11 August 2005The Christian Science MonitorTom Regan
US officials, invoking the seldom used "state secret privilege" argued Tuesday in a Brooklyn, NY, court that a case brought by a Canadian against the US government over its practice of extraordinary rendition should be dismissed because it would "force the government to reveal classified information" about the plantiff's alleged ties to Al Qaeda.
Maher Arar, a Canadian software engineer who also holds Syrian citizenship, was detained when he was switching flights in New York to return to Ottawa from Damascus, The Mass. Community Newspaper MetroWest Daily West (MA) reported. Mr. Arar said US officials nabbed him in JFK airport in Brooklyn as a presumed Al Qaeda terrorist in October 2002 and sent him to Syria where he was tortured for 10 months. Arar, who denies any terror links and was never charged with a crime, charges the US government with violating the Torture Victim Protection Act and his Fifth Amendment right to due process.
Arar was eventually released by the Syrian government, which says it did not torture him, thanks largely to the efforts of his wife in Canada. Both the Canadian and Syrian governments now say Arar has nothing to do with Al Qaeda or any other terrorist group, and Arar was named by the Canadian edition of Time Magazine as "Newsmaker of the Year" in 2004, calling him "a symbol of how fear and injustice have permeated life in the West since 9/11." His case is also the subject of an ongoing inquiry in Canada.
But the US government has refused to change its position, instead saying it has "secret" information that ties Arar to Al Qaeda. The US Justice Department is using this as the basis for its request that Arar's lawsuit against former Attorney General John Ashcroft, former Homeland Security Secretary Tom Ridge and others in the US government be dismissed. Arar says he is taking the US officials to court "so that this cannot happen to anyone else."
At the hearing Tuesday, Mary Mason, the attorney for the Justice Department, argued that "Arar's legal status meant he was not necessarily protected by all of the rights in the US Constitution." Ms. Mason said that Arar had contacted a lawyer through his mother-in-law, but that he failed to "take legal steps to challenge his deportation during the 12 days he was detained in New York or while he was imprisoned in Syria."
The New York Times reported that the government lawyers also argued that "foreign citizens who change planes at airports in the United States can legally be seized, detained without charges, deprived of access to a lawyer or the courts, and even denied basic necessities like food ..."
When challenged by US District Judge David Trager if such treatment of a prisoner (Arar says he was "deprived of sleep and food and was coercively interrogated for days at the airport and at the Metropolitan Detention Center in Brooklyn") would not violate the US Constitution and "clearly estabished case law", Mason said it did not. Legally, she said, anyone who presents a foreign passport at an American airport, even to make a connecting flight to another country, is seeking admission to the United States. If the government decides that the passenger is an 'inadmissible alien,' he remains legally outside the United States - and outside the reach of the Constitution - even if he is being held in a Brooklyn jail. Even if they are wrongly or illegally designated inadmissible, the government's papers say, such aliens have at most a right against 'gross physical abuse.'
But David Cole, a law professor at Georgetown University who represented Arar and the Center for Constitutional Rights, argued that Arar was originally told he would be deported to Canada, and was not told he was being sent to Syria until he was "in handcuffs on a private jet" to take him there. Arar was at first denied access to a lawyer and to Canadian officials and then when he did secure legal counsel, the lawer was told by the US government that his client was in New Jersey, when in fact he had already been sent to Syria. "We can't take a citizen, pick him up at JFK and send him to Syria to be tortured," [Cole] said. "We can't hold against Mr. Arar the failure to file a motion for review when he's locked up in a gravelike cell in Syria."
In an interview Wednesday with Amy Goodman of Democracy Now!, Cole said that what the government was basically arguing Tuesday was that there is nothing that the courts can do to stop it from doing these kind of things.
It was on a motion to dismiss, so, essentially, the government is arguing even assuming that everything that we alleged is true, namely that the government conspired with Syria to have him arbitrarily detained for about a year without charge and conspired to have him tortured and provided the Syrians with a dossier of questions that they wanted the Syrians to ask him and retrieve the information back from the Syrians, even if all that is true, the government is arguing, there is no remedy. The United States is free to do this without any judicial remedy whatsoever for Mr. Arar. So that was really the argument in its sort of baldest form that the government was making yesterday.The Associated Press reported that the Justice Department lawyer also said the Syrian government had said it would treat Arar "humanely." Syria denies it tortured him during the 10 months that Arar was help in captivity.
Arar says he was tortured. In November of 2003, Arar described his experiences in Syria in a radio interview; Really, I mean, when I arrived there, I just couldn't believe it. I thought first it was a dream. I was crying all the time. I was disoriented. I wished I had something in my hand to kill myself, because I knew I was going to be tortured, and this was my preoccupation. That's all I was thinking about when I was on the plane. And I arrived there. I was crying all time. So, one of them started questioning me, and the others were taking notes. And the first day it was mainly routine questions, between 8 to 12.
And the second day, that's when the beatings started, because, you know, on the first day they did not find anything strange about what I told them, and they started beating me with a cable, electrical threaded cable, and they would beat me for three, four times. They would stop again, and they would ask questions again, and they always kept telling me, ‘You are a liar,’ and things like that. So, the beating continued for the first two weeks. The most -- the most intensive -- the intensive beating was really the first week, and then after that it was mostly slapping, punching on the face and kicking.
Judge Trager has reserved a decision about the US government's motion to dismiss the case, and did not say when he would rule.
