From driver’s licenses and airport security to campaign claims and criminal proceedings, the legal aftermath of Sept. 11 reached Minnesota and Wisconsin.
The nation is marking the 25th anniversary of the 9/11 terrorist attacks, which took place in New York City, Washington, D.C., and near Shanksville, Pennsylvania.
Many of the civil and criminal proceedings prompted by the attacks arose near those locations. Among the most consequential is the long-delayed military prosecution of Khalid Sheikh Mohammed and three alleged accomplices at Guantánamo Bay. Their trial is now scheduled to begin in June 2028.
Last month, the presiding military judge excluded Mohammed’s 2007 statements to FBI agents, finding that prosecutors had failed to prove they were given voluntarily after his coercive treatment in CIA custody.
But litigation related to the horrific events of that day extended far beyond the sites of the attacks. Several cases arose in and around the Twin Cities and elsewhere in the Upper Midwest. They are worth recalling on the 25th anniversary.
License Litigation
Jewish Community Action and other petitioners challenged an effort by the Minnesota Department of Public Safety (DPS) to tighten identification requirements after 9/11 in Jewish Community Action v. Commissioner of Public Safety.
The department described driver’s licenses and state identification cards as “gateway documents” whose misuse could allow terrorists to establish ostensibly legitimate identities, blend into society and plan sabotage.
The DPS rules required new applicants for a driver’s license or state identification card to:
- Present a primary document, such as a birth certificate, and a secondary document that included photo identification;
- Prove Minnesota residency and either U.S. citizenship or lawful presence in the country; and
- Permit a full-face photograph with the head and face unobscured and uncovered, eliminating the existing exception for applicants with religious objections.
The lawsuit claimed the regulations were invalid because DPS had bypassed the normal rulemaking process, including public review, comments and the opportunity for a hearing.
An administrative law judge initially disapproved the rules, finding that DPS had not established the grounds necessary to use an expedited process. The chief administrative law judge later approved them under the statutory good-cause exemption.
The Minnesota Court of Appeals agreed that the desire to act swiftly after 9/11 was consistent with the public interest because of the seriousness and “immediacy of the threat” posed by clandestine terrorism. The rules also were generally “tailored to address a problem of public safety” by improving the accuracy of identification.
But bypassing the regular rulemaking process was impermissible. DPS had not shown how long the normal process would take, how that delay would specifically harm the public or how the expedited procedure would better serve the public interest.
The court therefore declared the rules invalid on procedural grounds. Replacement rules were published in the Minnesota State Register on Sept. 15, 2003.
Pair of Proceedings
A pair of Minnesota proceedings involving government actions also grew out of the aftermath of 9/11.
One month after the attacks, a University of Minnesota police officer suffered a career-ending back injury while moving a suspicious television near the entrance to a campus building. His claim for disability benefits was approved, but the Public Safety Officers Benefit Eligibility Panel denied his request for continued employer-provided health insurance. The panel reasoned that lifting the television was not an occupational duty “unique to the job.”
The Minnesota Court of Appeals reversed in In re Claim for Benefits by Sloan.
The officer had examined the television and found no explosives or other dangerous objects. He nevertheless concluded that it should be removed because its conspicuous presence, less than a month after 9/11, was causing anxiety among bystanders.
The court held that his decision was a reasonable exercise of professional judgment calculated to protect the public welfare. The panel’s “unique-to-the-job” standard did not appear in Minn. Stat. § 299A.465, conflicted with the statutory language and was arbitrary and capricious.
A second case arose from the 2006 mayoral campaign in Forest Lake. After candidate Stev Stegner was portrayed by supporters of his opponent as a Muslim terrorist linked to al-Qaida, he pursued claims under Minnesota statutes prohibiting false campaign material and undue influence on voters.
His claims failed in State ex rel. Stegner v. Smith.
The Minnesota Court of Appeals characterized the accusations against Stegner as “reprehensible.” But the false-campaign-material statute did not apply because the allegedly false statements were made orally and therefore did not constitute literature, publications or other campaign material covered by Minn. Stat. § 211B.06.
The undue-influence claim under Minn. Stat. § 211B.07 also failed because the complaint did not allege that the speakers had threatened force, retaliation or other harm against particular voters to compel them to vote a certain way. Although the statements might have supported a defamation claim, they did not fall within the more limited campaign statute.
Airport Appeals
Airports, not surprisingly, also became the setting for post-9/11 litigation.
In Guma v. Globe Security Screeners, former private security screeners at Minneapolis–St. Paul International Airport sought special temporary extended unemployment benefits after exhausting their regular benefits.
The screeners lost their jobs when the newly created Transportation Security Administration took over airport security functions. Although the federal takeover resulted from 9/11, the Minnesota Court of Appeals held that the workers did not qualify for the extended benefits.
The temporary program covered airport workers displaced because of a reduction in air-carrier service following the attacks. The immediate cause of the screeners’ unemployment was the federal takeover of airport security, not a reduction in airline service.
A Muslim pilot of Indian descent also lost a post-9/11 discrimination claim before the U.S. Court of Appeals for the Eighth Circuit in EEOC v. Trans States Airlines, Inc..
Mohammed Shanif Hussein, a native of Fiji who had been raised as a Muslim, was fired shortly after 9/11. Another pilot reported seeing him drinking in a hotel bar while wearing clothing that identified him as a pilot and making gestures or comments that the observer interpreted as supportive of the attacks. Hussein denied expressing approval of the attacks.
The Equal Employment Opportunity Commission brought claims alleging discrimination based on race, religion and national origin. But the airline maintained that it discharged Hussein, who was still a probationary employee, because he violated company policy by appearing in a bar while in uniform.
The Eighth Circuit upheld dismissal of the claims. It found insufficient evidence that the airline’s stated reason was a pretext for discrimination or that the decision-maker knew Hussein’s race, religion or national origin and relied upon those characteristics in terminating him.
Rape Ruling
The date Sept. 11, 2001, also figured in a Wisconsin sexual-assault case, State v. Nelson.
Jarmal Nelson pleaded guilty to three counts of first-degree sexual assault, kidnapping and armed burglary arising from an attack in Milwaukee during the early morning hours of Sept. 11. Before sentencing, he sought to withdraw all five pleas because his first attorney had not told him that the sexual-assault convictions could subject him to civil commitment as a sexually violent person after completing his prison sentence.
The Wisconsin Court of Appeals held that Nelson had established a fair and just reason to withdraw his pleas to the three sexual-assault charges. It also concluded that the state had not shown it would be substantially prejudiced by the withdrawal, even though the sexual-assault victim’s whereabouts were temporarily unknown.
The available evidence included a DNA match, Nelson’s confession and testimony from another victim. The appellate court concluded that this evidence was sufficient to support convictions even without the sexual-assault victim’s testimony.
But Nelson was not permitted to withdraw his pleas to kidnapping and armed burglary. Those two convictions remained intact because the court found that partial withdrawal did not require repudiation of the entire plea agreement.
These cases show that although the attacks occurred far away, 9/11 had a legal impact here, too.
