U.S. Officials are Now Free to Torture - With Impunity - UPDATE

This is a pretty sad day in America. The Second Circuit Court of Appeals has upheld a Federal District Judge's ruling that Canadian citizen Maher Arar cannot sue our Federal officials for abducting him and rendering him to Syria FOR THE PURPOSE of being tortured. Yes, I said that right - we sent him there for the purpose of having him tortured.

The Court said that the State Secrets privilege precludes all such suits - even in cases where, as this one, all of the relevant details are already public knowledge because Canada, a mature democracy, made public the findings of its official investigation and paid Arar $9 million dollars compensation for its role in the incident. The only purpose for upholding the so called privilege now is protecting war criminals.

"One nation, under God, indivisible, with liberty and justice for all."

What kind of nation have we become? What kind of judges do we have? The dissent, by the way, is appropriately scathing. Cold comfort to those who endured torture.

Greenwald has an excellent piece on this as well.

My heart aches.

Joe H.

UPDATE

It is always dangerous to trust headlines. It turns out that the Court dismissed Arar's suit on other (equally noxious) grounds. Arar had stated what's known as a "Bevins" claim. A Bevins claim is a court created cause of action allowing tort victims to sue government officials personally, for tortious acts performed under the color of law.

Bevins claims are limited to a very few circumstances, and Courts are reluctant to extend them to new circumstances, particularly when the new circumstances implicate what the case law calls "complexities" - such as national security and international foreign policy. The Court argued that acknowledging a Bevin cause of action in a rendition case would insert the court into national security and foreign policy operations that are best left to the Executive.

Personally, given the facts of this case, I think the decision was horrific. The basic facts are that Arar was returning to his home in Canada from Tunisia. Acting on a tip from Canadian authorities that Arar was a member of Al Queda - a tip that turned out to be completely and utterly wrong - Arar was detained and mistreated by American authorities. Then, American officials working in the Justice Department and the White House arranged for Arar to be rendered to Syria - his place of birth - to be torture interrogated. Arar was then brutally tortured, with Americans participating indirectly, for months. Finally, he was released to a Canadian Consul and returned to Canada - a hollow shell of his former self.

Canadian officials subsequently conducted a full investigation, published a massive report making all of these facts public, apologized, and paid compensation.

Arar sued the American officials in Federal Court and was stymied at every turn. Read the stunning article for yourself. The misconduct of the American officials after the fact is breathtaking. And all of it was done to avoid legal and political accountability.

Warriors my ass. These men were cowards to the core. I am so ashamed that they represented me. I could puke.

And think about the Court's reasoning on the Bevin claim. The key fact of the case is that American officials conspired to send a person to a country for the express purpose of being tortured. If that isn't a violation of a person's 5th Amendment "Due Process" rights, what possibly could be? For the Court to refuse to extend the Bevins cause of action to these circumstances because they implicate national security and international relations complexities, is tantamount to the Court endorsing torture as a legitimate foreign policy option. Rendition is not the issue - the issue is a conspiracy to torture. How can allowing a suit to remedy a conspiracy to commit torture implicate any legitimate national security or foreign policy complexities, particularly when all the facts are already known.

Man have we lost our minds - and our souls.

Joe H.