In Case of Extraordinary Rendition Victim Maher Arar, U.S. Gets Away with Torture

June 30, 2008, New York -- A federal Court of Appeals ruled against Center for Constitutional Rights (CCR) client Maher Arar's case against U.S. officials for their role in sending him to Syria to be tortured and interrogated for a year under the extraordinary rendition program.

Maher Arar is not available to comment in person, but is issuing the following statement: "The Court's 2-1 ruling is outrageous. It basically legitimizes what was done to me, and permits the government to use immigration law as a disguise to send people to torture without regard for due process."

The court ruled that Mr. Arar's constitutional claims that it was a violation of due process to lock him up for two weeks, obstruct his access to a lawyer and a court, and then to ship him to Syria for the purpose of having him interrogated under torture could not be heard in federal court for two reasons: It concluded that adjudicating the claims would interfere with sensitive matters of foreign policy and national security, and that Arar, as a foreigner who had not been formally admitted to the U.S., had no constitutional due process rights with respect to the government's interference with his access to a lawyer and the decision to send him to Syria to be tortured.

The court also rejected Mr. Arar's claim that U.S. officials are liable under the Torture Victim Protection Act, for conspiring with Syria to subject Mr. Arar to torture under color of foreign law. The TVPA creates liability for torture inflicted under color of foreign law, and courts have held that it applies not only to the torturer himself, but also to those who aid or abet in the torture. Arar alleged that U.S. officials aided and abetted in his torture at Syrian hands, but the court ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority.

"We are deeply disappointed," said Georgetown law professor and CCR Board Member David Cole, who argued the case for Mr. Arar. "The Supreme Court earlier this month held that the Constitution protects foreign nationals held as 'enemy combatants' at Guantanamo, yet the Second Circuit has ruled that a Canadian changing planes at JFK has no constitutional right to object to being spirited away to Syria to be tortured."

In addition, the same Court of Appeals ruled in CCR's landmark case Filártiga v. Peña-Irala in 1980 that a Paraguayan official could be held liable in U.S. court for torture of a Paraguayan citizen in Paraguay, yet it now finds that U.S. officials who send someone to another country to be tortured cannot be held liable.

CCR Senior Staff Attorney Maria LaHood said, "As the dissenting judge noted, the majority's opinion gives federal officials the license to 'violate constitutional rights with virtual impunity.'" She added, "It is the court's duty to uphold the law, not rubberstamp the Administration's violations of it."

Mr. Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. The Bush administration labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.

In January 2004, just three months after he returned home to Canada from his ordeal, CCR filed a suit on Mr. Arar's behalf against John Ashcroft and other U.S. officials, the first to challenge the government's policy of "extraordinary rendition," also known as "outsourcing torture." In February 2006, Judge David Trager of the U.S. District Court for the Eastern District of New York dismissed the case, finding that national security and foreign policy considerations prevented him from holding the officials liable for carrying out an extraordinary rendition, even if such conduct violates our treaty obligations or customary international law.