Arar v. Ashcroft was a federal lawsuit challenging the rendition to torture of Canadian citizen Maher Arar by U.S. government officials. Mr. Arar was detained at JFK airport in September 2002 while on his way home to Canada from abroad. He was interrogated, detained for two weeks, denied access to a court and meaningful access to counsel, and secretly rendered to Syria where he was tortured and held in a grave-like underground cell for over ten months. He was never charged with a crime.
Mr. Arar’s lawsuit was brought in the United States District Court for the Eastern District of New York against Attorney General John Ashcroft, Deputy Attorney General Larry Thompson, FBI Director Robert Mueller, and several U.S. immigration officials for violating his constitutional right to due process and the Torture Victim Protection Act. Mr. Arar alleged that the officials violated his Fifth Amendment rights by conspiring to subject him to arbitrary detention and torture in Syria and by blocking his access to court to ensure that he could not stop them.
The U.S. government official defendants challenged the suit, claiming that even if Mr. Arar’s allegations were true, he had no judicial remedy. The U.S. government also asked that the court dismiss the case, arguing it would expose “state secrets” and harm national security. In 2006, Judge Trager dismissed Mr. Arar’s claims, finding that “national security” and “foreign policy” considerations prevented him from holding U.S. officials liable. Mr. Arar appealed this decision to a three-judge panel of the Second Circuit Court of Appeals, which affirmed the dismissal 2-1 in June 2008, agreeing with the lower court that Mr. Arar’s claims would interfere with national security.
In an extremely rare move, the Second Circuit Court of Appeals decided that Mr. Arar’s appeal would be reheard by the full active court in December 2008. On November 2, 2009, the full Court of Appeals dismissed the case 7-4, concluding that in cases of extraordinary rendition, it is not the court’s role to decide whether U.S. officials can be held accountable, because of foreign policy, national security, and secrecy concerns. In a strongly worded dissent, Judge Guido Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”