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US Panel Re-examines Canadian's "Rendition" to Syrian Torture
Via NY Transfer News Collective * All the News that Doesn't Fit
sent by MichaelP
Toronto Globe & Mail- Nov 10, 2007
http://www.theglobeandmail.com/servlet/story/LAC.20071110.ARAR10/TPStory/National
JUDGES QUESTION U.S. LOGIC IN ARAR HEARING
US Panel re-examining Canadian's rendition to Syria had strong words
for Department of Justice lawyers
NEW YORK -- A panel of three federal appeals judges sharply questioned
representatives of the U.S. Department of Justice yesterday during a
hearing to re-examine the rendition of Maher Arar to Syria, at times
ridiculing the lawyer for former attorney-general John Ashcroft.
Fighting against Mr. Arar's attempts to revive his U.S. civil suit,
Mr. Ashcroft's lawyer, Dennis Barghaan, provoked gasps among the
standing-room-only audience when he referred to the plaintiff's
alleged "unequivocal member****p in al-Qaeda."
The same language was used five years ago by U.S. authorities who
cited classified intelligence as they arrested the Syrian-Canadian
engineer at JFK air****t in New York, and sent him to the Middle East
for interrogation. But since that 2002 *****sment led to Mr. Arar's
yearlong ordeal in Syria, Canada has compensated the Ottawa engineer
$10-million for passing bad intelligence about him to the United
States, and U.S. Secretary of State Condoleezza Rice has recently
admitted that errors were made in the handling of the case.
Judge Robert D. Sack interrupted Mr. Barghaan during his
characterization of Mr. Arar, asking if he was suggesting a current
*****sment. The lawyer replied that he was not at liberty to discuss
the government's view. "So we will make believe he's a member of
al-Qaeda?" asked Judge Sack, as the audience chuckled.
At another point, the same judge asked why officials sent Mr. Arar, a
Canadian citizen, back to a country he had long since left, as he
passed through U.S. airspace on the way to Canada.
"He was going to Canada!" Judge Sack said. "The question is not
whether he was going to be conspiring with al-Qaeda on the bus between
the Air Canada terminal and the air****t building."
Mr. Barghaan quickly backpedalled, saying he was only trying to
outline the government's beliefs when Mr. Arar was seized while
changing planes.
The attempt to revive Arar vs. Ashcroft was brought before the U.S.
Court of Appeals for the Second Circuit in Lower Manhattan by the
Center for Constitutional Rights, a non-profit organization based in
New York that has championed Mr. Arar's cause.
By challenging his original "rendition" and his continued presence on
the U.S. no-fly list, the CCR is hoping to force a re-evaluation of
the suit, which was dismissed on the grounds that it would compromise
U.S. state secrets.
David Cole, a CCR member and professor of law at Georgetown
University, told the panel that the officials who authorized the
handover of Mr. Arar to Middle East officials were as responsible for
his torture as the New York City Police Department would be if they
handed over someone to a gang of skinheads in Brooklyn.
"They delivered him to the thugs," said Mr. Cole. But wary of setting
a precedent, the three-judge panel asked Mr. Cole how they might send
the case back to a lower court without stretching existing law.
Mr. Arar, who is barred from entering the United States until 2012,
listened to the proceedings by teleconference.
Lawyers for the Justice Department and Mr. Ashcroft said their clients
have qualified immunity, which precludes them from being sued. They
also said the case could compromise relation****ps with U.S.
intelligence partners, including Syria and Canada.
Department of Justice lawyer Jeffrey Bucholtz argued that should Mr.
Arar have been allowed to linger in a U.S. air****t, the government
would not have been able to control his movements. "There was no way
to make sure he got on the bus to the terminal," he said. "He could
just as easily have gotten on the bus to the city."
Replied Judge Sack: "I'll bet they could have found a way to make sure
he got on the bus to the terminal."
The judges seemed disturbed by the government's line that Mr. Arar, as
a foreign national, was not protected from overseas torture by the
U.S. Constitution. "There's something awfully mechanistic about this
which is difficult to understand," Judge JoseCabranes said as he
wondered how the U.S. government could avoid being held responsible
when its decisions led to torture.
The panel reserved judgment. A decision is not expected for months.
Outside court, Mr. Cole suggested the U.S. government owed Mr. Arar
the same consideration shown by Canada. "It's remarkable to us that
Canada was willing to conduct a massive inquiry, to write an
1,100-page re****t, to officially apologize to Mr. Arar, to pay him
damages for their part in this action, and yet the United States
government's position is that no court can even address the question
of whether or not his rights were violated."
He added, "I only hope the fact that Canada responded in a responsible
way will, over time, make it more possible for the United States to
respond in a responsible way. Because ultimately we were far more
culpable than Canada."
*
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