Arar v. Ashcroft

Synopsis

Arar v. Ashcroft is a federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged.

Status

On November 9, 2007, the appeal was argued before the Second Circuit Court of Appeals.

Description

Arar v. Ashcroft is a lawsuit brought against the former Attorney General John Ashcroft, FBI Director Robert Mueller, and then Secretary of Homeland Security Tom Ridge, as well as numerous U.S. immigration officials. It charges the plaintiffs with violating Mr. Arar’s constitutional right to due process, his right to choose a country of removal other than one in which he would be tortured, as guaranteed under the Torture Victims Protection Act, and his rights under international law.

The suit charges that Mr. Arar’s Fifth amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the U.S. Additionally, the Attorney General and INS officials who carried out his deportation also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation. Further, Mr. Arar filed a claim under the Torture Victims Protection Act, adopted by the U.S. Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in U.S. Court. Mr. Arar's claim under the Act against Ashcroft and the INS directors is based upon their complicity in bringing about the torture he suffered. The case was filed in the United States District Court for the Southern District of New York.

The plaintiff, Maher Arar, a Syrian-born, Canadian citizen was detained during a layover at J.F.K. Airport in September 2002 on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer. The Bush administration labeled him a member of Al Qaeda, and rendered him, not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture. The plaintiff seeks a jury trial, compensatory and punitive damages, and a declaration that the actions of Defendants, their agents, and their employees, are illegal and violate Mr. Arar’s constitutional, civil, and international human rights.

Maher Arar was rendered to Syria where he was interrogated and tortured without charge, and forced to falsely confess attending a training camp in Afghanistan. After nearly a year of confinement, Syrian authorities released Mr. Arar, publicly stating that they had found no connection to any criminal or terrorist organization or activity. Upon his return to Canada, Mr. Arar was never charged with any crime; nor has he been charged with any crime by the United States. As a signatory of the International Convention against Torture, the U.S. has an obligation to avoid sending detainees to a nation that regularly practices torture against prisoners.

Timeline

On January 22, 2004, the Center for Constitutional Rights filed suit, on behalf of Mr. Arar, in the U.S. District Court for the Eastern District of New York against Attorney General John Ashcroft, FBI Director Robert Mueller, and Homeland Security Tom Ridge, as well as numerous directors of the U.S. immigration officials.

On January 18, 2005, the U.S. government moved to dismiss the case by asserting the “state secrets” privilege, claiming that the reason Mr. Arar was deemed a member of Al Qaeda and sent to Syria, instead of Canada, are “state secrets.” The government argued that litigating the would disclose these state secrets, revealing intelligence gathering methods, and harming national security and foreign relations.

On March 15, 2005 CCR filed a response, arguing that Mr. Arar could prove his case without privileged information, and even if such information were necessary to establish a defense, procedural safeguards could protect such information.

On February 16, 2006, Judge David Trager of the U.S. District Court for the Eastern District of New York dismissed Mr. Arar's claims against U.S. government officials for "rendering" him to Syria to be tortured and arbitrarily detained. Judge Trager found that national security and foreign policy considerations prevented him from holding the officials liable for carrying out an extraordinary rendition even if such conduct violates our treaty obligations or customary international law.
Although the district court also dismissed Mr. Arar's claim for the officials' violation of his due process rights while detained in the U.S., the order permitted Mr. Arar to amend his complaint to better allege how he was grossly physically abused in the U.S., how he was injured by being denied access to counsel, and to name defendants who were personally involved.

On April 3, 2006, CCR and co-counsel DLA Piper US LLP filed a Motion requesting that they be permitted to immediately appeal his "rendition" claims to the Second Circuit without waiting for resolution of his U.S. detention claim.

On July, 5, 2006, Judge Trager denied this Rule 54(b) motion.

On July 14, 2006, Mr. Arar filed a notice of intent not to replead, but to instead stand on the allegations of his complaint, and therefore appeal the entire February 16th order.

On August 17, 2006, Final judgment was accordingly entered.

On September 12, 2006, Mr. Arar's Notice of Appeal was filed in the Second Circuit.

On September 18, 2006, the Canadian Commission of Inquiry established by the Canadian Government to Investigate the Actions of Canadian Officials in Relation to Mr. Arar issued its report. The Commissioner concluded "categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada." Canadian investigators, with U.S. cooperation, exhaustively investigated Mr. Arar, and found no information that could implicate Mr. Arar in terrorist activities. The Commission also found no evidence that Canadian officials acquiesced in the U.S. decision to detain and remove Mr. Arar to Syria, but that it is very likely that the U.S. relied on inaccurate and unfair information about Mr. Arar that was provided by Canadian officials.

On December 12, 2006, CCR attorneys filed an appeal in the Second Circuit on behalf of Mr. Arar.

On April 19, 2007, Mr. Arar’s attorneys submitted a reply brief to the Second Circuit Court of Appeals. Mr. Arar's brief is submitted in reply to seven briefs submitted by the defendants that ask the Court of Appeals not to allow Mr. Arar's case to proceed.

On November 9, 2007, the appeal was argued before the Second Circuit Court of Appeals.