In a filing to dismiss Maher Arar's lawsuit against the US government, government lawyers have argued:
"The reply by Mary Mason, a senior trial lawyer for the government, was that it would not. Legally, she said, anyone who presents a foreign passport at an American airport, even to make a connecting flight to another country, is seeking admission to the United States. If the government decides that the passenger is an "inadmissible alien," he remains legally outside the United States - and outside the reach of the Constitution - even if he is being held in a Brooklyn jail.
Even if they are wrongly or illegally designated inadmissible, the government's papers say, such aliens have at most a right against "gross physical abuse." "
Now, granted, I'm no authority on the inner workings of US Immigration laws, but to put any foreign national sitting in a departure lounge between flights into what amounts to the same legal limbo as the prisoners held at Guantanamo Bay is a very troubling, and should be for both Americans and non-Americans alike.
Basically, what the US Government is saying is that if they deem someone "inadmissible", they are deemed to "never have been in the US", and therefore are not subject to US law in any way. So, even if they hold the person in a prison cell on US soil, the prisoner is theoretically not in the United States. At best, this is a rather rude legal fiction, at worst, it is a sign of a government that has lost its rudder with respect to the rights of people within its borders.
I find it even more troubling to consider this legal limbo when I go take a look at the US DEA's website, and I found this list of "International Offices". So, not only is the United States reaching far beyond its legal borders to enforce its laws, it appears to be willing to ignore not only its own laws, but the very principles upon which they are based - more or less arbitrarily.
National Security has become an excuse not just to mistreat people and invade foreign lands, but it is now the excuse upon which the United States Government (or at least the current executive) wishes to curtail the rights of citizens and non-citizens alike. If Maher Arar had been a mere drug trafficker, he would have been hauled up in front of a US court, tried, convicted and sentenced to prison. In the absence of any indictable criminal offense, Arar was deported to Syria for "interrogation". Regardless of how one sees the veracity of Arar's claims of innocence, there is something very wrong with deporting a person to a country using the 'cloak-and-dagger' approach that Arar claims was used.
If the US courts allow the reasoning placed before them yesterday to stand in regards to the Arar case, they will be doing a serious disservice to the rule of law in the United States.