N.Y. Times (December 8, 2008)

December 8, 2008

Editorial
Tortured Justice

The nation’s courts continue to grapple with the abuses committed by President Bush’s administration in the name of fighting terrorism. The extent of the damage to American liberties, and how lasting it will be, will be told in part by the outcome of two cases that are to be heard by the federal courts.

On Friday, the Supreme Court agreed to hear a case that turns on Mr. Bush’s claim that he can order people living in the United States to be detained by the military indefinitely without charges. The case involves Ali al-Marri, a citizen of Qatar who was in the United States legally. He was declared an enemy combatant in mid-2003 and has been held in a Navy brig since then.

The detention was upheld by an appeals court panel, which should be quickly and definitively reversed by the Supreme Court. This intolerable reading of the law would leave a president free to suspend the rights of anyone, including American citizens.

The other, equally notorious case is being heard on Tuesday by the United States Court of Appeals for the Second Circuit, in Manhattan. It involves Maher Arar, a Syrian-born Canadian with no ties to terrorism who became a victim of the Bush team’s lawless policy of “extraordinary rendition” — the outsourcing of interrogations to foreign governments known to torture prisoners.

Mr. Arar’s ordeal began in 2002, when he was seized by federal agents as he tried to change planes on his way home to Canada from a family vacation. After being held incommunicado in solitary confinement and subjected to harsh interrogation without proper access to a lawyer, he was “rendered” to Syria, where he was tortured. He was locked up for almost a year in a dank underground cell the size of a grave before he was finally let go.

The Canadian government later declared that it had provided erroneous information about Mr. Arar to American authorities. It apologized to him in 2007 and agreed to pay him $10 million. Last June, the Homeland Security Department’s inspector general, Richard Skinner, and its former inspector general, Clark Ervin, said at a Congressional hearing that officials may have violated federal criminal laws in sending Mr. Arar to Syria, knowing he was likely to be tortured.

Yet that same month, a three-judge federal appeals panel dismissed Mr. Arar’s civil rights lawsuit on flimsy national security grounds and, absurdly, his failure to seek court review of his rendition within the time period specified in immigration law. In essence, the 2-to-1 ruling rewarded the administration’s egregiously bad behavior in denying Mr. Arar’s initial requests to see a lawyer, and then lying to his attorney about his whereabouts, which obstructed his access to the courts.

In addition, by treating this as an immigration case, the ruling overlooked reality. The salient issue is the improper and unconstitutional tactics used by United States officials to obtain information they wrongly thought Mr. Arar possessed. That point was emphasized by Judge Robert Sack in his cogent dissenting opinion from the first appeals court ruling.

We took it as an encouraging sign when the appellate court took the rare step of scheduling Tuesday’s rehearing before its entire bench before an appeal was filed. A decision allowing Mr. Arar’s case to proceed would recognize the court’s essential role in protecting constitutional rights. It also would firmly reject the Bush administration’s seamy efforts to frustrate accountability for executive branch excesses.

The Obama administration will then have to decide whether to defend the indefensible when the case comes to trial. That will provide an interesting test of the new Justice Department’s commitment to due process.