No Faith In Justice


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

[Emphasis added]

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?



Filed under Essays

8 responses to “No Faith In Justice

  1. The court made the proper decision, in light of the facts:

    Canada’s gubament played agenda games>
    Canada’s gubamnet was/were the perpetrator(s)>
    Canda’s gubament made restitution>

    Case closed.

    America is not responsible for the errors of other nations. The fact that we acted in good faith, based on our relationship(s) with Canadian authorities means there was no intent for wrongful prosecution/wrongful treatment.

    Next >>>>

  2. P.S. cugino, give me a break on the inchoate; the American law system does make assertions based upon intent and association; ever heard of, oh, I don’t know, “complicity” or “conspiracy” …

    Viewing this article prompts the question: what was he doing and who was he associating with that lead to the conclusions?

    Innocence is not just anecdotal, and the decisions were made on good faith information.

    Canada, their fault, not ours.

  3. eric

    First on inchoate crimes, as in conspiracy and attempted crimes: the problem is essentially at what point is there really an act in furtherance of a crime? For example, is simply agreeing with a hateful ideology a crime? If a Christian minister preaches in a sermon that anyone who performs abortions is a murder and then subsequently one of his churchgoers posts the names of abortion doctors on a website, (i) is there an act in furtherance of a crime and (ii) is the minister part of a criminal conspiracy? And once a murder is actually committed, is everyone who has had contact with the actual murderer, posted on the same websites or went to the same church part of the same criminal conspiracy?

    How about membership in a neo-nazi, anti-Semitic, white supremicist group? How about criticizing the U.S. government? How about being a member of one of these right wing militias? How about supporting the cause of an insurgency without actually fighting? So, could someone feasibly agree with a hateful ideology and not be guilty? In other words, is simply agreeing a crime? When does my freedom of thought and expression amount to a crime, or worse, when does it give the government the right to abduct me and send me to a foreign country to be tortured?

  4. eric

    On the Canada/US case. First the U.S. court did not hold that the U.S. was not at fault. He held that Congress had the sole right to decide whether abducting and kidnapping people in one country and shipping them to another to be tortured (aka, extraordinary rendition). The courts could not review that. The court also erroneously applied the Act of State Doctrine, but that is an entirely different conversation.

    In other words, the U.S. government could abduct, kidnap and transfer you either in the U.S. or elsewhere in the world and transfer you to any secret location it wanted to. And if they had done so erroneously, you would have no recourse whatsoever in U.S. courts. Forget personal responsibility. The U.S. is not a person and therefore is not responsible if it kidnaps based on false info.

    But once again, look at the facts. The suspect pleaded with the U.S. government not to send him to Syria because he would be tortured there. Under International Law, the U.S. is prohibited from extraditing someone to a country when and where it is reasonably likely that that person will be tortured (not to mention holding someone incommunicado violates a few domestic and international laws itself). The suspect was tortured.

    But more importantly, the U.S. government felt that “justice” would be better served in Syria than in the U.S.

  5. On the conspiracy part; I dont’ think any individuals title/social position has jack to do with anything.

    In your example, it is complicity if the individual(s) incite others to commit the crime, that’s the whole point. Maybe not life sentence worthy, but isn’t that what Manslaughter is intended to cover?

    Criticizing the U.S. government, regardless of ideology, is not a crime, at least within our borders. The Constitution guarantees that right to tell other citizens that your prostiticians are morons.

    Supporting an insurgency, makes you an enemy of the State, that’s just clear cut. Insurgents kill, supporting them aids their killing; hence, complicity. You know better than that, you don’t have to be the one to pull the trigger ~ if you bought the gun, knowing its direct purpose and use as per your involvement, you are complicitous.

    It isn’t simply “agreeing”, it is degree of involvement. How much communication? How much resource involvement? How many connections of associates were aided? Can an intent to aid enemies of the State be found/shown?

    Let’s look at it this way. You make friends with “Bruno the Hammer” and Giancarlo “Jimmy Fingers”; known Mafioso. You like hanging out with them, going to dinner, and know what their business is about. They ask you to help them meet with another family, you make the arrangements, and because of your involvement, people die.

    Are you innocent? No, you’re not, by any stretch of the imagination or law. Knowing who you dealing with, and what they are about, what they intend, can make you a criminal.

  6. On the extraordinary rendition, I’m not going to argue with you.

    UnConstitutinal, and just plain thuggishly unethical. It violates every standard of rights set forth, that I am aware of …

    If it’s on Bush and his CIA, then have them charged and tried.

  7. eric

    Yes, I think you show that it is complicated to decided when there is actually an act in furtherance of a crime, (it is usually up to a jury if it ever goes to court, as opposed to a torture cell in Syria).

    What is not clear is when we have decided that one’s casual or not so casual ties to the Hammer gets them rendered to Bagram, Guantanamo or elsewhere; hence the fact that so many of detainees have been held with little to no concrete evidence other than having had “contacts” with “known” bad guys or having been close to, near or on borders.

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