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Maher Arar Fights to Keep Torture Suit Against U.S. Government Alive

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Canadian torture victim Maher Arar is the first person to mount a civil suit challenging the U.S. government policy of extraordinary rendition. Now his attorneys are fighting the Justice Department’s motion to dismiss the case. We speak with David Cole, the lead lawyer for Maher Arar. [includes rush transcript]

Attorneys for Syrian-born Canadian citizen, Maher Arar, made their first public appearance in a Brooklyn Federal Court yesterday in Arar’s closely watched civil lawsuit against several U.S. officials. Among them: former Attorney General John Ashcroft and former Homeland Security Secretary Tom Ridge. In his lawsuit, Arar accuses the U.S. government of violating the Torture Victim Protection Act and his Fifth Amendment right to due process. His attorneys appeared in court yesterday to argue against the Justice Department’s motion to dismiss Arar’s case.

In October 2002, Arar was detained at JFK airport by US officials while on a stopover in New York. He was then jailed and secretly deported to Syria. He was held for almost a year without charge in an underground cell not much larger than a grave, where he was tortured. The Center for Constitutional Rights launched Arar’s lawsuit last January alleging that Ashcroft, Ridge and other officials in the Bush administration knew Arar would be tortured when he was deported. Arar alleges he was a victim of the US government’s “extraordinary rendition” policy of sending people to countries that routinely use torture, instead of holding them in the US where they have certain rights under the constitution.

The US government is attempting to have Arar’s lawsuit dismissed. Invoking the rarely used “state secrets privilege” the Justice Department claims that any release of information on Arar could jeopardize “intelligence, foreign policy and national security interests of the United States.” Last year, Time Magazine in Canada named him the country’s newsmaker of the year.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’re joined on the phone now by the lead lawyer on the case, David Cole, of the Center for Constitutional Rights. David Cole is a professor at Georgetown Law School and attorney with CCR. Welcome to Democracy Now!

DAVID COLE: Thanks for having me, Amy.

AMY GOODMAN: Well, can you talk about why you were in the Brooklyn court yesterday and the significance of this hearing?

DAVID COLE: Well, this was, as you suggested, the first hearing on the defendant’s attempts to try to get the case thrown out altogether. It was on a motion to dismiss, so, essentially, the government is arguing even assuming that everything that we alleged is true, namely that the government conspired with Syria to have him arbitrarily detained for about a year without charge and conspired to have him tortured and provided the Syrians with a dossier of questions that they wanted the Syrians to ask him and retrieve the information back from the Syrians, even if all that is true, the government is arguing, there is no remedy. The United States is free to do this without any judicial remedy whatsoever for Mr. Arar. So that was really the argument in its sort of baldest form that the government was making yesterday.

AMY GOODMAN: Your response?

DAVID COLE: Well, I — what I said in court is that that position, the notion that government officials can engage in that kind of action without any legal recourse, is flatly inconsistent with the relevant statutes, it’s inconsistent with the case law, but most importantly, inconsistent with our nation’s commitment to the rule of law, one that some members of this administration don’t seem to have a great commitment to, but our history and our tradition and our laws are built upon.

AMY GOODMAN: Where does the case go from here? What comes out of yesterday’s hearing?

DAVID COLE: Well, we have to wait for the judge to issue his decision, and you know, my sense is that he’s not likely to throw out the whole case, that some form of discovery will go forward, and then once that discovery goes forward, then we are going to have to confront this additional argument that the government has made, which is that even if there’s a theoretical basis for getting some sort of a relief, damages or the like, from — as a result of the conduct here, their claim is that the — all of the evidence that they have concerning their treatment of him, or virtually all of it, is covered by something called the State Secrets Privilege and can’t be disclosed. And on that argument, they’re claiming that because their communications with Syria and their communications with Canada, because he was a Canadian, because those are classified and privileged and can’t be disclosed, the entire case should be dismissed. And if they win on that argument, then no rendition will ever be subject to any sort of legal review, because every time the government takes a person from one country to another for purposes of interrogation or the like, it is going to require some sorts of negotiations between the United States and those countries, and if, in every such case, the government comes in and says, 'Well, those communications are secret, and therefore, we can't — the case can’t go forward,’ then it will have a completely free hand. It will have created a law-free zone with respect to this practice of extraordinary renditions.

AMY GOODMAN: David Cole, the government argues that Maher Arar had access to due process and that he failed to appeal his deportation.

DAVID COLE: Yeah, that’s a remarkable argument for the government to be making, because if you see what the government did to him, I mean, they basically made it impossible for him to pursue any sort of legal appeal. He was initially picked up on September 26th, as he was changing planes at JFK. He was held incommunicado for five days, not even allowed to make a phone call outside, interrogated at length. He was finally given the right to make a phone call on October 1. His family found him a lawyer who was able to come see him on Saturday, October 5. On Sunday, October 6, the government interrogates Maher for a lengthy period of time, lies to him and tells him his lawyer doesn’t want to be at the interrogation, notifies the lawyer about the interrogation by leaving a voicemail on her office phone on Sunday evening. When she comes in on Monday morning and retrieves the message, she calls the I.N.S., and they lie to her repeatedly about where Maher is, saying that he’s being transferred from a New York facility to a New Jersey facility. Meanwhile, they are putting him on a plane and sending him to Syria. And only when he is on the plane that night on his way to Syria, do they hand him the final removal orders saying ’You’re deported from the United States.’ And then he sits in a Syrian cell for a year, so the notion that somehow he could have had any access to the courts is a complete fiction.

AMY GOODMAN: The government also says he is al Qaeda.

DAVID COLE: The government does say is he al Qaeda, but one of the things that’s interesting, and that was the ground upon which they excluded him. They did not offer any evidence to support that claim. And the Syrians, after torturing him and interrogating him and holding him for a year, released him, saying that they found no evidence whatsoever to charge him with anything. He is living in Canada, a free man. Canada has said, 'We have no basis to charge him with anything.' And, you know, if the United States actually believed that he was a member of al Qaeda, he wouldn’t be in Syria or in Canada, he would be at Guantanamo, and he is not. So, I think that, you know, yes, they have made that claim, but they certainly have not backed it up in their own actions, and the actions of two other governments contradict it.

AMY GOODMAN: We are talking to David Cole, who represents Maher Arar, was in a Brooklyn federal court on Tuesday. We want to go to just a clip of Maher Arar, who we have interviewed on Democracy Now!, describing what happened to him when he was held in Syria.

MAHER ARAR: Really, I mean, when I arrived there, I just couldn’t believe it. I thought first it was a dream. I was crying all the time. I was disoriented. I wished I had something in my hand to kill myself, because I knew I was going to be tortured, and this was my preoccupation. That’s all I was thinking about when I was on the plane. And I arrived there. I was crying all time. So, one of them started questioning me, and the others were taking notes. And the first day it was mainly routine questions, between 8 to 12.

And the second day, that’s when the beatings started, because, you know, on the first day they did not find anything strange about what I told them, and they started beating me with a cable, electrical threaded cable, and they would beat me for three, four times. They would stop again, and they would ask questions again, and they always kept telling me, 'You are a liar,' and things like that. So, the beating continued for the first two weeks. The most — the most intensive — the intensive beating was really the first week, and then after that it was mostly slapping, punching on the face and kicking.

So, on the third day when they didn’t find anything, so, of course, they — in my view, they just wanted to please the Americans, and they had to find something on me. So, because I was accused of being an al Qaeda member, which is nowadays synonymous with Afghanistan, they told me, ’You’ve been to a training camp in Afghanistan.’ And I said, “No.” And they started beating me. And I said — well, I had no choice. I just wanted the beating to stop. I said, “Of course, I’ve been to Afghanistan.” I was ready to confess to anything just to stop the torture.

AMY GOODMAN: That is Maher Arar, speaking on Democracy Now! If you want to hear the whole interview, you can go to our website at As we wrap up with David Cole, his attorney. The significance of this case, David Cole, overall?

DAVID COLE: Well, I think the significance is that it is the first challenge, really, legal challenge, to this practice of extraordinary renditions, in which, as one government official said, 'We don't kick the (expletive) out of them, we send them to other countries so they can kick the (expletive) out of them.’ And what we’re saying in this lawsuit is that that’s unconstitutional under the Fifth Amendment. It is — you can’t beat people, nor can you send people to other countries to be beaten, and it’s something that warrants judicial intervention and requires judicial intervention, because, unfortunately, members of the current administration have ignored one of the most basic principles of human rights.

AMY GOODMAN: Well, I want to thank you very much for joining us, David Cole at Center for Constitutional Rights. His latest book is called Enemy Aliens.

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