Exonerated terror suspect's suit seems futile

September 24, 2006|By John Riley | John Riley,Newsday

Four years after American officials snatched him off a commercial flight and shipped him to Syria for interrogation as a suspected terrorist, Canadian Maher Arar was exonerated last week in an exhaustive, 1,200-page report from his government that said he was subjected to torture based on a total mistake.

But despite the long-awaited conclusions of Canada's Commission of Inquiry, it might take much longer for Arar to achieve official vindication here, where his attempts to sue have been met by an unusual but formidable legal defense called the "state secrets privilege" that stops cases such as his in their tracks.

Invoked by the Bush administration on matters ranging from human rights abuses to whistleblower suits and challenges to its eavesdropping programs, the doctrine amounts to a claim that letting a case go forward would disclose secrets that could harm national security. But experts say it is also vulnerable to being used to cover up misconduct.

"The legitimate uses are to protect sources and methods of the intelligence community and prevent disclosure of information to the enemy," said William Weaver, a University of Texas, El Paso political scientist who wrote a paper on the Bush administration's increasing use of the doctrine. "But the privilege is so effective - it never loses - that it can lure the government to use it to prevent the disclosure of embarrassing or illegal activity."

"They use it to protect themselves," said Arar's American lawyer, Maria LaHood. "They hide behind it."

Arar, a Canadian software engineer who is now 36, was identified to U.S. officials as a terrorism suspect in 2002 based on a completely botched investigation by Canadian police, according to last week's report, which followed two years of hearings in Canada. The United States refused to cooperate or provide any information to the inquiry.

The report said that the United States apparently relied on the false Canadian intelligence to detain Arar when he passed through Kennedy Airport on an international flight, but then misled Canadian diplomats about its plans to deport Arar to Syria, where he was born, rather than Canada, where he had been a citizen since he was 17.

Despite Syria's dismal human rights record, U.S. officials have claimed that they received assurances Arar would not be tortured. But they have never offered an explanation of why, other than its willingness to use coercion, it was a better place than the United States or Canada for Arar to be questioned.

As things worked out, he was held in a tiny cell for a year, beaten with cables, and asked the same questions the Americans had been asking in New York, Arar said after Canadian diplomatic pressure led to his release and return to Canada in late 2003. He called it "torture by proxy" in a 2004 interview with Newsday, and the Canadian inquiry affirmed his story.

Officials in Canada said the case raised serious questions about U.S. "renditions" of terror suspects to third countries. "Why would you ever rely on assurances from Syria?" said Toronto constitutional lawyer Paul Cavalluzzo, counsel to the Arar commission. "This is an example of what can happen when totally innocent people get tied up in the web of rendition policies. This was a living hell for him."

In the United States, the fight for accountability looks to be uphill. Attorney General Alberto R. Gonzales said last week that he "wasn't aware" that Arar was tortured and that his transfer to Syria had been legal.

Also, the lawsuit Arar filed, alleging that his treatment violated anti-torture treaties, was dismissed this year by a New York judge after the government invoked the state secrets defense and related claims that the case involved foreign policy issues that the judiciary should stay out of.

Defenders of the doctrine say that - even in a case like Arar's - it's important for the government to be able to keep the details of its diplomacy secret.

"On an emotional and human level, this is a difficult case," said David Rivkin, a former Reagan-era Justice Department lawyer. "But do you really think it's fair to force the government to disclose the relationship and conversations it had with Syria?"

But critics think the defense is too often used as an excuse, in cases where the only real secret is that allegations of U.S. misconduct that have been widely publicized are true, and the only real danger is that a victim like Arar will prove it if he gets his day in court.

American Civil Liberties Union lawyer Ben Wizner represents Khaled el-Masri, a Kuwaiti-born German whose claim that he was abducted and mistreated by the United States in a case of mistaken identity has been confirmed in official reports in Europe but was dismissed by a federal court in Virginia when the government invoked the state secrets defense.

"The question is why we can't have a trial about the very same issues that have been discussed in the world's newspapers and the reports of foreign governments," Wizner said. "It's just this administration using secrecy to avoid accountability and embarrassment."

John Riley writes for Newsday.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.