"Senior American officials ought to go to jail for this".
That's what Jerrold Nadler said last week after having heard testimony that US officials deported Canadian citizen Maher Arar to Syria even though they knew he would be tortured upon his arrival there.
Arar's Detention and Rendition
Acting on a tip from Canadian officials that he had ties to al Qaeda, US Immigration and Naturalization Service (INS) officers stopped Arar in September 2002 as he was changing planes at JFK airport on his way from Tunisia to Canada. They interrogated him for nearly two weeks, and eventually decided, in the OIG's terms, that he was "inadmissible to the United States on the grounds that he was a member of a foreign terrorist organization."
It might have been logical to remove Arar to Canada, considering his Canadian citizenship and his request to be sent there. However, the US Justice Department intervened, claiming national security concerns, leading the INS to decide that Arar should be shipped to Syria, where he held dual citizenship, despite their previous conclusion that it was "more likely than not" that Mr. Arar would be tortured if sent there.
A Canadian Commission of Inquiry later discovered that their Foreign Intelligence Division (ISI) and Department of Foreign Affairs and International Trade (DFAIT) knew in advance of the US plan to render Arar to Syria, where his torture was apparently certain, but didn't object because they didn't realize the kind of people they were dealing with in the US:
... the threat of removal to Syria was regarded as simply an interrogation technique, not as a plausible course of action. In DFAIT’s experience, nothing like this had ever happened before, and it was completely outside acceptable and normal practice. A Canadian citizen (even if a dual citizen) traveling on Canadian documents would either be sent back where he or she came from, or to the location on his or her passport. Any other action would have harmed the Canada-U.S. bilateral relationship, and thus it did not enter the minds of DFAIT officials as a realistic possibility.
So, Maher Arar was sent to Syria where he was held without charge, was tortured and forced to falsely confess attending a training camp in Afghanistan.
Arar Proven Innocent
Ten months later, though, Syria released him to return to Canada and publicly stated that they had found no connection to any criminal or terrorist organization or activity. After his return, the Canadians also cleared Arar of all accusations, officially apologized to him, and eventually agreed to pay him nearly $10 million in compensation. In the US, however, things have been different.
In early 2006, the U.S. District Court for the Eastern District of New York dismissed a suit filed in 2004 on Arar's behalf by the Center for Constitutional Rights (CCR), holding that the government's invocation of the "state's secrets" privilege prevented the court from holding US officials liable for carrying out an extraordinary rendition "even if such conduct violates our treaty obligations or customary international law." The CCR appealed, and argued the appeal before the Second Circuit Court of Appeals in November, 2007. The court has not yet reached a decision in the case.
The Office of the Inspector General (OIG) of the Department of Homeland Security recently declassified an internal investigation which had originally found that no laws were broken by US officials in the case. However, on June 5, 2008 Inspector General Richard Skinner testified in front of a joint House committee chaired by Jerrold Nadler ( Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties) and Bill Delahunt (Bill Delahunt (MA-10), chair of the House Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight) and and revealed that the OIG was reopening the investigation because "we received additional information that contradicts one of the conclusions in our report."
In reporting on the hearing, the Los Angeles Times noted
Congressional members called Thursday for a special prosecutor to lead the investigation so criminal charges could be filed.
"Senior American officials ought to go to jail for this," said Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary subcommittee on constitution, civil rights and civil liberties, who has access to the classified version of a redacted inspector's general report on the government's actions. "There was a deliberate plot to abuse the procedures so they could railroad Arar to Syria, where they knew he would be tortured."
Remediation and Justice for Arar
First, the US government should withdraw it's national security objections to the CCR suit, so that it can provide Arar the appropriate monetary settlement and requested official apology.
Second, The US Department of Justice should designate a special prosecutor to lead the development of criminal cases against those US officials involved in Arar's illegal rendition to Syria.
Third, the Congress should give serious consideration to removing those portions of the U.S. Immigration and Nationality Act and other statutes under which the US executive is given the ability to sidestep usual INS procedures without legal challenge by claiming national security concerns.