After Arar, What Now?

If justice for the wrongs of the Bush administration entails a separation of the past from the present and future, and the creation of a national security legal framework that is bolstered by consensus, then perhaps the denial of cert for Maher Arar's suit against John Ashcroft for allegedly ordering his rendition to Syria is no big deal. Legally, Arar faced a body of precedent that would argue against the High Court's second guessing the type of facts that he's been able to marshal.

But it is fairly clear that Arar was unjustly harmed by our government and its policies, even if he might not a complete innocent. The government -- Obama's government -- insists he is dangerous but won't tell anyone why. They invoked the State Secrets Privilege in 2004, insisting that the reason for Canada's involvement in the rendition and the factors that led the U.S. to send Arar to Syria were themselves so sensitive that not even the court's well-established procedures for protecting classified information would suffice.

Late last year, an appeals court acknowledged that the government can compensate or recognize victims of its own policies, but that the court lacked the ability to do so because the matter involved the protection of national security information. Congress or the executive branch could do what they wanted. 

If justice isn't whole without redress and acknowledgment of past wrongs, then the onus is on the Obama Administration to explain why Arar cannot have his day in court, or cannot at least have his claims officially acknowledged by the government that was complicit in his torture. Congress is, to say the least, unlikely to say anything.

Arar said today that the Royal Canadian Mounted Police was investigating Canadian and U.S. officials who were responsible for his rendition to Syria, so there may well be (in Canada) some sort of public cognizance.