[Peace-discuss] The Arar verdict

[Brussel Morton K.]

 From Glenn Greenwald at: http://www.commondreams.org/view/2009/11/04-1.
He's moved to Brazil. --mkb


…Yesterday, the Second Circuit -- by a vote of 7-4 --  agreed with the  
government and dismissed Arar's case in its entirety.  It held that  
even if the government violated Arar's Constitutional rights as well  
as statutes banning participation in torture, he still has no right to  
sue for what was done to him.  Why?  Because "providing a damages  
remedy against senior officials who implement an extraordinary  
rendition policy would enmesh the courts ineluctably in an assessment  
of the validity of the rationale of that policy and its implementation  
in this particular case, matters that directly affect significant  
diplomatic and national security concerns" (p. 39).  In other words,  
government officials are free to do anything they want in the national  
security context -- even violate the law and purposely cause someone  
to be tortured -- and courts should honor and defer to their actions  
by refusing to scrutinize them.
Reflecting the type of people who fill our judiciary, the judges in  
the majority also invented the most morally depraved bureaucratic  
requirements for Arar to proceed with his case and then claimed he had  
failed to meet them.  Arar did not, for instance, have the names of  
the individuals who detained and abused him at JFK, which the majority  
said he must have.  As Judge Sack in dissent said of that  
requirement:  it "means government miscreants may avoid [] liability  
altogether through the simple expedient of wearing hoods while  
inflicting injury" (p. 27; emphasis added).

The commentary about this case from Harper's Scott Horton perfectly  
captures the depravity of what our Government has done -- and  
continues to do -- to Arar.  His analysis should be read in its  
entirety, and he concludes with this:

When the history of the Second Circuit is written, the Arar decision  
will have a prominent place. It offers all the historical foresight of  
Dred Scott, in which the Court rallied to the cause of slavery, and  
all the commitment to constitutional principle of the Slaughter-House  
Cases, in which the Fourteenth Amendment was eviscerated. The Court  
that once affirmed that those who torture are the "enemies of all  
mankind" now tells us that U.S. government officials can torture  
without worry, because the security of our state might some day depend  
upon it.

I want to add one principal point to all of this.  This is precisely  
how the character of a country becomes fundamentally degraded when it  
becomes a state in permanent war.  So continuous are the inhumane and  
brutal acts of government leaders that the citizens completely lose  
the capacity for moral outrage and horror.  The permanent claims of  
existential threats from an endless array of enemies means that  
secrecy is paramount, accountability is deemed a luxury, and National  
Security trumps every other consideration -- even including basic  
liberties and the rule of law.  Worst of all, the President takes on  
the attributes of a protector-deity who can and must never be  
questioned lest we prevent him from keeping us safe.

This is exactly why I find so objectionable and dangerous the ongoing  
embrace by the Obama administration of these same secrecy and immunity  
weapons.  Obama had nothing to do with the Arar case -- all the  
conduct, and even the legal briefing, occurred before he was President  
-- but he has taken numerous steps to further institutionalize the  
core injustice here, including in cases that are quite similar to  
Arar:  namely, that the Executive can use secrecy and national  
security claims to shield himself from the rule of law, even when he's  
accused of torture and war crimes.  That's exactly what happened here,  
yet again.  As Judge Parker wrote in dissent (click image to enlarge)



Identically, Judge Calabresi -- one of the most respected and non- 
ideological appellate judges in the country -- accused the majority of  
"utter subservience to the executive branch."  Surely that's true, but  
it isn't only the Arar majority that is guilty of that.  It is the  
nation as a whole -- drowning in infinite claims of "state secrets"  
and executive immunity and war necessity and the imperatives of  
"looking forward" -- that has meekly acquiesced to the pernicious idea  
that the President in an allegedly national security context must  
never have his actions disclosed, let alone judicially scrutinized and  
held accountable, no matter how criminal, brutal and inhumane those  
actions are. 
   
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