Judge: U.S. Attorney General can claim state secrets to hide a key 9/11 FBI report of Operation Encore

By Dan Christensen, FloridaBulldog.org

The contents of a 2012 FBI report that exposed the existence of a secret investigation into suspected Saudi government involvement in 9/11 will remain largely hidden from public view after a New York judge sided with U.S. Attorney General William Barr.

U.S. Magistrate Sarah Netburn upheld Barr’s controversial assertion of the state secrets privilege to censor much of the Oct. 5, 2012 report concerning “updates and initiatives” of the FBI’s Operation Encore.

In turn, Netburn rejected an effort by attorneys for 9/11 survivors and families of the dead to compel the FBI to produce an unredacted copy of the 2012 FBI report.

“The court has thoroughly and skeptically examined the FBI’s submissions,” Netburn wrote in her Oct. 21 order. “The court finds the FBI’s classified submission to show persuasively that there is a reasonable danger that disclosure of the redacted portions of the 2012 Summary Report in litigation would harm national security interests.”

Netburn provided no full explanation of her ruling, observing that in “national security cases, some sacrifice to the ideals of the full adversary process are inevitable.” She did, however, write that she based her conclusion on a “comprehensive and detailed” declaration submitted to the court in secret – even from lawyers for the 9/11 families – by Assistant FBI Director Michael McGarrity, who departed the bureau shortly after signing it in September 2019 and is now a vice president at a McLean, VA-based security company, Global Guardian.

Report U.S. Attorney General hides

In 2016, the FBI released a copy of the censored 2012 FBI Summary Report to Florida Bulldog amid Freedom of Information litigation. While much was censored – including the code name Operation Encore – the report said that as late as October 2012 federal prosecutors and agents in New York were actively seeking to file charges against a suspect for providing material support to the 9/11 hijackers.

It was the first public confirmation of an active FBI investigation since the 9/11 Commission shut down in 2004.

“This has never been disclosed before and it’s to the contrary of almost everything the FBI has produced so far that has indicated that 9/11 is history,” former Sen. Bob Graham, D-FL, co-chair of Congress’s Joint Inquiry into the terrorist attacks, said at the time.

The FBI referred to Operation Encore as a “subfile” investigation of PENTTBOM, its original investigation of the 9/11 attacks in 2001. It was opened in 2007 “to sharpen the focus on allegations that the circle of 9/11 conspirators may be broader than reported in the 9/11 Commission report,” wrote Magistrate Netburn. Both investigations remain technically open, but are dormant.

“In its current form, the Subfile investigation is focused on individuals who may have provided substantial assistance to the 9/11 hijackers Nawaf al-Hazmi and Khalid al-Midhar” in Southern California,” Netburn wrote.

Third man identified

The 2012 report identified suspected Saudi agent Omar al-Bayoumi and former Saudi diplomat and imam Fahad al-Thumairy as subjects of the probe. After President Trump met with 9/11 family members in September 2019, the Department of Justice declassified the name of a third man the FBI report said “tasked” Bayoumi and Thumairy with helping the hijackers, Mussaed al-Jarrah, a former Saudi Foreign Ministry official who worked at the Saudi embassy in Washington in 1999-2000.

While the 9/11 lawyers argued they had a compelling need for the redacted information because, among other things, it addresses how the Saudi trio worked together to help the hijackers, Magistrate Netburn rejected their plea.

“The court is unable to publicly confirm whether the classified information at issue in the Summary Report addresses the topics that plaintiffs have identified above. Based on the Court’s review of this information, however, the Court can say with certainty that Plaintiffs plainly have no compelling need.”

Netburn said the plaintiffs had a better legal claim regarding a section of the 2012 report with “the FBI’s assessment of certain evidence gathered in the investigation.” Still, she kept that section secret because its release might “impair” the investigation and because it contains no “details explaining the FBI’s assessment, reducing its potential value to plaintiffs, and a similar assessment may be made based on evidence already available to plaintiffs.”

On Thursday, the 9/11 lawyers asked Netburn to delay her Nov. 4 time limit for them to object to her order until after she rules on another, larger outstanding motion filed in January that seeks to compel the FBI to release the rest of the PENTTBOM subfile Operation Encore.