Civil Liberties

No Legal Remedy for Government-Arranged Torture of Innocent Travelers


On Monday the U.S. Court of Appeals for the 2nd Circuit rejected Maher Arar's attempt to hold federal officials responsible for his "extraordinary rendition." Arar, a Canadian telecommunications engineer, was detained during a 2002 layover in New York based on mistaken suspicions that he had ties to Al Qaeda. After holding him for two weeks, American officials shipped him off to Syria, where he was imprisoned for a year and tortured. The Canadian government, which supplied the erroneous information that led to Arar's detention and rendition, later cleared him of any involvement in terrorism and paid him $11 million in compensation and legal fees. In 2007 Secretary of State Condoleezza Rice, without exactly apologizing, acknowledged that the case was not "handled as it should have been." But according to the 2nd Circuit's ruling, Arar has no remedy under U.S. law for the violation of his rights.

The appeals court said Arar cannot sue under the Torture Victim Protection Act because it requires a showing that U.S. officials were acting "under the color" or foreign law; Arar's allegation that they conspired with Syrian officials to have him tortured, the seven-judge majority said, was not enough. The court also rejected Arar's claim that the Constitution itself (specifically, the Fifth Amendment's Due Process Clause) gives him a cause of action. Since 1971 the U.S. Supreme Court has allowed people to sue government officials for violations of their constitutional rights in certain circumstances even without explicit statutory authorization. But the 2nd Circuit said the foreign policy and national security issues associated with extraordinary rendition counseled against extending this principle, known as the Bivens doctrine, to cases like Arar's:

If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief….When a case presents the intractable "special factors" apparent here…it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress…to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition, and not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.

Four dissenting judges criticized the majority's interpretation of the torture statute and its application of the Bivens doctrine. Judge Guido Calabresi faulted the court for addressing the Bivens claim at all, saying the constitutional question could have been avoiding by sending the case back to the district court for consideration of whether it is precluded by the "state secrets" doctrine:

A holding that Arar, even if all of his allegations are true, has suffered no remediable constitutional harm legitimates the Government's actions in a way that a state secrets dismissal would not. The conduct that Arar alleges is repugnant, but the majority signals—whether it intends to or not—that it is not constitutionally repugnant. Indeed, the majority expressly states that the legal significance of the conduct Arar alleges is a matter that should be left entirely to congressional whim.

The upshot of this decision, Calabresi said, is 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." He suggested that his colleagues allowed fear of terrorism to cloud their judgment:

When the history of this distinguished court is written, today's majority decision will be viewed with dismay…In calmer times, wise people will ask themselves: how could such able and worthy judges have done that?

The majority and dissenting opinions are here (PDF). I discussed Arar's experience in a 2006 column. More on the case here

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  1. It’s aboot time our government acknowledged its mistakes

  2. “If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress,”

    Well, what exactly is stopping Congress from doing just that? Whether it is right or wrong to give the guy compensation doesn’t and shouldn’t change the technical legal question of wether Congress created a right of action.

    Before blaming the court, how about blaming Congress and the President who campaigned claiming that changing this stuff was such a fierce moral urgency?

    1. “Before blaming the court, how about blaming Congress and the President who campaigned claiming that changing this stuff was such a fierce moral urgency?”

      Point taken, but why not also blame the court?

      1. Because the court ruled on the technical legal question of whether Congress created a Bivens action under these circumstances. Maybe they were right about that. But since Sullum is not a lawyer much less a Constitutional one, he doesn’t know his ass from a hole in the ground about the technical legal issues in this case. So, instead he just whines.

    2. It’s not like you only get to blame one entity for this tragedy. Certainly there is blame to go around but that doesn’t absolve the court from its share for this decision. Since in this instance we’re talking about a specific opinion handed down, it is perfectly reasonable to blame the court regardless of what Congress did or didn’t do.

      1. Not if they were right about there not being a Bivens action it isn’t.

  3. Wow…today’s cockpunch is brought to you by Jacob Sullum. Is Balko on vacation?

    This shit makes me want to set up a guillotine on Pearl St.

  4. Wow. Just wow. The government fucks an innocent guy over that badly and then some judges say, sorry, you have no recourse under the constitution.

    Jacob — would it be impertinent of me to inquire about the party affiliation of the judges who wrote this opinion, and of those who dissented?

    1. The government fucks people all the time. But they only have a remedy if the government grants them one.

      Also, it seems to me that this guy would have a remedy under the Alien Tort Claims Act against the people who actually tortured him. Why didn’t he bring action against them? It makes me wonder if he isn’t more interested in grand standing than actually getting compensation.

      1. Your comment is repugnant.

        …more interested in grand standing than actually getting compensation?

        If I was tortured, I’d probably care a lot less about money and a lot more about preventing it from happening to anyone else.

        You dress him down for not holding out his hand.

        1. As mentioned before, he already got compensation. And if he is so interested in this not happening again, maybe he should sue Syria. They are the ones who actually tortured him.

          1. “maybe he should sue Syria.”


            The guy would grow old waiting on that one.

            1. looks like he’ll grow old waiting for a remedy in the good old US of A too

      2. An innocent person gets hauled off and the US facilitates his hand-over to the Syrians for torture and you say he’s more interested in grand standing!? Even if he is, so the fuck what?? I think he’s entitled to a bit after what he went though. I suspect you might want to do a bit yourself if it was you they dragged away to some despotic middle-eastern country to be beaten. And you know damn well you’d be (rightfully!) trying to sue every last person who had any connection to your torture and that would certainly include the government that handed you over to those barbarians.

        1. If I were him, I’d sue every party I felt was even the slightest bit responsible, including Canada who pulled a jailhouse snitch false testimony act on him, the US that presumably did not give him access to a lawyer in accordance with our Constitution (which subjects everyone within our jurisdiction to the same rights), Syria who tortured him and any government officials, airport security officers, and nosy baggage handlers I could find. Then with my millions of dollars, after collecting my thoughts, I’d use that money to find and kill the sumbitches who were responsible.

      3. He damn well should be doing all of the grandstanding he can. Everyone in the world should be outraged over this.

        And Syria is, well, Syria. I doubt a suit in US court is going to change much about how they do things.

    2. The government that really screwed him over paid him $11 million. Canada told the US that the guy had ties to Al Qaeda. Not mentioned is that Canada refused him entry, so the US sent him to his nation of origin.

      1. Well hell that changes the entire thing. If the guy wasn’t a citizen or LPR, we didn’t owe him entry into the country. Just what the hell was the government supposed to do after Canada told them the guy was a terrorist? Magically know Canada was wrong?

        1. It does change it substantially, but changes little for me. Just because we can’t magically know Canada is wrong it’s ok to torture? Is that the logical terminus of the argument?

          1. How is sending him back to Syria torture? That is where he was from. It is not the US’s fault Syria tortured him. If we had tortured him, you would have a point. But the US didn’t. Syria did.

            1. Oh come on, that is borderline intellectually dishonest. They weren’t sending him on a Middle East vacation. The US handed him over knowing full well why they were doing it and what was going to happen to him. If I kidnap you and hand you over to joe who blares Obama speeches 24 hours a day into your cell, do you really think I get to claim “hey, it wasn’t me that tortured him!”?

              1. Exactly. If this was a crime committed in the US, those who transported them to the crime scene with knowlege that the crime would take place would be charge with a crime.

                But I can’t say the court got it wrong in this case. If Congress wanted to create a remedy, they could have.

            2. People don’t torture people. Syria tortures people.

        2. You do realize that when Canada realized their mistake, they informed the US who basically shrugged and said too late”.

          To this day the US still claims that he was a legit threat regardless of what Canada says.

          So the reason we picked him up was because Canada said he was a threat then when Canada says “oops, our bad that was a mistake” the US basically says “no mistakes were made he was a threat regardless”.

        3. Uh, ask Canada what their basis was for concluding he was a terrorist?

  5. Change it had to come
    We knew it all along
    We were liberated from the fall that’s all
    But the world looks just the same
    And history ain’t changed
    ‘Cause the banners, they all flown in the last war

    I’ll tip my hat to the new constitution
    Take a bow for the new revolution
    Smile and grin at the change all around me
    Pick up my guitar and play
    Just like yesterday
    And I’ll get on my knees and pray

  6. No remedy, no repercussions, no reason for the government not to do the same thing over, and over, and over again. None. Obviously, we can’t depend on these government actors to police themselves, nor should we.

    This state secrets and national security trump played and accepted by many judges as outweighing civil liberties, including critical ones like due process, is total bullshit. There is no provision in the Constitution that says, “When the Admini?tration is doing Sneaky Stuff, it is not Limited by anything el?e in this Document.”

    1. Love the ?s.

      1. No long s, no Constitution!

  7. The guy already got $11 million from the people who were actually responsible. I am sorry but I fail to see how this is the U.S.’s fault. First, last I looked Canada was not a banana republic. When they said the guy had ties to Al Queda, I don’t see how the government had any choice but to deny him entry into the country. Second, once they did that and Canada wouldn’t take him, where the hell were they supposed to send except back home? Third, maybe it is just me but I kind of think that the people who actually tortured the guy are responsible for him being tortured. It is not like the US insisted that he be tortured. That is Canada and whatever country tortured him’s fault, not the US.

    1. Then hash it fucking out in front of a goddam jury.

      1. Based on what? What proof does he have? A mere allegation doesn’t get you in front of a jury.

        He already got $11 million from Canada. He could sue Syria in US courts under the Alien Tort Claims Act. Yet, he is suing the US government. This is just bullshit lawfare. Reason needs to spend its time and effort on more worthy causes.

        1. What he received from the Canucks is irrelevent.

          The case was not thrown out because it is frivilous or there is no evidence, it was thrown out because “according to the 2nd Circuit’s ruling, Arar has no remedy under U.S. law for the violation of his rights”.

          If, as you say, he has no proof of governmantal malfeasance, let the jury decide that. Let a judge rule that.

          Oh wait, his lawyer may actually want to call government witnesses, can’t have that, right?

      2. Then hash it fucking out in front of a goddam jury.

        In Syria.

  8. So what the he alleges that we conspired to have him tortured. How the fuck does he know? It is not like the Syrians don’t torture pretty much anyone they get their hands on. What did they do send him to Syria with a note?

    1. As if Syria does anything we tell them to.

      1. john, you should probably read up on this case a bit:…..-post.html

        1. What is that document? I can’t tell at the link what it is or where it came from. Not saying what is in it is untrue, but I just can’t tell.

          And Glenn Greenwald is one of the most dishonest pieces of shit posting on the internet. So, he gets no benefit of the doubt.


            (.pdf file of court ruling, from which the above was taken)

            again, consider the stunning possibility that you might be wrong on this one, captain.

            1. Or consider the fact that the document doesn’t say anything not in the facts in the circuit opinion. Yes, the US deported him to Syria and he was totured. No one is denying that.

              Stop reading Greenwald. It will rot your brain.

          2. And Glenn Greenwald is one of the most dishonest pieces of shit posting on the internet

            Pot meet kettle.

            John you really a re a disgusting individual. (Both Johns on this board)

  9. If we only had the right men in charge.

  10. Kangaroo Court

  11. I just want to know how that bastard Obama arranged to have the guy tortured in 2002. He wasn’t even in the US Senate then!

    1. The reach of Chicago politicians is great.

    2. The vast left wing conspiracy.

    3. Don’t forget the possibility of time travel.

  12. ‘So what the he alleges that we conspired to have him tortured. How the fuck does he know? It is not like the Syrians don’t torture pretty much anyone they get their hands on. What did they do send him to Syria with a note?’

    Arar hasn’t had a trial on the facts, because the courts said that even if all his claims were true, there would be no legal remedy.

    In other words, the courts are, for legal purposes, assuming that Arar has the facts on his side and would be able to prove his version of events if it went to trial.

    Throwing out the case means, ‘assume it’s true – even so, there’s nothing we can do about it!’

    Recall that the Convention Against Torture, ratified by the President and Senate of the U.S., prohibits us from sending someone to a country where we have strong reasons to believe he will be tortured. When the immigration people shipped Araf to Syria, they formally certified that there was no risk he would be tortured.

    Araf’s factual claim is that the U.S. government *did* have reason to believe that Araf would be tortured. Indeed, according to Araf, this was the very reason they sent him to Syria in the first place – outsourcing Araf’s torture to the Syrians.

    If this were true, it would violate our treaty obligations. Doesn’t mean it’s true, but again, the court said that even if we violated our treaty obligations, there was no remedy in federal court.

    I can understand the court’s opinion, because Congress has *not* clearly created a remedy in this situation. In the Torture victims act, Congress allows suits against torturers who act under color of *foreign* law. But Araf’s theory isn’t that U.S. officials were carrying out Syrian law. His claim is that the U.S. outsourced its torture to Syria, so the U.S. officials were acting under color of *U.S.* law. And Congress seems to act on the assumption that torture is something foreigners do, not Americans.

    1. Violating our treaty obligations does not necessarily create a tort claim against the government. Second, the Torture Victims Act allows suits against torturers. The US didn’t torture him. It is not an unreasonable interpretation of the statute to read it to mean that it only allows suits against people who actually torture and not in cases where someone deported a person thinking he might be tortured.

      Again, if Congress wants suits in such circumstances, amend the damn law. As it is, the Court took a reasonable interpretation of the statute. If you don’t like the result, blame Congress not the court.

      1. The Torture Victims Act doesn’t allow victims to sue unless the torture was done under guise of *foreign* law.

        It was Syrian officials, not American officials, who tortured based on Syrian law. Araf could sue the Syrians, as you suggested, but do you have any suggestions on how he could collect any damage award the jury gives him?

        1. The Syrians have assets in the US and abroad. If I am not mistaken the victims of the Pan Am Lockerbee disaster sued Lybia and collected. Most governments are going to accept and enforce a US court judgement. The Alien Tort Claims Act is for that reason a fairly powerful statute.

      2. ‘If you don’t like the result, blame Congress not the court.’

        I thought I *was* blaming Congress. Since you’re replying to a comment of mine, you seem to be suggesting I am disregarding the court’s arguments and ignoring Congressional complicity, whereas my comments have been of precisely the opposite nature.

        1. To quote myself in the very comment you replied to: ‘I can understand the court’s opinion, because Congress has *not* clearly created a remedy in this situation. . . . Congress seems to act on the assumption that torture is something foreigners do, not Americans.’

          How on earth could you reply to this with the remark, ‘blame Congress, not the court?’

          Your straw man, like the straw man in the Wizard of Oz, is brainless.

          1. I never disagreed with you on that point.

            1. You never disagreed with him on that point. Except when you did.

            2. What were you suggesting when you told me to ‘blame Congress, not the court?’

    2. Thank you.

      How fiendishly clever to devise a torture victims act that can never admit what everyone knows.

      Justice? Fail.
      Congress? Fail.
      Statism? Victory.

    3. Further, what should the US have done with him instead? They couldn’t send him to Canada, they wouldn’t accept him. They couldn’t parole him into the US one of our closest allies said he was an Al Quada terrorist. What should they have done? They could have kept him here and detained him. Yeah, indefinite detention. Libertarians love that. It sucks that Canada fucked up and gave us bad information. It sucks worse that Syria tortured him. But neither of those things is the US’s fault.

      1. ‘They couldn’t send him to Canada, they wouldn’t accept him.’

        I was under the impression Araf was a joint Syrian-Canadian citizen.

        If you don’t like the treaty clause and federal statute against sending someone abroad to be tortured, ask Congress or the President to repudiate the treaty. Or ask Congress to amend the federal statute.

        1. You are correct, he is a Canadian citizen. At least in the facts given in the decision, the Canadians didn’t demand that he be returned to Canada. They didn’t ask for his return until after the Syrians tortured him and they realized they fucked up.

          It seems the Canadians told the US that he was a terrorist and they didn’t want him returned to Canada. And the US then sent him to his other country of citizenship. I really don’t see how this is anyone but the Canadians’ and the Syrian’s fault.

          1. If the U.S. had passed along the info and the Canadians had acted on it, whose fault would it be?

            1. The USAs. No question. If there are cases out there were our nitwit Intel services passed bad information to people that was later acted on to an innocent person’s detriment, I think the innocent person ought to be able to get some compensation for it.

              1. OK, then, perhaps I did you an injustice. Your previous straw-manning put my back up, and I assumed that you were simply regurgitating any old argument, so long as it supported the federal executive.

  13. I think Araf’s legal theory is that the U.S. and Syria had a common interest in torturing the guy. Araf is a joint Syrian-Canadian citizen, so if the Syrians thought he was a dissident, they would want to do to him what they like doing to dissidents – catch and torture him. And if the U.S. thought Araf was al-Quaeda, they would want him tortured for information, with the bonus in this case that the dirty work would get outsourced.

    At least we have been spared the usual excuse that ‘what happened to Araf wasn’t really torture; it was just some fraternity hijinks.’ Here’s what Araf claims, as summarized by the opinion (remember, these claims must be assumed true at this stage of the proceedings):

    Arar was in Syria for a
    13 year, the first ten months in an underground cell six feet by
    14 three, and seven feet high. He was interrogated for twelve days
    15 on his arrival in Syria, and in that period was beaten on his
    16 palms, hips, and lower back with a two-inch-thick electric cable
    17 and with bare hands. Arar alleges that United States officials
    18 conspired to send him to Syria for the purpose of interrogation
    19 under torture, and directed the interrogations from abroad by
    20 providing Syria with Arar’s dossier, dictating questions for the
    21 Syrians to ask him, and receiving intelligence learned from the
    22 interviews.
    1 On October 20, 2002, Canadian Embassy officials inquired of
    2 Syria as to Arar’s whereabouts. The next day, Syria confirmed
    3 to Canada that Arar was in its custody; that same day,
    4 interrogation ceased. Arar remained in Syria, however,
    5 receiving visits from Canadian consular officials. On August
    6 14, 2003, Arar defied his captors by telling the Canadians that he had been tortured and was confined to a small underground cell. Five days later, after signing a confession that he had trained as a terrorist in Afghanistan, Arar was moved to various locations. On October 5, 2003, Arar was released to the custodymof a Canadian embassy official in Damascus, and was flown to Ottawa the next day.

    1. He was tortued. There are probably a million people out there that have stories worse than his. But he needs to go sue the Syrians over it. And probably the Canadians to, which he already did.

      1. Why were the Canadians worse than the Americans?

        If you were Canadian, wouldn’t you be here saying that the Canadian intelligence services had ‘no choice’ but to pass along actionable information about possible terrorists?

        If the situation had been reversed – if U.S. intelligence had passed info to Canadian intelligence about an American having al-Quaeda ties, would you be here on this forum asking the U.S. to pony up eleven million bucks just because there was a case of mistaken identity and the Canadians were foolish enough to ship the guy to Syria to be tortured?

        Wouldn’t you be denouncing anyone who advocated that the U.S. pay damages? Wouldn’t you be saying that the matter is between the guy and the Canadians (and the Syrians)?

        1. If the situation were reversed, I would be blaming the US intel community for having crap information. You can’t go get people locked up unless you know what you are talking about.

          1. If the situation were reversed, would you urge the U.S. to pay eleven million dollars in damages? Because you said Araf ‘probably’ needs to sue the Canadians for relief in precisely such a situation.

            1. (yes, it’s canadian dollars, I know, it’s still a decent piece of change)

            2. I don’t see why not. The government ought to be responsible for their screwups, especially ones that result in real harms. I don’t think the Canadians were criminal. But, at the same time, we are talking about people’s lives. You shouldn’t be able to cause that kind of harm and just walk away. It is not like $11 million would bankrupt us or something.

              1. $11 million Canadian would scarcely cover the cost of a Karen Findley performance piece.

      2. Congratulations, John. You’re a real human being.

  14. Not saying this dude didn’t deserve compensation for the Canadian government’s egregious fuck up, but this is a classic Canadian snowjob. Be rights-trampling shits, throw money and apologies around when caught, pat selves on back for being so much better than unwashed Americans, rinse, repeat.

  15. It is a lie that Canada wouldn’t accept Arar. A lie repeated by the Second Circuit majority, but supported by no evidence & contradicted by the actual evidence(see, e.g., the O’Connor report, Canada’s diplomatic protests in 2002, etc. etc.)

    1. At least according the the 2nd Circuit Canada didn’t protest anything until after he was in Syria.

  16. If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence

    Now, that’s terrifying.

  17. Too bad this guy couldn’t get even more. It would have made more headlines, and maybe then we’d be more hesitant next time. …like it made us with internment camps, etc.

    Oh well, I guess those of us in the know will just have to console ourselves with the realization that we behave disgracefully when we’re scared.

    By the way, whether he associated with terrorists is beside the point to me. Our disgraceful behavior doesn’t have anything to do with what other people do.

    And just for the record, it possible for something to be both completely disgraceful and perfectly legal too.

  18. I think anyone who is falsely punished by the government should get compensation, whether it’s jail time, torture, or a bad homeowner’s association. However, it is the job of the legislatures, not the courts to provide this compensation. It is not a judge’s job to make up a law about compensation. It is up to Congress or the state legislature.

    “We should pass law X” is not the same as “The court should rule X”. We have different branches for a reason.

    1. What if the legislature simply chooses never to enact any legislation for compensation of any kind?

      Convenient way to deny justice of any kind.

  19. “At least according the the 2nd Circuit Canada didn’t protest anything until after he was in Syria.”

    Because we withheld information about our plans to deport him, & about his whereabouts from Canada until after he was in Syria. (he was rendered by way of Jordan). See, e.g, this October 2002 Amnesty Int’l press release:…..002en.html

    “Canadian consular officials allegedly visited Maher Arar in MDC on 3 October after his family advised them of his detention in the USA. However, he went missing from the system on or around 8 October. Canadian officials made repeated enquiries regarding the whereabouts of Maher Arar. On 17 October, Canadian Foreign Affairs Minister Bill Graham reported that US officials told him Maher Arar had been deported to Syria. However, the Syrian authorities have allegedly denied that he is in Syria. When Amnesty International contacted the US authorities on 18 October, they refused to confirm whether or not he had been deported to Syria, stating only that he was no longer in the USA. His family still has no information on his whereabouts.

    Although Maher Arar apparently has both Canadian and Syrian citizenship, he left Syria as a teenager 15 years ago and was travelling on a Canadian passport. He was said to be afraid of being sent back to Syria, as he feared being imprisoned for not doing his military service. The Canadian government has reportedly registered a formal protest to the USA for not treating Maher Arar in accordance with his rights as a Canadian passport holder.”

    Later that October the Canadian government issued a travel advisory warning Canadian citizens born in Arab/Muslim countries traveling to the U.S., or changing planes here:…..visory.htm

  20. Meh. Canada is the one who made the original fuckup, and they already paid him $11M.

    That puts him pretty far down the list of torture victims who have not received justice.

  21. Our behavior here was disgraceful. Whether it was legal is completely beside the point.

    Whether the victim was an Al Qaeda operative is beside the point–even if he had been, it would have been beside the point.

    …the point being that our behavior was disgraceful. Handing people over for torture is disgraceful. No matter what the law says.

  22. “If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress,”

    Why? Congress hadn’t created such a civil remedy in the original Bivens case.

  23. Woo hoo – I commented on a torture thread and nobody brought up the Spanish Inquisition!

  24. If there’s no remedy in court for being kidnapped and tortured, I really couldn’t blame the guy if he decided to punish his torturers and their accomplices himself.


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  26. I think, didnt RTFD, that this case pertains to how far a COURT created tort remedy extends for constitutional rights misdeeds by US officials. Not about Congressional remedies llike those under the Torture victims statute.

  27. One mistake, that as I read somewhere is in the decision: as a Canadian citizen, not only did he have a right to enter Canada (under Canadian law), Canada indicated it WOULD accept him (even if it had said it wouldn’t, which it didn’t, under the Canadian Constitution a citizen has the right to enter Canada).

    So a big deal was that this guy was travelling to Canada, but the U.S. decided to deport him to Syria. Gee, I wonder why…

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