Arar #17: Daily update

Lots of developments today:

1. Lo and behold, some U.S. press coverage. 60 minutes II did a pretty thorough story on this case last night; you can read the summary here. It's not half bad, especially by the standards of TV news.

The most interesting parts:
a) They spoke to that Syrian diplomat, Imad Moustapha. He continues to deny that Arar was tortured, but:

"He also told [CBS Reporter Vicky] Mabrey that Syrian intelligence had never heard of Arar before the U.S. government asked Syria to take him.

Did the U.S. give them any evidence to back up the claim that Arar was a suspected al Qaeda terrorist?

“No. But we did our investigations. We traced links. We traced relations. We tried to find anything. We couldn’t....”

Why did Syrian officials let him go? “Why shouldn't we leave him to go? We thought that would be a gesture of good will towards Canada, which is a friendly nation. For Syria, second, we could not substantiate any of the allegations against him,” says Moustapha.

He added that the Syrian government now considers Arar completely innocent. But does he feel any remorse about taking a year out of Arar’s life?
“If this was the case, it's not our problem,” says Arar [I'm pretty sure this is actually Moustapha speaking]. “We did not create this problem.”

b) No one at the D.O.J. would comment; they released this statement:

“The facts underlying Arar’s case…[are]classified and cannot be released publicly.”

“We have information indicating that Mr. Arar is a member of al Qaeda and, therefore, remains a threat to U.S. national security.”

Perhaps they have such information; perhaps he is. But it's also possible that D.O.J. is smearing the reputation of an innocent person who was tortured because of us, using information obtained from those torture sessions, to cover their a**. If it's the latter, my respect for the Ashcroft Justice Department will hit a new low.

c) A U.S. official says Canadian intelligence "signed off on the decision" to send Arar to Syria.

d) This is the final paragraph:

Arar’s case is unusual because he was sent directly from U.S. soil to Syria. But intelligence sources tell 60 Minutes II that since 9/11, the U.S. has quietly transported hundreds of terror suspects captured in different parts of the world to Middle Eastern countries for tough interrogations.

Canadian Prime Minister Paul Martin disputes this charge:

Martin also told reporters in Mexico the RCMP could not have been involved in Arar's deportation because it had officers in Canada "waiting at the airport expecting (Arar) to come" back from Tunisia.

Officials say the RCMP had six undercover officers at Montreal's Dorval Airport on Sept. 26, 2002, waiting for Arar's return from Tunisia through New York's JFK Airport to follow him to gain intelligence on his activities in Canada.

2. Martin also spoke to reporters in Switzerland on Juliet O'Neill:

"What is of interest - should be of interest to everybody - is who leaked that information, not the journalist that received it."....

Asked if he thought O'Neill was a criminal, Martin replied: "Clearly not, I just don't know enough about this case to comment further nor am I in a position to comment further."

Martin said he was walking a "delicate line" in commenting on the Mounties five-hour search of O'Neill's home in Ottawa on Wednesday and immediately tried to clarify his response.

I'm not in a position to comment on what flows from this case what happens in this case," he said. "I really do not know anything about it, when you ask me a question about a Canadian citizen, my reaction is that they are not (a criminal), and I would answer that question, as I mentioned, about any one of you, I don't believe that is the case.

"But I cannot comment on what this particular case is about or what the consequences of this case are."

This article, contrary to reports yesterday, says "there has been no indication so far that any charges might be laid" against O'Neill.

I don't know what degree of authority Martin has over the RCMP; perhaps someone Canadian can explain how that might work. (Would the U.S. equivalent be the FBI, the local police force, or both?)

3.Arar's attorneys, from the Center for Constitutional Rights, filed suit against Ashcroft in federal court. The CCR press release is here. Excerpt:

United States government officials made the decision to deport Mr. Arar to Syria with the full knowledge of the existence of state-sponsored torture in that country, and in direct contravention of the Convention Against Torture, a treaty signed and ratified by the United States in 1994. In fact, Syria is one of seven countries the Bush administration designated as sponsors of state terrorism. Federal officials deported Mr. Arar to Syria under the Government’s “extraordinary renditions” program precisely because that country can and does use methods of interrogation that would not be legal or morally acceptable in this country or any other democratic country.

This Globe and Mail article about the suit quotes the bubbly and vivacious Alan Dershowitz, who thinks that the unusual part of this case is that Arar came back:

Alan Dershowitz, a prominent Harvard lawyer, believes that the habit of farming out torture is widespread and comes to light only if a suspect reappears in North America.

"The United States can maintain deniability, but it sends this guy off to Jordan and Syria, knowing that those are two of the countries that excel in torture," he said after Mr. Arar came back to Canada. "That way we have clean hands and get the benefit of the information; or, if not, at least the guy is taken care of.

"What happened with this guy is he came back, and he's appropriately complaining."

Arar is legally forbidden from entering the United States, which will certainly complicate the lawsuit. According to this story, they're suing under the 1991 the Torture Victim Protection Act. According to this one (written before the press conference announcing the lawsuit), they're suing under the 1789 Alien Tort Claims Act. Maybe it's a combination of the two? I could guess at some of the legal issues in the case from the statutes' text, but I wouldn't really know what I was talking about, so I'll hold off.

Comments

[von]

Katherine:

I'm not an expert in the field, but I understand the Torture Victim Protection Act to be a part of the Alien Tort Claims Act.

Federal Courts are courts of limited jurisdiction, i.e., they cannot hear a case unless they are specifically empowered to do so by the Constitution or by statute.* The ATCA empowers the Federal Courts to hear claims by an "alien for a tort only, committed in violation of the law of nations or a treaty of the United States[.]" Without the ATCA, Federal Courts could not hear these claims.**

A question arose whether the ATCA could be a vehicle by which an alient could bringing a tort claim for torture committed by the US or another government. I believe that certain Courts said, basically, yes it does. The TVPA was introduced in the 1990s to ratify this line of decisions, and confirm that torture does indeed violate the "law of nations" and therefore tort claims seeking recovery for torture could be brought in the Federal Courts.

In other words, the Torture Victim Protection Act. According and the Alien Tort Claims Act are (essentially) one and the same, as suggested by the fact that they are located together in the US Code at 28 USC 1350.

von

*This is a generalization, and some boring (though important) nuances have been omitted.

**My gut tells me that these claims could not be brought in state court, b/c of Federal preemption or somesuch (I'm likely using the wrong term, for this ain't anywhere near my area of knowledge). My brain (such as it is) has no comment.

[von]

Apologies for the typos in the above; feel free to fix them, if you care. I'm still trying to catch-up from my hellish Wednesday.

[Paul]

The RCMP are the federal police. Their range of operation is determined by the federal Criminal Code (the only criminal code in Canada). So I guess they're like the FBI. In some parts of Canada they're also the provincial police, functioning like state troopers. But in Ontario, where the warrants on O'Neill's place were served, they're just the federal police. Today, when asked whether O'Neill is a criminal, Prime Minister Martin said, "Clearly not." Journalists have inferred that there's little chance O'Neill will be charged. Martin also mused aloud re. whether the Security of Information Act is flawed (or doesn't "strike the right balance" between individual freedom and state power) and should be reviewed.

[Stu]

Should add to Paul's comment that, unlike the FBI, the RCMP is a quasi-military in nature.

They've been involved in wrong-doing in the past. I had thought those days were gone, and hope that elements in the force have not been up to something nefarious.

Our security service has also been involved in hijinks in the past. Let's hope they're not involved.

[Meteor Blades]

Just a note of appreciation and kudos for the comprehensive and fair job you did on this case, Katherine.

[Eli]

Thanks again for your close follow-up on all this.

I can't believe Alan Dershowitz has the balls to comment on this: ah yes, it's inconvenient that "this guy came back" but now he can "appropriately complain." Why do people keep quoting this man? Hey, if I publish some articles about how murdering babies could be a good thing as long as it's federally authorized, can I be quoted as an expert on child-murder stories?