By Dan Christensen, FloridaBulldog.org
UPDATE July 20: After backing off a plan to exclude the public from some of Thursday’s hearing about how much the FBI should have to disclose about 9/11, a federal appeals panel in Miami appeared to favor the idea of ordering a trial judge to hold a rare Freedom of Information Act trial.
Before hearing oral arguments, 11th Circuit Court of Appeals Judge William H. Pryor Jr. announced that at their conclusion the courtroom would be cleared so the judges could question in private government attorneys about records the FBI has marked secret.
But Florida Bulldog attorney Thomas Julin, who would also have been forced to leave the courtroom under the court’s plan, objected and the three judges instead decided to proceed in the sunshine.
As noted in the story that follows, both the Bulldog and the FBI are appealing parts of Miami U.S. District Judge Cecilia Altonaga’s ruling last year regarding the Bulldog’s 2016 lawsuit seeking records of the FBI’s secretive 9/11 Review Commission, also known as the Meese Commission.
While there are several issues in play, the most serious questions are whether the FBI conducted an adequate search of its records and whether the often heavily blanked out records it has released were properly withheld.
At the hearing, Judge Beverly R. Martin, who along with the other two appeal judges has had the opportunity to see unclassified versions of the FBI records at issue, took the lead in expressing strong doubt about the extent of secrecy the government has asserted in order to keep its records away from the public.
The appeals court typically posts its decisions two to three months after hearing oral arguments.
By Dan Christensen, FloridaBulldog.org
A federal appeals court panel will hear arguments in Miami on Thursday about how much the public should be allowed to know about what led up to the 9/11 terrorist attacks on New York and Washington.
At issue are records from the FBI’s secretive 9/11 Review Commission, also known as the Meese Commission, including reports about a Sarasota terrorism investigation the bureau once hid from both Congress and the 9/11 Commission.
Florida Bulldog sued the government two years ago after the FBI did not respond to its 2015 Freedom of Information Act (FOIA) request for commission records. The records were sought after the Meese Commission tried to discredit without much explanation a stunning April 16, 2002 FBI report the Bulldog had forced the FBI to release through an earlier FOIA suit.
That heavily censored FBI report said that a Saudi family who fled their Sarasota-area home two weeks before 9/11 – leaving behind their cars, clothes, furniture and other belongings – had “many connections” to “individuals associated with the terrorist attacks on 9/11/2001.” The report flatly contradicted FBI public statements that its Sarasota investigation had found no connection to the 9/11 plot.
Both the Justice Department and the nonprofit South Florida news organization are appealing rulings last year by Miami U.S. District Judge Cecilia Altonaga.
What both sides want
The government wants the three appellate judges to reverse Altonaga’s order that the FBI make public the names of suspects, agents and others redacted from several reports that were made public. One of those reports concerns a 2012 investigation by agents and prosecutors in New York who were looking to file charges against a suspect for providing material support to the 9/11 hijackers and other crimes. The suspect’s name is blanked out and the outcome of the investigation isn’t known, but its disclosure marked the first confirmation of an active criminal probe more than a decade after the 9/11 Commission ended.
Attorneys from the Gunster law firm who represent Florida Bulldog want the appeal judges to send the case back to Altonaga to hold a Freedom of Information Act trial to determine both the adequacy of the FBI’s search for Meese Commission records and the propriety of its numerous redactions. Altonaga ruled out an FOIA trial at which witnesses from the FBI and other federal agencies would have to answer questions about their actions — and opponents of continued secrecy like former Sen. Bob Graham, co-chair of Congress’ Joint Inquiry into 9/11, could testify.
As a result of the lawsuit, the FBI located 1,731 pages of documents. Of those, it produced to the Bulldog 738 heavily redacted pages and withheld 993 pages entirely.
Florida Bulldog attorney Thomas Julin has also asked the appeals court to allow the deposition of FBI Agent Jacqueline Maguire. Maguire played a central role in the 9/11 investigation code-named PENTTBOMB and was likewise a key aide to the Meese Commission, where she led the FBI’s effort to disparage its embarrassing “many connections” report.
The Eleventh Circuit Court of Appeal judges that will hear the case at 3 p.m. are William J. Pryor, Beverly R. Martin and Adalberto Jordan.
The Meese Commission
The Meese Commission, which gets its unofficial name from its most prominent member – Reagan-era Attorney General Edwin Meese – was originally envisioned as 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.
That did not happen. Instead, the Meese Commission became a creature of the FBI. Its three members, whose duty it was to conduct an “external review” of the FBI’s post-9/11 performance and to assess new evidence, were chosen by then-FBI Director James Comey and each was paid $80,000 plus $4,000 for travel for 11 months’ work.
The FBI spoon-fed information to Meese, ex-ambassador Tim Roemer and Georgetown University professor Bruce Hoffman, who further allowed FBI personnel to help edit their March 2015 final report to improve its “accuracy and clarity,” the report says.
Comey later praised the commission’s work as “a moment of pride for the FBI.”
Both former Sen. Graham and an alliance of news media organizations filed friend-of-the-court briefs in support of releasing more FBI records about 9/11.
Graham cited “pervasive” FBI over-classification 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.”
The 17 news groups, including the New York Times, Washington Post and the Associated Press, accused the FBI of years of dishonesty in handling FOIA requests.
“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.”