It's not often that an appellate court decision reflects so vividly what a country has become, but such is the case with yesterday's ruling by the Second Circuit Court of Appeals in Arar v. Ashcroft (.pdf).  Maher Arar is both a Canadian and Syrian citizen of Syrian descent.  A telecommunications engineer and graduate of Montreal's McGill University, he 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.  I've appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria.

In January, 2007, 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.  That was preceded by a full investigation by Canadian authorities and the public disclosure of a detailed report which concluded "categorically that there is no evidence to indicate that Mr. Arar has committed any offense or that his activities constituted a threat to the security of Canada."  By stark and very revealing contrast, the U.S. Government has never admitted any wrongdoing or even spoken publicly about what it did; to the contrary, it repeatedly insisted that courts were barred from examining the conduct of government officials because what we did to Arar involves "state secrets" and because courts should not interfere in the actions of the Executive where national security is involved.  What does that behavioral disparity between the two nations say about how "democratic," "accountable," and "open" the United States is?

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Yesterday, the Second Circuit -- by a vote of 7-4 --  agreed with the government and dismissed Arar's case in its entirety.  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 what was done to him.  Why?  Because "providing a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity of the rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns" (p. 39).  In other words, government officials are free to do anything they want in the national security context -- even violate the law and purposely cause someone to be tortured -- and courts should honor and defer to their actions by refusing to scrutinize them.  

This is what happens when the State declares a perpetual war. Very, very troubling.

Shouldn't we think about what that means?  All of these subsidiary, discrete battles are shaped by this larger truth.  We're a country that has been continuously at war for decades, insists it is currently at war now, and vows that it will wage war for years if not decades to come (Obama:  we'll be waging this war "a year from now, five years from now, and -- in all probability -- ten years from now").  Exactly as Madison said (and as Wills this week emphasized), as long as we're choosing to be that kind of a nation, then the crux of the Bush/Cheney approach will remain in place.  We can sand-paper away some of the harshest edges ("we're no longer going to drown people in order to extract confessions"); prettify some of what we're doing ("we're going to detain people with no charges based on implied statutory power rather than theories of inherent power"); and avoid making things worse ("we won't seek a new preventive detention law because we don't need one since we already can do that").  But no matter who we elect, the pervasive secrecy, essentially authoritarian character of the Executive, and rapid erosion of core liberties will continue as long as we remain committed to what Wills calls "the empire created by the National Security State."

Glenn Greenwald commenting on the Garry Wills article in my previous post.