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42–724 PDF 2008

U.S. DEPARTMENT OF HOMELAND SECURITY INSPECTOR GENERAL REPORT OIG–08–18, ‘THE 

REMOVAL OF A CANADIAN CITIZEN TO SYRIA’ 

JOINT HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

AND THE

SUBCOMMITTEE ON INTERNATIONAL 

ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT 

OF THE

COMMITTEE ON FOREIGN AFFAIRS 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JUNE 5, 2008 

Serial No. 110–101 Serial No. 110–196

(Committee on the Judiciary) (Committee on Foreign Affairs) 

Printed for the use of the Committee on the Judiciary and the 

Committee on Foreign Affairs 

( 

Available via the World Wide Web: http://judiciary.house.gov 

and http://foreignaffairs.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

COMMITTEE ON FOREIGN AFFAIRS 

HOWARD L. BERMAN, California, Chairman 

GARY L. ACKERMAN, New York 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

DONALD M. PAYNE, New Jersey 

BRAD SHERMAN, California 

ROBERT WEXLER, Florida 

ELIOT L. ENGEL, New York 

BILL DELAHUNT, Massachusetts 

GREGORY W. MEEKS, New York 

DIANE E. WATSON, California 

ADAM SMITH, Washington 

RUSS CARNAHAN, Missouri 

JOHN S. TANNER, Tennessee 

GENE GREEN, Texas 

LYNN C. WOOLSEY, California 

SHEILA JACKSON LEE, Texas 

RUBE ́ N HINOJOSA, Texas 

JOSEPH CROWLEY, New York 

DAVID WU, Oregon 

BRAD MILLER, North Carolina 

LINDA T. SA ́ NCHEZ, California 

DAVID SCOTT, Georgia 

JIM COSTA, California 

ALBIO SIRES, New Jersey 

GABRIELLE GIFFORDS, Arizona 

RON KLEIN, Florida 

BARBARA LEE, California 

ILEANA ROS-LEHTINEN, Florida 

CHRISTOPHER H. SMITH, New Jersey 

DAN BURTON, Indiana 

ELTON GALLEGLY, California 

DANA ROHRABACHER, California 

DONALD A. MANZULLO, Illinois 

EDWARD R. ROYCE, California 

STEVE CHABOT, Ohio 

THOMAS G. TANCREDO, Colorado 

RON PAUL, Texas 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

JOE WILSON, South Carolina 

JOHN BOOZMAN, Arkansas 

J. GRESHAM BARRETT, South Carolina 

CONNIE MACK, Florida 

JEFF FORTENBERRY, Nebraska 

MICHAEL T. MCCAUL, Texas 

TED POE, Texas 

BOB INGLIS, South Carolina 

LUIS G. FORTUN ̃ O, Puerto Rico 

GUS BILIRAKIS, Florida 

VACANT 

ROBERT R. KING, Staff Director 

YLEEM POBLETE, Republican Staff Director 

SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, 

HUMAN RIGHTS, AND OVERSIGHT

BILL DELAHUNT, Massachusetts, Chairman 

RUSS CARNAHAN, Missouri, 

Vice Chair 

DONALD M. PAYNE, New Jersey 

GREGORY W. MEEKS, New York 

JOSEPH CROWLEY, New York 

DANA ROHRABACHER, California 

RON PAUL, Texas 

JEFF FLAKE, Arizona 

CLIFF STAMMERMAN, Subcommittee Staff Director 

NATALIE COBURN, Subcommittee Professional Staff Member 

PAUL BERKOWITZ, Republican Professional Staff Member 

ELISA PERRY, Staff Associate 

(V) 

C O N T E N T S 

JUNE 5, 2008 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 2 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 5 

The Honorable William D. Delahunt, a Representative in Congress from 

the State of Massachusetts, and Chairman, Subcommittee on International 

Organizations, Human Rights, and Oversight .................................................. 6 

The Honorable Dana Rohrabacher, a Representative in Congress from the 

State of California, and Ranking Member, Subcommittee on International 

Organizations, Human Rights, and Oversight .................................................. 14 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 15 

WITNESSES 

Mr. Richard L. Skinner, Office of the Inspector General, U.S. Department 

of Homeland Security 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 21 

Mr. Clark Kent Ervin, Director, Homeland Security Program, The Aspen 

Institute 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 37 

Mr. Scott Horton, Distinguished Visiting Professor, Hofstra Law School 

Oral Testimony ..................................................................................................... 38 

Prepared Statement ............................................................................................. 42 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Chairman, Subcommittee on 

the Constitution, Civil Rights, and Civil Liberties ............................................ 4 

Prepared Statement of the Honorable William D. Delahunt, a Representative 

in Congress from the State of Massachusetts, and Chairman, Subcommittee 

on International Organizations, Human Rights, and Oversight ...................... 8 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary, and Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 16 

Page

VI 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 81 

Document from the Department of Homeland Security, Office of Inspector 

General entitled (U) The Removal of a Canadian Citizen to Syria ................. 82 

(1) 

U.S. DEPARTMENT OF HOMELAND SECURITY 

INSPECTOR GENERAL REPORT OIG–08–18, 

‘THE REMOVAL OF A CANADIAN CITIZEN TO 

SYRIA’ 

THURSDAY, JUNE 5, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, AND THE

SUBCOMMITTEE ON

INTERNATIONAL ORGANIZATIONS,

HUMAN RIGHTS, AND OVERSIGHT, 

COMMITTEE ON FOREIGN AFFAIRS

Washington, DC. 

The Subcommittees met, pursuant to notice, at 10:42 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties) presiding. 

Present from the Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties: Representatives Conyers, Nadler, Ellison, Watt, 

Franks, Issa, and King. 

Present from the Subcommittee on International Organizations, 

Human Rights, and Oversight: Representatives Delahunt and 

Rohrabacher. 

Staff present from the Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties: David Lachman, Majority Chief of 

Staff; Heather Sawyer, Majority Counsel; Elliot Mincberg, Majority 

Counsel; Caroline Mays, Majority Professional Staff Member; Sean 

McLaughlin, Minority Chief of Staff and General Counsel; Paul 

Taylor, Minority Counsel; Crystal Jezierski, Minority Counsel; and 

Allison Halataei, Minority Counsel. 

Staff present from the Subcommittee on International Organizations, Human Rights, and Oversight: Cliff Stammerman, Majority 

Staff Director; Natalie Coburn, Majority Professional Staff Member; Paul Berkowitz, Minority Professional Staff Member; and Elisa 

Perry, Majority Staff Associate. 

Mr. NADLER. [Presiding.] This joint hearing of the Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties and the Subcommittee on International Organizations, Human Rights, and 

Oversight will come to order. Without objection, the Chair is authorized to declare a recess of the hearing. 

2 

I will now recognize myself for a 5-minute opening statement. 

Today’s hearing will continue the Subcommittee’s investigation 

into the matter of Maher Arar and this Administration’s policy of 

what has been described as rendition to torture. Today, 41⁄2 years 

after Chairman Conyers’ initial request, the Inspector General’s report on this matter is finally being released to the public in a redacted form. I especially want to commend the Chairman, Mr. Conyers, for his work on this and for his efforts to bring out the truth 

on this terrible incident. 

I am pleased to be joined by our colleague, the gentleman from 

Massachusetts, Mr. Delahunt, the Chairman of the Subcommittee 

on International Organizations, Human Rights, and Oversight, who 

will be co-chairing this hearing. The gentleman has done an extraordinary job of investigating this matter and I am pleased to 

continue our partnership investigations. 

We will now proceed, and I amend what I said a moment ago 

about the 5 minutes, to Members’ opening statements. As has been 

the practice of the Subcommittee, I will recognize the Chairs and 

Ranking Members of the Subcommittees and of the full Committees to make opening statements. In the interests of proceeding to 

our witnesses and mindful of our busy schedules, I would ask that 

other Members submit their statements for the record. Without objection, all Members will have 5 legislative days to submit opening 

statements for inclusion in the record. 

The Chair now recognizes himself for 5 minutes for an opening 

statement. 

Today, 41⁄2 years after Chairman Conyers’ initial request for an 

investigation, we will begin to get the facts about the Administration’s transfer of a Canadian citizen, Maher Arar, to Syria, a country listed by our State Department as engaging in torture. Specifically, we will examine the report of the Department of Homeland 

Security’s Inspector General in the case. 

Maher Arar, a Canadian citizen, was seized by our Government 

as he was changing planes at Kennedy Airport while returning 

from vacation in Tunisia to his home in Canada. Our Government 

detained and interrogated him for 2 weeks and then handed him 

over to the Syrians, who imprisoned him for 1 year and tortured 

him. We have been told by the Administration that the United 

States takes seriously its obligations under the Convention Against 

Torture, and under the laws of the United States, not to hand people over to governments that will torture them. 

We have been specifically told by Attorneys General John 

Ashcroft and Alberto Gonzales, as well as by Secretary of State 

Condoleezza Rice, that in the case of Mr. Arar, the law was followed, that the United States obtained from the Syrians ‘‘assurances’’ that he would not be tortured. But as we now know from 

the Canadian government’s commission of inquiry into this case, 

the Syrians did what our Government says they always do. They 

tortured him. 

It has taken 41⁄2 years since Chairman Conyers’ original request 

in a December 16, 2003 letter asking the Inspector General to investigate this matter and to get some of the facts in the open. We 

finally have this redacted report. Today, the Inspector General’s report with classified material blacked out is finally being made pubVerDate Aug 31 2005 11:14 Aug 19, 2008 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\WORK\CONST\060508\42724.000 HJUD1 PsN: 42724
3 

lic. Even in its redacted form, it is a deeply disturbing document. 

The facts it lays out raise serious questions not just of fact, but of 

law, that demand answers. 

What does the report reveal? From the report, ‘‘the INS concluded that Arar was entitled to protection from torture and returning him to Syria would more likely than not result in torture.’’ 

‘‘The assurances upon which INS based Arar’s removal were ambiguous regarding the source or authority purporting to bind the 

Syrian government to protect Arar.’’ In other words, the INS concluded he was probably going to be tortured and that the assurances provided that he would not be were ambiguous as to whether 

they were authoritative or what the source was. 

‘‘The validity of the assurances to protect Arar appears not to 

have been examined.’’ In other words, it is reasonable to conclude 

that the INS knew or fully suspected that we were handing over 

Arar to probable torture. The government took steps to conceal Mr. 

Arar’s whereabouts and to prevent him from contacting his family 

or from speaking with counsel. 

The general counsel of the Department of Homeland Security insisted that the Inspector General sign an agreement reprinted in 

the report to give the department virtual veto power over what 

could be shared or made public, even setting conditions on the circumstances under which information could be shared with Congress. It was, to put it mildly, a case of allowing an Agency to set 

the rules for the investigation of its own conduct. 

Now that this report is public, people will be able to read it and 

judge for themselves whether the delay and the secrecy was excessive, and whether that delay and secrecy was part of an effort to 

protect the security of the Nation, or part of an effort to protect the 

Administration from having immoral actions made public. People 

should read this report and decide for themselves. 

We also need to consider whether the law was violated in this 

case. The Inspector General’s report stated that he has been unable 

to determine whether or not laws were violated at least, in part, 

because key witnesses refused to cooperate with his investigation. 

But the report seems overly cautious in its conclusions. A fair reading of the facts revealed in the report indicates that the Administration knowingly violated the obligations this Nation has agreed 

to observe under the Convention Against Torture. 

A fair reading reveals that the Administration knowingly violated our Nation’s laws against conspiracy to commit torture. A fair 

reading reveals that the Administration knowingly violated our 

laws governing the treatment of persons passing through our ports 

of entry or who are detained on our soil. A fair reading would seem 

to indicate that Administration officials, including Secretary of 

State Condoleezza Rice and Attorneys General John Ashcroft and 

Alberto Gonzales materially misrepresented the facts and misled 

the Congress in their testimony on this issue. 

We need to strengthen our laws to ensure that our Nation does 

not again become a party to torture by a country like Syria, which 

the Administration has identified as a country that tortures and is 

a state sponsor of terrorism. This case and the rendition policy generally gets more disturbing with each bit of information we obtain. 

The fact that it has taken more than 4 years to obtain even this 

4 

limited amount of information in the report is itself very disturbing. 

I look forward to the testimony of our witnesses, and I can assure my colleagues that this is not the end of our investigation. I 

yield back the balance of my time. 

[The prepared statement of Mr. Nadler follows:] 

PREPARED STATEMENT OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK, AND CHAIRMAN, SUBCOMMITTEE ON

THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

Today, four and a half years after Chairman Conyers’ initial request for an investigation, we will begin to get the facts about this Administration’s transfer of a Canadian, Maher Arar, to Syria, a country listed by our State Department as engaging 

in torture. 

Specifically, we will examine the report of the Department of Homeland Security’s 

Inspector General on the case. Maher Arar, a Canadian citizen, was seized by our 

government as he was changing planes at Kennedy Airport while returning from vacation to his home in Canada. Our government detained and interrogated him for 

two weeks and then handed him over to the Syrians who imprisoned him for one 

year and tortured him. 

We have been told by this Administration that the United States takes seriously 

its obligations under the Convention Against Torture, and under the laws of the 

United States, not to hand people over to governments that will torture them. We 

have been specifically told by Attorneys General John Ashcroft and Alberto 

Gonzales, as well as by Secretary of State Condolezza Rice, that, in the case of Mr. 

Arar, the law was followed, and that the United States obtained from the Syrians 

‘‘assurances’’ that he would not be tortured. 

But, as we now know from the Canadian Commission inquiry into this case, the 

Syrians did what our government has always said they do: they tortured him. 

It has taken four and a half years, since Chairman Conyers’ original request, in 

a December 16, 2003 letter asking the Inspector General to investigate this matter, 

to get some of the facts out in the open. 

Today, the Inspector General’s report, with classified material blacked out, is finally being made public. It is, even in its redacted form, a deeply disturbing document. The facts it lays out raise serious questions not just of fact, but of law, that 

demand answers. 

What does the report reveal? 

From the report: ‘‘The INS concluded that Arar was entitled to protection from 

torture and that returning him to Syria would more likely than not result in torture.’’ 

‘‘The assurances upon which INS based Arar’s removal were ambiguous regarding 

the source or authority purporting to bind the Syrian government to protect Arar.’’ 

‘‘The validity of the assurances to protect Arar appears not to have been examined.’’ 

In other words, it is reasonable to conclude that the INS knew that we were handing over Arar to probable torture. 

The government took steps to conceal Mr. Arar, and prevent him from contacting 

his family or speaking with counsel. 

The General Counsel of the Department of Homeland Security insisted that the 

Inspector General sign an agreement, reprinted in the report, to give the Department virtual veto power over what could be shared or made public, even setting conditions on the circumstances under which information could be shared with Congress. It was, to put it mildly, a case of allowing an agency to set the rules for an 

investigation of its own conduct. 

Now that this report is public, people will be able to read it and judge for themselves whether the delay and the secrecy was excessive, and whether that delay and 

secrecy was part of an effort to protect the security of the nation or an effort to protect the Administration from having immoral actions made public. 

People should read this report and decide for themselves. 

We also need to consider whether the law was violated in this case. The Inspector 

General’s report stated that he has been unable to determine whether or not laws 

were violated, at least in part because key witnesses refused to cooperate with his 

investigation. But the report seems overly cautious in its conclusions. 

A fair reading of the facts revealed in the report indicates that the Administration 

knowingly violated the obligations this nation has agreed to observe under the Convention Against Torture. 

5 

The Administration knowingly violated our nation’s laws against conspiracy to 

commit torture. 

The Administration knowingly violated our laws governing the treatment of persons passing through our ports of entry, or who are detained on our soil. 

Administration officials, including Secretary of State Condoleezza Rice and Attorney General John Ashcroft and Alberto Gonzales, materially misrepresented the 

facts and misled the Congress in their testimony on this case. 

We need to strengthen our laws to ensure that our nation does not again become 

a party to torture by a country like Syria, which the Administration has identified 

as a country that tortures and is a state sponsor of terrorism. 

This case, and the rendition policy, generally gets more disturbing with each bit 

of information we obtain, and the fact that it has taken more than four years to 

obtain even this limited amount of information in the report is itself very disturbing. 

I look forward to the testimony of our witnesses, and I can assure my colleagues 

that this is not the end of our investigation. 

I yield back the balance of my time. 

Mr. NADLER. I would now recognize the distinguished Chairman 

of the full Committee on the Judiciary for 5 minutes, the distinguished Chairman from Michigan. 

Mr. CONYERS. Thank you, Chairman Nadler. I never go before 

Subcommittee Chairmen when we have joint hearings. It is my 

custom to allow all you big guns on the Committee to go first, and 

I will come back a little later on. Thank you very much. 

Mr. NADLER. I thank the gentleman. 

The Chair now recognizes the distinguished Ranking Member of 

the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, the gentleman from Arizona, Mr. Franks, for 5 minutes. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. Chairman, I just want to say in the preface of my remarks 

here that any injustice to anyone is an oversight on the part of everyone. I personally am disturbed by some of the things that occurred here. I guess the purpose of my remarks here today are to 

try to put in context America’s role in all of that. 

The Department of Homeland Security’s Office of Inspector General investigated the case of Mr. Maher Arar, and on Tuesday, 

June 2, 2008, that office issued a 52-page extended unclassified report stating, ‘‘INS appropriately determined that Mr. Arar was inadmissible under relevant provisions of immigration law.’’ It also 

stated that ‘‘ICE concurred with our recommendations, and that is 

those of the report, and has taken steps to implement them. 

‘‘It does not appear that any INS personnel whose activities we 

reviewed violated any then-existing law, regulation or policy with 

respect to the removal of Arar. We have received ICE’s responses 

to the recommendations and consider both recommendations resolved and closed.’’ 

Mr. Chairman, I look forward to hearing more about the process 

that led to the IG’s report and how and whether additional information about this case can be made public in unclassified form. 

The final report of the Canadian commission released in September, 2006, concluded that the Canadian officials provided U.S. 

authorities with inaccurate information regarding Mr. Arar that 

led to his transfer to Syria. 

The Canadian report entitled Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, made clear 

that the Canadian government did have reason to be suspicious of 

Mr. Arar as he seemed to be close to Abdullah Almaki, who is beVerDate Aug 31 2005 11:14 Aug 19, 2008 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 H:\WORK\CONST\060508\42724.000 HJUD1 PsN: 42724
6 

lieved to be a member of al-Qaida. As the Canadian commission 

stated in its report, ‘‘Canadian authorities properly considered Mr. 

Arar to be a person of interest in its investigation. While the meeting might have been innocent, there were aspects of it that reasonably raised investigators’ antennae. Mr. Almaki and Mr. Arar were 

seen walking together in the rain and conversing for 20 minutes. 

Given that Mr. Almaki was a target of this investigation, it was 

reasonable for Canadian authorities to investigate Mr. Arar. Mr. 

Arar was properly a person of interest to the investigators who 

were aware that he had met with Mr. Almaki and that he had listed him as an emergency contact on his rental application, indicating that he might have close ties.’’ 

Mr. Chairman, 4 years later, Canadian officials would correct 

this information. But be that as it may, it appears that the situation which Mr. Arar ultimately found himself in 2002 was caused 

by Canadian officials who provided the U.S. with inaccurate negative information in 2002 regarding Mr. Arar and the threat he 

might pose to our national security. That inaccurate negative information went well beyond the facts that made Mr. Arar an appropriate person of interest. 

The official Canadian commission concluded that the Royal Canadian Mounted Police provided American authorities with information about Mr. Arar that was inaccurate and portrayed him in 

an unfairly negative fashion. The report further concluded that, ‘‘it 

is very likely that in making the decisions to detain and remove 

Mr. Arar, American authorities relied on information about Mr. 

Arar provided by Canadian authorities.’’ 

Some examples follow: the description of Mr. Arar as being a 

member of a group of Islamic extremist individuals suspected of 

being linked to the al-Qaida terrorist movement; several references 

to Mr. Arar as a suspect, principal target, or target or important 

figure; and the assertion that Mr. Arar had refused an interview 

with Canadian authorities. 

So what we are left with the official Canadian investigation of 

this incident is that whatever decisions were made by American 

authorities, they were driven by inaccurate information provided by 

Canadian authorities that case Mr. Arar in a negative light that 

went far beyond what was warranted by the facts. 

I truly and sincerely regret any injustice that may have occurred 

to Mr. Arar by any hands in any country, and I very much want 

to hear any additional information about this case that our witnesses can tell us today. I look forward to your testimony. 

I yield back. 

Mr. NADLER. I thank the gentleman. 

I would now recognize for 5 minutes the distinguished Chairman 

of the Subcommittee on International Organizations, Human 

Rights, and Oversight, the co-Chairman of this hearing, the gentleman from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. Thank you, Chairman Nadler. I thank top-gun 

himself for deferring to big guns so that we could proceed. 

First, I heard the opening statement of the Ranking Member, 

and I have great respect for him, and I know he is sincere in his 

statements. I would also remind those on the panel that myself, 

Mr. Rohrabacher, Mr. Nadler, and Mr. Franks, apologized publicly 

7 

to Mr. Arar at an earlier hearing which I chaired over in the Foreign Affairs Committee. 

But I also would note that in the report by the Inspector General, it stated that the Joint Terrorism Task Force investigators at 

the time concluded that they had no interest in Arar as an investigative subject. That is the report that is before us today. Something happened afterwards. I would hope that Mr. Skinner would 

reconsider and reopen his efforts in terms of determining what 

happened because I have to acknowledge some disappointment 

with the new redacted report. 

I still do not know the answer to two key questions. On what 

basis did our Government determine that it would be prejudicial to 

the interests of the United States to send Mr. Arar back to Canada? I am unaware of any designation in terms of Canada that 

they are a state sponsor of terrorism. Since when and under what 

circumstances would the United States’s interests be prejudiced if 

Mr. Arar returned to Canada? I would suggest that is an offense 

to our friends, our neighbors, and our erstwhile ally Canada. 

And another unanswered question is, what assurances did Syria 

give that Arar would not be tortured if he were to be sent there? 

What is the answer to that question? Well, as I indicated, in terms 

of the first question, I am baffled because there is no explanation 

in the report. I do not know whether the Office of Inspector General asked or perhaps you did, but there was no evidence to provide 

a justification that it would hurt the interests of the United States 

to send Mr. Arar back to Canada. I hope we can get to the bottom 

of that today. 

On the second point, I read the following line from the redacted 

report and from your testimony, Mr. Skinner. ‘‘The assurances 

upon which INS based Arar’s removal were ambiguous regarding 

the source or authority purporting to bind the Syrian government.’’ 

How could it be that the Office of Inspector General found that the 

INS appropriately followed procedures to implement the Convention Against Torture when the assurances were ambiguous regarding the source or the authority? 

Nor does the report even address my main concern about the assurances, which is how could any assurances from Syria be deemed 

reliable? This is, after all, the country that President Bush himself 

cited for its legacy of torture, oppression, misery and ruin, and that 

the State Department routinely condemns in its annual country reports for torture. And now we hear that the assurances received 

from this country were ambiguous to its source and authority. I 

find that incredulous. 

How assurances from an unknown source within a government 

that routinely tortures, according to President Bush, are found sufficiently reliable for purposes of the Convention Against Torture, is 

simply beyond me. 

I believe the difficulties faced with this report are symptomatic 

of a larger problem, which is the failure of the Bush administration 

to come to terms with its own mistakes. Now, the Canadian government has sent an outstanding example of how a healthy, viable 

democratic government should act when it commits a mistake, and 

our Government should follow their lead. 

With that, I yield back. 

8 

[The prepared statement of Mr. Delahunt follows:] 

PREPARED STATEMENT OF THE HONORABLE WILLIAM D. DELAHUNT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS, AND CHAIRMAN, SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT


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Mr. NADLER. I thank the gentleman. 

I would now recognize for 5 minutes the distinguished Ranking 

minority Member of the Subcommittee on International Organizations, Human Rights, and Oversight, the gentleman from California, Mr. Rohrabacher. 

Mr. ROHRABACHER. Thank you very much, Mr. Chairman. 

I remember this hearing and this issue very well. I think it was 

very clear after going through the facts that Mr. Arar had suffered 

unjustly and was indeed an unintended victim of America’s efforts 

to try to prevent another terrorist attack that would have cost the 

lives of thousands of Americans. 

Although the goal was not, obviously, to waste our time and our 

resources, but also to act roughshod and immorally in a way that 

would result in the mistreatment of people like Mr. Arar, who 

would unfortunately suffer unintentionally as a part of this effort. 

The fact is that we know that every major effort at providing security for this country and the West will result in an unintended suffering by certain individuals because people make mistakes in trying to implement policy no matter how noble that policy. 

When we do so, it is incumbent—and if I have any criticism of 

this Administration since 9/11, it has been that we have been unwilling to admit mistakes like this readily, and to offer our apologies and compensation to people like Mr. Arar. And there are a 

number of people like Mr. Arar obviously who are innocent and 

were caught up in this incredible effort that we have made to prevent another major terrorist attack on our country. So there is 

some criticism that I think is justified in that we did not admit 

right away when it became evident that the Canadians had given 

us false information. 

That does not, however, mean that the tactics used against Mr. 

Arar had he been a terrorist are necessarily the wrong decisions 

that would have been made had he been a terrorist, which is an 

issue that we need to discuss at this hearing. I think it is something that we need as a people to determine how far we are willing 

to go with people who are terrorists—not mistakes, but people who 

are terrorists—in order to get information, and what is an effective 

method of doing so in order to prevent the massive death of our 

citizens who have been targeted by terrorist organizations that 

mean to terrorize the people of the United States by slaughtering 

the people of the United States. 

There is, as I say, a debate, and I think this is a good and appropriate place for us to have that debate. But let us not pretend that 

this that we are talking about, the activities of an innocent or the 

suffering of an innocent person being the intentional outcome of 

American policy. The American policy’s intent was designed to prevent another major terrorist attack on the people of the United 

States, and quite frankly, I think that policy has been successful. 

We have not suffered another 9/11, and people have to realize that 

has not been a gift from God. That has been a result of American 

policy. 

Now, I believe that hearings like this, yes, we need to discuss 

these issues, but let me remind my colleagues—and I have used 

this example on a number of occasions—and that is prior to the invasion of Normandy on D-Day of June 6, 1944, the week prior to 

15 

that invasion American military opened up on Normandy and 

killed 9,000 Frenchmen. That is more Frenchmen than had been 

killed during the entire occupation by Nazi Germany in France. 

Now, this would be the equivalent. If we constantly harp on 

those 9,000 people, that would be the equivalent of concentrating 

totally on Arar as an analysis of what we have done to try to prevent 9/11s. Should we have hung our head in shame that 9,000 

Frenchmen died as we were preparing the landings at Normandy? 

Should there be a monument that American military and diplomatic personnel visiting that monument of shame to all those innocent people that were killed? 

No, our intent was not to kill those innocent Frenchmen. Our intent was to liberate Europe from the Nazi domination, and that 

was just as noble a goal as the goal of trying to prevent another 

9/11 that would result in the death of thousands of Americans. Our 

apology should be to those people who we are unintended victims 

because of mistakes made in the implementation of the policy. 

There will always be such mistakes. There will always be such victims no matter how noble the goal. 

Again, if I cite any mistake of this Administration, it has been 

the unwillingness to admit certain mistakes and correct those 

things and to make it right as much as can be made right by people who have been dealt an injustice. 

Thank you very much, Mr. Chairman. 

Mr. NADLER. I thank the gentleman. 

I would observe that the rules prohibit any demonstrations or 

holding of signs or anything, so I would ask that the person who 

was doing so a moment ago not do so and that no one do so. 

I would now recognize for 5 minutes the distinguished Chairman 

of the full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you very much. 

After hearing four impressive opening statements, I find I have 

very little to add. So I am going to ask that my statement, which 

I think you will find equally as impressive as the ones that you 

have heard, that you read it. The only one thing I am trying to find 

out between my present and former Inspector Generals is how in 

heaven’s name that it takes 41⁄2 years for me to get a redacted report on a subject like this. To have both of you here is very consoling to me. 

Now, I am always happy to see my strong Members on the other 

side from Judiciary here—Steve King and Darrell Issa—because 

they are strong contributors to this. But I close with this observation, and I do not wear my religion on my sleeve, but how does my 

internationally renowned surfer from California know that God 

didn’t have anything to do with this? I leave this maybe the subject 

of another hearing. [Laughter.] 

But it intrigues me greatly. 

I thank you very much, Mr. Chairman, and yield back my time. 

Mr. NADLER. I thank the gentleman. 

Without objection, the gentleman’s statement will be inserted 

into the record. 

[The prepared statement of Chairman Conyers follows:] 

16 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY, AND MEMBER, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, 

AND CIVIL LIBERTIES

More than 41⁄2 years ago, in December, 2003, I requested a thorough Inspector 

General review of the troubling case of Maher Arar, a Canadian citizen who was 

denied admission to the U.S. as he was returning home and was instead sent 

against his will to Syria, where he was imprisoned and reportedly tortured. It 

wasn’t until last December, 4 years later, that I received that report from the Department of Homeland Security IG. And it wasn’t until this week, despite my request in January, that even a heavily edited version of that report was made ready 

for release to the public. This disturbing chronology leads me to three questions that 

I hope our witnesses will address today. 

First, why did it take so long to produce this report? The events described happened almost 6 years ago. Canada appointed a commission on this subject, and it 

released a report in 31 months. 

Second, why have so many deletions of NON- classified material been made to the 

public version of this report? By our count, there are at least 24 such deletions in 

this 52-page report. By comparison, in the recent Justice Department IG 370 page 

report on the FBI and detainee interrogations, an extremely sensitive subject, there 

are ZERO deletions of non-classified material. For today’s hearing, I will respect Mr. 

Skinner’s request that I not disclose any such non-classified material. But these deletions, as well as what I consider over- classifications, continue to raise serious concerns. 

Third, and perhaps most important, what does the report tell us about the Arar 

case? Despite my concerns about what has been withheld, what has been RELEASED in this report tells us a lot that is very troubling. Among other things, the 

redacted report suggests that: 

• In Mr. Arar’s case, the government deviated significantly from the usual process when someone is found inadmissible to the U.S. ‘‘Most’’ such persons, according to the report, are returned to their country of embarkation (in this 

case, Switzerland) or citizenship (in this case, Canada). But Mr. Arar was involuntarily sent to Syria, where he was reportedly tortured. 

• In fact, the IG states that INS concluded that it was ‘‘more likely than not’’ 

that Mr. Arar would be tortured if sent to Syria, and sent him there only 

after receiving ‘‘assurances’’ that he would not be tortured, as provided in the 

Convention Against Torture. But the report states that those assurances were 

‘‘ambiguous’’ and their validity ‘‘appears not to have been examined.’’ 

• The report also strongly suggests that our government mistreated Mr. Arar 

in other ways. The IG specifically ‘‘question[s] the reasonableness of the 

length of time he was given’’ to ‘‘respond to the charges against him’’ and obtain counsel, and states that the notification to him of the interview to assess 

the torture issue was ‘‘questionable.’’ 

More information is needed on this issue, particularly since the IG has told us 

that he has just reopened the investigation. But what we all know already is very 

troubling, and I look forward to hearing from our witnesses today. With that, I yield 

back. 

Mr. NADLER. As we ask questions of our witnesses, the Chair will 

recognize Members in the order of their seniority on the Subcommittee and the Committee, alternating between majority and 

minority and between the two Subcommittees, provided that the 

Member is present when his or her turn arises. Members who are 

not present when their turn begins will be recognized after the 

other Members have had the opportunity to ask their questions. 

The Chair reserves the right to accommodate a Member who is 

unavoidably late or only able to be with us for a short time. The 

Chair will administer the 5-minute rule for both sides flexibly so 

that we can have a full examination of this issue. 

I want to welcome our distinguished panel of witnesses today. 

Our first witness is Richard Skinner, the Inspector General for the 

Department of Homeland Security. Mr. Skinner was confirmed as 

17 

the Department of Homeland Security Inspector General on July 

28, 2005. Between December 9, 2004 and July 27, 2005, he served 

as Acting Inspector General. He held the position of Deputy Inspector General, Department of Homeland Security, since March, 1, 

2003—the date that the Office of Inspector General in the Department of Homeland Security was established. 

Prior to his arrival at DHS, Mr. Skinner was with the Federal 

Emergency Management Agency, where he served as the Acting Inspector General from October, 2002 to February, 2003, and Deputy 

Inspector General from 1996 to 2002. From 1991 to 1996, Mr. Skinner served at FEMA OIG as the Assistant Inspector General for 

Audits. From 1988 to 1991, Mr. Skinner worked at the U.S. Department of State OIG. During his tenure at State, Mr. Skinner 

served as a senior inspector on more than a dozen foreign and domestic inspections. In 1991, Mr. Skinner was appointed by the IG 

to serve as the de facto Inspector General for the Arms Control and 

Disarmament Agency. 

From 1972 to 1988, Mr. Skinner held a variety of audit management positions with the U.S. Department of Justice and the U.S. 

Department of Commerce. He began his Federal career in 1969 

with the OIG of the U.S. Department of Agriculture. Mr. Skinner 

holds a bachelor of science degree in business administration from 

Fairmont State College and an MPA from George Washington University. 

Clark Ervin is the director of the homeland security program at 

the Aspen Institute. From January, 2003 to December, 2004, he 

served as the first Inspector General of the Department of Homeland Security. Prior to his service at DHS, he served as the Inspector General of the United States Department of State from August, 

2001 to January, 2003. His service in the George W. Bush administration was preceded by his service as the associate director of policy in the White House Office of National Service in the George 

H. W. Bush administration. 

A native of Houston, Mr. Ervin served in the State government 

of Texas from 1995 to 2001, first as Assistant Scretary of State and 

then as the Deputy Attorney General. Mr. Ervin earned a BA degree cum laude in government from Harvard in 1980, and MA degree in politics, philosophy and economics from Oxford University 

in 1982 as a Rhodes Scholar, and a JD degree cum laude from Harvard Law School in 1985. 

Our third witness is Scott Horton. Mr. Horton teaches international public and private law, national security law, and the law 

of armed conflict at Columbia Law School, and will spend the coming academic year as distinguished visiting professor at Hofstra 

Law School in Hampstead, New York. Mr. Horton is a member of 

the board of the National Institute of Military Justice, the Eurasia 

Group, and the American branch of the International Law Association, and is a member of the Council on Foreign Relations. 

He was previously a partner at Patterson, Belknap, Webb and 

Tyler. He holds his JD degree from the University of Texas at Austin, and studied law at the Universities of Mainz and Munich in 

Germany before coming to Austin. 

18 

Before we begin, it is customary for the Committee to swear-in 

its witnesses. If you would please stand and raise your right hands 

to take the oath. 

[Witnesses sworn.] 

Thank you. Let the record reflect that the witnesses answered in 

the affirmative. 

You may be seated. 

I will now ask each witness to summarize his testimony in 5 

minutes. There is a timer in front of you. It should indicate green. 

When there is 1 minute left, it should indicate yellow. And when 

the time has expired, it should indicate red. We would ask that 

when the red light goes on, you try to sum up the remaining part 

of your testimony, period. 

I now recognize Mr. Skinner for 5 minutes. 

TESTIMONY OF RICHARD L. SKINNER, OFFICE OF THE INSPECTOR GENERAL, U.S. DEPARTMENT OF HOMELAND SECURITY 

Mr. SKINNER. Good morning, Chairman Nadler, Chairman 

Delahunt, Chairman Conyers, Ranking Members, and Members of 

the Subcommittees. I am pleased to be here today. 

Prior to this hearing, I provided the appropriate congressional 

Committees and Subcommittees with copies of my unredacted classified report on the removal of the Canadian citizen, Maher Arar, 

to Syria. I also provided you with the redacted unclassified version 

of the report, as well as a formal statement for the record. 

In so far as this is an open hearing, I am here today to discuss 

the redacted unclassified version of the report. I will be happy to 

talk further about the contents of the unredacted version at your 

convenience in a more secure environment. 

Before I begin my opening remarks, there are a couple of comments I would like to make. First, I think it is important to note 

that we have reopened our review of the Mr. Arar matter. We recently received additional classified information that could be germane to our findings. We are in the process of validating the veracity of this information and if need be we will publish a supplement 

to our existing report. 

Secondly, I would like to comment on the challenges we encountered while doing this work. It took us 4 years to produce our report. No doubt, that is a long time, but we diligently tried to the 

extent we could to tell the story and tell it accurately. As frustrating as this must have been for the Congress, it was equally if 

not more frustrating for me personally and the inspection team. 

At the time we began our review in January, 2004, the department was still in its embryo stage of development. The cooperation 

we received was not as good as it could have been or should have 

been. I am pleased to say that we have since overcome those 

issues. Cooperation between the department and the OIG has improved dramatically. 

To compound matters, we were hampered by the amount of time 

that had elapsed—16 months between the time Mr. Arar was removed to Syria and the time we began our review. While the 

memories of some of the people we interviewed were extremely 

19 

vivid, memories of others had faded to the point that they only 

vaguely remembered Arar’s name. 

Furthermore, we were unable to interview the principal INS decision-makers involved in the Arar matter, including a former INS 

commissioner, the former INS chief of staff, and the former INS 

general counsel. They have left Government service and declined 

our request for interviews. Many of the decisions concerning Arar 

were made during conversations between those individuals. 

Nevertheless, even though the documentation of the events was 

sparse, we were able to compile enough written records to corroborate the information we obtained through the interviews and to reconstruct significant events of this case. To muddy the waters further, we had to contend with multiple components within DHS, 

classified information outside the purview of the department, and 

other Government agencies that did not have the same sense of urgency as our inspectors. 

We also had to contend with a pending lawsuit filed by Mr. 

Arar’s attorneys against the U.S. government and several individually named U.S. government officials. Both Government and private counsel expressed concern that our interviews of some witnesses might constitute a waiver of privileges that counsel would 

want to preserve in the litigation with Arar. 

It has been almost 51⁄2 years since Arar was removed from the 

United States. This hearing is a long time coming, and I want to 

thank the Members, and Chairman Conyers in particular, for supporting our efforts to get this right and for keeping the spotlight 

on this very important issue. It took time, but we are committed 

to conducting thorough reviews and in publishing accurate reports. 

Let me now discuss the work itself. Mr. Arar was a dual citizen 

of Canada and Syria. He arrived at JFK International Airport on 

September 26, 2002 on a flight from Zurich, Switzerland. He presented a Canadian passport for admission to the United States as 

a non-immigrant in order to board a connecting flight to Montreal, 

Canada. Mr. Arar did not formally apply for admission to the 

United States, but because he did not have a transit visa, by operation of law, he was deemed to be an applicant for admission. 

Mr. Arar was identified as a special interest alien who was suspected of affiliation with a terrorist organization. He was detained 

by inspectors for INS at JFK, questioned by Federal agents, and 

transferred to a nearby Federal detention center. INS determined 

Arar’s inadmissibility to the U.S. on the grounds that he was a 

member of a foreign terrorist organization and was removed on 

Tuesday, October 8, 2002. INS flew him to Amman, Jordan, and he 

was later taken into custody by Syrian officials. After Arar returned to Canada in October, 2003, he alleged that he was beaten 

and tortured while in the custody of the Syrian government. 

Our review examined the basis for determining that Mr. Arar 

was inadmissible to the United States, the rationale for designating Syria as Mr. Arar’s country of removal, and how INS assessed Mr. Arar’s eligibility for protection under the United Nations Convention Against Torture. We concluded that INS appropriately determined that Mr. Arar was inadmissible under relevant 

provisions of immigration law. INS officials analyzed derogatory information concerning Mr. Arar and sought clarification. INS elected 

20 

to remove Arar pursuant to section 235(c) of the Immigration and 

Nationality Act. By using a section 235(c) proceeding, INS could 

use classified information to substantiate the charge without any 

risk that the classified information would be disclosed in an open 

hearing in an immigration court. 

Syria was designated as Mr. Arar’s country of removal. INS could 

have attempted to remove Mr. Arar to Canada, his country of citizenship, or Switzerland, his point of embarkation into the United 

States. Further, Mr. Arar specifically requested to be returned to 

Canada and formally stated his opposition to returning to Syria. 

However, the Acting Attorney General ruled against removing Mr. 

Arar to Canada because that was determined to be prejudicial to 

the interests of the United States. Also, U.S. officials determined 

that they could choose any of the three countries as a destination 

to remove Mr. Arar. 

INS followed procedures for assessing Mr. Arar’s eligibility for 

protection under the United Nations Convention Against Torture, 

CAT. INS supervisory asylum officers conducted a protection interview of Mr. Arar on Sunday, October 6, 2002, to ascertain whether 

Mr. Arar had a fear of returning to Canada, Syria or any other 

country for that matter. Although INS attempted to notify Mr. 

Arar’s attorneys of the interview at their offices that day, and I believe it was a Sunday, we believe the timing and manner in which 

they were notified of the protection interview was highly questionable. 

INS concluded that Arar was entitled to protection from torture 

and that returning him to Syria would more likely than not result 

in his torture. However, we concluded that assurances upon which 

INS based Arar’s removal were ambiguous regarding the source or 

authority purporting to bind the Syrian government. 

Based on this documentation we reviewed and the interviews we 

conducted, it does not appear that any INS person violated any 

then-existing law, regulation or policy in the removal of Mr. Arar. 

However, I believe it is important to note that we did not have the 

opportunity to interview all the individuals involved in this matter. 

This concludes my opening statement. I will be happy to answer 

any questions you may have. 

[The prepared statement of Mr. Skinner follows:] 

21 

PREPARED STATEMENT OF THE HONORABLE RICHARD L. SKINNER


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Mr. NADLER. I thank the gentleman. 

Our next witness is Mr. Ervin, who is recognized for 5 minutes 

for his statement. 

TESTIMONY OF CLARK KENT ERVIN, DIRECTOR, HOMELAND 

SECURITY PROGRAM, THE ASPEN INSTITUTE 

Mr. ERVIN. Thank you, Mr. Chairman, Ranking Members, and 

Members for inviting me to testify today at this important hearing. 

As you know, I was the Inspector General of the Department of 

Homeland Security from its inception in January, 2003 to December, 2004. I was in this position, then, when Chairman Conyers 

asked me in December, 2003 to undertake an investigation of the 

circumstances under which Mr. Arar was rendered to Syria. 

Upon receipt of this request, my office and I promptly began to 

investigate this matter, and we worked diligently to try to obtain 

the necessary documents from DHS, and, if I recall correctly, the 

Department of Justice as well, where the necessary documents 

were DOJ’s to release. 

As I explained to you in my July, 2004 update letter, while my 

staff and I had by then obtained access to a number of classified 

documents, we were stymied in our efforts to complement the review of those documents with a review of other documents and 

interviews with present and former Government officials. 

Those efforts were blocked by the assertion of certain privileges, 

namely attorney-client, attorney-work product, and certain predecisional privileges. It was my view then, expressed in the update 

letter, and it remains my view now, that such privileges must yield 

to the broad authority of the Inspector General under section 

6(a)(1) of the Inspector General Act. And in any event, I understand that there is considerable legal support for the proposition 

that providing information to an Inspector General does not constitute a waiver of privileges that can be asserted by an Agency in 

litigation with a third party. 

Unfortunately, because of this legal dispute, we were not able to 

complete our investigation of this matter prior to my forced departure from office. Since leaving DHS at the end of 2004, I have followed the Arar case with great interest through the news media. 

Like many, I had been anxiously awaiting the release of my successor’s report on this matter. Like many, I was disappointed that the 

initial public version of the report, released nearly 4 years after the 

start of the investigation, said so little, citing legal privileges. 

Had I still been in office, I would have asserted the Inspector 

General’s statutory authority to trump such privileges and exercised that authority by disclosing information relevant to the process the INS used to make the determination to remove Mr. Arar. 

I believe that could have been done in a way without disclosing legitimately asserted privileges, as opposed to matter that was merely embarrassing to our Government. It seems to me that at a minimum the public version of this report should have explained exactly what privileges were asserted, the rationale for their assertion, and why the Inspector General felt compelled to acquiesce in 

their assertion. 

I did not see the initial classified version of the report, of course, 

but I understand that the Inspector General refused to publicly reVerDate Aug 31 2005 11:14 Aug 19, 2008 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 H:\WORK\CONST\060508\42724.000 HJUD1 PsN: 42724
37 

lease those individual paragraphs of the initial classified version 

that were themselves unclassified, or at least summaries of them. 

It is my view that those paragraphs should have been publicly released, especially if they are not duplicative of the contents of the 

rather spare unclassified initial version of the report and therefore 

could have amplified it. At a minimum, there should have been, I 

believe, a detailed explanation of why these paragraphs should not, 

in the Inspector General’s judgment, not DHS’s or DOJ’s, be publicly disclosed. 

I further understand that Chairman Conyers considered some of 

the classified paragraphs in the initial classified version of the report to be classified unnecessarily and that accordingly he requested a paragraph-by-paragraph explanation for such classification. I support the notion that while certainly there is no right to 

disclose information that is classified even if one believes that the 

information at issue should not be classified, the classifying entity 

has an obligation to provide an explanation for the view that such 

information should be classified. 

I drafted this testimony on Tuesday and submitted it that day, 

which was the deadline for all witnesses to do so. I learned yesterday afternoon that the Inspector General has now substantially revised the classified version of the report and submitted from it a 

much more informative unclassified version. I had an opportunity 

rather quickly this morning to review this revised document. 

Paragraphs in the initial classified version that were themselves 

unclassified are revealed in this new unclassified version, and 

there is at least a statutory citation for those paragraphs that remain classified. I commend the Inspector General for taking this 

further step, and I am also very pleased to learn just now that the 

investigation will be reopened and this report may be further supplemented depending upon the outcome of that further investigation. 

Many thanks for this opportunity to testify, and I look forward 

to any questions and learning more about the report that was released today. 

[The prepared statement of Mr. Ervin follows:] 

PREPARED STATEMENT OF CLARK KENT ERVIN

Thank you very much Chairman Conyers, for inviting me to testify today at this 

important hearing. As you know, I was the Inspector General of the Department of 

Homeland Security (DHS) from its inception in January 2003 to December 2004. I 

was in this position, then, when you asked me in December, 2003, to undertake an 

investigation of the circumstances under which Maher Arar, a citizen of Canada and 

Syria, was ‘‘rendered’’ to Syria by the United States government. 

Upon receipt of your request, my office and I promptly began to investigate this 

matter and we worked diligently to try to obtain the necessary documents from 

DHS, and, if I recall correctly, the Department of Justice (DOJ) as well, where the 

necessary documents were DOJ’s to release. (Of course, as the Inspector General of 

DHS only, I did not have the authority to require DOJ to release any documents 

to me.) 

As I explained to you in my July 2004 ‘‘update letter,’’ while my staff and I by 

then had obtained access to a number of classified documents (and we noted that, 

in our judgment, such documents were properly so classified), we were stymied in 

our efforts to complement the review of those documents with a review of other documents and interviews with present and former government officials. Those efforts 

were blocked by the assertion of certain privileges, namely, attorney-client, attorney 

work product, and pre-decisional privileges. It was my view then, expressed in the 

update letter, and it remains my view now, that such privileges must yield to the 

38 

broad authority of the Inspector General under Section 6(a)(1) of the Inspector General Act. And, in any event, there is considerable legal support for the proposition 

that providing information to an Inspector General does not constitute a waiver of 

privileges that can be asserted by an agency in litigation with a third party. 

Unfortunately, because of this legal dispute, we were not able to complete our investigation of this matter prior to my forced departure from office by virtue of the 

expiration of my recess appointment and the continued refusal of then Senate 

Homeland Security Chairman Collins and Ranking Member Lieberman to allow the 

full committee to consider my nomination as DHS’ Inspector General. 

Since leaving DHS at the end of 2004, I have followed the Arar case with great 

interest through the news media. Like many, I had been anxiously awaiting the release of my successor’s report on this matter. Like many, I am disappointed that 

the public version of the report, issued nearly four years after the start of the investigation, said so little, citing legal privileges. Had I still been in office, I would have 

asserted the Inspector General’s statutory authority to trump such privileges and 

exercised that authority by disclosing information relevant to the process the Immigration and Naturalization Service used to make the determination to remove Mr. 

Arar, given especially the conviction that such disclosure would not constitute a 

waiver of those privileges in any third party litigation. It seems to me that, at a 

minimum, the public version of this report should have explained exactly what 

privileges were asserted; the rationale for their assertion; and why the Inspector 

General felt compelled to acquiesce in their assertion. 

I have not seen the classified version of the report, of course. But, I understand 

that the Inspector General has objected to the public release of those individual 

paragraphs of the classified version that are themselves unclassified (or, at least, 

summaries of those paragraphs). It would be my view that those paragraphs should 

be publicly released, especially if they are not duplicative of the contents of the unclassified version of the report and they could, therefore, amplify it. At a minimum, 

there should be a detailed explanation of why these paragraphs should not, in the 

Inspector General’s judgment (not DHS’ or DOJ’s), be publicly disclosed. 

I further understand that you, Mr. Chairman, consider some of the classified 

paragraphs to be classified unnecessarily and that, accordingly, you have requested 

a paragraph-by-paragraph explanation for any classification. I would support the notion that, while there is no right to disclose information that is classified even if 

one believes that the information at issue is not classified, the classifying entity has 

an obligation to provide an explanation for the view that such information should 

be classified. 

Again, thank you for the opportunity to testify today and I look forward to any 

questions you may have of me. 

Mr. NADLER. I thank the gentleman. 

The Chair now recognizes Professor Horton for his statement. 

TESTIMONY OF SCOTT HORTON, DISTINGUISHED VISITING 

PROFESSOR, HOFSTRA LAW SCHOOL 

Mr. HORTON. Thank you, Chairmen Conyers, Nadler and 

Delahunt, Ranking Members Rohrabacher and Franks, and distinguished Members. 

Back in 1950—— 

Mr. NADLER. Would you pull the mic a little closer please? 

Mr. HORTON. Sorry. 

Back in 1950, Robert Jackson observed in a case that involved 

a secret immigration exclusion proceeding, which a young Irish 

woman was being excluded on the basis of secret and, it turned 

out, totally false information, he said this: ‘‘Security is like liberty 

in that many are the crimes committed in its name. The plea that 

evidence of guilt must be secret is abhorrent to free men because 

it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected 

and uncorrected.’’ 

Today, I think we are looking at the investigation of an immigration proceeding which was conducted under a similar provision and 

39 

used similar rules to the celebrated Shaughnessy case, but in this 

case it is not just secrecy that has corrupted the proceeding. It is 

also secrecy that has obstructed the investigation of the proceeding 

and what happened to it. 

I think Chairman Delahunt is correct in flagging the key issue 

that you need to keep before you. That is the correct construction 

and application of the Foreign Affairs Reform and Restructuring 

Act of 1998, and the provisions that implemented the prohibition 

on rendition to torture that is contained in the Convention Against 

Torture. That forbids the rendition of persons to countries where 

it is more likely than not that they will be tortured. 

In this case, I think the very disturbing facts that have developed are essentially these. It is quite clear that the administering 

officials believed that Maher Arar, if rendered to Syria, would be 

tortured, and clearly he was at the end of the day, and nevertheless a decision was made to render him. How exactly we get from 

these two conclusions is the crux of the inquiry I think you have 

to make. It is going to turn ultimately on the question of diplomatic 

assurances. 

Now, it is actually reasonable diplomatic assurances that is the 

question. There is nothing in the statute that provides that diplomatic assurances overcome the more likely than not to be tortured 

determination. So I think there is some very, very serious, weighty 

policy issues here that have to be gotten to the bottom of. This is 

about more than just the fate of Mr. Arar. It is about proper implementation of a rule that the United States put forward on the 

international stage and the United States has upheld in its own 

legislation. 

Now, when I looked into this report and interviewed individuals 

who were involved in preparing it, I got the same account repeatedly. The thrust of the account was pretty simple. It was that there 

were a number of high-level political appointees who had been intensely involved in Arar’s case. They were concerned that their 

identities would be exposed. The actions that they had taken were 

essentially to railroad Arar and his lawyer and ensure that he had 

no meaningful opportunity to be heard or to contest the decision to 

render him to be tortured. 

By the way, I think that is really the focus. It is the rendition 

to Syria, not his exclusion. I think no one questions but that it was 

a reasonable decision to deny him entry to the United States based 

on the information that was at hand. 

Now, having acted to accomplish their goal, these individuals 

then sought to enshroud their actions in a fog bank of secrecy. 

They invoked national security concerns and various privilege 

claims in order to obstruct the Inspector General and his report. 

They also seemed to have pressured the writers of the report intensely in an effort to editorially manipulate it. Some of this is in 

fact reflected in the redacted version that is being released today. 

The center of this conduct is inside the Department of Justice, 

particularly it is in the Office of Legal Counsel and the Office of 

the Deputy Attorney General. It seems fairly clear to me that in 

sum we are not really dealing here with a process of internal bureaucratic weighing and deciding down below. We are dealing with 

a decision that was taken at a very, very high level in the bureaucVerDate Aug 31 2005 11:14 Aug 19, 2008 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6601 H:\WORK\CONST\060508\42724.000 HJUD1 PsN: 42724
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racy and that was pushed down on people below. It seems to me 

that dynamic is a lot of what is going on here in the claims and 

the assertions of privilege and secrecy and been designed to obscure understanding of that dynamic, and an understanding of the 

fact that decisions were taken at a very high level. 

Now, since I prepared my written statement, I have had a chance 

to look through the report. I would like to just offer questions, I 

think points that merit some further focus because I think we are 

going in the right direction now toward disclosure of vital information that the public needs to know. I do agree, by the way, that 

there are things that are legitimately cloaked by privilege and 

there are things that are legitimately covered by security classifications, but the sweep here is far, far too broad. 

So the points I think that need to be focused on are, one, it 

seems to me pretty clear that classification could not have been the 

reason for originally withholding this report because it accounts for 

not more than about 20 paragraphs out of the entire document. 

Two, it seems to me that privilege and deliberative process also 

didn’t justify the original decision to withhold because there is far 

more white than there is black. But even when we look into what 

has been redacted, there are many things where it appears the 

redactions are simply far too sweeping, and in some cases ridiculously so. 

I also think the excuses that are offered for delay at times could 

be amusing if the issue were not so earnest here. I mean, for instance we are told that the Inspector General had to wait for the 

Justice Department attorneys to complete their FOIA process, and 

therefore it wasn’t the OIG’s office. But in fact this report was circulated in draft probably in late 2006 for the first time. That is 

plenty of time for the FOIA process to have been completed. 

We are also told that FOIA doesn’t require us to write a report 

to avoid implicating classification privilege issues. Now, that is 

true, but the IG Act does impose on the Inspector General an obligation to inform, and IG’s write around the privilege of law enforcement-sensitive and classification issues all the time in order to provide the public and Congress with the gist of the problem on a 

timely basis. I think many of you here were involved in the hearing 

yesterday involving Glen Fine in which he dealt with this in the 

report he recently issued. Again, I think he timely, informatively 

and very carefully well-navigated those straits. 

I think there is something foul-smelling about this report still. It 

is not the conduct of the investigation. It is not the professionalism 

of the investigators. But there is a very troubling failure of the Inspector General to rigorously uphold his mission. I do not think he 

has lived up to the charge that IG’s carry to complete the report 

as expeditiously as possible, to root out the key operative factors, 

to write it all up in a manner that takes the claims of privilege and 

other bureaucratic efforts at obstruction into account, but nevertheless strikes a balance in favor of the Congress’s and public’s right 

to know the essence of what happened. 

Had this report been prepared with zeal, it would have been completed along the same timelines that the Canadian report was completed that we have right here. In fact, just the one-page summary 

41 

compared to this tells you a lot about absence of zeal and thoroughness. 

Now, looking at some of the redactions, on page three, the list 

of abbreviations and organizations that were involved has been redacted. The recipients of the report distribution, appendix G, was 

redacted. Both of these are standard normal components of every 

OIG report. They redacted information that was passed on by Canadian intelligence to the U.S. and they redacted the Canadian 

government’s subsequent clarification of the false information, even 

though this is public information in the Canadian commission report. 

Mr. NADLER. The light in front of Mr. Horton is apparently not 

working. 

Mr. HORTON. Is my time up? 

Mr. NADLER. The red light should have gone off a while ago, so 

we would appreciate it if you would wind up. 

Mr. HORTON. I am sorry about that. I was looking for the red 

light and didn’t see it. 

Mr. NADLER. Well, none of the lights there are working. 

Mr. HORTON. Thank you, thank you. 

I think most disturbingly, the second recommendation, which is 

really the crux of our inquiry, has been deleted as classified, although it is clear from looking at the report that that second recommendation is that the State Department should be involved in 

these issues. Why is this a secret? Why is that recommendation 

pulled? That is something this Committee and Congress needs to 

probe further. 

Thank you. 

[The prepared statement of Mr. Horton follows:] 

42 

PREPARED STATEMENT OF SCOTT HORTON


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ATTACHMENT


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Mr. NADLER. I thank the gentleman. 

We will now start the questioning. I will begin by recognizing 

myself for 5 minutes to question the witnesses. As I said at the beginning, I will interpret for both majority and minority the 5- 

minute rule flexibly so we can get to the bottom of some of these 

issues. 

First, I would like to address the question of why the decision 

was made for movement of Mr. Arar to Syria, rather than to Canada or Switzerland. Mr. Skinner, your report notes that in addition 

to Canada, Arar could have been removed to Switzerland, which is 

the origin of the flight coming here, and that this option would usually have been pursued. Why are there no publicly available facts 

regarding consideration or ruling out of Switzerland as an option 

over Syria? Did your investigation cover that issue? 

I note that in the report, there is a lot of stuff redacted, but there 

is one sentence that is not redacted with respect to the decision not 

to have Canada, and that is saying that because of the porous border, it might have been considered that if Mr. Arar had gone to 

Canada, they have a porous border, presumably meaning he might 

have come to the United States after that. 

That is certainly not true with regard to Switzerland, which may 

or may not have a porous border, but not with the United States. 

So did your investigation cover that issue? What facts did you discover? And did it not cause concern that the U.S. could have, but 

didn’t, choose a country without a known history of torture in favor 

of one with a clear record of torture, when your report indicates 

that the INS felt that it was more likely than not that he would 

be tortured if sent to Syria? 

Mr. SKINNER. Yes, we did take that into consideration. We did 

ask those questions. I could answer that, but it would have to be 

in a classified environment. 

Mr. NADLER. You have a good answer as to why he couldn’t go 

to Switzerland which cannot be publicly revealed? 

Mr. SKINNER. That is correct. 

Mr. NADLER. And you regard the classification decision as not 

outrageous with respect to that question? 

Mr. SKINNER. I do not think it is outrageous. 

Mr. NADLER. Okay. Well, then, we are going to have to follow up 

in a classified session. 

Mr. SKINNER. Yes. 

Mr. NADLER. And then we will make the decision as to whether 

it is outrageous. 

Your report says that the usual disposition of a removal action— 

well, let me ask Mr. Horton. Mr. Horton, can you think of any reasonable reason why a decision that he couldn’t be removed to Switzerland might be legitimately classified? 

Mr. HORTON. You know, I can’t speculate as to what it is, but 

it seems to me the Swiss cooperate with us very strongly. On 

counterterrorism law enforcement, they take aggressive preemptive 

action. They have rights under their legal system to hold people almost indefinitely under investigation. I am mystified by this. 

Mr. NADLER. Thank you. 

Mr. Skinner, your report says on page 22 that ‘‘the usual disposition of a removal action would have involved a removal to SwitzerVerDate Aug 31 2005 11:14 Aug 19, 2008 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6602 H:\WORK\CONST\060508\42724.000 HJUD1 PsN: 42724
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land or transporting him to the nearby country where he resided 

and had citizenship, that is Canada, not to transport him to a nation where his proof of citizenship had lapsed.’’ 

These, along with other findings, indicate that it is at least a reasonable possibility that the U.S. wanted to send Mr. Arar to Syria 

precisely because it knew he would be detained and interrogated 

and that harsh measures, or torture, depending on how you define 

these things, would be used to obtain information. 

Do you feel that your investigation has ruled out the possibility 

that the decision was made to send him to Syria because people in 

our Government wanted him interrogated under conditions that 

our law would not permit? 

Mr. SKINNER. We can’t rule that out, but I want to say here, in 

the jurisdiction that I had in conducting this review, we tried to 

stay within the confines of the—— 

Mr. NADLER. But you couldn’t rule it out? 

Mr. SKINNER. That is correct. 

Mr. NADLER. If this possibility could not be ruled out, which I believe it has not and cannot be given the incompleteness of the investigation as you have just said, why didn’t your office refer this 

question to the Attorney General, or take greater steps to get the 

information to Congress in a timely manner? I note that the IG 

Act, the law, requires referral of possible criminal conduct and obviously if he were sent to Syria for the purpose of being tortured, 

that would be criminal actions under a half-dozen different laws. 

Since you couldn’t rule that out, the IG Act requires referral of 

possible criminal conduct to the Attorney General. If the Inspector 

General finds serious problems, he must report immediately to the 

Agency, who must then tell Congress within 7 days and not wait 

for 4 years. So if you could not rule it out, why didn’t your office 

refer this to the Attorney General and take greater steps to get the 

information to Congress in a timely manner? 

Mr. SKINNER. We did keep the Department of Justice informed. 

It is my understanding that there is an investigative inquiry going 

on as we speak. 

Mr. NADLER. So referral for possible criminal action has been 

made to the Attorney General? 

Mr. SKINNER. Investigation. 

Mr. NADLER. Did you note that this was or was not told to Congress within 7 days, as the statute requires? 

Mr. SKINNER. I am not sure I understand your question. Once we 

had sufficient information or facts, we did share that with the Office of Professional Responsibility with the Department of Justice, 

who has the responsibility for investigating attorneys within the 

Department of Justice. I didn’t do it prematurely, when you say 7 

days. 

Mr. NADLER. No, referral to Congress must occur within 7 days 

of that. 

Mr. SKINNER. That is not our standard protocol. 

Mr. NADLER. No, it is the requirement that the department notify Congress within 7 days of your referral. Did you make any attempt to—— 

Mr. SKINNER. I am not aware of that requirement. I am sorry. 

Mr. NADLER. You are not? 

54 

Yes, well, the statute requires that if you find a serious problem, 

you must tell the Agency head, which you did. 

Mr. SKINNER. Yes. 

Mr. NADLER. And that requires the Agency head to report that 

to Congress within 7 days, which he has not done to date. And you 

think you have no responsibility to note whether the Attorney General followed his statutory duty to report it to us? 

Mr. SKINNER. I am not so sure. I am not familiar with that protocol, sir. I am sorry. 

Mr. NADLER. Let me ask Mr. Ervin. Would you have acted differently in this matter? 

Mr. ERVIN. Well, I would, sir, in a number of respects, as I outlined in my statement. But on the specific question that you are 

asking about, if I understand it correctly, this 7-day letter procedure I think relates to a formal criminal referral that the Inspector 

General would make to the Department of Justice. 

Mr. NADLER. And not to a formal criminal investigation recommendation? 

Mr. ERVIN. Right—a recommendation that the Department of 

Justice pursue prosecution because there is some sense that there 

might have been a—— 

Mr. NADLER. In what way do you think the actions in referring 

this to the AG or not referring this to the AG or not telling Congress on this whole question were not as you would have done or 

were inadequate? 

Mr. ERVIN. Well, there are a number of things, sir. As I said in 

my statement, I would have written a public version of this report 

in the beginning that would have disclosed the process by which all 

the questions that we are talking about, the process by which Mr. 

Arar was rendered to Syria. I think that could have been done in 

a way that would not have disclosed legitimate privileges. 

Further, in the classified version of the report—and certainly as 

we have all said there are things here that ought to be classified— 

those paragraphs that contained unclassified information I would 

have disclosed or at least summarized, but probably disclosed, certainly disclosed. My preference always is to get as much information on the public record with regard to a matter of legitimate public interest. And this clearly is a matter of legitimate public interest. I think it is possible to do that without disclosing classified information. 

Mr. NADLER. Okay. Thank you. I have one further question for 

Mr. Skinner. 

Mr. ISSA. Mr. Chairman, point of order? 

Mr. NADLER. Mr. Arar’s attorney filed—— 

Mr. ISSA. Point of order, Mr. Chairman. 

Mr. NADLER. Had Mr. Arar’s attorney filed a habeas corpus petition, a possibility raised by INS attorneys—— 

Mr. ISSA. I raise a point of order. 

Mr. FRANKS. Mr. Chairman, he has raised a point of order. 

Mr. NADLER. I am not recognizing him. I am in the middle of my 

questioning. 

Mr. FRANKS. I understand. He has raised a point of order. 

Mr. NADLER. He has not raised a point of order—— 

Mr. ISSA. I have raised a point of order, Mr. Chairman—— 

55 

Mr. NADLER. Had Mr. Arar’s attorney filed a habeas corpus petition, a possibility acknowledged by INS attorneys that your office 

interviewed as noted on page 27, an independent assessment might 

have been made regarding the validity of the Government’s determination that Mr. Arar was a terrorist, Deputy AG Thompson’s determination that he could not be removed to Canada, and any determination that Switzerland also wasn’t possible, and whether 

shipping him to Syria violated his right not to be sent to a country 

where he would be tortured. 

Now, the report indicates that given the fact that he was held 

almost incommunicado, that he wasn’t really given an opportunity 

to contact an attorney, shouldn’t we then be very concerned with 

the efforts that seem to have been undertaken by U.S. officials to 

interfere with his rights to obtain counsel in order to prevent the 

habeas corpus petition from being filed? 

Mr. SKINNER. Mr. Chairman, it is my understanding INS did in 

fact provide Mr. Arar with a list of attorneys that he could contact. 

It is my understanding that he also was in contact with at least 

two attorneys, an immigration attorney that interviewed Mr. Arar 

when he was detained, one that his wife had arranged for, as well 

as I believe a criminal attorney that the immigration attorney had 

referred to Mr. Arar. 

I am not aware in the course of our review that there was a deliberate effort to keep Mr. Arar from having contact with an attorney. 

Mr. NADLER. Mr. Ervin, having read that report, do you—— 

Mr. ISSA. Mr. Chairman, point of order again. 

Mr. NADLER. I will recognize your point of order after Mr. Ervin 

finishes. 

Mr. ISSA. Mr. Chairman, my point of order is germane to your 

continued asking of question beyond the 5-minute rule. 

Mr. NADLER. The gentleman will state his point of order. 

Mr. ISSA. Mr. Chairman, pursuant to rule 3(d), the rules of the 

House do not allow for flexible 5-minute, but rather it says in the 

course of a hearing each Member shall be allowed 5 minutes for the 

interrogation of a witness until such time as each Member who so 

desires has an opportunity to—— 

Mr. NADLER. The gentleman’s point of order is correct. We will 

be here for a few additional rounds so that everybody can get the 

information out. From now on, we will stay strict, especially when 

Mr. Issa has questions. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. NADLER. I recognize Mr. Franks for 5 minutes, a strict 5 

minutes. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. Skinner, you stated in your testimony, this is your written 

testimony, that ‘‘even a casual reading of the report reveals that 

significant portions that could have been redacted under the Freedom of Information Act have been in fact released, a testament 

both to the OIG’s diligence and the good faith of the components 

and other entities with which we consulted.’’ That is a basic quote. 

Can you elaborate on that a little bit? 

Mr. SKINNER. When we began this whole process, the department 

wanted to classify and redact the entire report. I would like to comVerDate Aug 31 2005 11:14 Aug 19, 2008 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6602 H:\WORK\CONST\060508\42724.000 HJUD1 PsN: 42724
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ment on something my predecessor, Mr. Ervin, had said, and I do 

agree with him. This is Monday night quarterbacking. This is in 

retrospect. 

Had we had to do this over, I would in fact have written, and 

in fact we attempted to write a report where in we could tell our 

story and we ran into a lot of difficulty with regard to redactions. 

So that is why we opted to go this route, with a classified report, 

then follow it up with a redacted version. But we did in fact try 

to write two reports—a classified report and an unclassified report 

that could tell the story. 

This is where we ended up today with this redacted version. This 

has taken us over 2 months of sitting down with not one attorney, 

not two attorneys, not three, not four, not five, not six not seven, 

but eight or more attorneys in different parts of DHS and the Government, where we vetted word by word, and we pushed back very 

hard, and there is a lot in here that ordinarily that previously we 

were told could not be made public, is now made public. 

Those items that we agreed to redact, we do, and I was personally briefed and brought into this, I do believe that the classified 

stuff is in fact classified. We did not classify it. We do not have the 

authority to declassify it. The attorney-client privilege, the deliberative process, the attorney work product—these are documents 

that we are convinced could jeopardize the Government’s case in 

defense of itself in the civil lawsuit right now. 

Mr. FRANKS. Thank you. 

I have another question for you. Sometimes in these Committees, 

what we are really trying to do is just to get to the bottom line to 

what really happened and was there culpability on someone’s part? 

Did American officials make mistakes? We are all interested in justice here. 

So let me just ask you as sincerely as I can, to put it in your own 

words, tell us what happened here? What do you think potential 

injustices were and whose fault it was? What really occurred here, 

just the bottom line? 

Mr. SKINNER. Without getting into it in a classified environment, 

it would be very difficult to do. But from what you can see in this 

report, there were some very questionable processes and actions 

that were taken here. When you look a the unclassified version, for 

example, the timing and the manner in which the CAT interview 

was conducted with the attorney on a Sunday evening late at 

night—that is questionable. 

The process wherein the INS made one determination on the torture more likely than not, yet which was ultimately overridden— 

we could not find documentation though interview or documentation that gave us a comfort level that was justification for the INS’s 

original decision to be overridden. We could get into detail, a lot 

more detail, if we were in a classified environment. 

Mr. FRANKS. Mr. Chairman, I am going to go ahead and yield 

back here, because it sounds like we are going to have more rounds 

here of questioning. Thank you. 

Mr. NADLER. I thank the gentleman. 

The co-Chairman of the hearing, the gentleman from Massachusetts is recognized. 

Mr. DELAHUNT. I thank the Chairman for the time. 

57 

I find it incredulous that the department intended or sought to 

have the entire report classified. Was that your statement? 

Mr. SKINNER. Either classified or redacted for other reasons because of the outstanding or the pending civil lawsuit. 

Mr. DELAHUNT. But this is the entire report that was their stated 

request. 

Mr. SKINNER. That was a request. That is where we started, then 

we sat down and negotiated to the point where we are at today, 

this report here. 

Mr. DELAHUNT. I just find that—that says all that really has to 

be said. It is clear that this Administration, this Government does 

not want the facts surrounding this case to emerge. From my perspective, it is just that simple. To request at the beginning that 

this entire report not become public is outrageous. It is an embarrassment. 

I am looking at the report of the O’Connor commission, the Canadian commission. All of that is in the public domain. The prime 

minister of Canada made a public apology and compensation was 

awarded to the tune of some $10 million to this individual. 

You indicated, Mr. Skinner, that the CAT interview on a Sunday 

with no counsel present was questionable. To me, that is, again, 

outrageous. Any individual in those circumstances, any representative of the Government would know that the likelihood of securing 

counsel on a Sunday was remote at best. 

Explain to me once more what your office did in terms of referral 

to the Attorney General or to the secretary of the Department of 

Homeland Security about your findings. 

Mr. SKINNER. I am sorry. I am not quite sure I understand. 

Mr. DELAHUNT. In other words, in response to the question by 

Mr. Nadler, when a serious abuse or deficiency becomes apparent 

or potential abuse or deficiency, what were the first steps? 

Mr. SKINNER. I think I understand. During the course of our review, nothing came to our attention that was criminal in nature. 

So therefore, we would not have been referring anything to the Department of Justice or the Attorney General for prosecution. However, there were some questions raised by employees not within the 

Department of Homeland Security, not within INS, but there were 

other people involved in the Office of the Deputy Attorney General 

and their counsel, which is outside our jurisdiction and our purview. 

We did turn over the results of our review to the Office of Professional Responsibility for their investigation and referral to the Attorney General for prosecution if deemed necessary. 

Mr. DELAHUNT. Mr. Horton, given your familiarity with the facts, 

is there cause to have a criminal investigation conducted? 

Mr. HORTON. Yes, I think the answer is yes here. In fact, Chairman Nadler in his opening remarks referred to it. I would say specifically section 2340(a) makes it—and this is one of the enforcement provisions under the CAT—it makes it a crime for individuals 

to gather together in a conspiracy to render someone to be tortured. 

In fact, there is an internal memorandum in the FBI prepared by 

legal counsel advising FBI agents not to participate with in any 

way or support this program because they risk the possibility 

of—— 

58 

Mr. DELAHUNT. Let me interrupt because I know the Chairman 

is going to be strict with time. I would ask the Members of this 

panel on both sides to consider a request—— 

Mr. NADLER. The gentleman’s time has expired. I apologize to 

the gentleman, but our colleague from California has insisted on 

his point of order. I do not like cutting off colleagues, but my hands 

are tied. Perhaps the gentleman from California will later apologize 

to you and everybody else. 

Mr. CONYERS. Mr. Chairman? 

Mr. NADLER. Yes, the gentleman from Michigan is recognized. 

Mr. CONYERS. Might I generously yield the gentleman 1 minute 

of my time? 

Mr. NADLER. The gentleman is yielded 1 minute. 

Mr. DELAHUNT. I thank the Chairman of the full Committee. 

What I was going to propose to Chairman Conyers and Chairman 

Nadler and to the Ranking Members that this Committee consider 

drafting a request to the Department of Justice, to the Attorney 

General, seeking the appointment of a special prosecutor to initiate 

an investigation to determine whether there have, in this particular case, been violations of the applicable domestic laws, as well 

as any of our obligations under the Convention Against Torture. I 

would hope that we would all join in that request because it is 

clear to me after 41⁄2 years and the challenges that have been described by Mr. Skinner and by Mr. Ervin, and what we have observed and heard in the short time that we have been here, this 

Administration will not comply. 

I yield back. 

Mr. NADLER. The gentleman’s time has expired. 

The gentleman from California, Mr. Rohrabacher, is recognized 

for 5 minutes. 

Mr. ROHRABACHER. Thank you very much. 

I obviously think that our problems in this Administration, and 

I would say that the criticism by my friends on the other side of 

the aisle quite often in this area are justified in their specifics, but 

wrong in their general prescription of how to solve things. In this 

particular case that we are looking at, I think perhaps it is informative to us for Jerry to go through these specific areas that are 

being blocked off so that we do not know about them. I think that 

perhaps this case could serve as an instrument to educate us as to 

how justified or unjustified the control of information has been by 

this Administration and compare it to what it would be like if other 

people were making the decisions. 

So I am watching very closely. I am sorry that I have some constituents out in the anteroom where we had a local issue that I had 

to touch on. But in the Maher case, I think that we should not— 

and I emphasized this in my opening statement—we should not 

take a case of someone who was innocent and caught up in this 

fight against radical Islam. We should not take that and use that 

as the basis for judging all policy that we are going to have and 

what our goals should be in the fight against radical Islam. 

I know everyone likes to suggest Mr. Maher was tortured. He 

was tortured, and that is wrong, but we do not assume that everything that is called torture is something that is actually parallel to 

what Mr. Maher went through. Yesterday, we had a hearing and 

59 

at that hearing the FBI was basically outlining this misbehaving 

of the interrogators in Guantanamo. They went through a list of 

why the FBI had distanced themselves of the type of behavior, yes, 

the type of behavior that they were objecting to on the part of the 

interrogators. 

I have heard the word ‘‘torture’’ over and over and over again, 

and the behavior that was described that was going on had nothing 

to do with what the average American would call torture. And the 

FBI was saying we shouldn’t even go that far in questioning an individual who in this case the FBI was analyzing how a person had 

been interrogated, and that person happened to have been the 20th 

hijacker, a man who had actually been involved in the 9/11 conspiracy and by a fluke had been stopped getting on an airplane. 

Now, frankly I think that when you are talking about the 20th 

hijacker, we shouldn’t let what happened to Mr. Maher prevent us 

from interrogating and from dealing with the 20th hijacker in a 

way that would prevent us from getting information that might 

save the lives of millions of people. It is very easy just to stand up 

and say we should never use any type of physical pressure of any 

kind on someone who is a suspect of terrorism, and see what happened to Mr. Maher. 

Well, I would suggest that we do not use the exception to the 

rule. Mr. Maher was an exception, and one we should acknowledge 

as a mistake, but we should not use that as the basis for how we 

will conduct the war on terror. I would certainly think that the appointing of a special investigator or prosecutor in this particular 

case is not justified because we are getting to the bottom of this 

case right now, and we will let the American people decide by exposing all the details, as Mr. Nadler is clearly committed to, exposing the details. Let the American people decide what was justified 

and what wasn’t. 

With that, if you have any comments, go right ahead. 

Mr. NADLER. The gentleman’s time has expired. 

Mr. ROHRABACHER. Thank you very much. 

Mr. NADLER. Again, I apologize for the rule we have imposed 

upon us. 

I now recognize the distinguished Chairman of the full Committee on the Judiciary, Mr. Conyers, for 4 minutes. 

Mr. CONYERS. I would like to invite Darrell Issa to my office for 

lunch next week because I think the results of his reciting the rule 

on whether we should be liberal or strict in interpreting the 5- 

minute rule may require some revisiting. We could be here well 

into the afternoon with the strict interpretation. Let’s see how it 

works out today. 

Mr. ISSA. Would the gentleman yield? 

Mr. CONYERS. Of course. 

Mr. ISSA. Mr. Chairman, certainly the practice of this Committee 

has been to allow the completion of a question. I think of Ms. Jackson Lee, who you sort of encourage her to finish her question, and 

then allow the witness to respond. If that goes beyond the 5 minutes, I certainly understand. The intention of the 5-minute rule is 

to end questioning and allow the witnesses to complete. You as 

Chairman have been great at making sure that witnesses did anVerDate Aug 31 2005 11:14 Aug 19, 2008 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6602 H:\WORK\CONST\060508\42724.000 HJUD1 PsN: 42724
60 

swer even if the 5 minutes had expired. That was not the intention 

of my motion, and I hope the Chairman would understand. 

And I look forward to lunch, Mr. Chairman. 

Mr. CONYERS. Well, I look forward to the discussion. 

But at any rate, I want to thank Trent Franks for the question 

that he raised that has led to a much deeper inquiry into this matter. I appreciate it very much. 

Now, with the terminology and the language of my good friend 

from California, I am trying to figure out maybe terminology is 

used differently in the Foreign Affairs Committee. What do I know? 

We are at war against terrorists. We are at war against the 

Taliban. We are at war against al-Qaida. 

Could I just ask my friend, we may be cutting this thing a little 

bit wider than we intend to, and then to leave it to the American 

people, I would think the American people are asking us to tell 

them where all of these inquiries, these years of investigations, 

these declassifications, all of these deletions have led us. We have 

admitted a reasonable amount of error. Mr. Skinner has been 

forthcoming as he feels he is permitted to. The former Inspector 

General has shed some light on the problem. 

It would seem to me, I would say to my good friend from California, Mr. Rohrabacher, that why don’t we at least determine 

whether it should be sent to a criminal investigation? There seems 

to be enough reasonable information before us. And how about us 

deciding, instead of letting 330 million Americans come to some 

kind of view? This is a representative democracy. It is not a direct 

democracy. That is why we are called representatives. 

Mr. ROHRABACHER. Would the gentleman yield? 

Mr. CONYERS. With pleasure. 

Mr. ROHRABACHER. That would be the equivalent, in my eyes, of 

taking American military leaders at Normandy and sending a special prosecutor to see if they should be prosecuted for the death of 

French civilians as we got ready to invade. I do not see it. There 

was never an intent for this individual to be treated—— 

Mr. ISSA. Mr. Chairman, I would ask unanimous consent for the 

full Committee Chairman to have an additional 2 minutes. 

Mr. NADLER. Without objection. 

Mr. ROHRABACHER. Okay. I see no intent that this man was 

treated in the way that he was, an intent to treat an innocent person in that way. This was a mistake and we should admit our mistakes. It should be open to the American people. But to bring a 

prosecutor or something like that in with the idea that this might 

represent a criminal intent is absolutely the wrong way to go. 

Mr. CONYERS. Well, you do not think you even want to find out 

if that is a possibility. The criminal investigation doesn’t mean that 

we have made a finding of criminal intent. That is an inquiry. 

Mr. ROHRABACHER. Mr. Chairman, I would say that would be up 

to us to make sure that when we make our final statement on this 

case, which Mr. Nadler is committed to do and I think Mr. 

Delahunt, my Chairman, is committed to do as well, that is for us 

to suggest that. If there was some type of criminal intent, that 

should be a statement made by our Committees. That is why we 

are here. 

61 

Mr. CONYERS. Well, I am not going to sleep more comfortably in 

my bed tonight. 

Mr. DELAHUNT. Would the Chairman yield for a moment? 

Mr. CONYERS. Of course. 

Mr. DELAHUNT. I think what we heard from Mr. Horton, and I 

dare say if I inquired of the others, is that there are grounds that 

would serve as a catalyst for a referral to determine whether there 

were violations of the United States criminal code. Clearly, in this 

particular case, because there is a significant role by the Department of Justice—— 

Mr. CONYERS. You would not object would you, Mr. Skinner, to 

this inquiry? 

Mr. SKINNER. No. 

Mr. CONYERS. Of course, you would not. 

You would not object would you, Mr. Ervin? 

Mr. ERVIN. I would enthusiastically support it, Mr. Chairman. 

Mr. CONYERS. You would not object—well, you have recommended it, so I know your view. [Laughter.] 

Mr. HORTON. I endorse the idea. 

Mr. DELAHUNT. The point being here was, and Mr. Horton was 

correct when he said this isn’t about stopping terrorists coming into 

the country. The issue is why did they send Mr. Arar back to Syria. 

That is the issue. 

Mr. NADLER. The gentleman’s time has expired. 

I now recognize the gentleman from California for a strict 5 minutes. 

Mr. ISSA. Thank you, Mr. Chairman. 

I would like to associate myself with the full Committee Chairman’s call that this line of investigation not end until we know 

whether or not there was in fact what I would call a back-door extraordinary rendition that took place. To that end, Mr. Horton, I 

will start with you. 

Would you say that regardless of what might have been available 

in this declassified information, that it appears as though what effectively happened is the United States got an extraordinary rendition to Syria in which Syria asked question and that either may 

have given us information or may have been believed it would give 

us information on this individual? 

Mr. HORTON. It is hard to find that in the report, in the declassified version that has just come out. 

Mr. ISSA. It is clearly not there. 

Mr. HORTON. It is clearly not there, but it is sort of in the periphery all around it. It looks to me that decisions were taken in the 

Office of the Deputy Attorney General to push forward a process 

that externally looks a lot like an extraordinary rendition, and then 

we have the Jordanians turning them over to the Syrians, several 

published reports that he was turned over with a list of questions 

that were suggested to be presented. That, then, begins to look an 

awful lot like extraordinary renditions. 

But the question is still Syria. I mean, Syria is not a partner in 

the CIA’s extraordinary renditions program. It is a country with 

whose intelligence services we do not have positive relations. 

Mr. ISSA. And following up on that, 2002 was a long time ago. 

It was before we went into Iraq. It was at a time in which we were 

62 

reaching out to Bashar Assad’s government, and there was high 

anticipation that they might be different, different than a man who 

killed 25,000 of his own people using chemical agents in order to 

let the Muslim Brotherhood know that he meant business. Different in many ways, but probably believing that they were similar 

to the Hafez Assad administration or government or dictatorship 

that in fact had supported us in Gulf War I. So I put my questions 

in perspective relative to the time in which this occurred. 

Mr. Ervin, we are I think not unified, but somewhat unified up 

here in saying that we need to know more about this. But in your 

looking at this case relative to other cases—and this would be good 

for any of you—isn’t it true that normally, notwithstanding suspicions alleged but not available to us today, that in fact normally 

when someone is transiting the U.S., not entering the U.S. per se, 

but simply trying to come through here or through London’s airport 

or Paris’s airport, that if in fact we object to them, we simply do 

not allow them to enter our space and we allow them to go to one 

of those three locations. 

So the real question is, in every other case within reason, isn’t 

it true that Mr. Arar would have in fact been given his choice of 

those three locations and told to decide. 

Mr. ERVIN. That is my understanding, sir. Yes. 

Mr. ISSA. Mr. Skinner? 

Mr. SKINNER. No, I do not think that is totally accurate. 

Mr. ISSA. Okay. 

Mr. SKINNER. This was a 235(c) proceeding which is somewhat 

different than what I think you are referring to, which is a 240 proceeding under which people can come through here and for whatever reason we think they are undesirable or should not be—— 

Mr. ISSA. Okay, but he didn’t attempt to enter the country. Is 

that correct? 

Mr. SKINNER. But under 235(c), you do not have the same rights. 

Mr. ISSA. Right. But I guess the question is, he did not intend 

to enter the country. He was transiting. 

Mr. SKINNER. That is correct. 

Mr. ISSA. Okay. And the world relies on transiting countries to 

be generally, unless there is a specific reason, free of interference 

by the country that is simply being a hub. 

Mr. SKINNER. As a general rule, that is correct. 

Mr. ISSA. Okay. And had he entered the United States, had he 

been through, he could have claimed that he was afraid of being 

tortured in Syria when we said we were going to send him back, 

and as such would have been allowed a lawyer and a hearing. Isn’t 

that true? 

Mr. SKINNER. No. 

Mr. ISSA. It is not true that if someone enters the United States 

that before they can be sent to Syria, they have a right to a hearing? 

Mr. SKINNER. I am sorry. I misunderstood your question. Under 

235(c) or 240 you have a requirement—— 

Mr. ISSA. Right. I understand. Let me characterized the question. 

But isn’t it essentially a technicality that he wasn’t in the U.S. 

where he would have had a right to say do not send me to Syria, 

I will be tortured, but he was in our custody and we took advanVerDate Aug 31 2005 11:14 Aug 19, 2008 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6602 H:\WORK\CONST\060508\42724.000 HJUD1 PsN: 42724
63 

tage of that transit. I am looking at this for the future. Regardless 

of the fact it was legal—— 

Mr. NADLER. The gentleman’s time has expired. 

The gentleman from Minnesota is recognized for 5 minutes. 

Mr. CONYERS. I ask unanimous consent that the gentleman be 

given 11⁄2 additional minutes. 

Mr. NADLER. Without objection, the Chairman’s courteous request will be granted. 

Mr. ISSA. Thank you, and I won’t use it all. 

Mr. Skinner, if you would just sort of answer. 

Mr. SKINNER. I see where you are going. We do have a responsibility regardless of the proceeding that we apply to ensure that 

people are not removed to a country that we believe could torture. 

In this particular case, the individual was on a terrorist watch list, 

and those are rare that they would come through this country, 

transit through this country if they aware of the fact they are on 

a terrorist watch list, which made him somewhat unique, and the 

reason he was pulled aside, interrogated. We did make the decision, the U.S. government, that he was in fact inadmissible and 

had to be returned. 

Mr. ISSA. But he wasn’t returned. He was in fact sent to a country that he was not per se from. 

Mr. SKINNER. Yes. I can’t go beyond that because of the classified—— 

Mr. ISSA. I understand that. I join with the Chairman in saying 

that further investigation until this Congress has full understanding is appropriate. 

I thank the gentleman for the extra time and yield back. 

Mr. NADLER. The gentleman’s time has once again expired. 

The gentleman from Minnesota is recognized for 5 minutes. 

Mr. ELLISON. Mr. Chairman, before I get started I just want to 

make the observation that I wish that we as a Congress would stop 

saying that we are in a war with Islam or radical Islam. We are 

not. If we are at any kind of a war, it is a war against people who 

commit acts of terror no matter what their religious motivation 

may be. I hope we can come to a consensus in the Congress. 

I believe it is this attitude that we are in a war with Islam that 

has created the Maher Arar situation. That is why somebody 

thinks it is a good idea to make all the parade of mistakes that 

have been made in this case and the subsequent cover-up. So I 

think we need to really re-tool our thinking on both sides of the 

aisle on this question. I make that abundantly clear. 

You know, we have good relationships, formalized relationships 

with Egypt, Jordan, Saudi Arabia, Nigeria, Turkey, Indonesia, and 

Malaysia. All these are Muslim countries. What are we saying if 

we are in a war against Islam? It is ridiculous and it undermines 

American national security. I wish we would stop doing that. 

Is Maher Arar available to come into the United States at this 

time or is he still barred? 

Mr. SKINNER. He is not permitted into the United States, it is 

my understanding. 

Mr. ELLISON. Is there any evidence that he is a threat to the 

United States at this point? 

Mr. SKINNER. I can’t answer that. 

64 

Mr. ELLISON. Mr. Ervin, in your view? 

Mr. ERVIN. I can’t answer that either, except that I do not believe 

that he is. 

Mr. ELLISON. Mr. Horton? 

Mr. HORTON. It is another point where I am mystified. I hear the 

points made by the Administration, but they do not make any 

sense to me, particularly in light of this. 

Mr. ELLISON. Well, the Committee—— 

Mr. NADLER. Would the gentleman yield for a moment? 

Mr. ELLISON. Okay. 

Mr. NADLER. I will simply state that the Administration says 

that on the basis of classified information, he is a threat. I have 

seen the classified information. In my judgment, it is nonsense. I 

yield back. 

Mr. ELLISON. Thank you for making that point, Mr. Chairman. 

I will confess that I kind of knew the answer already. [Laughter.] 

But the point it, we are wrong and staying wrong. We are committed to being wrong. We won’t get right regardless of that voluminous document the Canadian government has produced. 

But here is the other question. The horrific thing that happened 

to Mr. Arar, which both sides of the aisle have apologized for, that 

is good. As I said, I think we are on a track to keep doing stuff 

like this if we do not re-orient our general national attitude. But 

besides all that, what about the affront to the Congress itself? As 

I understand it, Mr. Arar was rendered in 2002. You got a letter 

from Chairman Conyers in 2003. The AG did. And we get a followup letter asking about the earlier letter in July of 2007. Is that 

right? 

Mr. SKINNER. I think you are referring to my response. That was 

July 2004. 

Mr. ELLISON. Well, okay, so your response is that it is taking too 

long, and I am sorry that it is taking so long. Right? 

Mr. SKINNER. Exactly. 

Mr. ELLISON. But then the Members of Congress, Nadler and 

Delahunt, say in July 2007, where is the stuff. Right? Anybody 

want to acknowledge that? 

Mr. SKINNER. That is correct. 

Mr. ELLISON. And then we get a one-page unclassified, and then 

another thing that is classified, in December 2007. Right? 

Mr. SKINNER. That is correct. 

Mr. ELLISON. You know, what level of respect has the Administration accorded to the Congress with this extraordinarily lengthy 

amount of time that it took to respond? 

Mr. SKINNER. I commented on that in my opening statement, and 

I believe also in my formal statement. This was as frustrating for 

my office as it was for the Congress. We worked diligently to get 

this report out. It involved, multiple-agency components within the 

department and outside the department. 

Mr. ELLISON. Thank you. Do you believe there was deliberate obstruction from the Administration? 

Mr. SKINNER. No. But I do believe that when we initiated this 

review, there was a lack of cooperation in the first year. I also believe that—— 

65 

Mr. ELLISON. Do you mean in 2003 or 2004 would be that first 

year? 

Mr. SKINNER. I would say the first 11⁄2 years. 

Mr. ELLISON. Okay. 

Mr. SKINNER. Through 2004 to mid-2005. After that, things did 

begin to pick up. It was the logistics of getting the job done. 

Mr. ELLISON. It was 2 more years after that before we got anything. 

Mr. SKINNER. Going outside the department, I do not believe that 

those that we worked with had the same sense of urgency as we 

did. We cannot control those outside agencies. 

Mr. ELLISON. Now, let me ask you this because my 5 minutes is 

short. Does the world know about what happened to Maher Arar? 

That is a rhetorical question. Yes, they do. Is that right, Mr. Horton? The whole world knows that—— 

Mr. HORTON. [OFF MIKE] 

Mr. ELLISON. Right. And so Mr. Horton, what does this do to our 

national reputation? 

Mr. HORTON. I think the fact that the facts are out there and we 

get a report in which they are redacted. In fact, even quotations 

to this report are redacted away, make us look ridiculous. It undermines public confidence, in fact the confidence of Americans first 

and foremost, and the comprehensiveness and quality of the work 

that is being done by the Inspector General. 

Mr. ELLISON. Now, I will offer that as a matter of—— 

Mr. NADLER. The gentleman’s time has expired. Without objection, the gentleman will get 1 additional minute. 

Mr. ELLISON. I will offer that as a matter of national security, 

we need the help of the world to help protect our country and the 

rest of the world from people, whatever religion they may be, to 

stop terrorism. Would you agree with that, Mr. Horton? Are we instilling confidence in the world when we obstruct, evade, and obscure the truth when the Canadians have so clearly confronted this 

issue head-on? Are we doing ourselves any good? I do not think Mr. 

Horton thinks we are doing ourselves any good. 

Mr. HORTON. Yes, sir. 

Mr. DELAHUNT. Would the gentleman yield for a moment? 

Mr. ELLISON. Yes, sir. 

Mr. DELAHUNT. I just want to note that I had read an excerpt 

from the book that was just published. 

Mr. ELLISON. Philip Sands’ book? 

Mr. DELAHUNT. No. The author was Scott McClellan, who is 

known to many of us because he was the spokesman for the Bush 

administration. This is what he had to say. The Bush administration lacked real accountability in large part because Bush himself 

did not embrace openness or Government in the sunshine. 

I think that is your answer, Mr. Ellison. 

Mr. ELLISON. Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. The gentleman’s time has expired. 

There are four votes on the floor, two of them 15-minute votes, 

and there are 41⁄2 minutes left on the first vote. So the Committee 

will stand in recess. The Committee will reconvene immediately 

after the four votes are completed, at which time we will proceed 

to our second round of questions. The meeting will be Chaired for 

66 

a while at least, while I have something else to do, by the co-Chair 

of the hearing, Mr. Delahunt. 

The meeting now stands in recess. 

[Recess.] 

Mr. DELAHUNT. [Presiding.] We will commence, while we await 

my colleagues. I want to indicate that I expect very shortly Chairman Nadler to reappear, and hopefully Mr. Franks and Mr. Rohrabacher. 

Let me proceed with my own questions. I am going to put forth 

my own apologies because I will have to depart within 10 minutes 

as I have to catch a plane to make a college reunion. I am not 

going to disclose what reunion it is. 

To get back to the two questions I posed in my opening remarks, 

I will address this to Mr. Ervin and Mr. Skinner. Why Syria? In 

your investigations, were you able to divine the rationale to return 

Mr. Arar to Syria? 

Mr. SKINNER. We did ask the question, and no, we could not determine the rationale for the return to Syria. 

Mr. DELAHUNT. I am glad to hear that you asked the question. 

To how many individuals was the question posed, if you know, or 

you can give me a range? 

Mr. SKINNER. Can I get back to you on that? I know we asked 

within and outside the department. 

Mr. DELAHUNT. The Department of Homeland Security? 

Mr. SKINNER. That is correct. 

Mr. DELAHUNT. Did you ever ask representatives of the Department of Justice that question? 

Mr. SKINNER. Yes, we did. 

Mr. DELAHUNT. And was there a response? 

Mr. SKINNER. Yes, but it wasn’t satisfactory, in our opinion, and 

that is the reason I make the statement or draw the conclusion in 

our report that there the decision was somewhat ambiguous because we just could not find documentation through interviews or 

through file reviews that would lead us to believe, or give us a reason why Syria. 

Mr. DELAHUNT. Did you inquire as to the Department of State? 

Mr. SKINNER. Yes, we did. 

Mr. DELAHUNT. And did you receive a response? 

Mr. SKINNER. Yes, but I am going to stop there, because we did 

receive a response, but if I go beyond that, then I am getting into 

a classified arena here. 

Mr. DELAHUNT. In terms of the diplomatic assurances that were 

provided by Syria, according to the O’Connor report, the Canadian 

inquiry commission, according to your own report, was there any 

definition of those assurances that were provided? 

Mr. SKINNER. No. And I would just like to clarify when you say 

‘‘diplomatic assurances.’’ 

Mr. DELAHUNT. Just ‘‘assurances.’’ 

Mr. SKINNER. ‘‘Diplomatic assurances’’ implies something entirely 

different. 

Mr. DELAHUNT. Can you make the distinction for me? 

Mr. SKINNER. Not here, sir. I am sorry. 

Mr. DELAHUNT. Well, let me just draw my own inference then. 

67 

Let me go to Mr. Ervin and ask him for his assistance on the distinction between diplomatic assurances and assurances. 

Mr. ERVIN. Well, I am not an expert in this area, sir, but my understanding is that there is a formality to diplomatic assurances 

that does not attach, of course, to assurances. 

Mr. DELAHUNT. So one could speculate that this was an informal 

assurance. 

Mr. ERVIN. Yes. 

Mr. DELAHUNT. It could have been a whisper. 

Mr. ERVIN. Yes. 

Mr. DELAHUNT. It could have been a telephone conversation. 

Mr. ERVIN. It could have been. 

Mr. DELAHUNT. And yet we have the then-Attorney General of 

the United States, Mr. Gonzales, testifying before the a Senate 

Committee, and I do not know the exact language, but I think it 

was diplomatic assurances or reliable assurances. I will have to go 

back and review that, but I would suspect that those senators that 

heard that testimony presumed that it was more than just simply 

a phone call or a whisper or a wink or a nod, and you are on your 

way back to Syria. 

Mr. Horton, do you have any opinion on this? 

Mr. HORTON. Well, I think one of the issues in the background 

here that is very important is the role that the Department of 

State did or did not play in connection with this matter and similar 

matters. It seems to me fairly clear that there was an effort to keep 

the State Department out of the process, out of the loop here, and 

this is the subject of a number of the redactions that have occurred 

here. 

Similarly, saying that something is not a diplomatic assurance is 

a way of saying that, well, the assurance would not necessarily be 

passed through the State Department diplomatic personnel. It 

might be passed through law enforcement personnel, for instance. 

So I think those are important points. 

I also think the nature of what the assurance is—you know, my 

surmise is, again from listening particularly to statements that 

have been made by Justice Department personnel who have addressed this issue in the past—is that they do not seem to believe 

it has to be an assurance that a particular person will not be tortured in so many words. They seem to be prepared to accept a 

quite informal assurance that the country receiving him would 

abide by its laws, assuming they can say that the laws have protections against torture. That strikes me as outrageous, frankly. 

Mr. DELAHUNT. Are you familiar with the domestic laws of Syria? 

Mr. HORTON. I am not. I have not undertaken a general survey 

of them, but I would not be surprised if there weren’t provisions 

in them that preclude torture. I would imagine those are things 

that are routinely ignored by police authorities in Syria, certainly 

in accounts I have read that have been issued by our own State Department, for instance. 

Mr. DELAHUNT. Again, in my opening remarks, I read the statement by President Bush where he describes Syria as having a legacy of torture. Those are his words. They are not mine, but accepting them at face value. 

68 

Can you help me, Mr. Horton, with our relationship with Canada? Do you consider them a terrorist state? 

Mr. HORTON. I certainly do not consider them to be a terrorist 

state. I am not familiar with any suggestion by our Government 

that Canada is a nation that harbors terrorists. In fact, I think cooperation between the U.S. and Canada on counter-terrorism 

issues is very, very strong. In fact, that does come out in the record 

here. This was launched, after all, by Canadians raising issues concerning one of their own citizens. So I would say there has been 

robust, close cooperation. 

I know there is concern on the U.S. side that Canada is not as 

aggressive in its sort of preemptive measures in dealing with terrorist suspects as the United States is. There is also concern 

that—— 

Mr. DELAHUNT. In other words, as a matter of practice they do 

not render them to Syria. 

Mr. HORTON. They do not render them to Syria, but I think also, 

too, the Canadian police authorities tend to study terrorist groups 

closely over a period of time to try and pull out all the roots very 

carefully, rather than leaping on them right away. There is a sort 

of difference in police approach between the U.S. and Canada. 

I think there is also a concern that there is a porous border between the U.S. and Canada. I mean, that is certainly true. 

Mr. DELAHUNT. Can you speculate as to why the acting Attorney 

General, Mr. Thompson at the time, would have concluded that to 

return Mr. Arar to Canada, rather than to Syria, would have been 

prejudicial to the interests of the United States? 

Mr. HORTON. To me, this is one of the most difficult cases to understand because I think even if we look at the extraordinary renditions program itself, I can sort of understand the methodology or 

the legal reasoning that is involved, but this is not really in the extraordinary renditions program where someone is being rendered to 

a country that cooperates with the U.S. and intelligence. It is a 

country that harbors terrorists and is essentially an enemy of the 

United States. I think it has been defined that way quite sharply 

in the past. 

I think that the rationale that must have been applied here was 

one where they expected some level of cooperation with Syrian police authorities. They expected an aggressive interrogation potentially using prohibited techniques, highly coercive techniques. And 

their legal analysis led them to believe that a highly formalistic assurance provided by Syrian authorities that they would not torture, 

even if they didn’t believe that assurance deep down inside, was 

adequate. 

So the attitude seems to be do not really probe, do not ask a lot 

of questions, do not—— 

Mr. DELAHUNT. Don’t ask, don’t tell. 

Mr. HORTON. Worse than that, even. You know, just them to say 

something to you and go on that basis. That seems to me to be 

playing fast and loose with the statute and the requirements of the 

statute, because the statute basically puts forward the test of more 

likely than not that the person will be tortured. I mean, diplomatic 

assurances are under the regulations permitted as a route that can 

69 

be pursued, but they do not overcome this basic requirement of a 

determination that it is more likely than not. 

I cannot see how the Attorney General could reach a determination that it was not likely that Maher Arar would have been tortured on rendition to Syria, under all the facts here. 

Mr. DELAHUNT. Is there a formal process—and I will address this 

to Mr. Skinner and Mr. Ervin and to you, Mr. Horton—that describes the procedure of securing diplomatic assurances? Is there in 

existence a Department of State protocol or series of regulations 

that would clearly enumerate the steps to be taken to secure diplomatic assurances? 

Mr. SKINNER. Yes, there are, and I believe we do comment on 

that in our report. There are processes that you would ordinarily 

take to obtain those assurances. 

Mr. DELAHUNT. Were those assurances complied with in this particular case? 

Mr. SKINNER. I do not want to draw a conclusion that they were 

or were not, but certainly from the information we have it does not 

appear that they were followed to the letter of the law or the regulation. We have to keep in mind that in this process there are two 

different processes that we could take here in the proceedings. One 

I referred to earlier is a 240 proceeding, which is not necessarily 

dealing with terrorist per se. And then there is the 235(c) proceeding, which does in fact deal with terrorists. It is somewhat nebulous as to exactly what process you must follow to obtain those 

assurances, so there is some flexibility there. 

Mr. DELAHUNT. Let me go back to a question that was posed earlier about the requirements of the statute that a report to Congress 

be made after 7 days in the event of an apparent deficiency or lack 

of compliance. Why wouldn’t the Office of Inspector General have 

reported to Congress, to the Committee on the Homeland Security 

or to the Judiciary Committee, this deficiency, given the serious nature and the consequences that we have endured since? 

Mr. SKINNER. Let’s keep in mind that the department did reach 

out to obtain assurances, and we could stop there. The question is 

whether those assurances were sufficient. 

Mr. DELAHUNT. That is my point, Mr. Skinner. 

Mr. SKINNER. Yes. 

Mr. DELAHUNT. What I am suggesting to you, from my perspective, and I am becoming somewhat conversant with the details of 

this case, I would suggest that on their face they were insufficient. 

I would suggest to you that it was the responsibility of the office 

not to report necessarily to the secretary of the Department of 

Homeland Security, but to this institution, because we are in this 

together—you as Inspector General and Congress as an institution 

with the constitutional responsibility of serving as a check and balance on the executive branch. 

We have been in the dark on this particular case since the incident occurred. This is a gross embarrassment to the people of the 

United States and to this institution. What I would hope is that 

you and Mr. Horton and Mr. Ervin and others would make recommendations so that we could clarify the responsibility of the Inspector General to report to the relevant Committees of this institution where there are areas of significant concern. 

70 

Mr. SKINNER. Mr. Chairman, we in fact did report to the department through our report, and immediately followed that up within 

7 days, I believe 5 days actually, to report to the Congress. Now, 

as far as when we say reporting immediately to Congress on flagrant violations, what we are talking about here is an event that 

had occurred 3, 4 years earlier. We did not find during the course 

of this review that the practices that were applied to the Arar case 

were still ongoing. If it was, then of course we would have done a 

flash report immediately to the secretary, who had an obligation to 

report that to you. But we did not find any evidence that there was 

any flagrant or serious rendition activities involving the various 

elements within DHS. That would be ICE, CIS and CBP. 

Mr. DELAHUNT. I note the appearance of Chairman Nadler. I am 

going to turn the gavel back to him and excuse myself. I want to 

thank the panel. It has been informative, but it has been very disturbing to hear your testimony. This is a matter that we have an 

obligation to pursue. Given the delay that has already occurred and 

the penchant for secrecy that appears to color this particular case 

and other situations in the Administration, my recommendation for 

a special prosecutor to be assigned will continue that secrecy, with 

the convening of a grand jury, so those who are concerned about 

secrecy can give their testimony to a Federal grand jury behind 

closed doors. 

With that, I yield back the gavel to Chairman Nadler. 

Mr. NADLER. [Presiding.] Thank you very much. 

Let me ask Professor Horton, first of all. Before the votes, you 

said that you thought that the procedures in this case went outside 

the normal procedures and that very high-level senior Government 

people made decisions on this case. Can you elaborate on this? 

First of all, who and which decisions? And why was it outside normal procedures? 

Mr. HORTON. Well, I would say you start with a real focus on the 

compression of time, the extraordinary schedule on which all of this 

happened, on which I think the CAT hearing that occurred at 7 

o’clock in the evening on a Sunday is just a stunning example of 

it. 

Mr. NADLER. With notice to the attorneys Friday night or Saturday. 

Mr. HORTON. Telephonic notice left on a message—— 

Mr. NADLER. They were notified Sunday at 4:20, and surprise, 

they didn’t get the message until Monday, and the hearing started 

at 7 o’clock. Do you think that is extraordinary? 

Mr. HORTON. Absolutely extraordinary. 

Mr. NADLER. Do you think it might be construed as designed to 

make sure that he didn’t have counsel? 

Mr. HORTON. I am quite certain that that is the case. 

Mr. NADLER. Before you go further, Mr. Ervin would you concur 

with that judgment? 

Mr. ERVIN. I would absolutely concur with that. 

Mr. NADLER. And if you were writing this report, would you 

make that a conclusion of this report, that there was a deliberate 

intent that he not have an attorney? 

Mr. ERVIN. I would certainly draw that conclusion and I would 

do it explicitly in the report. 

71 

Mr. NADLER. Thank you. 

Mr. Skinner, do you draw that conclusion? If not, why not? 

Mr. SKINNER. I am sorry. I am not really clear on what the question is. 

Mr. NADLER. The question is, do you conclude from the fact that 

for the protection hearing under CAT which occurred at 9 o’clock 

on Sunday night, his attorneys were notified at 4:20 on Sunday, or 

at least a message was left, when they obviously thought that the 

odds were nobody is going to be in a legal office at 4:20 on Sunday. 

The hearing occurs at 9 o’clock. He had no legal representation. 

Would you conclude from that—and if you didn’t, why wouldn’t 

you—that there was an intent that he not have legal representation? 

Mr. SKINNER. Let me say it certainly appears that way. 

Mr. NADLER. Well, what would mitigate that appearance? 

Mr. SKINNER. The process that they were using in the Arar case 

was—I do not want to say exempt—was different than what would 

you would use ordinarily. 

Mr. NADLER. Well, was it in a class that was sometimes used, 

but not often? Or was this unique? 

Mr. SKINNER. The 235(c) process is not used often. 

Mr. NADLER. I understand—235(c) is a very rare situation. 

Mr. SKINNER. That is correct. 

Mr. NADLER. But even within 235(c), was this done, given the 

compression of time, given on a Sunday, given other circumstances, 

would you say this is the way 235(c)s are normally done? 

Mr. SKINNER. No. Let me add that we questioned why this had 

to be moved so rapidly through the system. To set up an interview 

on a Sunday and to contact attorneys on a Sunday is highly questionable. 

Mr. NADLER. And to contact the attorneys on a Sunday for a 

Sunday evening interview, and to go ahead with the interview 

when you didn’t reach them. 

Mr. SKINNER. That is correct. 

Mr. NADLER. And what response did you give to that? 

Mr. SKINNER. Arar was not entitled to an attorney. 

Mr. NADLER. He was not entitled to an attorney. So why did they 

call an attorney? 

Mr. SKINNER. I am going to be getting into some redacted portions of our report. 

Mr. NADLER. They called the attorney for secret reasons? 

Mr. SKINNER. Not secret, but for other reasons which would be 

attorney-client privilege. 

Mr. NADLER. Whose attorney-client privilege? Mr. Arar’s privilege, his attorney’s privilege? 

Mr. SKINNER. No. Those that made the decision to move forward 

without the attorney. 

Mr. NADLER. Now, you say that Arar was not entitled to an attorney in this hearing. That is not in the public report. Why isn’t 

it? 

Mr. SKINNER. It is not clear under the 235(c) proceedings, at 

least in my understanding, as to what his rights are. 

Mr. NADLER. So he may have been entitled to an attorney. 

72 

Mr. SKINNER. Yes. We do know that he does not have a right to 

go through a hearing. He does not have the right to appeal. It is 

not clear as to what rights he has with regards to representation. 

Mr. NADLER. So it is not clear. But nonetheless, they went 

through the motions of affording him the right to counsel by calling 

an attorney on Sunday, but not the reality. 

Mr. SKINNER. That is correct. 

Mr. NADLER. Now, why they did that is an attorney-client privilege? Why he was given the appearance but not the reality? How 

can that be attorney-client privilege? Which attorney and what client? 

Mr. SKINNER. In this case here, it is those individuals who made 

the decision to proceed without allowing representation for Arar, or 

allowing an attorney to be present during the interview. 

Mr. NADLER. And some attorney would have advised that decision-maker and the advice he gave him would be attorney-client 

privilege? 

Mr. SKINNER. Yes. 

Mr. NADLER. All right. Never mind the advice he gave him. What 

about the decision that he made? What was the reason for that? 

That is not privileged. 

Mr. SKINNER. The reason he they wanted to do the interview, 

they wanted to remove as soon as possible, which we were never 

able to determine why. 

Mr. NADLER. So for undetermined reasons of haste, he was denied effective assistance of counsel. 

Mr. SKINNER. That is correct. 

Mr. NADLER. And you are still attempting to figure out what was 

the rush? 

Mr. SKINNER. I do not know if we will ever determine why because those people that made those decisions refused to be interviewed. 

Mr. NADLER. You can’t subpoena them? 

Mr. SKINNER. No, I do not have subpoena authority. 

Mr. NADLER. Who are those people? What are their names? 

Maybe we will subpoena them. 

Mr. SKINNER. Maybe that is the INS commissioner, the chief of 

staff at INS, and that would be the chief counsel at INS. 

Mr. NADLER. At the time, obviously. 

Mr. SKINNER. Yes. 

Mr. NADLER. Now, Professor Horton, I cut you off because you 

hadn’t finished answering. You said that this was handled unusually even for a 235(c) case. Decisions were made by higher-ups who 

would not normally have been involved. Can you elaborate? 

Mr. HORTON. I think it is quite clear here that the individuals 

who were involved were not just the commissioner and the commissioner’s council, but also figures in the Department of Justice. 

Mr. NADLER. How do we know that? 

Mr. HORTON. I think it comes out from the report as to who was 

involved in these meetings at which the decisions were made. We 

note that there are two individuals from the Office of the Deputy 

Attorney General who were involved. We know that key decisions 

were made by the Deputy Attorney General then, as Acting Attorney General, to enable the entire process to move forward. 

73 

To me, it seems highly unlikely that the professionals within the 

INS would have proceeded in this highly expeditious and expedited, contracted, compressed fashion, I think violating normal 

rules that they would follow involving bringing in counsel, among 

other things, and allowing reasonable notice, without pressure coming from above for that to happen. I believe that is what happened 

here. 

If we look at the redacted passages of the report, it is clear that 

immediately before this there is discussion in which we see a footnote which has not been redacted in which the key word appears: 

habeas corpus. It is clear that there has been extensive discussion 

here about the fact that—— 

Mr. NADLER. There has been extensive discussion about how to 

avoid allowing him to exercise the right of habeas corpus? 

Mr. HORTON. Bingo. 

Mr. NADLER. Mr. Skinner, do you concur with that? Do you think 

there was a deliberate plot, a deliberate scheme on the part of high 

Government officials to arrange things in such a manner, expedited 

and other ways, so as to make his right to file a writ of habeas corpus not real? 

Mr. SKINNER. Mr. Chairman, I would be happy to answer that 

question in a closed environment. 

Mr. NADLER. I am asking your opinion. You do not need a closed 

environment for an opinion. 

Mr. SKINNER. Sir, I am representing the Inspector General’s office. I am not going to offer my personal opinions. I do have personal opinions, but I do not think this—— 

Mr. NADLER. All right. 

Mr. Ervin, as an experienced observer and a former Inspector 

General, do you think the facts and circumstances indicate a deliberate scheme to make sure that he couldn’t exercise his habeas corpus right? 

Mr. ERVIN. It seems to me that there is no reasonable conclusion 

otherwise that can be drawn from the facts and circumstances that 

we know. 

Mr. NADLER. Is there any proper legal motive for such a scheme? 

Mr. ERVIN. I can think of none. 

Mr. NADLER. So you would conclude that such a scheme had to 

have an illegal or extra-legal motive? 

Mr. ERVIN. Well, I do not doubt that the scheme—if we can use 

that word—was motivated by an intention to protect the United 

States. 

Mr. NADLER. That is not the question. 

Mr. ERVIN. But—— 

Mr. NADLER. Let me just observe, because I want to comment 

also on the comments by Mr. Rohrabacher before. Lots of terrible 

things have been done in history by people who were well motivated to protect their country or other notable goals. The reason we 

have laws and due process is to protect people from men and 

women of zeal who may be perfectly well motivated. So that is not 

the question. 

If somebody has the motive of protecting the United States, and 

in order to do that does illegal things, we have laws because we 

74 

do not trust people’s even well-intentioned motives to protect all of 

us. 

Mr. ERVIN. I completely agree with that. I was trying to be completely comprehensive in my answer. There is no question but that 

given everything we know, the intention here was to render him 

to Syria, as opposed to Canada, because of the certainty that he 

would be tortured in Syria and he would not be in Canada. 

Mr. NADLER. And the intention was to take whatever shortcut 

possible so as to avert any legal challenge such as a writ of habeas 

corpus that he could bring, which would have stopped that rendition. 

Mr. ERVIN. That, to me, is the only reasonable conclusion that 

can be drawn from this. 

Mr. NADLER. Is there anything in our law that would stop them 

from doing it tomorrow to somebody else, Mr. Ervin? 

Mr. ERVIN. Well, yes. The law would have prevented this occurrence, it is just that the laws were not observed. 

Mr. NADLER. You think they broke the laws? 

Mr. ERVIN. Yes. 

Mr. NADLER. Do you think there were criminal violations of the 

laws? 

Mr. ERVIN. I think there should be a criminal inquiry. 

Mr. NADLER. What possible criminal laws might have been violated? Excuse me. What criminal laws might have been violated? 

Mr. ERVIN. Well, we are a signatory to CAT. 

Mr. NADLER. Yes. CAT, okay. And CAT is a criminal statute? 

Mr. ERVIN. I believe that a failure to observe this international 

Convention of Torture would constitute a violation of criminal law. 

Mr. NADLER. Okay. 

Professor Horton, could you answer the same question please? 

Mr. HORTON. Yes. One of the provisions implementing the CAT 

was section 2340(a) of the criminal code which makes torture and 

the conspiracy to torture a person a criminal offense. 

Mr. NADLER. Any high official who engaged in a—I am trying to 

look for a word that doesn’t have improper connotations—any high 

official who engaged in a course of conduct with the intent of depriving Mr. Arar of certain legal remedies so that he could be rendered to Syria within the knowledge that he might or probably 

would be tortured would be guilty of criminal offenses? 

Mr. HORTON. Well, I think there are certain defenses built into 

the statute and built into the CAT that one would have to work 

one’s way through, so there is a process—— 

Mr. NADLER. Clearly, but assuming those facts were proven? 

Mr. HORTON. Prima facie, yes, I think a prima facie case could 

be made out here, yes. 

Mr. NADLER. Mr. Ervin? 

Mr. ERVIN. Yes, I agree. 

Mr. NADLER. Mr. Skinner, do you agree? 

Mr. SKINNER. That is correct. Let me also add, you asked can 

this happen again. I think with the new policies and procedures 

put in place, not to say it cannot happen again, but it would be 

more difficult for it to happen again. 

Mr. NADLER. And I am told one of those new procedures is redacted as a secret procedure. 

75 

Mr. SKINNER. That is correct. I would be happy to talk to you 

about that in a classified environment. 

Mr. NADLER. Mr. Skinner, given the extraordinary secrecy of 

this, given the extraordinary secrecy from the beginning up until 

now, what assurances does the American public have that anyone 

walking down the street can’t be—well, other cases of rendition— 

well, let me ask you this. We have looked at a number of rendition 

cases. Am I correct that this is the only one in which the immigration laws were used as a pretext or a fig leaf, which was done supposedly under the immigration laws? 

Mr. SKINNER. As far as I know, correct. 

Mr. NADLER. And other cases of rendition that we know of were 

done just completely outside the law? 

Mr. SKINNER. They were done outside the territory of the United 

States, so that U.S. immigration laws did not apply to them. 

Mr. NADLER. They were all done outside the territory of the 

United States, but the CAT still applies and the other criminal 

laws still apply? 

Mr. SKINNER. Yes. 

Mr. NADLER. Mr. Ervin, given the extraordinary secrecy here and 

the evident use or misuse of classification and secrecy to cover up 

improper conduct, what changes would you recommend so that the 

American people could be more confident that official misconduct, 

official torture, official lawbreaking would not be covered up by the 

secrecy laws? 

Mr. ERVIN. Well, I am very concerned by this tendency that we 

have seen in the last few years to over-classify information. In 

preparation for this hearing, I reviewed that mechanism that is 

available to challenge what one considers to be over-classification. 

The bottom line is at the end of the day the ultimate appeal is to 

the President. In these circumstances, it is needless to say—— 

Mr. NADLER. Only the executive? Congress can’t declassify something if it wishes? 

Mr. ERVIN. My understanding the answer to that is no. 

Mr. NADLER. I am told except by a vote of the full House. 

Mr. ERVIN. Well, then, if that is true, then that is your remedy. 

Mr. NADLER. It is a rather difficult remedy. 

Mr. ERVIN. Needless to say, but less difficult under these circumstances than to appeal to the President, of course. 

Mr. NADLER. Professor Horton, do we know who the ODAG lawyers who were involved in this were? 

Mr. HORTON. They have been identified to me, yes. 

Mr. NADLER. And that is public knowledge? 

Mr. HORTON. I am not sure it is public knowledge. 

Mr. SKINNER. No, it is not public. They are protected under the 

privacy laws. 

Mr. NADLER. Did they cooperate with your inquiry? 

Mr. SKINNER. Yes. 

Mr. NADLER. What about the Acting Attorney General, Mr. 

Thompson? Did he cooperate? 

Mr. SKINNER. I do not believe we reached out to the Acting Attorney General. 

Mr. NADLER. Was he not identified at some point in your report, 

if memory serves, as having made some of the key decisions here? 

76 

Mr. SKINNER. I do not believe he was involved in the decision to 

remove Mr. Arar to Syria. He made the decision I believe that we 

would not honor Arar’s request to go to Canada because of the porous nature of our borders. 

Mr. NADLER. Okay, because it was prejudicial to U.S. interests. 

Mr. SKINNER. Yes. 

Mr. NADLER. Now, given the fact that he made that decision, he 

seems to be a key actor in this. Why did you not seek to interview 

him? 

Mr. SKINNER. When we were doing the review, I think the questions that we were asking could have been answered up through 

the Deputy Attorney General. 

Mr. NADLER. Mr. Skinner, I think your report concluded that 

there is not enough evidence to justify that determination. Didn’t 

you conclude that? Or that you do not have enough information to 

judge that determination with respect to Canada? 

Mr. SKINNER. That is correct. 

Mr. NADLER. Therefore, that being the case, shouldn’t you have 

sought further evidence like by interviewing him? 

Mr. SKINNER. I believe he signed the letter, but it was the recommendation that came from the Office of the Deputy Attorney 

General. 

Mr. NADLER. Did you interview the Deputy Attorney General? 

Mr. SKINNER. We did interview those individuals that were involved in that decision process, those attorneys that were present, 

who made that recommendation, yes. 

Mr. NADLER. Okay. 

I now recognize the distinguished Ranking Member, Mr. Franks. 

Mr. FRANKS. Thank you, Mr. Chairman. I am glad you waited for 

me here. 

Mr. NADLER. So you could ask questions. 

Mr. FRANKS. I appreciate that. You know, I have never been 

physically afraid of the Chairman, but this gavel here lately is 

starting to intimidate me. It is pretty loud. [Laughter.] 

In your written testimony, Mr. Skinner, you stressed the need to 

protect certain information from civil discovery and litigation involving Federal officials with national security programs. I understand that. In discussing the need to protect certain information 

under the Freedom of Information exemption five, you describe the 

costs of any attempt to make such information public, and you stated that ‘‘such disclosures would have ramifications not only for the 

Department of Homeland Security and the Office of the Inspector 

General, but for every Office of Inspectors General in the executive 

branch.’’ 

Can you elaborate on that? You make a very good point. 

Mr. SKINNER. Yes. We obtain proprietary information with the 

understanding that we will protect that information. If we ask for 

documents that are classified secret, for example, we provide assurances that if you turn that over to us, we will in fact protect the 

classification of that document. 

If we do not honor that, then we will lose the opportunity, we 

will lose our credibility within the department to cooperate with us. 

That can spread through other departments, and in the other departments why should I give any classified or proprietary informaVerDate Aug 31 2005 11:14 Aug 19, 2008 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6602 H:\WORK\CONST\060508\42724.000 HJUD1 PsN: 42724
77 

tion to an IG if they cannot provide me assurances that they will 

protect it. 

Mr. FRANKS. That makes sense to me. 

On page 35 of the unclassified report, it states that ICE concurred with our recommendations and is taking steps to implement 

them, and that it didn’t appear that any INS personnel, whose activities that your reviewed, violated any existing law, regulation or 

policy with respect to the removal of Mr. Arar. And you said that 

their responses to the recommendations resolved and closed the situation. 

Can you elaborate on that a little bit? 

Mr. SKINNER. Yes. Again, that is their statement. During the 

course of our review, we did not find anyone within the Department of Homeland Security that had violated any law or regulation. I think we also qualified that. That is, we were unable to 

interview everyone in the Department of Homeland Security that 

were involved in this case, particularly the INS commissioner at 

the time, the chief of staff, and chief counsel. So we qualified our 

statement in accepting their concurrence with our recommendations. 

Mr. FRANKS. Okay. The Department of Justice’s written response 

to the incident states ‘‘that the removal of Mr. Arar to Syria complied with all legal obligations. As the Attorney General recently 

testified, there were assurances sought that Mr. Arar would not be 

tortured from Syria.’’ They sought those assurances. ‘‘Mr. Arar’s removal order incorporated the determination by the commissioner of 

the INS that his removal was consistent with the Convention 

Against Torture, and in sum, the United States remains strongly 

committed to the worldwide elimination of torture.’’ 

Now, I know that there are some really difficult circumstances 

here to fathom and to understand. As I said earlier, the last thing 

I want to do is to see any injustice done to anyone. But I do want 

to try to go on the record here that at least from the stated perspective that there is a strong commitment by the United States 

to the worldwide elimination of torture. I do not know of anyone 

on this Committee that isn’t absolutely committed to that, from the 

farthest to the right to the farthest to the left. 

Do you have any information that contradicts their statement in 

that regard, that they at least have not tried to do everything they 

could to prevent torture, and their commitment to worldwide elimination of torture is still in place? Any contradiction of that? 

Mr. SKINNER. I can. We would have to talk about this in a closed 

environment. But I do say that the information that was provided 

was in fact ambiguous. 

Mr. FRANKS. Mr. Chairman, I am just wondering. I would be interested in learning more about this in some type of classified setting. 

With that, I will yield back. 

Mr. NADLER. I thank the gentleman. 

We will go on to the next round, and I recognize myself for 5 

minutes. 

Mr. Ervin, would you answer Mr. Frank’s last question that he 

addressed to Mr. Skinner? 

78 

Mr. ERVIN. If I understood the question, was there a reason to 

think that Syria would not engage in torture—essentially that was 

the question as I understood it. 

Mr. NADLER. Was there a reason to believe that the people involved here were not committed against torture. That was the 

question. 

Mr. FRANKS. I am sorry, Mr. Chairman. The Attorney General 

testified that ‘‘there were assurances sought that Mr. Arar would 

not be tortured in Syria.’’ In other words, they sought those assurances, and they tried to follow the rules. In sum, he says that the 

United States strongly remains committed to the worldwide elimination of torture. 

Do you know something that we don’t that would contradict that 

statement? 

Mr. NADLER. Or something that we do know. 

Mr. ERVIN. Right. Well, I think we have talked about that a 

number of times during the course of the hearing. The President 

himself, the secretary of state, the reports of the Department of 

State routinely list Syria as a practitioner or torture. That itself, 

it seems to me, ought to have made it clear to the relevant officials 

here that to render Mr. Arar to Syria would make it more likely 

than not that he would be tortured. Indeed, it seems to me that 

that was precisely the reason that he was so rendered. 

Mr. NADLER. And what about the assurances that we got from 

Syria that he would not be tortured? What reliability could be put 

on those assurances? 

Mr. ERVIN. None, as a practical matter, because we talked a second ago about the distinction between diplomatic assurances, 

which are rather formal, and assurances, which is what we had 

here, which are informal. So there was no basis, it seems to me, 

given the assurances that were obtained, to think that Syria would 

not engage in torture under these circumstances. 

Mr. NADLER. Thank you. 

Now, to Professor Horton, it seems possible, perhaps likely, that 

privilege and in fact classification, but certainly privilege was used 

here to ensure that facts do not come out publicly so that the Administration can play fast and loose with facts in the litigation initiated by Mr. Arar. 

Do you think this is the case? In other words, do you think that 

privilege is being misused here to prevent facts from coming out 

that might be useful in Mr. Arar’s litigation? If so, is this an appropriate use of privilege? 

Mr. HORTON. I think there is a high likelihood that the sweeping 

scope of privilege that has been invoked here has been designed to 

avoid publication of a complete statement of the facts that would 

show particularly the involvement of a number of fairly high-ranking players, especially people in the Office of the Deputy Attorney 

General. 

I think that there seems to be a concern that the report might 

contradict the positions that the Department of Justice has taken 

in that litigation—positions as to fact. I do not think that is an appropriate use of privilege. I would just say, look, within the Department of Justice, most key decision-makers are attorneys. They have 

a law license, but that doesn’t mean that everything that they do 

79 

is subject to an attorney-client privilege. Here, there seems to be 

a far too sweeping view of it. So their actual actions certainly are 

not covered by that privilege. 

Mr. NADLER. Mr. Ervin, would you comment on the same question? 

Mr. ERVIN. I completely agree with that. That is the distinction 

I was trying to draw in my formal statement, that there certainly 

were some privileges here, but it seems to me that there was an 

attempt to use privileges, legitimate privileges, over-broadly so as 

to cover-up information that would merely be embarrassing and 

perhaps inculpatory. 

Mr. NADLER. Let me ask the last question that I am going to ask, 

and that is Mr. Arar was obviously subject to torture in Syria. He 

apparently, even from the report it is pretty clear, even what we 

do not know from the report, that he was deliberately rendered to 

Syria, or at least he was deliberately rendered to Syria either for 

the purpose of being tortured, which you certainly could gather, or 

in reckless disregard of whether he would be. That would seem to 

violate his rights, to put it mildly. He has instituted litigation, and 

that litigation so far has been dismissed on procedural grounds. 

Is there anything that any of you would recommend to change 

the law or the practice in such a way that someone who might have 

the same kinds of violations done to him would be able to get a day 

in court properly without the procedural dismissals? 

Mr. SKINNER. Let me say, we have to develop some policies, some 

procedures, and we must adhere to them. We do not want to get 

in the position where we have to go to court. We should never be 

in a position to begin with. I think outlining some clear policies, 

procedures, processes as to how you deal with cases like this and 

adherence to the policies and procedures will prevent this from 

happening again. I think the department in fact has taken some 

steps to ensure, or at least to mitigate this ever recurring within 

the department. 

Mr. NADLER. Thank you. 

Do either of you have any comments? 

With that, I will yield back. 

I recognize the gentleman from Arizona. 

Mr. FRANKS. Mr. Chairman, just to kind of summarize my own 

perspective here, it is obvious or pretty clear to me that there were 

mistakes made here, but it appears to me that at least on the 

American side that most of those mistakes were predicated upon 

false information from Canada, and at least what is in evidence 

seems to be that the Americans generally tried to do the right 

thing. 

Now, it appears from some of the panel members here that I am 

hearing almost an implied statement that somehow the United 

States deliberately, willfully, and knowingly sent Mr. Arar to Syria 

to be tortured. There is nothing in the evidence that has been presented here that convinces me of that. 

However, if there is some type of evidence that can change my 

mind on that in a classified setting, I am certainly open to hearing 

that because I think that Congress is first and foremost about justice, about defending the innocent against the malevolent. If there 

80 

is malevolence here deliberately, I haven’t seen it, but I am willing 

to hear it in a classified setting if the Chairman is inclined. 

With that, Mr. Chairman, it seems to me like there has been a 

tragic situation occur here, but it is based primarily on information 

that Americans thought they could rely on from Canada, and it 

turned out to be unreliable. 

With that, I yield back. 

Mr. NADLER. Before closing the hearing, let me just observe that 

assuming the information from Canada had been reliable, what we 

are dealing with is what happened afterwards. Assuming the information was reliable and that Mr. Arar in fact was a terrorist, or 

that there were a lot of reasons to suspect he was, he was then 

given to Syria and tortured. It is not supposed to happen even to 

suspects who may in fact be guilty. So it is a different question. So 

the question is what do we do about that kind of thing. 

I want to thank the witnesses. That concludes our hearing. Without objection, all Members will have 5 legislative days to submit to 

the Chair additional written questions for the witnesses, which we 

will forward and ask the witnesses to respond as promptly as you 

can so that the answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

Again, I thank the witnesses. 

With that, this hearing is adjourned. 

[Whereupon, at 2:13 p.m., the Subcommittees were adjourned.] 

(81) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE STEVE COHEN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TENNESSEE, AND MEMBER, SUBCOMMITTEE ON THE

CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

The Bush Administration’s practice of ‘‘extraordinary rendition’’ violates fundamental of American values and basic human rights. From what we know of this program, the Administration detains individuals and then sends them to third countries that are not constrained by the basic civil liberties and human rights guarantees of our Constitution and laws. Often times, the Administration does so knowing 

that the individual will be tortured, as the facts of Maher Arar’s case illustrate. 

What I find even more disturbing in some ways is the secrecy that continues to 

surround the Administration’s ‘‘War on Terror.’’ Mr. Conyers asked the Department 

of Homeland Security to investigate the Arar case as well as the policies and procedures governing rendition some four years ago. DHS responded only last December. 

Moreover, DHS, and the Administration generally, continues to refuse to release 

much information concerning rendition. Such secrecy does not serve the American 

public and threatens to undermine democracy. 

f 

82 

DOCUMENT FROM THE DEPARTMENT OF HOMELAND SECURITY, OFFICE OF INSPECTOR

GENERAL ENTITLED (U) THE REMOVAL OF A CANADIAN CITIZEN TO SYRIA


OIG-1.eps
83 


OIG-2.eps
84 


OIG-3.eps
85 


OIG-4.eps
86 


OIG-5.eps
87 


OIG-6.eps
88 


OIG-7.eps
89 


OIG-8.eps
90 


OIG-9.eps
91 


OIG-10.eps
92 


OIG-11.eps
93 


OIG-12.eps
94 


OIG-13.eps
95 


OIG-14.eps
96 


OIG-15.eps
97 


OIG-16.eps
98 


OIG-17.eps
99 


OIG-18.eps
100 


OIG-19.eps
101 


OIG-20.eps
102 


OIG-21.eps
103 


OIG-22.eps
104 


OIG-23.eps
105 


OIG-24.eps
106 


OIG-25.eps
107 


OIG-26.eps
108 


OIG-27.eps
109 


OIG-28.eps
110 


OIG-29.eps
111 


OIG-30.eps
112 


OIG-31.eps
113 


OIG-32.eps
114 


OIG-33.eps
115 


OIG-34.eps
116 


OIG-35.eps
117 


OIG-36.eps
118 


OIG-37.eps
119 


OIG-38.eps
120 


OIG-39.eps
121 


OIG-40.eps
122 


OIG-41.eps
123 


OIG-42.eps
124 


OIG-43.eps
125 


OIG-44.eps
126 


OIG-45.eps
127 


OIG-46.eps
128 


OIG-47.eps
129 


OIG-48.eps
130 


OIG-49.eps
131 

Æ 


OIG-50.eps