NYT Slams Federal Appeals Court for Rendition Decision

Praising an Italian court’s recent ruling that CIA agents broke the law in an extraordinary rendition case, The New York Times today highlights a growing phenomenon that hasn’t received sufficient attention: European courts appear more willing than their American counterparts to enforce the laws protecting basic human and civil rights.

The Italian court convicted in absentia a CIA station chief and 22 other agents for abducting a Muslim cleric and sending him to Egypt, where he was tortured. Similarly, a British court recently ruled that a former detainee and torture victim has the right to obtain documents to prove he was mistreated — despite U.S. objections.

In contrast, in a recent case here in the United States, involving the abduction and extraordinary rendition of Canadian citizen Maher Arar to Syria by U.S. authorities, a federal appeals court ruled that Arar — who turned out to be innocent — has no right to redress.

Arar, as we now know, was arrested based on faulty intelligence at John F. Kennedy airport in New York, denied access to a lawyer, and shipped off to Syria for interrogation under torture. Both the Syrian and Canadian governments have since confirmed that Arar had done nothing wrong, and Arar sued U.S. officials for his unlawful treatment. Yet the Second Circuit Court of Appeals in New York recently ruled that the courts should not interfere in cases involving national security and foreign affairs — that’s for the executive and legislative branches alone.

As The Times notes today in an editorial, the ruling was an abdication of the role of the federal judiciary, which, after all, is the branch of government charged with upholding the rights granted in the U.S. Constitution.  Surely the right to be free from groundless abduction, rendition and torture is among them. As The Times’ editorial board puts it: “The ruling distorts precedent and the Constitutional separation of powers to deny justice to Mr. Arar and give officials a pass for egregious misconduct.”

What The Times neglects to mention is that another case, filed just yesterday on behalf of a U.S. citizen, raises precisely the same issues — and could meet the same fate. This time, however, as I explained yesterday, the plaintiff is a U.S. citizen, born and raised in New Jersey, abducted by U.S. authorities and held in three different African prisons where, he says, he was tortured and threatened by FBI agents, among others. He was eventually returned home without charge.

The judges who decided the Arar case earlier this month didn’t uniformly agree that he ought not be allowed to make his case in court. In fact, the 7-4 opinion spawned four dissenting opinions that are among the most eloquent statements on the role of the judiciary in upholding the U.S. Constitution that I’ve ever read.

As Judge Barrington Parker wrote, the court’s decision “risks a government that can interpret the law to suits its own ends, without scrutiny.” Parker cited a memo from former Deputy Assistant Attorneys General John Yoo and Robert Delahunty in the Bush Justice Department’s Office of Legal Counsel advising the top lawyer at the Pentagon in 2002 that the President enjoys “complete discretion” in conducting operations overseas, and that the Constitution’s Bill of Rights — such as the Fifth Amendment right to due process and the Eighth Amendment’s prohibition on “cruel and unusual punishment” — do not apply to overseas interrogations.