Maher Arar

by Henry Farrell on February 16, 2006

Maher Arar’s case against the US government got “thrown out of court”: today. From my very limited understanding of the law, this wasn’t a surprising result, which isn’t to say that it’s not very disappointing. Both the US and Canadian governments appear to have behaved appallingly. The opinion (“long PDF”: is here; a press release from Arar’s attorneys is “here”: People who want to refresh their memory regarding Arar’s story can’t do better than to go back to Katherine of Obsidian Wings’ “synopsis”: of what happened (Katherine is very sorely missed).



bob mcmanus 02.17.06 at 12:25 am

The law is not made in heaven by angels, not are courts computers ruled by principles of GIGO. The court could have awarded damages of a billion dollars without discussion argument or opinion, and let the appeals process and politics then sort out the consequences. Which I doubt would include people running stoplights at will. I suspect this act of “respect” for these particular laws will have worse consequences than an open contempt.

The “law” is simply the will of some majority, past or present, put into application and deserves no more respect for itself than does box-office numbers tell us what are good movies.

I do not understand an “understanding of the law” that can coexist with a disappointment with these results. Many bad laws can be tolerated, but at the point of ovens or Maher Arar, the social contract be damned.


Brendan 02.17.06 at 3:23 am

So let’s get this straight.

‘In a ruling Thursday in New York, Judge David Trager said he can’t review the decision of U.S. authorities because it’s a matter of national security and foreign relations. ‘
So does this mean that Bush’s ‘Night and Fog’ policy can’t be challenged in the courts, even though that it is being claimed that ‘”There can be little doubt that every official of the United States government knew that sending Mr. Arar to Syria was a clear violation of the U.S. Constitution, federal statutes, and international law. ‘

Does the ruling just apply in this particular case? Or does it mean that officials who knowingly break the law can’t be charged with….er….breaking the law?


john m. 02.17.06 at 7:40 am

So the defence seems to have effectively argued “we could tell you but then we’d have to kill you”. Actually, I find this particulalrly unfunny. At what point did the separation of powers get dumped along with everything else? If the executive is not answerable to the legislative, who are they answerable to? Admittedly we only have a summary report above but it appears the judge just said “nope, I can’t even look at this because the defendant said so and I have to believe them”. The implication is that not even the judge could have sight of the defence material. Hopefully the usual band of merry defenders will weigh in and explain how I’m missing the point and that really everything is fine. I await their explanations with genuine interest.


jet 02.17.06 at 9:50 am

The court could have awarded damages of a billion dollars without discussion argument or opinion, and let the appeals process and politics then sort out the consequences.

Something like that has been tried before.
Hamdi v. Rumsfeld


Tom T. 02.17.06 at 9:54 am

Interestingly, the national security consideration that the judge cites is our relationship with Canada: “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.”

As to comments 2 and 3, I can try to offer some explanation of specific points in the ruling. Please don’t take anything I write as an endorsement (or a condemnation) of the ruling. I’m just trying to put some aspects of the law into plainer English.

Re #2: The ruling holds that even if the applicable treaty provisions and other law were violated, Arar cannot sue for damages. Conceivably, a future individual in Arar’s position could seek some form of injunction against rendition. Immigration law is a minefield, with numerous decisions to be made as to which claims to pursue in which forum, and the judge essentially is saying that Arar’s lawyers might have been successful had they gone down a different path at the outset, but there’s no remedy available to Arar after the fact. This is no comfort whatsoever to Arar, but hopefully it will provide guidance for immigration lawyers in future.

Re #3: The judge is not saying that the executive need not answer to the legislature, but rather that the legislature has not acted in this area to provide for damages as an available remedy. Domestically, if the FBI beats the crap out of you in Brooklyn, you can sue for damages under the Fifth Amendment, even if Congress has not passed a specific statute allowing you to sue for damages. In the international context, however, the court is saying that the rules are different. The court held that the executive is constitutionally entrusted with foreign policy duties and generally better able to evaluate foreign policy considerations than a court, so the court would not recognize a Fifth Amendment right to damages arising from those foreign policy decisions in the absence of any specific statutory provisions passed by Congress allowing damages. The court also evaluated related immigration statutes and found no right to money damages. The implication is that Congress could pass a statute providing for damages in circumstances such as Arar’s, and such statute would presumably be enforceable against the executive, but that it has not done so. Again, no comfort for Arar.


shpx.ohfu 02.17.06 at 10:03 am

Brendan asks: So does this mean that Bush’s ‘Night and Fog’ policy can’t be challenged in the courts?

Yes, that’s exactly what it means. The same rationale was used to gag Sibel Edmonds and shut down her case. The feds can claim in an in camera submission to the court that there are national security interests at stake that cannot be publicly disclosed, and the victim of the government misconduct is left without a remedy. I suspect the only way a challenge can be sustained is if the judge is unwilling to accept the Government’s “Trust Me, I Know What I’m Doing and It’s for Your Own Good” contentions.

It’s not really a surprise to anyone anymore that the Bush regime has made error, incompetence, and lawlessness equivalent to “national security,” is it?


john m. 02.17.06 at 10:16 am

Tom t. – I appreciate the lucidity with which you set out your point but can I just query that what you are saying is that the legality of the action was only evaluated insofar as it allowed for money damages? I thought the law generally determines whether harm (not the right word but for the life of me I can’t think of the correct one) has been caused and as a result of that ruling then sets a value for damages whatever that may be. In others words an action is not determined by the capacity for there to be an actual value to the harm caused but whether or not harm has been caused. A famous example of this over here is when an ex-Prime Minister of Ireland sued and successfully won a libel case against the Sunday Times, only to be then awarded a penny in damages. However, this does make sense (as far as any legal system makes sense) in the context of no specific statute existing to make it illegal (something along the lines of the fifth amendment also applying if you beat up foreigners) and it is fascinating that the court held that this needed to be explicitly stated . Additionally, you clarify my point about the separation of powers by saying that the court determined that as the executive has been constitutionally entrusted with foreign policy, the judiciary (the court) was not in a position to comment on their actions. Basically, the US executive can do what it likes to anybody as long as they are foreign and a US court can have no opinion of this, yes? In other words, there is no separation of powers in this instance. I note you take no position on this but this is shameful – a complete moral vacuum and abdication of responsibility by the US judiciary.


cm 02.17.06 at 12:21 pm

I’m sure this news tidbit will receive attention outside the US (perhaps more so than inside), and make its if ever so slight contribution to people’s attitudes toward the US and its claims of democratic process and checks & balances. And I’m afraid in more generalized terms it will also be unfavorable to the whole Western model of society.


Peter 02.18.06 at 10:34 am

Conceivably, a future individual in Arar’s position could seek some form of injunction against rendition.

Err, no. The law was changed to prohibit court challenges of renditions, and to prohibit injunctions. You will find that all of the “security” laws passed during this administration include such provisions: making the decisions of unelected people above the law, and making them immune to any lawsuits.


Nell 02.19.06 at 2:32 pm

The law was changed to prohibit court challenges of renditions, and to prohibit injunctions.

Peter, I would like a citation for this. What law was changed, when?

Congress sought to make rendition to torture illegal, getting as far as having anti-rendition language attached to a defense bill in late 2004, but Condoleeza Rice talked the conference committee into dropping it. Easy to do, since the Republican leadership runs the conference committees as rubber stamps, sometimes simply excluding the Democratic members from meetings.

Comments on this entry are closed.