p2pnet news view Freedom | Politics:- If you know the name David G. Trager, you’re probably  a regular p2pnet reader.

He’s a senior district judge in the eastern district of New York and as such, heard the case of Rae-Jay Schwartz, the New York woman plagued by multiple sclerosis, the deadly nervous system disease for which there’s no known cure. But she was nonetheless attacked by Vivendi Universal, EMI, Warner Music and Sony BMG’s RIAA for allegedly being a massive illegal online distributor of copyrighted music.

After years of harassing and hounding her, the RIAA dropped the case with prejudice. But not before they’d caused unimaginable and completely unnecessary grief to this already desperately ill woman.

But last year, Trager’s name appeared in another context, and one which will be familiar to Canadians.

At the time, The Village Voice wrote Canada’s Maher Arar, “was kidnapped by CIA agents” during a stopover at Kennedy Airport.

“In a startling, ominous decision —- ignored by most of the press around the country” Trager, “dismissed a lawsuit by a Canadian citizen, Maher Arar,” said the story.

This was in 2006.

Now, however, “New York court makes extraordinary decision to hear case even before getting lawyers’ petition,” says the Toronto Star.

‘Tiny ‘grave-like’ cell’

Maher Arar is a 34-year-old wireless technology consultant.

Born in Syria, he came to Canada with his family when he was 17, becaming a Canadian citizen in 1991.

Says his web page »»»

 On Sept. 26, 2002, while in transit in New York’s JFK airport when returning home from a vacation, Arar was detained by US officials and interrogated about alleged links to al-Qaeda. Twelve days later, he was chained, shackled and flown to Syria, where he was held in a tiny ‘grave-like’ cell for ten months and ten days before he was moved to a better cell in a different prison. In Syria, he was beaten, tortured and forced to make a false confession.

During his imprisonment, Arar’s wife, Monia Mazigh, campaigned relentlessly on his behalf until he was returned to Canada in October 2003. On Jan. 28, 2004, under pressure from Canadian human rights organizations and a growing number of citizens, the Government of Canada announced a Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar.

On September 18, 2006, the Commissioner of the Inquiry, Justice Dennis O’Connor, cleared Arar of all terrorism allegations, stating he was “able to say categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada.” To read the Commissioner’s report, including his findings on the actions of Canadian officials, please visit the Arar Commission’s website or click here.

Trager ruled, “Maher Arar had, “no constitutional right to due process in an American court of law for what he suffered because of the CIA,” said Nat Hentoff in The Village Voice back in 2006.

But it seems Arar will have another chance to gain satisfaction from the Bush administration —-  and it’ll be in a New York court, says the Toronto Star, going on:

“The Second Circuit Court of Appeals announced yesterday it would convene at least 13 judges in December for another hearing for Arar, the Ottawa engineer who was tortured and jailed in a Syrian prison after being whisked out of JFK Airport in September 2002, under a U.S. practice known as “extraordinary rendition.”

“A three-judge panel dismissed Arar’s lawsuit in June, but the dissenting judge said the ruling gave the U.S. government licence “to violate constitutional rights with virtual impunity.”

“Yesterday’s decision keeps alive the possibility that Arar could still become the first rendition victim to force the Bush administration to admit its role and compensate a victim in a case it maintains was an immigration matter.’

‘Green light to do to others what they did to Arar’

Said the Village Voice article in March, 2006 »»»

 Stigmatized by his notoriety, still traumatized, unemployed, he is back in Canada, where the Canadian Parliament had opened an extensive and expensive public inquiry into his capture and torture. The United States refuses to cooperate in any way with this investigation.

Maher Arar sued for damages in federal court here (Maher Arar v. John Ashcroft, formerly Attorney General of the United States, et al.). Representing Arar for the New York–based Center for Constitutional Rights, David Cole predicts, and I agree, that if Judge Trager’s ruling is upheld in an appeal to the Supreme Court, the CIA and other American officials will be told “they have a green light to do to others what they did to Arar”—no matter what international or U.S. laws are violated in the name of national security.

Following the dismissal of Arar’s case by Trager (former dean of Brooklyn Law School), Barbara Olshansky (deputy legal director of the Center for Constitutional Rights) underscored the significance of what Trager has done to legitimize the Bush administration’s doctrine that in the war on terrorism, the commander in chief sets the rules. Said Olshansky: “There can be little doubt that every official of the United States government [involved in the torture of Maher Arar] knew that sending him to Syria was a clear violation of the U.S. Constitution, federal statutes, and international law . . . This is a dark day indeed.”

To fathom the darkness of Trager’s decision that Maher Arar has no constitutional right to due process in an American court of law for what he suffered because of the CIA, it’s necessary to be aware of a decision directly on point by New York’s Second Circuit Court of Appeals in 1980.

In this landmark decision, Filártiga v. Peña-Irala, David Cole points out, the appeals court decided that “the prohibition on torture was so universally accepted that a U.S. Court could hold responsible a Paraguayan official charged with torturing a dissident in Paraguay . . . The [U.S.] court declared that when officials violate such a fundamental norm as torture, they can be held accountable anywhere they are found.” (Emphasis added.)

That 1980 Second Circuit Court of Appeals decision proclaimed: “The torturer has become the pirate and slave trader before him . . . an enemy of all mankind.” (Emphasis added.)

The kicker is that this decision giving American courts jurisdiction over cases of official torture in other countries was reaffirmed by the U.S. Supreme Court in June 2004 (Sosa v. Alvarez-Machain).

Now let us hear how Judge Trager justifies his dismissal of Maher Arar’s suit for the atrocities he endured in Syria because of the CIA. In his decision, Trager said that if a judge decided, on his or her own, that the CIA’s “extraordinary renditions” were always unconstitutional, “such a ruling can have the most serious consequences to our foreign relations or national security or both.”

A judge must be silent, even if our own statutes and treaties are violated! What about the separation of powers? Ah, said Trager, “the coordinate branches of our government [executive and legislative] are those in whom the Constitution imposes responsibility for our foreign affairs and national security. Those branches have the responsibility to determine whether judicial oversight is appropriate.”

Gee, I thought that the checks and balances of our constitutional system depend on the independence of the federal judiciary, which itself decides to exercise judicial review.

Judge Trager went further to protect the Bush administration’s juggernaut conduct of foreign policy: “One need not have much imagination to contemplate the negative effect on our relations with Canada if discovery were to proceed in this case, and were it to turn out that certain high Canadian officials had, despite public denials, acquiesced in Arar’s removal to Syria.”

“More generally,” Trager went on, “governments that do not wish to acknowledge publicly that they are assisting us would certainly hesitate to do so if our judicial discovery process could compromise them.”

But judge, the Canadian government itself is now actively involved in an inquiry to discover, among other things, what happened to Arar, and how. And in Europe, there is a fierce controversy over whether governments there have been covertly involved in facilitating the CIA’s kidnapping of terror suspects from other lands.

Is it the job of a federal judge here to protect other governments from embarrassment and eventual punishment by their own courts for helping the United States commit crimes?

And what about our own government’s criminal accountability? The February 17 New York Law Journal noted that “Judge Trager said that even assuming the government had intended to remove Maher Arar to Syria for torture, the federal judiciary was in no position to hold our government officials liable for damages ‘in the absence of explicit direction by Congress . . . even if such conduct violates our treaty obligations or customary international law.’ ” (Emphasis added.)

If independent federal judges cannot hold our government accountable, who can? Fortunately, Judge Trager is not on the Supreme Court. But look at whom George W. Bush has appointed to be our custodians of the Constitution!

‘Suspected of Al Qaeda links’

Last month, US attorney general Michael Mukasey, “rejected a request from American legislators that he appoint a special counsel to investigate the U.S. role in the case,” says the Toronto Star, going on:

“Three Democrats sent a letter July 10 asking Mukasey to appoint an outside special counsel to investigate and prosecute any violations of federal criminal laws.

“Mukasey said U.S. officials received assurances from Syria that Arar would not be tortured. ‘Sending him to Canada could have posed a threat to our country,’ Mukasey said. He said sending him to Syria was ’safer’.”

A “perceived porous Canadian border” was cited in a US justice department report as, “one reason officials refused to allow a man they suspected of Al Qaeda links to return home,” says the story, adding:

“There are still two investigations underway into the U.S. conduct in the Arar case, one in the Department of Homeland Security and another in the justice department’s office of professional responsibility.

“Arar, who was cleared of any terrorist links by a Canadian judicial inquiry, was awarded $10.5 million in compensation from the Conservative government.”

Stay tuned.

(Thanks, Ray)

. .Stumble It!

dropped the case - RIAA drops case against MS victim, August 14, 2008
The Village Voice - The Torture Judge, March 7, 2006
Toronto Star - Arar’s U.S. lawsuit resurrected, August 15, 2008

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This entry was posted on Wednesday, August 20th, 2008 at 9:18 am and is filed under Politics, Freedom. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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