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28 Rev. Litig. 479 (2008-2009)
Extraordinary Rendition and the Constitution: The Case of Maher Arar

handle is hein.journals/rol28 and id is 483 raw text is: Extraordinary Rendition and the Constitution: The
Case of Maher Arar
Jules Lobel*
I.   INTRODUCTION    ........................................................................ 479
II.  A RAR'S  O RDEAL  ..................................................................... 482
III. WHY SYRIA? THE PREVENTIVE PARADIGM AT WORK ............ 487
IV. ARAR's RIGHTS UNDER THE CONSTITUTION ........................... 489
V .  C ONCLUSION   ........................................................................... 499
I.     INTRODUCTION
Since September 11, 2001, the United States government has
reportedly transferred more than 100 suspected terrorists to countries
that routinely torture prisoners.1 These individuals have been subjected
to a program known as extraordinary rendition, which, while not
publicly acknowledged by the Bush Administration, has been widely
reported in the press and is generally defended by Administration
officials as providing intelligence that has stopped terrorist attacks and
saved innocent lives.,2 As one federal court of appeals judge has
noted, the U.S. officials involved in extraordinary rendition have not
generally tortured the detainees themselves; instead, they outsourced
it.,,3
*   Professor of Law, University of Pittsburgh. I am one of the attorneys
representing Maher Arar in his lawsuit against U.S. officials. I want to thank the staff
of the Document Technology Center at the University of Pittsburgh for their invalua-
ble assistance in preparing this Article.
1. See Douglas Jehl, Senate May Open Inquiry Into C.I.A. 's Handling of
Suspects, N.Y. TIMES, Feb. 13, 2005, § 1, at 15 (Former intelligence officials estimate
that there have been perhaps more than 100 cases since the Sept. 11 attacks in which
the agency has turned over prisoners to third countries, including Egypt); Douglas
Jehl & David Johnston, Rule Change Lets C.I.A. Freely Send Suspects Abroad, N.Y.
TIMES, Mar. 6, 2005, § 1, at I ([T]he C.I.A. has flown 100 to 150 suspected terrorists
from one foreign country to another, including to Egypt, Syria, Saudi Arabia, Jordan
and Pakistan.); Jane Mayer, Outsourcing Torture: The Secret History ofAmerica 's
Extraordinary Rendition Program, NEW YORKER, Feb. 14, 2005, at 106, 106-07
(estimating 150 renditions).
2. Condoleezza Rice, U.S. Sec'y of State, Remarks upon Her Departure for
Europe (Dec. 5, 2005), http://www.state.gov/secretary/rm/2005/57602.htm.
3. Arar v. Ashcroft, 532 F.3d 157, 205 (2d Cir.) (Sack, J., concurring in part
and dissenting in part) (citing PHILIP BOBBIT, TERROR AND CONSENT: THE WARS FOR
THE TWENTY-FIRST CENTURY 388 (2008)), rehg en banc granted, No. 06-4216 (Aug.

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