9/11 and the Law-NYLaw Journal

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9/11 and the Law


The Impact on How Lawyers Do Business and Courts Dispense Justice
On Sept. 11, 2001, commuters streamed into Manhattan under a clear-blue late-summer sky. By the end of the day, a pall of acrid, dark smoke hovered over downtown. Ten years later, the toxic cloud has long since lifted, and new skyscrapers are under construction at "Ground Zero" to replace the iconic Twin Towers that were destroyed by the terrorist attacks. But the impact of the attacks still lingers on how lawyers do business and courts dispense justice.



Introduction

The legal community shared in full measure the tragedy of 9/11, and the impact of the attacks still lingers on how lawyers do business and courts dispense justice.



Struggling for Balance Between Liberty, Security

From detentions at Guantánamo Bay, Cuba, to the daily indignities of airport passenger searches, the terror attacks triggered revolutionary change in the American legal system. But as rancorous as the process of setting guidelines and restraints on the government's post-9/11 policies has been, some protagonists in the battle say America's legal traditions, including its embrace of individual rights, have survived more or less intact 10 years on.



Timeline



Essays by:

Jonathan Lippman, Chief Judge of the State of New York

Ann Pfau, Chief Administrative Judge of the State of New York

Loretta A. Preska, Chief Judge of the Southern District of New York

Carol Bagley Amon, Chief Judge of the Eastern District of New York

Kenneth R. Feinberg, Special Master, September 11th Victim Compensation Fund

Loretta Lynch, U.S. Attorney for the Eastern District of New York

Michael A. Cardozo, Corporation Counsel, and G. Foster Mills, Managing Attorney, New York City Law Department

Janet DiFiore, District Attorney, Westchester County

Vincent E. Doyle III, President of the New York State Bar Association

Samuel W. Seymour, President of the New York City Bar

Alvin K. Hellerstein, Judge, Southern District of New York

Stewart D. Aaron, President of the New York County Lawyers' Association

Steven Banks, Attorney-in-Chief, Legal Aid Society

John A. Cirando, Appellate Attorney with D.J. & J.A. Cirando, Syracuse

Joshua L. Dratel, First non-military U.S. lawyer to visit a client at Guantánamo

Christopher Dunn, Associate Legal Director, New York Civil Liberties Union

Warren A. Estis and William J. Robbins, Partners, Rosenberg & Estis

Ivan Stephan Fisher, Defense Attorney

Jonathan E. Gradess, Executive Director of the New York State Defenders Association

Michael D. Patrick, Partner, and Nancy H. Morowitz, Of Counsel at Fragomen, Del Rey, Bernsen and Loewy

Gerald L. Shargel, Defense Attorney

Faiza Patel, co-director of the Liberty and National Security Program, Brennan Center for Justice

Michael B. Mukasey, Former Attorney General of the United States





Courts' Response to 9/11: A 'Testament to Resilience'


Jonathan Lippman

09-09-2011


The terrorist attacks of Sept. 11, 2001, had a profound impact on our nation, our state, and our city. The attacks, an expression of hatred for our government and our way of life, challenged our culture of openness, freedom and the rule of law.

It is a testament to the resilience of our democratic values that the courts have responded to the new realities of a post-9/11 world by enhancing security and emergency preparedness while remaining open and accessible to litigants and the public we serve.

On this 10th anniversary, we deeply mourn the loss of those who died that day, including members of our court family, Captain William Harry Thompson, Sergeant Mitchel Wallace and Sergeant Thomas Jurgens. There is no better way to honor our own fallen heroes and all those who were lost than to strengthen the institutions that protect all Americans without compromising the essential principles of due process of law, fundamental fairness, openness and accountability.

In the period since the attacks, the court system has taken a number of important steps to improve public safety.

First and foremost, we made changes to security, developing emergency response protocols to ensure continuity of operations in the event of a crisis.

Training for court officers was expanded to include emergency response preparation and evacuation drills, and we established special response teams to handle demonstrations, judicial threats, and other challenging situations.

Shortly after 9/11, we instituted 24-hour security patrols and closed vulnerable underground parking facilities. We established a comprehensive Internet-enabled camera surveillance system that runs on the court system's high-speed data network and has greatly increased our ability to remotely monitor security in dozens of courthouses round the clock.

Every courthouse has developed an emergency preparedness plan in the event that the courthouse must be evacuated and resume functioning in another location.

We installed hundreds of new magnetometers and x-ray machines to improve screening at our courthouse doors, and we instituted the "Secure Pass" program, which allows attorneys to enter our courthouses more quickly without compromising security.

One of the lessons of 9/11 is the importance of ensuring that the courts have a seat at the table when it comes to state and local emergency preparedness planning. Working closely with the mayor's and governor's offices in the wake of the attacks resulted in relationships that are still intact.

Court security personnel are now permanently assigned to New York City's Office of Emergency Management and to the New York City Police Counter-Terrorism Task Force. We also obtained passage of legislation that mandates inclusion of the courts in state and local emergency planning processes.

The horrific events of Sept. 11, 2001, ushered in a new era of heightened awareness, increased security, and closer coordination with other government agencies. Those events altered the way we think about safety and security and have resulted in new practices and enhancements to existing operations.

But more important than what has changed is what has remained constant: Our courts continue to administer equal justice, protect our freedoms, and safeguard the rule of law in an open and transparent way.


Jonathan Lippman
Chief Judge
State of New York




Reflections on 9/11 and the Law

Ann Pfau

09-09-2011



For 10 years, I have had a photograph on my desk that I look at every day. Mixed in with pictures of my children and my grandchildren there is a faded newspaper snapshot of one of our officers at the site of the World Trade Center running in a cloud of dust and rubble, trying to help those in need.

No words can be as profound as that picture, which captures the immediate response of our officers to the overwhelming tragedy that engulfed the entire city on Sept. 11, 2001.

Tragically, we lost three officers that day. Tommy Jurgens, Mitchell Wallace and Harry Thompson had rushed to the site to save lives. In their bravery, as they went toward danger, they were killed. We continue to mourn the loss of those three brave officers, and their families continue to be part of our family.

We also learned from the tragedy, changing in ways we would not have thought about on Sept. 10, 2001. We made significant changes to technology, both immediately after the attacks on the World Trade Center and in the decade since. Some of those changes were implemented in response to the attacks; some were a natural progression as the technology available to us and the practices of the bar and the public evolved.

All have had the effect of better preparing us to weather emergencies like the one we suffered 10 years ago.

In the first days after the attacks, regular phone service was destroyed for the entire downtown Manhattan area. As soon as court staff had physical access to the courthouses, we used the latest technology, from Internet phones to wireless Internet, to restore phone service and data communications so that our courts could function again within hours and days of reopening.

Over the past 10 years, we have expanded this technology to provide lower-cost Internet phone service to over 10,000 court users and installed wireless Internet technology in courthouses throughout the state for use by attorneys, litigants, jurors and the public.

Redundancies have been built into all of our automation systems to make sure that we are not dependent on any single source of technology. Similarly, secure telephone and computer links for administrative judges have been put in place to allow us to communicate during an emergency. Emergency preparedness plans for every courthouse include recovery plans for court records as well as evacuation and relocation plans.

Sept. 11, 2001, was a stark reminder of the vulnerability of paper records. Hundreds of thousands of important court records and legal documents were destroyed in our Court of Claims facility and the many law offices located in and around the World Trade Center.

Many law firms in the area looked to us to assist them in recreating their court files. Since then, we have expanded electronic record-keeping and electronic filing. With the court system's commitment to electronic filing and the adoption of the latest advancements in electronic records storage, we are reducing the risk of wholesale physical destruction of essential records and improving public access to those records. And with electronic records, judges and court staff can more easily shift location and continue to maintain operations should a crisis occur.

The tragedy of 9/11 made us acutely aware of the need to be ready for any emergency and to ensure that the courts stay open to accommodate the public. Advancements in technology assisted us in recovering from the events of 9/11 and have helped us improve our disaster readiness to handle any emergency.


Ann Pfau
Chief Administrative Judge
State of New York


Reflections on 9/11 and the Law

Loretta A. Preska

09-09-2011

Terrorism involves both crimes and acts of war, and resolving terrorism cases involves concerns about due process, national security, international relations and other interests.

The various safety and logistical concerns of trying terrorism cases in our court became very concrete to me when, in November 2009, the U.S. Attorney General Eric Holder announced that Khalid Sheik Mohammed and his codefendants would be brought from Guantánamo to the Southern District of New York for trial on the terrorist attacks of Sept. 11, 2001.

Together with the U.S. Marshal and our district executive, I met with judges from the relevant committees of our court to address these concerns, and we have continued to meet as needed to address each terrorism case as it arises.

Of course the first issue to be dealt with is always security: the security of the trial participants—the judge, attorneys and jury—and the security of courthouse staff and of the public. At the same time, however, we have to assure ease of access to the courthouse for litigants, lawyers and members of the public who are carrying on their day-to-day non-terrorism work in other cases, both civil and criminal.

As you read in the papers, following the attorney general's announcement, the NYPD worked with our Marshal in conceiving a comprehensive plan for physical security of the courthouse and its environs. It provided for a variety of enhanced security measures in both the immediate area, that is, including the various courthouses, the U.S. Attorneys' Office, One Police Plaza and the Metropolitan Correction Center, and in a larger perimeter area. The plan balanced security and access, and we were grateful to the police department for the care and concern that plan reflected.

Inside the courthouse, using as models the trials involving the first World Trade Center bombing and Omar Abdel Rahman, the blind sheikh, we undertook various security upgrades to the actual courtrooms to be used. Outside the courthouse, security screening procedures for those entering the courthouse were reviewed.

Best practices dictate that security screening take place outside the structure one is protecting so as to minimize any damage in the event an explosive device is detonated during the screening process.

After years of work, planning for a security screening pavilion separate from the courthouse is in progress, and we hope to receive funds for construction in 2012.

Also, in some cases, including the recent trials of Aafia Siddiqui and Ahmed Ghailani, additional security screening was implemented outside the actual courtroom.

Screening of jurors presents another challenge, for trying terrorism cases requires the court to summon an inordinate number of jurors. In the Ghailani case, more than 1,000 jurors were summoned, and in the first embassy bombing trial in May 2001, 1,300 jurors were summoned. These trials tend to take longer, and people are often reluctant to serve. Sometimes additional security steps are implemented, including transporting jurors to and from the courthouse.

These logistical concerns remain with us as we proceed through the legal aftermath of the terrorist attacks of Sept. 11, 2001.

Our courthouse community—our judges and staff—will continue to work with prosecutors, defense counsel, the Marshal and the NYPD to resolve these cases expeditiously while maintaining access to the courthouse for the lawyers, litigants and public we serve.


Loretta A. Preska
Chief Judge
Southern District of New York


Reflections on 9/11 and the Law

Kenneth R. Feinberg

09-09-2011



Just 11 days after the 9/11 terrorist attacks, Congress enacted a statute unprecedented in American history.

Added at the last moment to legislation designed to protect the domestic airline industry from lawsuits, the federal September 11th Victim Compensation Fund of 2001 offered the victims of the attacks at the World Trade Center, the Pentagon and on the airplanes a voluntary choice—the right to sue the airlines, the World Trade Center and other alleged domestic tortfeasors in federal court in Manhattan or to accept generous compensation from a no-fault administrative fund totally paid for by the tax-payers.

Each claimant, whether the family member of a lost loved one, or a victim physically injured as a result of the attacks, would make the choice.

During the 33 months that I administered this 9/11 fund, almost all eligible claimants decided to adopt the fund route. Only 94 families representing those who died on 9/11 decided to pursue litigation. The fund was praised for providing quick and generous payments to the victims of such an unprecedented tragedy.

But did the fund change the practice of law in our country? Did it act as a precedent for other similar tragedies, offering an alternative to the traditional and conventional way we resolve disputes—in the courtroom, in an adversarial system that pits lawyers against each other, with judge and jury resolving the dispute? I do not think so.

Yes, I believe that the 9/11 fund was a success, demonstrating to the world the desire of the American people to come to the rescue of those tragically impacted by the attacks. This unique law exhibited the best of our heritage, proof positive of our sense of community and determination to show to the world how we help our own.

But the 9/11 fund was a precedent for nothing. It was a unique response to a national tragedy rivaled only by the American Civil War and Pearl Harbor.

There was no similar fund created for the victims of Hurricane Katrina, the Oklahoma City bombings, the Joplin Missouri tornados, or other man-made or natural disasters. Bad things happen to good people every day in our country; but there is no 9/11 fund in which taxpayer-funded public compensation acts to insure against risk.

In those rare occasions in which an administrative compensation system has been established as an alternative to traditional tort litigation (last year's BP oil spill in the Gulf of Mexico is one such rare example), the effort should be viewed as an aberration, a unique response in which lawmakers decide, for that tragedy only, there just might be "a better way."

I believe that the traditional litigation system in our nation works well in the overwhelming number of cases. The adversarial system is ingrained in our history; it is part and parcel of our heritage. It is neither likely nor sound public policy to seek to adopt the 9/11 fund as the wave of the future.

Our system of justice has stood us in good stead for almost three centuries. The 9/11 fund was sound public policy. It worked. But it should be viewed with respect and admiration as a unique response to an unprecedented national calamity. It is a precedent for nothing.


Kenneth R. Feinberg
Special Master
September 11th Victim Compensation Fund


Reflections on 9/11 and the Law

Loretta Lynch

09-09-2011



The terrorist attacks of 9/11 left an indelible mark on the United States and all Americans, but particularly New Yorkers. And their mark on the U.S. Attorney's Office for the Eastern District of New York is most clearly reflected in the transformation of our national security program.

First, 9/11 left no doubt as to our first priority: bringing the office's resources and expertise to bear in our nation's critical struggle to detect, deter, and disrupt terrorists and prevent another attack on our city and our country. That priority is reflected in the exponential increase in the number of our prosecutors dedicated to terrorism cases.

Second, the office shifted to a new, proactive approach to national security cases that focuses on prevention and disruption of terrorist acts—before they happen. After 9/11, our terrorism prosecutors joined forces with the Federal Bureau of Investigation's Joint Terrorism Task Force (JTTF), which includes the NYPD, to engage at the earliest possible stage of every national security investigation affecting our district. Now, as soon as a terrorism lead comes in to the JTTF, one of our prosecutors digs in, working hand-in-hand with JTTF agents to ensure that every investigative and prosecutorial tool is employed to stop a terrorist attack without a moment's delay.

Third, after 9/11, the office's terrorism prosecutors have transformed into national security lawyers, fully integrated into our nation's intelligence community. In keeping with the demolition of the pre-9/11 "wall" separating intelligence and criminal efforts to combat terrorism, our prosecutors and their JTTF partners gather and share intelligence with all national security agencies with the paramount goal of preventing terrorist attack. And to ensure the continued sharing of critical intelligence between the intelligence and law enforcement communities, our prosecutors fight tirelessly to protect key intelligence information and techniques from unwarranted disclosure.

Finally, the office is deeply engaged with the Eastern District's communities, including our Muslim and Arab-American communities, to continue to foster trust, cooperation, and support, as we all remain united to prevent terrorism.

The results of the office's post-9/11 national security efforts have been nothing short of extraordinary. Our investigative efforts have helped the JTTF and the intelligence community detect and prevent numerous terrorist attacks on our city's subways and airports and people. All the while, working in lockstep with the JTTF, our prosecutors have gathered and presented the evidence necessary to convict such operational terrorists as Najibullah Zazi and Zarein Ahmedzay, al-Qaida operatives who were just days away from carrying out suicide attacks on our subways; Bryant Neal Vinas, who plotted with al-Qaida leaders to bomb the Long Island Rail Road; Russell Defreitas, who planned to bomb JFK International Airport and conducted video surveillance to take to al-Qaida and Iranian terrorists; and Shahawar Matin Siraj, who surveilled the 34th Street subway station at Herald Square to identify where to place bombs.

The 9/11 attacks changed New York—and they certainly changed the United States Attorney's Office for the Eastern District of New York. But some things never change. New York remains the vibrant and diverse beacon of hope that it has been since its founding. And the office's core principle remains constant: to protect the residents of the Eastern District through a tireless commitment to enforcement of the law.


Loretta Lynch
U.S. Attorney
Eastern District of New York



(To be continued)