Despite the injurious results of the instant terrorist attack, the policy of the governmental immunity doctrine seeks to promote the proactive, deliberate, and informed security procedures that were developed here. For example, the Port Authority solicited numerous expert opinions on the security risks and measures to be considered before allocating its police resources. While the Port Authority's decision-making could have proceeded along different acceptable paths of action, in this case, it reached a reasoned discretionary conclusion to heighten security in sectors of the WTC considered more susceptible to harmful attack. This is the type of assiduous behavior that governmental agencies should be encouraged to undertake in rendering informed decisions that involve the balancing of burdens and risks, competing interests, and allocation of resources. To hold otherwise would create a disincentive for governmental agencies to investigate these types of security threats. And to expose the Port Authority to liability because in the clarity of hindsight its discretionary determinations resulted in harm would engender a chilling effect on government and dissuade public entities from investigating security threats and exercising their discretion, especially in a time when the risk of terrorist attack is more apparent than ever before.

The 1993 bombing of the WTC by Islamic radicals, led by Ramzi Yousef [IPT backgrounder], killed six and injured 1,000 through a car bomb placed in the basement parking garage of the WTC. Five men were captured and sentenced to life in prison for the attack. After the bombing, 648 plaintiffs filed 174 negligence actions against the Port Authority for "alleged breach of its proprietary duty to maintain its premises in a reasonably safe condition." Negligence was assessed against the Port Authority after documents revealed that the WTC garage had been ignoring safety fears since 1984. The Port Authority police superintendent, at the time, stated the parking areas "[we]re accessible to the public and are highly susceptible to car bombings." Yousef's uncle is Khalid Shaikh Mohammed (KSM) [GlobalSecurity backgrounder; JURIST news archive], the alleged mastermind behind the 9/11 terrorist attacks [JURIST news archive]. KSM was captured in 2003 in Rawalpindi, Pakistan. In April US Attorney General Eric Holder [official website] announced that KSM and four others would be tried before a military commission [JURIST report] for their role in the 9/11 terrorist attacks.

Separation of proceedings will enable the Chamber to issue a verdict following a shortened trial, safeguarding the fundamental interest of victims in achieving meaningful and timely justice, and the right of [the defendants] to an expeditious trial.

Earlier this month, the ECCC concluded three days of hearings [JURIST report] in the Cambodian capital Phnom Penh to determine whether two of the four senior Khmer Rouge leaders were fit to stand trial on accusations of genocide and other war crimes. A court-appointed expert indicated that 79-year-old Ieng Thirith [ECCC backgrounder], the sister-in-law of Khmer Rouge leader Pol Pot, suffered from dementia and memory loss and needed additional psychiatric assessment [AFP report]. The expert found no major concerns with 84-year-old "Brother Number Two" Nuon Chea [ECCC backgrounder], though Chea contested the assessment. In May, a panel in the ECCC denied a motion for pretrial release [JURIST report] by former Khmer Rouge official Ieng Sary [ECCC backgrounder], 85, who served as deputy foreign minister under the regime during its reign in Cambodia from 1975-1979. Ieng's co-defendants Nuon Chea, Ieng Thirith and Khieu Samphan [ECCC backgrounder] have all challenged pretrial custody unsuccessfully.

Last month Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by the North Atlantic Treaty Organization (NATO) [official website]. Although NATO was mandated by the UN to use force in order to stop Muammar Gaddafi from fomenting violence upon Libyan citizens, the campaign has allegedly gone beyond the scope of protecting civilians and recently led to the death of 85 civilians in one night after NATO forces bombed a residential area supposedly housing a rebel command center. In June, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports]. The report claims Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment and other severe deprivations of physical liberties, torture, forced disappearances and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."

The Bloody Sunday inquiry is the longest and most expensive public investigation in British legal history. The government deposed more than 900 witnesses [JURIST report] in 432 days of testimony and took more than 1,500 written statements. The soldiers held responsible for the killings attempted to take action against the inquiry in 2004, arguing against the use of any standard below the criminal standard of proof because of the potential consequences facing them. Inquiry Chairman Lord Saville of Newdigate determined that the tribunal would not use a criminal standard of proof [JURIST report] to find if a soldier shot anyone without justification because the tribunal was merely investigating the circumstances surrounding the deaths and issuing a report. The investigation came to fruition after the Irish government in 1997 produced new evidence that cast doubts on the conduct of the original tribunal established at the time of the incident, which labeled the victims as bombers and gunmen.

The potential liability under state law of military contractors for actions taken in connection with U.S. military operations overseas would similarly affect the availability and costs of using contract workers in conjunction with military operations. In this case, that uniquely federal interest was especially important in view of the recognized shortage of military personnel and the need for assistance in interrogating detainees at Abu Ghraib prison. Not only would potential tort liability against such contractors affect military costs and efficiencies and contractors' availability, it would also present the possibility that military commanders could be hauled into civilian courts for the purpose of evaluating and differentiating between military and contractor decisions. That effort could become extensive if contractor employees and the military worked side by side in questioning detainees under military control, as the complaint alleges in this case. Moreover, such interference with uniquely federal interests would be aggravated by the prison's location in the war zone. Finally, potential liability under state tort law would undermine the flexibility that military necessity requires in determining the methods for gathering intelligence.

US military personnel have also been accused of torturing detainees at Abu Ghraib prison. Army Spc. Charles Graner [JURIST news archive], the convicted ringleader of abuses committed at the prison, was released [JURIST report] last month for good behavior after serving more than six-and-a-half years of his 10-year sentence. Graner was convicted [JURIST report] in 2005 of conspiracy, assault, maltreating prisoners, dereliction of duty and committing indecent acts and received the longest sentence of the six others involved in the abuses. In June, the US Department of Justice (DOJ) [official website] initiated a grand jury investigation [JURIST report] into the torture and death of a detainee at Abu Ghraib. Manadel Al-Jamadi was captured [JURIST report] by US Navy SEALs in 2003 and held in Abu Ghraib as a "ghost detainee," or unregistered prisoner, for his suspected involvement in the bombing of a Red Cross center in Baghdad that killed 12 people. The US military has never revealed the exact circumstances of his death, which was ruled a homicide [JURIST report]. Reports show he died while suspended by his wrists, which were handcuffed behind his back.

Last year, Sara Totonchi [profile] of the Southern Center for Human Rights warned [JURIST comment] that the questions and doubts surrounding Davis' case would make his execution a travesty of justice. Her writing came a few weeks after the US District Court for the Southern District of Georgia [official website] denied [JURIST report] Davis' habeas corpus petition even though the presiding judge noted numerous problems with the evidence presented by the State of Georgia in securing Davis' conviction. The Supreme Court had instructed the district court to examine new findings of fact in the case after taking the rare step of granting [JURIST report] Davis' original writ of habeas corpus [cert. petition, PDF], despite Davis' exhaustion of his appeals under the Antiterrorism and Effective Death Penalty Act [text]. A few weeks after the court had declined to grant certiorari [JURIST report] in 2008, the US Court of Appeals for the Eleventh Circuit [official website] granted a provisional stay of execution [JURIST report], directing the parties to address through briefs whether Davis could meet the stringent requirements of federal law that would permit him to file a second habeas corpus petition for federal review of his case. In 2006, the American Bar Association [association website] recommended a moratorium on the death penalty in Georgia and in Alabama [JURIST reports] after an ABA panel study identified numerous flaws in the states' criminal justice systems that it claimed greatly compromised the fair administration of capital punishment. More recently a federal judge ruled [JURIST report] in June that Florida's death penalty procedures are unconstitutional, a holding Richard Dieter [profile] of the Death Penalty Information Center says highlights the arbitrariness of the death penalty [JURIST comment] and the problems with a state exacting an irreversible punishment. Additionally, in March of this year Illinois Governor Pat Quinn [official website] signed into law a bill that abolished the death penalty [JURIST report] in that state.