A Prisoner Of Panic After 9/11
Algerian-Born Detainee Seen as Victim of Excess

By Michael Powell
Washington Post Staff Writer
Saturday, November 29, 2003.

BATAVIA, N.Y. -- Benamar Benatta sits in a whitewashed cell, lost in a post-Sept. 11 world. Jailed the night of the attacks on the World Trade Center and Pentagon, the Algerian air force lieutenant with an expired visa has spent the past 26 months in federal prisons, much of that time in solitary confinement -- even though the FBI formally concluded in November 2001 that he had no connection to terrorism.

Since the government first took Benatta into custody, the United States has apprehended and released about 760 domestic detainees. More than 80 prisoners have been released from the military jail where alleged al Qaeda and Taliban fighters are held in Guantanamo Bay, Cuba. It appears that no detainee has been locked up as long as Benatta, although it is impossible to know because of secrecy surrounding some material witnesses who may still be in government custody.

He remains behind bars, awaiting a deportation hearing, unable to post a $25,000 bond.

"Two years ago, I had hopes. I was okay," said Benatta, 29, a pale, handsome man who wore loose-fitting orange prison pajamas and spoke slightly French-accented English during a two-hour interview at the Buffalo Federal Detention Facility. "Now I lie in my cell and think: 'What has become of me?' "

Benatta was among the 1,200 or so men detained by U.S. law enforcement agents in the frenzied weeks after the Sept. 11, 2001, terrorist attacks. He had a most unfortunate résumé: An Algerian and a Muslim, he was an avionics technician, and -- like most of the others -- he lacked proper immigration papers.

The Canadians had held Benatta since he arrived at the Peace Bridge crossing near Buffalo and applied for asylum the previous week. They turned him over to federal agents. A few days later, prosecutors sent him south to New York City, where he was placed in solitary confinement.

It was as though Benatta became invisible. His name never appeared on lists of detainees. His family in Algeria believed he had vanished. No defense attorney knew of his existence until a federal defender in Buffalo was assigned his case in late April 2002.

The federal government has few explanations for what happened. In legal briefs, the U.S. attorney in Buffalo blamed some of the delays on bureaucratic wrangling between prosecutors and the U.S. Marshals Service, and the confusion that followed the terrorist attacks. But in the documents, U.S. Attorney Michael A. Battle of the Western District of New York ultimately acknowledged that such conditions could "not justify violating the defendant's rights."

Two years after the attacks, federal Magistrate Judge H. Kenneth Schroeder Jr. would examine Benatta's case and find a study in governmental excess.

Schroeder issued an unsparing report in September, writing that federal prosecutors and FBI and immigration agents engaged in a "sham" to make it appear that Benatta was being held for immigration violations. Prosecutors trampled on legal deadlines intended to protect his constitutional rights and later offered explanations for their maneuvers that "bordered on ridiculousness," Schroeder wrote. And he found that the government compounded its mistakes by failing to act once it was clear that Benatta was not an accomplice to terrorists.

"The defendant in this case undeniably was deprived of his liberty," Schroeder wrote, "and held in custody under harsh conditions which can be said to be oppressive." To keep Benatta imprisoned any longer, the magistrate concluded, "would be to join in the charade that has been perpetrated."

Battle filed papers in October objecting to Schroeder's "harsh" criticism of his prosecutors, several of whom were identified by name.

Soon after, however, Battle accepted Schroeder's report and dropped the two criminal charges alleging that Benatta possessed false identification papers.

Battle, through a spokesman, turned down a request for an interview. A former federal prosecutor criticized by Schroeder also declined to comment, as did a Justice Department spokesman in Washington. A spokesman for the Bureau of Immigration and Customs Enforcement, which assumed parts of the former Immigration and Naturalization Service, noted only that Benatta now faces a "removal hearing."

After the terrorist attacks, federal officials defended detentions for immigration violations as central to preserving national security. "Let the terrorists among us be warned: If you overstay your visa -- even by one day -- we will arrest you," U.S. Attorney General John D. Ashcroft said in October 2001.

Critics have long contended that the government crackdown infringed on the civil rights of some detainees. Earlier this year, the Justice Department's own inspector general examined the government's handling of some detainees and found that many had been held without charge longer than is allowed by statute, and that a number had been denied access to lawyers for long periods. Inspector General Glenn A. Fine also found that the FBI took too long to investigate and clear them of connections to terrorism.

The inspector general's report also said that corrections and court officers in the New York region had subjected detainees to "patterns of verbal and physical abuse."

Benatta said he did not talk with Fine's investigators. But the Algerian was held in the same wing of the same prison they examined -- the Metropolitan Detention Center in Brooklyn. His descriptions of being threatened and mocked by corrections officers closely track the report's findings.

"This is one of the worst cases we've seen," said Elisa Massimino, Washington director of the Lawyers Committee for Human Rights, which has sued the government to stop the holding of detainees without recourse to lawyers. "This is a perfect example of how the government has played a shell game with detainees for months and months."

Fleeing Algeria

Benatta landed in the United States on Dec. 31, 2000, an Algerian air force lieutenant accompanying 39 men to classified training seminars at Northrop Grumman Corp. in Baltimore. He held a six-month U.S. visa.

But Benatta did not return to Algeria. He would not discuss precise reasons for overstaying his visa but noted that Algeria is plagued by terrible violence and divided between an often-murderous Islamic fundamentalist movement and a military implicated in human rights abuses.

"I had a problem with the terrorists who wanted to kill me and with the military, which was beating and torturing people," he said. "My parents knew I did not intend to come back."

Benatta said he moved to New York City, where he worked as a busboy and lived with an Orthodox Jewish roommate in the Bronx. His visa expired on June 30, 2001. In what he described as a moment of desperation, he took a midnight bus to Buffalo on Sept. 5 and filed for asylum in Canada. Canadian officials detained him in a cell at their offices on the far side of the Peace Bridge, apparently concerned that he was depressed and perhaps suicidal, while they investigated his claim.

On the evening of Sept. 11, Benatta said, officers walked into his cell and asked about his military background and the false identification papers he allegedly carried with him. Within hours, he was on his way to a holding cell in upstate New York, where an FBI agent showed him a photo of the World Trade Center and told him of the attack.

"The agent warned that if I say I have no connection with this terrorism, I will spend the rest of my life in prison," Benatta recalled. "I thought they would offer me to the American people as the one who did this attack. I thought my life was done."

The next days, in his telling, became a blur. Teams of FBI agents repeatedly questioned Benatta. Guards put him in ankle chains and handcuffs, slung a chain around his waist, and loaded him into an airplane to New York City. Dozens of officers with rifles met him at Kennedy International Airport and took him to a federal prison in Brooklyn.

In court papers, the government does not dispute the outlines of Benatta's account. Schroeder discovered numerous violations of the detainee's rights during those first weeks. He noted that INS lawyers did not file legal papers to transfer Benatta until a week after he had arrived in New York, an action the magistrate termed "a sham."

More broadly, Schroeder found "damning evidence" that INS lawyers improperly "colluded" with the FBI and federal prosecutors to use immigration procedures as a "subterfuge" to "spirit" Benatta to New York City. Once there, the government "in essence arrested" Benatta for the purpose of conducting a criminal investigation of him and did not allow him to speak with a lawyer.

These actions, Schroeder wrote, violated Benatta's Sixth Amendment rights to a speedy trial. Federal prosecutors responded that the attorney general has the unilateral power to determine where to hold an immigration detainee, an argument Schroeder rejected.

At the high-security detention center in Brooklyn, Benatta was placed in a solitary cell -- known by prisoners as "the box." His cell was illuminated 24 hours a day. The guards wrote "WTC" in chalk on his cell door and, he said, for weeks they would knock loudly on the door every half-hour to wake him up.

He had no access to books, television or a lawyer. For weeks, he could not leave the cell except when FBI agents arrived to interrogate him about his job, ethnicity and religious beliefs.

"In the box, I had no right to shave, to shower, nothing," Benatta said.

"By the end of a month, I had a huge beard, and I couldn't even walk. You feel in there that one day is one month."

He recalled being forced to strip while guards mocked him. He said guards knocked his head against the elevator wall while he was in manacles and one time pulled his waist chain so tight he had trouble breathing.

"For three or four months, you couldn't talk or they would punish you," he said. "Then maybe things started to calm down."

Fine's report stated that "we believe there is evidence supporting the detainees' claims of abuse." The U.S. Attorney's Office for the Eastern District has declined to prosecute any prison guards.

Cleared, but Not Freed

On Nov. 15, 2001, the FBI cleared Benatta of any connection to terrorism. In a document quoted in Schroeder's ruling, the FBI wrote: "Given the negative searches and after consultation . . . with FBI General Counsel Hyon Kim and INS prosecuting attorney Ann Gannon, the writer requests BENATTA be cleared of his involvement in the captioned investigation." Battle agreed last month that "the FBI's 9/11-related interest in Mr. Benatta ended" on Nov. 15, 2001.

But no one told Benatta. He remained locked in solitary confinement for another five months and was never offered a lawyer, according to Schroeder.

Benatta betrays a rare flash of anger at the mention of those lost months. "I am cleared after Nov. 16, and still they kept me in the box. Why do they do that?"

With the terrorism investigation concluded, prosecutors in Buffalo obtained a grand jury indictment against Benatta on Dec. 12, 2001, on charges related to carrying false identification papers. A warrant was issued for his arrest, but federal officials never informed him and never offered him an attorney.

Benatta did not learn of the pending charges until April 2002, just before he was transferred to Buffalo. Prosecutors with the Western District offered him a plea bargain that would have carried a six-month sentence, essentially amounting to time served. But Benatta refused. When he arrived in Buffalo, a judge had assigned him a lawyer for the first time -- federal defender Joseph B. Mistrett. He decided to fight the charge that he carried false papers.

"I'm not a criminal. Never," Benatta said. "Now I could choose to go to trial."

Mistrett took a liking to Benatta and began filing motions. "It's so outrageous what happened to this guy," Mistrett said. "I was offended as an American citizen."

But despite his efforts, 17 months passed before Schroeder ruled in favor of Benatta, who lived during that time in a cell in the Batavia detention center, where he read and studied law. Last month, Battle filed papers that all but conceded that an injustice had been committed.

"The government agrees that the events of September 11th do not justify violating the defendant's rights," Battle wrote. "Dismissal may be appropriate."

Benatta's worries are like floodwaters that never recede. He now faces a deportation hearing and does not yet have an immigration lawyer. (Mistrett could contest only the criminal charges.) As a military man gone AWOL, he would face a grim fate should he land back in Algeria. "Look, I am in trouble," he said. "If I am not executed right away, I will spend my life in prison."

Human rights advocates suggest Benatta likely is not exaggerating. More than 7,000 people disappeared last year at the hands of Algerian security forces, more than the number recorded in any country in the past decade, according to Human Rights Watch.

Yet Benatta, whose geography has been circumscribed for the past 26 months by cinder blocks and barbed wire, does not sound particularly bitter. He said he understands how, in the weeks and months after nearly 3,000 people died, panic gripped a nation.

"I don't blame the United States. They've never had to deal with terrorists, and 3,000 people die; that's a lot."

Schroeder addressed the same concern in his decision. The FBI, he wrote, "would have been derelict" if it had not investigated Benatta. But he added a caution: "Under our Constitution, absent due process, the end cannot justify the means."

In October, when Battle announced he was dropping charges, a Buffalo reporter asked whether he planned to apologize to Benatta. "I'm not going to address that," the prosecutor said.

That's okay with Benatta. As his interview ended, he stood in Room V1O7 at the Batavia detention center and waited for a guard to unlock the door. Peering back at a reporter, he said: "I don't need an apology. I just want them to stop accusing me."