Will Arar's Deportation to Syrian Torture be Probed?

Editorial, Globe and Mail (Canada), Maher Arar in the U.S.: Facing the accusers

Globe and Mail Update

August 15, 2008 at 7:48 PM EDT

An extraordinary U.S. court decision on Maher Arar shows that the United States may yet come to grips with the terrible wrong it did this Canadian citizen. This is good news for Mr. Arar, Canada and the U.S. itself. It is a country ruled by law and, one way or another, Mr. Arar's deportation to torture in Syria will be probed, and some excesses in the war on terror confronted.

The decision is from a federal appeals court in New York that in June rejected, in a 2-1 vote, Mr. Arar's lawsuit against the U.S. government. Now that same court has decided to hear the case again, but this time en banc – with a full bench of 12 or 13 members. This rare procedure is employed in cases of exceptional importance. Out of thousands of cases before that court in a year, perhaps five will be heard en banc. The full bench will probably clear the way for the lawsuit to go ahead, says University of Richmond law professor Carl Tobias. “Courts generally don't bother in expending their resources if they aren't inclined to rule in a different way.”

The issues at stake were expressed well by the dissenting judge, Robert Sack: “What happened to him would beggar the imagination of Franz Kafka.” And “Arar was, in effect, abducted. ... This lawsuit is thus about the propriety and constitutionality of the manner in which United States law enforcement sought to obtain from Arar information about terrorism or terrorists which they thought – wrongly as it turned out – that he possessed.” The majority dismissed the lawsuit, saying that illegal aliens who are deported have no right to sue the government.

Mr. Arar's deportation was emblematic of a U.S. approach in which the executive has at times gone too far to fight terror. The Ottawa man was changing planes in New York when the U.S. arrested him and, after holding him for two weeks, flew him out of the country in the middle of the night without informing Canada of its plans. He wound up in Syria, the land of his birth, and was held in a grave-sized cell for 10 months and tortured.

Canada has come to terms with its role. It held a 21/2-year judicial inquiry that found the RCMP mistakenly told U.S. authorities that Mr. Arar had links to al-Qaeda. Prime Minister Stephen Harper apologized on behalf of Canada, and the government paid him more than $10-million in compensation. But the U.S. still insists Mr. Arar was, and is, a danger.

Judge Sack cited a Canadian judge's finding that stated categorically that there was no evidence Mr. Arar committed a crime or was a danger to Canada. He also put on the record in detail Mr. Arar's allegations of torture, and the conditions of his incarceration in Syria. In the face of all that, the senior court of which Judge Sack is a member was not happy with the case's dismissal. Mr. Arar, a figure from Kafka, may yet have a chance to face his accusers in court.