Maher Arar v. John Ashcroft et al.

Court	United States Court of Appeals for the Second Circuit, United States
Case number	Docket No. 06-4216-cv
Decision title	Appeal from a Judgment of the United States District Court
Decision date	2 November 2009
Parties	Maher Arar John Ashcroft et al.
Categories	Terrorism
Keywords	Al Qaeda, Civil rights, Extraordinary rendition, Terrorism, torture
Links	Appeal from a Judgment of the United States District Court
Other countries involved	Canada Syria

Summary

In one of the first suits filed before the US courts challenging the US practice of 'extraordinary rendition', Syrian-born Canadian national Maher Arar lodged a complaint in January 2004 arguing that his civil rights had been violated. In 2002, Arar was detained by immigration officials at a New York airport while travelling home to Canada from Tunisia. Following a period of solitary confinement, Arar was deported to Syria where he was allegedly tortured before making false admissions of terrorist activity.

On 16 February 2006, the US District Court dismissed Arar’s claims, finding that national security and foreign policy considerations prevented the Court from holding US officials liable, even if the ‘extraordinary rendition’ violated international treaty obligations or customary law.

The Court of Appeals for the Second Circuit affirmed the judgment of the District Court. It held that adjudicating Arar’s claims would interfere with national security and foreign policy. In his partial dissent, Judge Sack found that this provides federal officials with licence to “violate constitutional rights with virtual impunity”. The Court of Appeals also found that as a foreign national, Arar had no constitutional due process rights.

The Court of Appeals for the Second Circuit, this time sitting en banc (before all judges of the court), dismissed Arar’s claims for damages on the grounds that it rests upon the Congress to decide on whether such a civil remedy can be made possible and it is not the duty of the judges to decide on whether compensation could be sought.

Procedural history

In 2002, Arar was detained by immigration officials at a New York airport while travelling home to Canada from Tunisia. In January 2004, Arar lodged a complaint arguing that his civil rights had been violated.

The US Government filed a motion to dismiss the suit in January 2005 based on the ‘state secrets’ privilege. On 16 February 2006, the US District Court dismissed Arar’s claims and upheld the US Government’s motion to dismiss.

Arar appealed the decision of the US District Court. On 30 June 2008, the US District Court of Appeals for the Second Circuit held by majority that adjudicating Arar’s claims would interfere with national security and foreign policy, purely considerations for the Executive.

Related developments

On 1 February 2010, Arar petitioned for a writ of certiorari to the Supreme Court of the United States. On 14 June 2010, the Supreme Court denied the certiorari petition.

In May 2012, human rights organisations delivered to the White House a petition of more than 60,000 signatures asking President Obama to extend a formal apology to Maher Arar. On 5 April 2015, a former CIA counterterrorism officer told The Canadian Press that he, along with multiple colleagues, was convinced they were punishing an innocent man.

On 1 September 2015, Canada announced charges in absentia against a Syrian intelligence officer accused of torturing Maher Arar, the first-ever charge of its kind in Canada.

Legally relevant facts

Maher Arar is a Syrian-born engineer, who became a Canadian citizen in 1991. In September 2002, Arar was detained by immigration officials at a New York airport while travelling home to Canada from Tunisia. Following a period of solitary confinement, Arar was deported to Syria in 2002, where he was allegedly tortured before making false admissions of terrorist activity (p. 6).

In January 2004, Arar lodged a complaint arguing that his due process rights had been violated. The US government filed a motion to dismiss the suit in January 2005 based on the ‘state secrets’ privilege. On 16 February 2006, the US District Court dismissed Arar’s claims, finding that national security and foreign policy considerations prevented the Court from holding US officials liable, even if the ‘extraordinary rendition’ violated international treaty obligations or customary law. On 30 June 2008, the US District Court of Appeals for the Second Circuit held by majority that adjudicating Arar’s claims would interfere with national security and foreign policy, purely considerations for the Executive (pp. 5-6).

Core legal questions

Can the Court of Appeals, sitting en banc, grant Arar’s claim for damages against the US Government?

Specific legal rules and provisions

Para. (a)(1) of the Torture Victim Protection Act.
Article 3 of the Convention Against Torture
Fifth Amendment of the US Constitution

Court's holding and analysis

The Court of Appeals for the Second Circuit found that Arar cannot pursue his claim for damages against the US Government for his detention in the US and alleged torture in Syria. In dismissing Arar’s action, the Court of Appeals found that “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, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available” (p. 10).

Accordingly, the Court of Appeals concluded that “when a case presents the intractable 'special factors' apparent here ... it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress -- and not for us as judges -- to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation” (p. 11).