By Dan Christensen, FloridaBulldog.org
As the monumental case titled In Re Terrorist Attacks on September 11, 2001 plods on toward a judge’s decisive ruling on whether Saudi Arabia should be dismissed as a defendant, lawyers on both sides are in a slugfest over what evidence the public should get to see.
At the same time, lawyers for the 9/11 survivors and families of the nearly 3,000 dead and 25,000 injured have once again accused the FBI of foot-dragging in response to judicial orders that it “make a compelling showing” to justify its document sealings and redactions of personal identifying information and other material.
Lawyers representing The New York Times, CBS News, CNN, NewsNation and the nonprofit news sites ProPublica and Florida Bulldog intervened in support of opening up the long-hidden evidence before a Wednesday hearing in federal court in New York.
During the three-hour hearing, New York Assistant Attorney General Sarah Normand said the 9/11 civil case has resulted in an unparalleled release of FBI records – many of which have yet to be released to the public.
“As far as we can tell, it’s unprecedented that the FBI would have produced the level of both the volume and the nature and the scope of material as it did in this case, including materials produced as a result of a declassification order by the President of the United States, which then resulted in the disclosure of yet more information,” she said.
A half-dozen attorneys for both sides and the government sought to convince U.S. District Judge George Daniels of the rightness of their positions.
The judge seemed torn about what to do. Initially, without talking specifics, he disclosed that there has been violence and threats of violence against unnamed individuals involved in this “politically and internationally charged” case.
“I think the record reflects that I should not put these other individuals at greater risk by defining them as FBI witnesses,” Daniels said.
Later, after listening to a lawyer for Saudi Arabia argue for keeping numerous documents it disclosed during the litigation secret, Daniels cited his practical problem with that. “Explain to me how I’m supposed to conduct a public trial?” he asked.
Still, at the end of the hearing Daniels said, “I’m gonna try and keep us on schedule. I’m gonna try (to decide) within the next week.”
On July 31, the two sides will be back in court for oral arguments on the kingdom’s motion to dismiss.
MEDIA INTERVENES
Leading the media push for openness was New York Times senior vice president and deputy general counsel David McCraw. He wrote that public access “is especially crucial here, where the documents at issue relate to the Kingdom of Saudi Arabia’s dispositive motion in a case of immense public interest and importance.”
Attorney Kel McClanahan, executive director of the nonprofit public interest law firm National Security Counselors, wrote to Daniels on behalf of Florida Bulldog and reporters Anthony Summers and Robbyn Swan, authors of The Eleventh Day: The Full Story of 9/11, which was a finalist for the Pulitzer Prize for history in 2012.
“Intervenors have amassed a significant amount of information about 9/11 over the past sixteen years and have conducted a significant amount of specialized analysis of the information they have collected. The Florida Bulldog has successfully litigated two Freedom of Information Act cases in the Southern District of Florida and was the first media outlet to obtain records about Operation Encore –- the Federal Bureau of Investigation’s secret follow-up investigation into suspected complicity by Saudi Arabia in the attacks,” McClanahan wrote. He added it has “reported extensively” on the case “more so than most in the news media.”
Plaintiffs’ lawyers have assembled untold thousands of pages of evidence since the long-running case got back on track in 2018 following enactment of the Justice Against Sponsors of Terrorism Act. JASTA specifically allowed victims of attacks on U.S. soil to pursue claims against sovereign nations they believe sponsored the attack.
The evidence – FBI’s decade-long secret investigation of possible Saudi complicity dubbed Operation Encore; government documents obtained from Saudi Arabia; and dozens of sworn statements from witnesses, suspects, experts, Saudi ministers, a Saudi ambassador and even members of Saudi’s royal family – has from the start been subject to court-approved FBI protective orders that have walled off documents and severely limited what the public can see.
Those protective orders, ostensibly seeking to shield sensitive national security and certain other information, are so encompassing that they have even kept 9/11’s survivors and families themselves in the dark about developments in their own case.
“This is a highly unusual and problematic circumstance,” wrote attorneys Robert Haefele of South Carolina’s Motley Rice law firm, Sean Carter of Philadelphia’s Cozen O’Connor and Steven Pounian of New York’s Kreindler & Kreindler. “The unusual conditions in this case have made it impossible for counsel to fully apprise the plaintiffs of key developments in their case, including the nature and import of evidence obtained through discovery.”
WHAT SAUDI ARABIA WANTS HIDDEN
Saudi Arabia has denied any involvement in 9/11 and reasserted its claim to sovereign immunity in its arguments for dismissal. In a July 10 letter, its attorney noted that both sides “have filed 2,449 documents, of which Saudi Arabia requests that 177 remain wholly under seal, with redactions to an additional 56.”
At Wednesday’s hearing, plaintiffs’ lawyer Gavin Simpson called that a “phony claim.”
“There are not 2,449 documents at issue. Hundreds of that number are in fact part of a single exhibit, Exhibit 2, which is the Executive Order production released under President Biden’s September 3rd, 2021 Executive Order,” Simpson said. “What Saudi Arabia is doing is attempting to narrow severely the reviewable record in order that it can rely solely on its own sharply disputed claims about the evidence and advocate that the comprehensive and compelling proof that plaintiffs have submitted (to counter the kingdom’s motion to dismiss) should somehow be ignored or dismissed or sidelined, or in this case be kept under seal.”
Attorney Michael Kellogg, of Washington’s Kellogg, Hansen, Todd, Figel & Frederick, cited legal precedent to assert “higher values support maintaining the confidentiality of these documents, including compliance with the United States’ treaty obligations, principles of international comity, and legitimate privacy interests of third parties.”
He said Saudi Arabia could have invoked the Vienna Conventions on Consular and Diplomatic Relations to withhold such documents as “inviolable.”
“Instead it took the extraordinary step of voluntarily producing them. The Court’s protective order served as a ‘powerful incentive’ for Saudi Arabia to make this voluntary production…If the Court now rules that those documents must become public merely because Plaintiffs have filed them indiscriminately in large batches, it will set a precedent that will discourage future voluntary disclosures by Saudi Arabia and other foreign sovereigns,” Kellogg wrote.
That protection should extend to Prince Abdulaziz bin Fahd bin Abdulaziz al Saud, who provided documents voluntarily to Saudi Arabia after the court directed Saudi Arabia to produce them, Kellogg wrote. What those documents are about was not disclosed.
SAUDIS: RESPECT TREATY OBLIGATIONS
The only other individual Kellogg mentioned by name is Musaed al Jarrah, who prior to 9/11 was the Saudi embassy’s director of Islamic Affairs.
Jarrah, whom a 2003 FBI report says was “heavily connected/linked to Saudi/Sunni extremists operating inside the U.S.,” is a key figure in the case. He is identified in multiple other FBI reports as having “tasked” Saudi spy Omar al Bayoumi and a fellow cleric and consular official in Southern California, Fahad al Thumairy, with aiding the first two 9/11 hijackers to enter the U.S. via Los Angeles International Airport in January 2000.
“Saudi Arabia has also proposed redactions for certain material concerning Musaed Al Jarrah that the Court has already ordered sealed as irrelevant, but that Plaintiffs against seek to file publicly,” he wrote. Specifically, Kellogg referred to Jarrah’s June 17, 2021 deposition. The deposition was leaked to a Yahoo! News reporter who reported it contained statements that FBI agents found “numerous” child porn images on Jarrah’s computer in 2004-2005.
Further, Kellogg wrote, “The importance of this case derives in part from Saudi Arabia’s status as a foreign sovereign and a long-standing ally and security partner of the United States. That relationship cuts in favor of respecting the United States’ treaty commitments and of ‘taking care’ to demonstrate due respect…for any sovereign interest expressed by a foreign state as a matter of international comity.”
Also on July 10, lawyers for Damien Williams, U.S. Attorney for the Southern District of New York, sent an eight-page letter to presiding magistrate Sarah Netburn stating that the bureau had completed its review of both sides’ factual averments totaling 2,500 pages. The letter said the FBI “is on track” to complete its review of most accompanying exhibits by July 31, when oral arguments on the Saudi’s motion to dismiss are to be heard.
“The majority of the information currently sealed at the request of the FBI is subject to the Privacy Act of 1974,” Williams’s lawyers told the court. As it has before in this case, the FBI argued that privacy rights trump the public’s right to know the facts about why 9/11 happened.
“While the public may have a strong interest in knowing what facts were gathered as a result of an FBI investigation, the FBI does not agree that there is a strong public interest in knowing an individual’s status as a subject. The fact that someone is a subject of an investigation is not proof or even evidence that they engaged in any illegal conduct,” Williams’s attorneys wrote. “Yet publicizing one’s status as a subject of an FBI investigation may be interpreted by the public as evidence of some guilt.”
FBI ‘MISGUIDED’
The plaintiffs’ lawyers responded two days later, renewing their argument that the Privacy Act does not apply and calling the FBI’s reliance on it “misguided.”
The FBI “fails to acknowledge the degree to which the delays and complexities of the process have been driven by its own unreasonable insistence on persisting with Privacy Act-driven reviews that are divorced from the actual standards governing sealing of judicial documents,” they wrote. “The FBI has been conducting time-consuming reviews of all of the submissions, in order to mechanically impose Privacy Act redactions of names and other identifying information of individuals at the very center of the presents disputes, without regard to the intensity of the public’s interest in the information about those individuals.”
Much of that time has been wasted on redacting the names of “22 individuals whose relationships, interactions, and activities lie at the very core of the issues before the court.” Each of them “feature prominently” in both parties’ previous filings and as a result there is “a clear entitlement of public access” to them, the plaintiffs’ lawyers wrote.
At Wednesday’s hearing, New York Assistant U.S. Attorney Normand cautioned the court that in fact “we’re talking about hundreds and hundreds of individuals whose names and private information appear in Exhibit 2.” She said those individuals “cooperated with the FBI or about whom the FBI may have received information from witnesses.”
While some of that information “may be relevant to the court’s inquiry and should be unsealed,” Normand said, “we urge the court to do that on an individualized basis…It’s not just the privacy interests of those individuals that are at stake here, the FBI also has a compelling interest in avoiding wholesale disclosure of personal identifying information of individuals who cooperate with a counterterrorism investigation.”
The plaintiffs agreed that there are many more names involved. Their letter cites two of their exhibits “which identify various additional individuals who were among (1) the 29 persons in attendance at Bayoumi’s San Diego welcome party for the hijackers…and (2) the 50 additional individuals…who played key roles in various relevant events and relationships. None of the individuals identified in those exhibits should be subject to any name-redactions.”
Bayoumi has been previously identified in FBI documents as a Saudi spy with links to known terrorists who provided logistical help for the first two 9/11 hijackers to arrive in the U.S. – Nawaf al Hazmi and Khalid al Mihdhar – that included securing them housing in San Diego. A video of the welcome party was obtained by police in London after Bayoumi was briefly detained shortly after the attacks. Lawyers for the plaintiffs have accused Bayoumi of helping to lead a “support network” for the hijackers.
Florida Bulldog reported in February that plaintiffs’ lawyers also obtained a copy of another video shot and narrated by Bayoumi in 1999 that former FBI agents believe depicts him “casing” the U.S. Capitol as a possible site for an attack. Last month, the CBS Evening News aired the video.
On 9/11, United Airlines Flight 93 crashed into a field in Pennsylvania after passengers stormed the cockpit following a takeover by al Qaeda hijackers who were steering it toward Washington. It has long been thought that the Capitol, or possibly the White House, was their intended target.
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