In the face of a dissent by four of the Second Circuit judges arguing that the ruling “risks a government that can interpret the law to suit its own ends, without scrutiny”, the majority ruling stated that “it is for the executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress – and not for us judges – to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation”.
The right to an effective remedy is recognised in all major international and regional human rights treaties. The UN Human Rights Committee has affirmed that this right can never be derogated from, even during times of national emergency. International law requires that remedies not only be available in law, but accessible and effective in practice. Victims are entitled among other things to equal and effective access to justice (including “effective judicial remedy”) regardless of who may ultimately be responsible for the violation; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms.23Full and effective reparation includes restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
In its May 2010 petition to the US Supreme Court urging it not to take the Arar case, the Department of Justice argued that the lawsuit implicates “significant national security concerns”, and judicial intervention would “call upon the courts to review sensitive intergovernmental communications, second-guess whether Syrian officials were credible enough for United States officials to rely on them, and assess the credibility of any information provided by foreign officials concerning [Maher Arar’s] likely treatment in Syria, as well as the motives and sincerity of the United States officials who concluded that [he] could be removed to Syria consistent with Article 3 of the [UN Convention against Torture]”.24The Second Circuit had properly concluded, the government brief went on, that this litigation would interfere with foreign relations and the government’s ability to ensure national security.
Its litigation strategy to seek to block judicial remedy for human rights violations endured by such detainees leaves the impression that the protection of executive power and the promotion of immunity from real accountability to victims of human rights violations are being prioritized, just as they were under the previous administration. While far from satisfactory, now that it has successfully blocked judicial remedy for Maher Arar, there can no longer be any excuse for the total failure of US administrative and legislative authorities to take effective measures to meet its international obligations to victims of human rights violations for which the USA bears responsibility.25The current situation, with Maher Arar remaining entirely without effective remedy or reparation from any US authority, is flagrantly inconsistent with, and a continuing violation of, US human rights obligations.26