Writes a dissenting judge, Robert D. Sack:
He had cut short a family vacation in Tunisia and was bound, he thought, for a business meeting in Montreal. What happened to him next would beggar the imagination of Franz Kafka.
You can read the dissenting opinion. It's well down the .pdf in to the "Courier" font area. Basically what the majority decided was that Arar was processed fairly because he was attempting to "enter the United States" from Syria and therefore it was legitimate to send him back to Syria - as an immigration matter.
That pretty much ignores all of the "we sent him there to be tortured, with a list of questions for the torturers to ask" facts that have been established. The dissenting opinion states that treating this as an immigration matter is weak - allowing the court to declare that since Arar is not a U.S. citizen, he therefore has no constitutional rights.
This should be treated, rather, as kidnapping, rendition and accessory to torture. The majority opinion basically ignores this, pretending that U.S. officials are only responsible for what happened in the U.S. The fact that they "outsourced" the torture (in the words of the dissent) is irrelevant.
As well, the majority argues that, under immigration law, a person who is not admitted to the United States legally then has no "physical presence" in the U.S. and therefore isn't entitled to "due process" (i.e. he has no real rights).
Dissenting, Judge Sack is blunt in regards to this:
But the notion that, while in New York City, Arar was not "physically present" in the United States, is a legal fiction peculiar to immigration law.
Arar sought not to enter this country, but to leave it, after transiting briefly through one of its airports. For purposes of identifying the most rudimentary of his rights under the Constitution, the fiction that Arar was not here is senseless.
So, basically, a scam has been run:
Sorry, Mr. Arar, we're not going to punish ourselves for torturing you. You're not entitled to any damages. That's because we're going to ignore all of the torture and pretend that you were attempting to immigrate to the United States and all that we did was send you back where you came from because your name was on a list.
We'll ignore that our agents sent you to Syria. We'll ignore that the torturers there asked the same questions our agents asked you here. We'll ignore any moral responsibility we had toward you. We'll ignore all of that and just pretend that this was an immigration matter.
Then we'll stick our fingers in our ears and shout, "La-la-la-la-la-la-la!"