money for Harry Reid.

  12. Mary says:

    So skdadl/petro et al – do you put any faith in these reports:–rcmp-goes-global-with-maher-arar-torture-probe

    that the RCMP is going to have a criminal probe:

    An unprecedented RMCP probe into the Arar torture affair has gone global, with the possibility the Mounties will lay charges against U.S. and Syrian government officials involved in the case.

    Arar revealed his participation in the Mountie probe Monday, immediately following the ultimate setback in his quest for American justice …
    In a prepared statement, Arar said the U.S. high court decision “eliminates my last bit of hope in the judicial system of the United States.
    “When it comes to ‘national security’ matters the judicial system has willingly abandoned its sacred role of ensuring that no one is above the law,” Arar said.

    • Petrocelli says:

      Folks usually ask my opinion about Yoga & Chocolate Martinis – my take is … I’m really apprehensive about this.

      The Mounties botched the Air India investigation beyond belief. And with a feckless opposition, who will press the Mounties to ask the right questions to the right people ?

      Shorter answer: Looks like smoke and mirrors and I’d love to be proven wrong.

    • skdadl says:

      I’m not sure. You’ll note that that “probe” has been going on for at least four years now — I’ll check back to O’Connor’s report, which may have required the RCMP to do something like this. I suspect that’s mainly what they’re doing, checking off the boxes, and Arar’s lawyers in both countries are talking it up because … what else can they do for the time being?

      Like Petro, I’m … hesitant to answer the question. I think the RCMP are a serious police force … some of the time, under the right conditions, given better professional and political direction, etc. At least they aren’t CSIS, who are imho totally out of public control and proud of it. Their former director complained not long ago that Canadians suffer from a “deference deficit” — meaning we don’t feel deferential to CSIS! lol.

      Our little boy politicians, however, are in love with CSIS because intel is so cool and spooky and besides it doesn’t take all that much close attention to the hard stuff, like the facts.

      Any of this story sounding familiar? Don’t get me started on DFAIT (Foreign Affairs, ie State) and the armed forces.

  13. thatvisionthing says:

    I like Michael Moore’s front paging of this story:

    Suck. On. This.
    Supreme Court decides completely innocent Canadian man has no right to sue
    U.S. government for being sent to Syria to be brutally tortured

  14. cwolf says:

    I guess that settles the issue of what kind of a country this is.

    Some sort of presidential dictatorship sounds about like what we got.

  15. Mary says:

    @44 & 46 – gotcha. I had the “what else can they do” feeling too on the talking it up. It is pretty funny, anyone criticizing Canadians for not being deferential – yeah, youse guys are known for being such pushy hooligans.

    BTW – is there a way to sip a choc martini while doing downward facing dog?

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