WASHINGTON – Canada’s Maher Arar cannot sue the U.S. government for sending him to Syria, where he was tortured a year after the 9-11 terrorist attacks, a federal appeals court in New York ruled on Monday.
Arar, an Ottawa telecommunications engineer, was the victim of what’s known as “extraordinary rendition,” a much-maligned American policy of knowingly sending terrorism suspects to other countries that practise torture.
The 12-member appeals court panel, which once included newly minted Supreme Court Justice Sonia Sotomayor, ruled by a 7-4 vote that Arar could not sue since Congress has yet to authorize any such lawsuits.
Maria LaHood, a senior staff attorney at the Center for Constitutional Rights, which represented Arar, said an appeal to the Supreme Court was likely.
“I can’t see letting this decision stand without a fight,” LaHood said. “It’s an outrage.”
In a statement issued through LaHood’s organization, Arar said the ruling and other recent court decisions show that “the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering.”
He called the ruling “a loss to all Americans and to the rule of law.”
The appeals court panel said it was up to Congress to create a civil damages procedure for victims of rendition, but it hasn’t done so.
“Once Congress has performed this task, then the courts in a proper case will be able to review the statute and provide judicial oversight,” the ruling said.
Chief Judge Dennis G. Jacobs wrote in the 59-page majority opinion that it is for the White House to “decide how to implement extraordinary rendition, and for the elected members of Congress – and not for us as judges – to decide whether an individual may seek compensation” from government officials.
Arar was detained in September 2002 at Kennedy International Airport as he changed planes on his way to Montreal after vacationing in Tunisia. He was suspected of having ties to al-Qaida, and was held and interrogated in New York for almost two weeks before being sent not to Canada, his home, but to Syria.
He spent a year in Syrian confinement, and says he was tortured there. Arar was finally released in 2003, and Canadian officials say he had no involvement in terrorism. A federal commission also concluded he’d been tortured, and Ottawa awarded him a $10.5 million settlement.
Despite the Canadian ruling, the U.S. hasn’t exonerated Arar and has, in fact, publicly stated it believes he has links to terrorist organizations. Arar and his family remain on a U.S. watch list.
A lawsuit filed by Arar was dismissed in 2006 by a federal district judge in Brooklyn, a ruling that was affirmed in 2008 by a three-judge panel of the appeals court. But in a highly unusual move, the full appeals court decided to consider the matter and held oral arguments last December.
One the four dissenting judges on the panel criticized his colleagues’ decision on Arar.
“I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay,” Judge Guido Calabresi wrote.
President Barack Obama has been criticized for continuing with some of the most controversial anti-terrorism policies of the George W. Bush administration, including extraordinary rendition.
In a recent editorial, the New York Times assailed the White House for its “dismaying retreat from Mr. Obama’s passionate campaign promises to make a break with Mr. Bush’s abuses of power, a shift that denies justice to the victims of wayward government policies and shields officials from accountability.”
During his bid for the White House, Obama pledged to end “the practice of shipping away prisoners in the dead of night to be tortured in far-off countries.”
But critics in the human rights community say little has changed since the final years of the Bush administration, including extraordinary rendition.
The president has pledged to stop the use of torture and has vowed to close the detention facility at Guantanamo Bay by January, but has yet to determine what to do with the detainees. He’s also continued to hold prisoners at Bagram Airfield in Afghanistan without legal rights.
-With files from The Associated Press