Balkinization  

Thursday, June 05, 2008

The Maher Arar Scandal and the (Redacted) Homeland Security Inspector Report

Marty Lederman

The Inspector General for the Department of Homeland Security has issued a report to Congress on the scandalous transfer of Maher Arar to Syria. Today, the IG has made public a redacted version of that report, which reveals, among other things, that (i) Deputy Attorney General Larry Thompson was responsible for refusing to transfer Arar to his home in Canada, without providing any reason for that decision; (ii) that DOJ and the government also refused to transfer Arar to Switzerland, the nation of origin of his trip (which would have been the norm if Canada were not chosen); and (iii) most importantly, that even after the INS determined that it was more likely than not that Arar would be tortured in Syria, he was transferred to that nation in an artificially and extremely expedited fashion, in a manner that circumvented the involvement of his attorneys, and apparently based on some vague "assurances" from Syria that did not come through the State Department (which also appears to have been cut out of the loop -- on this point, John Bellinger's testimony next week should be interesting).

Our own Scott Horton testified today as to why many of the redactions in the IG Report remain unjustifiable. A copy of Scott's previous Harper's post on the Arar case, which I recommend, is appended to the end of his testimony.

Interestingly, in his own testimony today, the Homeland Security IG states that "we have reopened our review into the Mr. Arar matter because, less than a month ago, we received additional information that contradicts one of the conclusions in our report. As such, we are in the process of conducting additional interviews to determine the validity of this information to the extent we can."

I don't really have time to blog in detail about this horrifying case, which has been the subject of extensive, much more candid and forthright Canadian reports, and which is currently the subject of a lawsuit brought by Mr. Arar against U.S. officials. Suffice it to say, for now, that even the outlines of the story that can be gleaned from the IG's redacted Report reveal government conduct that is fairly breathtaking in its lawlessness and capriciousness.

Comments:

Marty,

Both you and Scott have been of inestimable service to the Republic in this dark period of the defiling of the American temple of justice (to borrow Telford Taylor's Nuremberg phrase).
 

The problem of the IG route as a policy correction device in the face of such massive criminality is of course the central issue. The IG is a figleaf in that setting and may even feel the need to enable the enabling in the name of some misguided Executive branch bureaucratic fealty. I fear the same problem in Congress as so many of the participants had their hands in the cookie jar on these renditions. I really would prefer a criminal prosecution route for the actors and civil damages for Arar as the route out of this.
Best,
Ben
 

Horton's document begins:

U S H R
C J
S C , C R C L

Etc. At the bottom:

Prepared Remarks of S H

Is this a parody of document redaction, or am I just missing certain fonts? (If I copy and paste the text, the full text shows up.)
 

I have reviewed the report and am still looking for the "breathtaking...lawnessness."

Exactly what laws were broken?

The IG found that Arar was properly deported and the only debate was to which country he would be deported.

Amar was and still is a citizen of Syria. Such citizenship does not expire with a passport. I would think that the country of citizenship would be the first option for deportation.

Canada erroneously informed the US that Amar was no longer a resident. Thus, Amar had no claim to be deported there. Furthermore, the US had an interest in not releasing a suspected terrorist to a neighboring country with which the US had what was essentially an open border. We had already had one attempted attack across that border by the Millennium Bomber.

Finally, Switzerland was mentioned as a permissible destination, but Amar had no connections with Switzerland apart from the fact that that country was his last flight connection prior to arriving in the US. I would not think that country should be the first option.

Thus, we are left with a treaty obligation not to deport Amar to a nation where it is more likely than not he would be tortured. During a 6 hour interview, Amar only offered claims that he had avoided Syrian military service and that he was a Sunni muslim as reasons he might be tortured. While Syria is documented to torture political opponents, there is no evidence that they torture people for avoiding military service or for merely being Sunni. Indeed, Amar exhibited no fear of being returned to Syria during the interview.

Mr. Horton's speculation without evidence is that Amar was deported for the purposes of having the Syrians torture him for information. The IG report does not provide any evidence to back up that speculation.

This case does not bear any of the hallmarks of a rendition where the target is snatched and flown out of the residing country without any process. Instead, there were multiple layers of lawyers involved trying to determine what to do with Amar.
 

This comment has been removed by the author.
 

"Instead, there were multiple layers of lawyers involved trying to determine what to do with Amar."

Ya, Bart we've noticed. The problem is that a crime isn't improved by the number of lawyers engaged in committing, aiding, or abetting it.

As for statutes, the federal kidnapping and war crime statutes will do.
 

Apologist for torturers worldwide "Bart" DeDicta said:

Thus, we are left with a treaty obligation not to deport Amar to a nation where it is more likely than not he would be tortured. During a 6 hour interview, Amar only offered claims that he had avoided Syrian military service and that he was a Sunni muslim as reasons he might be tortured. While Syria is documented to torture political opponents, there is no evidence that they torture people for avoiding military service or for merely being Sunni. Indeed, Amar exhibited no fear of being returned to Syria during the interview.

Oh, really? So why then did they torture him?

You make it sound all so reasonable, "Bart". Nothing to see here, move along. Except for the small niggling fact of Arar's actual experiences. But, knowing you, you'll say there was no "evidence" of Arar's mistreatment either; he's just been coached to say this because he read his handy-dandy copy of the al Qaeda "What To Say When You're Captured" guide....

Cheers,
 

This case does not bear any of the hallmarks of a rendition where the target is snatched and flown out of the residing country without any process.

... unlike, say, el-Masri....

Cheers,
 

In his testimony, Scott Horton refers to the Foreign Affairs Reform and Rectructuring Act 0f 1998 (H.R.1757) in relation to refoulment.

relevant text from the Act:

(c) INVOLUNTARY RETURN DEFINED- As used in this section, the term `to effect the involuntary return' means to require, by means of physical force or circumstances amounting to a threat thereof, a person to return to a country against the person's will, regardless of whether the person is physically present in the United States and regardless of whether the United States acts directly or through an agent.

SEC. 1242. UNITED STATES POLICY WITH RESPECT TO THE INVOLUNTARY RETURN OF PERSONS IN DANGER OF SUBJECTION TO TORTURE.

(a) POLICY- It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States."

 

Bart-

your comment seems to contain willful distortions of the findings of the report.

You say that Arar exhibited no fear of being removed to Syria, but the report notes that he said repeatedly and adamantly that he did not want to go to Syria and that he said he feared arrest and torture there.

You suggest that there was no particular reason to expect him to be tortured while neglecting that (1) the INS initially found he was more likely than not to be tortured and (2) that he was being removed because he was the US believed he was a member of al-Qaeda.

Surely it defies belief to imagine that the US would remove someone it believed to be a member of al-Qaeda to Syria believing that he would not be subject, at a minimum, to coercive interrogation in the Syrian style.

Most surprising is your apparent endorsement of this hypothetical outcome. Hard to square with your usual comments on these subjects, to say the least.
 

Whether or not Arar was a resident of Canada is irrelevant. He is a Canadian citizen and entitled to enter Canada when he wishes to.

The level of dishonesty in this case never ceases to amaze me. I remember hearing John Ashcroft state on national television that Arar was apprehended while attempting to enter the United States. This was a deliberate lie: everyone knew at the time the undisputed fact that Arar was on his way home to Canada and was detained in transit.
 

Bart asks:
What laws were violated?

As noted in my statement, the FARRA and sec 2340A were both violated. They both preclude rendition of a person to a state where it is more likely than not that the person rendered would be tortured. In this case, INS made the determination that it was more likely than not that Arar would be tortured. He was rendered anyway, apparently as a result of a direct decision from the White House communicated through ODAG that he be sent to Syria. I and the two IGs, both appointees of the Bush Administration (one indeed a friend of the president's and a member of his Austin team when he was governor), all agreed that a prima facie case was made out sufficient to warrant a criminal investigation.

Bart writes:

Canada erroneously informed the US that Amar [sic] was no longer a resident.

In fact Canada confirmed that Arar was a Canadian citizen and was resident in Ottawa.

Bart writes:

Indeed, Amar [sic] exhibited no fear of being returned to Syria during the interview.

Arar stated that he feared being tortured if returned to Syria and objected to the proposed rendition. The INS was aware that Arar's immediate relatives had been imprisoned and tortured by the Syrian authorities on suspicion of involvement with the Muslim Brotherhood and that this fact had led Arar and his family to emigrate to Canada. On this basis the INS correctly determined that Arar would more likely than not be tortured if returned to Syria.

Bart writes: Mr. Horton's speculation without evidence is that Amar [sic] was deported for the purposes of having the Syrians torture him for information. The IG report does not provide any evidence to back up that speculation.

The Commission of Inquiry noted that Arar was transmitted to Syria with a list of questions furnished by US authorities with the expectation that they would be put to Arar by the Syrian authorities. The INS concluded that it was more likely than not that he would be tortured. Accordingly the record fairly establishes that he was transferred to Syria with the expectation of torture to induce testimony. The IG report reflects these facts, though much of it is redacted in the publicly available text. This is why the IGs agreed that a criminal inquiry was now appropriate.

Bart writes:
This case does not bear any of the hallmarks of a rendition where the target is snatched and flown out of the residing country without any process. Instead, there were multiple layers of lawyers involved trying to determine what to do with Amar.

This case was described by both Ranking Member Rohrabacher and Issa, the two GOP members most active on the matter, as an adjunct to the extraordinary renditions program. The minority initially planned to call a retired CIA agent to defend the renditions program.

All of the participating Republicans at yesterday's hearing shared the view that a terrible wrong had been done to Arar and stated that the decision to render him to Syria was virtually inexplicable. The defense offered is that this was a mistake born of the fog of war.

It's interesting to note that Bart will not criticize Administration conduct even when the Congressional leadership of his party is prepared to do so.
 

This comment has been removed by the author.
 

Mourad:

As despicable as "Bart" and his opinions here are, it's generally considered poor form to post personal information (such as addresses) of people without their consent. Not my rules, but just general guidelines for the unconstrained and unregulated open forum we call the InterToobz.

You might consider deleting and reposting without the offending information.

Cheers,
 

Arne - Bart's address is openly given to the public at large on his web site.
 

Mourad:

That may be, but not everyone reading here will find his web site. Because of the nature of the disputation here (and "Bart"'s extreme views expressed here [which I hope for his clients' sake he doesn't do in practise]), it's generally not considered good form to post addresses. There was an incident a while back out here when the execrable Michelle Malkin had handed out phone numbers of some students (which were publicly [as this is where she got them] but not generally available), causing the students to receive hate calls.

Cheers,
 

Scott Horton wrote:-

“It's interesting to note that Bart will not criticize Administration conduct even when the Congressional leadership of his party is prepared to do so.”

I congratulate you, Sir, on your efforts to see some light thrown on this disgraceful episode. Please keep up the good work. Even if they come to nothing during the tenure of the present Administration, there will be what Neoconservatives are prone to refer to as regime change next January and, if the polls are anything to go by, reasonable prospects that the incoming Administration will be headed by a President who knows rather more law than the Present incumbent of the White House and who will be much more disposed to uphold the law.

I accept, of course that a DUI practice will not have equipped Bart to express an opinion on the finer points of the complex and specialised field of US immigration law, but surely he can read. It is normal immigration practice in most countries to return an inadmissible alien to the point of departure if that is possible for the practical, if venal, reason that this can usually be accomplished at the expense of the carrier, rather than at public expense. Second preference would be a country of citizenship for which the alien had valid travel documents – in this case Canada. Why, then the inexplicable choice of Syria which was (i) more expensive to accomplish and (ii) in respect of which the INS had determined that there was on balance of probability a real risk of torture ?

It is plain that there has been a cover-up and that there was intervention from the top down. This is more than a case of departmental incompetence – and there are enough of those in any event to make them almost routine.

I think it is important not to classify all Republicans as Neoconservatives. The “Neocons” are what one might term a “party within a party”, just as in the UK there were Trotskyites who operated within the Labour Party under Michael Foot. Indeed the irony of “New Labour” is that having rid itself of the extreme left, it promptly imported much Neoconservative thinking into the Blair Government’s approach to many major human rights issues.

Neocon Bart, is of course, an apologist for the Neoconservatives within the Administration and perhaps the only redeeming feature of his posts is that he is such an utterly hopeless lawyer that most of his posts betray ignorance of both the facts and the law.

That might be said to almost a hallmark for the genus. In Australia, Neocon lawyers are considered to be a sub-species of the genus Ornithorhynchus anatinus, the egg-laying, venomous, duck-billed, beaver-tailed, otter-footed mammal commonly known as “the Duck-billed Platypus”. Since that genus is peculiar to the Antipodes, I wonder where Bart would fit into the scheme of things ?

Suggestions please.

Note: I had suggested people send their suggestions on an unstamped postcard to Bart's office - I rather thought it might afford his secretary some light relief - but Arne suggested I reconsider. Having regard to some of the things Bart has posted, I can see his point.
 

Mourad:

Note: I had suggested people send their suggestions on an unstamped postcard to Bart's office - I rather thought it might afford his secretary some light relief - but Arne suggested I reconsider. Having regard to some of the things Bart has posted, I can see his point.

He can't afford Westlaw/Nexis; I doubt he has a secretary.

FWIW, I had previously linked to "Bart"'s home page too, in the context of discussions as to his background and exerience. I was chided for such, and have stopped doing so.

Cheers,
 

Arne,

is a DUI practice usually that marginal in the USA too? Here there used to be many practitioners because the issue of whether drunkenness caused impairment was a jury question. I well remember a delightful old chap on the SE Circuit who would address the Jury along these lines:

”Gentlemen of the Jury: The Crown alleges that my client was drunk in charge of a motor vehicle having consumed 12 pints of Theakston’s Old Peculier in the “Goat and Compasses” public house. Gentlemen, ONLY 12 PINTS! You are men of the world. I ask you to acquit my client.”

[Theakstons Old Peculier Beer really exists and has 5.6% ABV so it is to be consumed with caution - try Google]

His reasoning was that no self-respecting Englishman wants to people to believe he cannot hold his beer – and his delivery was much akin to that of Horace Rumpole. He got an amazing percentage of acquittals.

Unfortunately today it’s magistrates and no jury, breath/blood/urine tests rule, with automatic total disqualification from driving for at least a year, so the bottom has really fallen out of that legal market – most drivers once caught plead guilty by post.

Maybe poor Neocon Bart really is lonely and misses the contact with other lawyers.

Or perhaps, he’s planning to go into politics, so frequently the refuge of those who cannot make a living at the bar. He did make references to some Colorado initiatives in terms which suggested he was involved with them.

So perhaps he really is the mythical "loathsome spotted reptile"
 

Mourad:

”Gentlemen of the Jury: The Crown alleges that my client was drunk in charge of a motor vehicle having consumed 12 pints of Theakston’s Old Peculier in the “Goat and Compasses” public house. Gentlemen, ONLY 12 PINTS! You are men of the world. I ask you to acquit my client.”

I've had Old Peculiar (just looooovvvee the name, almost as good as Dead Dog Scrumpy). But not 12 pints as a setting (unless that's what we did in Kensington one night ... but I don't remember too clearly).

Cheers,
 

Arne:

Here's the song:

In the year of sixteen forty-two, in a little cider mill
A poor old dog lay down to rest 'cause he was feeling ill
He chose a most precarious perch above the apple press
An in his sleep he tumbled in and perished in distress

This caused his master for to grieve likewise his mistress too
Until their sorrows were relieved when they sampled of the brew
A-ha, cried farmer Attwater, The likes I ne'er did sup
So he summoned all the neighbours in and bade them take a cup

And every man who drank that night got drunk as drunk could be
They wondered how the scrumpy had acquired such potency
But the farmer kept his counsel and took another drop
When all at once the poor old dog came floating to the top

A silence fell upon the room and every man did frown
The recognised old Bendigo though he was upside down
The Squire lost his colour and collapsed upon the floor
And the vicar lost his britches in the rush to reach the door

Fear not, cried farmer Attwater, For in all his life I vow
He never bit no man nor dog, and he'll not bite no man now
And this shall be his epitaph, Here lies our faithful Ben
Who perished in the scrumpy vat and quickly rose again

So if ever you're in Devon and you go into a bar
Ask for Dead Dog Scrumpy its the best there is by far
Refuse all imitations and you'll sleep just like a log
You can always recognise it by the hair of the dog
 

Mourad:

Yes, I know the song well. Iain Macintosh does it in concert, and I have it on one of his LPs.

FWIW, I'm fond of Leon Rosselson's songs; he's got some pretty good ones.

And Adam McNaughton, Scottish schoolteacher and songwriter, who did "Hamlet" in three minutes: "Oor Hamlet".

Much wisdom in all of this. If judicial opinions took the form of songs, I might have been better suited to abide with the peculiarities of the legal profession....

BTW, I note that "Bart" has beat a hasty retreat from this thread after Scott Horton's professional spanking of him. My hat's off to you, sir, Scott!

Cheers,
 

HD kaliteli porno izle ve boşal.
Bayan porno izleme sitesi.
Bedava ve ücretsiz porno izle size gelsin.
Liseli kızların ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var
 

Post a Comment

Older Posts
Newer Posts
Home