A passionate discussion of Guantanamo Bay-featuring exchanges among a current and former U.S. Attorney and a federal judge-kept lawyers from across the country riveted at the annual conference of the Tort Trial & Insurance Practice Section (TIPS), held in Seattle on Oct. 13.
Nearly 300 attorneys gathered for the meeting, which focused on cyber-security. At the end, the organization honored Seattle personal injury attorney Mike Withey with its Pursuit of Justice Award.
The high-powered group of panelists included U.S. District John Coughenour, U.S. Attorney Jenny Durkan, Seattle University Professor (and former U.S. Attorney) John McKay, Washington State Patrol Chief John R. Batiste, and Juval Aviv, an Israeli-American counter-terrorism expert.
“If there was one take-away from our meeting … and frankly, what we are trying to accomplish this year, it’s building awareness,” says TIPS chair Randy Aliment, a business litigator with Williams Kastner in Seattle. “In the past, it seemed that the sole focus was on what to do the day following a disaster. Now, we are trying to build an awareness not only of the fact that such events are inevitable, but also that there are things one can do to prepare for them.”
Photo: Panel moderator Kathleen Strickland, left, with TIPS chair Randy Aliment; Juval Aviv, president of Interfor Inc.; and Jeffrey F. Addicott with the Center for Terrorism Law.
Jeffrey F. Addicott, with the Center for Terrorism Law in San Antonio, told the group that 85 percent of the United States’ critical infrastructure is privately owned, and thus not as strictly regulated as public-sector organizations such as the military. “Most companies build their business for efficiency, not for security,” he noted. “Little thought is given, if any, to what the cyber-security standards should be. … A lot of companies have marvelous physical security since 9/11-They’ve got the concrete barriers up, they’ve got cameras, they’ve got metal detectors, whatever the business is-because they know that, if a terrorist incident occurs [and] people are harmed on their property, they’re going to be sued, and they’ve got to go to the judge and say, ‘Look, we had reasonable physical security standards, we can’t be expected to cover everything, but what we did was reasonable.’ [Well,] they’ve got to make the same argument for cyber-security breaches.”
Addicott said the government should require tighter cyber-security from businesses that provide critical products or services, such as communications, that are vulnerable to being hacked. But he speculated it may take a lawsuit to motivate private industry to change. He noted that, well before 9/11, the idea of installing locking cockpit doors had occurred to airline employees and lawyers, but that CEOs said it would cost too much money.
“If we the people had not stuck a gigantic pot of money out there to pay the claims, we wouldn’t have an airline industry,” Addicott said. “We bailed them out. Of course, a bunch of families opted under federal law to sue the airline industry directly and New York port and they received settlements after about 10 years, but yeah, that thought [locked cockpit doors] was thought of. And these thoughts need to be thought of about cyber [issues] now, not after the event.”
Security consultant Aviv warned that today’s technology makes cyber-theft relatively easy for hackers, from individuals looking to empty checking accounts to business competitors seeking trade secrets to governments hacking into other nations’ confidential data.
“I can easily, in minutes, get into your BlackBerry and monitor your activity,” Aviv said, “and get all the information, and you won’t even know about it. I can drive behind your car while you’re making phone calls on your BlackBerry or your other phones, and I have equipment that can listen to your conversations; you won’t know about it.”
He added with a laugh, “I’m not suggesting that I’m doing this, but the technology is available.
Photo: Seattle University Professor John McKay, left, with moderator Jose Gaitan, U.S. Attorney Jenny Durkan, Washington State Patrol Chief John R. Batiste, U.S. District Judge John Coughenour.
One positive change since 9/11, according to U.S. Attorney Durkan, is that federal and local law enforcers are working together much better now when it comes to disaster preparedness. “What we learned in 2001 is it doesn’t do you any good if some people have some of the information but they can’t share it with people who can do something about it.”
The topic turned to terrorism suspects being held at the Guantanamo Bay detention camp, and whether they should be tried in civilian (Article 3) or military courts. Judge Coughenour, who sentenced “millenium bomber” Ahmed Ressam to 22 years in prison, plus 5 years of supervision, argued forcefully that all prisoners should be tried in civilian courts. McKay agreed in general, but felt there should be exceptions; Durkan supported occasional exceptions.
“As judges and lawyers, we have been entrusted with a priceless heirloom by giants who preceded us, and those judges and lawyers held onto that precious heirloom through thin times: times of fear, civil war, international wars,” Coughenour said. “What bothers me the most is that our generation is going to be the one that pawns it because we’re afraid. I only hope that the next generation-the young lawyers in this room-will remember what our Constitution means to our country and internationally and we can regain the respect that we once had internationally, and that we have squandered in the last decades.”
Durkan agreed that the civilian courts are the proper venue for Guantanamo trials-but added, “There may be individual and isolated cases where the military tribunal is the appropriate forum, depending on the case, but … I think through the history of our country, one of the things we can be most proud of is our court system. … One of the most memorable events of my childhood was watching George Wallace stand in a schoolhouse door and say, No you can’t come in’ to two black people. He had to be pushed aside, but remember, the person who eventually walked those students through the door was a U.S. Marshall and deputy attorney general of the Justice Department. … Note in history, one of those students is now married to a man named [Attorney General] Eric Holder. … As lawyers, we have a special obligation, I think, to stand up for the courts and say our system of justice can handle it.”
Yes, civilian courts should try Guantanamo prisoners, McKay concurred-but with limits. “In certain circumstance, military tribunals are necessary,” he said. “I don’t think it’s appropriate to try an American citizen, for example, before a military commission. [But] I think you could ask the question why in the world Khalid Sheikh Mohammed, who never entered the United States, would be tried in an Article 3 [civilian] court in the United States: that he is the planner, he is the organizer, he is the brains behind the 9/11 attack; I think, pretty clearly, the chief conspirator in the 9/11 attacks. I’m not sure what he has done in his actions against the United States government, the United States interests, the United States citizens, that would merit an article 3 trial.”
Durkan elaborated: “It is the official policy and the official intent that this president and this attorney general believe that Guantanamo should be closed. [However,] not everything we hit is a nail. There may be an occasion in which a different type of tribunal is appropriate. That is [true] through the history of America. The Nuremberg trials were held in a system that was different and apart from our internal system because the world determined there was a different appropriate forum. Military tribunals can sometimes be appropriate when something is of a military nature or outside the country of the United States or non-citizens. I think that we can’t close any option, because what has changed is the nature of war. There are people who are very determined now who are waging war on us, and they aren’t just individual acts. They are sometimes conspiring and concerted acts, and so as the definition of war changes, we do have to be nimble in attacking the people who go to war against us, but what that doesn’t mean is that we sacrifice our ideals.”
Continuing his own thread, McKay added, “My quarrel with Judge Coughenour is more directed toward those who never entered the United States, who didn’t have any action with regard to the United States Justice System but were captured, for instance, in a field of battle and are being held in Guantanamo. So there need to be appropriate human rights and due process for those people, but I don’t think it’s the whole panoply of rights.”
Coughenour was quick with a retort: “If you look back at our history, there have been other times of crisis when we have trashed our Constitution. One of the greatest Americans who ever lived, Abraham Lincoln, suspended the great writ of habeas corpus during the Civil War. We interred Japanese Am citizens during World War II because we were afraid. We tried and executed the German saboteurs in NY in a matter of weeks because we were afraid during World War II. The common thread of these episodes in our history is that we look back upon them in shame. And I say to you I think we will look back on this period of our history with shame and be embarrassed that we trashed our Constitution because we were afraid.”
The final panel discussed insurance coverage for cyber-attacks-which are usually excluded from general policies, noted Kevin Kalinich, assistant general counsel for Aon Corp., which provides risk-management services. The panel urged businesses to add cyber-coverage to their insurance policies, saying the extra cost was far outweighed by the possible risk, such as being sued by customers whose financial information has been hacked and disseminated worldwide.
Leib Dodell, cofounder of ThinkRisk Underwriting Agency, said there are only two types of cyber-risk: media, or content; and data. Dodell is a former media attorney. Things have changed, he says, since those days:
“Everyone became a publisher.”