After the death and destruction of 9/11 in lower Manhattan, litigation on liability for negligent security followed quickly in the federal courts. The issues raised were civil ones concerned with the duty to protect victims of the terrorist acts from property damage, personal injury, commercial losses and wrongful death. The seminal questions to be answered have been: the foreseeability of the risk of the terrorist acts, and the adequacy of the actions taken to prevent the harm caused. As is the case in all negligence litigation, the fact finders, the judge and or jury, determines whether the defendants breached their duties to protect the plaintiffs and should therefore be held liable in damages to the victims and their families for their losses.
A particular act of terrorism is extremely hard to predict as we have learned, but some are less difficult than others. The foreseeability of the 9/11 events has been analyzed repeatedly in courtrooms and boardrooms with ample evidence both for and against having been presented. The question of whether or not more could have been done to either reasonably avoid the attacks or limit the death and injuries that resulted is similarly one with no definitive answer; and it is unlikely to be a question that is ever satisfactorily answered. What we do know is that more could have been done to lower the risks faced by the public on that day; what we don’t know is whether it would have been enough.
Since 9/11 we have been preoccupied with the notion that terrorists, either home grown or from abroad are living and working amongst us. But for the excellent work of law enforcement and the intelligence community we clearly would have had other attacks at home against our civilian population, as we have had against military personnel at Fort Hood in Texas. Some continue to argue that the Hood event was not a terrorist attack but rather the work of mad man who just happened to be an Islamic extremist and a serving U.S. Army officer who was expressing his anti-war views. You decide, as will a military court. We are now left to determine what kind of conduct is enough to put those with the duty to protect the public from the violence of domestic terrorism on sufficient notice to provide reasonable security against such acts.
Identifying the foreseeable risks of a particular crime, including an act of terrorism, can be as elusive as determining in advance whether a particular level of security would make the difference in the preventing the act. Questions of reasonability of security are the domain of judges and juries, as is more often than not the question of the foreseeability of risks. I have served as an expert witness on security liability matters in which foreseeability of the crime risk and the quality of the security in place to defend against it has been the subject of my testimony. But in the final analysis, it is the trier of the facts who decides whether either or both were reasonable. Judges and juries cannot be taken for granted in determining reasonableness.
Prior to 9/11, aviation security experts frequently opined on the question of whether the risks of hijacking, bombing or other forms of criminality aboard airliners were foreseeable, and whether airlines had taken adequate measures to protect against them. The likelihood of the use as an airliner as a missile to be aimed at an earthbound target such as an office building, government structure or national monument like the Eiffel Tower has been considered after such targets were discovered and foiled by national law enforcement abroad. The adequacy of the security in place on 9/11 however was insufficient to meet the threat, despite its foreseeability for some. We are left with the question, still unanswered with any degree of certitude, of how do we prevent such acts from occurring in the future, a question I leave to others who deal with such issues daily.
Now we have been presented with the Department of Justice plan to put on trial in a civilian court located at the very center the most infamous terrorism act those charged with the planning and the conduct of the 9/11 crimes. Whether such a plan is necessary for a political reason, or to satisfy a public need, the question of the foreseeability of another attack during such a trial, and the ability to provide reasonable security to prevent it begs the question of whether such plan will be found ill conceived and an invitation for yet another attack on an unprepared public. The police commissioner of the City of New York has already articulated the possibility of an attack by terrorists looking to highlight their “success” on eight years ago. How many civilians will needlessly be put in harms way to make a point regarding the integrity of our justice system, a point that could easily be made in an easier to protect locale or jurisdiction?
We have learned since 9/11 that providing reasonable security against acts of terrorism is difficult enough, even with the best efforts of highly skilled security personnel, without altering daily life to an unacceptable level. After 9/11 we rushed to put in place elaborate new procedures operated by a new federal agency employing the most expensive, if not the most effective equipment. And eight years we remain almost as vulnerable as we were eight years ago to similar acts. However, we are now on notice of both the ability of Islamic terrorists to plan a successful attack on are our soil, the foreseeability of such an attack occurring in New York, and our vulnerability to acts of terrorism. Should unprotected civilians be victimized once again by terrorists attempting to show their contempt for our homeland security, the search for those responsible for security negligence need go no further than those charged with insulating the public from the obviously foreseeable risk of the crime where similar acts occurred twice before.