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US: "state secrets" and executive immunity « Previous | |Next »
November 5, 2009

I watched Michael Moore's documentary film Fahrenheit 9/11 last night. This is a dystopian view of the United States under the Bush Administration and is controversial because it is deeply critical of the Bush administration and its conduct of the Iraq war and the you're either with us or against us" model of argumentation of the conservatives.

So many conservatives have been willing to give the US government a pass on its awful treatment of prisoners taken during the "war on terror", and were even happy to support such treatment when meted out to American citizens. An example of "awful treatment" is a Canadian software engineer named Maher Arar. Glenn Greenward says that Arar was:

A telecommunications engineer and graduate of Montreal's McGill University, [who] has lived in Canada since he's 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was "rendered" -- despite his pleas that he would be tortured -- to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.

After a full investigation by Canadian authorities and the public disclosure of a detailed report the Canadian Prime Minister publicly apologized to Arar for the role Canada played in these events and the Canadian government paid him $9 million in compensation. In contrast, the US under the Bush administration refused to acknowledge ever having made any mistakes and blocked any inquiries in the name of state secrets.

The Second Circuit Court of Appeals in Arar v. Ashcroft concluded that Maher Arar has no right to sue US government officials. It held that even if the government violated Arar's Constitutional rights as well as statutes banning participation in torture, he still has no right to sue for the harm that was done to him.

National security is the justification:---U.S. government officials can torture without worry, because the security of the US might some day depend upon it. The Executive can use secrecy and national security claims to shield itself from the rule of law, even when it's accused of torture and war crimes.

The Court has become the handmaiden of the Executive when it should be defending the constitution and the rule of law and a structural check on the power of the Executive.

| Posted by Gary Sauer-Thompson at 6:05 AM |