Torture condoned by US court

[Dardedar]

DAR
For a moment I thought I was writing a shocking headline there, then I realized the sad thing is, I really wasn't. I just have a few moments this morning but this story is amazing. I am not sure if this fellow has any other recourse available to him.

***
Barbarian Nation: The Torturers Win

From the Seattle Post-Intelligencer:

A federal judge has tossed out a civil rights lawsuit filed by a Syrian-born Canadian man who claimed U.S. counterterrorism officials deported him so he could be tortured in Syria.

Maher Arar had sued the officials in 2004 in what was believed to be the first case challenging extraordinary rendition - the policy of transferring foreign terror suspects to third countries without court approval.

U.S. District Judge David G. Trager rejected arguments that Arar was protected by the Torture Victim Prevention Act, which allows U.S. courts to assess damages for human rights abuses committed abroad.

Trager said that as a non-citizen, Arar couldn't demonstrate that he has a viable cause of action under that statute.

Citing "the national security and foreign policy considerations at stake," the judge said Arar had no grounds in a U.S. court to claim his constitutional right to due process was violated.

...

Justice Department officials were pleased with the judge's ruling, spokesman Charles Miller said.

Attorneys for the Center for Constitutional Rights, which filed the lawsuit on Arar's behalf, said the ruling set a disturbing precedent.

"To allow the Bush administration to evade accountability and continue to hide behind a smoke screen of 'national security' is to do grave and irreparable damage to the Constitution and the guarantee of human rights that people in this country could once be proud of," attorney Maria LaHood said.

Bob Herbert, "The Torturers Win" (fair use for educational purposes):

Terrible things were done to Maher Arar, and his extreme suffering was set in motion by the United States government. With the awful facts of his case carefully documented, he tried to sue for damages. But last week a federal judge waved the facts aside and told Mr. Arar, in effect, to get lost.

We're in a new world now and the all-powerful U.S. government apparently has free rein to ruin innocent lives without even a nod in the direction of due process or fair play. Mr. Arar, a Canadian citizen who, according to all evidence, has led an exemplary life, was seized and shackled by U.S.authorities at Kennedy Airport in 2002, and then shipped off to Syria, his native country, where he was held in a dungeon for the better part of a year. He was tormented physically and psychologically, and at times tortured.

The underground cell was tiny, about the size of a grave. ...

Mr. Arar's captors beat him savagely with an electrical cable. He was allowed to bathe in cold water once a week. He lost 40 pounds while in captivity.

This is a quintessential example of the reprehensible practice of extraordinary rendition, in which the U.S. government kidnaps individuals ­presumably terror suspects ­ and sends them off to regimes that are skilled in the fine art of torture. In terms of vile behavior, rendition stands shoulder to shoulder with contract killing.

If the United States is going to torture people, we might as well do it ourselves. Outsourcing torture does not make it any more acceptable.

Mr. Arar's case became a world-class embarrassment when even Syria's torture professionals could elicit no evidence that he was in any way involved in terrorism. After 10 months, he was released. No charges were ever filed against him.

...

In a ruling that basically gave the green light to government barbarism, U.S. District Judge David Trager dismissed Mr. Arar's lawsuit last Thursday. Judge Trager wrote in his opinion that "Arar's claim that he faced a likelihood of torture in Syria is supported by U.S. State Department reports on Syria's human rights practices."

But in dismissing the suit, he said that the foreign policy and national security issues raised by the government were "compelling" and that such matters were the purview of the executive branch and Congress, not the courts.

He also said that "the need for secrecy can hardly be doubted."

Under that reasoning, of course, the government could literally get away with murder. With its bad actions cloaked in court-sanctioned secrecy, no one would be the wiser.

As an example of the kind of foreign policy problems that might arise if Mr. Arar were given his day in court, Judge Trager wrote: "One need not have much imagination to contemplate the negative effect on our relations with Canada if discovery were to proceed in this case and were it to turn out that certain high Canadian officials had, despite public denials, acquiesced in Arar's removal to Syria."

Oh yes, by all means, we need the federal courts to fully protect the right of public officials to lie to their constituents.

"It's a shocking decision," said Michael Ratner, president of the Center for Constitutional Rights. "It's really saying that an individual who is sent overseas for the purpose of being tortured has no claim in a U.S. court."

If kidnapping and torturing an innocent man is O.K., what's not O.K.?

This is the "democracy" and "freedom" that the United States seeks to impose on other nations by means of military force, bombing, death and devastation, even on nations that represent no threat to us.

And the defenders of this administration and of these policies still wonder "why they hate us"? Here's a simple clue for those who insist on such massive denial even at this late date: it's not because of "who we are." It's because of what we do. That is much more than sufficient reason.

more here

[/url]

[Savonarola]

Not that I think this is good, but I think the judge wasn't out of line. In my limited understanding of the law, I think he made the correct legal decision. Fortunately, he pointed out the bit about intelligence suggesting that Syria did/does indeed torture captives, which I think he should have emphasized more. Still, the "excuse" of national security is typical and predictable, however vacuous it may be.

As you pointed out, Darrel, I don't think anyone's really surprised. And that's what's sad.

My question is: It may be legal in our country to ship an alien off to be tortured, but is it against international law? I would hope so, and I'm not just saying that in the hope that our military officials get the discipline they deserve.

[Barbara Fitzpatrick]

"It's not who they are, it's what they do" is what I've been telling Maddox & Co whenever they accuse me of Bushhate or Cheneyhate. One of these days, if we are very lucky, some of those judges will go back and read the Bill of Rights. Those amendments specifically state what the government can and cannot do - there's nothing in there saying the government can't do it to a specific group of people, but can to anyone else. The founders wrote it that way on purpose. We are a nation of immigrants and wanted to protect the rights of future as well as present citizens - too bad the inheritors of that beautiful framework are so determined to destroy it.

[Doug]

One of these days, if we are very lucky, some of those judges will go back and read the Bill of Rights.

DOUG
I don't know about judges, but conservatives have read the Bill of Rights, even the whole Constitution.

And they hate it.

[Hogeye]

"Disappearing" foreigners has a long and distinguished history under the Con. Hell, the ink wasn't even dry when John Adams and cronies rammed through the Alien and Sedition Act. Back then, there were some checks and balances which ameliorated it - people were as well armed as the government and states could nullify and probably seceed. Jefferson and Madison "wrote the book" on nullification with their Virginia and Kentucky. Ironically, when Jefferson went bad and became president, his embargo caused some northern states to nullify. (Cf: Hartford Convention). It's possible these yankee trading states would have seceeded had the war of 1812 lasted a little longer.

[Barbara Fitzpatrick]

Hogeye - the ink was dry - Adams wasn't president until 1797 - no, that wasn't one of our shining hours. (And while W would love it if the sedition act was still in force - since it made it illegal - 2 years prison on conviction - to say or write anything against the president, it is legally gone. Unfortunately, the alien naturalization act is still in force.) However, the "checks and balances" wasn't that the populace was armed, but the other party getting into power. The populace (other than the wealthy) got armed by joining the militia - guns were very expensive in those days - and the army was used to put down revolts like the "Whiskey Rebellion" when the hillbillies of the time decided to strenuously object to taxes on corn squeezin's when corn wasn't taxed. The threat of secession came from MA if the U.S. DIDN'T go to war with Britain in 1812, not because we did (money again, Boston merchants were losing ships, cargo, and sailors to the British - an unpleasantness the Brits promised to quit doing, but that promise crossed the declaration of war on the way). Another less than shining moment of our history was the Japanese Internments in the 1940s - the boys were drafted out of those camps - talk about insult to injury - but we have done a few things since then to repair that damage.

The United States have always had their low points, but they also have had some high points (universal suffrage, at least under law, for example). Churchill said democarcy is a lousy form of government - until you compare it to everything else. The balancing act of governing the peoples of very industrial and very rural and everything inbetween areas/states is very tricky. The results are usually not fair to everyone at any given time, but if we work at it, we can make it fair to everyone at least some of the time - and make sure it isn't permanently (or terminally) unfair to any specific group ever.

[Savonarola]

I would just like to take this opportunity to thank Barbara for repeatedly sharing with us her impressive knowledge of history, both here and on NWAP.

[Hogeye]

The populace (other than the wealthy) got armed by joining the militia...

Right; people and organizations other than the central government had weapons. This was a counter-power to the State.

The army was used to put down revolts like the "Whiskey Rebellion" when the hillbillies of the time decided to strenuously object to taxes on corn squeezin's when corn wasn't taxed.

Here I think you might look a little deeper than the "court historian" line.

The main distortion of the Official View of the Whiskey Rebellion was its alleged confinement to four counties of western Pennsylvania. From recent research, we now know that no one paid the tax on whiskey throughout the American "back-country": that is, the frontier areas of Maryland, Virginia, North and South Carolina, Georgia, and the entire state of Kentucky.

President Washington and Secretary Hamilton chose to make a fuss about Western Pennsylvania precisely because in that region there was cadre of wealthy officials who were willing to collect taxes. Such a cadre did not even exist in the other areas of the American frontier; there was no fuss or violence against tax collectors in Kentucky and the rest of the back-country because there was no one willing to be a tax collector.

The whiskey tax was particularly hated in the back-country because whisky production and distilling were widespread; whiskey was not only a home product for most farmers, it was often used as a money, as a medium of exchange for transactions. Furthermore, in keeping with Hamilton's program, the tax bore more heavily on the smaller distilleries. As a result, many large distilleries supported the tax as a means of crippling their smaller and more numerous competitors.

Western Pennsylvania, then, was only the tip of the iceberg. The point is that, in all the other back-country areas, the whiskey tax was never paid. Opposition to the federal excise tax program was one of the causes of the emerging Democrat-Republican Party, and of the Jeffersonian "Revolution" of 1800. Indeed, one of the accomplishments of the first Jefferson term as president was to repeal the entire Federalist excise tax program. In Kentucky, whiskey tax delinquents only paid up when it was clear that the tax itself was going to be repealed.

Rather than the whiskey tax rebellion being localized and swiftly put down, the true story turns out to be very different. The entire American back-country was gripped by a non-violent, civil disobedient refusal to pay the hated tax on whiskey. No local juries could be found to convict tax delinquents. The Whiskey Rebellion was actually widespread and successful, for it eventually forced the federal government to repeal the excise tax. - Rothbard, The Whiskey Rebellion

The threat of secession came from MA if the U.S. DIDN'T go to war with Britain in 1812, not because we did...

No, no, no, you have it backwards here. The Harford convention wanted to "intervene" (i.e. nullify) Jefferson's embargo. They wanted to trade despite the possibility of entailed sailors. The first plank of the Hartford "demands" was to prohibit embargos lasting over 60 days; the second plank would have made declaring war harder, not easier, by requiring a 2/3 majority.

[Barbara Fitzpatrick]

The number of people out there who don't seem to realize that militias (which are now and have been since 1916 called the National Guard) are mandated - funded, armed, trained - by the federal Constitution (as in, arms were obtained through local contract, but paid for by the feds - training manuals had to be approved by the feds, etc) is apparently legion. Militias were at no time "a counter-power" to the State. The wealthy have always had access to weapons, but the poor got theirs in the pre-Civil War days by joining the local militia.

Washington used the "Whiskey Rebellion" to re-enforce that concept Hogeye hates so much - the feds have the right to collect taxes. He was not trying to prove collecting taxes was always convenient enough to actually do it. Jefferson's group was saying the tax was wrong, not that the U.S. doesn't have the right to tax.

Jefferson left office in March 1809 - the situation with the Brits escalated in 1810-11.

[Hogeye]

Militias (which are now and have been since 1916 called the National Guard) are mandated - funded, armed, trained - by the federal Constitution...

You are totally mistaken here. Militias were originally any male over 15 or so (and not too elderly to fight.) Militias are generally private organizations, independent from the US State. Here a def:

• civilians trained as soldiers but not part of the regular army
• the entire body of physically fit civilians eligible by law for military service; "their troops were untrained militia"; "Congress shall have power to provide for calling forth the militia"--United States Constitution
wordnet.princeton.edu/perl/webwn

The National Guard is not the militia; they are totally different. Some people, big government types, would like the National Guard to replace the militia, but of course that has about as much chance as pot prohibition. Anyway, the guys who wrote the Con used a sexist version of def 2: the entire body of physically fit (male) civilians.

Washington used the "Whiskey Rebellion" to re-enforce that concept Hogeye hates so much - the feds have the right to collect taxes.

I agree with that, but would phrase it less subserviently: Washington used the "Whiskey Rebellion" enforce its alleged right to plunder the masses by internal taxation. Bottom line: it was unable to collect that tax due to massive civil disobedience. This was one of the first mass civil rights movements in the US.

You are correct that "Jefferson left office in March 1809," but that was irrelevant to the Hartford Convention since his embargo was still in effect.

[Doug]

Militias (which are now and have been since 1916 called the National Guard) are mandated - funded, armed, trained - by the federal Constitution...

You are totally mistaken here. Militias were originally any male over 15 or so (and not too elderly to fight.) Militias are generally private organizations, independent from the US State.

DOUG
Even if that was how militias generally were, how does this show that they are not now the National Guard?

Here a def:
• civilians trained as soldiers but not part of the regular army
• the entire body of physically fit civilians eligible by law for military service; "their troops were untrained militia"; "Congress shall have power to provide for calling forth the militia"--United States Constitution
wordnet.princeton.edu/perl/webwn

DOUG
The Constitution says:

The Congress shall have the power to . . . To provide for organizing arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; -- Article 1, Section 8, Constitution of the United States

The National Guard is not the militia; they are totally different. Some people, big government types, would like the National Guard to replace the militia, but of course that has about as much chance as pot prohibition. Anyway, the guys who wrote the Con used a sexist version of def 2: the entire body of physically fit (male) civilians.

DOUG
But look at what the Constitution says. THE STATES have the power to appoint officers and train a militia. People do not have the constitutional right to arm and train themselves and expect to be considered a militia. This is why the National Guards are the militias. They are organized by the states.

Again:
The Congress shall have the power to . . . To provide for organizing arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; -- Article 1, Section 8, Constitution of the United States

[Hogeye]

But look at what the Constitution says. THE STATES have the power to appoint officers and train a militia.

Right. So in addition to various private militias, the states may also organize militias. The quote you gave in no way implies that states have exclusive right to organize. Anyone has a right to organize a militia. A militia is just a self-defense club.

[Doug]

But look at what the Constitution says. THE STATES have the power to appoint officers and train a militia.

Right. So in addition to various private militias, the states may also organize militias. The quote you gave in no way implies that states have exclusive right to organize. Anyone has a right to organize a militia. A militia is just a self-defense club.

DOUG
Yes, anyone can put together a "militia," but unless the state is the one doing it, they are not the kind of "militias" referred to in the Constitution.

[Guest]

Yes, anyone can put together a "militia," but unless the state is the one doing it, they are not the kind of "militias" referred to in the Constitution.

I think we agree now. The militia is basically any able-bodied person who joins a self-defense club. The US Con gives the central govt the power to fund some of these militias. The militia is a separate concept from the National Guard.

[Barbara Fitzpatrick]

THE militia (like the Arkansas Militia) as noted in the Constitution was a group that the fed funded (paid, paid for arming, approved the training), but allowed the states the right to choose the officers (so it wouldn't just be seen as a locally-stationed branch of the army) and do the actual training. It could be called out by the governor of said state at that state's need, but the president's national need always trumped. I have a friend whose father was in the Arkansas Militia at the time, in 1916, it became the Arkansas National Guard, so that it could leave the U.S. and go into Mexico for that little exercise with Poncho Villa, when the president called them. That same group of AR National Guard, formerly the AR Militia, were then loaded onto cattle boats in 1917 and shipped to France as part of the AEF under Blackjack Pershing. He transfered over to regular army in late 1918 when the Guard units went home. He died some 25 years ago, but his daughter still remembers what he told her - I hope she write them down sometime so they aren't totally lost.

The term "militia" lost it's official standing at that point and in the latter half of the 20th century became generalized as the paramilitary type organization Hogeye is describing.

[Hogeye]

Militias, paramilitary units or self-defense clubs or whatever you want to call them, have known as "militias" since the 1700's. The meaning has changed little. There was, as Barbara says, an "official" militia funded by the United States. I just want to clarify that the standard non-statist meaning of "militia" is not new, but dates back to the American Revolution.