The decision by a U.S. court to deny Maher Arar's lawsuit against the Bush administration exposes the feeble rights non-citizens have in America.

When Maher Arar testified before members of the U.S. Congress in 2007, he made an appeal for justice so moving it prompted many senators to apologize on the spot for what one Republican called "shameful" behaviour on the part of American officials. It was a remarkable political victory for Arar – who gave his testimony via teleconference because he was still banned from setting foot on U.S. soil.

Since 2007, the new president, Barack Obama, has signed an order to close Guantanamo, denounced torture by American officials, and promised a review of all "enemy combatant" cases. Yet Arar – one of the most prominent victims of the war on terror – has never received compensation or a formal apology and remains barred from entering the United States. Meanwhile, the U.S. continues to send prisoners to be held in other countries, albeit no longer those with a history of torture.

Given congress' and Obama's feeble response to extraordinary rendition, Arar's appeal to the U.S. Court of Appeals for the Second Circuit looked like his last chance to achieve compensation and condemnation of the appalling U.S. policy. But this Monday, a majority of the appeals court ruled that Arar does not have standing to launch a lawsuit against the Bush administration for its complicity in his detention and torture at the hands of the Syrian government. Instead, they punted his case back to Congress, where it seems doomed to languish once again in obscurity.

Arar was arrested in New York in 2002 on his way home to Canada based on faulty intelligence provided by the Canadian government linking him to terrorist organizations. He was held in solitary confinement for two weeks without access to a lawyer, before being sent to Syria where he was held and regularly tortured for a year. The 7-4 majority of the court that voted to reject Arar's appeal did not deny the broad outlines of this story. They just said that it does not constitute a violation of existing U.S. law.

Many Canadian commentators on this case refer to the failure of "U.S. courts" or "American justice" to protect rights in the face of national security. But it is clear that the decision was not the product of a unified court. Unlike the ideologically entrenched Supreme Court, the liberal-conservative line on the Second Circuit is normally barely perceptible, but in the Arar case opinions on both sides were strongly phrased and emotional, and the judges were forced to weigh in on the politically divisive question of national security.

"Such a suit unavoidably influences government policy, probes government secrets, invades government interests, enmeshes government lawyers, and thereby elicits government funds for settlement (Canada has already paid Arar $10 million)," Chief Judge Dennis Jacobs wrote for the majority.

In response, the dissenting judges were deeply disturbed that this would leave Arar without a remedy in U.S. courts, and that to ignore such a high-profile case would amount to a tacit endorsement of extraordinary rendition, or even torture, by the courts.

"At the end of the day, it is not the role of the judiciary to serve as a help-mate to the executive branch, and it is not its role to avoid difficult decisions for fear of complicating life for federal officials ... In times of national stress and turmoil the rule of law is everything," Judge Barrington Parker wrote in dissent.

The rise of national security concerns in the war on terror has already highlighted how fragile civil rights are for Americans. But if the only defence for non-citizens detained in the U.S. and sent abroad is through politicians for whom we cannot vote, our rights look truly feeble.

"You might consider it ironic to tell a Canadian citizen that his remedy lies in the U.S. Congress, when he has no vote, no voice in the political process, and [in Arar's case] isn't even allowed in the country," David Cole, one of Arar's lawyers from the Center for Constitutional Rights, told me.

In Canada, Arar was able to win compensation and an inquiry largely because of widespread grassroots political support. But in the U.S., the Arar case has never succeeded in stirring up widespread political outrage. It is unfortunately one of dozens, or even hundreds, of terrorism-related cases that light up the American liberal blogosphere on a regular basis. Americans may be outraged that the war on terror is eroding rights, but their outrage is spread thin, and non-citizens inevitably get a smaller share.

Arar's lawyers are still weighing whether to appeal the court's decision. One consideration they say is that the courts remain the best wayto protect him and other non-citizens who become targets of extraordinary rendition and other civil rights violations while on U.S. soil. For Canadians, our support for Arar should not then be viewed simply as a show of national unity, but as a guarantee of our own ability to enjoy basic guarantees of rights when making what is for most of us a fairly ordinary trip across the U.S. border.

As former Attorney General John Ashcroft, one of the defendants in Arar's case, once said in a rather telling defence of the war on terror, "To those who pit Americans against immigrants and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends."