February 17, 2006

Not Every Clinton Judge Is an Embarassment

It's a truism that whenever some insane ruling (or likely ruling) rolls down the road, we nearly always discover that a Clinton crony sits at the heart of it.

But we would be unfair and imbalanced if we didn't point out when a Clinton judge -- confirmed while the Democrats still controlled the Senate, even -- makes a great decision. And Judge David G. Trager just got it right, very right, in a cause fraught with peril... literally, as a bad decision would have put us on a collision course with disaster in the war on jihadi terrorism.

Judge Tosses Lawsuit Alleging U.S. Deported Man to Syria for Torture
Associated Press
Friday, February 17, 2006

NEW YORK — A federal judge has tossed out a civil rights lawsuit filed by a Syrian-born Canadian man who claimed U.S. counterterrorism officials deported him so he could be tortured in Syria.

Maher Arar had sued the officials in 2004 in what was believed to be the first case challenging extraordinary rendition — the policy of transferring foreign terror suspects to third countries without court approval.

Arar is not an American citizen, nor is he a U.S. resident. He carries dual Syrian-Canadian citizenship and only passed through the United States en route from Tunisia back to Montréal. While in JFK, transitioning from one plane to another, the Immigration and Naturalization Service (INS), as it was known then, detained Arar when his name popped upon a terrorist watch list. He was taken and interrogated, then eventually deported to Syria -- where he claims he was tortured by the Syrians (who deny the allegation).

An "independent" investigator, law professor and political activist Stephen Toope, says the he believes Arar was tortured; but Toope, the president of the Trudeau Foundation, is a "human rights" activist whose specialty appears to be extreme rendition, which he vigorously opposes. So his own objectivity is certainly open to question.

Arar has become a huge cause celebre among liberals and Democrats -- on both sides of the 49th parallel, as the Arar case resulted in numerous investigations and fulminations in Canada, being seized upon as evidence of President Bush's perfidy by both the anti-American Liberal government of Paul Edgar Philippe Martin and the near-Socialist New Democratic Party under Alexa McDonough... despite the fact (or perhaps because of the fact) that Canadian officials were involved in the detention: it was the Royal Canadian Mounted Police who provided the American INS with the watch list that included Arar's name; and the Canadian Consulate admitted that they knew Arar was in custody in the United States, but did not know (they said) that he was to be deported to Jordan or Syria.

Arar's story -- invariably told from Arar's viewpoint with little or no attempt to get our side of it -- appeared in Time Canada (Google cache), Counterpunch, CBC News, the New York Times (reprint from a lefty website; you can visit the NYT and pay for the archived article, if you wish to compare them), and other favorite liberal and lefty sources.

But despite all that pressure, Judge Trager made a very sharp and (oddly) courageous ruling that since Arar was not any kind of a U.S. person, the law he was suing under did not apply to him:

U.S. District Judge David G. Trager rejected arguments that Arar was protected by the Torture Victim Prevention Act, which allows U.S. courts to assess damages for human rights abuses committed abroad.

Trager said that as a non-citizen, Arar couldn't demonstrate that he has a viable cause of action under that statute.

Citing "the national security and foreign policy considerations at stake," the judge said Arar had no grounds in a U.S. court to claim his constitutional right to due process was violated.

In other words, Judge Trager actually relied upon the law, rather than his gut feeling about what was "right" (or what some international tribunal says our law ought to be). The Torture Victim Prevention Act does not apply to foreigners living abroad; unlike Belgium, American courts do not claim to have jurisdiction over any "crime against humanity" committed by anybody, against anybody, anywhere in the world.

So he kicked it. And to hell with the liberal whiners who wanted Trager to use the claim to indict the Bush administration generally and the "rendition" policy (if it even exists) in particular... that is, to substitute the liberal foreign policy of Clinton for the conservative foreign policy of Bush at gavel-point.

To his great credit, Judge Trager refused to play that game. And I think if we're going to castigate judges who scamp the law in favor of their own preferences, we should salute those judges -- no matter who appointed them -- who do the opposite.

Hatched by Dafydd on this day, February 17, 2006, at the time of 5:17 PM

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Arthur Silber and Atrios are dismayed regarding a recent ruling by a federal judge. A federal judge has tossed out a civil rights lawsuit filed by a Syrian-born Canadian man who claimed U.S. counterterrorism officials deported him so he could [Read More]

Tracked on February 21, 2006 8:04 AM

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The following hissed in response by: John Sobieski

The above hissed in response by: John Sobieski at February 17, 2006 7:11 PM

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