Dispatches from the Creation Wars

In January, 2007, the Canadian Prime Minister publicly apologized to Arar for the role Canada played in these events, and the Canadian government paid him $9 million in compensation. That was preceded by a full investigation by Canadian authorities and the public disclosure of a detailed report which concluded "categorically that there is no evidence to indicate that Mr. Arar has committed any offense or that his activities constituted a threat to the security of Canada." By stark and very revealing contrast, the U.S. Government has never admitted any wrongdoing or even spoken publicly about what it did; to the contrary, it repeatedly insisted that courts were barred from examining the conduct of government officials because what we did to Arar involves "state secrets" and because courts should not interfere in the actions of the Executive where national security is involved. What does that behavioral disparity between the two nations say about how "democratic," "accountable," and "open" the United States is?

* Continue Reading

Yesterday, the Second Circuit -- by a vote of 7-4 -- agreed with the government and dismissed Arar's case in its entirety. It held that even if the government violated Arar's Constitutional rights as well as statutes banning participation in torture, he still has no right to sue for what was done to him. Why? Because "providing a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity of the rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns" (p. 39). In other words, government officials are free to do anything they want in the national security context -- even violate the law and purposely cause someone to be tortured -- and courts should honor and defer to their actions by refusing to scrutinize them.

Reflecting the type of people who fill our judiciary, the judges in the majority also invented the most morally depraved bureaucratic requirements for Arar to proceed with his case and then claimed he had failed to meet them. Arar did not, for instance, have the names of the individuals who detained and abused him at JFK, which the majority said he must have. As Judge Sack in dissent said of that requirement: it "means government miscreants may avoid [] liability altogether through the simple expedient of wearing hoods while inflicting injury" (p. 27; emphasis added).

This is yet another example of courts relying on hypertechnicalities in order to justify injustice rather than working to achieve justice. The appalling thing here is that the majority opinion acknowledges that he was sent to Syria specifically to be tortured ("pursuant to an inter-governmental understanding that he would be detained and interrogated under torture by Syrian officials").

Greenwald continues:

This is precisely how the character of a country becomes fundamentally degraded when it becomes a state in permanent war. So continuous are the inhumane and brutal acts of government leaders that the citizens completely lose the capacity for moral outrage and horror. The permanent claims of existential threats from an endless array of enemies means that secrecy is paramount, accountability is deemed a luxury, and National Security trumps every other consideration -- even including basic liberties and the rule of law. Worst of all, the President takes on the attributes of a protector-deity who can and must never be questioned lest we prevent him from keeping us safe.

This is exactly why I find so objectionable and dangerous the ongoing embrace by the Obama administration of these same secrecy and immunity weapons. Obama had nothing to do with the Arar case -- all the conduct, and even the legal briefing, occurred before he was President -- but he has taken numerous steps to further institutionalize the core injustice here, including in cases that are quite similar to Arar: namely, that the Executive can use secrecy and national security claims to shield himself from the rule of law, even when he's accused of torture and war crimes. That's exactly what happened here, yet again. As Judge Parker wrote in dissent:

Where appropriate, deference to the coordinate branches is an essential element of our work. But there is, in my view, an enormous difference between being deferential and being supine in the face of governmental misconduct. The former is often necessary, the latter never is. At the end of the day, it is not the role of the judiciary to serve as a help-mate to the executive branch, and it is not its role to avoid difficult decisions for fear of complicating life for federal officials. Always mindful of the fact that in
times of national stress and turmoil the rule of law is everything, our role is to defend the
Constitution. We do this by affording redress when government officials violate the law, even when national security is invoked as the justification.

Identically, Judge Calabresi -- one of the most respected and non-ideological appellate judges in the country -- accused the majority of "utter subservience to the executive branch." Surely that's true, but it isn't only the Arar majority that is guilty of that. It is the nation as a whole -- drowning in infinite claims of "state secrets" and executive immunity and war necessity and the imperatives of "looking forward" -- that has meekly acquiesced to the pernicious idea that the President in an allegedly national security context must never have his actions disclosed, let alone judicially scrutinized and held accountable, no matter how criminal, brutal and inhumane those actions are.

Exactly right. Even more disturbing are those who expressed due skepticism when the Bush administration made such arguments but suddenly express faith in the Obama administration when they make identical arguments.