Wednesday, December 13, 2006


Is there anything that will not be condoned in the name of fighting terrorism? Maher Arar, a dual citizen of both Canada and Syria, but a resident of Canada since a teenager, alleges that he was seized by representatives of the United States government at Kennedy Airport, held and then sent to Syria where he was interrogated and tortured. He was eventually released when it was determined that he was not a terrorist. Apparently no one now claims otherwise.
His suit against certain named U.S. officials for damages under what is known as the Bivens doctrine was dismissed on the grounds of "a special factor" urged by the government that the violation of his rights occurred "during efforts to protect national security and that affected foreign affairs", and that the judiciary was not the branch to balance individual rights against national security. (His lack of U.S. citizenship was not a basis for the dismissal.)
The judiciary was created, in part, to reign in abuses by the other branches if they violated the rights granted to individuals. Hopefully, we do not have to debate in this day and age, that persons here and everywhere have the right to be free from torture. Torture, although practiced in many places, is virtually forbidden everywhere and most certainly violates the Fifth Amendment, our laws and our treaties. So what is the balancing that must take place? Is the argument that forbidding torture or compensating someone who has been tortured under the auspices of or in complicity with our government may somehow run contrary to national security?
The judiciary has the role and duty of protecting constitutional rights during times of national crisis and war, even to the extent of limiting the power of the executive branch. In such times, the judiciary should be even more vigilant, because it is in such times that our rights are in the greatest jeopardy. President Truman's seizure of the steel mills during the Korean War (on the grounds that a strike would have affected the war effort) was prohibited by the Supreme Court noting that a president cannot elude the restrictions of the Constitution by the assertion of his military role. Likewise, the First Amendment trumped the government's efforts to block the publication of the Pentagon Papers despite the government's assertion of damage to the national security.
Mr. Arar has no other remedy other than his claim for damages. Congress has not explicitly denied the remedy under these circumstances, nor provided any alternative. The government in a formal submission to the United Nations stated that there is no justification or tolerance for torture. So the balancing, if indeed there is a need for it, has already been done. If we condone the outsourcing of torture and fail to provide a remedy for it, then we are no different than the suicide bombers, who also purport to act in furtherance of their foreign policy.
(I wish to disclose that it is my intention to join with other retired judges in filing an amici brief urging a reversal of the dismissal of Mr. Arar's case.)


MMF said...


I appreciate your willingness to speak up so strongly. I'm sure a nice quiet uncontentious retirement might be easier than the path you seem to have chosen for yourself!

I am curious as to how often retired judges file as amici, and if it is rare, from your perspective as a judge what impact it would have had on your deliberations, and how you would receive the input?

roth said...

I second mmf's commendation. Please continue to use your esteem and discernment in service to the people!

lucia said...

I third the comments.

I hate to say this in comments, because I abhor comments about format. However, since you said you are knew to blogspot, you might want to ask reader to give you tips on how to get the blogging software to format things the way you'd prefer. (If you click my profile, and look for my email, I may be able to answer some, though I use wordpress.)

Maude said...

Thank you so much for starting this blog.
I was discouraged at Judge Richardson's decision on Hamden.
What has happened to Padilla is criminal, but not so by US laws.
2007 should be an interesting year.
Enough of the public is aware and will put pressure on Congress.
The MCA 2006 has to be changed by Congress. It wasn't needed in the first place.
There are military and federal court that could have handled the detainee cases.
The problem is that the gov't has shaky evidence, if any evidence at all. Hence, no open court trials.
In September of 2006, the Justice Department stated that osama Bin Laden is no longer a suspect in 9/11. Before that, it was stated that there was no evidence that osama Bin Laden was involved in 9/11. He has been on the FBI's most wanted list.
I don't hear anyone talking about this. I don't see this on blogs. I have made comments on some progressive blogs about this and nothing.
This goes to the heart of the so called war on terror. It goes to the core of the lies that have brought us to this point.
It is the same type of lie as Iraq was tied to 9/11, sponsered terrorists and had WMD.
If it weren't for the courts, we'd be down the tubes.

mldaad said...

Thank you for creating this Blog. Please keep it going.

John Allore said...


Not a lawyer here, but glad you have decided to participate in blogging.

As I am sure you are aware, the Arar affair in Canada has pretty much called into question the entire workings of the RCMP - up until now - on the service - they were beyond reproach.

John A

Ed said...

With all due respect your Honor, your statement stating "Apparently no one now claims [that Mr. Arar is a terrorist]" is incorrect. The United States Government has mantained to this day that Mr. Arar is a suspected member of al-Qaeda and his removal was "in the best interest of the United States" [State Department Response to Markey's Original Inquiry, December 17, 2004].

Just this week the US Ambassador to Canada, David Wilkins said, when interviewed by CBC Radio that "[Mr. Arar] is on the watch list and has been since he was deported". This in response to the question concerning whether or not Mr. Arar's name is still on the U.S. government' watch list. The following day Ambassador Wilson put out out a statement clearifing this stating that “the decision to remove Mr. Arar from the United States in 2002 was made by U.S. officials based on our own independent assessment of the threat to the United States”.

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