Foreign citizens who change planes at airports in the United States can legally be seized, detained without charges, deprived of access to a lawyer or the courts, and even denied basic necessities like food, lawyers for the government said in Brooklyn federal court yesterday.
The assertion came in oral arguments over a federal lawsuit by Maher Arar, a naturalized Canadian citizen who charges that United States officials plucked him from Kennedy International Airport when he was on the way home on Sept. 26, 2002, held him in solitary confinement in a Brooklyn detention center and then shipped him to his native Syria to be interrogated under torture because officials suspected that he was a member of Al Qaeda.
Syrian and Canadian officials have cleared Mr. Arar, 35, of any terrorist connections, but United States officials maintain that "clear and unequivocal" but classified evidence shows that he is a Qaeda member. They are seeking dismissal of his lawsuit, in part through the rare assertion of a "state secrets" privilege.
The case is the first civil suit to challenge the practice known as "extraordinary rendition," in which terror suspects have been transferred for questioning to countries known for torture.
After considering legal briefs, Judge David G. Trager of United States District Court prepared several written questions for lawyers on both sides to address further, including one that focused pointedly on Mr. Arar's accusations of illegal treatment in New York. He says he was deprived of sleep and food and was coercively interrogated for days at the airport and at the Metropolitan Detention Center in Brooklyn when he was not allowed to call a lawyer, his family or the Canadian consul.
"Would not such treatment of a detainee - in any context, criminal, civil, immigration or otherwise - violate both the Constitution and clearly established case law?" Judge Trager asked.
The reply by Mary Mason, a senior trial lawyer for the government, was that it would not. Legally, she said, anyone who presents a foreign passport at an American airport, even to make a connecting flight to another country, is seeking admission to the United States. If the government decides that the passenger is an "inadmissible alien," he remains legally outside the United States - and outside the reach of the Constitution - even if he is being held in a Brooklyn jail.
Even if they are wrongly or illegally designated inadmissible, the government's papers say, such aliens have at most a right against "gross physical abuse."
Under immigration law, Ms. Mason asserted, Mr. Arar was afforded "ample" due process when he was given five days to challenge an order finding him inadmissible.
"The burden of proof is on the alien to demonstrate his admissibility," Ms. Mason said, "and he did not do that."
"Do you do this to all people on a connecting flight?" Judge Trager asked, raising his eyebrows.
"Yes, all have to show admissibility," Ms. Mason replied. In some ways, she asserted, Mr. Arar had more rights than a United States citizen, because he could have challenged his deportation to Syria, which he had left as a teenager, under the Convention Against Torture. He also had 30 days to challenge his removal, she said.
But David Cole, a law professor at Georgetown University who argued on behalf of Mr. Arar and the Center for Constitutional Rights, contended that the government had denied Mr. Arar a meaningful chance to be heard, first by refusing to let him call a lawyer, and later by lying to the lawyer about his whereabouts.
Mr. Arar, who had been told he would be deported to Canada, was not handed a final order sending him to Syria until he was in handcuffs on the private jet that took him away, Mr. Cole said, while his lawyer was told he had been sent to a jail in New Jersey.
"We can't take a citizen, pick him up at J.F.K. and send him to Syria to be tortured," he said. "We can't hold against Mr. Arar the failure to file a motion for review when he's locked up in a gravelike cell in Syria."
Dennis Barghaan, who represents former Attorney General John Ashcroft, one of the federal officials being sued for damages in the case, argued that Congress and recent judicial decisions tell federal courts "keep your nose out" of foreign affairs and national security questions, like those in this case.
At several points the judge seemed to echo such concerns. He said he had refused to read a letter from the plaintiffs detailing testimony before a Canadian board of inquiry into Mr. Arar's case because he did not know how to deal with questions that might require the government to confirm or deny classified information.
"How am I going to handle that?" he asked, rubbing his forehead and furrowing his brow before adjourning the hearing.