Guido Calabresi, the former Yale Law dean and a man widely viewed as the most illustrious living member of the Second Circuit Court of Appeals.

By Scott Horton

“When the history of this distinguished court is written, today’s majority decision will be viewed with dismay,” writes Guido Calabresi, the former Yale Law dean and a man widely viewed as the most illustrious living member of the Second Circuit Court of Appeals.

He is lodging his dissent in a 7-4 decision of the en banc court concluding that a Canadian software engineer named Maher Arar has no right to sue government officials.

What has Calabresi so worked up?

This is “hardly an ordinary immigration case,” as the majority concedes.

Arar was apprehended in transit from a Mediterranean vacation to his home in Ottawa at the JFK airport.

U.S. agents acting on a tip from the Canadian mounties–that turned out to be completely incorrect–seized Arar and held him for several days. Understandably, they were not going to let Arar into the country.

This was fine with Arar, who just wanted to go home to Canada. But because Arar was born in Syria, Deputy Attorney General Larry Thompson, acting on the advice of two political appointees serving in the Attorney General’s office, signed an order to send him back to Syria.

That decision was taken after an immigration review panel had concluded, with what turned out to be perfect accuracy, that Arar would be tortured if sent there.

(Perhaps not coincidentally, Thompson resigned and departed shortly after learning the full story behind the Arar case.)

Arar was turned over to the Syrians with a list of questions, and he was indeed brutally tortured for a year—to no point, of course, since Arar had no connections with any terrorist organizations.

The Canadian Government, recognizing that its wrongdoing led indirectly to Arar’s mistreatment, conducted a comprehensive investigation, fully acknowledged its mistakes in a voluminous report, issued a formal letter of apology, and awarded Arar $11.5 million (Canadian) in compensation and reimbursement of legal costs.

And the United States?

. . .

Calabresi generously accepts the suggestion that the Second Circuit acted out of concern for national security. Still, he delivers an appropriate lashing. The majority, Calabresi charges, “engaged in extraordinary judicial activism.” Its activism was aimed at extricating political actors from a precarious predicament and keeping the door firmly shut on what may well be the darkest chapter in the entire history of the Justice Department. In so doing, the court’s majority delivered an example of timidity in the face of government misconduct the likes of which have not been seen since the darkest days of the Cold War. When the history of the Second Circuit is written, the Arar decision will have a prominent place. It offers all the historical foresight of Dred Scott, in which the Court rallied to the cause of slavery, and all the commitment to constitutional principle of the Slaughter-House Cases, in which the Fourteenth Amendment was eviscerated. The Court that once affirmed that those who torture are the “enemies of all mankind” now tells us that U.S. government officials can torture without worry, because the security of our state might some day depend upon it.

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Tags: Canada, Canadian government, Court of Appeals, Guido Calabresi, JFK, Maher Ara, Maher Arar, RCMP, Syria, Torture, United States

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