Federal Courts Issue Rulings on Bush-Era Torture, Racial Profiling Cases

Former Bush administration Attorney General John Ashcroft had a busy day in
court yesterday.

A federal appeals court ruled he could not be held responsible for kidnapping
a Canadian citizen in New York and shipping him off to Syria where he was imprisoned
for a year and tortured.

But, in another case, five men, who had been living in New York and were ultimately
deported, won a $1.26 million settlement from the US government in a suit accusing
Ashcroft and other officials of racial profiling, illegal detention and abuse
of Muslim, Arab and South Asian men in the days following the terrorist attacks
of September 11, 2001.

Yasser Ebrahim, one of the men held at the Metropolitan Detention Center (MDC)
in Brooklyn, NY, after the post-9/11 sweeps and now living in Egypt, said: “We
were deprived of our rights and abused simply because of our religion and the
color of our skin. After seven long years, I am relieved to be able to try to
rebuild my life. I know that I and others are still affected by what happened
and that communities in the US continue to feel the fallout. I sincerely hope
this will never happen again.”

In the second case, a federal court of appeals in New York dismissed Canadian
citizen Maher Arar’s suit against Ashcroft and other US officials for their
role in sending him to Syria to be tortured. The court concluded that Arar’s
case raised too many sensitive foreign policy and secrecy issues to permit relief.
It leaves the federal officials involved free of any legal accountability for
what they did.

In a 7-4 decision, the Court wrote, “If a civil remedy in damages is to
be created for harms suffered in the context of extraordinary rendition, it
must be created by Congress, which alone has the institutional competence to
set parameters, delineate safe harbors, and specify relief. If Congress chooses
to legislate on this subject, then judicial review of such legislation would
be available.”

Mr. Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September
2002 while changing planes on his way home to Canada. The Bush administration
labeled him a member of al-Qaeda and sent him not to Canada, his home and country
of citizenship, but against his will to Syrian intelligence authorities renowned
for torture. He was tortured, interrogated and detained in a tiny underground
cell for nearly a year before the Syrian government released him, stating they
had found no connection to any criminal or terrorist organization or activity.

Georgetown University Law School Professor David Cole, who argued the Arar
case, told Truthout, “This decision says that federal officials can conspire
to subject an innocent man to torture, block his access to courts who would
enjoin them from getting their way, and then avoid all accountability thereafter
because the case would be too sensitive to litigate. The court puts executive
officials above the law, and tells an innocent torture victim that concerns
about foreign relations are so important that his claim cannot even be considered.”

He indicated that the Arar case would be appealed to the Supreme Court.

The case against John Ashcroft and other Bush-era officials was filed in January
2004, just three months after he returned home to Canada from his ordeal. It
was brought by the Center for Constitutional Rights (CCR), and was the first
to challenge the government’s policy of “extraordinary rendition,”
also known as “outsourcing torture.”

The Canadian government, after an exhaustive two-year public inquiry, found
that Mr. Arar had no connection to terrorism and, in January 2007, apologized
to Mr. Arar for Canada’s role in his rendition and awarded him a multi-million-dollar
settlement.

The contrast between the two governments’ responses to their mistakes could
not be more stark, say Mr. Arar’s attorneys. “Both the Executive and Judicial
branches of the United States government have barred inquiry and refused to
hold anyone accountable for ruining the life of an innocent man,” they
said.

Two Congressional hearings in October 2007 dealt with his case. On October
18, 2007, Mr. Arar testified via video at a House Joint Committee Hearing convened
to discuss his rendition by the US to Syria for interrogation under torture.
During that hearing – the first time Mr. Arar testified before any US governmental
body – individual members of Congress publicly apologized to him, though the
government still has not issued a formal apology. The next week, on October
24, Secretary of State Condoleezza Rice admitted during a House Foreign Affairs
Committee Hearing that the US government mishandled his case.

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.”

The racial profiling case, known as Turkmen v. Ashcroft, was filed in September
2002 to challenge the arbitrary detention and mistreatment of immigration detainees
by prison guards and high-level Bush administration officials in the wake of
9/11. With no evidence of any connection to terrorism, hundreds of Muslim, Arab
and South Asian men were rounded up on the basis of racial and religious profiling
and subjected to unlawful detention and abuse.

Among other documented abuses, many of the men had their faces smashed into
a wall where guards had pinned a T-shirt with a picture of an American flag
and the words, “These colors don’t run.” The men were pushed against
the T-shirt upon their entrance to MDC and told, “welcome to America.”
The T-shirt was smeared with blood, yet it stayed up on the wall at MDC for
months.
All of the men were eventually deported, though several of the plaintiffs returned
to New York under strict conditions to participate in depositions for their
case against the government in early 2006.

“As with the Japanese internment, history will not look kindly upon the
Ashcroft raids,” said CCR attorney Rachel Meeropol. “This is just
the first step, though. To ensure that this never happens again, the former
Attorney General and his cronies – the architects of this policy – must also
be held accountable.”

The suit named as defendants then-Attorney General John Ashcroft, FBI Director
Robert Mueller, former INS Commissioner James Ziglar and officials at the Metropolitan
Detention Center in Brooklyn, where the plaintiffs were held.

Some of the abuse included beatings, repeated strip-searches and sleep deprivation.
The allegations of inhumane and degrading treatment have been substantiated
by two reports of the Justice Department’s Office of the Inspector General,
and several defendants in the case have recently been convicted on federal charges
of beatings and cover-ups of other prisoners around the same time period.