Inkless Wells

 Inkless Wells

Paul Wells on all the latest out of Ottawa—along with the occasional post about jazz. Follow Paul on Twitter: @InklessPW

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"The American court got it miserably wrong"

by Paul Wells on Wednesday, November 11, 2009 12:40pm - 20 Comments

The New York Times upholds the quaint notion that the protection of law should be extended even to the innocent, in this case a Canadian citizen, Maher Arar.

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  • seejanesell

    One word- SHAMEFUL

  • http://intensedebate.com/people/s_c_f s_c_f

    This is one area where the US and the US courts have it all wrong. Rendition should be constrained so that the targeted have a means of defence, similar to the procedures and treaties in place for extradition. Governments should not be given the power to conduct kidnappings.

    In Arar's case, they US had the right to refuse him entry, but beyond that, they had no jurisdiction to fly him wherever they liked.

    I agree with the NY Times that this is also a distortion of precedent. I am not a fan of the fact that nations, including both the US and Canada, treat visitors with less respect that their own citizens. You should not have to be a citizen to have recourse to a legal defense.

  • http://intensedebate.com/people/Sir_Francis Sir_Francis

    The fact is that the court's decision was more political than juridical, and, given America's current posture vis à vis the "GWOT", it could hardly have been otherwise. Shameful? Sure. Unexpected? Not at all–at least not to the non-Pollyannas among us.

    Guantanamo has been run according to extra-judicial protocols for years, and yet, when we get a decision like Arar's, we are shocked…shocked, I tell you…by the failure of American rule of law. Please.

    • kcm

      I see where you're going with this, it's realpolitic. But surely it's precisely at a time like this one would hope our courts do their job. To argue otherwise might well be realistic, but it is also cynical. no?

      • http://intensedebate.com/people/Sir_Francis Sir_Francis

        I'm not sure I'm being cynical. I think I'm merely calibrating my expectations according to the manifest cynicism (and decadence) of the higher echelons of America's post-9/11 judiciary. I mightily wish it were not necessary to do so.

        • http://intensedebate.com/people/Jenn_ Jenn_

          Also, kcm, it is worth noting that judges must be elected in the US–before they can be appointed to Appeals or Supreme courts they need experience, and so they are accustomed to being attuned to the feelings of the people. And the people are, not unreasonably, down on terrorists. The problem is that the court must determine who is a terrorist based on the rule of law, not on the rule of "if I let this guy go because of a lack of evidence they'll have my head on a platter."

          • kcm

            Good point about elected judges. Lord, i hope we never get them!

          • CDJ

            Judges in federal courts aren't elected, and it's actually rather rare for state court judges to get appointed to the federal bench; much more common is having been a federal prosecutor immediately before appointment.

  • kcm

    It is painful to recall that this is the same federal circuit court that declared in 1980 that even foreigners accused of torture in foreign countries can be called to account in American courts. The torturer is the “enemy of all mankind,” the Court of Appeals for the Second Circuit declared back then. One of the dissenters, Judge Guido Calabresi, said that “when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

    Hmmm, maybe i should list a few relevant excuses for my more conservative friends: The world's a much more dangerous place now; we can't afford the luxury of equal rights; our enemies don't care about our vaunted principles; the constitution's not a suicide pact; extremism in the defence of liberty is no sin…ah well, there's always a million reasons for not doing the right thing.

  • http://intensedebate.com/people/PoliticalPundit PoliticalPundit

    Paul, don't get your knickers in a knot until the US Supreme Court rules on the Arar case!
    Local courts, even federal ones, are loath to step into the big issues. They leave these matters for the big boys and girls on the Supreme Court, which by the way takes only the top cases.

    The wheels of justice turn all-too-slowly but Arar will have his day in court and will probably prevail.

    • http://intensedebate.com/people/s_c_f s_c_f

      I disagree. Local courts have no control over which cases are heard by the supreme court. Therefore, they must rule on every issue with the thought that their ruling will be the last. Not only that, their rulings do have an effect on the cases before the Supreme Court, their arguments are considered and their rulings are considered as well.

      • http://intensedebate.com/people/PoliticalPundit PoliticalPundit

        By leaving these matters to the Supreme Court I did not mean that the lower courts do not deal with them. They do deal with these cases. But, lower court judges also know that on very important matters of law, and this rendition case is just such a matter, the issue will be appealed all the way to the Supreme Court. The SC judges may or may not accept the appeal, they have the power to reject some important cases if the law is already very clear. If the law is murky and needs further elaboration then the SC will step in.

        Of course the Supreme Court has to be aware of the arguments presented to the lower courts. TheAC judges analyse all the lower court arguments as well as any new arguments and evidence presented before them. Only then do they decide which arguments and evidence are valid and which arguments and evidence are not and then they construct their own arguments for and against the case before them.

        • http://intensedebate.com/people/s_c_f s_c_f

          lower court judges also know that on very important matters of law, and this rendition case is just such a matter, the issue will be appealed all the way to the Supreme Court

          At which time the Supreme Court may refuse to hear the case, and not only that, there is no guarantee their decision will be appealed either.

    • http://intensedebate.com/people/Sir_Francis Sir_Francis

      The Supreme Court may very well simply refuse to hear the case. Arar hardly has some abstract right to have his case heard there…

      • http://intensedebate.com/people/PoliticalPundit PoliticalPundit

        Please read my posting above.

    • Mike T.

      Local courts in Canada have no problem ruling on any argument put forward dealing with its merits, not its ingenuity. I have no reason to believe that this is not the case in America as well.

  • peter

    I think if you pause to consider all of the oddities in the Arar case that Paul Palango's thesis in his book "Dispersing the Fog", that Arar was "sheep dipped in Syria" makes more than a little sense.

    Also, if you follow the administration of justice in general in NY where the likes of Martha Stuart (sp) get creamed, while staggering felons like Bernie Madoff are ignored for years despite dozens of highly credible complaints over a period of years, one should NOT be surprised.

  • http://intensedebate.com/people/SophiaGeffros Sophia Geffros

    Your comment that it is a quaint notion was madein cynicsm, but it's sadly quite apt.

  • http://intensedebate.com/people/madeyoulook madeyoulook

    I could maybe understand if the US court told Arar that his beef as with Canada for supplying the wrong info and with Syria for doing the torturing, so leave us Yankees out of it. But for the Court to say that Congress has the authority to (pretty much knowingly) ship off non-US citizens to be tortured in third countries, with no check or balance possible from the judiciary, makes me, a non-US citizen, re-think whether I'll be taking my high-flying loonies across the border to shop.

  • keith c

    Arar was an FBI or CIA agent and nothing going on here meets the eye, so there is zero reason to take any legal process here at face value. as Peter writes above, read Paul Palango's book. Every Canadian should

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