THE CASE OF MAHER ARAR

WHAT IS THIS CASE ABOUT?

Maher Arar, a Canadian citizen and father of two, was travelling home to Canada after visiting his wife’s family in Tunisia in 2002. While changing planes at New York City’s JFK airport, he was detained and held for 12 days by US authorities. He was then transferred secretly, via Jordan, to Syria, where he was held in degrading and inhumane conditions, interrogated, and tortured for a year.

Mr. Arar’s wife, Monia Mazigh, contacted Amnesty International Canada’s Secretary General Alex Neve when he was detained in New York. When Amnesty International learned that Mr. Arar had been deported to Syria, we issued the first of a series of Urgent Actions on the case raising concerns about Mr. Arar’s disappearance. We continued to issue Urgent Actions and urge Canadian authorities to intervene with Syrian and US officials over the course of the following year.

Mr. Arar was released without charge and allowed to return home to Canada on 5 October 2003.  Following his return, Amnesty International joined Mr. Arar and Ms. Mazigh, along with other organizations, in launching a national campaign for a Public Inquiry into the role Canadian officials played in Mr. Arar’s mistreatment. We also called on the US Attorney General to conduct a full investigation into Mr. Arar’s case.

On 5 February 2004, the Canadian government established the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (Arar Inquiry). The government appointed Justice Dennis O’Connor as Commissioner for the Inquiry. Commissioner O’Connor was mandated to investigate and report into the actions of Canadian officials in relation to Mr. Arar’s rendition to and torture in Syria. He was also tasked with making recommendations concerning a new review and oversight mechanism for Royal Canadian Mounted Police (RCMP) in relation to their national security activities.

On 22 January 2004, Mr. Arar also filed a federal lawsuit in the United States challenging the actions of American authorities in his detention in New York for two weeks and rendition to torture in Syria. At first instance, the United States District Court for the Eastern District of New York dismissed Mr. Arar’s case, finding that “national security” and “foreign policy” considerations prevented the court from holding US officials liable. The Second Circuit Court of Appeal upheld the lower court decision, and Mr. Arar appealed to the US Supreme Court.

AMNESTY INTERNATIONAL’S INTERVENTIONS

Amnesty international was granted intervener status at Arar Inquiry. We also intervened as amicus curiae before the Supreme Court of the United States.

Arar Inquiry

Amnesty International intervened at several stages of the Arar Inquiry, including providing submissions on standards to be applied in determining disclosure of information over which the government claims national security confidentiality; on the factual investigation into Mr. Arar’s mistreatment and any involvement of Canadian authorities in that mistreatment; and on policy recommendations to improve review and oversight of Canada’s national security agencies.

Throughout the Arar Inquiry, Amnesty International stressed that Commissioner O’Connor should assess the evidence and formulate recommendations in a manner that firmly recognizes that Canada’s counter-terrorism laws, policies, and practices must be wholly consistent with international human rights standards. In a changing international security paradigm since the devastating attacks of September 2011, Mr. Arar’s case dramatically illustrated that there is a very real and very heavy potential human cost when governments disregard international human rights protections and the rule of law in the interests of security and the fight against terrorism.

Amnesty International urged the Commission to investigate Mr. Arar’s case with a view to establishing truth, justice, and accountability for his mistreatment. This included a detailed investigation into Canada’s intelligence-sharing, consular, and diplomatic practices to determine whether Canadian officials had any responsibility for having caused or contributed to Mr. Arar’s torture, arbitrary arrest, and detention without trial or charge. We argued that claims of national security confidentiality should only be allowed to the extent they are consistent with international human rights standards and the maximum amount of information possible should be disclosed to the public. Information should not be withheld in order to protect another government from embarrassment, inconvenience, or criticism. We advised the Commission to recommend that those responsible for Mr. Arar’s mistreatment be held accountable through relevant disciplinary, criminal, and civil procedures. 

Given that Mr. Arar was never charged with any crimes, we urged the Commission to call on the government of Canada to issue a public statement indicating that there was no evidence linking Mr. Arar to any offences. We stressed that the government of Canada publicly acknowledge responsibility, apologize, and award appropriate compensation to Mr. Arar and his family. We also urged the Commissioner to investigate or call another appropriate inquiry into the the similar and related cases of Messrs. Muayyed Nureddin, Ahmad Abou El-Maati, and Abdullah Almalki.

Amnesty International also made policy recommendations for a review and oversight mechanism for RCMP national security activities; incorporating human rights standards and protocols into the activities of Canada’s national security agencies; developing strategies for more effective governmental interventions when Canadians are detained abroad; and further reforms in Canadian law. We stressed the vital importance that Commissioner O’Connor remind the Canadian government of its binding obligations to prohibit torture. Our recommendations included:

  • The new national security review and oversight body should be comprehensive of all Canadian agencies undertaking national security activities;
  • The review body must be independent from government and be composed of a diverse group of experts. It should have the power to independently launch reviews upon receipt of individual complaints and have unhindered access to information that may be classified, and the ability to make recommendations. The review body’s decisions should be made public, and it should engage in public education to build awareness and develop trust among Canadians in national security agencies;
  • The Canadian government should develop and integrate Human Rights Protocols in all information-sharing agreements and arrangements with foreign governments;
  • Canada should amend the Criminal Code to make it an offence for Canadian officials to undertake actions that would likely expose someone to a risk of torture in Canada or abroad. The Criminal Code and Canada Evidence Act should be amended to prohibit the use of information derived from torture;
  • Canada should provide further and enhanced training to diplomatic staff and consular officials on human rights standards and how to respond when Canadians are detained and under a serious risk of torture abroad. In all cases of detained Canadians, consular officials should regularly press for private visits and for detainees to be afforded their full range of rights, including medical care and legal counsel. Concerns about torture and mistreatment should be immediately raised with detaining authorities;
  • Canadian citizens tortured abroad should receive immediate and urgent expert medical and psychological treatment upon release;
  • Canada should amend the State Immunity Act to allow civil suits against foreign governments for compensation in situations of torture, war crimes, and crimes against humanity; and
  • Canada should ratify the Optional Protocol to the UN Convention against Torture.

Arar v. Ashcroft (US Supreme Court)

Amnesty International was granted joint amicus curiae status with a number of other Canadian and International Human Rights Organizations and Scholars in Mr. Arar’s case before the US Supreme Court. In our joint submissions, we argued that international law requires all states to provide the victims of torture with an effective remedy. This includes the right of anyone who claims to have been a victim to have meaningful access to a procedure that is capable of repairing the effects of the violation, and the right actually to receive such reparation if the violation is established. Where several states are responsible for violations of an individual’s human rights, each has an obligation to provide an effective remedy in relation to its own responsibility.

While Canada ordered a Commission of Inquiry, apologized, and compensated Mr. Arar, the United States declined to cooperate or participate in the Arar Inquiry and has not provided Mr. Arar with any remedy in relation to its own responsibility for the violation of his human rights. In May 2010, the government of the United States, rather than settling the case, intervened arguing that the executive branch of the government should not be held accountable by the judiciary. The amici curiae – including Amnesty International – argued that the Supreme Court should overturn the lower courts’ judgments dismissing Mr. Arar’s claim, as a failure to do so would effectively deprive persons in Mr. Arar’s situation of their right to access a procedure capable of providing an effective remedy. This would be inconsistent with the international legal obligations of the United States.

STATUS OF THE CASE

ARAR INQUIRY

Commissioner O’Connor released his report of the Arar Inquiry on 18 September 2006. The report found that Canadian officials contributed to Mr. Arar’s rendition to and torture in Syria in a number of way. The RCMP provided American authorities with information portraying Mr. Arar unfairly as an Islamic Extremist despite having no basis to describe him that way. It was very likely that these communications led to the US decision to detain Mr. Arar and rendition him to Syria. Once in Syria, Commissioner O’Connor found that Canadian authorities received information from and shared intelligence about Mr. Arar with Syrian authorities despite the fact the information was likely derived from torture. Following Mr. Arar’s return to Canada, Commissioner O’Connor also found that “Canadian officials leaked confidential and sometimes inaccurate information about the case to the media for the purpose of damaging Mr. Arar’s reputation or protecting their self-interests or government interests.”

In light of his findings, Commissioner O’Connor made 23 recommendations to improve the RCMP’s national security activities and the information-sharing practices of other agencies; interactions with countries with questionable human rights records; and interventions on behalf of Canadians detained abroad. With respect to Mr. Arar, Commissioner O’Connor recommended that Canada should formally object to the United States’ and Syria’s mistreatment of Mr. Arar, and assess Mr. Arar’s claim for compensation in light of the report.

On 12 December 2006, Commissioner O’Connor released a second report outlining his recommendations for a new review and oversight mechanism for RCMP national security activities. In this report, Commissioner O’Connor concluded that existing accountability mechanisms for RCMP national security activities were inadequate. He recommended that a new review body be established that has enhanced power to investigate and report on complaints, including by having the authority to conduct self-initiated review, and the ability to subpoena documents and compel testimony from any government or private sector person or entity. Justice O’Connor recommended that there be a single review body for all activities of the RCMP, not just its national security activities. He also stressed that the national security activities of the Canada Border Services Agency (CBSA), Citizenship and Immigration Canada, Transport Canada, the Financial Transactions and Reports Analysis Centre of Canada, and Foreign Affairs and International Trade Canada also be subjected to integrated, independent review. Commissioner O’Connor also recommended that the government appoint an independent person to review whether the government has implemented his recommendations and how the proposed review structure is functioning.

On 26 January 2007, Prime Minister Harper issued a public formal apology on behalf of the Canadian government. Mr. Arar received 11.5 million dollars in compensation for the direct and indirect role Canadian officials played in his rendition to and torture in Syria.

ARAR V. ASHCROFT (US SUPREME COURT)

The US Supreme Court denied Mr. Arar’s petition. It did not provide reasons for dismissing the case. In response to the Supreme Court’s decision, Mr. Arar stated: “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.”

UPDATE

On 25 November 2008, Amnesty International wrote to the House of Commons Standing Committee on Public Safety and National Security and House of Commons Standing Committee on Foreign Affairs and International Development to take up as an urgent priority the Arar and Iacobucci Inquiry reports (click here for more information about Amnesty International’s work in the Iacobucci Inquiry). We stressed the need to review Canada’s progress in implementing the Arar Inquiry recommendations and make appropriate changes to Canada’s foreign policy agenda to take a more assertive stand against torture.

On 10 February 2010, the House of Commons Standing Committee on Public Safety and National Security, concerned about the “serious deficiencies uncovered by [the Arar and Iacobucci Inquiries] and the risks of not addressing them by fully implementing all the resulting recommendations”, decided to review the government’s progress in responding to the two Inquiry reports. Amnesty International provided oral submissions to the Committee during its review, stressing the need for improved oversight and review of national security activities, implementing the findings of the two Inquiry reports, and ensuring accountability for the human rights violations that occurred, including providing redress to the men affected.

In its report, the Committee urged the government to immediately implement the recommendations of the Arar Inquiry report; to immediately issue regular public reports on the progress made in implementing the findings and recommendations of the two Inquiry reports; provide an official apology and compensation to Messrs. Almalki, Elmaati, and Nureddin; issue a clear ministerial directive against torture and the use of information obtained from torture; and to introduce a mechanism for review and oversight of the actions of national security agencies. Amnesty International sent a letter to Minister of Public Safety Peter Van Loan urging him to comply with the Committee’s recommendations.

Over a decade has passed since Commissioner O’Connor released his reports, and the government of Canada has yet to fully implement his recommendations. Instead, in 2014, the government of Canada passed Bill C-51, a drastic overhaul to Canada’s national security legislation which increased the powers of Canada’s national security agencies without any human rights safeguards or increase in review or oversight of these agencies’ activities. To learn more about C-51 and Amnesty International’s work in opposition to it, click here. This disregard of the lessons of Canada’s past and the important findings and recommendations of the Arar Inquiry were highlighted at the Arar +10 conference co-hosted by Amnesy International on 29 October 2014. You can read the conference report here.

In April 2015, former CIA officer John Kiriakou revealed in an interview that American officials knew that Mr. Arar was innocent yet detained him anyway. Amnesty International continues to advocate for Mr. Arar to receive an apology and effective remedies for the contributions of American, Jordanian, and Syrian authorities to his mistreatment.

On 1 September 2015, the RCMP laid criminal charges against Colonel George Salloum, a Syrian military intelligence officer who stands accused of carrying out and overseeing the torture of Mr. Arar while he was imprisoned in Syria. This is the first time that charges have been laid in Canada for torture that occurred outside the country. The RCMP does not know where George Salloum is, or whether he is still alive. However, through Interpol and other police channels, efforts will be made to find him so that he can be extradited to stand trial in Canada. This offers justice to Mr. Arar and his family, and sends a strong message from Canada to torturers in other countries that what happens in torture chambers there may end up before the courts here.

LEGAL RESOURCES

ARAR INQUIRY

A Human Rights Approach to National Security Confidentiality: Submission to the Arar Inquiry made Pursuant to Section 27 of the Draft Rules of Procedure and Practice (28 May 2004)

Securing a Commitment to Human Rights In Canada’s Security Laws and Practices: Opening Submissions of Amnesty International Canada (14 June 2004)

Joint Submission for May 3, 2005 hearing on process and procedure

Alex Neve’s oral submissions to the Arar Inquiry on 3 May 2005

Effective Oversight: Protecting Human Rights in the Context of Canadian National Security Investigations: Submissions to the Policy Phase of the Arar Inquiry (6 June 2005)

Restoring his Rights, Addressing the Wrongs: Amnesty International’s Closing Submissions to the Arar Inquiry (10 September 2005)

Amnesty International’s Reply Submissions to the Arar Inquiry (2 November 2005)

Letter to Commissioner O’Connor regarding delays in the release of the Commission report (28 February 2006)

Report of the Events Relating to Maher Arar: Analysis and Recommendations (18 September  2006)

Amnesty International letter to Prime Minister Stephen Harper following the release of the Arar Inquiry report (19 September 2006)

A New Review Mechanism for the RCMP’s National Security Activities (Arar Commission Policy Report, 12 December 2006)

Intervener letter to Prime Minister Stephen Harper on the one year anniversary of the first Arar Inquiry Report (18 September 2007)

Intervener letter to Minister of Public Safety and Emergency Preparedness Stockwell Day on the one year anniversary of the Arar Inquiry Policy Report (12 December 2007)

ARAR V. ASHCROFT (US SUPREME COURT)

Second Circuit Court of Appeal

Declaration of Maria Lahood in Support of Appellant Maher Arar’s Motion for Judicial Notice (12 December 2006)

Amici Curiae brief of US and Canadian Scholars Advocating Reversal in Support of Plaintiff-Appellant (20 December 2006)

Brief for the REDRESS Trust as Amicus Curiae in Support of the Plaintiff-Appellant Urging Reversal (28 October 2008)

Judgment of the Second Circuit Court of Appeals (2 November 2009)

US Supreme Court

For a detailed timeline and documentation of Mr. Arar’s case in the United States, see the Center for Constitutional Rights’ webpage on the case.

Petition for Writ of Certiorari (1 February 2010)

Appendix to Petition for Writ of Certiorari (1 February 2010)

Brief of Amici Curiae Canadian and International Human Rights Organizations and Scholars in Support of the Issuance of a Writ of Certiorari (5 March 2010)

Brief for the REDRESS trust as Amicus Curiae in Support of Petitioner

Letter from Canada’s Minister of Foreign Affairs Lawrence Cannon confirming that Mr. Arar’s civil suit in the United States would not risk harming diplomatic relations between Canada and the United States (15 April 2010)

Brief of Respondents Thompson, Mueller, Ziglar, Blackman, and McElroy in Opposition (May 2010)

Brief for John D. Ashcroft, Former Attorney General, and the Official Capacity Defendants in Opposition (May 2010)

Reply Brief for Petitioner (24 May 2010)

Letter from the Center for Constitutional Rights to the US Supreme Court requesting permission to lodge non-record material with the Court – Minister Cannon’s letter from 15 April 2010 (24 May 2010)

US Supreme Court order dismissing Mr. Arar’s case (14 June 2010)

UPDATE

Amnesty International’s Letter to Members of the Standing Committee on Public Safety and National Security and Members of the Standing Committee on Foreign Affairs and International Development (25 November 2008)

Alex Neve’s speaking notes for the House of Commons Standing Committee on Public Safety and National Security (24 March 2009)

Review of the Findings and Recommendations Arising From the Iacobucci and O’Connor Inquiries (June 2009)

Amnesty International’s letter to Minister of Public Safety Peter Van Loan (23 June 2009)

Amnesty International’s letter to Minister of Public Safety Vic Toews (31 October 2011)

MEDIA

Canada: BCCLA Joint Open Letter on an integrated national security accountability framework” (10 March 2016)

Canada: National Security and Human Rights Report Released” (29 October 2015)

Charges in Arar case a historic step toward ending torture, http://www.theglobeandmail.com/opinion/charges-in-arar-case-a-historic-step-toward-ending-torture/article26181455/

Breakthrough for justice in Maher Arar case: RCMP takes historic step in prevention of torture” (1 September 2015)

Maher Arar on RCMP laying charges on the man responsible for his torture” (1 September 2015)

Maher Arar: A timeline of Amnesty International’s campaigning” (2 September 2015)

Next Steps on Bill C-51: Will the government listen to Canadians’ concerns?” (31 March 2015)

National Security Reform: Time to embrace human rights” (10 March 2015)

Insecurity and Human Rights: Canada’s proposed national security laws fall short of international human rights requirements” (9 March 2015)

Time to Close Canada’s Worrying, Growing National Security Review and Oversight Gap” (23 February 2015)

Security reform should protect our freedom” (3 November 2014)

Misguided security laws take a human toll” (28 October 2014)

USA: Apologize to torture survivor Maher Arar” (8 November 2012)

Canada Must Move Immediately to Implement UN Committee against Torture Recommendations” (5 June 2012)

Sorry Seems To Be The Hardest Word” (22 May 2012)

60,000 People Demand Apology to Torture Victim Maher Arar from President Obama” (21 May 2012)

Canada must do more to stop torture” (17 May 2012)

Canada must withdraw Ministerial Direction on information sharing with foreign entities tainted by torture” (6 March 2012)

Maher Arar, Bradley Manning and the Sad State of the U.S. Justice System” (2 July 2011)

Tweet @BarackObama and@StateDept Demanding Apology for Torture” (27 June 2011)

The Dirty Secret About ‘Clean’ Torture” (14 June 2011)

Stand Up For Torture Victim Maher Arar” (1 June 2011)

Canada must put increased pressure on Syria on human rights” (20 May 2011)

U.S. sends man to Syria to be tortured” (17 May 2011)

USA: Amnesty International ‘Deeply Disappointed’ by Supreme Court’s Decision to Reject Arar Appeal” (14 June 2010)

 

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