Torture in Brief Form

Arar vs. Ashcroft

"This is precisely how the character of a country becomes fundamentally degraded when it becomes a state in permanent war."

-- Glenn Greenwald

Facts (HT Amy Goodman):

Arar’s life-altering odyssey is one of the best known and best investigated of those victimized by U.S. extraordinary rendition. After vacationing with his family in Tunisia, Arar attempted to fly home to Canada. On Sept. 26, 2002, while changing planes at JFK Airport, Arar was pulled aside for questioning. He was fingerprinted and searched by the FBI and the New York Police Department. He asked for a lawyer and was told he had no rights. He was then taken to another location and subjected to two days of aggressive interrogations, with no access to phone, food or a lawyer. He was asked about his membership with various terrorist groups, about Osama bin Laden, Iraq, Palestine and more. Shackled, he was then moved to a maximum-security federal detention center in Brooklyn, strip-searched and threatened with deportation to Syria.
* * *
For nearly two weeks, the U.S. authorities held the Syria threat over his head. Still, he denied any involvement with terrorism. So in the middle of the night, over a weekend, without normal immigration proceedings—without telling his lawyer or the Canadian Consulate—he was dragged in chains to a private jet contracted by the CIA and flown to Jordan, where he was then handed over to the Syrians.

For 10 months and 10 days, Maher was held in a dark, damp, cold cell, measuring 6 feet by 3 feet by 7 feet high, the size of a grave. He was beaten repeatedly with a thick electrical cable all over his body, punched, made to listen to the torture of others, denied food and threatened with electrical shock and an array of more horrors. To stop the torture, he falsely confessed to attending terrorist training in Afghanistan. Then, after nearly a year, he was abruptly released to Canada, 40 pounds lighter and emotionally destroyed.

Procedure (HT Scott Horton):

The United States tenaciously refused to acknowledge ever having made any mistakes—even after its own sources did so. It stonewalled Congressional probes and issued a travel ban to stop Arar from testifying before Congress. The Bush Justice Department made aggressive representations to the courts in response to Arar’s suit that strained credulity at almost every step. As in other cases, their trump card was simple: when caught with pants down, shout “state secrets!”

When the two inspectors general, Richard L. Skinner and Clark Kent Ervin, appeared before the House Judiciary Committee to testify on the matter * * * [b]oth inspectors general concurred that a criminal investigation was now warranted. Their own report produced ample evidence of gross departures from established procedures, as well as evidence that the entire case was being politically micromanaged by political figures in the attorney general’s office and in the White House, who repeatedly overrode the decisions of the professional staff. Attorney General Mukasey, however, subsequently declined to direct the investigation. It’s noteworthy that the investigation would have focused on the attorney general’s own office, which raises fair questions about why the attorney general would be the person making this decision.

Decision (HT Glenn Greenwald):

Yesterday, the Second Circuit -- by a vote of 7-4 -- agreed with the government and dismissed Arar's case in its entirety. It held that even if the government violated Arar's Constitutional rights as well as statutes banning participation in torture, he still has no right to sue for what was done to him. Why? Because "providing a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity of the rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns" (p. 39). In other words, government officials are free to do anything they want in the national security context -- even violate the law and purposely cause someone to be tortured -- and courts should honor and defer to their actions by refusing to scrutinize them.

Dissent (HT Scott Horton):

[S]tate secrecy claims are preposterous because the diplomatic and intelligence relationship that would supposedly have been compromised was that with Canada, and the Canadians had already come clean about what had happened and confessed to their own part in it, publishing a report as thick as two Manhattan telephone books. In this process, the Canadians behaved just like a modern democracy should. So it is not damage to relations with our neighbor to the North that is a concern. Rather, it is embarrassment of political figures in Washington.

Calabresi generously accepts the suggestion that the Second Circuit acted out of concern for national security. Still, he delivers an appropriate lashing. The majority, Calabresi charges, “engaged in extraordinary judicial activism.” Its activism was aimed at extricating political actors from a precarious predicament and keeping the door firmly shut on what may well be the darkest chapter in the entire history of the Justice Department. In so doing, the court’s majority delivered an example of timidity in the face of government misconduct the likes of which have not been seen since the darkest days of the Cold War.

When the history of the Second Circuit is written, the Arar decision will have a prominent place. It offers all the historical foresight of Dred Scott, in which the Court rallied to the cause of slavery, and all the commitment to constitutional principle of the Slaughter-House Cases, in which the Fourteenth Amendment was eviscerated. The Court that once affirmed that those who torture are the “enemies of all mankind” now tells us that U.S. government officials can torture without worry, because the security of our state might some day depend upon it. [emphasis added]

The author of the majority opinion is Dennis Jacobs, who spent a lifetime as a complete nonentity before being appointed chief justice of the U.S. Second Circuit Court of Appeals by George W. Bush in 2006. He now joins Roger Taney (1777-1864) as one of the absolute worst judges in United States history.

Comment (HT Glenn Greenwald):

This is precisely how the character of a country becomes fundamentally degraded when it becomes a state in permanent war. So continuous are the inhumane and brutal acts of government leaders that the citizens completely lose the capacity for moral outrage and horror.