Judge launches search for leaker in huge case pitting 9/11 families against Saudi Arabia

By Dan Christensen, FloridaBulldog.org

A federal magistrate in New York has launched a leak hunt in an effort to find out who provided a Yahoo! News reporter with the deposition of a former Saudi embassy official that an FBI report says “tasked” two other Saudi men when helping two 9/11 hijackers in Southern California get an apartment, open a bank account and find flight lessons.

Apparently not satisfied with leak denials made under oath by attorneys who represent thousands of 9/11 family members in their huge civil lawsuit against Saudi Arabia, Magistrate Sarah Netburn issued an order Monday demanding that four attorneys with the New York law firm Kreindler & Kreindler provide additional declarations regarding their communications with reporter Michael Isikoff “or anyone acting on his behalf.”

On July 15, Yahoo! News published Isikoff’s article headlined, “FBI Tried to Flip Saudi Official in 9/11 Investigation.” The story says Yahoo! News “exclusively” obtained a copy of the 600+-page deposition of Musaed Al Jarrah conducted via Zoom by attorneys for the Plaintiffs’ Executive Committee on June 17-18.

Jarrah is a former Saudi Foreign Ministry official who worked at the Saudi embassy in Washington in 1999-2000. His name was redacted from a 2012 FBI Summary Report released to Florida Bulldog in 2016 amid Freedom of Information Act litigation that disclosed the existence of the FBI’s Operation Encore, which probed Saudi government complicity in 9/11. Al Jarrah’s name was provided to the plaintiffs’ attorneys on orders of former President Trump. It became public when the FBI inadvertently released it in court papers.

Isikoff’s story reported that Al Jarrah said during his deposition that FBI agents previously questioned him three times and “even threatened him, confronting him with photos of child pornography found on his home computer in an apparent attempt to ‘flip’ him and gain his cooperation.”

Saudis ask to investigate

Saudi Arabia promptly asked the court to investigate or authorize it to investigate. Jarrah’s deposition, like numerous other depositions and U.S. and Saudi government documents, is subject to a court-approved FBI “protective order” intended to keep information regarding the terrorist attacks of Sept. 11, 2001 away from public view.

The court typically enforces orders through its contempt powers: civil contempt by the imposition of a fine; criminal contempt by criminal sanctions that afford the target due process rights.

“I haven’t seen an order quite like this before,” said Miami First Amendment attorney Thomas Julin. “The investigatory nature of this order raises an issue with respect to whether the court has jurisdiction to issue the order. It also raises an issue with respect as to whether Magistrate Netburn is acting beyond the scope of the matters referred to her and, by acting in an investigatory fashion, is no longer impartial.” (Julin also represents Florida Bulldog.)

“The fact that the order requires disclosure of all communications with a reporter also raises a significant First Amendment issue,” Julin said. “The order is not limited to communications, which would violate a protective order. The order therefore may be overbroad.”

Ironically, Magistrate Netburn’s Monday order came on the same day that U.S. military forces left Afghanistan for the first time in 20 years, a presence which began one month after the 9/11 attacks on New York and Washington.

In her first order on the matter on Aug. 12, Netburn determined “there has plainly been a breach of, at a minimum, of the Protective Order.” She said that the Saudi’s lawyers at the Washington, D.C. law firm Kellogg Hansen filed 27 declarations from everyone who received or accessed Al Jarrah’s deposition. She also noted that two other leading plaintiffs’ firms, Philadelphia’s Cozen O’Connor and Mount Pleasant, SC’s Motley Rice also filed a dozen voluntary declarations “broadly affirm[ing] under penalty of perjury that no one from those firms leaked the Al Jarrah deposition transcripts.’’

JUDGE POINTS FINGER AT KREINDLER

At the same time, Netburn stated that no such statements had been provided by the lead law firm, Kreindler & Kreindler, and specifically pointed a finger at plaintiffs’ attorney James Kreindler.

“Circumstantial evidence suggests that this firm may be responsible for the leak,” Netburn wrote. “Mr. Kreindler also appeared on Mr. Isikoff’s podcast Conspiracyland to discuss the status of the case in general and the depositions in particular. While the court has repeatedly admonished Mr. Kreindler from litigating his case in the press…standing alone there is nothing wrong with such communications. But the evidence certainly suggests an opportunity for Mr. Kreindler to have breached the Protective Order.’’

Days later, at the court’s instruction, Kreindler and other attorneys in his firm submitted sworn declarations denying the leak.

Kreindler’s declarations did not end the matter.

In Monday’s follow-up order, Netburn initiated her own investigation. She ordered the Kreindler lawyers to identify any communications they’ve had with reporter Isikoff between June 1 and Aug. 1, declare whether they ever discussed the contents of Al Jarrah’s deposition with Isikoff, state anyone with whom they shared Al Jarrah’s deposition transcript who has not previously been identified and name anyone they know had access to the transcripts.

“At least one of these declarations must describe, in detail, the firm’s internal investigation that was undertaken in response to the breach of the Protective Orders,” Netburn wrote.

MAGISTRATE DIGS DEEPER

But that’s not all. Netburn also demanded a declaration from a Kreindler paralegal and the “head of the law firm’s information technology group” describing the investigation done in response to the breach. “That declaration should demonstrate that a forensic analysis was done to identify who accessed the deposition transcripts, determine the dates of any access, and assess whether anyone from the firm emailed either of the two known Isikoff email addresses.”

Netburn further asked Saudi Arabia’s lawyers to “facilitate the collection of declarations” from Golkow Litigation Services, a global court reporting service, and to “identify any law firm that attended the Al Jarrah deposition on behalf of a defendant or any firm representing a defendant that otherwise had access.”

Similarly, the Plaintiffs’ Executive Committee was asked to identify every law firm that attended Al Jarrah’s deposition.

All who are identified must submit declarations “under penalty of perjury” as to whether they leaked Al Jarrah’s deposition to Isikoff. All submissions must be made by Sept. 10.

Also on Monday Kreindler partner Andrew J. Maloney denied once again that his firm was responsible for the deposition getting to Isikoff. “We did not leak it!,” he wrote in an email. “We will file our response in public.”

Isikoff, Yahoo! News‘s chief investigative correspondent, was informed of Monday’s order by Florida Bulldog. “No comment,” he said.