Mixed week on renditions accountability

This week saw two contrasting results emerging from courts in the United States and Italy regarding extraordinary rendition:

► In the United States, the case of Maher Arar (right) was once more rejected by the US Court of Appeals for the Second Circuit. (prior IntLawGrrls posts here)

► In Italy, however, 23 CIA agents were convicted in absentia in relation to their involvement in the ‘snatching’ of Egyptian Osama Moustafa Hassan Nasr from the streets of Milan in 2003. (prior IntLawGrrls posts here and here)

The contrast in the courts’ approaches in these cases could hardly be more pronounced.
In Arar (opinion available here), the Court refused to allow Canadian national Maher Arar to sue the United States for sending him to Syria where he was tortured because Congress had never expressly authorised such suits. Arar therefore failed to create what is known as a Bivens action, i.e. an action for breach of constitutional rights, in relation to extraordinary rendition. This was because, the Court held, the creation of a Bivens action in this respect would have implications of foreign policy and security activity. Congress could, of course, create such an action by statute but the Court would not do so itself. There is little doubt that this will be appealed.
In Italy, in contrast, Judge Oscar Magi of the Fourth Chamber of the Court of Milan appeared to have little hesitation in convicting the 23 Americans for their involvement in rendition although there were a number of others who were not convicted as a result of diplomatic immunity and the withholding of evidence on national security grounds. This case is sure to be appealed, and no sentences are executed in Italy until all appeals are completed, but in any case the agents are not in custody. The US State Department expressed its disappointment at the verdict.
What is striking to me is the contrast in the approach of the courts in both of these cases. Although the Italian decision is available only in Italian and I am therefore relying on newspaper reports, it would appear that the judge was not swayed by arguments relating to the institutional appropriateness of judicial decision-making on matters of this nature. These kinds of arguments are often made in order to try to insulate so-called ‘security’ or ‘foreign affairs’ activity from judicial oversight and scrutiny, the claim being that deciding on such matters could have foreign affairs implications and is therefore inappropriate as foreign affairs are an executive function. Certainly these kinds of arguments seem to have formed part of the decision-making in the Second Circuit’s decision in Arar.
Where these kinds of arguments are acceded to there is the danger that executive action becomes absolutely unimpeachable through judicial means and maintenance and re-establishment of the rule of law is therefore reliant on parliamentary (or so-called ‘democratic’) accountability mechanisms which, as I argue here in contradistinction to my co-author Fergal Davis, I am simply not convinced can work.

As a fan of judicial muscularity in relation to security-motivated counter-terrorist action I would certainly favour the approach of the Italian court to that of the 2nd Circuit.

(Cross posted at Human Rights in Ireland)

On January 21

On this day in ...

... 2004 (5 years ago today), the Royal Canadian Mounted Police "search[ed] the home and office of an Ottawa Citizen reporter who has written about the Maher Arar case, looking for evidence of a possible breach of the Security of Information Act," the Toronto Globe and Mail reported. Juliet O'Neill (left) had been covering the story of Arar, who, as we've posted, was transported to Syria after he stopped at a New York airport on his way back home to Canada. In October 2006, citing the Canadian Charter of Rights and Freedoms, Superior Court of Ontario Judge Lynn Ratushny invalidated section 4 of the Act, on which the raid relied as "overbroad vague and open to misuse," "infring[ing] upon O’Neill’s Charter rights to freedom of “expression, including freedom of the press." (Decision here.) There was no appeal of that ruling. (photo credit)

... 1919 (90 years ago today), in Dublin, members of the Dáil Éireann (right), the lower house of Ireland's parliament, met for the 1st time. In 2 short hours, "the Dáil adopted a Constitution," which would take effect in April of the same year, "and approved the Declaration of Independence." (photo credit)

Torture, 2008

As many of us look forward to a new administration that will move away from the unlawful and immoral practices of rendition and torture, Naji Hamdan reminds us that we've yet to make a clean break from the torturers of Abu Ghraib, Guantanamo, and secret detention centers in unnamed locations. If his lawyers' allegations are true, Naji Hamdan holds the dubious distinction of being one of a few U.S. citizens known to have been detained and tortured abroad at the behest of his own government. Hamdan, pictured at left with his daugher Noor, was born in Lebanon and became a naturalized U.S. citizen after moving here to attend college on a scholarship. In 2006, Hamdan, his wife, and their three children, all of whom are U.S. citizens, moved to the United Arab Emirates primarily to avoid the drugs and other problems prevalent at the high school their son would soon attend in Los Angeles, but also due to Hamdan's frustration with the FBI scrutiny to which he'd been subject since 9/11.

On a return trip to the United States a few months later, Hamdan was placed under intense FBI surveillance. Then, early this year, Lebanese intelligence officers detained Hamdan at the Beirut airport, interrogating and physically abusing him. In early August 2008, two FBI agents who had flown in from Los Angeles interrogated Hamdan for several hours at the U.S. Embassy in Abu Dhabi. About three weeks later, U.A.E. State Security Forces took Hamdan from his home and held him incommunicado for three months. Despite tearful pleas from his wife (and subsequent evidence that U.S. Embassy officials were made aware of his detention the day it happened), U.S. consular officials didn't visit Hamdan in detention until mid-October. A month later, Hamdan's wife and brother filed a habeas corpus petition in D.C. court, claiming that the U.A.E. was holding Hamdan at the behest of the U.S. government.
Within a week, Hamdan was transferred from State Security custody to a prison in Abu Dhabi, and was charged with terrorism-related offenses. Last week, Hamdan was finally allowed to call his brother from prison. His stories were horrifying; Hamdan's captors kept him in a freezing underground room, where they beat and tortured him. Not only was Hamdan denied medication for his liver condition, but his torturers specifically beat him in the location of his liver. Hamdan's torturers beat him on the soles of his feet, subjected him to sleep deprivation, and tortured him so severely that he often passed out from the pain.
Hamdan's wife and brother insist "that he's never had any terrorism involvement or been charged with any crime despite the longtime FBI scrutiny." His wife continues, "Naji hates war. He hates what happened on September 11. He hates terrorism." The case is eerily reminiscent of the U.S. government's treatment of Maher Arar, the Syrian-Canadian who was rendered from JFK Airport to Syria, where he was brutally tortured. We've posted about the Arar case here and I've written about it here; after a Canadian commission of inquiry found that Arar had no connection to terrorism, Condoleeza Rice admitted that the U.S. government "didn't handle his case as it should have been." For those of us who had hoped that our government had learned its lessons and cleaned up its act, the Hamdan case is a sad reminder of how far we have to go. And for Naji Hamdan and his family, the outrageously senseless violence that destroyed their sense of security in their home, faith in their government, and trust in humankind will stay with them forever.

On October 8

On this day in ...
... 2008 (today), is marked the annual International Day for Disaster Reduction. The U.N. General Assembly set aside the 2d Wednesday of October to raise awareness of ways that humans can reduce the suffering that results from natural disasters. Efforts are coordinated by the U.N.'s International Strategy for Disaster Reduction, working in conjunction with the World Bank and the World Health Organization. This year the day "falls on the third anniversary of the massive 2005 South Asian Earthquake that devastated a whole region of Pakistan."
... 2002, at 3 a.m. at the Manhattan detention center where U.S. officials had held him since his September 26 arrest at JFK airport on his way from Zurich back home to Ottawa, Maher Arar, a 30-something tech worker, was chained and placed on a private jet that hopscotches 3 continents before landing in Amman, Jordan. Soon Arar, a Canadian citizen, would find himself in the birthplace from which he and his from which he and his family had emigrated when he was 17 -- Syria. There, for nearly a year he endured brutal interrogation, notwithstanding multiple visits to him by the Canadian consul. Syrian officials released Arar in October 2003. As IntLawGrrls posted here and here, Canada eventually paid $10.3 million and apologized to Arar for its role in his extraordinary rendition. (credit for photo of Arar and family in Canada) In the United States, meanwhile, the Manhattan-based federal appeals court, which had rejected Arar's lawsuit, agreed to rehear the matter. According to the Boston Globe,

the move ... was unusual not only because the full circuit assembles for a case only once or twice a year, but because Maher Arar's attorneys had yet to even ask for a full hearing.

Territory v. Control Redux: On the Dismissal of Maher Arar's Lawsuit v. U.S. Officials

As many readers may know, Canadian citizen of Syrian origin Maher Arar (below right, photo credit) was "abducted" in 2002 while transiting at Kennedy Airport in New York and "rendered" to Syria, where he was tortured. A Canadian commission inquiry revealed that Canadian officials had misinformed US officials; the Canadians therefore apologized and paid Arar roughly $10.3 million. In addition, as Jaya Ramji-Nogales posted, his case figured prominently in the Canadian Federal Court's assessment that the United States does not comply adequately with Article 33 of the UN Refugee Convention, which prohibits return to persecution, or Article 3 of the UN Convention against Torture (CAT), which also prohibits refoulement. Nonetheless, US Legal Advisor John B. Bellinger III announced last month (with respect to the US practice of obtaining diplomatic assurances from countries known to torture prisoners) that in keeping with its obligations under article 3 of the CAT, the US does not transfer prisoners to countries that torture. He emphasized, however, that the non-refoulement provision applies only to persons actually in the United States. Apparently agreeing with him, the Second Circuit Court of Appeals ruled Monday that Arar cannot sue United States officials for damages because he was never technically within US territory. Isn't the airport transit zone, just like the Guantánamo naval base, under the complete control of the United States and therefore US "territory" for purposes of the Convention as well as for habeas corpus?

Our Neighbor's Assessment: Failure to Protect

Yesterday, the Canadian Federal Court issued an opinion in the case Canadian Council for Refugees, Canadian Council of Churches, Amnesty International, and John Doe v. Her Majesty The Queen. This case challenges the "Safe Third Country Agreement" between Canada and the United States that came into force in December 2004. This agreement provides that, with limited exceptions, individuals who first enter either Canada or the United States and then attempt to cross a land border into the other country in order to lodge an asylum claim must be returned to claim asylum in the first country they entered. In assessing the constitutionality of the agreement, the Canadian Court found that the United States does not comply adequately with Article 33 of the UN Refugee Convention, which prohibits return to persecution, or Article 3 of the Convention Against Torture, which prohibits return to torture -- specifically naming the Maher Arar case as an example of the United States' failure to protect. As one of the experts who described the ways in which U.S. asylum law (in particular, the one-year filing deadline) violates international law, I am proud to note that the court found "the Applicant's experts to be more credible, both in terms of their expertise and the sufficiency, directness and logic of their reports" and "more objective and dispassionate in their analysis and report" than the government's experts. Of particular note, the Court found that "it would be unreasonable to conclude that the one-year bar, as it is applied in the U.S., is consistent with the Convention Against Torture and the Refugee Convention" and that this bar "has a disproportionate impact on gender and sexual orientation claims" for asylum. The Court also found that women making asylum claims based on domestic violence are not sufficiently protected under U.S. law. The long decision is well worth a read, and while it bodes well for asylum seekers in Canada (assuming that the judge's final order, after further submissions, follows this opinion, and that the decision survives appeal), it reads as a damning critique of the treatment of those seeking protection in the United States.