Arar filed a lawsuit in the US seeking to hold American officials accountable for their actions. The suit alleged that US authorities held Arar incommunicado under harsh conditions in Brooklyn during days of interrogation. When his family hired a lawyer, officials allegedly deceived her to prevent her from seeking judicial review of Arar’s threatened deportation to Syria.
The suit also alleged that US officials conspired to have Syrian authorities use torture to gain answers federal agents were unable to obtain during questioning in the US.
US officials have denied the allegation that they conspired to have Arar tortured. They said they obtained assurances from Syria that Arar would not be tortured.
To date, the US government position on Arar has been to insist that Arar has no legal right to seek to hold American officials accountable for his ordeal.
In denying review of Arar’s case, the high court lets stand a 7 to 4 ruling by the full Second US Circuit Court of Appeals in New York. That court found that because of “special factors” involving national security, Arar’s lawsuit should be dismissed. It also ruled that the Torture Victim Protection Act did not authorize lawsuits against US officials who were acting under US law on American soil.
"This case does not concern the propriety of torture or whether it should be countenanced by the courts,” wrote Acting Solicitor General Neal Katyal in the US government’s brief urging the court to dismiss the case.
He said because of national security concerns, lawsuits such as Arar’s must be dismissed, even when there is no other legal recourse available to address alleged government misconduct.
It is up to Congress, not the courts, to establish the scope of legal safeguards, he said. “Judicial refusal to create a private cause of action in this context does not leave the executive power unbounded,” Mr. Katyal wrote.