One of the most shocking parts of my college education involved stumbling upon a book about concentration camps on American soil for Japanese-Americans during the Second World War. Somehow, we had missed that topic in my high school history course. I could not believe what I was reading. Didn't these folks have rights? What were we doing building concentration camps in the United States?
I revisited that sense of horrified shock this week learning that the United States Supreme Court refused to hear the case of Maher Arar. I cannot help but wonder how many more Maher Arar's there are. Who is next, I wonder?
Mr. Arar is a Canadian citizen. When he landed in the United States in 2002, he was quickly whisked into custody by federal agents as a "person of interest" with possible connections to al Qaeda. He was locked up without access to a lawyer. He was interrogated. When a lawyer tried to reach him, our government lied to the lawyer. Finally, Mr. Arar was then shipped to Syria, in a plane chartered by the United States government, and sent to Syria, where he was tortured for a year, no doubt with the cooperation of willing United States intelligence agents. It is as dark a tale as can be told. Where is our Arthur Koestler to tell it?
The world looks different to law enforcement agents. In the anti-septic tones of cop-speak, people are divided into different classes: We are all subjects. However, if the law thinks we know something that the government is curious about, we become persons of interests. Once suspicions about a person harden into a form that prompts an investigation of a person, the person is designated a target. If there is enough to arrest, we become defendants, and then a public and we hope transparent process will result in a trial. This lingo is common among cops, although I have seen police officers play dumb about it on the stand, aided and abetted in the effort by prosecutors who think that rope a dope is cute and endearing to jurors.
What did Mr. Arar do to warrant this state-sponsored kidnapping and torture? He found his way onto an intelligence agency's list as a person of interest. In other words, the Government thought he might have information about al Qaeda. The man was, and he remains, after all, on a "no fly" list.
When Arar was ultimately released from Syria he returned to Canada, this time avoiding a stop in the United States. The Canadian government made recompense to him in the form of $10 million. It was the Canadians, after all, who determined that he might have information about al Qadea.
But a horrible thing happened when Mr. Arar turned to the United States courts for relief. His case was dismissed. The United States Court of Appeals for the Second Circuit upheld the dismissal, reasoning that to litigate the matter would require yielding vital national security secrets. In other words, the lower court said that the case was too hot to handle: When folks are kidnapped, held incommunicado, rendered to nations with no qualms about torture, all by federal agents acting under color of law, the case is simply too sensitive for justice to be done: Naked power trumps the claims of right. The light of day cannot be shined on the tyrant's undergarments.
Mr. Arar turned to the United States Supreme Court for relief. What he got was the unanimous refrain of nine gutless cowards singing in unison the new national anthem, the old religious hymn "Trust and Obey." Is it any wonder this Court recently decided to close the front doors of the court? Equal justice under law, the words etched over the western facade of the court, are mocked with rulings such as this.
The doors to our courts are closed to a person our government kidnapped, and then rendered to a foreign country willing to do our torturing for us. The man was innocent. He wasn't even a target of an ongoing investigation. The government merely thought he had information of interest. When it turns out the government erred, it sought to hide just how and why this happened, claiming state secrets. A dark shroud of secrecy has been drawn over the case. We will never know why it happened to Mr. Arar and what can be done to prevent it from happening to any of us. We do not even know how many such cases there are.
The Arar case stuns me as much as did those cases upholding the detention of Japanese-Americans during World War II. At least the Court had the courage of convictions it was willing to write about in the 1940s. As troubling as is the Korematsu decision to read, it is at least transparent. Today we hide our sins from ourselves, and pretend all is well. But the world is watching. This week we live in shame. The Arar case is one that should be talked about often.
I've taken an oath to uphold the laws and Constitution of the United States as a lawyer. Just what am I to do with the oath when the highest court of the land aids and abets tawdry acts of terror by my government? When the laws guarantee of equal justice for all becomes a mere empty promise, my oath, too, seems to become mere words, detached from substance. Where does Mr. Arar go for justice when our courts refuse to hear him? How am I to regard our courts?
