By Dan Christensen, FloridaBulldog.org
19 years on, and we still don’t know the names of those who helped aid and finance the 9/11 al Qaeda terrorist attacks on New York and Washington that killed 2,977 men, women and children and injured 6,000 more.
A compelling tangle of evidence has emerged over the years. But the last, best chance to obtain actual answers in our lifetime is likely the immense lawsuit brought by thousands of 9/11 victims and families that’s now inching through U.S. District Court in New York City.
The principal target of the personal injury and wrongful death lawsuit is the Kingdom of Saudi Arabia “for knowingly providing material support and resources to the al Qaeda terrorist organization and facilitating the September 11th attacks” in 2001. To haul the Saudis into court to face that accusation, it took an extraordinary act of Congress, including a 2016 override of President Obama’s veto, that changed federal laws relating to terrorism and foreign sovereign immunity.
Enactment of the Justice Against Sponsors of Terrorisms Act ensured the 9/11 victims their day in court. But extreme secrecy in the courtroom, insisted upon by the FBI and the Department of Justice, has left the case’s extensive public docket virtually devoid of new information of substance.
“You do not have permission to view this document,” the court’s computer system says again and again and again when access is sought to forbidden docket items.
19 years on and ‘scraps’
In a fitful response to a court-approved subpoena, the FBI has to date released 12 batches of records that one plaintiff’s attorney characterized as “scraps.” To obtain even that limited information, plaintiffs’ lawyers had to agree upfront to abide by strict secrecy restrictions that keep those reports and memoranda out of the public record.
The government continues to resist producing thousands of more detailed records, claiming that such material concerning apparent Saudi involvement prior to 9/11 is a state secret. In April, Attorney General William Barr and then-Acting Director of National Intelligence Richard Grenell swore public declarations that their personal assertions of the “state secrets privilege” were necessary to “protect the national security interests of the United States.”
It was later learned, however, that the Department of Justice had nevertheless given 25,000 pages of that ostensibly highly sensitive material to attorneys defending accused 9/11 mastermind Khalid Sheikh Mohammed and other accused terrorists being held at Guantanamo Bay, Cuba. The 9/11 families were outraged.
Attorneys for the 9/11 families are pushing back on the government’s state secrets arguments, many of which were made to the court under such extreme secrecy that even the plaintiffs’ attorneys cannot see them. The public knows nothing about any of these competing arguments. Even the plaintiffs’ filings are submitted under seal. The entire legal debate about matters of utmost public interest is taking place under court-authorized, absolute secrecy.
Last week, for example, the government filed with the court a classified declaration of Michael H. Glasheen, acting deputy director, operations branch, counterterrorism division of the FBI. It was submitted in camera and ex parte – Latin phrases that essentially mean only the judge can see it, not the other side or the public – “and cannot be disclosed without proper authorization.”
On Tuesday, however, plaintiffs’ lawyers sought to lift the veil a bit, asking the court to hear public oral arguments about both FBI assertions of secrecy and 9/11 victims’ efforts to compel the bureau to produce more records. What’s at stake, the lawyers wrote in a Sept. 8 letter to U.S. Magistrate Sarah Netburn, are “unprecedented issues of national importance about the government’s assertion of the State Secrets Privilege as to events that occurred twenty years ago.”
“Allowing counsel for the parties to present argument and answer the Court’s questions will shed light on the issues (and) allow the parties and the public to gain an understanding of the judicial process,” the lawyers wrote.
Protecting ‘foreign nations’
As with many other records in the case, the declaration and its secret assertions were classified pursuant to Presidential Executive Order 13,526, signed by President Obama on Dec. 29, 2009. The order’s introduction spells out the government’s belief that national security can trump “the free flow of information” on which “our Nation’s progress depends” to protect not only our citizens, but “our interactions with foreign nations.”
Here’s the introduction in full: “This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism. Our democratic principles require that the American people be informed of the activities of their Government. Also, our Nation’s progress depends on the free flow of information both within the Government and to the American people. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.”
The Executive Order, the State Secrets Privilege and a 10-page, court-approved protective order for FBI documents are now being used to suppress countless pages of intelligence that would appear likely, if publicly known, to interfere with America’s relationship with the current leadership of Saudi Arabia, a totalitarian dictatorship.
A key focus of the 9/11 plaintiffs is for access to records of Operation Encore, an FBI probe into the Saudi role in 9/11 whose existence was first reported by Florida Bulldog in late 2016. The Bulldog had sued the FBI under the Freedom of Information Act seeking records of the 9/11 Review Commission, a blue-ribbon panel whose three members, including former Reagan-era Attorney General Ed Meese, were paid and spoon-fed information by the FBI. Among the records sought was a copy of a 2012 FBI summary report mentioned in a footnote in the commission’s final report in 2015.
October 2012 FBI report
A heavily censored version of that Oct. 5, 2012 report was released in December 2016. It showed that as of that date federal prosecutors and FBI agents in New York City were actively exploring filing charges against a suspect for providing material support to two of the Saudi-born 9/11 hijackers who were aboard American Airlines Flight 77 when it crashed into the Pentagon. The suspect’s identify was redacted.
The report also identified three “main subjects” of the probe: Saudi diplomat and imam at the Los Angeles area’s King Fahd mosque Fahad al-Thumairy, suspected Saudi agent Omar al-Bayoumi and a third man who the report said had “tasked” them with helping the future hijackers. The third man’s name was also censored, although one year ago on President Trump’s initiative the name was released to the plaintiffs’ lawyers only. The name became public in May when it was inadvertently disclosed in FBI court filings. He is Mussaed al-Jarrah, a former Saudi Foreign Ministry official who worked at the Saudi embassy in Washington in 1999-2000.
In January, The New York Times disclosed the name of the probe, Operation Encore, and said it caused an internal rift within the FBI before it was shut down in 2016.
As the government has used the state secrets privilege to put a clamp on further disclosures from the October 2012 FBI report or about Operation Encore, the publicly available court records indicate that the kingdom has largely thwarted plaintiffs’ efforts to discover records about numerous Saudi officials working at its embassy in Washington, its Los Angeles Consulate and in Southern California as government salaried religious propagators and imams with diplomatic visas and passports in the immediate years before the terrorist attacks.
The kingdom has also objected to producing for deposition potential witnesses living in Saudi Arabia. It also insists that any depositions that are held must occur in Riyadh, Jeddah or remotely.
Still, plaintiffs’ lawyers indicated in a Wednesday letter that the court has decided to order the Saudis to produce at least some witnesses. The letter says the court issued an Aug. 27 order, which is sealed and not docketed as of this writing, seeking a one-week extension to file any motion for reconsideration or objections to the order.
“Plaintiffs are awaiting responses from the Kingdom as to whether several witnesses discussed in the Court’s Order will be produced for deposition, but the Kingdom has indicated it is not yet in a position to respond to those inquiries,” the Sept. 9 letter says.
Who those witnesses are is not known.