President Bush's departure from office inspired many calls for a public accounting for his contentious interrogation, detention, and spying policies. Accountability's proponents debate the merits of congressional scrutiny, independent blue-ribbon commissions, and old-fashioned criminal prosecutions. They praise these remedies as boons to our international standing and our dedication to the rule of law. But few, if any, acknowledge a need for another kind of reckoning: What are we doing to compensate the people harmed by our overbroad security policies? Shouldn't a national accounting do more than just burnish our nation's standing—and make up to those actually harmed by overzealous counterterrorism policies?
Early policy responses to 9/11 were necessarily improvised and implemented with inadequate information. Officials feared fresh attacks. They were willing to sacrifice a good deal to procure information. Many still claim they were right to act quickly and boldly, inadvertently affirming that initial policies were less than deliberate.
Whether you think that first wave of counterterrorism responses was responsible or reckless, there is now little debate they were overzealous in scope. In the United States, hundreds of Arabs and South Asians were detained under our immigration laws. Many were deported as a precautionary measure, leaving behind fractured families. No one was charged with terrorism offenses. In Afghanistan, the administration rejected the military's traditional screening process for battlefield detainees, resorting to bounty hunters to stock up on inmates for Guantanamo. Abandoning initial screening mechanisms, the administration reduced the risk of letting the guilty wriggle free but also increased the risk of seizing and detaining innocents.
Terrorism imposes two kinds of harm. Some people are hurt directly in an attack. Others are harmed in the government's rush to respond. Any conversation about government accountability for post-9/11 zealousness should address the latter as well as the former.
These two kinds of harm are not identical. Few believe that terrorism and counterterrorism are morally equivalent. Terrorism's victims are harmed by unalloyed evil. Even civil liberties advocates concede that the moral calculus of counterterrorism's victims is more complex. But whatever the moral differences, it should not preclude empathy and compassion for both sorts of victim. Both types of victims deserve to be made whole. Yet to this point, the victims of the 9/11 attacks have been compensated while counterterrorism's collateral victims remain unrecognized. Indeed they are told, time and again, that the courthouse doors are closed to them, that while mistakes may be regrettable, they are not grounds for compensation.
Eleven days after the attacks, Congress created by statute the September 11th Victim Compensation Fund. Under Kenneth Feinberg's management, the fund compensated 7,300 victims in exchange for their agreement to waive damages actions. (A handful decided not to accept funds and still pursue remedies in court.) Terrorism's victims are also winning in the courts. Just last December, the 7th Circuit Court of Appeals affirmed a $156 million judgment against groups alleged to have funded Hamas based on the death of an American teenager.
Counterterrorism's collateral victims have suffered a very different fate. The U.S. government steadfastly refuses to acknowledge that it has detained anyone wrongly at Guantanamo, even after conceding it has no evidence against some of them. It has never apologized to those erroneously "rendered" to other countries for torture. Families broken up by post-9/11 sweeps still wait in vain for official recognition of their pain.
Nor do counterterrorism victims find much sympathy in the courts. True, some plaintiffs have prevailed in lower courts. (Former detainee Jose Padilla last week won an important initial ruling from a federal district court in California, enabling his suit against former Department of Justice lawyer John Yoo to proceed.) In its first intervention on the issue, the Supreme Court recently went out of its way to stress that civil actions against national security officials should rarely, if ever, be allowed to go to trial, much less go on to judgment. Seven years after 9/11, not one of the possible and deserving plaintiffs has secured a favorable judgment.
Perhaps we should not be surprised when politically attractive (mostly white) terror victims win victories in Congress and the courts while those (mostly nonwhite) tainted by unfounded claims of terrorist association find no place at the compensation table. Tellingly, perhaps, the one case of counterterrorism collateral damage the Department of Justice has agreed to settle involves a white plaintiff, Brandon Mayfield, arrested on the basis of sloppy forensic work in the wake of the March 2004 Madrid train bombing.