A Canadian software engineer, he was changing planes in JFK on his way home to Canada after a Mediterranean vacation when American law enforcement snatched him up.
Indeed, it was plain from the outset that he was shipped to Syria
for purposes of being tortured, with a list of questions to be put to
him passed along. Never mind that Syria is constantly reviled as a
brutal dictatorship by some Bush Administration figures who openly
dream of bombing or invading it… the Syrians, it seems, have a
redeeming feature—their willingness to torture the occasional Canadian
engineer as a gesture of friendship to the Americans.
In time,
the Canadians launched a comprehensive inquiry into the matter,
concluded that they were mistaken about Arar. He was cleared, the
findings of the commission of inquiry were published, and Arar was
given a roughly $10 million award in compensation for the role Canada
played in his mistreatment.
Canada, in sum, behaved the way a democratic state is supposed to behave.
But
what about the United States?
Of course, the governing axiom of the
Bush Administration is that it makes no mistakes. So, while
intelligence community officials confirm, off the record, that the
whole episode involving Arar was a gross mistake involving errors in
judgment at every stage and a part-infantile rage, part-Savanarola zeal
in the oversight, the official posture continues to be that Arar is a
terrorist, so what happened was justified. Arar remains on the no-fly
list and is denied entry to the United States.
Congress has
had an interest in the Arar case since late 2003. As one Judiciary
Committee member told me, “It’s rare that you come across a case in
which even the spokesmen for the Administration signal to you that they
know the official answers they’re conveying aren’t quite true. This is
such a case, and that makes it even more worrisome.” Congress pressed
for an internal investigation, and the lot fell to the newly created
Inspector General for Homeland Security.
That was four years
ago. In the meantime, Congressional sources note that issues rose and
were worked out. The issues were predictable. There were questions of
IG access to classified information. And there was the fact that the
critical junctures in the case involved attorneys dispensing legal
advice, usually to other attorneys. All of that was arguably subjected
to attorney-client privilege.
Nevertheless, I have learned,
these problems were overcome, the IG got access to the classified data
it needed. And it was able to delve into the attorney-client materials
and incorporate analysis of it into its draft report, to be shared with
Congressional oversight committees under a special agreement limiting
its use.
IG investigators were astonished particularly by what
transpired in the first ten days of Arar’s detention. Well-defined
procedures were not followed. The State Department was consciously kept
out of the loop. Steps were taken to circumvent Arar’s rights, and
particularly to guard against the prospect that a lawyer for Arar would
challenge his highly dubious treatment through a habeas corpus
proceeding. Who was at fault in this process? A group of very senior
figures, mostly in the U.S. Department of Justice.
Justice
Department figures, and particularly those who are fingered and
criticized in the early drafts of the IG Report, have been frantic in
their efforts to quash it. And they’re succeeding. That, I am told, is
why the IG Report has not been finalized and transmitted to Congress.
One
pretext has been used to block the Report. It is the fact that civil
litigation brought by Maher Arar is now pending in the U.S. Courts.
Justice Department lawyers involved in managing the defense of this
suit have expressed strong concern that the IG Report would, if
delivered to Congress, deliver a potential death blow to their efforts.
They also caution that it might result in the leakage of
attorney-client privileged information which would greatly harm the
litigating position of the United States.
Persons close to the
investigation point to another concern. The position adopted by the
Justice Department in this litigation, they say, rests on a painfully
constructed house of cards which won’t stand once the IG Report is
issued, exposing some of the serious misconduct which occurred in the
Arar case.
In fact, the Arar case is now before the Court of
Appeals, which heard oral argument only a few days ago. The conduct of
the oral argument suggests the accuracy of information I have received.
Attorneys for the government played extremely fast and loose with the
facts using the latitude they gain through withholding the IG Report.
They present arguments about what the Justice Department believed at
the time of Arar’s initial detention. And according to my sources, the
IG Report will provide very substantial grounds to question the candor
and accuracy of these claims. Here’s an exchange,
reported in the Globe
and Mail that demonstrates the points in play:
Judge Robert D.
Sack interrupted Mr. Barghaan during his characterization of Mr. Arar,
asking if he was suggesting a current assessment. The lawyer replied
that he was not at liberty to discuss the government’s view. “So we
will make believe he’s a member of al-Qaeda?” asked Judge Sack, as the
audience chuckled.
At another point, the same judge asked why
officials sent Mr. Arar, a Canadian citizen, back to a country he had
long since left, as he passed through U.S. airspace on the way to
Canada. “He was going to Canada!” Judge Sack said. “The question is not
whether he was going to be conspiring with al-Qaeda on the bus between
the Air Canada terminal and the airport building.”
Mr.
Barghaan quickly backpedalled, saying he was only trying to outline the
government’s beliefs when Mr. Arar was seized while changing planes.
The
Justice Department continues to dance in the shadows because it can
only prevail in this case under cover of darkness. But the interests of
justice demand that the facts come out, and that those who misbehaved
be held to account. And in the end, justice for Mr. Arar is not an
irrelevant consideration either.
Senators Leahy and Specter
wrote asking about this report in February. They got a run around in
response. Nine more months have passed, and it is painfully obvious
that the Arar report is being suppressed at the behest of the Justice
Department for reasons that have nothing to do with justice and a lot
to do with politics. It’s time for Congress to press aggressively to
free-up the Inspector General’s report and generally to get to the
bottom of this matter which constitutes an on-going embarrassment to
the United States and to our relationship with our neighbor to the
north.
Writings 
Of all the Bush Administration’s many perversions of the justice system, there is something particularly distressing about the case of Maher Arar. 
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