Editorial - A National Disgrace - NYTimes.com

Editorial - A National Disgrace - NYTimes.com

Two courts, one in Italy and one in the United States, ruled recently on the Bush administration’s practice of extraordinary rendition, which is the kidnapping of people and sending them to other countries for interrogation — and torture. The Italian court got it right. The American court got it miserably wrong.
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In Italy, a judge ruled that a station chief for the Central Intelligence Agency and 22 other Americans broke the law in the 2003 abduction of Osama Moustafa Hassan Nasr, a Muslim cleric who ended up in Egypt, where he said he was tortured.

Two days earlier, a federal appeals court in Manhattan brushed off a lawsuit by Maher Arar, a Syrian-born Canadian citizen who was seized in an American airport by federal agents acting on bad information from Canadian officials. He was held incommunicado and harshly interrogated before being sent to Syria, where he was tortured. He spent almost a year in a grave-size underground cell before the Syrians let him go.

The United States Court of Appeals for the Second Circuit decided that none of that entitled Mr. Arar to a day in court.

In Mr. Nasr’s case, authorities said that they had reason to suspect he was involved in recruiting militants to go to Iraq. It has long been established that Mr. Arar was not guilty of anything. Canada admitted that it had supplied false information to American authorities, and in 2007, it apologized and offered Mr. Arar $10 million in damages. Neither the Bush nor Obama administrations followed suit, leaving Mr. Arar to pursue litigation.

In June 2008, a three-judge panel of the same court dismissed Mr. Arar’s civil rights suit on flimsy grounds. The court then took a rare step, scheduling a rehearing before all of the court’s active members before an appeal was filed. Sadly, the full court’s decision is even more insensitive to the violation of his rights and the courts’ duty to hold government accountable for breaches of the law.

Written by Chief Judge Dennis Jacobs, the 59-page majority opinion held that no civil damages remedy exists for the horrors visited on Mr. Arar. To “decide how to implement extraordinary rendition,” he wrote, is “for the elected members of Congress — and not for us as judges.” Allowing suits against policy makers for rendition and torture would “affect diplomacy, foreign policy and the security of the nation,” Judge Jacobs said. ...