Convictions and dismissals

Today we learned that Italy has convicted 23 Americans (in absentia) in association with their role in rendering a Muslim cleric from the streets of Milan. This is a pyrrhic victory of sorts, since the fugitive Americans will not in all likelihood spend a minute in jail. This is in large measure due to the U.S. government's incessant political pressure, grounded on the belief that it can do whatever it wants in the name of combatting terrorism. This belief reared its ugly head yesterday when the Second Court of Appeals threw out a case brought on by another torture victim of American rendition policy, Maher Arar. His case is familiar to anyone who follows these things. A Canadian citizen, picked up at JFK on a tip from te Canadian government, and inexplicably (unjustifiably) rendered to Syria where he was summarily tortured for about a year. The trip to Syria is not inexplicable if one recognizes the America's unaccountable desire to do whatever is 'necessary' to gather intelligence information. As it turns out, as it often does in these types of cases, the initial tip was ungrounded, and Arar had nothing to do with anything.

Now, evidently, the majority believed that to do otherwise than to dismiss the case would be an egregious form of judicial activism, since Congress has not explicitly penned law prohibiting this particular activity. It's not clear to me on what grounds they say this, since there exists any number of statutes under which a prosecutor could bring the culprits to justice. After all, isn't conspiracy to torutre a crime, on the books. The majority must be asking for something  else, namely, the green light by the Exectuve to prosecute its own members. Needless to say, we're still waiting for that. But on the ever useful charge of judicial activism, we can submit, on the contrary, that it is the grossest form of judicial activism to give, as this dismissmal does, carte blanche to a government gone wild. No one but the American government feels the need to dispute the facts of the Arar case, his unquestioned innocence, not even the Canadian government, which has already admitted culpability and settled with Arar. Yet, we continue to our ostrich policies from the highest levels of government down to the citizen on the street who 'just wants the government to protect him'. Well, perhaps Arar believed the same thing, that is, until he lived through the hell that comes from allowing flawed people to possess unchecked and unaccountable power. Do we all have to live through the same before we recognize the flaw here? Is our imagination and historical sense that weak? 

Before we raise our hands in salute of the Italians over the Americans, we should note that, in the Italian judgment today, 3 Italians were acquitted on the grounds that their conviction would divulge state secrets. So, there we go again.  

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