A National Disgrace

A court’s overt disregard for the central role of judges in policing executive branch excesses has frightening implications for safeguarding civil liberties.

Comments: 125

  1. The judicial system has become a political branch of government. The best excuse of the 3 branches is to blame it on the other branch. Our whole system is decaying ,and we are losing our democracy by the incompetent people we choose to lead our country.

  2. Let's hear it for American exceptionalism!

  3. The Second Circuit makes teaching American Government easier. Now we only need to teach about 2 branches of government, not 3. The experiment in an independent judiciary was courageous but demands too much of the current generation of moral pygmies which has captured the American political system.

  4. Chief Judge Jacobs misses the point entirely when saying this lawsuit sought review of how renditions should be conducted. There is always a tort remedy for negligence resulting in damage to a person. Money. There was no justificiation for the Court to comment on the political foundation of the act of rendition when it was being asked to make a victim whole.

  5. Obama, Where Art Thou?

  6. If you think the majority opinion in the Second Circuit Court of Appeals was wrong on the law, tell us why. The majority said Congress had not authorized damages for this egregious conduct by the executive branch. If Congress does not have to do so, tell us why. If Congress did do so, tell us where. Pound the court with your reasoning and logic, not just your shoe.

    the table. P

  7. This is what happens when Presidents appoint judges who identify with the oppressors & devalue the oppressed. It doesn't really matter what Constitutional theory the judges espouse; they usually find a way to exonerate the powerful & ignore their victims. The American judicial system has lost nearly all its credibility. Today, for the most part, it is at best a parody of jurisprudence, a farce played out in costume. Unfortunately, the actors are scarier than they are funny. Ask Mr. Arar.

    The Constant Weader at www.RealityChex.com

  8. Brilliant! Than you! Can the writer of this editorial please replace the writers of all the others? The voice of truth! Thanks God! Where were you all this time?

  9. George Bush, Dick Cheney, Donald Rumsfeld, and the other Bush administration ghouls who conceived of and ordered these egregious violations of American and international law are the correct people to prosecute. Even if the judgments outlined here were respected in the U.S.A., the people ultimately responsible for these travesties would still be getting off scot free.

  10. The ruling goes against our "life, liberty and pursuit of happiness" ideals. To mis-quote Voltaire: "unfortunately, common decency is none too common".

  11. When you look at the societies that went bad, you want to ask "how did this happen to "good" people?".

    The answer, of course, is that the people let it happen because they were afraid. Afraid of "Communists", afraid of "Jews", afraid of gangs sent out by thugs so the thug could then promise to protect the people from the gangs. The Jews are taking yours, the immigrants are taking yours. Its so easy.

    The land of the free and the home of the brave has become the land of rapidly diminishing freedoms and the home of the fearful.

    If the Continental Congress were meeting in Philadelphi today, this is what a fly on the wall would hear:
    "Mr. Adams, its time to go home".
    John Adams: But we haven't achieved our freedom yet.
    "Mr Adams, the British are at our doorstep, plotting the death and destruction of our families.
    John Adams: But what about civil rights?
    "Mr. Adams, you can't have civil rights if you're dead".
    John Adams: But we have an obligation to those who come after us to preserve and defend the Constitution Tom's writing.
    "Mr. Adams, it simply isn't safe. Our primary obligation is not to freedom or civil rights or this nascent Constitution. It is to keeping our families safe.
    Nathan Hale: I regret that I have but one life, and I'm not willing to give it up for my country
    Patrick Henry: Give me security, or give me death
    Benjamin Franklin: he who would give up liberty for security...is a nutjob.

    Sigh

  12. One wonders if Bush or Cheney have given even a moment's thought to the devastation they wreaked on our country and most of the world during the Hellish eight years of their governance.

    This case would not even exist had we had an honest election in 2000.
    Before that, we still had some semblance of a Democracy.
    Now I'm not so sure.

  13. Yes, the Supreme Court should reverse this cowardly, pass-the-buck ruling, and it should do so unanimously. It would be refreshing indeed to see civil liberties upheld across the entire political spectrum of the Court's current makeup.



  14. re the case of Mr.Arar, What the hell kind of judges are in the U.S. courts today? It will be interesting to see if the Supremes have better morals and judgement.

  15. As in all instances, the Supreme Court "Big 4" knew how they would rule as soon as the case was filed. All they have to do is convince Kennedy, and they will. The end.

  16. America, the fearful.

  17. Actually, the Italian court only got it half right. While convicting the Cia officers involved in the case, they hid behind a very questionable interpretation of Italy's national security statutes to shield all of its own (including the former chief of military intelligence).

    I fear that judge Calabresi's opinion, unfortunately, applies to the Italian court as well: its decision, too, should and will be viewed with dismay

  18. Give it a break already, with your moralising, where Syria's responsibility in the Arar case, he was Syrian born and had moved to Canada recently, no one told Syria to torture their own citizen.

    You are the same paper that exposed the governments surveillance program, the same program that was used to monitor Mr Hasan, and because of paper's like this, who would have been outraged if the FBI had taken him into custody and questioned him, editorialising that his civil liberties had been violated and the information had been attained by the government spying on it's citizens,so instead we had him on the lose, to do any manor of crimes.

    What the NYT's doesn't understand and what the Bush administration did, is that if another 911 happens, all your moralising and civil liberties whining will be nothing to what America will tolerate their government doing to the Mr Hasan's and Arar's of the world.

    And it's a little suspect the you sound appalled about extraordinary rendition, but conveniently forget to tell your readers that the Obama administration has retained the practice or that it began under Clinton..... funny how you're outraged at pass deeds, you would think that the Editorial board of the NYT's would be more concerned about future Obama administration renditions of the" innocent", and mention it in the article, guess not.

  19. Let me guess, most of those judges were appointed by Reagan and/or the Bushes.

    However, even if true, that does not absolve the Obama administration for failure to uphold justice and human rights under our constitution.

    I voted for you, Mr. Obama, and am extremely disappointed in your response to this and similar cases. Are you afraid of pursuing justice and protecting rights for some reason, sir? Are there "other powers" in the government constraining your actions? Repercussions that you fear? Because, I've got to believe that, morally, you know better, sir.

    You ought to know that your political enemies will attack your reputation no matter what decisions you make or actions you take. You've got me concerned that you fear for more than your reputation when you fail to redress such egregious wrongs that are within your purview to do.

  20. The Times in its zeal to protect rights of people identified by another country (Canada) a potential terrorists misleads us to comparison with the seemingly similar Italian case.

    Italy, in the first place, has not (yet) been a subject of substantive terrorist attacks - it has been years since their prime minister was murdered by some 'red army' gang or whatever. Well before the muslim terrorist become a commonplace. So, they had the luxury to characterize 'rendering' as a 'kidnapping' with the result to complicate life of some two dozens of Americans following orders who now cannot travel to Italy and perhaps to other EU countries.

    The responsible party in the US case was Canada and, apparently, the Canadian government did the right thing to pay substantial amount of money to this individual.

    He should have been satisfied and not become too greedy to sue our government as well. The US judges had it exactly right: the policy of 'extraordinary rendering' was our government policy deemed by the previous administration as essential to prevent another 9/11. Now we can and should implement other policies but the Times refuses to remember the first years after 9/11 when we all felt that another, even worse attacks were imminent. Were they prevented by the harsh policies of the Bush administration? That's now for the historians to determine.

    As the case of Dr. Hasan indicates, there are still very active forces outside USA that want to kill as many of us as they can. Is it conceivable that in the recent climate of enhanced political correctness the FBI and the armed forces did not follow Dr. Hasan closely enough making his murders possible? Again, only further facts just emerging will confirm or refute this idea.

    I doubt that our Supreme Court will even take this case being evenly divided as our nation is on major issues of security and fight against terrorists (war on terrorism was an unnecessary exaggeration). If it does, it should follow the rulings of the lower courts, not to overturn them.

    The natural liberal instincts are to die for abstract principles - in reality, of course, few if any actually die but the collective influence of political correctness may and does kill significant number of innocents.

  21. Rendering punishment to a innocent, stifles the balance of Justice. Sometime! innocence pay off at the altar of Freedom and Justice.

  22. Canada did not supply "false" information. It misread Mr. Arar's name and thought it was one that the CIA was looking for, making it *mistaken* information -- a subtle degree of difference, thank you.

    But the whole "let's pick them up, send them to Syria, and, then if there's nothing to be had, just dump them someplace" routine of "extraordinary rendition" simply smacks of totalitarianism all around. The only reason we wont torture them on our own soil is because of potential (and deserved) lawsuits for false imprisonment, so we make sure *our* hands are (relatively) clean by shipping them off to someone else to do our dirty work for us. Between this and the sad and pathetic treatment afforded the inmates at Gitmo -- where only a handful of the hundreds roudned up have poven to be guilty of much of anything more dangerous than being BinLaden's driver -- just demonstrates how wrong-headed our sense of justice has become.

    And I fear it's only going to get worse. Gitmo is still open, despite Obama's statement that he would close it. Even though three US cities have said they would take the inmates, the "Department of Homeland Security" (read: the Department of National Paranoia) has said no -- and it doesnt take much to know why: the minute one of them is released after all this time, with no formal charges files in all those years, the US government would be looking at a serious lawsuit. It would no doubt ignore it, but it's just another black eye to a country that still thinks itself a "world leader". A leader of what, one might ask.

  23. Allowing suits against policy makers for rendition and torture would “affect diplomacy, foreign policy and the security of the nation,” Judge Jacobs said.

    What Judge Jacobs and his black robed cohorts abysmally neglect or refuse to entertain: “How does judicially castrating any suit related to rendition or torture or war crimes more deeply affect diplomacy, foreign policy, security of the nation…Justice and the Constitution?”

    President Barack Obama, Attorney General Eric Holder -- and most unforgivably -- the United States Court of Appeals for the Second Circuit now collectively enshrine torture and rendition as executive policy options. Despite precedent and treaty, they are no longer unquestionably or “inescapably prosecutable” international crimes against humanity, democracy, and civil liberty.

    What is the Islamic world, or any moral supplicant, compelled by evidence and their faith to believe and do, if United State’s courts and government allow and execute the rendition and torture of an innocent Muslim, or any man, without ever having to face Justice?

    What is the Islamic world forced to believe and do, when the nation that prides itself on being the foundation of modern Democracy and the most powerful, noble defender of humanity -- when its Congress and President unanimously and unequivocally deny 1.5 million Gaza Palestinians their day in court by reflexively damning and dictatorially aborting the Goldstone Report?

  24. Very good article. The whole world has taken notice of the decision of this court.

  25. If we cannot admit our wrongdoing we will never regain our self-respect as a nation, nor that of the rest of the world. What is it going to take to change this?

  26. Anyone looking to this Supreme Court for a remedy against rightwing tyranny and he kind of monarchical overreaching that dominated the Bush-Cheney years may be in for a severe let down. One can only recall the judges at the Nuremberg trials, most of whom claimed that it wasn't up to them address the types of complaints resulting from the action of the government.

  27. The Supreme Court is not going to reverse the decision. As a people we are responding poorly to all the challenges of our time. Those who benefit from the status quo are entrenched. Many of the rest of us suffer from delusional patriotism. "We are the world's greatest nation, etc., etc."

  28. When you create a war without a shred of evidence in your favor, you have to expect that everyone else will consider you to be a threat--even if you don't torture them.

  29. Once again we need to apply the golden rule. Would we have any problem with Russia, China, Saudi Arabia, or any other country, kidnapping people off the streets in the United States?

    And while we are asking questions, would it be OK for Canada, Mexico, and Russia to fly drones over parts of the United States, blowing up anyone they declared to be a target?

    I didn't think so. So why is it OK for us to do it? Why aren't we acting like the world's terrorists when we do it?

  30. So what was the reason Obama won the Nobel? Oh yeah, potential.

  31. Ever since U.S. v. Curtiss-Wright, federal courts have cited Mr. Justice Sutherland's broad dicta as authority for deference to the executive in all matters relating to foreign affairs. But deference to the executive branch was not routine in cases prior to Curtiss-Wright. Earlier in the 20th Century, the Court in Lincoln ignored an executive branch determination that an insurgency existed in parts of the Phillipines. In every war in the 19th and 18th centuries, courts determined whether captures of merchant vessels by the Navy and by revenue cutters were lawful under international law. One of the early cases in the Marshall Court quoted Grotius, a 17th century Dutch legal scholar, by the page, in the original Latin. Judicial deference to the executive in foreign affairs is not textually required by the Constitution: It is doctrine not of judicial abstention but of judicial cowardice.

  32. When I saw the headline of your editorial, I didn't know if you were referring to the Court or our Congress or our Wall Street bonuses or our contractors in Iraq or our unemployment rate or, or, or...........

  33. The Arar case is well-known, and well-watched, here.

    What happened to Mr. Arar was the result of a cascade of bad decisions on both sides of the border. Ineptitude and negligence in the Canadian intelligence community generated bad information, which was handed to the U.S., which used it in an even worse way.

    Who is more to blame? I don't know. What I do know is that the Canadian government was made accountable, and forced to disclose its role, apologize, and pay restitution by an independent, vigorous judiciary.

    Apparently, this is not going to happen in the U.S. If it weren't for the fact that Canadian intelligence and a Canadian citizen were involved, it probably wouldn't have even been brought to light. If it were a Syrian-American involved, it might have been swept under the rug.

    The independence of the judiciary, and its ability to bring the government to heel when it steps out of bounds, is a cornerstone of the rule of law. This judicial independence has created the environment that has allowed Anglo-American representative government, and economic freedom, to flourish.

    Seeing supine judges abdicate their responsibility to hold the government accountable for its mistakes and misdeeds is indeed alarming.

    I miss and love the U.S., where I was born. I hope that the current trend is reversed before it begins to resemble a third-world "security state" more than a modern democratic republic. We deserve better, and should demand better, from our government.

    I have learned a lot about how much less free we have become by watching how our neighbors have handled this issue in comparison to how we have. It's time for us to start standing up for our freedom while we still have it.

    Thanks.

  34. The judgement of a very sick country - Hope ! - I don't think so. This has been a very disappointing year when nothing has changed and when it would appear that nothing substantial will change,

  35. Why has it taken this long for anyone to question this heinous crime! This event against Mr. Arar has been in the news for several years and no one has commented on it except as a news item! Why has no one commented on the partnership between U.S. intelligence and the Syrians!

  36. The Legislative branch has been ceding its power to the Executive for decades, so why shouldn't the Judicial get in on the action? Any branch exercising stronger power over the others is a pox on our system of government, but to voluntarily abdicate one branch's power is inexcusable. Rendition is illegal, immoral, and in this case, deserves recompense. It is incumbent upon the Judicial to say so.

  37. The Bush-Cheney Administration thumbed its nose at the Constitution and Congress' Authority. President Obama has reserved the right to rendition, military trials for terrorists, Indefinite Detentions for Terrorists. The courts have abdicated their duty to interpret the constitution and pass judgment on the law. Congress has abdicated many of its prerogatives to the Executive.

    Whatever happened to the checks and balances necessary to ensure the safety of democracy over tyranny?

    "... Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.... "

  38. It's nice that the New York Times has found it's voice of indignation.

    However, it would have mattered much more if the New York Times had found that same voice during 2000-2006.

    Starting with the politically corrupt Supreme Court Decision of Bush V. Gore.

    Expecting an even more politically corrupt Robert's Supreme Court to overturn the politically corrupt decision of the Second Circuit is a bit of a stretch don't you think?

  39. This is the doing of former Vice-president Cheney and everybody in the world knows it. At this point, the only way for America to deal with its recent history of kidnap and torture, euphemistically referred to by gutless journalists as "extraordinary rendition", is to indict, convict, and imprison the war criminal Cheney and his accomplices. Short of that, we must continue to carry this disgrace on our faces wherever we Americans go.

  40. Thank you for your words on this sad, sad pathetic contrast.

    Those of us who had hoped for some real change with an Obama administration have now only ashes from those fires of hope so briefly kindled. But at least we have the decency and justice that still prevails in some other countries -- in this case, Italy's.

    Maybe it's hopeless to expect anything better from U.S. courts than their continued fealty to the most corrupt of corporate interests. Lawyers learn in their U.S. law schools no more ethics, or public good, than all those biz school majors learn in theirs. So the juggernaut of U.S. "exceptionalism" continues to leverage its exploitation of the rest of humanity -- for corporate profit, as if the U.S. now had no other standards than the depraved corporate -- and the state of permanent war from a hopelessly amuck U.S. that this also entails.

    But, thanks again that some other countries yet have some standards, even as Obama sleeps only with his corporate banker pals, and the rabid right follows its lunatic jingoism.

    Maybe more coverage from you of others abroad representing other decencies? Maybe it's not so hopeless as otherwise seems only too evident from the U.S.'s bathetic, subsidized, ever-corporate-schooled, ever-corporate interests?

    Of course, too, we all get to look forward to another pretty speech from pretty boy Nobel Peace Prize laureate -- this time too many of us knowing only too well how empty pretty faces are on depraved American powers.

  41. Thank you for an excellent editorial! Both the Italian Court and the New York Times got it right! This decision by the Second Circuit Court of Appeals proved that the United States is no better than, and is equally an international pariah, as the gaggle of torturing regimes which sit on the Human Rights Council of the United Nations. In this decision, the United States has lost all measure of credibility on the issue of human rights abuses and in the future, whenever the U.S. raises the issue in any particular instance of torture, the response will be: "But what about Maher Arar; what justified the conduct of the United States in his case?"

    The one implication of this decision, which you failed to address is that for members of our Armed Forces on the battlefield - the enforcement of Common Article III of the 1949 Geneva Conventions, governing treatment of persons captured in the combat zone! The abuse of Maher Arar has its counterpart in the abuse of detainees at Abu-Ghraib, Iraq, Bahgram Air Base and the notorious "Salt-Pit" both in Afghanistan, all of which were in violation of Common Article III! During the post World War II Nuremberg Tribunal, commanders of the Luftwaffe were not prosecuted for the terror bombings of the targeted civilian districts of cities, because the allies had been guilty of the same offenses in the bombings of Dresden and other German cities. If American service personnel are tortured by their captors to obtain either intelligence or propaganda statements, their torturers, if tried in war crimes tribunals, could claim that in the excesses of Abu-Ghraib, Bahgram and the "Salt-Pit," the United States has "waived" its rights under Common Article III, as it perpetrated and refused to prosecute anyone who committed similar abuses of those which the U.S. captured on the battlefield!

    In this pernicious decision, the United States has thereby endangered the lives and safety of its citizens and military personnel abroad! There is an old Marine Corps adage about "payback," which I cannot repeat in a family newspaper, but in essence it means "what goes around, comes around!" To quote the late Malcolm X, on the U.S. plots to assassinate Fidel Castro and the subsequent assassination of President John F. Kennedy: "It is only a matter of time until the chickens come home to roost!"

  42. Afraid the time is coming when our foreign activities not being in line with our Bill of Rights will cause us to be branded as an unlawful tyrant and the flag with "Don't Tread on Me" and a venomous snake will start appearing in lands of strife and occupation from the Middle East to Central Asia to Okinawa to Central and South America - a common clarion call among those who see injustice and torture more aligned with ourselves and allies than with the truly harmful.

  43. Thank God for this Court's decision. Activist courts are the ruination of this country. Courts should never legislate, only Congress can. Preservation of the Constitution should always be the goal.

  44. The National disgrace is not that the criminal was removed to the United States for questioning and confinement, it is that the NYT's can take an Italian court ruling serious.
    If he had not been captured and if he had been successful in his plot, you would be screaming about the failure of the CIA.
    You can't have it both ways.

  45. You don't have to be a student of law to know this violates any number of basic principles of law.

  46. Interesting perspective. Makes a strong argument for slave reparations. Oh, but that wasn't Bush and the CIA was it. Never mind.

  47. A few other 'national disgraces": the nation's public school system; its homeless population; inability of many elderly and/or poor to buy needed prescriptions; soaring health insurance costs; the rising unemployment rate; infrastructure deterioration; America's entertainment industry; pollution; drugs; corruption in politics. I could go on and on but you get the picture.

  48. I totally agree with this editorial. Thank you for bringing this forward.

  49. Anne Frank wrote,"Despite everything, I believe that people are really good at heart."

    But, Anne Frank never met Judge Dennis Jacobs, the Torture Judge, and all of the others who bring shame to the United States by actually SUPPORTING the Torture President and his whole disgraceful and treasonous tenure as President of the United States.

    Judge Guido Calabresi represented not only the minority opinion. In dissenting from this disgraceful behavior of the court, he represents Truth, Justice and the AMERICAN way!

    We honor Judge Calabresi. We honor Valerie Plame. We honor Dennis Kucinich. But we have nothing but hatred for those who traded their souls for a Cowboy Hat who was finagled into the highest office in the land by another Court's 5 to 4 insult to all decency.

  50. The NYT's opinion has nothing to do with the civil rights of US citizens. It has everything to do with trying to make the USA seem like some evil empire and the terrorists as just people having their rights violated. The hatred of the US by the author is felt throughout this article. This same thought pattern is exactly why nobody did anything about the terrorist at Ft. Hood and 12 Americans died because of political correctness. This PC insanity must stop and the US must aggressively pursue radical Islamic killers wherever they spewing their murderous hatred.

  51. Seems Obama is nothing more then a fast talking puppet following in Bush's footsteps.

  52. Editors

    Today’s editorial piece regarding the serious issue of rendition is only half baked.

    According to your paper’s reporting, US intelligence/anti-terrorism personnel were convicted of kidnapping. Their Italian accomplices, who were necessary participants in the rendition, got off because of Italian security concerns. Had this not been a criminal case but some form of “declaratory judgment” that simply opined on the propriety of rendition, the quality of the decision would have depended solely on the political, ethical and moral persuasion of the beholder.

    While the decision may stoke your political juices, what about the equities involving the US and Italian participants. Or, don’t they matter at all. You didn’t say a word about them. You praise a court that convicts the US personnel apparently only because they are not Italian. At best, that is partial justice. (If there is any such thing.)

    GSS

  53. So this paper thinks that the Supreme Court should review this case? Silly - when you also have an article regarding the way a Supreme Court justice, Kennedy, disregards the freedom of the press!

    Why would you even think that the Supreme Court would rule in a fair way on rendition and torture? It seems to take its marching orders not from study and practice of the laws of our land, but from whoever appears to have the most clout at a specific time.

  54. Because to admit to these heinous acts would be to expose American officials for what they are: WAR CRIMINALS.

  55. The Second Court's ruling would suggest that there is no check on Executive authority so long as it is cloaked as "national security." At least the Taney Court, blackened by its Dred Scott decision, had the gumption to rule Lincoln's suspension of habeas corpus unconstitutional -- that in an instance when national security was clearly at risk.

  56. The folks on the U.S. Court of Appeals for the Second Circuit probably went to good schools. They probably go to Church/Synagogue once in a while and see themselves as being good Americans. Unfortunately they are not.

    The question is -- Can America be renewed before she disintegrates?

    http://lotuseditions.wordpress.com

  57. I, as an American residing abroad, am ashamed. The civil liberties and the balanced, progressive rule of law I was taught to believe in and defend, has been betrayed once again in the name of 'homeland defense' and political expediency.

    This episode will one day(one hopes) be reflectively viewed upon in a similar light as our imprisonment of Japanese-Americans during the Second World War- as fear induced, short-sighted, ill-considered national xenophobia triumphing over our self professed political and national ideals. We have apparently not progressed much.

  58. And so the US once again provides the world a fine example of taking responsibility for one's actions.
    Wait, what?

  59. There is a key point missing from this piece.

    The Italian case was a criminal suit to determine guilt or innocence of the agents conducting the rendition. The US case was a civil damages suit to determine how much money the plaitiff could get in damages. In any country, suing the government for money is generally a losing proposition - Italy included.

  60. The courts are more conservative than at any time since the 1930's ... and their ideology is to let the executive do whatever it wants to in the name of security and secrecy.

    Good article. You got it correct.

    http://blogdredd.blogspot.com...

  61. It is difficult to believe the facts as stated since the New York Times has indulged itself with yellow journalism at every turn. Perhaps once proud newspaper of record might want to read its own shrill cries of outrage against the Bush Administration for not getting the information about the World Trade Center attack in time, and for its demands that the Bush Administration protect us better. It did, and now you want them all to be punished for doing so. Read your own newspaper occasionally with an eye to taking responsibility for your screed.

  62. Has anyone else noticed that the moral fiber of this country, along with civil rights, have been going downhill in direct proportion to the influence of fundamentalist Christianity on our government?

  63. Who appointed those judges, Putin?

  64. "It is painful to recall that this is the same federal circuit court that declared in 1980 that even foreigners accused of torture in foreign countries can be called to account in American courts. The torturer is the “enemy of all mankind,” the Court of Appeals for the Second Circuit declared back then."

    Wrong. The court is merely following the principle of jurisprudence, once thought somewhat controversial but firmly established as law under the Cheney administration: It's not torture if we did it. Apparently the Obama administration embraces this logic as well. So what do we have to complain about?

  65. One wonders if the court - and our entire society - would have been so dismissive of the case of Mr. Arar, an innocent man who was tortured, if he had been a Jew instead of a Muslim.

    Given the ease with which our "civilized" nation tortures and kills Muslims, is it any wonder that Islamists find scores of willing recruits?

  66. When a country supports laws than protect those that attack and endanger the USA, then its laws are diminished and to be circumvented for high cause. Can you imagine if we did the same to Hitler and his Nazi thugs before he invaded? But the 'law' was protecting his right to breed evil.Rendition became necessary when weak countries became afraid to intervene. The 'law' is what we want it to be both just, as in the execution of mass murderers or unjust as in the Dred Scott decision. When countries act with firmness and high purpose for everyone then rendition, assassination and covert 'OPS" will fade away.

  67. The real damage to the country, comes not from the matter before the court, but the court's manner of brushing this business aside inferring that secret renditions are no matter for the court. Another bullet aimed directly at the rights of people in the US. The Congress, the president (before and now) and the courts are complicit in this injustice. Our country will collapse from the rot that exist in the people who are suppose to serve us. It happened to the Soviet Union, and the possibility is that it will happen here as well. Perhaps, America's time is over. Someone said there is no such thing as justice, merely the hope for it. That hope is dwindling.

  68. Get a life!!

  69. Is extraordinary rendition constitutional? Who cares? A moral wrong is still a wrong. In years to come no one will fault us on our interpretation of this or that phrase in that document, but how we behaved as human beings.

  70. It is clear that Obama will do nothing to oppose this travesty of justice. Mr. 'Let's just all get along' is either too timid or a co-conspiritor to Bush and his psychopathic couterie to do anything to enforce the law in this country. Instead we will just continue to go down the fascist course we are on.
    For more see: www.americansocialistalliance.org

  71. The electorate deserves what it gets. They knew, or should have known, what they were getting when they voted for Reagan and Bushes. It is not even the minority crazies, poles show erosion of support by the so called independents/moderates for attempts to undue the damages caused by Reagan and Bush policies. I wonder if this is how it felt in Rome when it was falling.

  72. I doubt our Supreme Court will get it right either. They are certainly not for the people in the Citizens United vs. the Federal Election Committee. Reason number one to re-elect Obama: he will fill any possible vacancies with better judges than now dominate our country.

    nuancepolitics.blogspot.com

  73. The failure of our economic and justice systems is another sign of the end of liberal democracy and economic freedom in the US.

    Institution after institution are failing the American people.

    How many failures do we need to endure before we finally decide that the right wingers and their fascist allies have taken over the government?

    Not enough yet I guess.

    Ron

  74. And so America continues its slow slide into the muck.

  75. The Times is unrealistic to think that justice trumps renditions, CIA activities, the use of torture, or, indeed, anything that can claim the mantle of national security. The Bush administration took us deep into the political landscape of moral nihilism--and Mr. Obama appears determined to carry us still further in this direction. Militarism is fast becoming the national faith. Soon, our president will be wearing epaulettes.

  76. I'm so glad we don't have activist judges. They're so well mannered, not sticking their noses in the other branches of government business, just like the founding fathers wanted.

  77. Any approval of injustice is opening the door to and approving ones friends, family and self being so abused. The only reason every person in the United States is not up in arms over it is because the abused are ethnically dissimilar to the majority. There seems to be an implicit belief that the abused are guilty either by fact or by association. We all know what happens when the hangman comes into town unopposed.

  78. It is media like the NYT editorial staff that contribute significantly to what happened at Fort Hood last week. I read the editor's selections yesterday on a couple of articles and you could tell by the low reader's recommendations how far out in left field the editorial staff of the NYT is when compared to its readers. I do not feel that it is at all a "disgrace" ... have a great Veteran's Day everyone ... I am proud of you and proud that Veterans have allowed the NYT editorial staff to be out in Left Field.

  79. Er, after World War II, weren't a number of suspected Nazis kidnapped, sent to foreign countries, interrogated, tried, and executed? Didn't this practice continue into the 1960s?

  80. One of the biggest flaws in the Constitution...

    Not giving We the People the power to remove corrupt, partisian, or biased judges and justices.

    There needs to be a Constitutional Amendment to give The People the power to remove anyone who puts their party line before the Bill of Rights!

  81. Allowing suits against policy makers for rendition and torture would “affect diplomacy, foreign policy and the security of the nation,” Judge Jacobs said.

    Yes, and it would affect all of those things for the better because the policy makers would know they could be held liable for their actions.
    One wonders what objection Judge Jacobs could have to that?

    Leo Toribio
    Pittsburgh, PA

  82. There is no evidence that Maher Arar was detained and sent to Syria on "bad information" from Canada. The U.S. has always maintained that it acted on its own information, and the Commission of Inquiry in Canada was unable to do more than to speculate on the issue.

  83. Thank you for writing this. What happened to Mr. Arar is horrific. The fact that the United States will not admit this and take responsibility is even moreso.

  84. He was a Syrian who had recently moved to Canada. Sending him back to Syria to be treated by Syrians in the manner consistent with Syrian customs seems to be consistent with the oft-stated leftist meme that we respect other cultures and their norms, no matter how alien they are to ordinary Americans. So what's the problem? We thought in good conscious that he was a wanted Muslim and sent him back to his country of origin for them to deal with. Those leftists who whine about renditions and 'violations of civil liberties of Muslims to are plotting to kill thousands of Americans' are precisely those who are responsible for the openly radical Muslim Hasan's death-fest, and far more catastrophic attacks that surely will come.

  85. The judicial branch of the United States, like the legislative and executive branches, is clearly broken and no longer functions as envisioned by our forefathers and the Constitution of their democratic Republic.

    All three branches of the government now function as handmaidens to the global ruling-elite corporate/financial Empire that now controls our country by hiding behind the facade of its two-party 'Vichy' sham of democracy.

    Former GM Chairman and CEO, 'Engine' Charlie Wilson, famously said in 1953, before becoming Eisenhower's Secretary of Defense, "What's good for General Motors is good for the country" ---- and now those words ring more true than ever.

    Like GM, America, needs to be reorganized ---- hopefully sooner and voluntarily, but if necessary later and by force (as GM recently was).

    Political-economist Joseph Schumpeter used the term 'creative destruction' to describe the necessary evolution of economic and political organizations to progress in the face of entrenched decay and stasis brought on by the control of entrenched, unresponsive, and elitist corporatism --- or as Dylan Ratigan has been saying on MSNBC national TV, "corporate communism".

    Alan MacDonald
    Sanford, Maine

  86. Thanks for this open acknowledgment of truth! It is rare indeed to read something that cuts to the core. Most often only articles that pussyfoot around major issues get published. Why?
    Torture and aggression by America has been happening for way too long.. then we wonder why people like Hasan go off the deep end when pushed to kill those that belong to their roots.
    We have become a nation of hypocrisy in more ways than one. We have become a people who have given up our power. It's time to change all this.

  87. So it sounds like he had his "due process". Just because you don't agree with the decision, what more do you want? Let's see how Italy handles its own involvement.

  88. The reason we have three Constitutionally established branches of governance is so that each branch can check the excesses of the others. It is indeed the role of the judiciary to act when the executive branch carries out illegal and unconstitutional activities, and when the legislative branch either passes laws supporting the executive branch's actions or chooses to ignore them. The founders and the writers of the Constitution knew only too well the dangers of one supreme government authority unchecked by any other branch - they and their parents had lived with Star Chamber proceedings.

    Shame on the U.S. Court of Appeals for the Second Circuit for a thoroughly unconstitutional ruling.

    And yes, I am ashamed and embarassed that the DoJ of the present administration sought this ruling from the court. I had expected and hoped for better from Obama and his DoJ.

  89. Total and utter hypocrisy. The U.S. court system will willingly and liberally apply punishment to other torturers, but when the U.S. military does it, they refuse. I also read where we considered waterboarding a war crime, and prosecuted Japanese soldiers who waterboarded, but not obviously we are above the law.

    The Supreme Court and Obama must wake up to this fact and about face. With such behavior, the U.S. has become in several respects itself a rogue nation. We who upheld these principles at Nuremberg and across the world, must be accountable. International courts must begin to impose sanction against our lawlessness.

  90. Forty years ago when I was a U.S. Marine I was proud to be an American and truly believed that I represented the greatest country on earth. Times have changed. I am ashamed to answer what country I hail from. Obama is only making the situation worse. His abysmal support of basic human rights shames me. We have become the Soviet empire of the 21st century.

  91. Once the gatekeepers of the American justice system no longer function as an independant entity freedom's end cannot be far behind. I salute the Late Great United States of America, my favorite place. I will sorely miss it.

  92. To #50, James from Atlanta: I think you've got it wrong. America can still be "good", and even "great", while also behave poorly or against its own principles. If America is the land and the people of this great country, then the law is the body of principles that governs us. When the government (i.e. the people who are tasked with applying and overseeing the exercise of our principles) fails to uphold their obligations under the law, then America and the people suffer as a whole.

    In the case of Major Hasan, the military and the FBI were responsible for overseeing his behavior and they both pursued that goal, however incompletely or imperfectly. That has nothing to do with liberals or political correctness. Neither does the torture or rendition issue. There are laws that the military follows that the Executive Branch wanted to supercede. There were officers and judge advocates in the military who protested the violation of military law and principles by the CIA and private contractors and they were silenced and ignored. So don't blame the NYT for bringing it to the people's attention. That is their job, and however imperfect they do it better than most news organizations in the country. The rules in this country say that the law is supreme, and if you don't like the law then change it by voting or advocacy. You can still love your country and be angry that its government isn't following its own sacred principles. Don't we ask those we love to live up to their promises every day?

  93. The NYT has it wrong: the US District Court was correct; the Italian court was in error. Was Arar tortured, as he claims, or not? The whining never stops.

  94. America is not a just society of law and order. America has a judicial point of view that differs between Muslim and Christian. The world might as well acknowledge The Bushtian religious sect as an offshoot of Christianity, since George W. Bush has brought this doctrine of hypocrisy and deciet and lawlessness into such a well defined existence complete with well treasured coffers from rich followers.

  95. If Mr. Obama did not realize that he was becoming the Chief Executive of a United States that no longer exists, he is now. "Democracy" today is just a word used to masquerade what has replaced it and to forestall popular insurrection. The rule of law gets appropriate lip service, while rendition, spying on Americans and warrantless searches, still continue and people in authority who broke criminal laws on torture or conspited to do so, remain uninvestigated and unprosecuted by an executive department which for clear political reasons, refuses to enforce the law. The president wants to look ahead not backward; but there is no bill for a general amnesty. The last president usurped much too much power and this president is holding on to much of it. Someone, has certainly told the president how things really are. Since the 1980 the courts have become increasingly packed with judges who distrust the Constitution and the Poberts Supreme Court is poised to amend it. There has been a class war and the people have lost. Our government has sunk to the morals of the market place as we can now see as reform dies in a sea of corporate bribes. Courts are for business disputes and prosecution of criminals or soon will be. Less and less will the courts be concerned with enforcing or expanding the rights of ordinary citizens. The shadow government presided over by King Corporate Cash, has no place for patriotism, compassion, conscience, ethics or morality. That we let this happen is the real national disgrace. Perhaps we might learn from the Iranian middle class thia Summer. If this generation does not fight to restore democracy it will be gone forever.

  96. A government is merely an extension of the people. If excesses happen (as in WW2 Germany), they happen because the people themselves permit a few to allow these excesses. No government is in power by itself. Millions of people versus the thousands in office: where is the actual power and allowance?

  97. There are two stories here one is extraordinary rendition and the other is the court case and they need to be considered separately. I am appalled at extraordinary rendition and very dismayed that this was begun under Pres. Clinton and continued under both Pres. Bush and Pres. Obama. Maybe this is an example of bi-partisanship.

    The court decision is another matter entirely. There are no constitutional issues here so the court cannot and should not overrule the desire of Congress which allows extraordinary rendition. The fact that he was a Canadian/Syrian and handed over to the US as a terrorist by Canada places the liability squarely on the Canadians. They have admitted their error and given Mr. Arar a monetary settlement based on that. And that is as far as it goes and as far as it should go.

    Also troubling is the Times assertion that curbing excesses by the executive is the most important role of the judiciary. It is not. If the excesses are against the constitution then that may be the case but there is no constitutional questions here. We are not a dictatorship of the judiciary as some seem to wish.

  98. Trite though it may be, in a time of war, better safe than sorry.

  99. Why am I not surprised that the NYT once again puts down our country.

  100. Blame Bush for the program Bill Clinton Started, and Obama still uses today??

    The NYT's needs to get a grip on reality!!

  101. You ignorant people! You are the government!! You lazy people set back in the confort of your homes and post these crybaby posts instead of peacefully taking to the streets!! Your what's wrong with our government!! Ever hear the saying "We Have The Government We Deserve" How pitiful we've become!!!!

  102. As the rest of the world gradually advances toward civilization in fits and starts, the United States dives back into barbarism.

    The Neocons' and Republicans "New American Century" dumped the United States into history's dustbin of failed empires. Sadly, the Obama Administration is settling in among the refuse.

  103. Millions of people voted against John McCain and for Barack Obama in large part because we felt we needed new, more principled and moral representatives who would take positive action to investigate and redress the horrible violations of the Constitution, U.S. statutory law and international treaties. One of the more egregious and obscene violations was to twist the policy of rendition, intended to capture wanted alleged criminals, and bring them to the United States for trial - like the Clinton administration did when they took Ramsi Yousef from Pakistanin 1995, tried and convicted him in American courts, and put him away in our supermax prison system. Israel did something similar when they kidnapped Adolf Eichmann in South America and brought him to Israel to be tried in a legitimate court.

    The Bush administration twisted rendition obscenely into a system of American agents kidnapping people who were merely suspected of involvement, even peripheral involvement, and even in the absence of evidence, and sneak them away under cover of darkness to secret CIA "black" sites abroad or directly to countries with well-documented use of torture. Instead of his day in court, Mr. Arar was tortured first here on American soil, and then flown by secret CIA-front airlines to Syria, where he was kept in what was literally a grave dug in the ground for almost a year and tortured brutally until even the Syrians concluded he was not involved in anything remotely connected to terrorism.

    The Canadian government and legal system honorably owned up to their mistakes in this grotesque fiasco, clearing Mr. Arar of any wrongdoing, apologizing to him, and paying him reparations for the wrongs they had done to hime.

    The American government under George W. Bush shamefully refused to acknowledge they had done anything wrong, though our involvement was far greater and far more egregious than Canada's. They even blocked Mr. Arar's right to redress the wrongs done to him in the American court system, submitting Justice Department briefs citing national security and state secrets as a reason not to all him his day in court.

    Americans thought that, after his ringing speeches denouncing Bush administration war crimes policies, that the new President would act on his own words as soon as he was in office and would reverse the shameful behavior of his international outlaw predecessor and his minions. But, in ten months, almost all we see from the Obama administration is uplifting speeches followed by complete inaction.

    Obama's Justice Department has continued Bushs's defense of the grounds to deny Mr. Arar fair legal rights, as it has protected and sheltered virtually all of the Bush administration's heinous crimes, both his war crimes and crimes against humanity, and his monstrous violations of the Constitution that turned the U.S. into a Big Brother National Surveillance State with no legal checks and balances.

    Canada redeemed itself in the eyes of the world by admitting its errors in supplying erroneous intel to the United States and going out of its way to apologize to Mr. Arar and make things right.

    Obama, far from cleaning up America's almost fatally tarnished record as a country of laws that used to stand as a beacon of democratic values and fairness to the world, and has given implicit and explicit approval of all of Bush's and Cheney's crimes and abuses. In his abject failure to confront these issues, and his shameful support of many of them, Obama has not only failed in restoring America's positive image as a world leader in democratic ideals and values, but has confirmed and reinforced that America's slide into cruel, fear-driven depravity is still the face we show to the rest of the world.

    Two years ago, it was the Bush administration that stood alone in the glare of international opprobrium as an administration of war crimes, crimes against humanity, and cynical serial violators of our own Constitution and federal laws. With his abject failure to act against any of Bush's crimes, and his astonishing support of an increasing number of them, Barack Obama and his administration have joined the Bush administration on that same stage of criminal infamy.

  104. Yellow journalism.

  105. It seems that justice has been lost in technicalities. However, ramifications of that incident are far reaching and judge Jacobs should not walk away irresponsibly - content with imposing a blind judgement that allow perpetrators of torture to walk away smiling. The Supreme Court should reverse his judgement without delay if justice is to retain a meaning in this country. We need that reassurance after seeing the dishonnest behaviour of WS execs being hansomely rewarded.

  106. It would be poetic justice of the most appropriate kind if Italy were to send a team into the US to "extraordinarily render" the guilty parties and take them to Italian jails.

  107. The USA is doing what is necessary to protect the world from Islamic terrorism!
    CIA who, bye the way, work in every place on earth are tracking international terrorists even now. When we capture them we send them back to their country of origin for criminal proceedings. If we can not place them in their homeland we send them to Gitmo!! Makes perfectly good sense two all three Presidents; Clinton, Bush, Obama who have used this process to protect our nation and the world!

    Are they sometimes mistreated? Perhaps! Is that sometimes necessary? Yes!! Are they always tortured? That is laughable! Imprisoning criminals and POW's is not Torture!

  108. This is but one more situation that reflects the weakened moral values of our country.

    While other countries adopted universal health care because it was the right and moral thing to do, this belief has had little place in our national debate. The immorality of torture has received barely a whimper of recognition. The house foreclosure crisis is handled based on numbers. "The right thing to do" has been ignored. War and war tactics are decided based on fear and economic issues, not on morality.

    Our policies reflect more the campaign contributions of special interests than any morality. Conservative ideology has become their morality, not values based on simple decency and just plain humane treatment.

    America is behind other countries in doing what is right. Adds to the list of education, small business incubation, and health care in areas in which we lag behind other nations. The judgments of our judiciary reflect our collective choices to put aside "doing the right thing." It is a national malaise. Our "best and brightest" are judged by their ability to earn millions, not hold to ethical values. Compared to Canada, Americans are barbarians. And I morn this state of our national system of values.

  109. Let's face it. If 9/11 happened in Italy they would have ruled the other way. As usual, the America loathing NY Times is on the wrong side of the issue and is more concerned with the progessive she-she elite world view (Oh my, what will they think of us?) rather than what is best for this country. Yeah, I know, it's all Bush's fault. Blahbety, blahbety, blahbety...

  110. Striking a correct and workable balance between national security and the protection of civil liberty is a fundamental responsibility of every government. It is why we must demand excellence from our elected leaders. When this balance gets out of whack as exemplified by Mr. Arar's case, the judicial branch absolutely must at least offer a check of the excesses of the executive branch. Denying Mr. Arar's day in court is an abdication of the Court's responsibility in the American system of government.

    Mr. Arar wandered into Kennedy airport and was treated terribly in a case of mistaken identity. Just last week three American backpackers find themselves in the Iranian judicial system for wandering in their mountains prompting our rightful protests. Let's hope the Iranians don't follow the example set by our Federal Court of Appeals.

  111. "The ruling distorts precedent and the Constitutional separation of powers to deny justice to Mr. Arar and give officials a pass for egregious misconduct."

    This is the Staff's only attempt to explain why the court decided this case incorrectly. The rest is flowery talk regarding the judicial branch's duty to uphold civil liberties. The editorial fails to refer to a single case or constitutional provision. As it stands, this editorial resembles a habeas petition written by a pro se prisoner with no legal counsel.

    Just because a decision seems normatively wrong or particularly odious does not mean it is unconstitutional.

  112. Every time I see or hear the old quote "you get the government you chose" I want to scream.

    What about those of us who voted differently?

    We're stuck with something we vehemently opposed!

    When will we begin to regain our moral standing in the world? When will we bring our home-grown and oddly elected war criminals to justice?

  113. #44:
    "If he had not been captured and if he had been successful in his plot, you would be screaming about the failure of the CIA."

    It would help if you'd read the editorial, and done a simple Google search of the case to get your facts straight before commenting. Mr. Arar was never involved in any "plot," he was an innocent civilian guilty of nothing more than a case of mistaken identity by inept and overzealous officials (probably trying to meet some arrest quota). Canada has had the human decency to apologize for this; the United States, supposedly a beacon of human rights, has not. Despite the fervent desire of America's right wing to demonize any person with a Middle Eastern name as a "terrorist," the fact is that is simply not true. The ugly racism on display in a few of these comments is nothing less than unAmerican. If Mr. Arar had been Jewish, or black, or a (white) Catholic missionary, I'm sure the right wing would be screaching at full volume to bomb Syria, never grasping the fact that our current two illegal invasions are the prime source of Muslim anger at the United States. Considering this nation's current economic disaster, perhaps if we stopped occupying other peoples' countries, trying to subvert their governments and bombing their civilians and paid attention to our own problems the scourge of terrorism worldwide would be greatly diminished.

  114. Clearly a wrong occurred based on false intelligence. That said, how much more than the $10 million dollars awarded by those who provided the bad information in error is enough?

  115. Maybe if President Obama had ordered the Justice Department to prosecute Bush and Cheney for their war crimes, the courts would be taking matters like this more seriously?

  116. We are all amazed at the ethnocentric, Euro-based, neocolonialist, and imperialistic views expressed by most posters. These views reflect biased, prejudiced, and privileged ways of life. Without doubt, these views rest of Judeo-Christian values as filtered through the Enlightenment. How narrow! How arrogant of those who hold such views!

    Who are we to say one judicial system is better than another? After all, isn't everything relative? Law? Isn't it just a socially constructed device by which some people oppress others.

    We all ask the neocolonialist, imperialistic, ethnocentric posters to rethink their Euro-based ideas. Be more inclusive and more diverse in your understandings of the world. Not everyone shares your narrow views of justice.

  117. On 9/11 nearly 3,000 people were killed by terrorists. A few days ago, another dozen or so. In between those times, no Americans were killed on U.S. soil by terrorists, in large part due to our diligence.

    So how many American lives are we willing to donate so that we can live up to these high ideals? Your mother? Your children? Those dead were all somebody's mother or children or spouses or fathers or loved ones. Understand that our enemy plays by a different set of rules. And I'm personally willing to accept the moral outrage of people who view it as an academic exercise to be discussed in a vacuum, in order to save American lives.

    The principle should never become more important than the people it was intended to protect.

  118. Rendition in the U.S. was started under President Clinton not President Bush. Let's not rewrite too much of history.

  119. The court followed the constitution, if you want a activist judiciary change the constitution and make it so! Better yet change the fundamental way we make laws. Make what is legal what is written down and make everything else illegal.

  120. Osama Moustafa Hassan Nasr was an active member of the al-Gama'a al-Islamiyya, an Islamic organisation dedicated to the overthrow of the Egyptian government. The group has been linked to the murder of Anwar Sadat in 1981 and a terrorist campaign in the 1990s that culminated in the November 1997 Luxor massacre (63 innocent people were murdered). As a result al-Gama'a al-Islamiyya is considered a terrorist organization by the United States and European Union. After the Egyptians declared the group illegal, Nasr sought and was given asylum in Italy. Frankly, I wouldn’t give this guy the time of day let alone $10 million dollars.

  121. Damn right!! Of course who in their right mind thinks that THIS Supreme Court will do the right thing and reverse the "judgement"!!!!

  122. My government has lost me. I no longer can consider it representative of me or my views as a citizen of the United States of America.
    If this court cannot see the injustice served by our use of extraordinary rendition, then we have lost and those seeking to undermine our Constitution and so-called freedoms have won.

  123. BRAVO!

  124. If only the NYT's editorial board ruled the world.

  125. And there you have it. When US citizens are found guilty abroad in the likes of North Korea, they can count on expresidents to come get them out of jail. When US law violates national and international standards, we can count on our courts to find us not guilty. Talk about arrogance and extreme politics invading our judges. We are indeed a worse nation due to this disgrace.