Intersting article
- From: "refugeedeveloper@xxxxxxxxxxx" <refugeedeveloper@xxxxxxxxxxx>
- Date: Sun, 14 Dec 2008 07:56:25 -0800 (PST)
2nd Circuit Hears Argument in Extraordinary Rendition Case
Daphne Eviatar
The American Lawyer
December 11, 2008
In a long but lively en banc argument, the 2nd U.S. Circuit Court of
Appeals Tuesday heard the case of Maher Arar, a Canadian citizen
arrested in New York in 2002 and secretly sent to Syria for
interrogation and torture.
Arar is the case that first brought to light the United States'
program of "extraordinary rendition," by which U.S. authorities have
sent detainees to other countries for interrogation, even though (or
because) those countries are known to interrogate suspects under
torture.
Georgetown Law Professor David Cole, arguing on behalf of the Center
for Constitutional Rights, which represents Arar (with assistance on
the brief from DLA Piper), made a vigorous case in the first hour of
the argument that federal officials and the U.S. government are liable
for damages under the Torture Victim Protection Act and under the 5th
Amendment to the Constitution if Arar can prove his allegations that
they conspired to keep him from seeing his lawyer and from accessing
the U.S. courts, and that they sent him to Syria to be tortured.
The defendants include former Attorney General John Ashcroft, former
deputy AG Larry Thomson, the FBI, the INS, and the United States
itself.
Cole described how 34-year-old Arar, who was born in Syria but left at
age 17, was changing planes at New York's John F. Kennedy Airport on
his way home to Canada after visiting relatives in Tunisia. U.S.
authorities, who suspected Arar of associating with Al Qaeda, first
held him incommunicado in the United States for several days, denying
him access to a lawyer or his family; they then flew him to Syria for
interrogation, despite his protests that he'd be tortured if he was
returned there. Indeed, he was. In Syria, he claims, he was held in a
coffin-sized underground prison cell where he was severely beaten,
whipped, and tortured into confessing to crimes he never committed. A
year later, he was released without charge.
An investigation by the Canadian government later confirmed that there
was no evidence linking Arar to Al Qaeda and that he had not assisted
terrorism in any way.
After returning to Canada, Arar sued the United States government,
with the help of the Center for Constitutional Rights in New York. At
least four amicus briefs, including one by a group of retired federal
judges represented by the Brennan Center for Justice and Paul, Weiss,
Rifkind & Garrison, were filed on Arar's behalf.
In 2006, Arar's case was dismissed after the federal court in the
Eastern District of New York accepted the Justice Department's
argument that further investigation could harm national security, and
because Arar was deported by immigration authorities and had failed to
challenge his deportation in a timely fashion -- notwithstanding that
Arar wasn't allowed to see his lawyer, and also wasn't seeking entry
into the U.S.
A three-judge panel of the 2nd Circuit affirmed the district court's
ruling in June, holding that Arar had no cause for damages from
federal officials for his treatment. In August, however, the full
court of appeals made the highly unusual decision sua sponte to re-
hear the case, suggesting that there are strong opinions and much
disagreement among the judges.
That was borne out at the hearing Tuesday afternoon. Held over two and
a half hours before all 12 active judges of the circuit court, the
appellate argument garnered so much public interest that both the
courtroom and a separate overflow room were filled well before the
starting time of 3:00 p.m. An animated panel questioned Cole about
whether his claims on behalf of Arar wouldn't open the floodgates for
damages claims by other aliens deported from the U.S., a concern that
Cole, with the generous assistance of Judge Guido Calabresi,
vigorously denied.
Jonathan Cohn, Deputy Assistant Attorney General in the Justice
Department's civil division, represented Ashcroft and the United
States. When he could get a word in among the barrage of questions
fired at him from the judges, he insisted that no damages remedy can
be implied in this situation, even if U.S. officials did conspire to
have Arar tortured in Syria.
The plaintiff is "asking the court to recognize a cause of action that
Congress did not create," Cohn said, an argument that seemed to get a
sympathetic hearing from Judges Dennis Jacobs and Jose Cabranes. Cohn
also strenuously argued that the case is inextricably intertwined with
issues of national security and foreign policy, and therefore
shouldn't be considered by the court -- an argument that several
judges greeted with great skepticism, particularly since they hadn't
been given many of the facts upon which the government was relying. At
the end of the hearing, the court asked the government to produce an
unredacted copy of a report by the Inspector General for the
Department of Homeland Security about the Arar incident. (Download the
redacted report [PDF].)
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