By Dan Christensen, FloridaBulldog.org
Accusing the FBI of years of dishonesty in handling Freedom of Information Act requests, a legion of news organizations and support groups asked a federal appeals court Monday to protect Americans’ rights under the law.
The media’s vigorous arguments were made in a friend-of-the-court brief filed in Florida Bulldog’s recent appeal of a Miami judge’s June 29 ruling that would allow the FBI to keep secret thousands of pages of records about an apparent Saudi support network for the 9/11 hijackers in Sarasota and other information about the terrorist attacks of Sept. 11, 2001.
“The FBI’s conduct of FOIA litigation, in this case and numerous others, denies the public its right to inspect agency records, in violation of Congress’ statutory mandate of disclosure,” says the 48-page brief written by attorneys Charles D. Tobin and Steven D. Zansberg of the Washington, D.C. law firm Ballard Spahr.
“Left undisturbed, the judgment below will deprive the appellants, and the American people, of FOIA’s promise and purpose ‘to open agency action to the light of public scrutiny.’ It will also leave unanswered disturbing questions about the events of 9/11, perhaps the most traumatic shared experience in our nation’s history.”
The news organizations that signed on to the amicus brief filed in the 11th Circuit Court of Appeals in Atlanta represent many of the nation’s reporters, editors and photographers, as well as tens of millions of readers, viewers and listeners. The organizations are the American Society of News Editors, Associated Press, Association of Alternative Newsmedia, Dow Jones, Fox Television Stations, Gannett, Gatehouse Media, Gray Television Group, The National Press Club, The National Press Photographers Association, The New York Times, The News Media Alliance, The Reporters Committee for Freedom of the Press, Radio Television Digital News Organization, Society of Professional Journalists, Tegna and WP Company (The Washington Post).
“This brief shows the national and international importance of the Bulldog’s groundbreaking 9/11 work,” said Miami attorney Thomas Julin, who represents Florida Bulldog.
Sen. Graham’s brief
Also filing a brief yesterday was former Florida Sen. Bob Graham, who as chairman of the Senate Intelligence Committee served as co-chair Congress’s Joint Inquiry into 9/11. Graham’s brief asked the appeals judges to reverse Miami U.S. District Judge Cecilia Altonaga’s ruling, citing “pervasive” FBI over-classification of records that “is inappropriate and contrary to consistent findings that over-classification contributed to the U.S.’s inability to detect or disrupt the 9/11 attacks.”
Atlanta attorney David A. Terry of the Cozen O’Connor law firm filed Graham’s brief.
Florida Bulldog, working with Irish author Anthony Summers, reported in September 2011 about a previously unknown FBI investigation of Abdulaziz and Anoud al-Hijji, a Saudi couple with ties to the Saudi royal family, who moved abruptly out of their Sarasota area home in an upscale gated community about two weeks before 9/11 – leaving behind their cars, clothes, furniture and other personal belongings. The story reported the FBI ultimately linked terrorist figures, including 9/11 ringleader Mohamed Atta, to the al-Hijji residence via gatehouse security records and the analysis of phone records.
Sen. Graham has said the FBI never disclosed its Sarasota investigation to congressional investigators.
After the story was published, the FBI confirmed it had investigated but said it found no connections to 9/11. The FBI also disputed Graham, saying it had disclosed its investigation to Congress.
After a year of fruitless Freedom of Information Act requests, Florida Bulldog’s parent company, Broward Bulldog Inc., sued seeking the FBI’s file on the matter. Six months later, the FBI released 31 redacted pages about Sarasota, including an April 16, 2002 report written by Agent Gregory Sheffield that flatly contradicted the FBI’s public account.
“Further investigation” of the Sarasota Saudis “revealed many connections” between them and “individuals associated with the terrorist attacks on 9/11/2001,” said the report, which went on to recount how a family relative was a student at Huffman Aviation, the flight school at nearby Venice Municipal Airport attended by Atta and Marwan al-Shehhi, who flew the two planes that slammed into the Twin Towers.
Other parts of the 2002 report were censored on grounds of national security.
The FBI’s 9/11 Review Commission was authorized by Congress to, among other things, evaluate new evidence. Its three members were chosen, paid and briefed by the FBI. Also known as the Meese Commission, after its most prominent member, Reagan-era Attorney General Edwin Meese, the group began work in early 2014, but held no public meetings. It issued a report in March 2015.
A three-page section titled “The Sarasota Family” quoted the FBI as discounting its own April 2002 report, calling it ‘poorly written’ and wholly unsubstantiated.” The commission called no witnesses to what happened, however, and did not address any other aspect of the investigation.
Florida Bulldog soon filed a Freedom of Information Act request with the FBI for the Meese Commission’s files. After no response was forthcoming, Broward Bulldog Inc. sued in June 2016.
In dribs and drabs over the following year, the FBI disclosed hundreds of pages of records – most completely blanked out, others often heavily censored. Judge Altonaga’s order allowed the FBI to withhold most of its records, but also required it to release some small, but potentially significant, sections. The FBI, however, has yet to do so.
The Bulldog filed its 75-page appeal brief last week, asking the judges to order Altonaga to hold a Freedom of Information Act trial to determine whether the FBI properly searched and censored records about Meese Commission.
“Paramount public interest”
Monday’s amicus brief by the news organizations called the FBI records at issue, and the bureau’s “subsequent, unexplained about-face on what that investigation found,” matters of “paramount public interest.”
It specifically criticized Altonaga for accepting “at face value the inherently self-contradictory declarations of FBI Records Section Chief David Hardy.”
“As he has done in FOIA cases filed against the FBI across the nation, Mr. Hardy once again attested that his agency had diligently conducted an adequate search, even though his declarations failed to describe with any specificity precisely which records repositories were searched or which search terms were utilized,” the brief says. The brief goes on to say that such “standard” FBI litigation practices prevent those seeking documents the ability “to challenge through cross examination or countervailing evidence.”
“The FBI’s clear strategy in litigating this FOIA case has been to hide the ball from records requesters by providing vague explanations for its withholding decisions, lacking any detail that would permit meaningful rebuttal or challenge,” the brief says. “The FBI also routinely files ex parte declarations with the trial court to justify its withholding decisions, obscuring the key component of the adjudicatory process from public view.”
The brief likens that process to “relegating FOIA requesters to shadow boxing while blindfolded.”
“Were this court to affirm the FBI’s hide-the-ball strategy, future FOIA plaintiffs will be severely hampered in pursuing government records that, as here, are of the utmost public concern.”