Will Bush Officials Invoke State Secrets Privilege to Block Court Review of Arar Case?

NEW YORK, Aug 18 (IPS) -- After suffering a series of stinging defeats of its detention policies in four years of Supreme Court decisions, the George W. Bush administration may be in for yet more bad news.

In what legal scholars describe as a highly unusual move, a federal appeals court in New York last week decided to rehear a case it had decided in June, when a three-judge panel dismissed a lawsuit filed by the man who has arguably become the poster child for the Bush administration's rendition program.

Bringing the suit is Maher Arar, a Syrian-born Canadian citizen who was detained incommunicado for two weeks at Kennedy Airport in 2002, flown by U.S. authorities to Jordan and then to Syria, where he was held for 10 months and said he was tortured.

The decision by the Second Circuit Court of Appeals in Manhattan is unusual because the full circuit assembles for a case only once or twice a year and because Arar's attorneys never asked for a full hearing.

In Canada, a high-level commission concluded that the Canadian police and intelligence officials had erroneously linked Arar to al Qaeda. The commission found that the Canadians had provided U.S. officials with misinformation. The commission also concluded that Canadian officials had been behind a campaign to discredit Arar after he was released from Syria and arrived in Canada in October 2003.

The Canadian government issued a formal apology to Arar last year and paid him $9.75 million. U.S. Secretary of State Condoleezza Rice said last year that the matter had not been "handled as it should have been". In June, the Department of Homeland Security's inspector general said at a Congressional hearing that the Justice Department's ethics office was reviewing the decision to send Arar to Syria.

The rehearing will take place in December, this time before all 13 appeals judges.

The defendants include John Ashcroft, who was attorney general when Arar was stopped at Kennedy airport, and other Bush administration officials at the time -- among them Robert S. Mueller III, director of the Federal Bureau of Investigation (FBI), and Tom Ridge, then Secretary of the Department of Homeland Security -- of violating federal law and his civil rights.

In the original decision, the three-judge panel agreed with a lower court decision, ruling 2 to 1 that the federal courts lacked jurisdiction to hear Arar's complaint. The reason, they said, was that technically, Arar was never in the United States.

But one of the three judges dissented, describing as "a legal fiction" the idea that Arar was not in this country when he was apprehended at Kennedy.

That judge, Robert D. Sack, a Clinton appointee, said that Arar's case should continue because Arar "was, in effect, abducted while attempting to transit at J.F.K. Airport".

Legal experts believe the rehearing resulted from a request by one of the Appeals Court judges, though it is not known whether it was Judge Sack. The request was granted by a majority of the appeals judges.

However, a full U.S. appeals court hearing is far from a certainty. Even if Arar is able to establish that he has standing to bring his suit, the chances are the government will invoke its "state secrets privilege,” claiming that disclosure of the details of Arar's case in open court would compromise U.S. national security.

So rare is a judge's dismissal of a government "state secrets" motion that, when it happens, it becomes front-page news. That's what happened when a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list. The plaintiff, a local businessman, sued to discover whether his name was on the list. The government called that a "state secret", but the judge disagreed. The government is appealing the decision.