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“He Was Tortured, But He Can’t Sue”: David Cole’s utterly-damning account of our Judicial Branch’s denial of justice for Canadian Maher Arar

An invaluable summary and incisive account of the Maher Arar case was published Tuesday by Arar Attorney David Cole on the blog of the New York Review of Books, in response to the United States Supreme Court’s refusal to even hear the Arar appeal. Arar’s appeal was an ultimately-unsuccessful six-year-long effort to simply be heard in an American courtroom on the merits of his rendition-to-torture allegations against high public officials in our nation’s Executive Branch of government.

The Supreme Court’s refusal to even hear Arar’s case may have resulted from Justice Sotomayor’s recusal from the debate and vote on hearing his appeal – a recusal apparently made just because Sotomayor, while sitting on the Second Circuit Court of Appeals (whose decision Arar was appealing to the Supreme Court), publicly did no more than to participate in the court’s en banc Arar appeal oral argument (having left the court months before the 2nd Circuit’s November, 2009 Arar decision was rendered). [The December, 2008 en banc Arar oral argument in the Second Circuit, which lasted for more than two hours, in which Sotomayor participated by video feed, may be viewed in its entirety here.]

The short version, from Cole’s account, of how the incumbent American President acts to "faithfully execute the Office of President" and "to the best of [his] ability, preserve, protect, and defend the Constitution" – under the Presidential oath of office Article II, Section One, Clause Eight of our Constitution demands:

In President Obama’s May 2009 speech on national security and American values, he opposed a commission to investigate torture by arguing that there were proceedings in the courts that could provide accountability. Yet in the Arar case—as in every other civil case that has sought accountability for torture—the Obama administration argued that the courts were not an appropriate forum. To the Obama administration, defending government officials from suit, regardless of the gravity of the allegations, is evidently more important than holding individuals responsible for complicity in torture.

As to the torture claims of Syrian-born Canadian resident and citizen, Maher Arar, Cole elaborates:

[…] When they finally permitted him to see a lawyer, on a Saturday ten days into his detention, the government hastily scheduled an extraordinary hearing for the next night—Sunday evening—and only "notified" Arar’s lawyer by leaving a voicemail on her office answering machine that Sunday afternoon. They then falsely told Arar that the lawyer had declined to participate, and questioned him for six hours, until 3 a.m. Monday.

When Arar’s lawyer retrieved the voicemail message later that Monday morning, she immediately called the Immigration and Naturalization Service. They told her falsely that Arar was being moved to New Jersey, and that she could contact him there the next day. In fact, he remained in New York until late that night, when he was put on a federally chartered jet and spirited out of the country. US officials never informed Arar’s lawyer that he had been deported, much less that he had been delivered to Syrian security forces.

Arar was beaten and tortured while Syrian officials asked him questions virtually identical to those US officials had asked him in New York. He was locked up for a year without charges and in complete isolation, most of the time in a cell the size of a grave. After a year, Syria released him, finding no evidence that he had done anything wrong.

[…]

In addition, the United States did not dispute that if, as was his legal right, Arar had been able to get his claim before a court while he was being detained in the United States—before he was sent to Syria—the federal courts would have entertained his case and could have stopped his rendition. Congress has expressly authorized the courts to review immigration decisions and to bar removal of foreign nationals to any country where they face a risk of torture. Knowing that, US officials made sure Arar could not get to court—denying his initial requests for a lawyer, lying to him and his lawyer, and then flying him out of the country in the dead of night before he or his lawyer could file anything. Arar therefore sought the only remedy left—damages for his injuries. The Second Circuit never explained why Arar’s case, which indisputably could have been adjudicated had he been able to seek review before he was removed, suddenly became too "sensitive" once Arar sought damages for injuries incurred as a result of that removal.

Absent enforcement, "the law" is a cruel joke…

Bush administration officials sent Arar to be tortured, and Bush administration lawyers initially sought to have his damages suit dismissed. But nothing changed when President Obama took office. The Obama administration [through its Deputy Solicitor General] aggressively defended the Second Circuit’s decision to throw Arar’s case out of court. It opened its brief to the Supreme Court with a paragraph reiterating that torture is never permissible, but then went on to argue at length that federal officials accused of torture should not be held accountable.

– Attorney David Cole, June 15, 2010

Be sure to read the whole thing.

Yet even while powerful abusers on the public payroll egregiously skate from the consequences of their actions, the powerless among us continue to be persecuted by government actors, on multiple fronts.

ACORN Persecution

From the latest in a series of at least four independent investigations undertaken and concluded on the same subject since the middle of last year, none of which have unearthed any wrongdoing:

When a duo of right-wing provocateurs posing as a pimp and prostitute released selectively-edited videos trying to impugn the community activist group ACORN, both Democrats and Republicans condemned the organization. Congress then voted to cut off federal funding for the group (a decision that was later ruled unconstitutional [as a Bill of Attainder]). Following negative press and Congress’ vote, ACORN effectively disbanded Apr. 1 and reorganized under new names.

But a just-issued report by the Government Accountability Office that reviewed ACORN’s federal funding at the behest of Congress found little grist for the mill for politicians or right-wing bloggers looking to bash the now-defunct advocacy group for the poor.

The 38-page report surveyed over 31 federal agencies, probing how ACORN used federal funds and whether adequate controls on spending existed.

The report found no evidence of fraud, lax oversight or misuse of federal funds.

By at least March 12th of this year, after Federal District Judge Nina Gershon had issued her permanent injunction striking down the unConstitutional Congressional ban on consideration of federal funding applications from ACORN – a ruling now under appeal by the Obama administration in the Second Circuit – that was already quite clear:

JOHN ATLAS: […] Prior to this [Gershon permanent injunction] decision, there was a thing called the Harshbarger—Scott Harshbarger report. This was an independent study done by the former attorney general of Massachusetts, who went around and interviewed every office. By the way, I did the same thing. I interviewed the offices to find out what happened when they appeared, when those right-wing activists appeared, at the ACORN offices and they were—and getting this advice from ACORN staff about how to avoid the law and stuff about, you know, underage prostitution. Well, the Harshbarger report came to two conclusions: one, ACORN did nothing wrong, and two, the tapes were misleading, highly edited and did not portray what really happened there.

The second time that happened was when the Congressional Research Service did the same kind of analysis, did a research into what happened. They came to the same conclusion: ACORN did nothing wrong, the tapes were misleading and edited. Recently, the DA, Joe Hynes, did an investigation. He’s been investigating ACORN since September to find out what happened when these right-wing activists came in dressed up as—the fake pimp and prostitute came into ACORN offices. He also came to the same conclusion: ACORN did nothing wrong, and the tapes were misleading and highly edited and were unreliable.

Nevertheless, the desired ends – huge damage to the reputation of and even the dismantling of ACORN – were obviously achieved by the ACORN demonizers in the Senate and House, led by ringleaders Mike Johanns of Nebraska, and Darryl Issa of California, never mind the after-the-fact determination that they, and those in Congress who eagerly joined in the bloodsport with them, clearly violated their oaths of office in targeting an organization now repeatedly and independently deemed to have violated no laws or even ethical boundaries. All that while years-long, clear evidence of government-sponsored torture and other human rights abuses, and even suspicious deaths of Geneva Convention-"protected" wartime detainees in American military custody go uninvestigated (not to mention unpunished) by any independent authority.

Likewise, relatively-powerless whistleblowers – regularly given lip service, and little else, by the Congress they seek to inform, even as their ongoing persecution and mistreatment is used as an excuse to further empower media empires in their name (by way of law enforcement testimony "shield" laws for the employees of powerful, but self-serving, corporations, rather than for actual whistleblowers) – are relentlessly pursued and threatened, as the wall of secrecy shielding our government from the people grows ever higher, with the blessing of Congressional incumbents. ["In an interview with The Daily Beast on Monday, [Adrian] Lamo said that he had been interviewed for nearly 12 hours this weekend by investigators from the Defense Department, the State Department, and the FBI, as formal criminal charges are being prepared for [alleged Wikileaks source Bradley] Manning." – Philip Shenon, 6/15/10]

As is the case with the Second Circuit’s en banc Arar decision, there’s a clear pattern emerging of federal judges, particularly at the appellate level, rendering politically-fearful or politically-driven decisions, tending usually to serve and enhance Presidential power at the expense of the other branches, individual liberty, and self-government, even in the face of extremely-grave alleged abuses of federal power. Such decisions, in which "justice" for the aggrieved is but an afterthought at best, avoid fulfilling the role of the Judicial Branch by pretending that the "political" branches (their minimizing and misleading term for our self-governing Legislative and hierarchical Executive Branches) must be allowed, on their own, to define and punish – or not – any lawless conduct in which public servants in those branches engage, usually in secret and in the name of territorial self-defense or "security."

As with Members of Congress who disdain their own Legislative Branch’s central role in our government, willfully violate their oaths of office with impunity unless and until someone (that is, the Supreme Court) forces them to revert to obvious Constitutional bounds, and can’t be bothered to do the work of legislative self-government, even as they indulge in the spiteful, dishonest, and destructive demagoguery of Party politics, members of our independent federal judiciary who are afraid of displeasing the powerful, or of "getting a reputation" as someone who rocks the status quo boat, are the ones who’ve earned the label "political hack" by their actions, and failures to act, in public office.

The independent-judiciary-hostile Military Commissions Act of 2006

There’s a crucial pair of pending decisions from another set of appellate judges – this set operating within the Executive Branch – that I want to highlight here, because they pertain to two appeals, like the Arar case, in which judges are being called upon to defend the Constitution from politically-motivated attacks. If the pending decisions follow the recent pattern of politically-motivated unsound rulings in Judicial Branch courts like the Court of Appeals for the D.C. Circuit, it will be a travesty of the highest order, given both the high stakes involved, and the overwhelmingly-one-sided nature of the precedent and law favoring the two politically-unpopular defendants, who, with the help of American civilian and military lawyers, are challenging the military chain of command, the President, and the Congress, head-on, in defense of Constitutional government and everyone’s right to due process and equal justice under the law when prosecuted by American government authorities in federal court.

At issue: Guantanamo Bay prosecutions under the 2006 Military Commissions Act – a law that was quickly written by the Executive Branch to exempt itself from the law unambiguously enunciated by the Supreme Court in June, 2006 in Hamdan, and then hastily rubberstamped by a Republican-controlled Congress in late September 2006, with the help of Democratic Party leadership and its caucus, and signed into law in October, 2006 by President Bush, the month before the Democrats regained control of Congress. [Most of that law is still operative, despite the 2008 strike-down by the Supreme Court in Boumediene of its habeas-voiding provisions, after a Democratic-controlled Congress and President Obama enacted relatively-minor revisions to it, following minimal hearings and almost no debate, via the Military Commissions Act of 2009.]

A total of three prosecutions under the 2006 MCA have come to a conclusion in the three and a half years since its passage. One was a plea bargain – which lead to the release to Australia of David Hicks. A second was an undefended 2008 prosecution and conviction, where the military judge wouldn’t let the defendant, Ali Hamza al-Bahlul, represent himself, and the defendant refused the services of his assigned military defense counsel, David Frakt (who honored the defendant’s wishes, and courageously resisted the efforts of the judge to force him to defend his client). That conviction resulted in a life sentence for Al-Bahlul. The third was also a 2008 conviction, of Salim Hamdan, who received a sentence which, with years of time detained credited, led to a further six months of imprisonment, and then release to his home in Yemen before Obama took office [even though Hamdan was determined by a military judge, acting as a vanishingly-rare Article 5-compliant tribunal in 2007, to be an enemy belligerent and therefore detainable ‘for the duration’ of the armed conflict in question – a status which all the ongoing Boumediene-enabled habeas corpus appeals in federal district court in Washington are aimed at proving or disproving for remaining Guantanamo detainees].

Under the 2006 MCA, both convictions were automatically appealed, and lawyers are now representing Al-Bahlul and Hamdan in front of the Court of Military Commission Review (CMCR), itself created by the MCA. Among the CMCR’s judges are Rhode Island (state) Supreme Court Chief Justice Frank J. Williams (serving as CMCR Chief Judge), a former Secretary of Transportation, a former Congressman, and military officers (colonels and captains) from the Army, Air Force, Navy and Marine Corps. Despite a small caseload, the court is divided into three-member panels, which heard oral arguments in these two appeals on January 26, 2010. The Hamdan appeal oral argument is available for listening here. On-line briefs and rulings for Hamdan’s CMCR appeal are available here. The Al-Bahlul oral argument is not available on-line. The briefs and rulings in the Al-Bahlul appeal are available here.

The only reporting that I’ve seen about this important MCA-challenging January oral argument, held in Washington, D.C., aside from that of the invaluable Andy Worthington, is from Jess Bravin of the Wall Street Journal.

One of the amicus briefs filed in the Al-Bahlul appeal, on October 15, 2009, is from Air Force Colonel Peter Masciola, Chief Defense Counsel (a position created by the 2006 MCA), and Adam Thurschwell, General Counsel, of the Office of Chief Defense Counsel for the Office of Military Commissions, Department of Defense, in which they presented these issues:

1. Whether military commissions convened under authority of the Military Commissions Act of 2006 constitute "regularly constituted courts" within the meaning of Common Article 3 of the Geneva Conventions. [They argue the commissions do not constitute such courts.]

2. Whether the failure of military commissions convened under the Military Commissions Act of 2006 to constitute "regularly constituted courts" renders the Act unconstitutional on its face. [They argue that said failure does render the 2006 MCA unconstitutional on its face.]

Among many other related issues – including especially the legitimacy, or lack thereof, of "material support for terrorism" as a supposed war crime – those are the sort of foundational, structural flaws with the military commissions, and the Congresssional/Presidential Act creating them, that three CMCR judges must issue decisions about in the near future. Those rulings have been pending since January, and I believe the panel hearing the appeals (or at least one of the appeals) is composed of Chief Judge Frank Williams, Army Colonel David L. Conn, JA, and Air Force Colonel Cheryl H. Thompson. The military and civilian attorneys for other detainees not yet convicted by a military commission (including some of the "9/11 Five" and others of the small minority of Guantanamo inmates charged under the MCA), have filed similarly-argued mandamus writs, apparently in vain, in the black hole where the conscience and integrity of the D.C. Circuit Court of Appeals ought to be, starting last fall, as I noted here.

I highly recommend listening to the oral argument in the Hamdan appeal, and reading at least the defense merit briefs in the Hamdan (a comprehensive compilation of the many facets of the law that Congress and the President have willfully ignored), and Al-Bahlul appeals. They touch on many different aspects of the ongoing perversion of our Constitutional design, which has been too-slowly tackled and rolled back in piecemeal and tangential fashion by the Supreme Court over the last half-decade or so.

The government position and rebuttal in the CMCR oral argument in Hamdan is disgracefully weak, and it’s clear that the government/military lawyer knew it – he had to resort essentially to implicit political arguments to make any case at all. Given the deplorable state of play in the compromised appellate court of the federal D.C. Circuit ["But, in a variety of rulings since then, the D.C. Circuit Court has interpreted the Boumediene decision in ways that significantly narrow its potential as a legal remedy for Guantanamo imprisonment. The practical effect has been to diminish sharply the judicial oversight of the Executive Branch’s handling of detention policy. That has been a basic goal of both the Bush Administration and Obama Administration in cases before all federal courts." – Lyle Denniston, 6/3/2010], where any appeal of the CMCR rulings will finally land, it seems to me that a CMCR ruling upholding these convictions would be a similarly-inexcusable mockery of domestic and international law and longstanding precedent in the American system of justice, and a direct threat, coming from a Congressionally-sanctioned, Executive Branch-operated court, to the concept and jurisdiction of an independent judiciary in this country.

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