Arar faces uphill legal battle.

This issue is off mainstream media radar but the case is important. At least some judges must have had questions about the rejection of Arar''s suit since the court will rehear the case. However, as the article notes it is virtually inevitable that the government will argue that the case cannot go ahead because it would compromise national security, the state secrets defence.
With respect to terrorism U.S. justice is replete with crapola and concepts of convenience. Note that in this case the original rejection was based on the fact that Arar was never technically in the United States! Duh! I wonder where Kennedy Airport is, Cuba? Indeed he was taken from there(Kennedy airport) and held elsewhere but certainly where he was held was within the U.S. even though he was not technically within the U.S.! The judges got it wrong. This was not a legal fiction it was the typical legal farce that often passes for justice.

Arar Faces Uphill Legal Battle
by William Fisher
After suffering a series of stinging defeats of its detention policies in four years of Supreme Court decisions, the George W. Bush administration may be in for yet more bad news.
In what legal scholars describe as a highly unusual move, a federal appeals court in New York last week decided to rehear a case it had decided in June, when a three-judge panel dismissed a lawsuit filed by the man who has arguably become the poster child for the Bush administration's rendition program.
Bringing the suit is Maher Arar, a Syrian-born Canadian citizen who was detained incommunicado for two weeks at Kennedy Airport in 2002, flown by U.S. authorities to Jordan and then to Syria, where he was held for 10 months and said he was tortured.
The decision by the Second U.S. Circuit Court of Appeals in Manhattan is unusual because the full circuit assembles for a case only once or twice a year and because Arar's attorneys never asked for a full hearing.
In Canada, a high-level commission concluded that the Canadian police and intelligence officials had erroneously linked Arar to al-Qaeda. The commission found that the Canadians had provided U.S. officials with misinformation. The commission also concluded that Canadian officials had been behind a campaign to discredit Arar after he was released from Syria and arrived in Canada in October 2003.
The Canadian government issued a formal apology to Arar last year and paid him $9.75 million. U.S. Secretary of State Condoleezza Rice said last year that the matter had not been "handled as it should have been." In June, the Department of Homeland Security's inspector general said at a congressional hearing that the Justice Department's ethics office was reviewing the decision to send Arar to Syria.
The rehearing will take place in December, this time before all 13 appeals judges.
The defendants include John Ashcroft, who was attorney general when Arar was stopped at Kennedy airport, and other Bush administration officials at the time – among them Robert S. Mueller III, director of the Federal Bureau of Investigation (FBI), and Tom Ridge, then secretary of the Department of Homeland Security – of violating federal law and his civil rights.
In the original decision, the three-judge panel agreed with a lower court decision, ruling 2 to 1 that the federal courts lacked jurisdiction to hear Arar's complaint. The reason, they said, was that technically, Arar was never in the United States.
But one of the three judges dissented, describing as "a legal fiction" the idea that Arar was not in this country when he was apprehended at Kennedy.
That judge, Robert D. Sack, a Clinton appointee, said that Arar's case should continue because Arar "was, in effect, abducted while attempting to transit at JFK Airport."
Legal experts believe the rehearing resulted from a request by one of the appeals court judges, though it is not known whether it was Judge Sack. The request was granted by a majority of the appeals judges.
However, a full U.S. appeals court hearing is far from a certainty. Even if Arar is able to establish that he has standing to bring his suit, the chances are the government will invoke its "state secrets privilege," claiming that disclosure of the details of Arar's case in open court would compromise U.S. national security.
So rare is a judge's dismissal of a government "state secrets" motion that, when it happens, it becomes front-page news. That's what happened when a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list. The plaintiff, a local businessman, sued to discover whether his name was on the list. The government called that a "state secret," but the judge disagreed. The government is appealing the decision.
Once rare, the use of the "state secrets privilege" has grown exponentially during the administration of George W. Bush. The privilege has kept many cases from ever coming before any court. Administration critics say it is an essential part of a curtain of secrecy the Bush administration has built, often for nothing more than avoiding political embarrassment.
David Cole, a professor at Georgetown University Law Center and an internationally recognized authority on constitutional law, told IPS, "The administration has argued that the president has unilateral executive power in the 'war on terror' to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can't even rule on that assertion of power because the alleged criminal violation is a 'state secret.'"
There are currently efforts in Congress to enact legislation to limit the government's use of the state secrets privilege. The Senate Judiciary Committee has approved a bill that would require the government to produce the evidence it says is protected for review by a federal judge in a classified setting. But the bill lacks bipartisan support on the committee – only one Republican, Sen. Arlen Specter of Pennsylvania, voted to move it to the Senate floor. That makes the future of the measure unclear.
Specter is a sponsor of the bill, the State Secrets Protection Act, along with Democratic Senators Edward Kennedy of Massachusetts and Patrick Leahy of Vermont, chairman of the Judiciary Committee. They said the objective of the proposed legislation is to "provide a systematic approach to the privilege and thereby bring stability, predictability, and clarity to this area of the law and restore the public trust in government and the courts."
A new Judiciary Committee report on use of the state secrets privilege includes dissenting views from several Republican members of the committee, who argue that the existing arrangements already strike the "right balance between openness, justice and national security."
The Supreme Court has consistently ruled against the Bush administration on issues surrounding its detention policies. In 2004, in a case involving a U.S. citizen being detained indefinitely at Guantanamo as an "illegal enemy combatant," the court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.
In the same year, the court ruled that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned.
Two years later, the court that held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." That decision led to Congress's passage of the Military Commissions Act.
The challenge to that Act was brought by Salim Hamdan, Osama bin Laden's driver, who recently became the first detainee in seven years to face any kind of trial at Guantanamo. A Pentagon-appointed jury found him not guilty of the most serious charge brought against him – conspiracy to kill U.S. citizens – and convicted him of providing material supporting for terrorism. He could be a free man before the end of the year.
Hamdan is expected to appeal his sentence – and the constitutionality of the military commissions act – to the U.S. civilian courts.
(Inter Press Service)

Arar lawsuit to be reviewed by U.S. Appeal Court

This is a rather suprising but positive development in Arar's suit against the U.S. government. There is no explanation as to why the Court decided to review the case. The Bush administration may be upset by this development. It will insist that national security issues preclude going forward with the case no doubt.
Not only is Arar still on the U.S. no fly list, in the judgment that resulted in his deportation to Syria he is described as a member of Al Qaeda!

Arar lawsuit to get rare review by U.S. Appeal Court
Last Updated: Thursday, August 14, 2008 3:52 PM ET
The Canadian Press
A U.S. Appeal Court said Thursday it will revisit a lawsuit filed by Ottawa-based engineer Maher Arar, who was tortured in Syria after he was shipped overseas by American authorities.
The court dismissed an appeal from Arar in June.
It has now issued what Arar's lawyers call an extremely rare decision to take a second look at the case without prompting from the parties involved.
Arar, a Syrian-born Canadian citizen, was detained at New York's JFK International Airport in September 2002 and later whisked out of the country as a terrorism suspect, winding up in a grim prison cell in Damascus.
Under torture, he gave false confessions to Syrian military intelligence about alleged ties to Osama bin Laden's al-Qaeda network.
After a Canadian public inquiry exonerated Arar of any suspected terrorist involvement, he was awarded a $10.5-million compensation package in January 2007.
© The

Alleged link between Arar and Al-Qaeda shocks US court

I don't know if this bodes well for the case. It shows the same absysmal ignorance of the case as is common among the press. Arar was judged to be a member of Al Qaeda by a kangaroo immigration hearing that provided the basis for the assistant US attorney general to issue an order to have Arar deported to Syria. Arar's lawyer was not present at this "hearing". In fact it was not a regular hearing at all. This crap was decided at the highest levels of the US government. The government lawyer is just repeating the line established long ago that Arar is a member of Al Qaeda. The judge apparently has no clue about how the case was handled. Maybe it is a good sign. The judge may be under the illusion that there is actually some reasonable form of justice in the operation of the system against suspected terrorists. The Arar case will disabuse him of any such notion. However, I expect that the judge will find that in the interests of national security the case cannot go ahead.



Saturday » November 10 » 2007

Alleged link between Arar and al-Qaida 'shocks' U.S. court

Steven Edwards
CanWest News Service


Saturday, November 10, 2007


NEW YORK -- Gasps broke out in a U.S. federal appeals court Friday as a U.S. government lawyer spoke of Maher Arar's "unequivocal membership of al-Qaida."

One of the court's three sitting judges echoed the reaction of many in the public gallery, declaring the statement stunned him too.

Not only has a Canadian judicial inquiry cleared Arar of having any terrorism links, but U.S. Secretary of State Condoleezza Rice has admitted the U.S. government did not properly handle his case.

"It was kind of a shocking statement with which to start," Judge Robert Sack told Dennis Barghaan, one of three government attorneys opposing Arar's bid to see his lawsuit against the U.S. government reinstated.

Arar lawyer Maria Lahood hinted outside the courtroom the judge's reaction bodes well for Arar's case.

"To me, it was a sign the judge knew this was an innocent man," she said.

The appeal comes after a U.S. federal trial court judge threw out Arar's lawsuit in February 2006 on grounds going ahead would require the release of sensitive information affecting national security.

A Syrian-born Canadian, Arar sued the U.S. government for secretly shipping him in 2002 to Syria, where he was tortured during almost a year in custody.

U.S. authorities had arrested him as he passed through New York's Kennedy Airport while returning from an overseas vacation to his Ottawa home.

The United States alleged Arar was linked to al-Qaida based on information provided by the RCMP, and the case marked the first attempt to launch a court challenge to the Central Intelligence Agency's alleged "extraordinary rendition" of terrorism suspects to countries whose human rights records are so poor that torture is possible.

Handling both the U.S. lawsuit and appeal has been a legal team working either for, or under the umbrella of, the New York-based Center for Constitutional Rights.

CCR volunteer attorney David Cole argued Arar had been denied U.S. constitutional rights even foreigners should expect on U.S. soil - including the right to appeal his deportation order and the right not to be sent to a place where he'd be tortured and arbitrarily detained.

But the government team said the constitution couldn't be extended to a person who hadn't yet been admitted into the United States by immigration authorities - as was Arar's case.

Presiding Judge Jose Cabranes appeared to be skeptical of that government line.

"This sharp line of demarcation seems to me to be a little artificial," he said.

The two sides also argued over whether case law contained examples of trials proceeding notwithstanding national security concerns, with the government lawyers saying Cole couldn't point to an exact same circumstance.

"Well there shouldn't be because this shouldn't happen," Lahood snapped in an interview.

Although arguments were completed Friday, the judges are expected to take months to render a decision.

Arar was not present for the hearing because he remains barred from entering the United States.

With the "extraordinary rendition" principle now a focus of protests against the administration of President George W. Bush, activists from such groups as Code Pink attended the hearing in significant numbers.

"This is a case that brings out the attacks on everything we believe in," said Sarie Teichman, 50, a photographer who works with senior citizens when she's not protesting. "It's got extraordinary rendition, torture, lack of government accountability and most all, the value this administration places on human life - and especially on non-U.S. life, people the U.S. calls aliens."

Court officials told Code Pink activists wearing "Arrest Bush" and "Arrest Cheney" T-shirts to remove them, or be barred from entry. They complied.

Arar, who has already received $10 million in compensation from the Canadian government, seeks in his lawsuit unspecified compensation, admission by the U.S. authorities they were wrong, and the lifting of the ban on U.S. entry.

Among senior U.S. officials named in the lawsuit are former attorney general John Ashcroft, former homeland security secretary Tom Ridge and Federal Bureau of Investigation director Robert Mueller.

© CanWest News Service 2007








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