Declassified, but not public. Miami judge asked to release key 9/11 name

By Dan Christensen, FloridaBulldog.org

An attorney for Florida Bulldog filed court papers this week asking a Miami federal judge to make public “one critical piece of information” – the name of the person who tasked two Saudis living in Southern California with assisting the 9/11 suicide hijackers.

The Justice Department announced last week that the FBI had declassified the name “in the public interest,” but gave it only to lawyers representing 9/11 family members and survivors  who are suing Saudi Arabia in federal court in New York. Those lawyers are under an order not to release to the public, without court permission, the FBI records they get.

The mystery about the name first gained public attention when a Florida Bulldog Freedom of Information Act (FOIA) lawsuit forced the FBI to release an October 2012 FBI Summary Report in 2016.  That report showed the FBI knew the identity of someone who directed help to the hijackers, but the FBI, on national security grounds, blacked out the name as it appeared in the report.  

Lawyers for the 9/11 victims seized on the report as possibly showing that a Saudi official may have helped direct the 9/11 attacks and they demanded that President Trump reveal the name. The FBI then declassified the name. 

The declassification now requires full public release under FOIA, according to court papers filed Tuesday with federal Judge Cecilia Altonaga by Miami attorney Thomas Julin, who represents the news organization.

Government court papers announcing the decision to declassify the name don’t mention Trump. They say the FBI acted “in light of the exceptional nature of this case” and “in consultation” with U.S. Attorney General William Barr. Still, Barr otherwise invoked the state secrets privilege to hide the 2012 report’s other redacted information, as well as many additional 9/11 records sought by the plaintiffs’ attorneys as they build their case against Saudi Arabia.

Declassified but not public

Other court papers show, however, that Barr’s decision came only after a 25-year veteran of the FBI’s National Security Division told the court in a sworn declaration last May that the bureau had no basis for continuing to withhold the name.

Former FBI Agent Bassem Youssef, who retired in September 2014, was born in Cairo and emigrated to the U.S. with his family in 1972 when he was 13. He was “the first native-born Arabic speaking Special Agent with the FBI” with a security clearance level “always above Top Secret (TS) with multiple compartmented clearances as well as ‘Need to Know’ designation,” according to his 19-page declaration. Youssef said his work “almost exclusively involved radical Islamic terrorist groups and included investigations of various groups and individuals related to al Qaeda, including Omar Abdel Rahman (known as the ‘Blind Sheik’), who was Osama bin Laden’s spiritual advisor.”

Youssef reviewed the 2012 FBI Summary report, the Director of National Intelligence’s classification guide and various other documents related to the 2012 report, including a pair of 2016 declarations by FBI Section Chief David Hardy in Florida Bulldog’s FOIA litigation. He concluded, “I do not believe there is a proper basis to justify the continued redaction of the name of the subject who engaged in terrorism against the United States.” Elsewhere, he added, that while classification rules forbid hiding crimes or administrative error, preventing embarrassment, or delaying the release of information that does not require protection in the interest of national security he’s seen it happen.

“During my Bureau career, particularly in the Counterterrorism Division, I learned that at times the FBI would mark material as classified that did not meet the objective classification criteria. Often documents that did not implicate Sources and Methods were classified based on a belief that the information was sensitive or potentially embarrassing,” said Youssef. “The FBI should not classify information because it identifies a Saudi government official who participated in a crime, particularly a heinous crime inside the United States.”

According to former Florida Sen. Bob Graham, who co-chaired Congress’ Joint Inquiry into 9/11, the 2012 report is important because, while highly redacted, it established that as late as Oct. 5 of that year federal prosecutors and agents were actively exploring whether to file criminal charges against a suspect for providing material support to the al Qaeda hijackers.

A ‘subfile’ investigation

To investigate, the FBI opened a spinoff, or “subfile,” of its investigation into the Sept. 11, 2001 terrorist attacks, code-named PENTTBOM. The subfile probe focused on whether Saudi government officials knowingly helped the hijackers, Youssef said. The case was so secret that even the name of the subfile is classified. No charges were ever filed.

The 2012 report lists three “main subjects” of the probe, but the name of one was censored for unexplained reasons of national security. Fahad al-Thumairy was a Saudi diplomat and imam at Los Angeles’ King Fahd Mosque when two future hijackers – Nawaf al-Hazmi and Khalid al-Mihdhar – first arrived in the U.S. in January 2000. The two were aboard American Airlines Flight 77 when it slammed into the Pentagon 21 months later.

The second subject was Omar al-Bayoumi, a suspected Saudi agent who befriended Hazmi and Mihdhar in Southern California. The report says Bayoumi “was living in San Diego on a student visa, despite not attending classes, and receiving a salary from the Kingdom of Saudi Arabia for job duties he never performed.”

The third subject was apparently highly placed: “There is evidence that [redacted] and tasked al-Thumairy and al-Bayoumi with assisting the hijackers.” Together, the report said, the trio “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.”

“Based on my expertise, I believe that the subject(s) is a Saudi government official senior to al-Thumairy and al-Bayoumi.

U.S. downplays own report

The U.S. government, however, sought to downplay the 2012 Summary Report’s statements about the third subject in a footnote contained in a memorandum of law filed Monday that announced the declassification of the name of the third subject.

“The FBI also notes that, in retrospect, it would have been more appropriate to phrase the last sentence in the report and the statements about the individual at the top of the last page as an investigative theory being pursued by the FBI and not as objective statements of fact,” the footnote says, without further explanation.

As for the outcome of the 2012 investigation, the government’s memorandum of law arguing for further secrecy said the FBI’s 9/11 investigation “is still open and active.” But Youssef offered the court a different opinion.

“The nature and importance of the allegations in the 2012 Summary Report would dictate that our government would promptly make a decision whether or not to proceed with criminal charges. Given the facts that three of the subjects were Saudi government officials outside the reach of U.S. law enforcement, Saudi Arabia was an ally of the United States, and the passage of time, our government made a decision not to proceed with criminal charges,” said Youssef.

“It is difficult to understand how, after almost 18 years after the events of September 11, 2001, and almost two decades after the relevant events involving Saudi government employees in California, that the FBI can assert that it still has an active investigation.”