Newark, NJ -- The Constitution bans torture in all circumstances and without exception, a coalition of prominent constitutional law scholars argued today in a friend-of-the-court brief in support of a federal appeal by a Canadian man the United States government detained and sent to Syria to be tortured for interrogation purposes.

In their brief, authored by Seton Hall University School of Law’s Center for Social Justice in Newark, New Jersey, the scholars also denounced the government’s practice of “extraordinary rendition” – that is, transporting suspects to human rights-abusing nations abroad knowing or intending that the suspects will be interrogated by torture. According to the brief, when the government hands a suspect over to be tortured by another nation, “the government cannot formalistically invoke its separate agency to disclaim responsibility, any more than the government could throw an individual into a pit of vipers and disclaim responsibility by arguing that it was the vipers, and not the government, that did the biting.”

The plaintiff in the case, Canadian citizen Maher Arar, seeks compensation for the actions of American officials who detained him in 2002 when he was passing through John F. Kennedy International Airport to catch a connecting flight home; held him for two weeks without charges, trial or access to a lawyer; then flew him to Syria where he was interrogated by torture and held for nearly a year in a cell about the size of a grave. In Syria, Arar’s captors beat him all over his body with fists and with a two-inch-thick electric cable, threatened him with a “spine-breaking chair” and electric shocks, and forced him to hear to the screams of others being tortured.

An official commission later convened by the Canadian government fully exonerated Arar and concluded that he had no connection to terrorist activities, but a federal district court in New York dismissed Arar’s civil suit for the violation of his constitutional rights. It is the appeal of that dismissal, now pending before the Second Circuit Court of Appeals in New York, that prompted today’s brief. The brief was signed by over a dozen highly prominent constitutional law scholars around the country.

The scholars’ brief asked the appeals court to reject the lower court’s suggestion that the Constitution might permit the use of torture in the interest of national security, a position the scholars characterized as “profoundly at odds with centuries of Anglo-American legal tradition and basic constitutional principles,” such as due process, the prohibition on cruel and unusual punishment, and the right to bodily integrity. The brief highlighted the absolute nature of the constitutional ban on torture, noting that the Supreme Court “has consistently denounced torture in absolute terms as a violation of the principle of human dignity enshrined in our Constitution and has, accordingly, rejected the utilitarian argument that torture is a means that may be justified by certain governmental ends.”

The scholars specifically rejected the proposition that the “rare, so-called ticking time-bomb scenario” could justify the use of torture or comparable government brutality. Quoting Michael Dorf, a law professor at Columbia Law School and one of the signatories of today’s brief, the scholars argued that if courts permit any leeway for government officials to torture in such cases, “security officers will come to believe that they hear bombs ticking everywhere, and will use torture against people merely suspected of posing a security threat.”

According to the scholars, a “necessary corollary” to the constitutional ban on torture is the principle that “the government can no more hand an individual over to be tortured by others than it can torture him itself.” The scholars argued that the American government affirmatively put Arar in danger by flying him to Syria knowing he would be tortured there. Citing the remarks of U.S. government officials acknowledging the government’s interest in conducting interrogations beyond the reach of American laws, the brief chastised the government for “exploit[ing] the practice of extraterritorial torture for the purpose of interrogation and intelligence-gathering, while seeking to insulate U.S. officials from constitutional requirements.”

The case is Arar v. Ashcroft, No. 06-4216, and defendants include former Attorney General John Ashcroft and former Secretary of Homeland Security Tom Ridge.

The coalition of scholars is represented by Seton Hall Law School’s Center for Social Justice Professor Baher Azmy, along with attorneys Jenny-Brooke Condon, Meetali Jain, and Scott Michelman, also of the Center for Social Justice. Professor Azmy also represents former Guantánamo Bay detainee Murat Kurnaz, whom the U.S. government sent home to Germany in August after more than four years of detention.

Briefing in Arar’s case is still underway before the Second Circuit Court of Appeals, which is not expected to issue a decision until late next year.

A copy of the brief can be accessed from the press release posted on the Seton Hall Law School’s website at http://law.shu.edu/administration/public_relations/press_releases/
2006/arar_amicus_conlawprofs_torture_final_12_21_06.pdf



The only private law school in New Jersey, Seton Hall University School of Law was founded in 1951, and is located in the city of Newark. Seton Hall Law School offers both day and evening programs leading to the Juris Doctor (J.D.), Master of Laws (LL.M.) and Master of Science in Jurisprudence (M.S.J.) degrees. For more information on Seton Hall Law School, visit law.shu.edu.