By Dan Christensen, FloridaBulldog.org
A split federal appeals court largely denied Florida Bulldog’s effort to compel the FBI to open up additional files about 9/11 after concluding that the public interest in knowing what happened is outweighed by the privacy interests of suspects, witnesses and FBI investigators.
“A bare interest in learning who may have been involved in the 9/11 attacks ‘falls outside the ambit of the public interest that the [Freedom of Information Act (FOIA)] was enacted to serve,’” wrote 11th Circuit Judge William Pryor in a 79-page opinion issued last week. Judge Adalberto Jordan concurred.
Judge Beverly B. Martin disagreed strongly in a partial dissent.
“The 9/11 attacks were a pivotal historic event and the government’s investigation of the attacks continues to generate great public interest,” Martin wrote. “The FBI…argues that the large amount of public information disclosed about the 9/11 attacks means there is little marginal interest in the release of this additional material.
“This argument does not persuade because this case has generated public interest in its own right. It involves a specific finding of fact by a Congressional Commission and has been publicly called into question by a former U.S. Senator who served on the…commission. The FBI contributed to this public interest in the case when it publicly disputed the Bulldog’s initial 2011 article on the al-Hijjis.”
9/11 and the al-Hijjis
That article reported about the Saudi family of Abdulaziz and Anoud al-Hijji who moved abruptly out of their Sarasota area home about two weeks before the Sept. 11, 2001 al Qaeda terrorist attacks, leaving behind their cars, clothes, furniture and other belongings. The FBI later investigated and according to its own reports found “many connections” between the al-Hijjis and the hijackers. The FBI did not inform Congress, according to former Florida Sen. Bob Graham, co-chair of Congress’s Joint Inquiry into 9/11.
The judicial panel, including Martin, also showed strong deference to the FBI’s decisions to withhold information by declining to conduct a de novo, or fresh review, of the evidence as sought by the FOIA. Specifically, the law bars courts from deferring to the FBI regarding the reasons for its asserted national security exemptions to the FOIA – meaning those reasons should not simply be accepted without examining the supporting evidence.
Pryor, however, said, “Whatever tension might otherwise exist between the Act’s requirement of de novo review and deferring to an agency’s explanation for withholding information, Congress has approved of deference…”
Congress, of course, also approved of the FOIA.
Again and again, the FBI’s classification stamp has been used to hide information that should not have been made secret in the first place. The 9/11 case alone provides examples, the most notable of which was the declassification and release of the “28 pages” from the Joint Inquiry report.
A declassification review
Those pages were kept secret for more than a decade at the FBI’s
insistence on grounds of national security. Graham and others, however, long disputed
that. A declassification review
, started in the wake of a request by Florida
Bulldog, later determined that any “harm to national security” by releasing
the 28 pages was “outweighed by the public interest.”
When finally released in July 2016 the pages disclosed embarrassing links between Saudi Prince Bandar bin Sultan and Abu Zubaydah, the “high-value” Guantanamo detainee who before his March 2002 capture in Pakistan was among al Qaeda’s highest ranking members and a confidant of Osama bin Laden. U.S. and coalition forces recovered Zubaydah’s phone book. “According to an FBI document, ‘a review of toll records has linked several of the numbers found in Zubaida’s [sic] phonebook with U.S. phone numbers.’ One of the numbers is unlisted and subscribed to by ASPCOL Corporation in Aspen, Colorado,” the 28 pages said.
Miami attorney Thomas Julin represents Florida Bulldog and its parent Broward Bulldog Inc. in the litigation in which the news organization has sought to obtain FBI records of the 9/11 Review Commission – a secretive body whose members were chosen by, paid by and spoon-fed information by the FBI.
“I think the overarching theme of this decision is the inadequacy of the Freedom of Information Act,” said Julin. “It’s not so much that the judges are wrong, it’s that they are hamstrung by the FOIA and its vague provisions and excessive deference” to executive branch agencies.
FBI’s suspicious handling
The appellate panel did not examine Julin’s arguments about the FBI’s suspicious handling of the case, including its lack of response to the Bulldog’s FOIA request for access to the 9/11 Review Commission’s files, and publicly denigrating without explanation its own heavily classified 2002 report about the al-Hijjis’ “many connections” to 9/11.
Likewise, the panel upheld Miami U.S. District Judge Cecilia Altonaga’s decision that information should be kept secret solely on the basis of sworn declarations provided by FBI records division personnel. Julin had argued that testimony should have been taken from live witnesses who could be cross-examined in court about their search for records and why they made the redaction decisions they made.
One of those decisions involves an October 2012 FBI Summary Report that was released to Florida Bulldog in 2016. Among other things, the heavily redacted document shows that federal authorities were then actively looking to charge a suspect for providing material support to the hijackers. It also discussed three persons in southern California who helped the hijackers. Two were identified as Saudis Fahad al-Thumairy and Omar al Bayoumi. The name of the third, who allegedly “tasked” Thumairy and Bayoumi with helping the hijackers, was blanked out.
In early September, U.S. Attorney General William Barr declassified that name and provided it to lawyers for thousands of 9/11 victims and their families who are suing Saudi Arabia, claiming the kingdom played a key role in the attacks. The name, however, was not made public.
Before they ruled, the panel judges were notified of the declassification and asked to make the name public. The judges ignored the matter in their opinion.
Bones for the Bulldog
The appeals court did throw Florida Bulldog a couple of bones. It agreed that the FBI should have made public a “grainy” photograph taken by a security camera in an unknown location that was included as a slide in a 2014 PowerPoint presentation for the 9/11 Review Commission entitled “Overview of 9/11 Investigation.” The matter was sent back to Judge Altonaga to allow the FBI to explain why it should be withheld.
The court also ordered the release of information in the overview about Walid bin Attash, a Yemeni detained at Guantanamo since 2003 as a “senior al Qaeda lieutenant and former bodyguard” for Osama bin Laden. Among other things, the order disclosed that “bin Laden instructed Attash to assist with a hand-to-hand combat course intended to help select candidates for the 9/11 operation; that Attash learned more about the 9/11 operation in a meeting with [alleged 9/11 mastermind] Khalid Sheikh Mohammed in Karachi; that he met with two other conspirators in Kuala Lumpur and Bangkok to case potential targets; and that Attash’s ‘casing report’ from his travels to Kuala Lumpur and Bangkok was recovered in Afghanistan.”
In her dissent, 11th Circuit Judge Martin said she would have opened up all of the 60 censored slides. That includes slides 19 and 20 in which the FBI lists its findings regarding the hijackers’ finances and identification; 24, concerning when the hijack pilots and intended pilots arrived in the U.S.; 31-36, which discuss the activities of the hijackers in the months leading up to 9/11; slides 29-30, 37 and 47, regarding the hijackers finances; 55, 58-60, titled “Ongoing Investigation.”
Martin cited different reasons for why she dissented on each, notably that many slides were simply factual recaps that would not disclose FBI techniques and procedures used in investigations. She said that colleagues Pryor and Jordan failed to explain their assertion that “almost all” of the redacted passages expose the FBI’s legitimate secrets.
“I worry that this cursory analysis of the connection between these slides and the FBI’s claimed techniques and procedures could allow government agencies to redact all factual information gathered in the course of any investigation as potentially revelatory of confidential strategies,” Martin wrote.
The deadline to file a petition for rehearing with the 11th Circuit is Monday.