Дело Махера Арара: Похищение и преследование канадского инженера сирийского происхождения.

Syrian Canadian telecommunications engineer

Maher Arar (ماهر عرار) (born 1970) is a telecommunications engineer with dual Syrian and Canadian citizenship who has resided in Canada since 1987. Arar was detained during a layover at John F. Kennedy International Airport in September 2002 on his way home to Canada from a family vacation in Tunis. He was detained in Syria for almost a year, during which time he was tortured, according to the findings of a commission of inquiry ordered by the Canadian government, until his release to Canada. The Syrian government later stated that Arar was "completely innocent." A Canadian commission publicly cleared Arar of any links to terrorism, and the government of Canada later settled out of court with Arar. He received C$10.5 million and Prime Minister Stephen Harper formally apologized to Arar for Canada's role in his "terrible ordeal." Arar, represented by lawyers from the Center for Constitutional Rights, filed a lawsuit in the Eastern District of New York, Arar v. Ashcroft, seeking compensatory damages and a declaration that the actions of the US government were illegal and violated his constitutional, civil, and international human rights. After the lawsuit was dismissed by the Federal District Court, the Second Circuit Court of Appeals upheld the dismissal on November 2, 2009. The Supreme Court of the United States declined to review the case on June 14, 2010.

Maher Arar was born in Syria in 1970 and moved to Canada with his parents at the age of 17 in 1987 to avoid mandatory military service. In 1991, Arar became a Canadian citizen. Arar earned a bachelor's degree in computer engineering from McGill University and a master's degree in telecommunications from the Institut National de la Recherche Scientifique (a branch of the Université du Québec) in Montreal. While studying at McGill University, Arar met Monia Mazigh. Arar and Mazigh married in 1994. Mazigh holds a PhD in finance from McGill University. They have two children: Barâa and Houd. In December 1997, Arar moved with his family to Ottawa from Montreal and listed Abdullah Almalki as his "emergency contact" with his landlord. In 1999, he moved again to Boston to work for MathWorks, a job that required a considerable amount of travel within the United States. In 2001, Arar returned to Ottawa to start his own consulting company, Simcomms Inc. At the time of his rendition, Arar was employed in Ottawa as a telecommunications engineer.

On September 22, 2001, Jack Hooper, the director general of the Toronto region of Canadian Security Intelligence Service (CSIS), chaired a meeting of members of CSIS, the Royal Canadian Mounted Police (RCMP) and the Ontario Provincial Police, Toronto Police Service, and Peel Regional Police. On September 24, 2001, the RCMP's "O" Division in Toronto created a joint force investigative team called Project O Canada to handle national security investigations. The Toronto team included RCMP investigators and members of the Ontario, Peel, and Toronto police forces. In October 2001, Inspector Garry Clement, officer of the RCMP "A" Division in Ottawa, told RCMP Inspector Michel Cabana that Toronto's Project O Canada needed a team in Ottawa to help with its investigations of an Ottawa man named Abdullah Almalki. In response, Project A O Canada was created. Garry Clement told Michel Cabana that the team would be working closely with the US Federal Bureau of Investigation (FBI) and Central Intelligence Agency (CIA). Later on, the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar revealed that there were no clear directions to RCMP officers regarding how to share information with the FBI and the CIA. Richard Proulx, a RCMP officer and then assistant RCMP commissioner, was the official singled out in the report for failing to provide these clear directions. The A O Canada team included investigators and members from: the RCMP commercial crimes unit, "A" Divisions IPOC unit; the RCMP National Security Investigations Branch (NSIS), CSIS, the Ottawa Police, Gatineau Police, Hull Police and Ontario Provincial Police; the Sûreté du Québec; the Canada Border Services Agency; and the Canada Customs and Revenue Agency, and the support of lawyers from the Canadian Justice Department. After he had moved back to Ottawa, Arar had a meeting with Abdullah Almalki on October 12, 2001. Almalki, an Ottawa engineer, was also born in Syria and had moved to Canada in the same year as Arar. They met at the Mango Café, a popular shawarma restaurant in a strip mall and talked about doctors and bought a print cartridge together. At the time their movements were under close scrutiny by teams of Project A O Canada. at a Kabul safehouse run by Abu Musab al Suri or Abu Musab al Zarqawi. The validity of Omar Khadr's possible sighting has been seriously questioned due to the time frame of the alleged sighting which was sometime during September or October 2001. Arar was known to be in North America during this time frame and under surveillance by the RCMP. Khadr's lawyer told Canadian media that Khadr, claiming to be under torture at Bagram Theater Internment Facility, simply told his captors whatever he thought they wanted to hear. Lawyers and advocates familiar with the case immediately dismissed the allegations. The information gathered from the United States' interrogation of Omar Khadr conflicts with the information gathered previously from the RCMP. Michael Edelson stated in public testimony given during the Arar Inquiry that RCMP officials from Project AO Canada had shown pictures of Arar to Khadr in either July or August 2002 and that Khadr denied ever seeing Maher Arar. Within an affidavit, Khadr stated he was visited by three individuals claiming to be Canadians at Guantanamo Bay in March 2003. During their three day visit, he was shown "approximately 20 pictures of various people" and asked about several people "such as my father and Arar." At which time he told them "what [he] knew."

On September 26, 2002, during a stopover in New York City en route from a family vacation in Tunisia to Montreal, Arar was detained by the United States Immigration and Naturalization Service (INS). The INS was acting upon information supplied by the RCMP. When it became clear he was going to be deported, Arar requested he be deported to Canada; though he had not visited Syria since his move to Canada, he retained Syrian citizenship as Syria does not permit the renunciation of citizenship. Canadian (initially) and United States officials have labelled his transfer to Syria as a deportation, but critics have called the removal an example of rendition for torture by proxy, as the Syrian government is infamous for its torture of detainees. Despite the recent public rhetoric, at the time of Arar's deportation, Syria was working closely with the United States government in their "War on Terror." In November 2003, Cofer Black, then counterterrorism coordinator at the US State Department and former director of counterterrorism at the CIA, was quoted as saying "The Syrian government has provided some very useful assistance on al Qaeda in the past." In September 2002, the George W. Bush administration opposed the enactment of the "Syria Accountability Act" citing effectiveness of current sanctions and the ongoing diplomacy in the region. In addition, the administration noted the cooperation and support by Syria in fighting al Qaida as a reason for its opposition to the "Syria Accountability Act."

US officials repeatedly questioned Arar about his connection to certain members of al Qaeda. His interrogators also claimed that Arar was an associate of Abdullah Almalki, the Syrian born Ottawa man whom they suspected of having links to al Qaeda, and they therefore suspected Arar of being an al Qaeda member himself. When Arar protested that he only had a casual relationship with Almalki, having once worked with Almalki's brother at an Ottawa high tech firm, the officials produced a copy of Arar's 1997 rental lease which Almalki had co signed. The fact that US officials had a Canadian document in their possession was later widely interpreted as evidence of the participation by Canadian authorities in Arar's detention. It was later found that Almalki's signature was not on the lease agreement, he was listed by Arar as emergency contact. Arar's requests for a lawyer were dismissed on the basis that he was not a US citizen, therefore he did not have the right to receive counsel. Despite his denials, he remained in US custody for two weeks and eventually was put on a small jet which first landed in Washington, D. C., and then in Amman, Jordan.

Once in Amman, Arar claims he was blindfolded, shackled and put in a van. "They made me bend my head down in the back seat," Arar recalled. "Then these men started beating me. Every time I tried to talk, they beat me." Arar was transferred to a prison, where he claims he was beaten for several hours and forced to falsely confess that he had attended an Al Qaeda training camp in Afghanistan. "I was willing to do anything to stop the torture," he says. Arar described his cell as a three foot by six foot "grave" with no light and plenty of rats. During the more than 10 months he was imprisoned and held in solitary confinement, he was beaten regularly with shredded cables. Through the walls of his cell, Arar could hear the screams of other prisoners who were also being tortured. The Syrian government shared the results of its investigation with the United States. Arar believes that his torturers were given a dossier of specific questions by United States interrogators, noting that he was asked identical questions both in the United States and in Syria. While he was imprisoned, Arar's wife Monia Mazigh conducted an active campaign in Canada to secure his release. Upon his release in October 2003, Syria announced they could find no terrorist links. Syrian official Imad Moustapha stated that "We tried to find anything. We couldn't." Syrian authorities also denied that they tortured Arar.

Arar was released on October 5, 2003, 374 days after his removal to Syria. He returned to Canada, reuniting with his wife and children. The couple moved to Kamloops, in British Columbia, where his wife Monia accepted a job as professor at Thompson Rivers University. The couple later moved back to Ottawa. Back in Canada, Arar claimed that he had been tortured in Syria and sought to clear his name, embarking on legal challenges both in Canada and in the United States as well as a public education campaign. Arar received a PhD in electrical engineering from the University of Ottawa in 2010.

The rendition of Maher Arar has received much attention and scrutiny in Canada, both in the media and in the government.

Arar's case reached new heights of controversy after reporter Juliet O'Neill wrote an article in the Ottawa Citizen on November 8, 2003, containing information leaked to her from an unknown security source, possibly within the RCMP. The secret documents provided by her source suggested Arar was a trained member of an al Qaeda terrorist cell. The RCMP later raided O'Neill's house pursuant to sealed search warrants it had obtained to investigate the leak. In November 2004, Ontario Superior Court Judge Lynn Ratushny ruled that the sealing of the search warrants was unacceptable, although Justice of the Peace Richard Sculthorpe had given approval after the RCMP invoked the Security of Information Act. Justice Ratushny stated that the sealing of the search violated guarantees of a free press, freedom of expression and the public's right to an open court system. She ordered that a redacted copy be released to the public. All materials that were seized were subsequently ordered returned to O'Neill after Ontario Superior Court Judge Ratushny struck down Section 4 of the Security of Information Act, ruling that it was "unconstitutionally vague" and broad and an infringement of freedom of expression. In May 2008, the RCMP closed the investigation, labeled Operation Soya, without concluding who leaked the false information.

On September 25, 2004, the results of an internal RCMP investigation by RCMP Chief Superintendent Brian Garvie were published. Though the version released to the public was censored, the Garvie Report documented several instances of impropriety by the RCMP in the Arar case. Among its revelations were that the RCMP was responsible for giving American authorities sensitive information on Arar with no attached provisos about how this information might be used. Also, Richard Roy, the RCMP liaison officer with the Department of Foreign Affairs, may have known of the plan of removing Arar to Syria but did not contact his supervisors. Additionally, Deputy RCMP Commissioner Garry Loeppky lobbied hard, in the spring of 2003, to convince his government (then led by Liberal Prime Minister Jean Chrétien) not to claim in a letter to Syria, that it "had no evidence Arar was involved in any terrorist activities" because Arar "remained a person of great interest." In response to the Garvie Report, Arar said that the report was "just the starting point to find out the truth about what happened to me" and that it "exposes the fact that the government was misleading the public when they said Canada had nothing to do with sending me to Syria."

On February 5, 2004, the Canadian government established the "Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar" to investigate and report on the actions of Canadian officials. The United States refused to participate in the inquiry and, until January 2007, refused to share its own evidence with Canadian officials. On June 14, 2005, Franco Pillarella, Canadian ambassador to Syria at the time of Arar's removal, said that at the time he had no reason to believe Arar had been badly treated, and in general had no reason to conclusively believe that Syria engaged in routine torture. These statements prompted widespread incredulity in the Canadian media, and a former Canadian UN ambassador responded to Pillarella asserting that Syria's human rights abuses were well known and well documented by many sources. On September 14, 2005, the O'Connor commission concluded public hearings after testimony from 85 witnesses. Maher Arar did not testify before the commission. On September 18, 2006, the Canadian Commission of Inquiry, led by Dennis O'Connor, Associate Chief Justice of Ontario, issued its report. The final report exonerates Arar and categorically states that there is no evidence linking Arar to terrorist activity, stating "there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada." The commission also found no evidence that Canadian officials acquiesced in the US decision to detain and remove Arar to Syria, but that it is very likely that the US relied on inaccurate and unfair information about Arar that was provided by Canadian officials. The report also confirms that he was tortured while in Syria. O'Connor cleared Arar of terrorism allegations, and found the actions of Canadian officials likely led to his being deported by US authorities to Syria. On August 9, 2007, an addendum to the final report containing previously undisclosed portions was released. The final report was released with certain portions blacked out for reasons of national security by the Canadian government. Under the rules for the inquiry, the decision to release the remaining portions of the final report were to be decided within the Canadian courts. In July 2007, the Federal Court ruled that portions of the previously removed text could be released.

On January 26, 2007, after months of negotiations between the Canadian government and Arar's Canadian legal counsel, Prime Minister Stephen Harper issued a formal apology to Arar on behalf of the Canadian government, apologizing "for any role Canadian officials may have played in what happened to Mr. Arar, Monia Mazigh and their family in 2002 and 2003" and announced that Arar would receive C$10.5 million settlement for his ordeal and an additional one million for legal costs.

In January 2004, Arar announced that he would be suing then Attorney General of the United States John Ashcroft over his treatment. The Center for Constitutional Rights brought the suit Arar v. Ashcroft against former Attorney General John Ashcroft, FBI Director Robert Mueller, and then Secretary of Homeland Security Tom Ridge, as well as numerous US immigration officials. It charges the defendants violated Arar's constitutional right to due process; his right to choose a country of removal other than one in which he would be tortured, as guaranteed under the Torture Victims Protection Act; and his rights under international law. The suit charges that Arar's Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the US. Additionally, the Attorney General and INS officials who carried out his deportation also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation. Further, Arar filed a claim under the Torture Victims Protection Act, adopted by the United States Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in a US court. Arar's claim under the act against Ashcroft and the INS directors is based upon their complicity in bringing about the torture he suffered. The case was filed in the United States District Court for the Eastern District of New York. In the case, Arar is seeking compensatory and punitive damages and a declaration that the actions of the US government were illegal and violated his constitutional, civil, and international human rights. A year after the case was filed, the US government invoked the rarely used "State Secrets Privilege" in a motion to dismiss the suit. The government claimed that to go forward in an open court would jeopardize the United States' intelligence, foreign policy, and national security interests. Specifically, the government's invocation of the state secrets privilege asserted that disclosure of "the basis for the rejection of plaintiff's designation of Canada as the country to which plaintiff wished to be removed," "the basis for the decision to exclude plaintiff from this country," and "the considerations involved in the decision to remove him to Syria" would damage national security interests. On February 16, 2006, Brooklyn District Court Judge David Trager dismissed Arar's lawsuit against members of the George W. Bush administration, basing his decision on national security grounds. Center for Constitutional Rights attorneys appealed the case to the Second Circuit Court of Appeals which subsequently upheld the dismissal. On August 13, 2008, reports appeared in the press that the US Court of Appeals Second Circuit had agreed to rehear the case, en banc. On December 9, 2008, oral arguments were heard by the entire twelve member appeals court. In a 7 4 decision dated November 2, 2009, the 2nd Circuit United States Court of Appeals upheld the ruling by the district court. In dismissing Arar's claim, Chief Judge Dennis Jacobs wrote "Our ruling does not preclude judicial review and oversight in this context. But if a civil
remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available." Following the court's decision Arar made the following statement,

After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch. Unfortunately, this recent decision and decisions taken on other similar cases, prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law. The Center for Constitutional Rights, who represents Maher Arar, petitioned the US Supreme Court on February 1, 2010, to hear the Arar case but the Court declined.

Throughout the Bush administration's term, it continued to maintain that Arar's rendition to Syria was legal and well within its rights. The government has not publicly acknowledged that Arar was tortured in Syria.

Despite the inquiry's exoneration of Arar, the United States has also refused to remove Arar from its watchlist. Stockwell Day was invited to look at the evidence in the United States' possession in January 2007. In his opinion, the administration is unjustified in continuing to bar Arar from entering the United States. Reportedly, the United States continues to refuse to remove Arar from the watchlist because of "his personal associations and travel history." Following Day's efforts to remove Arar from the watchlist, US Ambassador to Canada David Wilkins chided Canada for questioning whom the United States can and cannot allow into their country. Notwithstanding, Prime Minister Stephen Harper has vowed to continue to press the United States on this matter. On January 26, 2007, Harper rebuked Wilkins with respect to the Canadian government's efforts to remove him from the US watch list, stating, "Canada has every right to go to bat for one of its citizens when the government believes a Canadian is being unfairly treated." On October 20, 2007, The Globe and Mail reported that it had seen classified American documents revealing evidence on which the United States acted: "Maher Arar's denials that he ever went to Afghanistan are contradicted by a man convicted of immigration fraud and a self confessed mujahedeen instructor who says he spotted him there in the early 1990s. " The newspaper stated that the informant, Mohamed Kamal Elzahabi, also faced charges of lying to the Federal Bureau of Investigation, and that "his credibility is very much at issue." It added that, even crediting his description of his acquaintance with Arar, "the encounter appears to have been, at most, fleeting." Former Attorney General Alberto Gonzales noted that the United States had assurances from Syria that Arar would not be tortured. This was dismissed by Leahy, remarking that the United States got "assurances from a country that we also say, now, we can't talk to them because we can't take their word for anything?" The senator was alluding to the Bush administration's policy of refraining from talking to Iran and Syria. Syria is on the US State Department's list of states that sponsor terrorism. On October 18, 2007, Arar spoke via video link before the House Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight, and the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties at a hearing that is examining his case and the practice of rendition. In his statement to the committee, he detailed his experiences and expressed his hope that his case will not be repeated. "I now understand how fragile our human rights and freedoms are, and how easily they can be taken from us by the very same governments and institutions that have sworn to protect us. I also know that the only way I will ever be able to move on in my life and have a future is if I can find out why this happened to me, and help prevent it from happening to others." Members of Congress took the opportunity to personally apologize to Arar. Bill Delahunt, a Massachusetts Democrat, commented on the United States government's inaction, saying, "Let me personally give you what our government has not: an apology." "Let me apologize to you and the Canadian people," he continued, "for our government's role in a mistake." Dana Rohrabacher, a California Republican, agreed that lawmakers "should be ashamed" of the case, but defended the practice of rendition, claiming that it has "protected the lives of hundreds of thousands if not millions of American lives." On October 24, 2007, US Secretary of State Condoleezza Rice, while testifying in Washington before the House of Representatives foreign affairs committee, admitted that the US communication with the Canadian government was not handled properly. "We have told the Canadian government we do not think this was handled particularly well in terms of our own relationship and we will try to do better in the future," Rice said while testifying before the House of Representatives foreign affairs committee. On June 5, 2008, a joint hearing entitled "U. S. Department of Homeland Security Inspector General Report OIG 08 18: The Removal of a Canadian Citizen to Syria" was held by the Subcommittee on the Constitution, Civil Rights, and Civil Liberties and the Subcommittee on International Organizations, Human Rights, and Oversight. In his opening remarks DHS Inspector General Skinner noted that his office had reopened their investigation into the Arar case based upon "recently
received additional classified information that could be germane to [their] findings"video. A redacted copy of the Department of Homeland Security report was released. A redacted addendum to the initial DHS OIG report was released in March 2010. The follow up report focused on whether the State Department was involved in the discussions concerning the removal of Maher Arar to Syria. Although no follow up recommendations were made the follow up report showed that only a brief courtesy call was made by the Deputy Attorney General to the Deputy Secretary of State with no discussion on assurances that Arar would not be tortured. Also interviewed was the former legal advisor to the Department of State who "told [DHS OIG] that normally his office would have been involved in a similar removal matter. However, he reaffirmed that he was unaware of DOS involvement in Mr. Arar's removal." Further explaining previous reports stating that Arar's removal to Canada would be prejudicial to the United States, the removal decision was made on the "belief that Mr. Arar was a dangerous person and the porous nature of the Canadian/US border will allow Mr. Arar easy access to the United States." On June 10, 2008, a hearing about diplomatic assurances was held by the Subcommittee on International Organizations, Human Rights, and Oversight. video In his opening statement Representative Bill Delahunt cited the case of Maher Arar and the ambiguousness of assurance received from Syria. It appears that when Arar was removed, the State Department was not consulted when assurances that Arar would not be tortured were obtained. The sole witness was John B. Bellinger III, the legal advisor of the US State Department (previously White House Senior Associate Counsel to the President and Legal Adviser to the National Security Council). Bellinger has previously spoken on the Arar case. In a letter dated June 10, 2008, US Representatives John Conyers, Jr., Jerrold Nadler, and Bill Delahunt requested of the Attorney General the appointment of a "special counsel to investigate and prosecute any violation of federal criminal laws related to the removal of Canadian citizen, Maher Arar, to Syria." Responding in a letter to Representatives Conyers, Nadler, and Delahunt, Attorney General Michael Mukasey said that he does not believes it warrants a special prosecutor at this time. During the House Committee on the Judiciary oversight hearing Representative Delahunt questioned the Attorney General about his letter and the issue of assurances. When questioned the Attorney General stated that a classified briefing on the assurances from Syria was offered to Representatives Conyers, Nadler, and Delahunt. Representative Delahunt choose not to attend giving the reason of his concern for inadvertently disclosing classified information in public setting. In addition, the Attorney General stated that "sending [Mr. Arar] to Canada could have posed a danger to [the United States]" and sending "him to Syria was safer given those assurances."

During a telephone conversation on October 6, 2006, Harper notified President Bush that Canada intended to lodge a formal protest over US treatment of Arar. The notification was later followed by a letter of protest sent from Canadian Minister of Foreign Affairs Peter MacKay to US Secretary of State Condoleezza Rice. Harper told reporters that Canada wants "the United States government [to] come clean with its version of events, to acknowledge the deficiencies and inappropriate conduct that occurred in this case, particularly vis à vis its relationship with the Canadian government." In particular, Canada wants United States' assurances, said Harper, that "these kinds of incidents will not be repeated in the future."

Little has been said publicly about Maher Arar by President Obama's administration. In an interview with Neil Macdonald of CBC, US Homeland Security Secretary Janet Napolitano stated that it is the opinion of those who have reviewed Arar's case that "his status should not now be changed." When questioned about the validity of Canada's findings in all matters relating to Arar, Secretary Napolitano clarified saying "his status at least for admission to the United States purposes should not be changed." The Obama administration modified the government's standard for using the state secrets claim. It is unknown how the changes will affect Arar's case against the United States in which the government lawyers had invoked the state secrets privilege. The new standard took effect on October 1, 2009.