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After David Cole
The Nation 1 Dec 2003

Mahar Arar is a Canadian citizen of 16 years and was born in Syria. On 29 September 2002, Arar stepped off a flight from Zurich expecting to connect with the next flight to Montreal his home. Upon presenting himself at immigration to find his plane, he was arrested and accused of being a member of a terror organization on the basis of "secret evidence".

Unfortunately for Arar, he was still a citizen of Syria. Federal authorities promptly put him on a government jet to Jordan from where he was transported to Syria and put in a small 3' x 6' cell for solitary confinement for interrogations and beatings with cables while being immobilized. No charges were made during his entire 10 months of incarceration. He was then released and returned to Canada.

All this was done on the basis of immigration law that was never intended to be an anti-terror procedure.

This procedure raises questions about government behavior, how far will the government go? It is obvious that it will:

Detain and deport a citizen of our closest friend and ally, Canada, on the basis of secret evidence never revealed.

Arbitrarily choose to send a citizen of an ally to a country of his birth instead of his destination.

In his presidential campaign, Mr. Bush condemned the use of secret evidence in immigration proceedings. Yet here we see it.

This case raises a most troubling question. Why was Arar sent to Syria instead of just sent on to Canada?

David Cole suggests that "the only possible reason is that federal authorities felt the Syrians, who have a record of torture, might be able to extract information from Arar that US and Canadian authorities might not get [without torture]."

As it happens, America has signed The Convention Against Torture. This convention forbids "sending any person to any country where there is substantial basis for believing that he will be tortured."

David Cole concludes that exactly that was the purpose for handling the matter in this heavy-handed and illegal way. He summarizes "According to unnamed CIA officials, quoted in the Washington Post, such 'renditions' are a matter of official policy, not some egregious mistake."

There is more, and it seems to be nonpartisan.The Nation. 23 May 2002:
Edward J. Klaris,

"Terrorists, hijackers, spies, mobsters, drug dealers and others have all been tried in open federal court, where the First Amendment applies, in cases involving serious national security concerns, without classified information being leaked. Federal judges routinely close the proceedings for a limited time when classified information is introduced into evidence. The Classified Information Procedure Act permits prosecutors to keep from defendants and the public certain sensitive information, and federal judges must defer to the government's reasonable concerns about national security."

The nation, 13 Mar 2003:
Eyal Press

"US interrogators may authorize 'a little bit of smacky-face' while questioning captives in the war on terrorism. Others proposed that the United States ship Mohammed off to a country where less strict rules apply. "There's a reason why [Mohammed] isn't going to be near a place where he has Miranda rights or the equivalent," a senior federal law enforcer told the Journal. "You go to some other country that'll let us pistol-whip this guy."

"Asked about this by CNN's Wolf Blitzer, Senator Jay Rockefeller IV, a Democrat from West Virginia and vice chairman of the Senate Select Committee on Intelligence, replied, 'I wouldn't take anything off the table where he is concerned, because this is the man who has killed hundreds and hundreds of Americans over the last ten years.'"

"... Just as pundits debated Mohammed's possible transfer, evidence emerged that remaining in US custody might not be any safer : Death certificates released for two Al Qaeda suspects who died while in US custody at the Bagram base in Afghanistan showed that both were killed by 'blunt force injuries.' Other detainees told of being hung from the ceiling by chains."

"The Bush Administration insists that the United States has not violated the UN Convention Against Torture, which the Senate ratified in 1994. But the cascade of recent revelations has left human rights groups understandably alarmed. Shortly after the Washington Post article appeared, a coalition of organizations, including Amnesty International and Human Rights Watch, fired off a letter to Deputy Defense Secretary Paul Wolfowitz calling upon the Bush Administration to unequivocally denounce torture and clarify that the United States will "neither seek nor rely upon intelligence obtained" through such practices. But few have echoed their call. 'There's been a painful silence about this,'says Human Rights Watch executive director Ken Roth. 'I haven't heard anyone in Congress call for hearings or even speak out publicly.' The silence extends to the media, where, until Mohammed's capture, no follow-up investigations and few editorials had appeared--not even in the New York Times."

"The absence of debate may simply reflect a preoccupation with Iraq, but it may also signal that in these jittery times, many people see torture as justified. In the aftermath of the World Trade Center attack, numerous commentators did suggest that the absolute prohibition on torture should be reconsidered. Harvard law professor Alan Dershowitz famously proposed allowing US judges to issue 'torture warrants' to prevent potentially catastrophic terrorist attacks. Writing in The New Republic last fall, Richard Posner, a judge on the US Court of Appeals for the Seventh Circuit, expressed reservations about Dershowitz's proposal but argued that 'if the stakes are high enough, torture is permissible. No one who doubts that this is the case should be in a position of responsibility.'"

Who decides when the stakes are high enough and who determines the stakes in the first place? More important even than that, who puts the brakes on the deciders? After all, history, sociology, and psychology all teach that absolute power corrupts absolutely.

The UN Convention Against Torture is reasonable and was given full debate by the Senate before ratification. From quoting an article in the New Yorker.

"It is not apparent from his mild exterior that Posner is the most mercilessly seditious legal theorist of his generation. Nor is it obvious that, as a judge on the Seventh Circuit Court of Appeals, he is one of the most powerful jurists in the country, second only to those on the Supreme Court. He is powerful, moreover, not just by merit of his position: he is powerful because he has decided to be. In hearing a case, he doesn't first inquire into the constricting dictates of precedent; instead, he comes up with what strikes him as a sensible solution, then looks to see whether precedent excludes it. In 1991, he ruled that a group of deputy sheriffs who, without a warrant or probable cause, assisted with the seizure of a mobile home had not violated the Fourth Amendment because, rather than entering the house, they had removed it whole. (This finding was reversed unanimously by the Supreme Court, whose sarcastic opinion called it 'creative.') Posner finds the rituals of the courtroom vexing impediments to the real business of punishing criminals and freeing up markets. 'I'm not fully socialized into the legal profession,' he says. 'Im like an imperfectly-housebroken pet. I still have difficulty understanding--and this is something that most people get over in their first two weeks of law school--lawyers spouting things that they don't believe. If someone is obviously guilty, why do you have to have all this rigmarole?'"

The Witch Hunters would have agreed heartily. And Posner's words also fit the Authoritarian Personality.

Posner is too little known to the American public. Appointed to the bench by Ronald Reagan, he is something of a loose cannon even in this era of "neoconservative" ascendancy. But his position is clear, he would repeal the Fourth Amendment if he could. Of course, Presidents beginning with Truman, and continuing through Carter, Clinton, and most seriously Bush, have ever more rapidly eroded the Fourth Amendment without the Constitutional process of repealing. See Eroding Liberty for more.

If patriotism has to precipitate us into dishonor, if there is no precipice of inhumanity over which nations and men will not throw themselves, then, why in fact do we go to so much trouble to become, or to remain, human?
Jean-Paul Sartre


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