General Litigation

9-11 and the Law

Like all NYers,I was devastated by the 9-11 attacks. And like many Nyers I have mixed emotions about commemorating the ten year anniversary of the attack. Yes, its fitting that we remember and honor those who died that day but at the same time, the hair on the back of my neck stood up when I read in the NY Times that City businesses were gearing up “for 9-11 related tourism.” And I know that 20 years from now, I will be like those old timers back in the 1970s who always griped that my generation forgot and failed to honor those who died on December 7, Pearl Harbor Day. (In fact this year will mark the 70th anniversary of that tragedy). But somehow this event is still to recent to turn in to another day to sell T-Shirts and put on TV Specials. But this blog is supposed to be about modern litigation and the current state of the legal field in general, so I thought I would commemorate how 9-11 has effected the practice of law, at least here in NY.

The changes in the legal field since 9-11 have been many. From the mundane – everyone must now go through metal detectors to get into all courts, and attorneys must have court-issued ID or they go through as well- to the unconstitutional – like being ok with torture and that it is still particularly difficult for a Muslim defendant to get a fair trial. In the months and years immediately following the attack, Muslim jurors even faced discrimination and prejudicial remarks. It has quieted down some now, but attorneys who have a Muslim client (in any type of case) have to take special care in dealing with the issue in jury selection. Even if a principle witness upon whom your case relies is Muslim, extra caution in selecting the jury is advisable. Another effect I have observed since 9-11 is the continued admiration of firefighters. While the love of the NYPD has been brought down to rational levels, woe be to you if you have a firefighter as the party on the other side. Again, even if the firefighter is a witness against you , the kid gloves have to be put on as much as possible. In the immediate aftermath of the attack and for I’d say the two years following 9-11, juries were rendering lower verdicts in personal injury cases and throwing more of them out. after what the City went through, not many people cared that someone broke their wrist on a crack in the sidewalk. It seemed almost petty to bring anything but the most serious cases to trial. In many ways, the jury pool (particularly in Manhattan) still harbors those sentiments and is much less sympathetic and forgiving.

It is easy,however, for me to say that the biggest effect 9-11 has had on the law is that people no longer think privacy is as important and material to the American lifestyle. We put up with manual rape and full body scans that reveal our internal organs just to get on a plane. Video cameras are everywhere, documenting every step of our day. What is the most common response to this new lack of privacy? “If you’re not doing anything wrong, you got nothing to worry about.” That’s not the point – the point is that one of the founding principles of this country is the right to be left alone from unwanted intrusion by the government. But courts, jurors and police and prosecutors now have a lower threshold for folks who want to stand up for that basic right. 9-11 has made it ok for everyone to be treated as a suspect and for our society getting as close to Big Brother as we have ever been. (For those under the age of 30, I am referring to the novel 1984 not the CBS reality TV program). Here are some profound legal changes that got pushed through Congress in the wake of 9-11, compiled by the website Mother Jones:

The FISA Amendments Act of 2008

Allowed the Foreign Intelligence Surveillance Court to authorize warrantless surveillance of Americans’ international electronic communications. That’s the secret wiretapping of American citizens! For the first time in modern jurisprudence, the government can intercept Americans’ international communications without a warrant as long as one party to the communication is “reasonably believed” to be outside the US.

USA PATRIOT Act of 2001

Authorized “sneak and peak” searches.
“Sneak and peak” search warrants allow the government to search your home or business without telling you about it until months later. Although national security concerns were the stated justification for this authority, these warrants are issued overwhelmingly in drug cases, with less than 1 percent used for terrorism cases. If you aren’t doing anything wrong, what’s the big deal right?

Expanded the authority of the FBI to issue National Security Letters (NSL) requesting information from and about Americans. NSLs can compel banks, internet service providers, and other third parties to secretly reveal your personal information. No judicial approval is required, and the FBI need only certify that the requested information is “relevant” to a terrorism investigation (a much lower standard than under previous law). In my practice I have seen many businesses and individuals being targeted with these NSLs in an overreaching use of this tool.

Criminalized pure speech in furtherance of the non-criminal acts of terrorist groups.

Under previous Supreme Court precedent, pure speech could be criminalized only if it had the intent and likely effect of furthering a group’s illegal aims. In 2010’s Holder v. Humanitarian Law Project, however, the Supreme Court held that the First Amendment permitted criminalization, under the “material support” law, of efforts to provide advice to members of a terrorist group on how to use international law and other non-violent conflict-resolution mechanisms.

Intelligence Reform and Terrorism Prevention Act of 2004

Authorized the Department of Homeland Security to develop a “strategic plan” for airport security measures.The new plan called for the TSA to improve and deploy equipment that detects weapons and other objects in airports. Beginning in March 2010, TSA began employing some 450 full body scanners, which display an image of the passenger’s body underneath his or her clothing. Despite continued outrage from passengers, the D.C. Circuit of Appeals ruled in July 2011 that the use of scanners did not violate the 4th Amendment, which guards against unreasonable searches and seizures.

US Customs and Border Protection and Department of Homeland Security Policy Changes

Allowed suspicionless searches of documents and electronic devices carried by US citizens returning from overseas travel. Before this change, a government directive allowed customs officials to read documents or papers belonging to Americans returning from overseas travel only if there was a reasonable suspicion that a US law had been violated. The new policy, introduced by the Bush administration and followed by the Obama administration, allows government officials to search any documents or papers, including the entire contents of laptops and other electronic devices, without any suspicion of wrongdoing.


I could go on -does anyone even recall that hundreds of people are still detained in Guantanamo Bay – without a trial, a hearing or a lawyer? That those few that are charged do not get a jury, but instead are tried in secretive military tribunals? Does anyone care? Oh wait, I know – if you aren’t doing anything wrong, what do you have to be worried about? What I worry about is the the erosion of our fundamental principles will continue and that the government will have the right to walk into our homes, enter our cars or stop us in the street without cause all in the name of “National Security.” We have been repeatedly told that we were attacked because the Osama Bin Laden and Al-Qaeda “hate our American Way of Life.” If that’s true, are we not giving them what they want by sacrificing key elements of that way of life? Our Right to Privacy should be added to the list of victims on whatever memorial they plan on constructing at the three 9-11 sites. It should be joined by an oft-repeated quote from 1775 by Benjamin Franklin:

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

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