No Damages for Victim of Extraordinary Rendition

Yesterday the Supreme Court declined to hear an appeal by Maher Arar, the Canadian engineer who was imprisoned and tortured in Syria after he was sent there by American officials who mistakenly thought he was connected to Al Qaeda. Last November the U.S. Court of Appeals for the 2nd Circuit ruled that Arar, who was detained during a 2002 layover in New York based on misinformation from the Canadian government, could not sue the U.S. government for damages under the Torture Victim Protection Act because he had not adequately alleged that American officials were acting "under color of foreign law." The court also rejected his Fifth Amendment claims, declining to apply the Bivens doctrine, which allows lawsuits based directly on constitutional guarantees, to "extraordinary renditions" such as Arar's removal to Syria. "If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition," the court said, "it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief."

Arar, who was cleared of suspicion by a Canadian commission of inquiry, has received an apology and compensation from the Canadian government. He has received neither from the United States, although Secretary of State Condoleezza Rice conceded in 2007 that the case was not "handled as it should have been."

Previous Reason coverage of the case here.

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  • ||

    This kind of thing makes me really mad. Like more than usual.

  • ||

    The individuals responsible should be shot and their supervisors put
    in prison. Kinda makes an oil spill look like a parking ticket.

  • ||

    Torturing or allowing the torture of anyone is a big problem, but doing it with a Canadian seems particularly bad to me. That's like torturing an Ewok.

    On second thought, I'm pro-Ewok torture.

  • ||

    This must be that kick-ass "deference to Congress" that the SCOTUS should be exercising we've heard so much about lately.

  • ||

    Government doing things that it doesn't have the legitimate authority to do and that are a major violation of civil liberties must result in negative consequences for the government and for the government actors involved. Otherwise, those things and worse will keep happening.

  • The Gobbler||

    *crickets*

  • Sir Humphrey Appleby||

    That's why the Civil Service, in its wisdom, created the Official Secrets Act.

  • ||

    On second thought, I'm pro-Ewok torture barbecue.

    Yub-yub.

  • ||

    From "Sitharitaville":

    Strugglin' with my breath mask,
    Watchin' my evil task.
    All of those Wookies burning in oil.
    Watchin' the flaming,
    From my front porch swing,
    Smell those Ewoks they're beginnin' to boil.

  • MJ||

    Arar holds dual citizenship in Canada and Syria, just talking of his Canadian citizenship without mentioning his Syrian citizenship puts a different connotaion on it.

  • Happy Jack||

    Because it's okay to torture innocent Syrians?

  • MJ||

    No. It is just that deporting a Canadian to Syria is an action of questionable justice on its face. Deporting a Syrian to Syria is not.

    I am sure Sullum knows about Arar's citizenship status and left out the Syrian citizenship to give a presumption of guilt to the government.

  • Michael Ejercito||

    Because it's okay to torture innocent Syrians?


    It is not.

    Why does not Arar sue the Syrian government?

  • ||

    If you're going to hammer on about having Syrian citizenship, include the stuff about how the U.S. deliberately sent him to Syria from NY instead of deporting him to Canada.

    By analogy, if someone is e.g. born in Syria and becomes a naturalized U.S. citizen, it's okay for the U.S. government to send him to Syria for torture?

    Arar was born in Syria but left as I recall when a teenager and became a Canadian citizen and lives in Canada. He was detained in NY, from a flight going to Canada (Canadian going home to Canada) but sent to Syria for torture instead of e.g. deporting him to Canada.

  • Jaymes||

    “The individuals responsible should be shot and their supervisors put
    in prison. “

    I think the supervisors should be shot and the individuals put in prison.
    Make the fuckers who come up with the idea pay a higher price than the fuckers who carry out the idea.

  • ||

    Are you suggesting a quick painless death is worse than prison?

  • ||

    Just imagine what this guy went through, and then think about what the people who did this to him should go through.

  • ||

    Government without accountability lacks legitimacy.

  • ||

    "The case wasn't handled as it should have been."

    Translation out of dumb-ass government speak: We fucked this guy over but we don't give a shit. Now shut your goddamn mouth or your ass is next.

  • ||

    We do not torture!

  • Death Panelist||

    He probably did something to deserve it.

  • AJs||

    Clearly, I mean, maybe he resisted arrest or denied he had any involvement... both signs of someone clearly guilty of something.

  • Supreme Court Justice Barbie||

    Rendition cases are hard!

  • Elena & Sonya||

    So are we! For you!

  • Some Guy||

    "...Congress, which alone has the institutional competence..."

    Ahahahahaha that's a good one!

  • ||

    This would have never happened if there was a Democrat in the White House.

  • AJs||

    perhaps the president could sit down and have a Molson with him and his torturer so that they can discuss their feelings?

  • Warty||

    He looks like a guy who was on my MS committee. He asked me too many questions. Fuck that guy.

  • Rich||

    +1

  • ||

    You would have failed anyway. Stop blaming others for your inadequacy(s).

  • Warty||

    Are we still enemies? Because you're still a cunt.

  • Old Mexican||

    [...] Secretary of State Condoleezza Rice conceded in 2007 that the case was not "handled as it should have been."

    "He should not have been allowed to live! Oh, did I say that aloud?"

  • Pip||

    It's the beard. When will these people realize that if they didn't sport scary beards, this shit would never happen to them.

  • libertytexan||

    Funnily enough when I had a beard and long hair I would get stop at every airport security check point for extra "random searches." I'm very Caucasian and Texan so the profiling was entirely on the beard and hair.

  • libertytexan||

    I'm not sure why I capitalized caucasian

  • TSA||

    Us neither.

  • ||

    'Cause you're from the Caucasus? Just a guess.

  • qwerty||

    When I was single, I was always pulled aside. Once the wife and kids came, it magically stopped.

  • ||

    Am I the only one who is going to point this out?

    The Canadians told us he was a terrorist.
    We turned him over to Syria based on that info.
    He sued Canada and won a huge settlement.
    So case closed, right? What's the problem here? Those responsible for his getting shafted have already been duly forced to compensate him. Next case.

  • ||

    What about the part where we sent him to be tortured in Syria?

  • libertytexan||

    For that matter why are we sending anybody anywhere to be tortured, terrorist or not?

  • Old Mexican||

    Re: Libertytexan,

    For that matter why are we sending anybody anywhere to be tortured, terrorist or not?

    Uh . . . 'cause it's cheaper?

    What would I know? I only read the US Constitution; I am not well versed on shadow law and FedGov's polylogism.

  • ||

    Tara--I suppose you'd be OK with the guy who paid for your hit was punished but the guy who did that actual hit walks away scott free?

  • qwerty||

    Tara's argument is more like that the guy that sold the hitman the gun should walk away free.

    I hate what happened to this guy, but it is the fault of primarily the Syrians, and secondarily, the Canadians, not us.

  • ||

    It was the US govt that sent him to Syria, they could have let him continue to Canada (he was never stopping in the US) and let CISIS or the RCMP deal with him. Instead, they sent him off to Syria. No, the responsible party are the Americans.

  • Old Mexican||

    Re: Tara,

    The Canadians told us he was a terrorist.

    And Americans trust the Canadians invariably and implicitly . . . right?

    We turned him over to Syria based on that info.

    Because standard procedure regarding Canadian citizens accused of a crime is to send them to Syria . . . right???

  • ||

    Condi's Response:

    Syria, Canada, same/diff. I don't understand what everyone's getting so worked up about.

    OH SHIT, sry, i was thinking of Saskatchewan. I'm always getting that mixed up with Syria.

  • MJ||

    Arar also holds Syrian citizenship. The US government did not just choose to send him to Syria by random choice.

  • Les||

    No, they chose to send him to a country that tortures people instead of a country that doesn't. No one is suggesting it was a "random choice."

  • ||

    Was my understanding he renounced his Syrian citizenship. It is the Syrian govt that doesn't recognize that.

  • Les||

    If you mean, "Am I the only one who's going to shit on the Constitution and lick the balls of big government?" then I think the answer is, "yes."

  • Fluffy||

    Because it's illegal in the US to deport someone to a country where they are likely to be tortured.

  • ||

    It is? Lots of countries torture people, sadly. But if we're deporting someone, isn't it to their country of citizenship or origin? That just may happen to be a country that may torture someone. I'm not advocating a position, but I'm not sure we have a law that prevents us from deporting someone to a country they're from.

  • ||

    Ya know, the only reason this guy lost his case is because the Obama Justice Department fought him every step of the way. They could have settled, but they chose to continue this Bush policy as well.

  • ||

    Let me be clear, this all Bush's fault. I'm only the president. I can't just go around changing things and giving people hope.

  • Fluffy||

    Dean is 100% correct here.

    Also, it's kind of comical that the decision ruling against him claims that he didn't adequately demonstrate that officials acted "under color of law" when every effort was made to hide evidence from the plaintiffs under the state secrets doctrine, by BOTH the Bush and Obama administrations.

  • MJ||

    Arar is a citizen of both Canada and Syria. The court ruling was that Arar did not prove that the US government deported him to country he had citizenship in with malicious intent (which is not to say the US government did not, just that there was not enough proof).

    Are we positing that because Syria is ruled by a vicious regime that has been known to torture, the US can never deport citizens of Syria to their native land?

  • Les||

    Are we positing that because Syria is ruled by a vicious regime that has been known to torture, the US can never deport citizens of Syria to their native land?

    Of course not, only that if the U.S can choose to deport someone to a place where they won't be tortured or a place where they might be tortured, the U.S. should choose the former.

  • MJ||

    As I recall the US could not deport him to Canada as the Canadian government would not accept him at the time for being a suspected terrorist when all this occurred.

    There was only one choice to deport him to. Your stipulation is moot.

  • Les||

    Then I'll change it. If the U.S. can choose to deport a suspect to a country that tortures, the U.S. should either have sufficient evidence that the suspect is guilty and/or refuse to deport people to countries that torture.

  • MJ||

    In other words, you are walking back your initial "Of course not..."

  • actually||

    Canada would have accepted him. Arar's reply brief to the Supreme Court in Arar v Ashcroft includes a letter from Canada's foreign affairs minister. The letter states in part "Pursuant to your request, the Government of Canada confirms that it does not have reason to believe that Mr. Arar's civil suit in the United States would risk harming diplomatic relations between Canada and the United States. Furthermore the Government of Canada confirms that it has not at any time opposed Mr. Arar's entry to Canada."

  • ||

    There's also a specific Canadian Constitutional provision providing Canadian citizens a right to enter, remain in, and leave Canada. Some restrictions under law may be allowed (there's a balancing provision e.g. a criminal in prison can't leave) but some bureaucrat somewhere or even a police officer does NOT get to make that call, it has to be under a justifiable law. So under Canadian law, he could have entered, even if there had been an objection by some flunky.

  • Fluffy||

    Actually, that's currently US law.

    It is illegal to deport someone to a country where they are likely to be tortured.

  • Maher Arar||

    I went to Syria and all I got was this lousy waterboarding.

  • actually||

    No, no. The courts never got to the point of balancing evidence, they rejected the case at the threshold--that is, while assuming all of Arar's accusations were true.

  • Fluffy||

    I will say this about Arar's case:

    The Torture Victims Protection Act is specifically designed to allow victims to recover damages from foreign goverments and individuals. The law does not seem to take into account the possibility that the US would be complicit in torture carried out by foreign states. I don't know if that's because when the law was passed we didn't thank such an eventuality was even possible, or if it's because we wanted to, as usual, protect our own government officials from the consequences of their actions. I tend to think it's the latter, and that the REAL reason Arar lost his case is because it's our official policy that US government officials can do whatever the fuck they want and face no consequences.

  • billy-jay||

    Holy. Fucking. Shit.

  • ||

    Thought Reason was a libertarian site, yet every time I come here, I see mostly authoritarians.

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