Sunday, July 6, 2008

Territory v. Control Redux: On the Dismissal of Maher Arar's Lawsuit v. U.S. Officials

As many readers may know, Canadian citizen of Syrian origin Maher Arar (below right, photo credit) was "abducted" in 2002 while transiting at Kennedy Airport in New York and "rendered" to Syria, where he was tortured. A Canadian commission inquiry revealed that Canadian officials had misinformed US officials; the Canadians therefore apologized and paid Arar roughly $10.3 million. In addition, as Jaya Ramji-Nogales posted, his case figured prominently in the Canadian Federal Court's assessment that the United States does not comply adequately with Article 33 of the UN Refugee Convention, which prohibits return to persecution, or Article 3 of the UN Convention against Torture (CAT), which also prohibits refoulement. Nonetheless, US Legal Advisor John B. Bellinger III announced last month (with respect to the US practice of obtaining diplomatic assurances from countries known to torture prisoners) that in keeping with its obligations under article 3 of the CAT, the US does not transfer prisoners to countries that torture. He emphasized, however, that the non-refoulement provision applies only to persons actually in the United States. Apparently agreeing with him, the Second Circuit Court of Appeals ruled Monday that Arar cannot sue United States officials for damages because he was never technically within US territory. Isn't the airport transit zone, just like the Guantánamo naval base, under the complete control of the United States and therefore US "territory" for purposes of the Convention as well as for habeas corpus?

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