Why Arar Matters In the Terror Detainee Debate

In large part, the fate of the pending terror detainee "deal" between Congress and the White House depends upon trust. The Congress (and therefore the rest of us) will have to take the Bush Administration's word for it when its officials tell us that they are not actually "torturing" terror suspects but rather employing those "alternate procedures" that are acceptable, apparently, only because they are impossibly vague (ignorance, as always, being a virtue on Capitol Hill).

But how can Congress trust the White House when every day seems to bring a story about how the Bush Administration in the past has deceived judges, politicians, and even upstanding members of the executive branch? Monday's "story" came from the New York Times, which reported that US officials knew from their Canadian counterpartrs that Maher Arar was not a member of Al Qaeda when they labeled him a terrorist and had him shipped to Syria for torture. In other words, Scott Shane reports, the government knew that the man's deportation order was false and still allowed it to be executed upon.

Shane writes: "A close reading of the Arar Commission report offers a rare window on American actions in the case, describing seemingly flimsy evidence behind the American decision in 2002 to send Mr. Arar to a country notorious for torture; a deliberate attempt by American officials to deceive Canada about where Mr. Arar was; and lingering confusion among top American officials about the two countries' roles in the case." Shane says that what happened to Arar-- "extraordinary rendition" is the popular description of it now-- would not be directly affected by the pending detainee debate but I disagree.

The Arar episode is just another example-- the cases of Jose Padilla and Yaser Hamdi also come to mind-- where federal officials blatantly overstated the danger posed by a terrorism suspect. In each case, the executive branch then fought like a wildcat to keep its baseless judgments and justifications from public view. In each case, once the light of reason was shone upon the facts, the White House was forced to concede. These now are the same executive-branch people who are telling Congress that they must have a certain kind of leeway to continue to fight the war on terror. These are the same men and women who claim in sombre tones that they and they alone are best suited to make judgments about when and where and how and why a certain terror detainee, any detainee, ought to be judged.

Why does it make a difference? Because the White House still is pushing for a change in the law that would preclude terror detainees from taking their case to court. Because the White House is pushing for language that would better insulate from civil punishment people like the dark people who falsely accused Arar and thus enabled him to be tortured. Because the White House still arrogantly makes the arguments it does in spite of this pathetic history of candor that cases like the Arar case highlight.

By Andrew Cohen |  September 26, 2006; 7:00 AM ET
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