Above the Law

Monday, February 27, 2006

Above the Law

Fellow blogger Michael Stickings believes that the case of Maher Arar is deserving of a much higher profile-- I wholeheartedly agree. Especially considering that congress is reviewing the Patriot Act at the moment, this might shed some light on some of our post-9/11 policies.

In 2002 a Syrian-born Canadian citizen is detained in a US airport while on vacation, he's confined and interrogated in a Brooklyn detention center without access to legal counsel, we then turn around and ship him off to Syria where he's imprisoned and tortured for 10 months. Syria eventually lets him go because they conclude he has no ties to terrorism or Al Qaeda. Not surprisngly, he's suing the US for sending him there in the first place, for illegal detainment and knowingly outsourcing the job of torture.

The following is from an editorial in yesterday's New York Times:
A federal trial judge in Brooklyn has refused to stand up to the executive branch, in a decision that is both chilling and ripe for prompt overturning.
All this was part of a morally and legally unsupportable United States practice known as "extraordinary rendition," in which the federal government outsources interrogations to regimes known to use torture and lacking fundamental human rights protections.
The judge in the case, David Trager of Federal District Court in Brooklyn, did not dispute that United States officials had reason to know that Mr. Arar faced a likelihood of torture in Syria. But he took the rare step of blocking the lawsuit entirely, saying that the use of torture in rendition cases is a foreign policy question not appropriate for court review, and that going forward would mean disclosing state secrets.

It is hard to see why resolving Mr. Arar's case would necessitate the revelation of privileged material. Moreover, as the Supreme Court made clear in a pair of 2004 decisions rebuking the government for its policies of holding foreign terrorism suspects in an indefinite legal limbo in Guantánamo and elsewhere, even during the war on terror, the government's actions are subject to court review and must adhere to the rule of law.

With the Bush administration claiming imperial powers to detain, spy on and even torture people, and the Republican Congress stuck largely in enabling mode, the role of judges in checking executive branch excesses becomes all the more crucial. If the courts collapse when confronted with spurious government claims about the needs of national security, so will basic American liberties.

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