Maher Arar is a Canadian citizen. In 2002 his employer needed him back in Montreal from a vacation in Tunisia. Canadian officials relayed some erroneous information to American officials who picked him up en route in New York, imprisoned him, and denied him the ability to call or reach counsel.
He eventually met a Canadian consular official but the United States arranged for his “rendition” to Syria to have supposed information tortured out of him. No hearing. No opportunity to contest the charges. No opportunity to plead the Eighth Amendment bar on cruel and unusual punishment or the international Convention Against Torture which is part of American law.
In Syria he was tortured as planned. His torture was painful, continuous, and unjustified. After several weeks it became clear that he had been fingered erroneously and the torture, but not the detention in Syria, stopped. He was released to Canadian officials after a year in captivity.
The Canadian government admitted its own wrongful behavior and made a seven figure payment to Arar to atone for its behavior and help get Arar back on his feet. The U.S. has stonewalled Arar and now the U.S. Court of Appeals says no foul, Arar is not entitled to anything for the misbehavior of American officials.
I know, respect and like members of the Court of Appeals on both sides in this case. But there is no gainsaying the fact that this is a huge miscarriage of justice and a large tear in the fabric of our Constitution.
The Fifth Amendment reads “No person shall … be deprived of … liberty … without due process of law.” It has long been understood that the Fifth Amendment Due Process and Self-incrimination clauses protect against torture before trial while the Eighth Amendment protects against it after. Courts consistently hold that Due Process includes the right to be informed of charges, present witnesses and have the assistance of counsel. Those provisions and others in the Fourth, Fifth and Sixth Amendments, and elsewhere in the Constitution, set up a system of fair process designed to get at truth by accurate and civilized methods. It excludes entirely the techniques of tyranny.
But our constitutional safeguards embarrass our courts which have been taking them apart, authorizing the tactics of a police state. The Second Circuit has now held that Arar had no claim because it is not enough that our Constitution and law made his treatment illegal. The Court held that Congress also had to have specified what unconstitutional behavior he could sue about. In other words the Court held that the Constitution means only as much as Congress wants it to mean. To add insult to injury, the judges of our federal courts who make a great deal of their judicial “self-restraint” read the word “citizen” into an Amendment where it cannot be found so that other hapless individuals within our shores can be singled out for the grossest mistreatment.
Now all of this outrageous and unjustifiable misbehavior by American officials in the Bush Administration from the Attorney General down to the jailors in New York has been wrapped in a judicial bow of protection. I am embarrassed to call this “law” and ashamed that the lawless behavior of tyrants is protected in my country.
All of this is in the name of judicial self-restraint, avoiding second guessing the decisions of our elected officials. The judges say that they, as unelected judges, are too likely to make mistakes. Unfortunately they are most likely to get it wrong when they look for safety by circling the wagons with the very people for whom they are supposed to act as checks and balances.
This commentary was broadcast on WAMC Northeast Report, November 10, 2009.