On silver linings

It was certainly disappointing that Maher Arar's action against the American officials responsible for his rendition was dismissed last week, and I do hope that the decision will be appealed. But lest anybody think Judge Trager's ruling completely insulates Bushco from liability, a few passages from the decision are worth pointing out.

For example, Judge Trager made it clear at p. 23-24 that contrary to the defendants' arguments, a person who aided or abetted in torture rather than actually committing it cannot avoid liability on that basis:

The Torture Victim Protection Act does not specifically grant a right of action against those who aid or abet, or conspire with, primary violators. Noting this, defendants argue that only primary, not secondary, violators are liable. But every court construing this question has reached the contrary outcome, holding that the TVPA can be interpreted to allow claims for secondary liability.

At p. 47, Judge Trager refused to accept the defendants' argument that the action was barred since it arose out of a removal process which does not allow for judicial review:

(The statutory provisions in question were) intended to help restore order to the administrative process by preventing multiple lawsuits over claims arising from action involving the removal of an alien – not to foreclose bona fide legal and constitutional questions unrelated to the removal order by barring all federal court review.

At p. 58, Judge Trager rejected the defendants' claim that post-WWII precedents could be invoked to deprive Arar of any due process - and indeed hinted that some form of fair process must be available:

The Eisentrager petitioners had a trial pursuant to the laws of war. Although that trial might not have afforded them the panoply of rights provided in the civilian context, one cannot say that the petitioners had no fair process...Arar, by contrast, was held virtually incommunicado - moreover, on U.S. soil - and denied access to counsel and process of any kind.

This was followed at p. 79 by Judge Trager's flat rejection of the argument that Arar held no due process rights:

Arar's rights in the U.S. are by no means nonexistent. Although the federal courts have not fully fleshed out the contours an excludable alien's due process rights, certain developments since Mezei warrant mention...As already noted, Correa and Mezei are of questionable relevance to the case at bar because Arar was not attempting to effect entry to the United States. Regardless, the deprivations Arar alleges with respect to his treatment while in U.S. custody potentially concern the type of "gross physical abuse" that could trigger a due process violation.

And Judge Trager made clear at p. 84 that "gross physical abuse" will never be subject to the qualified immunity defence pled by the defendants:

Excluding the rendition aspect of the claim, the alleged "gross physical abuse" in the United States in Count 4 involved deprivations that would appear to violate clearly established rights. Such treatment, if true, may well violate the basic standards for a detainee in any context – civil, criminal, immigration, or otherwise – and possibly constitute conduct that a defendant could reasonably foresee giving rise to liability for damages.

Naturally, there are also many disappointing elements to the ruling as well - particularly Judge Trager's willingness to grant the benefit of the doubt to the defendants on national-security and foreign-policy concerns even on a motion where the facts as pled by Arar were presumed to be true. But even within a decision that foreclosed some grounds of relief, Judge Trager both left Arar with some means to bring the case back before the court, and made clear that that torture victims and foreigners on American soil have more rights than the defendants tried to claim.

All of which is to say that unlike Congress, the American judiciary at least hasn't completely given up its role overseeing the activities of the U.S. government. And hopefully both Arar and others will be able to use the openings left in Trager's decision to shed more light on Bushco's darkest secrets.