Maher Arar v. John Ashcroft et al.

Court	United States Court of Appeals for the Second Circuit, United States
Case number	06-4216-cv
Decision title	Appeals Judgment
Decision date	30 June 2008
Parties	Maher Arar John Ashcroft et al.
Categories	Terrorism
Keywords	Al Qaeda, Civil rights, Extraordinary rendition, Terrorism, torture
Links	Appeals Judgment
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 US District 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.

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.

Related developments

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.

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. 9 – 11).

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 (p. 9 – 11).

Core legal questions

Did the District Court err in its findings?

Specific legal rules and provisions

Immigration and Nationality Act.
Torture Victim Protection Act.

Court's holding and analysis

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.

Further, the Court of Appeals found that “[w]e do not doubt that if Congress were so inclined, it could exercise its powers under the Constitution to authorize a cause of action for money damages to redress the type of claims asserted by Arar in this action. The fact remains, however, that Congress has not done so. Instead, it has chosen to establish a remedial process that does not include a cause of action for damages against U.S. officials for injuries arising from the exercise of their discretionary authority to remove inadmissible aliens. We are not free to be indifferent to the determinations of Congress, or to ignore the Supreme Court’s instructions to exercise great caution when considering whether to devise new and heretofore unknown, causes of action” (pp. 7-8).

In his partial dissent, Judge Sack found that this provides federal officials with licence to “violate constitutional rights with virtual impunity”. (p. 88 of the Partial Dissent of Judge Sack).

The majority also found that as a foreign national, Arar had no constitutional due process rights. The Court of Appeal found that “ Arar’s complaint must be dismissed because Arar’s allegations about the mistreatment he suffered while in the United States do not state a claim against defendants under the Due Process Clause of the Fifth Amendment” (p. 48).

Accordingly, the Court of Appeal affirmed the District Court’s judgment (p. 48).