Maher Arar

Nine years ago yesterday, in the wake of the Oklahoma City bombing, the U.S. passed the Anti-terrorism and effective death penalty act. Though homegrown terrorism had become a concern for everyone, many objected to the fact that the new antiterror laws could seriously corrode habeas corpus. That fear is now becoming a reality, as habeas corpus was first suspended for enemy combatants after 9/11, allowing the government to detain people in places like Guantanamo Bay without charge nor legal counsel, and there are signs that this could be extended to include U.S. citizens, as well. Until the War on Terror, habeus corpus had not been suspended since the days of the Civil War, Andersonville (the Gitmo of its day), and Reconstruction lawlessness. Even then, it was usually restricted to problem areas.

Syrian-Canadian telecom engineer Maher Arar, 32 years old, probably wasn't thinking about of any of these things when he stepped off a plane at New York's JFK Airport, a stopover from a business trip to Italy en route to his home in Ottawa in September, 2002. It's unlikely he was worried when told by airport officials that he would be questioned as part a routine security measure, or when the INS showed up to quiz him. But he certainly become concerned when the INS asked him, point-blank, if he would willingly go to Syria to answer questions about his alleged involvement with Al Qaeda. The RCMP had forwarded information linking him to an associate of bin Laden, as well as (incorrect) information that he had been in D.C. on 9/11 (he was conducting business in San Diego). Unbeknownst to him, Arar and his wife had been entered into the TECS database (1) in October of the previous year, having been described as Al Qaeda suspects by an RCMP corporal despite their complete lack of criminal or extremist history.

Arar hadn't lived in Syria since his parents left that country when he was 17 years old. He had gone to university in Canada, married a Canadian, and held Canadian citizenship. But he knew what could happen to an Al Qaeda suspect in Syria, a country that routinely uses torture to elicit (false) confessions, and he refused to travel there willingly.

So he was detained in New York for a few days, interrogated by INS and FBI agents. He was stripped of his right to counsel and not charged with any crime. His family did not know where he was until the third or fourth day of his confinement, when he was allowed to make a single two-minute phone call to his mother-in-law in Ottawa. Then Arar was "deported" to Syria via Rome and Jordan (he discovered later that he was not deported in the legal sense). There, he was confined to a tiny, unlighted cell for over 10 months and subjected to daily interrogation/torture.

Two weeks ago I attended a talk by Arar and his attorney, Julian Falconer, in Edmonton. He spoke about his experience, and the ongoing legal struggle to clear his name. This story is already familiar to most Canadians: The "deportation" and torture, the false confession he was forced to sign, the 2004 inquiry that found no evidence of Al Qaeda involvement, Stephen Harper's public apology last January. We know what happened. The question now is, How did this happen?

It's very tempting to suspect, as I did, that the RCMP, FBI, and Syrian authorities wouldn't go to the trouble of detaining and torturing this guy if they didn't have some solid info about his involvement in terrorism. But the sad fact is this: If the RCMP had any evidence that could exculpate them, they never used it. Hence, I now doubt they had anything solid. Basically, Mr. Arar was friendly with two brothers, one of whom had worked for an NGO headed by a man with links to bin Laden (Osama attended his daughter's wedding). In other words, Arar knew a guy who had a brother who knew a guy who knew bin Laden. No one could provide a single scrap of evidence that Arar knew his friend's brother's former employer was linked to bin Laden. I mean, when they're working from guilt by association, where do they draw the line? Does your third cousin's barber's girlfriend's best friend's ex-boyfriend come into play, too?

Mr. Arar gave his talk in a calm, lightly-accented voice that held far more conviction than venom. (He appeared angry at first, but explained that the bright lights were making him squint.) He didn't address the accusations against him directly, but they weren't the point of his talk. The point he wanted to make is that this could happen to anyone. The professor who introduced him spoke of "the dark side of democracy...outsourced torture...and a hierarchy of citizenship." His attorney put it more plainly: The extraordinary rendition of Arar to a country that is known to use torture is "a rock-bottom, fundamental injustice...the post-Arar world will have to answer non-political questions about antiterror-inspired laws, the role of the media, and what we have learned about racism." Both Arar and his attorney are positive that without media exposure, the tireless campaigning of Arar's wife, Dr. Monia Mazigh, and the outcry from various human rights groups, his case would have remained a hidden injustice.

Softhearted cynic that I am, I was both moved by Arar's plainspoken earnestness and doubtful of what he said. I wondered, did Harper apologize not because Arar is innocent, but because the government doesn't have sufficient evidence to prove him guilty? Arar is, beyond a shadow of a doubt, legally innocent of all accusations...but legal innocence and true innocence aren't always the same thing. Listening to this talk, however, I realized that Arar's legal-vs.-true innocence, while important, is definitely not the most pressing issue in this whole affair.

The bottom line, for me, is this:

1. If Arar did have links to Al Qaeda, he still shouldn't have been handed over to Syria. Canadian, American, and Jordanian authorities knew that he would be tortured there. Also, he was not legally deported. An INS official allegedly made the snide remark, "We [INS] didn't sign the Geneva Convention".

2. Torture doesn't work. It never did. During the witchcraft hysterias of the Middle Ages, you could get a woman to say she had suckled a demonic cat from a wart on her elbow as part of a pact with the Devil - just by threatening torture. Torture supporters argue, "Yeah, but what about Khalid Shaikh Mohammed? They got a full confession out of him." What about Khalid Sheikh Mohammed? First of all, where is he? In a secret CIA prison? Are we even sure that this dude was, in fact, captured and interrogated until he confessed? I'm not paranoid: It's a legit question. We're taking the word of a phantom, here...and too much is at stake to avoid the ugly questions.

Let's compare and contrast the Maher Arar case with that of the Oklahoma City bombers, Timothy McVeigh and Terry Nichols. It's not a fair comparison, since McVeigh and Nichols were convicted and later admitted their guilt, but it does show the yawning chasm between how domestic terrorism was severely mishandled pre-9/11 and how it is being (mis)handled post-9/11. And it was the OK City bombing that initiated our rapid slide into a post-habeas corpus society.
Despite the fact that John Doe #2 (seen renting the Ryder truck with McVeigh the day before the bombing) has never been officially identified, Kansas law enforcement and court officials identified him as a anti-government figure linked to the militia called the Republic of Texas, several members of which were arrested on charges of bank fraud around the time of the bombing. Links between McVeigh/Nichols and the anti-government/white supremacist Aryan Republic Army are also possible. The FBI officially ignored these leads. If there were other co-conspirators in the horrific bombing of the Alfred P. Murrah Federal Building, which killed 168 people and wounded hundreds more (some are permanently disabled), they still walk among us. (2)


Random information and quotes culled from Arar's speech:

• No fewer than ten governmental departments in Canada collect intelligence information - not just CSIS.
• We must not be complacent, taking our civil rights for granted. Canada needs a balance between security and civil liberties now more than ever.
• "The Canadian people wanted the inquiry to happen." Arar believes the Canadian media (plus his wife and human rights organizations) facilitated his release from Syria.
• Though he has proven his innocence in Canada, Arar's battle isn't over. In addition to educating the Canadian public about his experience, he is still trying to get his name removed from the U.S. no-fly list.

Notes

1. This is how a Department of Justice report describes TECS: "TECS is also a communications system permitting message transmittal between law enforcement offices and other federal, state, and local law enforcement agencies. The database provides access to the FBI's NCIC and the National Law Enforcement Telecommunications System (NLETS). The TECS database serves as the principal information system supporting border management and the law enforcement mission of the DHS’s U.S. Customs and Border Protection (CBP) and other federal law enforcement agencies."

2. See Gore Vidal's September 2001 Vanity Fair article "The Meaning of Timothy McVeigh" for a literate, if somewhat credulous, interpretation of these facts.