US court: green light for CIA renditions

This week the Village Voice's Nat Hentoff analyzes the decision of a federal judge to throw out a suit by a Canadian citizen, alleging the US sent him illegally to be tortured in Syria.

In 2002, Maher Arar, who was born in Syria, was stopped while in transit through the US home to Canada. After being held incommunicado, he was "extraordinarily rendered" by the US to Jordan and then Syria, a country that State Department alleges tortures people regularly. In Syria, Arar was tortured and held in solitary confinement for nearly a year.

The Voice calls Judge David Trager's decision last month to throw out Arar's civil suit "startling" and "ominous." The suit was seeking damages from former US Attorney General John Ashcroft.



According to the Voice article, Trager's decision is a green light for the government to continue the CIA "extraordinary renditions." The conditions placed on detainee treatment by Congress last year do NOT apply to the CIA. Trager, unsurprisingly, is one of a large crop of Bush administration appointees.

The Trager decision tramples on the concept of "judicial review" of the Legislative and Executive branches of government. In his decision he writes the other branches of government decide where judicial oversight is appropriate.

What about the separation of powers? Ah, said Trager, "the coordinate branches of our government [executive and legislative] are those in whom the Constitution imposes responsibility for our foreign affairs and national security. Those branches have the responsibility to determine whether judicial oversight is appropriate."

Gee, I thought that the checks and balances of our constitutional system depend on the independence of the federal judiciary, which itself decides to exercise judicial review.

Judge Trager went further to protect the Bush administration's juggernaut conduct of foreign policy: "One need not have much imagination to contemplate the negative effect on our relations with Canada if discovery were to proceed in this case, and were it to turn out that certain high Canadian officials had, despite public denials, acquiesced in Arar's removal to Syria."

"More generally," Trager went on, "governments that do not wish to acknowledge publicly that they are assisting us would certainly hesitate to do so if our judicial discovery process could compromise them."

But judge, the Canadian government itself is now actively involved in an inquiry to discover, among other things, what happened to Arar, and how. And in Europe, there is a fierce controversy over whether governments there have been covertly involved in facilitating the CIA's kidnapping of terror suspects from other lands.

Is it the job of a federal judge here to protect other governments from embarrassment and eventual punishment by their own courts for helping the United States commit crimes?

And what about our own government's criminal accountability? The February 17 New York Law Journal noted that "Judge Trager said that even assuming the government had intended to remove Maher Arar to Syria for torture, the federal judiciary was in no position to hold our government officials liable for damages 'in the absence of explicit direction by Congress . . . even if such conduct violates our treaty obligations or customary international law.' " (Emphasis added.)