Interesting about use of word "deported" -- the term removed is more legal and even the word deported is technically wrong for someone who was stopped at entry to USA.

Significant because I smell a Bivens (look it up) if named individuals can be identified as causing the "deportation".

If I ask you to explain it will I get a $300 bill?

Bloody lawyers.

$300 just for asking; the answer is twice that.

I'm so glad you posted something on this - am out of town and up to my neck at the moment, but may have some comments once I am back home. But in short, even if they were going to remove Arar from the U.S. based on the crap info they had, and without a credible fear hearing, it should by no means have been to Syria.

Matthew, I am also curious why you are wondering about the use of the term "deportation;" in my experience it's rare outside the legal commmunity for anyone to use the correct terminology. Myself, I am much more curious about why there appears to have been no credible fear interview.

Matthew, I am also curious why you are wondering about the use of the term "deportation;" in my experience it's rare outside the legal commmunity for anyone to use the correct terminology. Myself, I am much more curious about why there appears to have been no credible fear interview.

Actually I dont have any details and so I am wondering what happened at all. Given the lack of knowledge in the general press about the importance of the process for removing an "applicant for admission" (if he was that) I am wondering what he did go through.

Did they find some subterfuge/rationale to say he voluntarily withdrew his application for admission and actually was not removed? Etc. Just what did happen, and if he was denied due process, an individual officer or official could be made to pay (see Bivens), or possibly?

and my friends wonder why i'm squeemish about security checks and passenger manifests. all the more reason not to wear dark skin these days.

i haven't seen much about this through local media. you said it's playing pretty big in Canada, E. do you think there'll be any political blow-back?

and if there's political blowback, would that be against the Liberals who were in power in 2002 (at least I think they were)? Will heads roll?

Reminds me of the German case a lot, which happened under SPD.

Re blowback: since the commission is "inherited" from the previous Liberal govt, the Conservatives currently in power aren't exactly eating shit, but are stepping carefully regardless.

Due to findings that suggest the RCMP misled the Privy Council at key points, politicians of all stripes are piling on the RCMP and/or demanding resignation of the top dog. This includes the interim Liberal party leader (Foreign Minister at the time this all went down), who no doubt has an interest in deflecting blame to the bureaucratic levels.

Not that the blame is necessarily undeserved, but it does bring to mind the White House-Tenet-CIA relationship post 9/11. Political expediency.

As for the legal babble above, if details are required (and questions are posed in jargon-free language), I can do some research.

Of course, there is quite a bit of info in the report itself.

Did they find some subterfuge/rationale to say he voluntarily withdrew his application for admission and actually was not removed? Etc. Just what did happen, and if he was denied due process, an individual officer or official could be made to pay (see Bivens), or possibly?

If the former were the case, they should have removed him to the country he had just come from, or if that were not possible, to his country of citizenship. If he was a Canadian citizen, there was NO reason not to remove him to Canada. And there were plenty of reasons (Convention Againt Torture among them) not to remove them to Syria.

Will do some more poking around when I get home, possibly later tonight. It willl be difficult to figure out exactly what happened without DOS cooperation, though; I've yet to see a decent factual account of the course of events on Arar's arrival in the U.S. until his removal to Syria.

(E., "removal" is now the current umbrella term for the more familiar "deportation," and the older term "exclusion" which applied pre-1996 to people removed against their will from the U.S. before being officially admitted by an immigration officer. Then there is "volutary departure," which is agreeing to leave the U.S. within a given preiod after having been determined to be illegally present. To withdraw one's application for admission is what happens if an immigration officer suspects someone requesting entry to the U.S. of some kind of malfeasance, and if the officer exercises favorable discretion and allows you to leave without a hearing or otherwise kicking up a fuss, is a much smaller black strike on one's immigration record than an involuntary removal. Hope that makes sense.)

Forgot one; a credible fear interview is what is supposed to happen before ANYONE is involuntarily removed from the U.S. An immigration officer is supposed to ask whether the person has any reason to fear returning to the country he is about to be returned to (through an interpreter, if necessary). A Yes answer is supposed to initiate a hearing before an actual immigration judge, with all that implies (appeal rights, etc.)

I used deportation in the general layperson sense (expelling someone from a country), not as a legal definition.

Clearly what happened to Arar in the US wasn't in line with standard procedure or international law as you describe. That's the problem with extraordinary rendition. The reason he was sent to Syria had nothing to do with immigration and everything to do with national security concerns.

Some potentially helpful trivia for the legal wonks: Arar has dual Syrian-Canadian citizenship and he was arriving in NYC via Zurich (returning from vacation in Tunisia). The US order to remove him was based on the assertion that he was a member of al-Qaeda.

The extraordinary nature of these events is described in the report itself:

The DFAIT [Can. Dept of Foreign Affairs] officials considered these warning signs, but based on their past experience with individuals in “terrorism-related” cases and the information they had received, they did not believe that there was an imminent risk that Mr. Arar would be sent to Syria. Individuals in these types of cases had always been held for months. Moreover, the officials had never known the Americans to remove a Canadian citizen to a country other than Canada when the individual had requested to be sent to Canada and was travelling with Canadian documents, as was the case with Mr. Arar.

There are more details in the report itself, around page 30.

I used deportation in the general layperson sense (expelling someone from a country), not as a legal definition.

Sure, but I didn't know what sources you (or anyone else reading this) might have looked at, and there are some distinctions in the treatment of detainees depending on whether they have been formally admitted to the U.S. or not. (Also wanted to clarify Matthew's posts above.) None of these distinctions, of course, should have led to Arar being removed to Syria without a hearing. Will read the report - I tried, but I simply do not have the stomach for reading details of torture, so I'm glad you mentioned where the procedural stuff is.

True, it makes for rather unpleasant reading. Here are a few more passages that might be helpful (pp 29-30):

Finally, I note that, in its response, the RCMP provided information received from CSIS [Canadian Security Intelligence Service] that was subject to caveats without obtaining the consent of CSIS to do so. This was a breach of both the CSIS caveats and RCMP policy.

The RCMP’s third communication of note with American authorities during Mr. Arar’s detention in New York actually involved two phone calls between Corporal Rick Flewelling of CID [Can. Criminal Intelligence Directorate, I think] and an FBI agent, the first on October 4 and the second on October 5. During the second call, the FBI agent said that the United States did not have enough information to charge Mr. Arar and was looking to remove him. He indicated that Mr. Arar had asked to be sent to Canada, and Washington wanted to know whether the RCMP could charge him or refuse him entry to Canada. The corporal responded that there was not enough evidence to charge Mr. Arar in Canada and that it was likely that he could not be refused entry to Canada...

On October 7, 2002, the U.S. INS ordered that Mr. Arar be removed from the United States because he had been found to be a member of al-Qaeda. Much of the information relied upon to make the order was contained in an appendix that has not been disclosed publicly.

Assuming this statute relevant in this context, the removal to Syria could probably be justified in a general sense. (Subject to other issues of fear, torture etc.)

"Sec. 1537. Custody and release after removal hearing"

"(A) In general

The removal of an alien shall be to any country which the alien shall designate if such designation does not, in the judgment of the Attorney General, in consultation with the Secretary of State, impair the obligation of the United States under any treaty (including a treaty pertaining to extradition) or otherwise adversely affect the foreign policy of the United States.

(B) Alternate countries

If . . . the Attorney General, in consultation with the Secretary of State, determines that removal of the alien to the country so designated [by the alien] would . . . adversely affect United States foreign policy, the Attorney General shall cause the alien to be removed to any country willing to receive such alien."

_______
You could make a facial case for good faith, assuming belief in his al-Qaeda-hood was real and it probably was, in the country to which removed, i.e. no statutes were violated in the mere selection of Syria rather than Canada or other designated country. Other issues of fear etc. can enter but choosing not to deport to Canada, even if Arar chose to, has a basis in statute, IF this is applicable in context.

Other issues of fear etc. can enter but choosing not to deport to Canada, even if Arar chose to, has a basis in statute, IF this is applicable in context.

Even so, that's one hell of an "if," especially considering that the U.S. acknowledges that Syrian authorities engage in torture.

P.S. Matthew, the section cited above discusses treatment of detainees after a removal hearing; as far as I understand, Mr. Arar never got a removal hearing as such, much less was there any determination that removing him to Canada would adversely affect U.S. foreign policy.

Well first, there were indications from the INS that Arar's case had been escalated to the highest level (perhaps State/Attorney General?). Second, it appears that Arar retained an American lawyer, but aside from talking to the INS, it's not clear if she participated in a hearing (naturally she refused to testify for this inquiry). The report suggests that she did not know US officials were going to remove Arar to Syria.

Finally, I checked the timeline again and noticed this case (Bivens?):

Feb 16, 2006 - A U.S. federal judge dismisses Maher Arar's lawsuit against American officials. Judge David Trager says he can't interfere in a case involving crucial national security issues. "The need for much secrecy can hardly be doubted," he writes.

[link]

Re: adversely affecting US foreign policy, I can see why US officials would be reluctant to release a suspected al-Qaeda terrorist into a country where he couldn't be charged (and as such would be released).

Goddamn, one of you law geeks needs to read that district court link I just posted and write something up. Tons of procedural detail.

Who ya calling a law geek, IT nerd?

Anyway, yes, this case precludes Bivens on national security grounds.

AAAAAAAAAAAAAAAAAARRRRRRRRRrrrrrrrrrrgggggggggggghhhhhhhhhhhhhhhhhh.

It strains otherwise to protect the right to bring such a suit in an immigration context, but bows out on national security. Taken to not-so-absurd levels, it could be construed as saying you have constitutional right not be abused and a right to sue on that, but only to the extent it may not embarass another country's government. In fact, it says one reason not to allow it, is that a lawsuit may embarrass Canada if it showed its officials lied!

AAAAAAAAAAAAAAAAAArrrrrrrrrrrrrrrrgggggggggghhhhhhhhhhhhhhhhhhhh!

Empire logic.

In lieu of $600, I promise to buy you a coffee and pastry of your choice.

"In lieu of $600, I promise to buy you a coffee and pastry of your choice."

Dark coffee, like the dark night of tyranny that hath befallen us. Dark, like the atavistic obscurity of a journey into the maelstrom of unrecompensed violation. Black like the prison cells of torture and depair, of degradation and violation.

Pastry, oh . . . something fruity.

I just got home and glanced through the link from the District Court; will look more later.

I almost wish I hadn't; INS fuckers. How can they, with a straight face, insist that Arar's removal to Syria was consistent with the COnvention Against Torture, when the State Department Country Report on human rights practices covering that very same year clearly states that the Syrian government was known to torture people? Excerpt:

"c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

Despite the existence of constitutional provisions and several Penal Code penalties for abusers, there was credible evidence that security forces continued to use torture, although to a lesser extent than in previous years. Former prisoners and detainees report that torture methods include administering electrical shocks; pulling out fingernails; forcing objects into the rectum; beating, sometimes while the victim is suspended from the ceiling; hyperextending the spine; and using a chair that bends backwards to asphyxiate the victim or fracture the victim's spine. In September Amnesty International published a report claiming that authorities at Tadmur Prison regularly torture prisoners, or force prisoners to torture one another. Although torture occurs in prisons, torture is most likely to occur while detainees are being held at one of the many detention centers run by the various security services throughout the country, and particularly while the authorities are attempting to extract a confession or information regarding an alleged crime or alleged accomplices.

The Government has denied that it uses torture and claims that it would prosecute anyone believed guilty of using excessive force or physical abuse. Past victims of torture have identified the officials who beat them, up to the level of brigadier general. If allegations of excessive force or physical abuse are to be made in court, the plaintiff is required to initiate his own civil suit against the alleged abuser. Courts do not order medical examinations for defendants who claim that they were tortured (see Section 1.e.)...

Prison conditions vary but generally are poor and do not meet international standards for health and sanitation. Facilities for political or national security prisoners generally are worse than those for common criminals...The Government does not permit independent monitoring of prison or detention center conditions...Detainees have no legal redress for false arrest. Security forces often do not provide detainees' families with information regarding their welfare or location while in detention. Consequently many persons who have disappeared in past years are believed to be in long-term detention without charge or possibly to have died in detention (see Section 1.b.). Many detainees brought to trial have been held incommunicado for years, and their trials often have been unfair (see Section 1.e.). There were reliable reports that the Government did not notify foreign governments when their citizens were arrested or detained."

It's amazing that the guy is able to contain his anger even now when speaking about his experiences, or in fact that he is able to function at all as a human being.

Are any of you familiar at all with Canadian civil law? Could Mr Arar bring an action against the RCMP, and do you have a feeling about how it would turn out?

I'd have to ask around. Of course, he's already received a formal apology from the House, and may yet be compensated by the government based on Commission findings alone.