The New York Times’ editorial board today writes about the stark contrast between two court decisions on extraordinary rendition:
Two courts, one in Italy and one in the United States, ruled recently on the Bush administration’s practice of extraordinary rendition, which is the kidnapping of people and sending them to other countries for interrogation — and torture. The Italian court got it right. The American court got it miserably wrong.
In Italy, a judge ruled that a station chief for the Central Intelligence Agency and 22 other Americans broke the law in the 2003 abduction of Osama Moustafa Hassan Nasr, a Muslim cleric who ended up in Egypt, where he said he was tortured.
Two days earlier, a federal appeals court in Manhattan brushed off a lawsuit by Maher Arar, a Syrian-born Canadian citizen who was seized in an American airport by federal agents acting on bad information from Canadian officials. He was held incommunicado and harshly interrogated before being sent to Syria, where he was tortured. He spent almost a year in a grave-size underground cell before the Syrians let him go.
The United States Court of Appeals for the Second Circuit decided that none of that entitled Mr. Arar to a day in court.
In Mr. Nasr’s case, authorities said that they had reason to suspect he was involved in recruiting militants to go to Iraq. It has long been established that Mr. Arar was not guilty of anything. Canada admitted that it had supplied false information to American authorities, and in 2007, it apologized and offered Mr. Arar $10 million in damages. Neither the Bush nor Obama administrations followed suit, leaving Mr. Arar to pursue litigation.
In June 2008, a three-judge panel of the same court dismissed Mr. Arar’s civil rights suit on flimsy grounds. The court then took a rare step, scheduling a rehearing before all of the court’s active members before an appeal was filed. Sadly, the full court’s decision is even more insensitive to the violation of his rights and the courts’ duty to hold government accountable for breaches of the law.
Written by Chief Judge Dennis Jacobs, the 59-page majority opinion held that no civil damages remedy exists for the horrors visited on Mr. Arar. To “decide how to implement extraordinary rendition,” he wrote, is “for the elected members of Congress — and not for us as judges.” Allowing suits against policy makers for rendition and torture would “affect diplomacy, foreign policy and the security of the nation,” Judge Jacobs said.
The ruling distorts precedent and the Constitutional separation of powers to deny justice to Mr. Arar and give officials a pass for egregious misconduct. The overt disregard for the central role of judges in policing executive branch excesses has frightening implications for safeguarding civil liberties, as four judges suggested in dissenting opinions.
It is painful to recall that this is the same federal circuit court that declared in 1980 that even foreigners accused of torture in foreign countries can be called to account in American courts. The torturer is the “enemy of all mankind,” the Court of Appeals for the Second Circuit declared back then. One of the dissenters, Judge Guido Calabresi, said that “when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”
The damage to Mr. Arar, America’s reputation and the rule of law is already quite plain. The Supreme Court should reverse this ruling
Forget for a moment that both these cases raise alarming questions about inchoate crimes for terrorist suspects (when do we decide a person is a criminal based on his potential for committing future crimes long before a crime has actually been committed?).
What is most striking about these cases is that they show a gross disregard for and lack of confidence in the judicial systems of democratic states. For example, in the Italian case, the CIA unilaterally decided that it was better to have Osama Moustafa Hassan Nasr tortured in Egypt than arrested and prosecuted in Italy. And in Mr. Arar’s case, the CIA – now with the deference of the Second Circuit – once again affirmed that total lack of faith in the American justice system for enforcing and prosecuting the law. So what are we trying to establish in countries like Iraq and Afghanistan? A Jeffersonian legislative democracy with an Egyptian and Syrian judicial system?