The Torture of Liberty

By BOB HERBERT

After traveling to Ottawa to interview Maher Arar last year, I wrote: “If John Ashcroft was right, then I was staring into the malevolent, duplicitous eyes of pure evil ... But all I could really see was a polite, unassuming, neatly dressed guy who looked like a suburban Little League coach.”

It turns out John Ashcroft was wrong. After an exhaustive investigation, a government commission in Canada ruled definitively and unequivocally this week that Maher Arar was no terrorist. He was nothing more than a quiet family man who found himself sucked into a vortex of incompetence, hysteria and a so-called war on terror that has gone completely haywire.

He’s lucky he survived. Mr. Arar, a Canadian citizen who was born in Syria, was snatched by American authorities as he waited for a connecting flight home from Kennedy Airport in September 2002. The Americans apparently were acting on bad information fed to them by Canadian investigators.

As in the witch hunts of old, no one seemed to care whether there was any factual basis for the allegations against Mr. Arar. Without even a nod in the direction of due process, the Americans put him on a government jet and shipped him off to Jordan, where he was promptly driven to Syria, where he was tortured.

Welcome to extraordinary rendition, a reprehensible practice in which people are kidnapped by the U.S. government and sent off to countries that specialize in the evil arts of torture.

Mr. Arar lived in torment for nearly a year, confined most of the time to a tiny underground cell, about the size of a grave. Despite the torture, the Syrians were unable to connect him to terrorism in any way. The Canadian government managed to secure his release in October 2003.

If this were just a bad but honest mistake, we might be able to simply wish Mr. Arar well and vow never to let it happen again. Instead, the United States is about to ensure that many more individuals who are falsely accused are deprived of the single most fundamental tool they need to establish their innocence.

In the push to enact legislation dealing with the interrogation and prosecution of terror suspects, both the White House and dissident Republicans in the Senate intend to strip away the hallowed safeguard of habeas corpus for some noncitizens held in U.S. custody outside the United States.

Habeas corpus (literally “produce the body”) is a legal proceeding that allows one to challenge his or her detention in a court of law. It is the most significant safeguard against arbitrary imprisonment. Someone deprived of this right — which is enshrined in the U.S. Constitution and has been recognized by various societies all the way back to the Middle Ages — can be locked up, whether innocent or guilty of any offense, and never heard from again.

I can’t believe that most Americans think this is all right.

“This is recognized as a broad common-law and constitutional right,” said Bill Goodman, the legal director for the Center for Constitutional Rights in New York, which has been fighting to secure basic legal protections for prisoners in American custody at Guantánamo Bay, Cuba.

At a minimum, said Mr. Goodman, “A person has a right to know what crime he’s being charged with. And a court can demand that the government produce evidence indicating that there is a reason to hold that person.”

The authority to demand that even the highest officials in a nation — even the president, even the king back in the days of the Magna Carta — justify the detention of a human being is powerful, and essential in a free society.

The right to file for a writ of habeas corpus, insisting that this authority be exercised, is a crucial check on naked governmental power. It’s a check on injustice.

In Washington, instead of saluting this cornerstone of freedom, politicians are about to deep-six it for some people without even much in the way of debate.

Talk about freedom is cheap. We hear it all the time. Real protection against tyrannical behavior by powerful government officials is another matter.

I spoke to Mr. Arar by phone yesterday. He said now that the Canadian government has publicly cleared his name, he would like the U.S. government to follow suit. But the U.S. government is busy trying to make sure that other innocents, trapped unfairly in a cage, have absolutely nowhere to turn. No recourse at all.