(AFP) – Dec 9, 2008
NEW YORK (AFP) — A Canadian man wrongly accused of terrorism and sent to be tortured in Syria was the victim of a high level US conspiracy, his lawyer told a court in New York.
The full 12-judge panel of the Second US Circuit Court of Appeals heard Maher Arar's lawyer outline accusations that top officials were behind the 2002 deportation of the Syrian-born Canadian software engineer.
"There was an intentional conspiracy to subject (Arar) to torture and there was an intentional conspiracy to keep him from having access to the courts," attorney David Cole said.
The appeal followed the same court's earlier decision to reject the lawsuit, with a three-judge panel bowing to government concerns that the case would endanger national security.
The re-hearing of the case puts a spotlight on President George W. Bush's practice of "extraordinary rendition," in which individuals suspected of links to terrorists or militants have been detained without charge and handed to governments known to make frequent use of torture.
Torture is banned in the United States, leading critics to dub rendition equivalent to "outsourcing torture."
Arar's nightmare began while in transit at JFK Airport in New York on his way back to Montreal from a family holiday in Tunisia on September 26, 2002.
Police apprehended him at passport control when his name appeared on a list of Al-Qaeda suspects -- apparently as a result of mistaken intelligence.
Following repeated interrogations he was informed he would not be allowed to enter the United States. After being given minimal access to his lawyer and relatives, he was then put on a private airplane and taken forcibly to Syria.
He spent 10 months there, much of it in a cell he describes as being the size of a grave. He says he was beaten frequently and did not see sunlight for six months.
"Daily life in that place was hell," he wrote on a website dedicated to his legal campaign.
In its earlier decision, the New York appeals court threw out the case after agreeing with the government that a trial would prejudice national security.
The court had also said that Arar disqualified himself from seeking legal review of his case because he had failed to act within the time allowed -- something his defense says was impossible because he was en route to Syria at the time and blocked from legal aid.
Canada's government has apologized to Arar, cleared his name and awarded him 10 million US dollars in compensation.
He remains banned from flying to the United States, however, and was not able to attend his own appeal in New York.
Yet the fact the appeals court convened in full indicated that the case is being taken seriously.
The panel submitted government lawyer Jonathan Cohn to aggressive questioning, including on his contention that "special factors," including security issues, made Arar's case inadmissible.
Judge Sonia Sotomayer asked Cohn whether "the specter of foreign policy, national security" gave the government "a license to torture anyone?"
"That is not our position," Cohn said.
Cohn asked the court not to rule on Arar and instead allow Congress to devise legislation dealing with such unusual circumstances.
"No one can dispute that this is an extraordinary case," Cohn said.
Speaking for Arar, Cole said that the court should decide on what amounted to an attempt by top officials to circumvent the US constitution.
"This was a case at the highest levels at the Justice Department and the FBI to get this guy to talk and when he wouldn't talk to send him to Syria," Cole said.
Also at issue is how much choice US officials had in dealing with an individual they say they thought had terrorist links and therefore did not want in the country.
The government lawyer said that it was not clear that Canada would have taken in Arar, who also has Syrian citizenship by birth, although no Syrian passport.
However, this was disputed by Arar's attorney, who said that "the record in fact reflects that Canada told the FBI they had no basis for denying him entry, because he's citizen."
In September, Canada's former top law enforcement officer, Royal Canadian Mounted Police commissioner Giuliano Zaccardelli, said that Canada had been expecting Arar to come home.
US officials "led to believe that (Arar) was going to be released and he was coming to Canada."
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