The Canadian Imagination

What it means to be Canadian; examining and reworking Canada as a nation.

Thursday, August 11, 2005

Constitutional status of international travellers

Very few news sources indeed are covering the story that for the first time ever, a civil suit has been filed challenging the United States government policy of extraordinary rendition.* Among United States newspapers, the New York Times, Newsday, and the Christian Science Monitor are very nearly alone.

The plaintiff is Maher Arar, detained in October 2002 by Immigration and Naturalization Service (INS) officials while on a stopover at JFK airport. Initially transferred to the Metropolitan Detention Center in Brooklyn (where he was interrogated for days while being deprived of sleep and food, where no telephone call was allowed, and where he was explicitly informed that he had no right to a lawyer), he was then secretly deported to Syria where, in addition to being tortured, he was held almost a year without being charged. (Both the Canadian and Syrian governments now acknowledge that Arar did not have anything to do with any terrorist group.)

The United States government is seeking to have the lawsuit dismissed on several grounds. Per state secrets privilege, it is claimed that any release of information on Arar could jeopardise "intelligence, foreign policy and national security interests of the United States". By itself this amounts to a blank cheque, but more of interest is the second reason given for moving to dismiss the case:

"Arar's legal status meant he was not necessarily protected by all of the rights in the US Constitution" ... Legally, [Mary Mason] said, anyone who presents a foreign passport at an American airport, even to make a connecting flight to another country, is seeking admission to the United States. If the government decides that the passenger is an "inadmissible alien," he remains legally outside the United States - and outside the reach of the Constitution - even if he is being held in a Brooklyn jail. Even if they are wrongly or illegally designated inadmissible, the government's papers say, such aliens have at most a right against "gross physical abuse."
- Christian Science Monitor
(Mary Mason is the attorney representing the United States Justice Department)
When Mason was asked more explicitly by District Court Judge Trager whether the specific denials of food, sleep, and lawyer to an unnamed prisoner would would not violate the United States Constitution and clearly estabished case law, she affirmed that it did not.

I set aside, for the purposes of this entry, the miscellaneous further complications of the case, such as the misinformation as to Arar's whereabouts by the time Arar's mother-in-law finally managed to obtain a lawyer (the family and lawyer were informed he was in New Jersey, when he was already in Syria), or the practical paradox in attempting to challenge one's deportation within 30 days from a cell in Syria: "We can't hold against Mr. Arar the failure to file a motion for review when he's locked up in a gravelike cell in Syria" (David Cole, attorney for Maher Arar).

While nothing outside a rather shaky United Nations document entrenches this in law, certain freedoms are simply assumed within the context of international travel as being essential to the bare minimum social contract: that once one's passports and necessary visas are in order, one can travel reasonably freely between countries. At most, if one is to be denied admission to a country one has not yet entered, one assumes that it would be a turning back to the country from which travel originated.

(Note that the issue of having broken a law in the country to which one seeks admission is moot, since one has not yet legally entered it. One finds a curious paradox here: at one and the same time, the traveller is assumed not to entered the country [not having been allowed entry], and thus can claim no protection based on the laws of that country; yet at the same time the traveller is also assumed to have "entered" the country sufficiently to be imprisoned based on that same body of law.)

Not only has the United States defence made no statement that improper action might have been taken in this case, not only has there been no statement suggesting any possibility whatsoever of United States government error (let alone fault); but, in contradiction to the findings of both the Syrian and Canadian governments, the United States Justice Department continues to maintain that there is secret information tying Arar to al-Qaeda: yet will not release that information based on security considerations.

(I hear in my mind something a self-proclaimed conservative friend of mine wrote last year: that one cannot make an omelet without breaking a few eggs.)

My personal test for "justice" is inversion and reciprocity: would the parallel actions be considered legal and acceptable by the United States were they to happen to a United States citizen abroad? Are those in foreign airports henceforth to be considered absolutely without constitutional right of any kind? Is the Arar case henceforth to be the standard by which global freedom and access to constitutional rights is to be measured?

The timeline
Alternate source
Commentary on the case thus far, Center for Constitutional Rights (the prosecuting attorney is a member)

* There also exists an active inquiry into the case by the Canadian government (and potentially a second lawsuit to be filed), but the question in this case is solely that of unauthorised release of information. While the Royal Canadian Mounted Police (RCMP) may indeed bear part responsibility for subsequent events due to that unauthorised release, that responsibility also ends with that release, and is thus far less sweeping in its implications globally (if not perhaps domestically). Both inquiry and lawsuit can be tracked in detail via the above link, but I mention them explicitly for completeness.


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