JURIST Guest Columnist Jules Lobel, a lawyer for Maher Arar and a professor at the University of Pittsburgh School of Law, says that the US government and federal courts should follow the lead of a recently-completed Canadian inquiry by acknowledging the injustice done to Arar in deporting him from the US for torture in Syria...
The Commission chaired by appellate judge Dennis R. O'Connor made a number of findings that are important for Arar's ongoing quest for justice in the United States. First, the Commission concluded that Arar was never a member of Al Qaeda or associated with any terrorist group. Nonetheless, based on false information supplied by the Royal Canadian Mounted Police (RCMP), the United States government detained Arar at Kennedy Airport in New York on his way home to Canada from a family vacation in Tunisia. He was jailed and harshly interrogated in New York for two weeks and then secretly flown by U.S. government plane to Jordan and taken from there to Syria. He was held by the Syrians in a tiny cell for 10 months and tortured. On October 5, 2003, the Syrian government released Arar after concluding that he had no connection to terrorism
The Commission found that based on his mere acquaintances with other men under suspicion, the RCMP sent a report to the U.S. which listed Arar and his wife as "Islamic extremists suspected of being linked to the al Qaeda movement". Both the Commission and the RCMP now agree that the description was totally false. Judge O'Connor stated "categorically that there is no evidence to indicate that Mr. Arar has committed any offense or that his activities constituted a threat to Canada." The Commission suggested that the Canadian government pay compensation to Arar.
The Canadian Commission report also sheds light on the actions of American officials. In deciding to deport Arar, INS Regional Director J. Scott Blackman determined that the evidence "clearly and unequivocally reflects that Mr. Arar is a member of a foreign terrorist organization, to wit Al Qaeda." Yet only 3 days earlier, Canadian counterterrorism officials sent a fax to the FBI which stated that while Mr Arar "had contact with" suspicious individuals, they "were unable to indicate links to Al Qaeda", and had "yet to complete a detailed investigation of Mr. Arar". The next day, the Commission reports that a Canadian and FBI official spoke by phone and both concluded that there was insufficient evidence to charge Arar either in Canada or the United States with a crime, which would not be true if they had clear and unequivocal information that Arar was an Al Qaeda member.
Not only is it now clear that US officials inflated the evidence they received from Canada, but they also kept Canadian officials in the dark about their plans for Arar. The Canadian foreign ministry was not initially informed of Arar's detention, and American officials denied Mr. Arar's requests to talk to the Canadian Consulate in New York, a violation of American treaty obligations with Canada. The Commission report concluded that "American authorities appear to have intentionally kept Canadian officials in the dark about their plans to remove Mr. Arar to Syria". They did so, according to the report, because they "believed - quite correctly- that if informed, the Canadians would have serious concerns about the plan to remove Mr. Arar to Syria". Even after Arar's deportation to Syria, the United States government did not inform Canada of Arar's whereabouts, and the Canadians only learned two weeks later from the Syrians that he was there. Once the Canadians learned that Arar was in Syria, his torture and interrogation stopped.
The Commission report suggests that the reason Arar was not sent to Canada was because, unlike Syria, Canada would not have detained or tortured him. Canadian officials told their American counterparts that they would place Arar under surveillance. But that would not have sufficed for the United States - hence the Syria option.
The Canadian Commission report thus underscores the problems with the "preventive paradigm" that has become the key tool of the United States government's war on terror, of which extraordinary rendition is but one tactic. First, the preventive paradigm allows the government to use force and coercion against individuals and other states based on suspicions and not hard evidence. Thousands of innocent people like Arar thus get caught in the government's dragnet. Second, the paradigm relies on methods such as torture or inhumane treatment to obtain information which the government believes can not be obtained by normal police methods such as surveillance. Since Canada could not openly torture Arar, we sent him to Syria, which would. Finally, these coercive preventive measures rely on secrecy and lack of accountability.
While the Canadian government has now publicly aired the facts of its involvement in this outrageous incident, the United States government and courts continue to refuse to provide answers to why the U.S. government sent Arar to Syria. The U.S. government refuses to publicly discuss the Arar matter, has refused to make public any information about his deportation to Syria and refused to co-operate with the Canadian Commission. Mr. Arar's quest to discover how this could happen has fared no better in the judiciary - a US District Court recently dismissed Arar's lawsuit seeking damages because it raises "crucial national security and foreign policy considerations" that are the prerogative of co-ordinate branches of government.
Now that the Canadian government has openly aired its dirty laundry, we in the United States should demand of our government that it openly account for its actions. If it won't, the judiciary must ensure that Arar's claims get a fair and open hearing.
Jules Lobel is a professor at the University of Pittsburgh School of Law and one of the lawyers representing Maher Arar in his US court action.