Today the Supreme Court declined to review the case of Maher Arar, a Canadian citizen who was a victim of the Bush administration's extraordinary rendition program. Arar, who was innocent, was rendered by American authorities to Syria where he was subjected to torture.
The Supreme Court's decision not to review the case lets stand a lower court ruling that said the political branches of government, not the courts, should be the ones to devise a remedy for Arar's treatment. The decision "puts the ball in the president and Congress’ lap," says David Cole, who argued Arar's case for the Center on Constitutional Rights. "Are they now going to do anything to redress the wrong done to Maher Arar?" Canada has given Arar 10 million dollars in restitution, and officially cleared his name.
It takes four votes to grant certiorari, but Sonia Sotomayor recused herself because she had examined the case earlier as a judge on the second circuit. That means that at least one other judge on the liberal block voted not to hear the case, but that may have been a strategic decision. In order to overturn the lower courts ruling, the liberal bloc along with Justice Anthony Kennedy would have had to persuade one of the other conservative justices to join in order to avoid a 4-4 tie, which would have allowed the lower court ruling to stand. That task might have been even harder if Elena Kagan were elevated to the court in Stevens' place, since she might have had to recuse herself as well. “It would have been difficult" to get a ruling in Arar's favor, Cole acknowledged. It's possible that the outcome could have been worse than simply having the case dismissed.
To this day, not a single torture victim has had their day in court, which further cements what the ACLU's Ben Wizner calls the "legal framework for impunity" for torture put in place by the Obama administration.
“The victim here is not only Maher Arar, who remains unacknowledged and uncompensated by the United states, but our democracy itself, which is still waiting for a definitive legal ruling of the Bush administration’s torture regime,” Wizner said. “If Maher Arar, an indisputably innocent victim of the Bush administration’s excesses cannot obtain a remedy, it’s hard to imagine who can.”
I asked Cole whether he thought that Congress acting on a remedy for Arar was likely given the politicization and embrace of torture by the Republican Party since Obama took office. Cole pointed to Arar's testimony before Congress in 2007, and noted that both parties had acknowledged at the time that Arar deserved some restitution.
The political dynamic has "changed," Cole said, but "I don’t know if it’s changed so much that this is an issue on which Republicans and Democrats could not still agree.”
"What’s critical is that there be some acknowledgement of wrongdoing.”
-- A. Serwer