Miscarriage of justice

Maher Arar, the Canadian software engineer who was mistakenly expelled by the United States and imprisoned in Syria, may yet have his day in court. A federal appeals court in New York has scheduled a new hearing on whether Arar can sue U.S. officials who participated in one of the worst injustices of the so-called war on terror.

In 2002, Arar was seized by U.S. agents at New York’s John F. Kennedy International Airport on the basis of inaccurate information provided by Canadian police linking him to terrorists. He was flown to Jordan and then sent to his native Syria, where he was imprisoned and, Arar says, tortured for a year before being released. The Canadian government apologized to Arar and paid him almost $10 million in compensation for his ordeal. The U.S. response, however, has been shamefully grudging.

The Department of Homeland Security’s inspector general has said that the Justice Department is investigating Arar’s deportation to Syria, and members of Congress have offered their apologies. But the closest the Bush administration has come to an apology was Secretary of State Condoleezza Rice’s concession last year that Arar’s case wasn’t “handled particularly well.” Even after his exoneration by Canada, the administration kept Arar on a terrorist watch list on the basis of unspecified information that, according to Canada’s prime minister, contained “nothing new.” Finally, the administration has contested Arar’s suit against the U.S. government and several current and former officials -- litigation that would be unnecessary if the administration had owned up to the injustice perpetrated against an innocent man.

The administration’s truculence leaves it to the courts, not for the first time, to temper post-9/11 zealotry with a concern for civil liberties and simple humanity. In an unusual step, the U.S. 2nd Circuit Court of Appeals -- without prompting from Arar’s lawyers -- has agreed to review a three-judge panel’s ruling that Arar could not sue the government. The panel had held that a trial of Arar’s claims might expose sensitive national security matters and that, because he had not been legally admitted to the United States and was simply changing planes, he had no constitutional rights.

As welcome as the appeals court’s action is, the better resolution would be for the United States to follow Canada’s lead in formally apologizing to Arar and compensating him. The administration’s failure to do so seems to stem from a reluctance to repudiate its policy of transferring suspected terrorists to foreign countries. The next president, who will have no stake in this miscarriage of justice, should quickly rectify it.