Early on the morning of December 9, 2008, I flew from Boston to New York City to be present at the U.S. Court of Appeals Second Circuit’s rehearing of Arar v. Ashcroft. The trial was scheduled for 2:00 p.m., but anticipating the courtroom would be packed, I felt it would be prudent to arrive by 8:30 a.m.
Six months earlier a Second Circuit panel of three judges had declined to hear Maher Arar’s claims on the grounds – put forward by Mr.Ashcroft’s defense – that doing so would jeopardize national security. Then suddenly, out of the blue, this very same court – but this time the full panel of 12 judges – had decided en banc and sua sponte (collectively and on its own) to reconsider the case.
The very rarity of such a turn-about had filled me with hope. Would the court now address the terrifying moral gravity of what Maher Arar had suffered? Would the legal recognition of his injuries in turn provide the pivot that would allow the rule of law, so long absent in the United States, to orbit back into place?
Throughout that winter morning the courtroom was nearly empty but by 2:00 p.m. there was breathing room only. All twelve judges were present, eleven in person and the twelfth (Sonia Sotomayor, who was not yet part of the Supreme Court), on a large Skype screen off to the side. The benches for the assembled audience were packed, all of us sitting shoulder to shoulder. Mr. Arar, no doubt reluctant ever again to set foot on U.S. soil, was not himself present.
When Mr. Arar’s lawyer entered the room, I felt surprise, elation, and sorrow. Surprise because (though I had read in advance the briefs from both sides) it had not crossed my mind that the lawyer would be someone known to me; but here was David Cole, the person who seven years earlier sounded the first alarm about a remote place called Guantanamo. Elation, because I knew he would answer the judges’ rapid-fire cross-questioning with clarity, brilliance, and courage. Sorrow because it meant that here today – as on so many days throughout the post 9/11 period – I was witnessing how much the collective fight against injustice depended on the action of a single person willing to stand up again and again and again.
During the course of the afternoon, Mr. Cole’s three legal claims – that Mr. Ashcroft and his co-defendants had contributed to acts of torture, conspiracy to torture, and obstruction of access to the courts – were not even denied by the defense lawyers. How could they be, given the stark record of events that had taken place?
When, nearly a year later, the Second Circuit announced its decision to decline to hear the case because of “state secrets,” it was clear that the Arar case would not be the pivotal recovery from the country’s descent into morally repugnant acts. When the Supreme Court the following June declined to hear the appeal, all chance of remedy seemed gone.
But Amnesty International’s present petition campaign means the subject will not go away, that the country will not be silenced. It means that one-by-one each of us has to step forward and carry out reparative acts that our judicial branch ought to have carried out on the population’s behalf. It is magnanimous on Mr. Arar’s part to agree to let us perform this act, however fragile and minimal it may at this moment appear.
We have to carry out this act of direct apology and dissent, whether or not the executive branch ever openly acknowledges the egregious acts of wrongdoing, Congress renews its request to the Attorney General for a special inquiry, or the judiciary awakens to its obligations to acknowledge and redress what has taken place.
Is that awaking even possible? When the Second Circuit declined (for a second time) to hear the case, four judges dissented in language that will echo for a long time. Their opinions should be read on any day when one loses heart.
Judge Barrington Daniel Parker Jr. re-stated the three central claims of torture, conspiracy to torture, and obstruction of access to the courts. He recited the Convention Against Torture: “No exceptional circumstances whatsoever, whether a state of war or a threat of war. . . or any other public emergency, may be invoked as a justification of torture.” He described the Court’s majority decision as a blow to the judicial branch since it was not simply “deferential” to, but lying “supine” at the feet of, the Executive branch.
Judge Guido Calabresi described Maher Arar as a person who “was totally innocent and made to suffer excruciatingly” from acts that are “repugnant” but acts that the court, by refusing to hear the case, wrongly indicated were “not constitutionally repugnant.” When the history of the Court is written, he predicted, “today’s majority decision will be viewed with dismay.” What had been asked of the Court was self-evident: “And more obvious still is that a civilized polity, when it errs, admits it and seeks to give redress.”
The words of Judge Parker and Judge Calabresi stay in my mind, but the sentences I repeat to myself each day are Amnesty International’s: “How many people does it take to stop torture? One. You.”
We need to respond to Amnesty’s call. We need now to come forward one by one and stand together, shoulder to shoulder.