Saudi Arabia cites FBI’s Meese Commission in asking judge to toss 9/11 victims’ lawsuit

By Dan Christensen, FloridaBulldog.org 

New York City’s annual 9/11 memorial tribute to the fallen.

Forced back into court by an act of Congress and faced with tens of billions of dollars in potential civil liability, oil-rich Saudi Arabia is asking a U.S. judge again to throw out a lawsuit brought against it by thousands of 9/11 victims.

Lawyers for the kingdom moved last week to dismiss the massive case pending in federal court in New York City, citing “baseless accusations that Saudi Arabia conspired to commit a horrific crime against its longstanding ally the United States by knowingly funding the terrorist attacks of September 11, 2001.”

The plaintiffs are survivors of the attacks, family members of the dead, businesses and insurance companies.

Saudi Arabia’s filing responded to their 100-page amended complaint brought in March against the kingdom and its official charity, the Saudi High Commission for Relief of Bosnia and Herzegovina. The complaint followed Congress’s passage last year – over a veto by President Obama – of the Justice Against Sponsors of Terrorism Act (JASTA), which allows Americans to sue foreign states for acts of terrorism that occur on U.S. soil.

Earlier, a federal judge and a U.S. appeals court had dismissed Saudi Arabia and the Saudi High Commission from the case after determining they were protected by the Foreign Sovereign Immunities Act. JASTA removed that protection.

The new court filings show the Saudis are relying heavily on the findings of the FBI’s secretive 9/11 Review Commission to discredit the plaintiffs’ claims that the kingdom is liable for the deaths, injuries and destruction caused by the September 2001 terrorist attacks. Nearly 3,000 people died in the attacks and thousands more were injured.

The 9/11 Review Commission – also known as the Meese Commission after its most prominent member, Reagan-era Attorney General Ed Meese – was authorized by Congress to conduct an “external review” of the FBI’s post-9/11 performance, and to assess new evidence. As Florida Bulldog has reported, however, the commission held no public hearings, had no subpoena power and was largely spoon-fed information by the FBI. Meese and the two other commissioners were chosen and paid by the FBI.

Meese Commission discredits report

The Meese Commission issued a 127-page report in March 2015, which among other things sought to discredit an April 2002 FBI report that said agents had found “many connections” between Saudis living in Sarasota and individuals involved in the 9/11 plot and requested further action be taken.

The April 2002 report, released to Florida Bulldog by the FBI in 2013 amid ongoing Freedom of Information litigation, corroborated a September 2011 Florida Bulldog story that disclosed the existence of the FBI’s Sarasota investigation and reported the FBI had kept it secret from Congress. The story was co-reported by Irish author Anthony Summers, who obtained the initial information about the Sarasota probe.

FBI Director James Comey, second from right, is flanked by 9/11 Review Commissioners Tim Roemer, right, Ed Meese and Bruce Hoffman, far left, on March 23, 2015. Photo: FBI

The FBI told the Meese Commission the 2002 report “was ‘poorly written’ and wholly unsubstantiated.” The commission’s report, however, offered no explanation of the basis for that conclusion. Likewise, the commission apparently never heard directly from the agent who wrote the report, relying instead on the FBI’s characterization of what he had to say.

“The FBI told the Review Commission that the (report) was apparently based solely on unsubstantiated reports from others and there was no documentation supporting its allegations,” the commission’s report says.

No other FBI records to support or explain the commission’s work were made public.

Florida Bulldog sued the FBI and the Department of Justice in June 2016 for access to all Meese Commission transcripts, reports and the like after the bureau failed to respond to a Freedom of Information Act request. The lawsuit forced the FBI to review 1,858 pages of records and to release parts of 713 pages. The FBI withheld 1,145 pages.

Florida Bulldog and its attorneys believe the FBI has not acknowledged the existence of many additional pages of commission records.

Among the released records was a heavily censored Oct. 5, 2012 FBI report emblazoned with a logo that depicts the World Trade Center’s Twin Towers inside a pentagon against a backdrop of an American flag. The FBI considered the report so sensitive that even its title was classified “in the interest of national defense or foreign policy.”

The 2012 FBI report

Declassified portions, however, show that at that time federal prosecutors and FBI agents in New York were zeroing in on an apparent U.S. support network for Nawaf al-Hazmi and Khalid al-Mihdhar, two of the five 9/11 hijackers who were aboard American Airlines Flight 77 when it crashed into the Pentagon. Among other things, the report discusses how in June 2012 a team of New York investigators traveled to London “to exploit evidence seized in 2001 in New Scotland Yard’s searches of Omar al Bayoumi’s residences and offices.”

At the time of its release in December, Sean Carter, a Philadelphia attorney for the plaintiffs, called the 2012 report “a powerful and important disclosure.” Carter appended a copy to the 9/11 victims’ amended complaint when it was filed March 17.

Attorneys Michael K. Kellogg, left, and Sean Carter.

The 91-page Saudi response memorandum filed last week by Washington, D.C. attorney Michael Kellogg attacks the 2012 FBI report as unreliable, noting that the names of its authors are redacted.

The memo says the FBI report “contains hearsay statements” about a pair of Saudis – Omar al-Bayoumi and Fahad al-Thumairy – who are identified as “main subjects” of the probe of  “individuals known to have provided substantial assistance” to Hazmi and Mihdhar in Southern California following their arrival in the U.S. in January 2000.

The FBI report says Bayoumi, a suspected Saudi agent; Thumairy, a Saudi diplomat and imam at the King Fahd Mosque in Los Angeles, and a third person whose name was kept secret on grounds of national security “provided (or directed others to provide) the hijackers with assistance in daily activities, including procuring living quarters, financial assistance, and assistance in obtaining flight lessons and driver’s licenses.” The investigation was seeking to prove the trio knew that Hazmi and Mihdhar “were here to commit an act of terrorism.”

“A statement that an investigator ‘seeks to prove’ a legal conclusion is neither an appropriate allegation nor competent evidence,” the Saudi memo says. “That is especially so here because the investigator’s attempt failed: the 9/11 Review Commission later found as of March 2015 that new evidence available to the FBI was ‘not sufficient’ to support the conclusion that plaintiffs advocate.”

But the commission did not release the 2012 report when it issued its report, nor does its report assess the 2012 disclosures except to note it said al-Thumairy “immediately assigned an individual to take care of al-Hazmi and al-Mihdhar during their time in the Los Angeles area.”

Status of 2012 probe unknown

Likewise, the outcome of the 2012 investigation is not known. No other documents released by the FBI address it.

Said former Florida Sen. Bob Graham, who co-chaired Congress’s Joint Inquiry into 9/11: “If the decision was not to proceed, why? And if it was to proceed, what’s the status?”

From left to right: Dick Cheney, Prince Bandar, Condoleezza Rice, and George W. Bush, on the Truman Balcony of the White House on September 13, 2001. [Source: White House via HistoryCommons.org]

The Saudi memo also attacks as unreliable and insufficient two other documents about 9/11 the plaintiffs rely on, “the 28 pages” and “Document 17.”

The 28 pages refers to a long-suppressed chapter of the Joint Inquiry’s 2002 report about apparent Saudi support for the 9/11 hijackers. The 28 pages were ordered released last summer by President Obama. Among other things, they showed that Saudi Prince Bandar – who on 9/11 was his country’s ambassador to the U.S. – had connections to a major al-Qaeda figure now detained in Guantanamo Bay and others suspected of helping hijackers Hazmi and Mihdhar.

Document 17 is a set of 2002 work plans for staffers of the original 9/11 Commission detailing issues and outstanding questions regarding possible Saudi links to the attacks. It was declassified and released by the National Archives in 2015.

Among other things, Document 17 disclosed that when Guantanamo detainee Ghassan al-Sharbi was arrested in Pakistan in March 2002, FBI agents found a buried cache of documents that included “an envelope from the Saudi embassy in Washington that contained al-Sharbi’s (U.S.) flight certificate.”

9/11 Review Commission under the FBI’s thumb

By Dan Christensen, FloridaBulldog.org 

New York's World Trade Center. Photo: Carol M. Highsmith, Wikimedia Commons

New York’s World Trade Center. Photo: Carol M. Highsmith, Wikimedia Commons

A secretive blue-ribbon panel formed by Congress to conduct an “external review” of the FBI’s post-9/11 performance – and to assess new evidence – was largely under the sway of the very agency it was tasked to examine.

The FBI 9/11 Review Commission originally was envisioned as something very different: an independent national commission with subpoena power that would hold public hearings, take testimony, receive evidence and compel government agencies to turn over information from their files.

Proposed legislation called for a chairman and vice chairman to be appointed by the House Speaker and the Senate Majority Leader, respectively. Staff would be hired without outside interference. The General Services Administration would provide support services.

That’s not what happened.

The FBI 9/11 Review Commission, which issued its final report March 25, held no public hearings and had no subpoena power. It was largely spoon-fed information by the FBI, whose personnel was on the commission’s staff and helped edit the final report to improve its “accuracy and clarity,” the report says.

The commission’s interviews and proceedings, its “Memorandums for the Record” and other documents on which the report is based were not made public.

FBI CHIEF PICKS 9/11 REVIEW PANEL

FBI Director James Comey, not the Speaker or the Majority Leader, chose the 9/11 Review Commission’s three members. The report says Comey did so “in consultation with Congress.”

FBI Director James Comey, flanked by 9/11 panel members Ed Meese, left, and Tim Roemer with reporters at March 25 press conference

FBI Director James Comey, flanked by 9/11 panel members Ed Meese, left, and Tim Roemer with reporters at March 25 press conference

The FBI paid the trio – former Reagan Administration Attorney General Ed Meese, former congressman and ambassador Tim Roemer, and Georgetown University securities studies professor Bruce Hoffman –under personal services contracts that also were not made public.

The commissioners selected John C. Gannon as their executive director. Gannon is a former CIA Deputy Director for Intelligence and ex-Chairman of the National Intelligence Council. The commission and Gannon, “coordinating with the Bureau,” assembled a staff of 12. “All staff members reported administratively to the FBI,” the report says.

The commission’s 127-page report, The FBI: Protecting the Homeland in the 21st Century,” was largely supportive of the FBI, while repeatedly noting the Bureau needed to accelerate its implementation of reforms to make it a more effective anti-terrorist force.

The day the report was released, FBI Director James Comey told reporters at a Washington press conference that he was pleased with the commission’s work.

“I think this is a moment of pride for the F.B.I.,” Comey said, according to The New York Times. “An outside group of some of our nation’s most important leaders and thinkers has stared hard at us and said, ‘You have done a great job at transforming yourself.’ They’ve also said what I’ve said around the country: ‘It’s not good enough.’”

But those “outsiders” weren’t independent contractors. Rather, they were de facto FBI employees under the Bureau’s supervision and control, according to federal regulations governing the purchase of goods and services.

The Federal Acquisition Regulation (FAR), section 37.104, says government personal services contracts create an “employer-employee relationship” in which contractors “are subject to the relatively continuous supervision and control of a government officer or employee.” Supervision can be direct or indirect, but is used to “adequately protect the government’s interest” or “retain control of the function involved,” the regulation says.

The FBI made no one available for an interview about the 9/11 Review Commission. When asked by email if the commission’s proceedings would be made accessible to the public, spokeswoman Kathryn D. Ballew said, “You will need to submit a FOIA (Freedom of Information Act) request.”

A FOIA request seeking that information was filed Wednesday.

9/11 PANELISTS NOT TALKING

9/11 Review Commission member Bruce Hoffman: "I'm not interested in talking to you."

9/11 Review Commission member Bruce Hoffman: “I’m not interested in talking to you.”

Despite repeated requests, none of the commissioners would be interviewed about their report or the commission. Spokespersons for Meese and Roemer said they were not available. Hoffman, reached at his Georgetown office, said, “I’m not interested in talking to you” and hung up.

The Georgetown Security Studies Review interviewed Hoffman on March 27. Hoffman called the FBI “immensely supportive” of the commission.

“They didn’t make one change at all to the findings and recommendations,” said Hoffman. “They really changed very little in the report and in fact only classified slightly more than a dozen pages in a nearly 130 page document.”

However, it is not apparent from reading the report that any pages were classified and omitted from publication.

Commission Executive Director Gannon did not respond to phone or email messages.

Former Florida Sen. Bob Graham, co-chairman of Congress’s Joint Inquiry into the 9/11 terrorist attacks, has accused the FBI of a coverup that has protected Saudi Arabia. He called the idea of an FBI performance review “meritorious,” but said the lack of access to supporting documentation prohibits a public examination of the commission’s work.

“This secret process, the composition of staff and the lack of public hearings to secure a broad range of evaluation of the FBI’s post-9/11 performance raises questions as to whether this report achieved its objective of a thorough and balanced examination of America’s domestic intelligence agency,” Graham said.

Transparency was on the mind of Rep. Peter King, R-NY, when in July 2011 he sponsored the 9/11 Review Commission Act (HR 2623) which sought to create an independent body under Congress with the authority to hold open hearings, compel needed testimony and retain experts and consultants.

The bill went nowhere and died at the end of 2012. Three months later, a provision for a watered-down 9/11 Review Commission under the auspices of the FBI was inserted into a large appropriations bill that President Obama signed into law in March 2013.

All mention of public hearings, subpoena power and legislative control had been stripped out.

House appropriations subcommittee member Rep. Frank Wolf, R-Va., a co-sponsor of King’s bill, inserted the language that established the Review Commission. Wolf, who retired in January, did not respond to requests for comment.

But Kevin Fogarty, an aide to Rep. King, explained that King and Wolf “determined it was more feasible and expedient to move the FBI-focused review” via the appropriations bill. Fogarty did not explain why the new measure gave the FBI funding for and authority over the commission.

“Rep. King has the option of reintroducing HR 2623 should he feel it necessary in the future,” Fogarty said via email.

Following delays caused by sequestration, the 9/11 Review Commission was established in January 2014. While still not fully staffed, commissioners appeared before Wolf’s subcommittee the following March to explain how they planned to operate under their $1 million budget.

COMMISSION RELIED HEAVILY ON FBI

The commission’s report shows it relied heavily on the FBI for information and sought little input from sources outside the U.S. Intelligence Community. In addition to CIA boss John Brennan and Director of National Intelligence James Clapper, the approximately 30 interviewees included former FBI Director Robert Mueller and four other ex-FBI officials. The commission also met several times with Director Comey.

FBI Director Robert Mueller, Director of National Intelligence James Clapper and CIA Director John Brennan testify before the Senate Select Intelligence Committee in 2013

FBI Director Robert Mueller, Director of National Intelligence James Clapper and CIA Director John Brennan testify before the Senate Select Intelligence Committee in 2013

The commission’s work was also informed by travel to eight FBI field offices and six FBI legal attaché posts in Ottawa, Beijing, Manila, Singapore, London and Madrid, the report says.

At FBI headquarters, commissioners were given more than “60 extensive briefings” on topics ranging from the “Evolution of the National Security Branch” to PENTTBOM, the code-name for its 9/11 investigation, and the “Sarasota Family.”

The Sarasota family refers to Abdulaziz and Anoud al-Hijji, Saudis who became the focus of an FBI investigation shortly after 9/11 when it was learned they’d moved abruptly out of their home in an upscale, gated community south of Sarasota two weeks before the attacks, leaving behind their cars, clothes, furniture and other belongings.

FloridaBulldog.org, working with Irish author and journalist Anthony Summers, first reported about that investigation, and how the FBI had not disclosed it to either Congress’s Joint Inquiry or the 9/11 Commission, in September 2011.

The story cited a senior counterterrorism agent and a security administrator at the gated community, Larry Berberich, who said that sign-in logs and photos snapped of license tags of entering vehicles fit information on 9/11 hijack pilots Mohamed Atta and Ziad Jarrah, both of whom had attended a flight school about 10 miles away at Venice Municipal Airport.

The counterterrorism agent also said an analysis of phone records for calls to and from the al-Hijji’s home dating back more than a year found ties to Atta, Jarrah and other terrorist suspects, including former Miramar resident and alleged al Qaeda operative Adnan El Shukrijumah.

The FBI acknowledged the probe and said it had found no ties to terrorism, but declined to explain or release additional information.

The FBI’s denial was later contradicted by its own documents that were made public two years ago amid ongoing Freedom of Information litigation brought by Broward Bulldog, Inc., FloridaBulldog.org corporate parent. One FBI report, dated April 16, 2002, said investigators determined that the Sarasota Saudis had “many connections to individuals associated with the terrorist attacks on 9/11/2001.”

FBI DISAVOWS OWN SARASOTA DOCUMENT

The 9/11 Review Commission, tasked to examine new evidence, obtained a copy of the Sarasota case file and was briefed by the FBI, which disavowed its April 2002 report saying it was “poorly written and wholly unsubstantiated.”

“When questioned later by others in the FBI, the special agent who wrote (it) was unable to provide any basis for the contents of the document or explain why he wrote it as he did,” the report says.

The report does not name the agent, but its language suggests the commission accepted the FBI’s statements without challenge. The report does not address why the FBI kept its Sarasota investigation a secret from two federal inquiries into 9/11.

Philadelphia attorney Sean Carter represents plaintiffs pursuing claims against Saudi Arabia and others for allegedly providing material support to al Qaeda in the years before 9/11. He said the Review Commission failed to seek out new evidence compiled in that civil case, including jailed former al Qaeda operative Zacarias Moussaoui’s highly publicized statement in which he accused Saudi Arabia’s royal family of bankrolling the terrorist group.

“To the extent that they were interested in looking at new evidence you would have expected them to reach out to us, and they never did,” Carter said.

Sen. Graham suggested two ways to alleviate concerns about the integrity of the 9/11 Review Commission’s work.

The FBI should “release all material relating to the commission except those that represent a legitimate national security concern.” And Congress, when it receives the commission’s report, should “do so in an open hearing with the opportunity for testimony by other Americans and a full examination of the commission’s procedures, structure and conclusions, Graham said.

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