Getting Away with Torture

Arar's claims were simple: to forcibly send him to Syria to be tortured violates the Constitution's due process clause, which the Supreme Court has interpreted as forbidding conduct that "shocks the conscience," as well as the Torture Victim Protection Act, which allows torture victims to sue those who subject them to torture "under color of foreign law." Courts have long held that torture is the paradigmatic example of conduct that "shocks the conscience" and violates due process. And Arar alleged that the US defendants sent him to Syria for the purpose of subjecting him to torture under Syrian law. These allegations were largely confirmed not only by the Canadian investigation, but also by the Department of Homeland Security's inspector general. In twenty-five years as a lawyer, I have never had a clearer and more egregious case of abuse...