In December 2006, CJA and other human rights organizations signed on to a brief submitted to the Second Circuit Court of Appeals, arguing that the prohibition against torture is absolute and does not permit exceptions for investigations of terrorism. The brief supported the claims of Syrian-born Canadian citizen- Maher Arar.

Background

Mr. Arar was detained during a layover at J.F.K. Airport in September 2002, while en route to his home in Montreal, Canada. He was held in solitary confinement for nearly two weeks and denied access to a lawyer, before being labeled a member of Al Qaeda by the Bush administration and rendered to Syrian intelligence authorities known to commit torture. For nearly a year, Mr. Arar was held without charge and brutally interrogated and tortured. After being whipped with two-inch thick electrical cable, Mr. Arar falsely confessed that he had attended an Al Qaeda training camp in Afghanistan. For the next ten months, he was confined to a dark underground cell the size of a grave. In the end, Syrian authorities released Mr. Arar, stating that they had found no connection to any criminal or terrorist organization or activity.

District Court Case

On January 22, 2004, Mr. Arar and CJA partner the Center for Constitutional Rights filed suit in the U.S. District Court for the Eastern District of New York against Attorney General John Ashcroft and other U.S. officials, arguing that the defendants had violated Mr. Arar’s due process rights under the U.S. Constitution, and his right to be free from torture under color of foreign law as defined in the Torture Victim Protection Act (TVPA). On February 16, 2006, the district court dismissed the claims pursuant to the political question doctrine.  Adjudicating the case, the court determined, would infringe on the foreign policy prerogatives of the President of the United States.

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 concluding “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.”

Appeal to the 2nd Circuit

Mr. Arar appealed to the Second Circuit Court in December 2006. Our amicus brief – which was co-signed by the International Federation for Human Rights (FIDH) and the World Organization against Torture, among others – argued that customary international law and U.S. law both prohibit the use of torture under any circumstances. U.S., foreign and international courts have specifically recognized the ban on torture as a jus cogens norm from which no derogation is permitted.

In its opinion, the court upheld the lower court’s dismissal on political question grounds and ruled that “adjudicating Mr. Arar’s claims would interfere with national security and foreign policy.”  The majority found that Mr. Arar, as a foreigner, had no constitutional due process rights with respect to his having been denied access to a lawyer.  Dissenting Judge Robert D. Sack stated that the majority’s opinion effectively gives federal officials the license to “violate constitutional rights with virtual impunity.”

Mr. Arar petitioned for a rehearing en banc, but, in November 2009 the court again affirmed the district court’s dismissal of the case. The U.S. Supreme Court denied Mr. Arar’s subsequent petition for certiorari in June 2010.

Attached Documents

CJA Amicus Brief
2006 Amicus Brief: CJA and International Human Rights Groups
Related Documents
2008 C-Span Broadcast of Arar v. Ashcroft Oral Arguments
2008 U.S. and Ashcroft Defendants: Appellees’ Brief in Rehearing
2008 Arar Plaintiff: Appellant’s Brief in Rehearing
2007 2nd Circuit Court Opinion
2004 Complaint