“The torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.” So proclaimed the US Court of Appeals for the Second Circuit in 1980, in a landmark decision ruling that the prohibition on torture was so universally accepted that a US court could hold responsible a Paraguayan official charged with torturing a dissident in Paraguay. It is highly unusual to hold foreign officials responsible for wrongdoing committed within their own country, but the court declared that when officials violate such a fundamental norm as the prohibition on torture, they can be held accountable anywhere they are found. The Supreme Court reaffirmed that decision in Sosa v. Alvarez-Machain less than three years ago.
Yet in a new twist on American exceptionalism, a federal district court in Brooklyn ruled February 16 that when US officials conspire with such “enemies of all mankind” to torture suspects in the “war on terror,” our courts will not interfere. US courts can hold other nations’ officials responsible for torture, but when it comes to American leaders, the overriding imperative is to keep our options open.
The decision dismissed a lawsuit brought by Maher Arar, a Canadian citizen who, while changing planes at JFK Airport on his way home from Europe to Canada, was detained by US officials, interrogated at length, denied access to a lawyer, ordered expelled on secret evidence and then sent not on his connecting flight to Canada but on a specially chartered federal jet to Syria. Arar was born in Syria, so he had dual citizenship, but he had not lived there since he was a teenager. He spent the next ten months incarcerated in Syria without charges, much of it in solitary confinement in a three-by-six-foot cell that Arar describes as “a grave.” He says he was beaten with cables, threatened with electric shocks and placed in “the tire,” which immobilizes prisoners for beatings. The Syrians interrogated him with a dossier of virtually the same questions as those US officials had asked him while he was detained in New York. The Syrians finally released Arar, stating that they found no evidence that he had committed a crime, and he returned home to Canada, where he is a free man.
The recent court decision tells Arar that he can expect no justice from US courts, and simultaneously tells US officials that they have a green light to do to others what they did to Arar. The court’s reasoning is stunning. It concludes that adjudicating Arar’s claim would improperly interfere with “policy making” by the political branches and might produce “embarrassment of our government abroad.” And it finds that “in the international realm…judges have neither the experience nor the background to adequately and competently define and adjudge the rights of an individual vis-à-vis the needs of officials acting to defend the sovereign interests of the United States.”
But the very basis for holding other countries’ officials responsible for torture in US courts is that the prohibition on torture is universal–torture is simply not a policy option. If it’s not an option for Paraguay, it’s not an option for the United States. And if US courts have the expertise to hold foreign officials accountable for torture, even where it may risk “embarrassment” of their governments, how can it be improper to hold our own officials accountable? Had Arar found one of his Syrian torturers residing in Brooklyn and sued him there, the court would have been compelled to hear his case. How then can it decline to hear claims against US officials for their involvement in the same conduct?
The only answer can be American exceptionalism. When Paraguayans do it, we condemn torture as a universal wrong; but when US officials begin to employ such tactics, we’re not so sure it’s wrong–the district court characterized the question as “unresolved.” The court also repeatedly emphasized that Arar is “an alien,” and that the torture was inflicted abroad, as if to assure readers that we wouldn’t let this happen to US citizens here. But the prohibition on torture knows no geographical boundaries and applies to all human beings, regardless of what passport they hold. The last thing we want to do is make the United States “an enemy of all mankind.”