US setback over rendition 'poster child' By William Fisher
NEW YORK - 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 US authorities to Jordan and then to Syria, where he
was held for 10 months and where he has said he was tortured.
The decision by the Second US 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 US 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
US$9.75 million. US 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 Sack. The request
was granted by a majority of the appeals judges.
However, a full US 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 US
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 Bush administration. 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,
Senator Arlen Specter of Pennsylvania, voted to move it to the senate floor.
That makes the future of the measure unclear.
Senator 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 US
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 US citizens must have the ability
to challenge their detention before an impartial judge.
In the same year, the court ruled that the US court system has the authority to
decide whether foreign nationals (non-US citizens) held in Guantanamo Bay were
rightfully imprisoned.
Two years later, the court 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 US 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 US civilian courts.
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