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http://www.cbc.ca/story/world/national/2005/08/11/arar-lawsuit050811.html

Flyers passing through U.S. have few rights, Arar judge told

Last Updated Thu, 11 Aug 2005 11:10:12 EDT

CBC News

A senior lawyer for the U.S. government has told a judge hearing a lawsuit over Maher Arar's deportation to Syria that foreign citizens passing through American airports have almost no rights.

• INDEPTH: Maher Arar

At most, Mary Mason told a hearing in Brooklyn, N.Y., passengers would have the right not to be subjected to "gross physical abuse."

The policy has implications for Canadians who head for international destinations via big American airports in New York, Chicago, Los Angeles and other major centres.

Mason said the U.S. government is interpreting its powers in such a way that passengers never intending to enter the U.S. connecting to international flights at U.S. airports must prove they are no threat and could be allowed to enter the country.

If passengers are deemed to be inadmissible, they have no constitutional rights even if later taken to an American prison. Mason told Judge David Trager that's because they are deemed to be still outside the U.S., from a legal point of view.

"Someone who's inadmissible is in the same category as the people that the CIA snatches and grabs from other countries," said Barbara Olshansky, a lawyer for the U.S.-based Center for Constitutional Rights, which is suing a number of U.S. officials on Arar's behalf.

"You are fair game for however executive branch wants to treat you."

• FROM JAN. 22, 2004: Arar launches lawsuit against U.S. to 'clear my name'

Mason said the interpretation means travellers can be detained without charge, denied the right to consult a lawyer, and even refused necessities such as food and sleep.

That's what happened to Arar, a Canadian-Syrian citizen who was stopped while trying to board a connecting flight in New York in 2002 and accused of having terrorist connections.

The Ottawa engineer was detained, not allowed to speak to a lawyer or the Canadian consul, and eventually deported through Jordan to Syria, where he claimed he was tortured while being held in prison for a year.

At most, Mason told the judge, a foreign passenger detained while travelling through a U.S. airport might have a limited right to protection from "gross physical abuse."

But in a motion filed this week, the U.S. Justice Department argues that even if torture does occur, U.S. officials can't be sued under the Torture Victims Protection Act because it only applies to foreign individuals committing or allowing torture.

The department wants the Arar lawsuit dismissed on that basis.

The U.S. Department of Justice declined to discuss the case or what the new interpretation could mean for Canadians travelling through the United States.

However, department spokeswoman Cynthia Magnuson issued this short statement: "The United States does not practise torture, export torture or condone torture."

In legal briefs written by U.S. Attorney General Alberto Gonzales, the Justice Department has defined torture to mean "pain consistent with major organ failure or death."

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