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Does the U.S. Owe Torture Victims?

Thurgood-marshall-court.jpg
Thurgood-marshall-court.jpg

Thurgood Marshall Courthouse (Flickr Creative Commons License)

The U.S. Court of Appeals for the Second Circuit on Tuesday had an opportunity to consider a question that may become more pressing in coming years: Should the U.S. government have to pay damages to a innocent man arrested and secretly sent overseas where he faced certain torture?

That’s the issue at the heart of Arar v. Ashcroft, the case heard by 12 judges in an overflowing courtroom in New York. Over the course of an en banc argument that lasted more than two and half hours, the judges peppered lawyers on both sides with questions on arcane matters of immigration procedure and on the central moral issue of whether a victim of torture overseas at the behest of the U.S. government can seek a remedy from the government.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/law.jpgIllustration by: Matt Mahurin

As I’ve written before, Maher Arar, a 34-year-old Syrian-born Canadian, was arrested on his way home to Canada after a vacation visiting relatives in Tunisia in 2002. While changing planes at JFK airport, he was picked up by FBI agents and taken into custody, denied access to his lawyer and then secretly sent to Syria to be questioned about his alleged ties to Al Qaeda. In Syria, Arar said he was held in a grave-like cell and severely tortured until he confessed to weapons training in Afghanistan, where he’d never been.

Arar was released in 2003 after Syrian authorities said they found no evidence that he’d done anything wrong. A Canadian investigation reached the same conclusion and issued a formal apology and reparations.

Yesterday’s argument centered on whether Arar, assuming that all his claims are true, has any recourse against the U.S. government. The answer could affect many more victims of alleged government abuse in the “war on terror.” (Another case, that of four British men who claim they were illegally detained and tortured at the Guantanamo Bay prison, is the subject of a petition to the U.S. Supreme Court.)

Georgetown University law professor David Cole, on behalf of the Center for Constitutional Rights, which is representing Arar, argued that Arar has a right to sue the government for monetary damages because he was refused access to U.S. courts when he was first detained and because U.S. officials conspired to send him to Syria where torture is an often-used interrogation technique.

As Cole told the judges: “I don’t see any reasonable argument that a federal official can torture somebody or outsource that torture to somebody else.”

But that wasn’t really the concern of the government, according to Deputy Assistant Atty. Gen. Jonathan Cohn, who is representing former Atty. Gen. John Ashcroft and other federal officials and agencies. He argued that even if torture is immoral and illegal, that doesn’t give Arar the right to sue the government or any federal official for being tortured.

“This is about separation of powers,” contended Cohn, insisting that there is no precedent for allowing a non-citizen deported by the immigration service to sue the United States for damages. That he was deported in secret, was not intending to immigrate to the United States and was intentionally sent to a country where he would likely be tortured should make no difference, Cohn told the appeals court.

That argument seemed to outrage Judge Guido Calabresi. He said that if he were changing planes in France and was picked up by the French authorities and whisked away to Syria where he faced the likelihood of being tortured for some alleged crime, he sure would hope the U.S. would have a problem with it. “You might have a very strong interest in creating an action in this country to prevent other countries from doing that,” he told Cohn.

Cohn’s other main argument was that the Arar case is too intertwined with national security and foreign policy, the prerogatives of the president, for the appeals court to get involved.

That didn’t sit well with Judge Barrington Parker, among others. “We look at matters that raise national security and foreign policy issues all the time,” he said, noting that the court frequently reviews petitions for political asylum and petitions for relief under the U.N. Convention Against Torture, which is supposed to prevent deportation to a country where someone has a reasonable belief they will be tortured. In such cases, “We’re always making comments in the international arena about international affairs.”

Some of the judges seemed more sympathetic to Cohn’s arguments. Judge Dennis Jacobs frequently tried to shush his colleagues so the government’s lawyer could make his argument, and Judge Jose Cabranes worried that allowing Arar to sue the government would open the door to thousands of other disgruntled immigrants who each year believe they were wrongly deported.

But several judges noted that the State Department has repeatedly assured the U.N.’s Committee Against Torture, in writing, that victims of torture at the hands of U.S. officials have cause to take civil action against the United States. They asked how Cohn could now suggest that the victims don’t.

In response, Cohn tried to distinguish between federal officials who send detainees to countries knowing they faced torture there from those who actually do the torturing themselves.

After allowing Cole a brief rebuttal, the court asked the government to produce more information — specifically, an unredacted copy of a report by the Inspector General for the Department of Homeland Security about the Arar incident.

While the Second Circuit court could rule on Arar’s case at any time, it’s likely to wait at least a few months. After all, the Obama administration could take a different position in the case — prompting a new 12-judge, multihour argument all over again.

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