It's time to formally compensate the victims of overzealous counterterrorism policies.

It's time to formally compensate the victims of overzealous counterterrorism policies.

It's time to formally compensate the victims of overzealous counterterrorism policies.

The law, lawyers, and the court.
June 19 2009 5:41 PM

Compensation Nation

It's time to formally compensate the victims of overzealous counterterrorism policies.

Maher Arar. Click image to expand.
Wrongly detained Canadian Maher Arar

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, theĀ 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.

Whatever differences may exist between terrorism's two kinds of victims, the racialized gulf separating them is unjustified. Indeed, counterterrorism's potential victims are especially compromised because no private insurance market exists for them akin to the terrorism insurance market that businesses use. Compensation must be part of the accountability conversation. It should also be on the legislative agenda, although it will likely take presidential initiative to get there.


Redress for counterterrorism's collateral damage will have powerful positive consequences on U.S. security policy. In his Cairo speech, President Obama recognized the urgent need to foster political support and diminish anti-Americanism in the Muslim world. He aims, clearly, to diminish the support for al-Qaida that the prior administration sometimes inflamed. The idea of compensation for the collateral damage of national security policies is hardly new. Nor is the idea that such compensation yields security gains. As Vice President Biden explained in 2007, discussing the ponderous and halfhearted efforts to pay back Afghans harmed by U.S. airstrikes, compensation goes a long way toward tamping down local resentments and builds support for U.S. efforts. And small gestures can have vast repercussions in this arena. The appointment of Egyptian-born Dahlia Mogahed to a White House advisory council reaped fulsome praise in the Arab press.

A small gesture is all that is needed. The 1988 legislation apologizing and authorizing reparations for the World War II internment of Japanese-Americans granted only $20,000 a person in damages but made a compelling moral statement. Compared with the $48.5 billion intelligence budget in 2008 (only part of what's spent on national security), this is a drop in the bucket.

Compensation brings complicated line-drawing problems. Who is "innocent" enough to warrant reparations? The U.S. government has largely rejected the use of criminal proceedings for terrorism suspects, making it especially hard to sift the innocent from the more culpable. Worse, it continues, implausibly, to deny all wrongdoing. So there is no official tally of erroneous actions. Opponents of compensation will pounce on this to complain that even a minimal risk of funds flowing to a person linked to terrorism is unacceptable.

But it is plausible for a law to vest broad compensatory discretion in the executive. Then, the president could begin with the easy cases, immediately reaping the publicity rewards. Two high-profile victims of "extraordinary rendition," for example, are Khaled El-Masri and Maher Arar. Neither is plausibly linked to any act of terrorism. Indeed, Canada has already compensated Arar for its role in his painful ordeal.


Compensation for counterterrorism's victims would also flush out bias against Muslims and Arabs that may be distorting government's thinking. Say it was possible to introduce a compensation law. Say, like the 1988 legislation responding to the Japanese internment, it neither confirmed nor denied government error. What possible reason would there be to oppose it? The financial impacts would be minimal, the gains to public diplomacy significant.

Bigotry against Muslims and Arabs remains a coin of the land and a reason to fight compensation. Compensation, by flushing out those motivated by nasty bias, would be a purgative to the body politic.

It would be foolish to think that legislators now stand eager to pass this proposal. Rather, it will be up to President Obama to show leadership, just as he did in Cairo. Taking the leap on compensation would wrong-foot those who have criticized his failures on government accountability. And he would build worthwhile allies in both domestic and foreign Muslim communities, where crucial parts of his national security policy will be tested. The president can also lead by example without congressional aid. He can begin by settling now-pending damages cases to show the right course and direct his Justice Department to reopen cases dismissed on procedural grounds.

In doing so, he would simply be heeding the wise advice of that other Illinois senator-turned-president. Lincoln once advised: "It is the duty of Government to render prompt justice against itself in favor of its citizens as it is to administer the same between private individuals." In the diverse post-9/11 world, it's past time to extend that privilege to the citizens and noncitizens who became the jetsam of our flawed and overbroad counterterrorism policies.