Jerrold Nadler, the Democrat who has represented New York’s Eighth Congressional District in the U.S. House of Representatives since 1992, spoke about post-9/11 civil liberties to a room full of NYU School of Law graduates on January 29 at the Annual Alumni Luncheon, held in the Waldorf-Astoria Hotel’s Starlight Roof.

Nadler, a Brooklyn native who served for 16 years in the New York State Assembly, recalled rushing back to New York from Washington, D.C., after hearing about the 2001 terrorist attack in Manhattan. “September 11 was a traumatic day, obviously, for our country and for the world,” Nadler said. “It brought to light a number of issues, and some profound questions about how we deal with civil liberties.”

“How do we deal with civil liberties in an atmosphere of terror and of warfare?” said Nadler, who is the chairman of House Subcommittee on the Constitution, Civil Rights, and Civil Liberties. “How do we deal with the consequences of the—from my point of view—very bad answers to those questions afforded by the prior administration? How do we undo the damages, and how do we set a new course to protect Americans in the future, both from terrorism and from abuses at the hands of their own government?”

Enumerating past examples of civil liberties abuses in times of national distress, including the Alien and Sedition Acts and the internment of Japanese Americans during World War II, Nadler deemed the Obama administration’s initial steps of condemning torture and promising to close Guantánamo a “good start,” but expressed disappointment in its subsequent actions. Among the acts Nadler decried were the administration’s identification of 50 detainees it considered too dangerous to release but against whom it had insufficient evidence for trials; its choosing among civilian trials, military tribunals, and indefinite detention in a manner Nadler suggested was a violation of due process engineered to always reach the government’s desired outcome; and its use of the state secrets doctrine.

“The state secrets doctrine, the way it’s been asserted, lets the executive be supreme and be the judge of its own conduct,” Nadler said, adding, “We must undo the state secrets doctrine as it is now, or there will be no limits ultimately on executive power, and that is not a country we want to live in.” He cited Binyam Mohamed v. Jeppesen Dataplan, Inc., an extraordinary rendition case in the U.S. Court of Appeals for the Ninth Circuit, as an example of the abuse of state-secrets privilege.

Nadler also discussed the Supreme Court opinion in Ashcroft v. Iqbal, which raised the threshold of pleading standards in civil cases and, he said, “slams the courthouse door on legitimate plaintiffs based on the judge’s subjective take on the plausibility of a claim before there’s very much or any evidence in the case. This will go a great distance toward rewarding any defendant who conceals evidence of wrongdoing.” Nadler is attempting to restore previous pleading standards through legislation.

“I am confident that when time has passed, we will teach in the law schools that this was a regrettable episode, like McCarthyism or the Palmer Raids,” Nadler said of the post-9/11 limitations on civil liberties. “Our job is to undo much of this and to get a proper balance to minimize the damage to people’s rights and liberties now, and to prevent it from being institutionalized.”

The luncheon also included remarks from Katherine Frink-Hamlett ’91, the outgoing president of the NYU Law Alumni Association, who received a citation for her service from Dean Richard Revesz, and the introduction of newly elected president Emily Campbell ’95.

Posted on February 3, 2010