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Court to Re-hear Syria Extradition Case

In a rare move on the part of a federal court of appeals, the Second Circuit yesterday sua sponte announced that the entire court (all 22 judges) would re-hear the controversial case of Maher Arar, 34, the Canadian citizen of Syrian descent who U.S. authorities arrested in 2002, while he was changing planes at JFK airport, and extradited to Syria to be interrogated under torture. Arar was moved under the secret U.S. policy of “extraordinary rendition.”

According to his complaint, the facts of which were confirmed by an exhaustive investigation by the Canadian government, Arar was an innocent computer-technology consultant returning to Canada after visiting family in Tunisia, when he was arrested in New York, harshly interrogated, denied access to counsel and flown to Syria against his will. Arar had left his native land at age 17, and begged not to be sent back there because he’d avoided military service. He said that he had good reason to believe authorities would torture him on his return.

Sure enough, Arar was imprisoned in a grave-like underground cell, and brutally interrogated and tortured in Syria for the next year. He eventually broke down and “confessed” to having trained in Afghanistan — though he’d never even been there. A good example of how torture is not only brutal, but rarely leads to accurate information. Arar suspects the Syrian interrogations were coordinated with U.S. officials, since he was asked essentially the same questions in both places.

On Oct. 5, 2003, Arar was released. Syrian authorities could find no link to terrorism, and no charges were ever filed against him. He was returned to Canada, where he was reunited with his wife and children. He has never been charged with any crime.

Nonetheless, when Arar sued U.S. officials for sending him to Syria to be tortured, his case was dismissed on the grounds that investigating the case could reveal state secrets and harm national security. What’s more, the court ruled that, as a foreigner deported by immigration authorities, he had no right to challenge his treatment – not even his torture.

Though a three-judge panel of the Second Circuit affirmed the trial court’s decision in January, yesterday’s announcement suggests that many of the judges are troubled by the extraordinary implications of the court’s decision: an innocent person can be detained, extradited and tortured in a foreign country — with the complicity of U.S. officials — and have no recourse whatsoever against the U.S. government.

“I imagine that many judges will think there has to be some judicial forum to hear at least these core claims about torture,” said Michael Wishnie, a clinical professor at Yale Law School who specializes in immigration and civil rights. “Whether every single claim deserves a judicial forum, I can’t predict. But I have to think that the part most objectionable is that nothing raised here gets any hearing whatsoever under any statute.”

In January 2005, President George W. Bush told The New York Times that “torture is never acceptable, nor do we hand over people to countries that do torture.” That is, indeed, U.S. law. Bush just failed to mention that U.S. courts have interpreted that law as completely unenforceable.

At least one federal court has an opportunity to change that now.

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