In an opinion that boggles the mind, the Second Circuit Court of Appeals dismissed a lawsuit yesterday filed by Maher Arar, a Syrian-born Canadian who claimed that the American government illegally sent him to Syria in a case of “extraordinary rendition.” Mr. Arar, who was detained by immigration officials in 2002 during a layover in Kennedy International Airport, was initially sent to Jordan before being released to Syrian authorities. He was held prisoner for almost a year, during which time he says he was beaten with metal cables during interrogations.
In a 2-1 decision, the Second Circuit panel agreed with the lower court’s determination that the case involved serious national security issues and foreign policy concerns, but ultimately relied on procedural issues in its dismissal. While the majority feigned concern over the government’s excesses, writing that “threats to the nation’s security do not allow us to jettison principles of ‘simple justice and fair dealing,’” it held that Mr. Arar lacked standing, or the right to sue in federal court, because he had never technically entered the United States.
This argument completely discounts the government’s justification for detaining Mr. Arar in the first place -- that entering Kennedy International Airport for his layover required that he enter U.S. territory. During a congressional hearing last month, Richard Skinner, Inspector General for Homeland Security, argued that immigration officials acted properly in refusing Mr. Arar entry, which he contended was technically required for his layover, because his name was included on a terrorist watch-list -- Canada later acknowledged it mistakenly added Mr. Arar’s name to said list.
In his dissent, Judge Robert Sack called the majority’s assertion that Mr. Arar had never entered the United States “legal fiction,” and claimed that “Arar was, in effect, abducted while attempting to transit at J.F.K. Airport.” Maria LaHood, an attorney with the Center for Constitutional Rights said that yesterday’s decision made her sick and that “the ruling condones what U.S. officials did…and makes it possible to do it again.”
Following the court’s dismissal of Mr. Arar’s suit, the Justice Department released a statement in which it hailed the decision as a victory. In the statement, department officials claimed that “Mr. Arar was lawfully deported -- not rendered -- to Syria” and that “[t]he U.S. government received assurances from Syria that he would not be tortured.”
This argument rings so hollow, however, that it’s almost insulting. While Mr. Arar was born in Syria, he had Canadian citizenship at the time of his detention. If the government was only trying to deport him, they would have likely returned him to his country of residence, which was Canada -- coincidentally where his flight was headed -- most certainly not Syria. What’s more, the American government did not initially deport Mr. Arar to Syria, but rather sent him to Jordan, where he was eventually released by Jordanian authorities to the Syrian government.
Yesterday’s decision by the Second Circuit was a disturbing miscarriage of justice. The court’s majority completely disregarded the government’s stated justification for detaining Mr. Arar in order to prevent him from ever having his day in an American court. The unfortunate circumstances surrounding Mr. Arar’s “deportation” to Syria clearly suggest that this was an instance of “extraordinary rendition.” Even Inspector General Skinner acknowledged as much when he stated that he “could not rule out” that Mr. Arar was sent to Syria with the intention of having him questioned under torture about possible connections to terrorists. What good is our federal judiciary if it does not serve to check the abuses of our government in extreme cases like these?