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New York Times - August 10, 2005
Maher Arar case:
U.S. defends detentions at airports
By Nina Bernstein
Foreign citizens who change planes at airports in the United States can legally be seized, detained without charges, deprived of access to a lawyer or the courts, and even denied basic necessities like food, lawyers for the government said in Brooklyn federal court yesterday.
The assertion came in oral arguments over a federal lawsuit by Maher Arar, a naturalized Canadian citizen who charges that United States officials plucked him from Kennedy International Airport when he was on the way home on Sept. 26, 2002, held him in solitary confinement in a Brooklyn detention center and then shipped him to his native Syria to be interrogated under torture because officials suspected that he was a member of Al Qaeda.
Syrian and Canadian officials have cleared Mr. Arar, 35, of any terrorist connections, but United States officials maintain that "clear and unequivocal" but classified evidence shows that he is a Qaeda member. They are seeking dismissal of his lawsuit, in part through the rare assertion of a "state secrets" privilege.
The case is the first civil suit to challenge the practice known as "extraordinary rendition," in which terror suspects have been transferred for questioning to countries known for torture.
After considering legal briefs, Judge David G. Trager of United States District Court prepared several written questions for lawyers on both sides to address further, including one that focused pointedly on Mr. Arar's accusations of illegal treatment in New York. He says he was deprived of sleep and food and was coercively interrogated for days at the airport and at the Metropolitan Detention Center in Brooklyn when he was not allowed to call a lawyer, his family or the Canadian consul.
"Would not such treatment of a detainee - in any context, criminal, civil, immigration or otherwise - violate both the Constitution and clearly established case law?" Judge Trager asked.
The reply by Mary Mason, a senior trial lawyer for the government, was that it would not. Legally, she 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." …..
http://www.nytimes.com/2005/08/10/nyregion/10civil.html
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