Last week, a US federal district judge, Henry Kennedy, ruled in favor of a case brought by the survivors of the crew of the USS Pueblo, a spy ship captured by the North Korean Navy in 1968, who were held prisoner by North Korea for 11 months, and who were reportedly tortured in captivity. The judge awarded the men $65 million in damages from the state of North Korea.
Now I’m happy for the plaintiffs. Torture is flatly banned under international law, and nobody should be tortured under any conditions (whatever Supreme Court Justice Antonin Scalia may think). But let’s not ignore the irony of this ruling. In general, the federal courts have been incredibly reluctant about making such rulings against the US government for doing the same thing that North Korea did, or even worse.
Take the case of Canadian Maher Arar, a telecommunications engineer of Syrian birth who was nabbed by US intelligence officers in an airport transit hall at New York’s Kennedy International Airport in 2002 while returning home from a vacation in Tunisia. Arar was held without a lawyer, interrogated, and then renditioned on a CIA plane to Syria, where he was handed over to Syrian secret police to be tortured and interrogated and kept in a basement cell for 11 months. The brutalized Arar was later released when it was established that he had no connections to terrorism.
But while Canadian authorities have apologized to Arar, US courts have so far refused to even allow him to sue the US over his captivity and torture, accepting the US government’s claim of “national security.”
The contradictions between the handling of these two cases are striking. In the Pueblo instance, the ship was engaged in spying activity at a time that the US and North Korea were technically still at war. The US claims that the crew should not have been captured because the vessel was allegedly in international waters, though that actually would be no defense. After all, during wartime, it is common for navies to sink enemy ships anywhere they find them. (North Korea insists the ship was inside its territorial waters at the time of capture.)
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Meanwhile, Arar was grabbed by American authorities while technically outside the US, as he was simply changing planes at Kennedy and had remained in the international plane changing zone of the terminal, outside the passport check.
Furthermore, there is no dispute that the Pueblo crew was involved in military activity at the time of their ship's capture. They were gathering intelligence on a nation against which the US was at war. That, of course, does not justify their torture, but it makes their capture much more legitimate than what happened to Arar.
Arar, after all, was not even arrested. Nor was he involved in any military or intelligence or even criminal activity. He was simply kidnapped by American intelligence operatives. He was then renditioned to a third country, which is itself a crime under international law, to be tortured, which compounds the felony. And yet he has thus far been denied the right even to sue the US government for damages. Even if we were to hand the US government all the benefit of the doubt, and concede that they might have been acting on false information suggesting that Arar was an active terrorist, that would still not justify what they did to him. He should have at least had some kind of a hearing in US custody, and then, if found to be a likely terrorist, should have been either held in US custody or deported to his home country of Canada. He should never, under any circumstances, have been handed over to the security agency of a third country known to torture its captives.
And yet Arar is not allowed to sue for the criminal torment he was put through, while the Pueblo crew is awarded $65 million. (His case is currently being reconsidered by the full bench of the New York Federal Court of Appeals, which heard arguments on Dec. 9.)
Nor is he alone. While US courts have agreed that the hundreds of captives held at Guantanamo Bay and in military brigs in the US in the so-called “war” on terror have a right to bring their cases before a federal court, for the most part those courts have shown extreme deference to the Justice Department and have been upholding the right of the US government to detain people indefinitely without charge. Even though it is admitted that many or even most of these captives have been subjected to torture at the hands of their American captors, they have not been able to sue for damages. As late as last fall, one unnamed Guantanamo detainee who sued to require his captors to provide him with a mattress and a blanket had his case tossed out by a federal judge, Thomas Hogan, who, astonishingly, ruled that “while the Supreme Court’s decision in Boumediene gives Petitioner the right to challenge the fact of his confinement…it says nothing of his right to challenge the conditions of his confinement.”
Read that again please. A federal judge says he has the full authority to consider whether a terrorism detainee is being properly held—which clearly infers that at least some of the hundreds of detainees in US custody may be improperly held—but he is not allowed to rule on the conditions of their detention? This would be like saying a state court has the right to rule on whether a foster child has been properly assigned to a foster family, but no right to rule on how that child is being cared for!
A foundation principle of American justice is supposed to be “equal justice under the law.” Yet here we have a federal judge awarding $65 million to the crew of the spy ship Pueblo, in large part because of allegations regarding the conditions of their confinement as POWs in North Korea, while other judges in the same court system have ruled that a man falsely captured and sent off to be tortured by a foreign dictatorship’s secret service has no right to even bring his case and that another cannot has no right to sue to get a mattress to sleep on or a blanket to keep himself warm!
The promise of equal treatment under the law is honored in the breach in many ways in courtrooms across America every day, of course, but in the case of terrorism and POW issues, there isn’t even an attempt to pretend American courts are fair.
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