By Dave Lindorff
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.)
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.
_________________
DAVE LINDORFF is a Philadelphia-based journalist and columnist.
His latest book is “The Case for Impeachment” (St. Martin’s Press,
2006). His work is available at "www.thiscantbehappening.net
