The Islamic Post Blog


In Stunning Move, Court Decides to Reconsider Case of Rendition Victim, Maher Arar by Khalida
October 3, 2008, 12:03 pm
Filed under: Front Page News, International, National, Sept/Oct Volume - 2008
 Canadian Maher Arar with his two children.

Canadian Maher Arar with his two children.

The following is excerpted from a release by the Center for Constitutional Rights.

New York — The Second Circuit Court of Appeals issued an extremely rare order that the case of Canadian rendition victim Maher Arar would be heard before a full court by all of the active judges on the Second Circuit on December 9, 2008. For the court to issue the order sua sponte, that is, of its own accord without either party submitting papers requesting a rehearing, is even more rare.
“We are very encouraged,” said CCR attorney Maria LaHood. “For the court to take such extraordinary action on its own indicates the importance the judges place on the case and means that Maher may finally see justice in this country. As the dissenting judge noted, the majority’s opinion gave federal officials the license to ‘violate constitutional rights with virtual impunity.’ Now the court has the opportunity to uphold the law and hold accountable the U.S. officials who sent Maher to be tortured.”
Background
In June 2008, the majority on the three-judge panel ruled that Mr. Arar’s constitutional claims for being sent to Syria to be tortured and arbitrarily detained could not be redressed because Congress already provided a remedy.

The remedy provided by Congress permitted foreign citizens to petition a court to review their removal orders, even though in this case the U.S. officials prevented Mr. Arar from doing so. The court also found these claims could not be heard because they would interfere with U.S. foreign relations and impede national security.
Regarding Mr. Arar’s claim that the U.S. officials obstructed his access to his counsel and the courts, the majority found that foreigners who have not been formally admitted into the U.S. have no right to be assisted by their own counsel. They further ruled that it was not clear from Mr. Arar’s complaint that had he been able to go to court, he would have sought relief under the Convention Against Torture (CAT), which precludes the U.S. from sending people to countries where there are substantial grounds to believe they will be tortured. This despite the fact that Mr. Arar’s complaint alleges that he repeatedly expressed his fear to the U.S. officials that he would be tortured if sent to Syria, and that the officials violated CAT in sending him there.
The court also rejected Mr. Arar’s Torture Victim Protection Act claim that U.S. officials conspired with Syrian officials to subject him to torture, ruling that the U.S. officials could not be held responsible unless they were acting under the influence of the Syrian officials. However, the TVPA creates liability for torture inflicted under color of foreign law, and courts have held that it applies not only to the torturer himself, but also to those who conspire in torture.
The same Court of Appeals ruled in CCR’s landmark 1980 case, Filártiga v. Peña-Irala, that a Paraguayan official could be held liable in U.S. court for torture of a Paraguayan citizen in Paraguay, yet the June 2008 majority opinion found that U.S. officials who send someone to another country to be tortured cannot be held liable.
In stark contrast to the response of the U.S. government, the Canadian government conducted an exhaustive public inquiry, found that Mr. Arar had no connection to terrorism, and, in January 2007, apologized to him for its role in his ordeal and awarded him $10 million compensation.

For more information on Maher Arar’s case, click here.

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