Federal judge complicity

The Supreme Court is asked to decide if government officials can be held accountable for torturing a US citizen

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Two of the most under-discussed afflictions in American political life are inter-related: (1) the heinous, inhumane treatment of prisoners on American soil (often, though certainly not exclusively, Muslim political prisoners), and (2) the virtually complete abdication by subservient federal courts in the post-9/11 era of their duty to hold Executive Branch officials accountable for unconstitutional and otherwise illegal acts in the War on Terror context. Those two disgraceful American trends are vividly illustrated by juxtaposing two events, which I happened to be reminded of yesterday while looking for something else; first, from a January, 27, 2007, article in The Washington Post:

The prime minister of Canada apologized Friday to Maher Arar and agreed to give $9 million in compensation to the Canadian Arab, who was spirited by U.S. agents to Syria and tortured there after being falsely named as a terrorism suspect.

Arar, 36, a former computer engineer who was detained while changing planes at a New York airport in 2002 and imprisoned in a Syrian dungeon for 10 months, said after the announcement that he “feels proud as a Canadian”. . . .

“We cannot go back and fix the injustice that occurred to Mr. Arar,” Prime Minister Stephen Harper said in issuing the formal apology in Ottawa. “However, we can make changes to lessen the likelihood that something like this will ever happen again.” The head of the Royal Canadian Mounted Police resigned over the affair, and the government has pledged to increase oversight of its intelligence agencies. . . .

The financial compensation settles a claim Arar made against the government for having provided exaggerated and false information to the United States that identified him as a terrorist suspect. Harper said the amount “is within this government’s realistic assessment of what Mr. Arar would have won in a lawsuit.” His attorneys also were awarded about $870,000 in legal fees.

“The evidence is clear that Mr. Arar has been treated unjustly. He should not be on a watch list,” Harper said.

And then this Christian Science Monitor article from June 14, 2010:



A Canadian citizen has lost his bid to hold US officials accountable for their decision to label him an Al Qaeda suspect and deport him to Syria where he was held without charge for a year and allegedly tortured during US-directed interrogations.

The US Supreme Court on Monday declined to take up the case of Maher Arar, who was born in Syria but had lived in Canada since his teens. . . .

Arar filed a lawsuit in the US seeking to hold American officials accountable for their actions. . . . To date, the US government position on Arar has been to insist that Arar has no legal right to seek to hold American officials accountable for his ordeal.

In denying review of Arar’s case, the high court lets stand a 7 to 4 ruling by the full Second US Circuit Court of Appeals in New York. That court found that because of “special factors” involving national security, Arar’s lawsuit should be dismissed.

The reason that’s so striking even several years later is it shows just how corruptly deferential American federal courts are to the Executive Branch when it comes to Muslims. One of the most amazing statistics of the last decade: not a single War on Terror victim — not one, whether foreign or American — has been permitted to proceed in an American court in an effort to obtain compensation for illegal treatment by the U.S. Government; instead, American courts have unanimously dismissed those cases at the outset, without reaching their substance. Even when everyone knows and admits that the U.S. Government abducted a totally innocent person and shipped him off to Syria to be tortured, as is true for Arar, American federal judges shut the courthouse door in his face, accepting the claims of the Bush and Obama DOJs that to allow the victim to obtain justice for what was done to him would be to risk the disclosure of vital “state secrets.” They accepted this Kafkaesque secrecy claim even after the Government of Canada published to the world a comprehensive report detailing what happened to Arar.

This was but one of the most extreme expressions of this post-9/11 trend of federal court abdication when it comes to Muslims. Time and again, federal judges have exhibited severe amounts of deference and bias when faced with Muslim defendants accused of some connection to Terrorism. For that reason, to be Muslim and accused of Terrorism-related crimes by the U.S. Government — no matter how tenuous the connection is, how dubious the allegations are, how devoid the charges are of any violent acts, how entrapped the defendant was by the FBI — has become a virtual guarantor of being convicted and sentenced to decades in prison: and not just any prison, but inhumane dungeons like the SuperMax at Florence, Colorado or the CMU unit at Terre Haute, Indiana (aka “GITMO North“): among the worst prison hell-holes ever designed.

Indeed, even Guantanamo military commissions — once scorned as due-process-free zones that would reflexively churn out convictions — have treated Muslim defendants accused of Terrorism links far better than U.S. federal courts have, as advocates of civilian trials, somewhat perversely, often point out. Just ponder that: if you’re a Muslim, even an American Muslim, accused of some serious crime relating to Terrorism, you’re more likely to receive a fair trial — a chance for acquittal on some charges — if you face a U.S. military tribunal than an American federal court. By stark contrast, look at what federal judges are willing to do when white non-Muslims face dubious, speech-based charges of Terrorism: the court will dismiss the entire indictment on the (correct) ground that the accused Terrorists have the First Amendment right even to advocate violence against the U.S. Government, an affirmation of core Constitutional principles which one almost never sees a federal judge brave enough to protect in the case of a Muslim facing similarly defective accusations.

Federal judges are given life tenure in large part to enable them to administer justice without regard to political considerations, but, with rare exception (ones promptly “fixed” on appeal), they have been driven by the same political anti-Muslim biases that have infected most other realms of American political life. Indeed, of all the American institutions that have shamefully contributed to the grotesque War on Terror excesses and the Islamaphobia which fuels them — the Congress, the Executive Branch, the American media, both political parties, the U.S. citizenry — none has been as obsequious or as craven as federal judges. Designed to be the Apolitical Check of Last Resort on executive overreach and vengeance-fueled lawlessness, they have instead become the eager engines of those syndromes.

In terms of gross travesties, it’s difficult to top the federal court treatment of Maher Arar. But the judicial treatment of U.S. citizen Jose Padilla comes close. Padilla was detained in 2002 and publicly accused by Attorney General John Ashcroft of being a “Dirty Bomber.” But rather than accuse him of any crimes in a court, the Bush administration declared him to be an “enemy combatant,” put him in a military brig in South Carolina for the next two-and-a-half years without charges, prevented him from any contact with the outside world (including even a lawyer), and subjected him to severe torture. When they finally indicted him almost three years later — only in order to prevent the U.S. Supreme Court from ruling on whether the President is permitted to imprison U.S. citizens on American soil without charges — they did not charge him with anything having to do with a “dirty bomb,” but instead filed glaringly trumped-up charges based almost entirely on a membership application he filled out to join Al Qaeda (he was not charged with any plots to engage in violence). He was convicted and sentenced to 17 years in prison on top of the 5 years he was already encaged, only to have the Obama DOJ successfully appeal and convince an appellate court that the sentence was too lenient.

For the last several years, Padilla, represented by the ACLU, has been attempting to hold accountable six Bush officials responsible for his torture by suing them for violations of his Constitutional rights. But, needless to say, the Obama DOJ — led by the President who, when he announced his candidacy, proclaimed that “the era of Scooter Libby justice will be over” — has insisted that, unless Congress explicitly decrees otherwise, these officials are immune from lawsuits even when they knowingly authorize the torture of an American citizen on U.S. soil. And federal courts — also needless to say — have thus far accepted that claim and barred Padilla from suing. Today, the ACLU filed a brief asking the U.S. Supreme Court to review these dismissals, and it’s worth highlight a couple parts of that brief. Here, for instance, is the question which the ACLU is asking the Supreme Court to answer:

In what kind of country is that even a question? Even more so, in what kind of country do courts answer that question in the negative, as two separate American courts thus far have? As the ACLU explained, it is literally difficult to imagine a more extreme expression of full-scale immunity for government officials than shielding them even when they engage in conduct this patently illegal:

When it comes to shielding grave War on Terror crimes from all accountability, most critics have focused — rightfully so — on President Obama’s decree that even Bush-era torturers should not be subjected to criminal investigation. But that’s been only one of the many ways that the Obama administration has entrenched the consummately dangerous principle that even the most notorious crimes are beyond the reach of the law when committed by high-level government officials. But none of those ignominious efforts would succeed if the U.S. federal judiciary had even a fraction of the courage and integrity which the Founders envisioned life-tenured judges would exercise.

The central role played by federal judges in this full-on assault on legal equality and the Constitution when it comes to Muslim litigants and the War on Terror is often neglected. That’s because lawyers are in the best position to tell the story, but are often prevented — by their need to continue practicing before these judges and by formal disciplinary constraints – from publicizing the bad behavior of judges. Those factors, by design, operate to shield federal judges from scrutiny and critique. But no history of anti-Muslim hysteria, bigotry and legal oppression in the War on Terror will be complete without including the key enabling role they have played.

Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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