A Glimmer of Justice for Wrongly Detained Terror Suspects

Benamar Benatta was mysteriously handed over by Canada to U.S. authorities the day after the 9-11 terrorist attacks, and spent nearly five years in American jails without ever being convicted of a crime.

Earlier this month, he won a small victory in Ontario Superior Court in his fight for restitution.

Viewed from south of the 49th parallel, however, where the courts have refused to permit such cases to proceed, the ruling looks like a big victory for the legal rights of those wrongly detained in the name of the war on terror.

In Canada, the door has been opened at least a crack; in the U.S., it is still slammed shut.

Beaten and mocked

At issue is a dilemma both countries have grappled with for the past eight years: in a struggle that involves an elusive enemy that can blend in easily with the general population, how much leeway should governments have to jail those it deems suspicious in order to prevent terrorist attacks, and then withhold the reasons for its actions?

In his Dec. 11 ruling, Judge Donald Short's answer was: not much. He ordered the Canadian government to provide full disclosure to Benatta, who is seeking damages on the grounds that he was illegally returned to the U.S. to face violent abuse and wrongful imprisonment. His lawyers believe Ottawa may be withholding documents relevant to the case, and the judge agreed.

Benatta was one of about 800 Muslim men rounded up and incarcerated, mostly in New York, after the September 11 attacks. He was labeled a "high interest" detainee and held for eight months in brutal conditions, subject to beatings and mockery by prison guards, forbidden to shower or shave, and confined to a tiny cell that was brightly lit 24 hours a day. None of the men was ever charged with a terrorism-related offense, and indeed the FBI cleared Benatta of any links to terrorism within two months after he was jailed.

What makes Benatta's case unique, however, is that when the 9-11 hijackers struck, he was not in the United States. On Sept. 5, 2001, after a complex saga in which he had defected from the Algerian military during a training mission in the U.S. and lived as an illegal immigrant in New York, he arrived at the Peace Bridge and asked for asylum, claiming he would face torture if returned to Algeria. After first presenting false identification and then quickly admitting his true identity, he was held at the border while authorities considered whether he should be admitted to Canada to pursue a refugee claim. But on Sept. 12, instead of following normal procedures, they quietly drove him back across the river into the arms of the U.S. government.

'Sham' imprisonment

Of the hundreds of men rounded up after 9-11 in what a U.S. Justice Department investigation would later call "a haphazard and indiscriminate manner," Benatta would spend the longest in jail. Though he was eventually released into the general prison population, the U.S. government refused to free him while he fought Washington's efforts to deport him back to Algeria or convict him of identity fraud. The American judge who rejected the fraud charges denounced his imprisonment as a "sham" that "bordered on ridiculousness."

Benatta was finally allowed to return to Canada in 2006 to pursue a refugee claim after efforts by the Canadian Council for Refugees.

In 2007, he was granted refugee status in Canada.

The Canadian connection is the only piece of good news for Benatta in an otherwise sorry tale of government malfeasance. Some of the other men who were held alongside him have tried to pursue legal remedies in the United States. But the U.S. courts have been unwilling even to consider such claims. The only headway the detainees have made was a modest settlement the government paid to five of the men last month to compensate for their abuse at the hands of prison guards in the jail, but without acknowledging any liability.

A higher standard in Canada

On a 5-4 vote in May, the conservative majority on the Supreme Court rejected a request by Javaid Iqbal, a Pakistani imprisoned as a "high interest" detainee, to gather evidence for a lawsuit against the Justice Department and the F.B.I. Such a request, the court determined, would expose senior U.S. officials to unwarranted scrutiny of actions whose sole intent was to protect the country against terrorist attacks. Critics are comparing the ruling to the infamous and now widely discredited Korematsu decision, in which the Supreme Court in 1944 upheld the incarceration of Japanese-Americans as a reasonable response to wartime emergency.

Canada's courts have not been so deferential. They have struck down several cases in which Ottawa asserted the right to hold foreign terrorist suspects indefinitely based on secret evidence supplied by the Canadian Security Intelligence Service (CSIS). The courts have insisted that -- with appropriate safeguards for sensitive information -- the government must demonstrate lawful grounds for continued detention.

Those decisions touched off a sharp response in late October from the new head of CSIS, Richard Fadden, who used his first public speech to charge that "many of our opinion leaders have come to see the fight against terrorism not as defending democracy and our values, but as attacking them. Almost any attempt to fight terrorism by the government is portrayed as an overreaction or an assault on liberty."

Benatta's case mostly involves immigration and border officials rather than the intelligence agency, but in issuing its decision, the Ontario court responded directly to Fadden's charges. Judge Short acknowledged the need "to be able to effectively fight terrorists who ignore any rules that get in their way while still protecting the way of life and Rule of Law we seek to defend." In ordering in Benatta's favour, however, he concluded that "the liberty we are seeking to protect needs, as well, to ensure that the rights of every individual are appropriately protected."

Benatta, who is now back in university and trying to build a new life for himself in Toronto, still has a long way to go in his fight against the two governments that took five years of it away. But unlike those in the United States, Canada's courts have at least given him a chance.

[Editor's note: the comment section is close for the holidays and will re-open Jan. 4th. Thanks for all your thoughtful commentary this year. Looking forward to more of the same in the next!]