The Torture Judge

U.S. court rules our government can break international laws to keep us safe

Essentially you have a judge saying that assuming that U.S. officials sent Mr. Arar to be tortured, a judge can do nothing about it. Georgetown University law professor David Cole, New York Law Journal, February 17


In a startling, ominous decision—ignored by most of the press around the country—Federal District Judge David Trager, in the Eastern District of New York, has dismissed a lawsuit by a Canadian citizen, Maher Arar, who, during a stopover at Kennedy Airport on the way home to Canada after vacation, was kidnapped by CIA agents.

Federal judge David Trager: Am I my president's keeper?
photo: Rick Kopstein
Federal judge David Trager: Am I my president's keeper?

Arar was flown to Syria, where he was tortured for nearly a year in solitary confinement in a three-by-six-foot cell ("like a grave," he said). He became, internationally, one of the best-known victims of the CIA's extraordinary renditions—the sending of suspected terrorists to countries known for torturing their prisoners.

Released after his ordeal, Arar has not been charged with any involvement in terrorism, or anything else, by Syria or the United States. Stigmatized by his notoriety, still traumatized, unemployed, he is back in Canada, where the Canadian Parliament had opened an extensive and expensive public inquiry into his capture and torture. The United States refuses to cooperate in any way with this investigation.

Maher Arar sued for damages in federal court here (Maher Arar v. John Ashcroft, formerly Attorney General of the United States, et al.). Representing Arar for the New York–based Center for Constitutional Rights, David Cole predicts, and I agree, that if Judge Trager's ruling is upheld in an appeal to the Supreme Court, the CIA and other American officials will be told "they have a green light to do to others what they did to Arar"—no matter what international or U.S. laws are violated in the name of national security.

Following the dismissal of Arar's case by Trager (former dean of Brooklyn Law School), Barbara Olshansky (deputy legal director of the Center for Constitutional Rights) underscored the significance of what Trager has done to legitimize the Bush administration's doctrine that in the war on terrorism, the commander in chief sets the rules. Said Olshansky: "There can be little doubt that every official of the United States government [involved in the torture of Maher Arar] knew that sending him to Syria was a clear violation of the U.S. Constitution, federal statutes, and international law . . . This is a dark day indeed."

To fathom the darkness of Trager's decision that Maher Arar has no constitutional right to due process in an American court of law for what he suffered because of the CIA, it's necessary to be aware of a decision directly on point by New York's Second Circuit Court of Appeals in 1980.

In this landmark decision, Filártiga v. Peña-Irala, David Cole points out, the appeals court decided that "the prohibition on torture was so universally accepted that a U.S. Court could hold responsible a Paraguayan official charged with torturing a dissident in Paraguay . . . The [U.S.] court declared that when officials violate such a fundamental norm as torture, they can be held accountable anywhere they are found." (Emphasis added.)

That 1980 Second Circuit Court of Appeals decision proclaimed: "The torturer has become the pirate and slave trader before him . . . an enemy of all mankind." (Emphasis added.)

The kicker is that this decision giving American courts jurisdiction over cases of official torture in other countries was reaffirmed by the U.S. Supreme Court in June 2004 (Sosa v. Alvarez-Machain).

Now let us hear how Judge Trager justifies his dismissal of Maher Arar's suit for the atrocities he endured in Syria because of the CIA. In his decision, Trager said that if a judge decided, on his or her own, that the CIA's "extraordinary renditions" were always unconstitutional, "such a ruling can have the most serious consequences to our foreign relations or national security or both."

A judge must be silent, even if our own statutes and treaties are violated! What about the separation of powers? Ah, said Trager, "the coordinate branches of our government [executive and legislative] are those in whom the Constitution imposes responsibility for our foreign affairs and national security. Those branches have the responsibility to determine whether judicial oversight is appropriate."

Gee, I thought that the checks and balances of our constitutional system depend on the independence of the federal judiciary, which itself decides to exercise judicial review.

Judge Trager went further to protect the Bush administration's juggernaut conduct of foreign policy: "One need not have much imagination to contemplate the negative effect on our relations with Canada if discovery were to proceed in this case, and were it to turn out that certain high Canadian officials had, despite public denials, acquiesced in Arar's removal to Syria."

"More generally," Trager went on, "governments that do not wish to acknowledge publicly that they are assisting us would certainly hesitate to do so if our judicial discovery process could compromise them."

But judge, the Canadian government itself is now actively involved in an inquiry to discover, among other things, what happened to Arar, and how. And in Europe, there is a fierce controversy over whether governments there have been covertly involved in facilitating the CIA's kidnapping of terror suspects from other lands.

Is it the job of a federal judge here to protect other governments from embarrassment and eventual punishment by their own courts for helping the United States commit crimes?

And what about our own government's criminal accountability? The February 17 New York Law Journal noted that "Judge Trager said that even assuming the government had intended to remove Maher Arar to Syria for torture, the federal judiciary was in no position to hold our government officials liable for damages 'in the absence of explicit direction by Congress . . . even if such conduct violates our treaty obligations or customary international law.' " (Emphasis added.)

If independent federal judges cannot hold our government accountable, who can? Fortunately, Judge Trager is not on the Supreme Court. But look at whom George W. Bush has appointed to be our custodians of the Constitution!

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