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TORONTO — The moribund torture suit known as Arar v. Ashcroft is coming back to haunt the Bush Administration – and, quite possibly, its successor – in a surprising, rare legal review announced today.
A U.S. appellate court in New York says that at least 13 judges will take a much closer look at the lawsuit filed by Maher Arar, the Ottawa telecommunications engineer who claims to be victim of the U.S. Central Intelligence Agency's “extraordinary rendition” program.
In a decision that bodes well for Mr. Arar and poorly for the CIA's clandestine methods, the judges at the Second Circuit of New York apparently realized – on their own initiative – an error they made in June.
Then, two of three appellate judges tossed out Mr. Arar's suit against former U.S. Attorney General John Ashcroft and other top officials. But now the court has voted as a whole to re-examine the suit much more closely, with new oral arguments now slated for December.
The announcement stunned Mr. Arar's lawyer, Maria LaHood, who was planning on petitioning the court to take another look, but had yet to do so. “Our petition for rehearing was actually due today,” she said. “We didn't have to re-file it because the court had acted on its own.”
She added that her client is “very pleased” with the development.
Mr. Arar was arrested in a New York airport in 2002, where he was held on suspicion of being an al-Qaeda member. The naturalized Canadian citizen from Syria had been planning to go to Montreal, but instead ended up being beaten with electric cables while interrogated in his homeland, after he was abruptly put in shackles and rerouted to the Middle East on CIA Gulfsteam jet.
Since then, and in front of Canadian, European and American audiences, the outspoken Mr. Arar has vividly described spending most of the next year of his life in a tiny rat-infested cell in Syria. His release was only secured after the Canadian Prime Minister urged his Syrian counterpart to grant clemency to Mr. Arar.
Washington officials have never precisely explained their reasons for the removal of Mr. Arar, but have long claimed they did so legally, albeit via strange procedures and unusual haste, over a two week period that coincided with the first anniversary of the 9/11 attacks.
U.S. government lawyers say the process was driven by police and immigration officials, and thus cannot be regarded as a rendition per se. In these and other cases, the government lawyers have tried to invoke the U.S. “state secrets privilege” to shut down any public discussion of CIA practises.
But now, the New York appellate judges – including 13 sitting judges and possibly one recently retired – announced they will be collectively inquiring into the Arar affair en banc, a measure that's adopted by U.S. appellate courts in only a fraction of a percentage of cases.
“This is extraordinarily rare,” said University of Richmond Law professor Carl Tobias in an interview.
Mr. Tobias estimated that a U.S. appellate court may see up to 10,000 cases a year, but, at the most five of them, will be re-opened in banc. The Second Circuit, he said, is more liberal politically than some appellate courts but relatively stingy in terms of reopening decisions.
He added the decision bodes well for Mr. Arar, as “the percentages are more than 50-50 there will be a different ruling.”
In any event, should the appellate judges decide to give Arar v. Ashcroft another chance, it will fall on a lower court to weigh evidence and testimony. “I'm not sure I'd consider this a huge surprise,” said Wake Forest University law professor Robert Chesney in an e-mail. “The issues are complicated, hotly contested, important, and highly topical, and that is more or less why the en banc mechanism exists.”
The case has broader implications. U.S. courts have been refusing to look at such lawsuits, including one filed by a German citizen who was a victim of extraordinary rendition, and also one against U.S. air carriers that allegedly took terrorism suspects to torture in third countries. For their part, the judges in New York appear to be becoming less deferential to the blanket state secrecy privilege the U.S. executive has invoked in such cases.
U.S. officials have never apologized to Mr. Arar, but Canadian officials have. Mr. Arar was awarded more than $10-million after a Canadian judicial inquiry found that the RCMP circulated misleading information about him to the United States prior to the CIA flight.
The essence of the inquiry was that the Mounties had initially suggested to U.S. counterparts that Mr. Arar was tied to terrorism, yet had no evidence in their files to back up the claim. Mr. Justice Dennis O'Connor found the Mountie misinformation was likely the biggest reason Mr. Arar ended up jailed in Syria for a year.
However, the flow of intelligence information relating to the Arar Affair circa 2001-2002 was much more complex than any one bilateral exchange involving one individual.
A related Canadian inquiry is ongoing into the cases of other Canadian nationals, including two alleged Arar associates who once lived in Afghanistan during the 1990s. They claim they were tortured far worse in Syria, and beaten into making false confessions concerning themselves and Mr. Arar, in the runup to the CIA flight to Syria.
Radio exporter Abdullah Almalki and Toronto truck driver Ahmad Abou El Maati had been RCMP targets before they were separately arrested flying into Syria in the months after 9/11.
The report on alleged Canadian complicity in their case is being written by Mr. Justice Frank Iacobucci, and due to be released on Oct. 20.
