In the midst of our ongoing coverage of the content of, and fall out from, the Senate Select Intelligence Committee Report, and debates about the obligation to devise some form of accountability and remedy for the harms inflicted in our collective name, this post offers a brief reminder of another case, not mentioned in the Report, that remains one of the great injustices of the “Global War on Terror”: that of Canadian-Syrian Maher Arar.

Detained by the United States on the basis of false and inaccurate information received from Canada as to his potential dangerousness, Arar was removed to Syria where he was tortured and held for more than a year in a grave-like cell. (Nathalie Weizman discusses the case briefly here). No charges were ever brought against Arar, and Canada eventually admitted that he was completely innocent of any wrongdoing. Canada paid upwards of $10 million in compensation for its role in Arar’s ordeal. The United States, which made the decision to remove him to Syria rather than Canada or Switzerland (his point of embarkation), has yet to formally admit wrongdoing, apologize, hold anyone responsible, or pay restitution. Time Magazine designated him as one of the 100 most influential people in 2007 with a profile written by Senator Patrick Leahy.

As this national conversation about next steps following the revelations in the Torture Report continues to unfold, the possibility of the United States issuing an apology and paying reparations for those wrongly detained and gravely mistreated should be given serious consideration. 

The Origins of the Case

By way of background, Maher Arar is a Canadian citizen and software engineer. While returning to Canada from visiting his wife’s relatives in Tunisia in 2002, he was detained at JFK Airport, transferred to the Metropolitan Detention Center in Brooklyn, and held without charges for 12 days. During this time, the U.S. government initiated removal proceedings against him, on the theory that he was inadmissible on security grounds as a member of al Qaeda (8 U.S.C. §1182(a)(3)(B)(i)(V)). (Because he was deemed excludable, he could be removed—rather than deported—and enjoyed fewer rights). He was eventually allowed to contact his family, who retained a lawyer for him. His lawyer, however, was unable to effectively represent him because she was given inaccurate information about his situation (e.g., where he was detained, when he would be removed, etc.). He did receive a visit from the Canadian consul.

Despite his impassioned pleas that he would be tortured if he were returned to his native Syria, and his stated preference to be returned to Canada (or to Switzerland, the county in which he boarded the flight to the United States), he was removed to Syria via Jordan. (There was some suggestion that Syria refused to take him directly, but would do so via Jordan; ultimately, he was driven across the border from Amann). Normally, excludable aliens are removed to the country in which they boarded the vessel on which they arrived in the United States; if that country is unavailable, the person can be removed to the country of which s/he is a citizen, the country where s/he was born, the country of residence, or a country whose government will accept the alien if the other options are “impracticable, inadvisable, or impossible.” Individuals cannot be removed to a country where their life or freedom would be threatened on impermissible grounds, unless (inter alia) the person him- or herself participated in persecution or other international crimes, the person was convicted of a serious crime, or there are “reasonable grounds to believe that the alien is a danger to the security of the United States.” (8 U.S.C. §1231).

Notwithstanding Arar’s avowed concerns about returning to Syria, the Commissioner of what was then called the Immigration & Naturalization Service (INS), in a pro forma declaration that is attached to the complaint Arar eventually filed, determined that Arar’s removal would be consistent with Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which states:

No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. … For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

This is determination was in serious tension with the U.S. State Department’s 2002 human rights report on Syria, which stated that the Syrian security forces routinely committed serious human rights abuses, including custodial torture and mistreatment:

Continuing serious abuses included the use of torture in detention; poor prison conditions; arbitrary arrest and detention; prolonged detention without trial; fundamentally unfair trials in the security courts; an inefficient judiciary that suffered from corruption and, at times, political influence; and infringement on privacy rights.

The United States has also designated Syria as a state sponsor of terrorism since 1979.

Torture & Mistreatment in Syria

Arar was beaten when he arrived in Jordan before being transferred overland to Syria.  There, he was detained incommunicado in an underground cell, which he described as “a grave,” for 351 days. During this time, he was physically and mentally tortured: he was beaten, whipped with electrical cables, threatened with electrocution and other forms of harm, and forced to hear others being tortured. His conditions of detention were degrading and inhumane. He eventually signed a false confession indicating that he had undertaken terrorist training in Afghanistan—a country that he had never in fact visited.

He was finally released in October 2003 and allowed to return to Canada. It was later revealed that he was picked up in JFK on the basis of false information from the Royal Canadian Mounted Police (RCMP) depicting him as being an Islamic extremist associating with members of Al Qaeda. (Cumulative New York Times coverage is available here; his story and other cases of rendition-to-torture are featured in Jane Mayer’s article “Outsourcing Torture” in the New Yorker).

Efforts at Redress

Since his release, Arar has sought justice in every possible venue. Whereas Canada has paid recompense for its role in his ordeal, the United States has not, to date, admitted responsibility, issued an apology, or paid any sort of compensation for Arar’s rendition to Syria. His lawsuit in Canada generated a settlement; his lawsuit in the United States was dismissed on national security grounds.

Arar Commission in Canada

In 2004, Canada launched a public inquiry—formally called the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar—led by Justice Denis O’Connor of the Ontario Court of Appeal. It released its report on September 18, 2006. The Commission called over 70 Canadian government officials as witnesses, entered 6,500 documents as exhibits, and held 127 days of hearings. A number of NGOs, such as Redress Trust, made submissions to the Commission. The U.S., Syrian, and Jordanian governments declined an invitation to give evidence.

The report concluded, inter alia, that

  • The RCMP provided U.S. authorities with inaccurate information about Arar.
  • There is no evidence that Canadian officials participated or acquiesced in the U.S. authorities’ decision to detain Arar or to remove him to Syria.
  • Canadian officials could have done more while Arar was detained in Syria to protect him from abuse and secure his release; different agencies did not respond to his detention in a coherent fashion.
  • After his release, Canadian officials leaked confidential and inaccurate information to the press for the purpose of damaging Arar’s reputation and/or protecting the government.

The report concluded that:

There is nothing to indicate that Mr. Arar committed an offense or that his activities constitute a threat to the security of Canada.

The report contained a number of recommendations aimed at reforming the information sharing process, particularly with respect to governments with questionable human rights records. In addition, the Commission recommended that the Canadian government develop a standard protocol for when Canadian citizens are detained abroad on terrorism-related grounds, particularly when there is a risk of torture or other mistreatment. Recommendation 22 states:

The Government of Canada should register a formal objection with the governments of the United States and Syria concerning their treatment of Mr. Arar and Canadian officials involved with his case.

Apparently, the latter recommendation was in fact carried out.

Additional inquiries were also launched with respect to other Canadian citizens who were subject to rendition and held without charge abroad. The then-head of the RCMP, Giuliano Zaccardelli, resigned after it was revealed he had given false testimony about Arar’s case.

Canadian Courts

Arar brought suit in Canada in 2004, with claims of negligence, defamation, false imprisonment, assault and battery, complicity to torture, conspiracy, and abuse of public office. The case was continued while the Arar Commission, above, completed its work.

When the Arar Commission issued its report, the parties to the lawsuit entered mediation. Then-Prime Minister, Stephen Harper, formally apologized for the government’s role in Arar’s rendition and torture and offered him reparations to the tune of $10 million (which includes funds for his legal fees) as part of a settlement of his lawsuit.

U.S. Federal Courts

Arar, with representation form the Center for Constitutional Rights, brought a lawsuit against former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Secretary of Homeland Security Tom Ridge, among other immigration officials. His complaint alleged violations of his 5th Amendment substantive due process rights (a so-called Bivens claim) and the Torture Victim Protection Act (TVPA, 13 U.S.C. § 1350) in connection with his treatment in the United States as well as his rendition to Syria. He sued the defendants on the basis of their own actions and also for their complicity/conspiracy with the Jordanian and Syrian officials who detained and tortured him.

The district court granted defendants’ motion to dismiss. It first held that the TVPA did not apply, because it requires a showing that the defendant acted

Under actual or apparent authority, or color of law, of any foreign nation (emphasis added).

As such, as the government had argued, the TVPA does not apply to U.S. officials applying U.S. immigration law.

The court also refused to imply a Bivens remedy under the 5th Amendment on the grounds that the national security and foreign affairs concerns presented by the case counseled against the creation of a private right of action in the absence of affirmative action by Congress. In these proceedings, the U.S. government also asserted the state-secrets privilege, arguing that Arar’s claims could not be litigated without the disclosure of classified information regarding the basis for his exclusion, the rejection of his preference to be removed to Canada, and the decision to remove him to Syria. In dismissing the case, the district court did not reach the state-secrets assertion.

The judgment was eventually affirmed by 2nd Circuit en banc (585 F.3rd 559 (Nov. 2, 2009)). The court of appeals stated:

If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters.

The Supreme Court rejected Arar’s petition for certiorari on June 14, 2010. Many of the pleadings, briefs, and rulings are here.

The U.S. Congress

In 2007, Arar testified before the House of Representatives’ Subcommittee on International Organizations, Human Rights and Oversight of the Committee on Foreign Affairs and the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the Committee on the Judiciary, which jointly held hearings on “Rendition to Torture: The Case of Maher Arar.”  Because he remained on a terrorist no-fly list and is apparently still barred from travelling to the United States—notwithstanding a formal request from Canada that he be delisted—Arar was forced to provide his testimony by video link. Individual lawmakers from both sides of the aisle offered him an apology for what he endured.

So far, however, notwithstanding impassioned calls from civil society and religious leaders and a petition with over 60,000 signatures, the U.S. government has failed to offer any form of remedy or apology, although then Secretary of State Condoleezza Rice did admit to a House Foreign Affairs Committee that his case was not “handled as it should have been”.

Ongoing Developments in Canada

The Extraterritorial Criminal Investigations unit of the Royal Canadian Mounted Police (RCMP) has apparently been quietly conducting a criminal investigation (code named “Project Prism,” perhaps named after the on-line magazine Arar started in 2010) into the role of U.S. and Syrian officials in Arar’s rendition, arbitrary detention, and torture. NGOs have pressed Canada to bring charges against U.S. officials, including Dick Cheney in connection with his 2011 trip to Vancouver.

Charges are available under § 269.1 of the Criminal Code, which penalizes acts of torture:

Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

The term “official” is defined to include peace officers, public officers, and members of the armed forces. Incidentally, Canada has also enacted legislation allowing for the prosecution of genocide, crimes against humanity, and war crimes (and of conspiracy to commit such acts) on the basis of universal jurisdiction. This statute includes command responsibility as a prosecutable form of responsibility. Arbitrary detention and torture can constitute constitutive acts of each of these three crimes. However, because Arar’s detention and torture likely do not easily satisfy the other defining elements of those three offenses (e.g., an intent to destroy a protected group, a widespread or systematic attack against a civilian population, or the existence of an armed conflict, respectively), the torture charge may be the most viable.

The Boland case (1995) offers an important precedent. It involved the 1993 beating and killing of a 16-year-old Somali detainee, Shidane Abukar Arone, by two Canadian soldiers involved in a peacekeeping mission. The two direct perpetrators were charged with manslaughter and torture (one was deemed unfit to stand trial; the other was convicted). The commanding officer was charged with torture under §269.1 (above), and of negligently performing a military duty. He pled guilty to the latter charge.