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(Source picture: Mufasa3422/Wikipedia)

(Source picture: Mufasa3422/Wikipedia)

Maher Arar v. John Ashcroft et al.

Court United States District Court for the Eastern District of New York, United States
Case number Civil Action No. CV-04-0249
Decision title Memorandum and Order
Decision date 16 February 2006
Parties
  • Maher Arar
  • John Ashcroft et al.
Categories Terrorism
Keywords Al Qaeda, Civil rights, Extraordinary rendition, Terrorism, torture
Links
Other countries involved
  • Canada
  • Syria
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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.

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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.

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Related developments

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.  

After a decision was taken to re-hear the case en banc, the Court of Appeals affirmed the decision to dismiss the case.  

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 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.

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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. 2 et seq.).

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 (p. 2 et seq.).

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Core legal questions

  • Can the District Court uphold the claims adduced by Maher Arar?

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Specific legal rules and provisions

  • Immigration and Nationality Act.
  • Torture Victim Protection Act.

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Court's holding and analysis

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 District Court found that “[w]ith respect to claims alleging that defendants violated Arar's rights to substantive due process …, the INA [Immigration and Nationality Act] does not foreclose jurisdiction over plaintiff's claims. Nonetheless, no cause of action under Bivens [Bivens v. Six Unknown Fed. Narcotics Agents] can be extended given the national-security and foreign policy considerations at stake” (p. 27).

Arar’s attorney argued that the Torture Victim Protection Act vests the Court with jurisdiction. The District Court found that the “plaintiff as a non-citizen is unable to demonstrate that he has a viable cause of action under that statute or that defendants were acting under "color of law, of any foreign nation (p. 27). Accordingly, the District Court dismissed this claim as well. 

Lastly, the District Court found that “[w]ith respect the claim that Arar was deprived of due process or other constitutional rights by the defendants during his period of domestic detention, prior cases holding that inadmissible aliens deserve little due process protection are inapplicable because Arar was not attempting to effect an entry into the United States …” (p. 27). Accordingly, this claim was dismissed as well.

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Further analysis

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Instruments cited

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Related cases

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Additional materials