Kerry Pither

Maher Arar has again been denied the right to sue the United States for sending him to Syria to be tortured. The 2nd U.S. Circuit Court of Appeals has ruled against overturning a decision of the U.S. District Court — Eastern District of New York, which had dismissed his suit against the officials responsible for his plight, including former attorney-general John Ashcroft and former homeland security secretary Tom Ridge.

The majority, in a 7-4 decision, ruled that Arar did not possess a legal remedy for the violations of his human rights because granting such a remedy would encroach on the powers of the executive branch (in terms of issues dealing with national security issues) and the legislative branch (in terms of the provision of remedies in certain circumstances.

In a statement released through his lawyers, Arar said:

“Unfortunately, this recent decision and decisions taken on other similar cases, prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering….If anything, this decision is a loss to all Americans and to the rule of law.”

The full text of Arar’s statement is available here. The full text of the decision is available in pdf format here. Here are some interesting snippets from the dissenting judges:

Judge Parker’s dissent, p. 1.

“My point of departure from the majority is the text of the Convention Against Torture, which provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Because the majority has neglected this basic commitment and a good deal more, I respectfully dissent.”

Judge Parker’s dissent, p. 1-2:

“While I broadly concur with my colleagues who dissent, I write separately to underscore the miscarriage of justice that leaves Arar without a remedy in our courts. The majority would immunize official misconduct by invoking the separation of powers and the executive’s responsibility for foreign affairs and national security. Its approach distorts the system of checks and balances essential to the rule of law, and it trivializes the judiciary’s role in these arenas.”

Judge Parker’s dissent, p. 4:

“The majority discovers myriad reasons to “hesitate” in the face of Arar’s complaint that federal officials conspired to send him to Syria to be tortured. Its principal reason, however, is that permitting such an action “would have the natural tendency to affect diplomacy, foreign policy and the security of the nation.” This view of the separation of powers, which confines the courts to the sidelines, is, in my view, deeply mistaken; it diminishes and distorts the role of the judiciary especially during times of turmoil. When presented with an appropriate case or controversy, courts are entitled – indeed obliged – to act, even in instances where government officials seek to shield their conduct behind invocations of “national security” and “foreign policy.”"

Judge Parker’s dissent, p. 22-23:

“Normally, as we have seen, when Congress legislates in a particular area, a Bivens action is not appropriate. In particular, the division of labor outlined in Bivens contemplated two scenarios: (1) Where Congress has selected a remedy for constitutional injuries, the courts should defer to its legislative wisdom; (2) Where Congress has not considered a remedy, however, a court must use its “judgment about the best way to implement a constitutional guarantee.” However, Arar’s case fits neither situation. Instead, the allegations are that any remedy provided by Congress and the Constitution was purposefully foreclosed by executive officials. When it comes to torture, Congress has spoken loudly and clearly. Title 18, Section 2441 makes it a felony punishable by life imprisonment to commit, or conspire to commit, “an act specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody or physical control for the purpose of obtaining information or a confession.” Arar’s transfer to Syria was allegedly designed to skirt the congressional prohibition on torture by outsourcing this form of interrogation. Moreover, in order to seamlessly accomplish this transfer, officials had to ignore or evade a number of other congressional dictates: An immigration policy that bars the removal of any person to a country where he will likely be tortured, and the INA’s judicial review provision. Finally, officials’ actions also foreclosed Arar’s opportunity to seek habeas relief under 28 U.S.C. § 2241 and the Constitution, a remedy that the government itself concedes should have been available to Arar.

In bare terms, the complaint alleges that executive officials set out to circumvent and undercut the powers of both the legislative and judicial branches. Under these circumstances, the usual justifications for hesitation in applying Bivens are simply not present. When, as here, the executive branch takes measures incompatible with the express or implied will of Congress, its “power is at its lowest ebb.” Factors that might otherwise counsel hesitation disappear where executive officials have sought to nullify the remedies chosen by Congress. In these cases, courts owe the executive branch little deference. Instead, the courts’ provision of a substitute remedy is an undertaking not simply “appropriate for a common-law tribunal” but essential for the rule of law.

Since the majority fails in these responsibilities, I repectfully dissent.”

Judge Calebresi’s dissent, p. 1:

“In its utter subservience to the executive branch, its distortion of Bivens doctrine, its unrealistic pleading standards, its misunderstanding of the TVPA and of § 1983, as well as in its persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion goes seriously astray. It does so, moreover, with the result that a person-whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law-is effectively left without a U.S. remedy.”

Judge Calebresi’s dissent, pp. 15-16:

“Whether extraordinary rendition is constitutionally permissible is a question that seems to divide our country. It seems to me obvious, however, that regardless of the propriety of such renditions, an issue on which I won’t hide my strong feelings, mistakes will be made in its operation. And more obvious still is that a civilized polity, when it errs, admits it and seeks to give redress. In some countries, this occurs through a royal commission. In the United States, for better or worse, courts are, almost universally, involved. This being so, and regardless of whether the Constitution itself requires that there be such redress, the object must be to create and use judicial structures that facilitate the giving of compensation, at least to innocent victims, while protecting from disclosure those facts that cannot be revealed without endangering national security. That might well occur here through the application of a sophisticated state secrets doctrine. It does not occur when, at the outset, Arar’s claims-though assumed true and constitutionally significant-are treated as lacking any remedy. And this is just what today’s unfortunate holding does. It hampers an admission of error, if error occurred; it decides constitutional questions that should be avoided; it is, I submit, on all counts, utterly wrong. I therefore must regretfully, but emphatically, dissent.”

The Independent’s Robert Fisk was in Ottawa a few weeks ago and spoke with Canadian torture survivor Abdullah Almalki, one of the men whose stories I tell in my book. Fisk writes about Almalki’s case in his column, published today, and raises the all-important issue of accountability. “I want to know why those complicit in Almalki’s torture – the letter writers, the composers of questions – cannot be tried in court,” he writes. “They are, at the least, accomplices to human rights abuses.” Good point. Especially since they aren’t just not being held accountable — they’re being promoted. Just this week we learned that the RCMP’s Michel Cabana, the man who was in charge of the RCMP investigation that targeted Ahmad El Maati, Almalki, Maher Arar and Muayyed Nureddin, has been promoted to an Assistant Commissioner of the RCMP (Federal and International Operations, Border Integrity Section).

Cabana was in charge of the RCMP’s Project A-O Canada when El Maati, Almalki and Arar were detained in Syria and tortured into providing false confessions. He was also in charge when those so-called confessions made their way back to Canada. The first, of course, was pried out of Ahmad El Maati within the first few days of his incommunicado detention at the now infamous Syrian house of torture, the Palestine Branch, or Far Falastin, of the Syrian Military Intelligence. After being whipped with cables for days on end, being burned with cigarettes by men threatening his eyes were next, then being shoved into darkness in a dank, rat and insect-infested underground cell barely his size, El Maati agreed to confess to a plot proposed by his interrogators (armed with information from Canada) — that he had planned to blow up Ottawa’s parliament buildings.

That “confession” was used by Cabana’s team to justify search warrants against El Maati’s family, Abdullah Almalki, and other Canadians. When they applied for the search warrants, the RCMP didn’t tell the presiding judge that the confession was likely the product of torture, and therefore entirely unreliable. Nor did they let on that El Maati had ended up in the Syrian gulag because of information provided by the RCMP and CSIS. According to the report of the Iacobucci Inquiry, Cabana said that “while the group realized that the statement was likely not taken pursuant to Canadian standards, Project A-O Canada had no evidence at that time that torture had been used to obtain the statement” (Iacobucci Report, page 139).

His boss, then Superintendent Garry Clement (now Chief of Police in Cobourg, Ontario), said that investigators “had no information that Mr. El Maati had been tortured” when they applied for the search warrants, and that “it would have been wrong to cast aspersions against a country without fist having the facts straight” (page 139).

Justice Iacobucci would, of course, conclude that they knew, or should have known, that torture was likely taking place (page 363).

Cabana was also in charge when the fruits of the searches — detailed business records and a lot of other private, but apparently not incriminating, information obtained while ransacking the men’s families’ homes — were handed over to the Americans, and used by Canadians to write up a new round of questions for El Maati’s Syrian interrogators, and later, a round of questions for Abdullah Almalki.

Cabana also most assuredly knows who in the RCMP has been party to the smear campaign conducted against El Maati, Almalki and Arar in the media— an orchestrated attempt to convince the Canadian public and decision-makers that these men were terrorists. Putting the men on trial in the court of public opinion rather than in a court of law was their only option, of course, because as the Iacobucci Report points out, they simply didn’t have the evidence to back up the allegations and bring charges (to this day none of the men have been charged in Canada). The smear campaign was also, of course, about stopping us from focussing on their crime of complicity in torture — on how Canadian law makers and security officials were thwarting the rule of law by playing an active role in the torture of Canadian citizens.

Fisk is right. The Canadian officials who contributed to the torture of all four of these men must be held accountable in some way. As a first step, Canadians have a right to know where these people are now. Have they all been promoted? Are they still in charge of our public safety? Do any of them feel any remorse whatsoever?

CSIS and the RCMP are due to testify before the Standing Committee on Public Safety and National Security on March 31. I hope Canadians are paying close attention to that hearing, and that the agencies will be asked to account for the whereabouts of those officials whose complicity in the torture of Canadians has now been well documented by not one, but two judicial inquiries.

Committee meetings can be watched in person or on line here.

You can read Fisk’s full column here.

The Commons Committee on Public Safety is supposed to begin hearings this week on the findings of the Iacobucci Inquiry, and the recommendations of the Arar Inquiry. These hearings are crucial. We’ve heard nothing from the government since the report’s release in October last year: The report confirmed that Canadian agencies did contribute to the detention of Ahmad El Maati and Muayyed Nureddin, and to their torture and the torture of Abdullah Almalki (by, for example, supplying the questions to those interrogating and torturing them). No-one in government has apologized to the men. There’s no sign that any Canadian official has been held accountable for their actions. And the Conservative government is still ignoring the Arar Inquiry’s recommendation, made more than two years ago, for effective and integrated civilian oversight of the agencies that carry out national security investigations. And without that oversight mechanism in place, it isn’t clear how Canadians can be confident that many of the Arar Inquiry’s other recommendations have been implemented.

It isn’t yet clear who will be appearing before the Public Safety Committee, or when they might be appearing. The committee was supposed to hear testimony from the RCMP, CSIS and the Canadian Border Services Agency on Tuesday — but that’s been cancelled or postponed. The Public Safety Minister was invited to appear this week but wasn’t available. So now it’s anticipated that witnesses from DFAIT, the Commission for Public Complaints against the RCMP (CPC) and the Security Intelligence Review Committee (SIRC) will appear on Thursday.

Just eight days after the release of the Arar Inquiry’s report on September 18, 2006, former RCMP Commissioner Zaccardelli appeared as a witness at the Public Safety committee hearings. On that first day of hearings, he used the opportunity to apologize to Maher Arar and his family, but then went on to provide testimony for which he would later be forced to resign. The Public Safety committee’s study of the Arar case continued through to January 2007. Evidence for these meetings is available here.

The Public Safety Committee later tabled a report calling on the Canadian government to issue a formal apology to Mr. Arar, negotiate compensation for him and his family, register formal protest with the US for its rendition of Mr. Arar, register formal protests with Syria for torturing Mr. Arar, and implement all the findings of the Arar Commission.

I hope the Public Safety Committee will work towards a similar report this time, calling on the Canadian government to apologize to Messrs. El Maati, Almalki and Nureddin, to move swiftly into mediating compensation for the men so they can rebuild their shattered lives, to register formal protests against the governments of Syria and Egypt for brutally torturing these Canadians, to provide a full, detailed accounting of how the Arar Inquiry’s factual report’s recommendations have been implemented, and to immediately implement the Arar Inquiry’s recommended oversight mechanism for the agencies that conduct national security investigations.

For those who are interested, the Arar Inquiry’s reports and recommendations are available on its web site, which has been archived here.

Stay tuned…

The International Commission of Jurists has just released a damning report on how seven years of abusive counter-terrorism measures in countries around the world have seriously compromised the integrity of the international human rights norms and law. The report, called “Assessing Damage, Urging Action” cites the Maher Arar case as “an example of how transnational intelligence should not be happening.” The report calls for the rejection of the “war on terror” paradigm and for a full repudiation of the policies grounded in it and emphasizes that criminal justice systems, not secret intelligence, should be at the heart of the legal response to terrorism.