The United States and the Rule of Law I: The Case of Maher Arar

For a country that elevates its Constitution to something akin to a sacred secular text, Americans can be rather casual in defending the principles of their founding document from a meddlesome and opportunistic government in Washington.

This week, lawyers for the Department of Justice argued in a New York courtroom that the unalienable rights which Americans believe to have been endowed to all men by their creator cannot be claimed by international air passengers transiting through American airports, or by any other non-citizen standing on American territory who has not yet been granted formal entry into the United States. In other words, the Department of Justice believes that America's airports, seaports, and border crossings are Constitution-free zones when it comes to the rights of non-citizens, where agents of the government may do whatever they like to foreigners without any regard for the supreme law of the land.

The context for these unsettling revelations are a federal judicial hearing into a wrongful imprisonment lawsuit brought by Maher Arar against former Attorney-General John Ashcroft and several other senior federal law enforcement officials and agencies. For those of you who haven't heard of Maher Arar (and the odds are that you probably haven't if you're reading this from outside of Canada), he is a Syrian-born Canadian citizen who was detained by immigration authorities at New York's JFK Airport for a fortnight in the fall of 2002 on suspicions that he was a member of Al Qaeda. During his time in American custody, Arar was denied his constitutional right to legal representation, his common law habeas corpus right to know the accusations against him, and his right as a foreign citizen to assistance from Canadian consular officials under the Vienna Convention on Consular Relations of 1961 -- a treaty to which the United States is a signatory.

What is much worse, however, is that the United States decided to deport Arar to his native Syria without any due process of law, and without informing the Canadian authorities of their intention to do so despite the requirements of international law. The term deportation is somewhat of a misnomer, however, for one is usually deported to one's home country rather than to a third country, which Syria has been for Arar since he renounced his citizenship there to become a Canadian citizen.

Since the United States does not have an extradition treaty with Syria, the only reasonable conclusion is that Arar was a victim of the United States government's "extraordinary rendition" policy whereby terrorism suspects are "rendered" to third countries where coercive interrogation policies are more tolerated than in the land of the free. Arar's treatment by the Syrians certainly bears this out, for during his year in captivity there he was held in a closet-sized jail cell and repeatedly tortured until he was finally forced to sign a false confession that he was a member of Al Qaeda and that he had received terrorist instruction at their infamous training camps in Afghanistan. After a public outcry in Canada and a vocal campaign by his wife protesting his innocence and seeking his release, Arar was sent back to Canada as a "gesture of goodwill to the Canadian people" after he had endured a year's detention in a Syrian jail.

Every aspect of Arar's story is deeply troubling and raises difficult questions about our current willingness to limit civil liberties in the name of fighting terrorism. What is most galling, however, is the eagerness with which American government officials are willing to overthrow a Constitutional order that has served the United States so well for over two centuries, in order to defeat an enemy which in the historical scale of things (remember the USSR?) poses a pretty minor threat to the security of the nation.

The Constitution's guarantees of individual freedom are not to be toyed with lightly, and those who seek to evade its authority for a minor advantage in the War on terror have no idea of the implications that their clever arguments in the Arar case will have on the freedom of all Americans should the court accept their treacherous arguments.

If the Federal Court in New York finds that foreign citizens standing on U.S. soil who have not yet been granted formal entry clearance into the country by an immigration officer are outside the writ of the Constitution, what is to stop the authorities from declaring that all who have entered into the U.S. illegally have no constitutional rights whatsoever because they too have no proper entry clearance? Will we soon see Mexican migrants denied their right to legal representation should they run into trouble with the criminal law because they are not in the United States legally? And what is to stop the government from using this thin edge of a wedge to claim the right to render American citizens to less than savory foreign jurisdictions some day when they attempt to enter the United States, claiming that they too have no Constitutional rights despite their citizenship for they too have not yet been granted formal entry clearance into the country?

In my view, all of this nonsense is a result of an incorrect reading of the Constitution by the powers that be at the Department of Justice which sees the document as endowing certain enumerated classes of individuals with rights, rather than acting as a bulwark against the infringement of the rights enumerated in the Constitution by a hyperactive and over reactive government.

The language of the Constitution, and of the Bill of Rights in particular, is replete with the notion of the people being free to do certain kinds of things (like speaking their minds and owning guns) without the government trampling all over those rights, and without anywhere enumerating what classes of people may legitimately enjoy those rights. Nowhere does it say in the Constitution, for example, that the 19th century concept of American citizenship is a necessary precondition for the enjoyment of the rights the founders laid down at the end of the 18th century.

This view of the Constitution as a constraint on government action, inasmuch as it confers rights on the people, leads to the conclusion that all government actions ought to be subject to the writ of the Constitution, so long as those actions take place in a place where the writ of the United States government applies. In the Arar case, the Homeland Security officials who administer airport security at Kennedy Airport are operating on the territory of the United States to enforce the law of the United States. What’s so special about this situation that it ought to be exempted from the purview of the Supreme Law of the Land?

In fighting the good fight against terrorism or anything else, the means we use are just as important as our ends, for if we resort to the means of our enemy in fighting them, we shall have lost the very things we were fighting for. The U.S. risks suffering such a pyrrhic victory in its fight against terrorism should it resort to extra-judicial means in doing so as in the Arar case, when it claims that the Constitution does not apply.

It is time that the United States stopped bullying innocent people and that it starts playing by its own rules that have served it so well for so long.