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Appeals Court Dismisses Canadian Torture Victim’s Case

The Second Circuit Court of Appeals just dismissed a landmark lawsuit filed by a Canadian victim of “extraordinary rendition” against former U.S. officials, ruling that torture victims have no right to compensation from the U.S. government, even if U.S. officials were complicit in their treatment.

Maher Arar is a Canadian citizen who was seized in 2002 while changing planes at John F. Kennedy airport in New York and sent to Syria, where he says he was interrogated under torture and kept in a tiny grave-like cell. He was released almost a year later without charge, and with an acknowledgment by the Syrian government that it had no evidence against him.

After conducting its own investigation, the Canadian government confirmed that Arar had done nothing wrong, apologized for its role in providing faulty information to U.S. authorities, and paid Arar about $10 million in compensation for his ordeal. The United States, on the other hand, has never officially acknowledged the error (although former National Security Adviser Condoleezza Rice once conceded in a congressional hearing that the case had been “mishandled”) and still refuses to allow Arar to enter the country.

Represented by the Center for Constitutional Rights, Arar sued former Attorney General John Ashcroft in January 2004, FBI Director Robert Meuller and other U.S. officials for sending him to Syria where they knew he was likely to be tortured. Today, the full Second Circuit Court of Appeals, which heard the case *en banc *in a dramatic 2-hour oral argument last December, ruled that Arar has no right to compensation from U.S. officials.

Although the opinion is long and complex, the essence of the court’s decision is that the lawsuit cannot be allowed to go forward because it would “have the natural tendency to affect diplomacy, foreign policy, and the security of the nation.” As for his claims under the Torture Victims Protection Act, Arar can’t claim compensation from U.S. authorities since it was the Syrians who tortured him, even if U.S. officials knew that he was likely to be tortured when they sent him to Syria.

The case does not bode well for other victims of the Bush administration’s “extraordinary rendition” and other abusive interrogation policies, since virtually all of those cases could similarly implicate national security concerns. The other major extraordinary rendition case, brought by five British victims of the policy against a Boeing subsidiary that assisted the CIA, is pending before the Ninth Circuit Court of Appeals. The Obama administration recently won a re-hearing in that case, which it seeks to dismiss on the grounds that the litigation itself would reveal “state secrets” and endanger national security.

The Second Circuit judges voted seven to four to dismiss Arar’s case today. In a strongly worded dissent, Judge Guido Calabresi wrote: “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Here is the court’s opinion, filed today:

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