David Cole is law professor at Georgetown University and one of Canadian Maher Arar's lawyers in Arar's attempt to sue the United States for its role in his torture in Syria.
Cole writes about that case in a recent issue of the New York Review of Books:
Arar's claims were simple: to forcibly send him to Syria to be tortured violates the [U.S.] Constitution's due process clause, which the [U.S.] Supreme Court has interpreted as forbidding conduct that "shocks the conscience," as well as the Torture Victim Protection Act, which allows torture victims to sue those who subject them to torture "under color of foreign law." Courts have long held that torture is the paradigmatic example of conduct that "shocks the conscience" and violates due process. And Arar alleged that the US defendants sent him to Syria for the purpose of subjecting him to torture under Syrian law. These allegations were largely confirmed not only by the Canadian investigation, but also by the Department of Homeland Security's inspector general. In twenty-five years as a lawyer, I have never had a clearer and more egregious case of abuse.
Yet thus far the US courts have shut the door entirely on Arar, not even allowing him to offer proof
of his claims…
Cole critiques the decision made on Nov. 2, 2009 by the U.S. Court of Appeals for the Second Circuit to bar Arar's claim by highlighting some of the views of the four dissenting judges on the 11-member appeals court:
Judge Barrington Parker, appointed to the Second Circuit by President George W. Bush, wrote that "if the Constitution ever implied a damages remedy, this is such a case—where executive officials allegedly blocked access to the remedies chosen by Congress in order to deliver a man to known torturers." Had Arar been able to get to a court to challenge his removal before federal officials put him on a plane, the court would plainly have had authority to review the case and forbid the removal; courts routinely enjoin removal when a foreign national faces a substantial risk of torture. The fact that the defendants lied to Arar's lawyer to keep her from filing an action when the torture could have been averted, in Parker's
view, only strengthened the case for a damages remedy after the fact; otherwise, the courts are essentially rewarding the obstruction of justice.
Judge Robert Sack reasoned that if Arar had been tortured by federal officials at JFK, he would indisputably have a right to sue, and that the defendants' choice to outsource his torture abroad should not insulate them from liability.
For Arar, the judgement by the Court of Appeals is bitterly ironic, given that particular court's history of crusading against torture wherever it happens …
In 1980, the same court that dismissed Arar's case ruled, in a landmark decision, Filartiga v. Pena-Irala, that federal courts could adjudicate claims by foreign citizens against foreign defendants for human rights violations committed abroad.
Filartiga involved a young man who had been abducted, tortured, and killed by a Paraguyan police chief. When the family learned that the officer had fled to the United States, they sued him in US court.
The Court of Appeals for the Second Circuit declared that the torturer is the "enemy of all mankind," and therefore may be sued for his wrongdoing wherever he is found.
The usual reluctance to have a US court pass judgment on overseas conduct not involving any American citizens was overcome by the fact that the prohibition on torture is universal. Since that decision, US courts have adjudicated human rights claims involving brutality in Burma, South Africa, Yugoslavia, Nigeria, Mexico, the Philippines, Argentina, and many other nations. The Supreme Court upheld the practice in 2004. Yet according to the Second Circuit, the same sorts of claims are too sensitive to permit adjudication when brought against US officials.
Tags: human rights, torture, david cole, maher arar