9/11: Split court rules privacy of suspects, FBI agents outweighs public interest in knowing

dozens of small photos of victims
Some of those who died aboard United Airlines Flight 93 when it crashed into a field in Shanksville, Pa. on Sept. 11, 2001

By Dan Christensen,

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.

Former U.S. Senator Bob Graham

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.

9/11 suspect aubaydah and prince bandar
Saudi Prince Bandar bin Sultan, right, and Guantanamo detainee Abu Zubaydah

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.

headshots of 9/11 suspects al thumairy and al bayoumi
Suspected Saudi agent and friend to two 9/11 hijackers Omar al-Bayoumi, right, and former Saudi diplomat and Los Angeles Imam Fahad al-Thumairy

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.

9/11 suspect
Walid bin Attash Photo:Wikimedia Commons

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.

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Latest comments

  • While it is now clear the Court system will not side with the worthy effort of the Florida Bulldog to get more Sept.11,2001 background information released,the FBI is still tarnished from that era of secrecy mainly because they were embarassed or blindsided along with the CIA for not preventing the attacks. We prefer to be a move on society in which every anniversary we read the names of the dead and play Taps or ring bells. Those who went to work that sunny Tuesday deserved a normal day. Government failed them. It still is losing respect and trust. But Judges can only interpret the law as written so the FBI and the FOIA will continue to fail the Public.

  • So much for Freedom Of Information Act requests being fulfilled, “under the law”. Where the non-disclosure excuse of a “classified document” designation can be arbitrarily attached to the information requested in denying fulfillment of a publicly submitted FOIA request.
    The hard nut to crack here is the secrecy surrounding the “classified document” designation PROCESS. If a government agency wishes to withhold information they can ASSIGN a “classified document” designation to legally JUSTIFY non-disclosure.
    In this case where an event of immense National Interest to millions of Americans, their refusal to fulfill the Bulldog FOIA request for information regarding the handling of Saudis closely involved with the Government or business associates of the President in 2011is truly suspect.
    When any excuse for classification is accepted to counter the FOIA, the protections afforded under the law are corrupted.
    As the dissenting judge noted: “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,”

    The scary thing is this justification is increasingly being applied on the LOCAL level where cities are withholding information from the public in violation of the Florida Sunshine Law.
    That information was finally obtained under threat of legal action.

    Thanks for organizations like Bulldog to go after the facts that citizens should be aware of. It’s OUR Country.

  • So unless it serves the government to ‘out’ agents, as the scumbag Scooter did, we just wait for another really bad day…

  • Abdulaziz and Anoud al-Hijji attended the ISSB Mosque from 1995 to August 2001, the Imam was Muneer Arafat from March 2000 to February 2005. Prior to coming to Sarasota in March of 2000, Muneer Arafat was a roommate of al-Qaeda procurement agent Ziyad Khaleel in the St louis area. Khaleel supplied communication equipment for Osama bin-Laden used in the 1998 Africa Embassy bombings. Imam Muneer Arafat had direct ties to a Al-Qeada agent prior his to arrival in Sarasota just 3 months prior to Mohamed Atta and 2 other 9/11 hijack pilots arrival in late June 2000.

    Ziyad Khaleel, also known as Khalil Ziyad, Ziyad Sadaqa, and Ziyad Abdulrahman, was a Palestinian-American al-Qaeda member, based in the United States, primarily in Colorado, Florida, Michigan and Missouri. He had been identified as a “procurement agent” for Osama bin Laden, arranging the purchase and delivery of “computers, satellite telephones, and covert surveillance equipment” for the leadership of al-Qaeda, as well as administering a number of radical Islamic websites as webmaster, including the website of the terrorist group Hamas. Ziyad Khaleel was also directly linked to Imam Anwar al-Awlaki who assisted the two 9/11 hijackers in San Diego and then again in Falls Church VA.

    In late November 2002 Imam Muneer Arafat was arrested by ICE and the FBI for visa violations in Sarasota and shipped off to St Louis to testify in a Federal Grand Jury investigation into ties to the 9/11 terror attack. When Muneer Arafat returned to Sarasota in December 2002 it appears the FBI flipped him and he supposedly was working for them. Muneer Arafat was wearing a wire for the FBI and was involved in a FBI terrorism investigation from December 2002 to end of 2003 in Sarasota Fl.

    Imam Muneer Arafat bragged about working for the FBI and made public his activity in Sarasota from December 2002 to end of 2003 when he was called as a witness in the Sami Al-Arain terrorism trial in Tampa. Imam Muneer Arafat told the court he was working as a confidential informant for the FBI and they paid him $35,000 for his efforts in a unspecified case in Sarasota Fl.

    The only Sarasota FBI terrorism investigation I am aware of that took place in 2002 through 2003 is the one run by FBI agent Thomas Baugher and involved Abdulaziz and Anoud al-Hijji who just happened to have attended the same Mosque where the Imam was Muneer Arafat from March 2000 to Feb 2005 and it became known that Arafat later worked for the FBI as an undercover CI wearing a wire in late 2002 through 2003.

    Muneer Arafat would have had direct contact with Sarasota FBI agent Thomas Baugher and the Sarasota Police Dept. and Sarasota County Sheriff Office Detectives during the 2002 – 2003 Sarasota investigation. According to a FDLE report of December 8, 2003 given by Sarasota FBI agent Thomas Baugher, “The source also spoke to Muneer ARAFAT as the Imam of the local mosque and that ARAFAT was a member of the Islamic Brotherhood (in Kuwait same time as KSM), who follows a radical belief and teachings of ALBAZ, and wishes harm to the United States”.

  • And other than Saudi Arabia the US have attacked many countries. Pathetic, the US does not even bother to investigate 9/11 and terror funding properly.

  • I still think you guys should get hold of the Prestancia gate records which were supposedly the basis for the initial reporting.

    Surely you would have had a better case if they had supported what you said.

  • I’ve suffered unimaginable pain thanks to those animals that perpetrated WTC 9/11. I’ve managed to survive the
    Following injuries:
    1) Non Hodgkin Lymphoma
    2) Skin Cancer
    3) PTSD
    4) 3 stomach operations to determine if I had cancer.
    5) GERD
    6) Arthritis
    7) Stroke
    8) Triple Bypass Surgery
    9) copd

    According to my lawyer John Dearie NYC, I’m
    One lucky person. I’m not dead yet. Many others are. Another point of interest is the many trips to Washington DC back in 2010 to force our government to fund the ZADROGA Bill.
    We had to beg. But we succeeded. John Feal
    Takes all the credit but he had 90 Warriors with him on these trips. He’s a glory hound. Many bus riders who came on these trips have died from their injuries. I refuse to die until we get the 100 billion from our lawsuit vs Saudis. We need this
    to close the door on our pain.

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