Extraordinary Injustice

It is likely that most Americans still do not recognize the name of Maher Arar. Based on yesterday's decision by a majority of judicial, boot-licking bureaucrats of the United States Court of Appeals for the Second Circuit--to call them judges immeasurably degrades the term--it is likely that few more will recognize it. This infamous decision in the Arar saga does much to illustrate the depths to which justice and the rule of law have sunk within the United States. Mr. Arar is a Canadian citizen who in September 2002 while en-route to Canada through the US was kidnapped--no other term adequately describes his plight--by agents of the United States government on the flimsiest of evidence and "rendered" to Syria where he was detained for a year and brutally tortured. As in Orwell's "1984," words themselves are abused, thus "war is peace," and in a similar vein, kidnapping becomes "rendering." Released after a year in Syrian detention Arar was neither charged with a crime nor offered any explanation or apology for what effectively was the ruining of his life. Read more about the details of his treatment in Glenn Greenwald's column here.

A subsequent investigation by the Canadian government confirmed that Arar was completely innocent and resulted in it accepting its share of blame in providing the US government with erroneous intelligence on Arar, although it maintained that Canadian officials did not improperly acquiesce in his abduction. He was offered a formal apology by the Canadian government and received a cash settlement to provide some redress for the treatment he received and the violation of his rights. Since then Arar has sought redress in the US courts in an attempt to bring some accountability to the individuals and government responsible for his abduction and ordeal. His efforts have so far been in vain, with the most recent setback provided by the judicial rubber-stamp of the Second Circuit Court of Appeals. Indeed, in a despicable display of imperial arrogance the United States still refuses Arar entry into the country, and he was even forced to provide testimony to a Congressional inquiry regarding rendition via video link! Details of Arar's attempts to bring suit in US courts can be found here at the Center for Constitutional Rights' (CCR) website.

Given such circumstances, it is appropriate that Lady Justice is blindfolded, so as to hide the tears that must be streaming down her face when such decisions are rendered. The issues in the Arar case are so stark because if the Law cannot protect a completely innocent man; if the Law can simply be abrogated by the powerful; if wrongs once perpetrated and brought to light cannot be fairly adjudicated and grievances redressed by the Law, then what is the point of having laws to begin with? We are as medieval serfs helpless in the face of the arbitrary power of kings. It was against such power that the US Constitution was in part crafted, but these so-called justices of the Second Circuit Court of Appeals make a mockery of the Constitution and have long forgotten the meaning of justice. Let's read them out, the roll-call of judicial shame on the Second Circuit; Dennis Jacobs (Chief Judge), Joseph McLaughlin, Jose Cabranes, Reena Raggi, Richard Wesley, Peter Hall, and Debra Livingston. Shame on all of you. These pathetic apologists for the National Security State comprised the seven judge majority that dismissed the Arar appeal. They should all turn in their robes in shame. I commend the four judges who penned dissenting opinions in the case; Guido Calabresi, Rosemary Pooler, Robert Sack, and Barrington Parker. At least there are some judges remaining who can see right from wrong through the legalistic mumbo-jumbo.

The seven judge majority essentially ruled that the US government can detain anyone under virtually any conditions, can transfer them abroad, even with the knowledge that they will likely be tortured, if it simply says that it is doing so for reasons of national security. It does not need to convince a judge that such statements are valid and have substance. It is simply enough for the government to assert that it is for reasons of national security. Having done so, the victim has no avenue for redress of grievances in US courts. None. This ruling grants to the executive branch and the President the same power of kings that the US Constitution was crafted to abolish! Agents of the government can act with virtually absolute power and absolute impunity. If that is not cause for concern, then I don't know what is. And these justices took an oath to uphold the Constitution? Have these so-called judges even read the Bill of Rights? Ironically, the majority argued that the separation of powers created in the Constitution did not allow them to intervene on the Executive's foreign policy powers in this case. But what of legality, the judiciary are supposed to uphold the law and provide a check on the executive. If not to protect innocents, then under what circumstances would the Court see fit to intercede?

Perhaps equally disturbing has been the Obama administrations stance on the so-called state secrets privilege. Recently, the Obama Justice Department has argued for exactly the same interpretation of the privilege as that favored by the Bush administration. It is hard to reach the conclusion that the Executive branch under Bush and now Obama is simply attempting to erect a permanent shield between itself and the law. Such actions are anathema to the rule of law and can only hasten the demise of already crumbling democratic institutions.