I share your outrage that the Supreme Court has refused to take on the case of Mr Maher Arar (New York Times, June 15, 2010), a Canadian who was wrongly accused of terrorist links, and who was arrested in New York, rendered to Syria where he was tortured, before returned to Canada.
This refusal was, in part, based on arguments by the Justice Department that "the court should not investigate the communications between the United States and other countries because it might damage diplomatic relations and affect national security."
It is difficult to see what further harm could be done. The case was extensively studied by a Canadian Royal Commission and Mr. Arar was cleared of wrongdoing and given a large financial settlement. The trouble is that the refusal to open this case is based upon the docrine of "the States Secrets Privilege." This allows the State to be its own judge in deciding what is or is not a State Secret. The privilege was born of a lie in the 1950's and should not be allowed to continue in its present form.
The Justice Department in this case and others is continuing to follow the policies of the Bush Administration. It should not. Rather it should give strong support to The States Secret Protection Act of 2009[H.R. 984/ S417] which will allow for checks and balances in the use of the privilege. This law still languishes somewhere on the Congressional Calendar.
We should note that in this case, the Supreme Court has followed the doctrine of stare decisis; quite a contrast to its overturning one hundred years of precedent for campaign financing.
Sent to New York Times