Conclusion The Importance of a Full Accounting
We still do not know precisely what transpired in the rendition of Maher Arar to Syria. While Arars own account provides important information, there is much that remains shrouded in secrecy regarding the conduct of the governments involved not only the United States but also Canada, Jordan, and Syria. An official commission of inquiry such as this one is crucial to understanding what happened in this case and to preventing it from happening again. The roles of Canadian law enforcement and officials should be fully explored, with an eye toward understanding whether they played a role in facilitating Arars transfer to Syria, whether the assurances received by the CIA from Syria influenced Canadas response to his impending removal to Syria, and what steps they did or did not take to try to prevent his transfer to Syria.
Similarly, the U.S. review by the DHS Inspector General can add important new facts to the body of information regarding the handling of Arars case while he was in the United States. In particular, the DHS review has the potential to shed light on why Arar was removed to Syria and not Canada, and how and by whom that decision was made. The review should clarify whether immigration officials complied with the applicable regulations in Arars case, both with regard to the processing of his removal case and specifically with regard to the issue of transfer to risk of torture. Given the reports that the United States received assurances from Syria, it may be that the U.S. government followed the provision in the regulations that allows the receipt of assurances to end the inquiry into the CAT claim and to proceed with removal to the country in question.
The critical point, however, is not whether the United States actually followed the applicable regulations. Even if Arar was removed pursuant to legal immigration proceedings, the central question remains whether the regulations that govern those proceedings are adequate to ensure compliance with the CAT and to prevent transfers to torture or ill treatment via immigration proceedings. This is the ultimate test of any inquiry into the U.S. governments handling of the Arar case.
Human Rights Watch believes that the regulations are not sufficient to satisfy U.S. legal obligations under the CAT. While overall they reflect a positive effort to create procedures to implement Article 3 of the CAT, they contain a crucial structural flaw that undermines full protection against refoulement. The regulations should not allow diplomatic assurances to end review of a CAT claim and they should not permit assurances to be used to transfer a person to a risk of torture.