03
Nov
09

“all the historical foresight of Dred Scott”

Scott Horton, on the absolutely shameful, contemptible, disgraceful decision by the Second Circuit Court of Appeals stating that Maher Arar, a Canadian software engineer, had no right to sue U.S. government officials for HAVING BEEN TORTURED FOR A YEAR, for eighteen hours a day, for no reason, in Syria, after having been sent there by American officials who knew what they were doing to him.

The Canadian government admitted to their role in the  episode and awarded Arar $11.5 million (Canadian) in compensation and reimbursement of legal costs.   “And the United States?

The United States tenaciously refused to acknowledge ever having made any mistakes—even after its own sources did so. It stonewalled Congressional probes and issued a travel ban to stop Arar from testifying before Congress. The Bush Justice Department made aggressive representations to the courts in response to Arar’s suit that strained credulity at almost every step. As in other cases, their trump card was simple: when caught with pants down, shout “state secrets!”….

[Dissenting judge Guido] Calabresi generously accepts the suggestion that the Second Circuit acted out of concern for national security. Still, he delivers an appropriate lashing. The majority, Calabresi charges, “engaged in extraordinary judicial activism.” Its activism was aimed at extricating political actors from a precarious predicament and keeping the door firmly shut on what may well be the darkest chapter in the entire history of the Justice Department. In so doing, the court’s majority delivered an example of timidity in the face of government misconduct the likes of which have not been seen since the darkest days of the Cold War. 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.

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