Wednesday, June 16, 2010

Justice delayed, justice denied

On the bright and sunny Sunday afternoon of January 30, 1972, British paratroopers, using high-velocity self-loading rifles, fired at a number of civilians in the Bogside area of Londonderry, killing 13 and wounding another 13. There are few parallels in English history to such an event involving British soldiers and British civilians. Parliament immediately adopted a resolution calling for an inquiry, and the Lord Chief Justice of England, the Right Honorable Lord Widgery, was appointed to preside. The Tribunal, which sat in the County Hall at Coleraine, a small town 30 miles from Londonderry, commenced hearing testimony on February 21 and continued until March 14. During this time 17 sessions were held, at which 114 witnesses gave evidence subject to cross examination. Thereafter three further sessions took place in the Royal Courts of Justice in London at which closing arguments of counsel were heard. On April 10, 1972, the Lord Chief Justice submitted his Report of the Tribunal. This Report was made public on April 18, 1972. It was a complete and utterly outlandish whitewash.

Over the following twenty-five years, journalists, lawyers, and human-rights investigators demolished Lord Widgery’s report--and, for posterity’s sake, his reputation as a fair-minded judge. By 1998, the British government was forced to acknowledge that the Widgery report was a mockery of critical investigation. Lord Saville was appointed to review the incident ab initio. Today, the Saville inquiry has released its long awaited conclusions. As anticipated, it has almost completely reversed the Widgery report. All the victims were exonerated; none of the killings was found to have been justified. The way has now been opened for prosecutions of those who used unwarranted lethal force that day in 1972. The Saville report took an extraordinary amount of time to wind to its conclusions, but this time the effort was solid.
Apparently, this country has deemed it okay to take an innocent Canadian citizen transiting through US airports and instead send them to a third country to be tortured. That seems to be the lesson from SCOTUS’ decision to deny Maher Arar cert in his suit against the US. From a CCR press release on the decision:

Today, the United States Supreme Court decided not to hear the Center for Constitutional Rights (CCR) case on behalf of Canadian citizen Maher Arar against U.S. officials for their role in sending him to Syria to be tortured and detained for a year.

The decision of the U.S. Court of Appeals for the Second Circuit, which the Supreme Court declined to review, was decided on the legal ground that Congress, not the courts, must authorize a remedy. As a result, the substance of Mr. Arar’s case, first filed in January 2004, has never been heard and now never will be.

Mr. Arar said, “Today’s decision eliminates my last bit of hope in the judicial system of the United States. When it comes to ‘national security’ matters the judicial system has willingly abandoned its sacred role of ensuring that no one is above the law. My case and other cases brought by human beings who were tortured have been thrown out by U.S. courts based on dubious government claims. Unless the American people stand up for justice they will soon see their hard-won civil liberties taken away from them as well.”

Last month, the Obama administration chose to weigh in on Mr. Arar’s case for the first time. The Obama administration could have settled the case, recognizing the wrongs done to Mr. Arar as Canada has done. (Canada conducted a full investigation, admitting wrongdoing, exonerated Mr. Arar, apologized, and paid him $10 million in damages for their part in his injuries.) Yet the Obama administration chose to come to the defense of Bush administration officials, arguing that even if they conspired to send Maher Arar to torture, they should not be held accountable by the judiciary.
Both on Monday, June 14.

Will it take 38 years for a commission to decide that Arar was entitled to bring his suit after all, and to show what a "whitewash" the Second Circuit's en banc decision was? Not to mention all the other victims of America's turn to torture? Will Maher Arar, John Yoo, and other principal victims and perpetrators even be alive then?

As Judge Calabresi predicted in his dissent:
But this does not alter my conviction that in calmer times, wise people will ask themselves: how could such able and worthy judges have done that?
He politely omits the follow-up question: were such judges really able and worthy after all? That's the question about Lord Widgery; it will be the question about our judges and justices as well.

... David Cole, one of Arar's lawyers, has a blog post at NYRB that notes a catch-22:
In President Obama’s May 2009 speech on national security and American values, he opposed a commission to investigate torture by arguing that there were proceedings in the courts that could provide accountability. Yet in the Arar case--as in every other civil case that has sought accountability for torture--the Obama administration argued that the courts were not an appropriate forum.

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