By Dan Christensen, FloridaBulldog.org
The U.S. government’s recent reset of its position to consider declassifying many FBI secrets about 9/11 is being strongly resisted in court by Saudi Arabia.
Lawyers for thousands of 9/11 family members who are suing Saudi Arabia in federal court in New York, citing the “extraordinary circumstances” arising from the government’s about-face, asked the court late last month for an extension of a Sept. 15 deadline to submit reports from experts who have reviewed the evidence.
“It is imperative that plaintiffs’ experts be afforded an opportunity to review this additional evidence before serving their reports,” wrote members of the Plaintiffs’ Executive Committees in an Aug. 26 letter to U.S. Magistrate Sarah Netburn. “The documents and information in issue include many of the most critical documents relating to the government’s investigation of the support network provided by the Saudi government’s agents for the first arriving hijackers, and thus go to the very heart of the transactions, events, relationships and roles at issue.”
U.S. Justice Department attorneys seemed to agree, notifying lawyers for the 9/11 Families that “the United States believes an extension [of the deadline] would be in the interests of justice” as it considers what now classified documents to make public.
The plaintiffs’ concerns were further heightened by President Biden’s executive order on Friday instructing the FBI and other federal agencies to conduct “declassification reviews” with an eye toward significant document disclosures. The only specific document the President ordered to be immediately reviewed for public release “no later than September 11, 2021” is an April 4, 2016 “electronic communication from the subfile investigation” of the FBI that’s also known as Operation Encore. That report is said to be a 16-page summary of Encore’s findings about possible Saudi complicity in 9/11.
Later that day, the plaintiffs renewed their call for a stay of the deadline, attaching a copy of the President’s order and asking Judge Netburn to “convene a conference to address today’s developments and how they impact the litigation.”
SAUDI ARABIA DISAGREES
The kingdom’s lawyers have not responded to Friday’s developments, but earlier asked Netburn to deny the 9/11 Families any deadline extensions.
“Saudi Arabia respectfully disagrees with the [U.S.] government’s position … that an extension ‘would be in the interests of justice,’” wrote Washington, DC attorney Michael Kellogg in an Aug. 31 letter to Netburn. “The interests of justice favor the final close of discovery in this matter and the presentation of the contemporaneous documents and the testimony of witnesses with personal knowledge that were the focus of more than three years of fact discovery. Those interests do not favor delaying closure of this case to sift through the records of a closed investigation so that material of dubious relevance may be presented to experts who will then act as mere conduits for introducing hearsay.”
According to Kellogg’s letter, as of June 30, which marked the close of “fact” discovery in the case, “the FBI has produced 28 tranches of documents, containing 9,939” pages. Florida Bulldog has reported that the FBI’s Tampa Field Office alone – which investigated the abrupt departure of a Saudi family with apparent ties to the hijackers from their Sarasota-area home two weeks before the terrorist attacks on New York and Washington – has more than 80,000 pages of records concerning 9/11.
Kellogg’s letter went on, “Having exhausted their legal avenues, Plaintiffs then commenced a public-relations and political push to obtain additional documents, including a well-publicized threat to disinvite President Biden from the memorial commemorating the 20th anniversary of the 9/11 attacks if more documents are not released.”
The letter notes that on Aug. 9 “shortly after that threat” the Justice Department informed the court that the FBI had recently closed “the Subfile Investigation,” also known as Operation Encore, which examined allegations that “the circle of 9/11 conspirators may be broader than reported in the 9/11 Commission Report,” including “individuals who provided or may have provided substantial assistance to 9/11 hijackers Nawaf al Hazmi or Khalid al Mihdhar.”
“Neither the Plaintiffs’ political campaign to obtain more documents from the FBI nor the government’s voluntary decision to comply after the close of both document and deposition discovery in this case provides good cause for an extension of the limited, targeted jurisdictional discovery period set by the court,” Kellogg wrote.
Further, “the court has no reason to believe that anything new the FBI produces will yield material new evidence rather than matter that is immaterial, nonevidentiary, or both,” the letter says. “There is no reason to believe the FBI’s new production will include anything more. To the contrary, the FBI has closed its investigation with no new charges or final conclusions. Its decision to do so leaves uncontradicted the findings of the 9/11 Commission and the 9/11 Review Commission of no evidence that Saudi Arabia was complicit in the 9/11 attacks.”
Kellogg’s letter concludes with a challenge regarding the central factual question at issue: whether a pair of Saudis living in Southern California – diplomat and religious leader Fahad al Thumairy and suspected Saudi undercover agent Omar al Bayoumi – provided witting assistance to the two 9/11 hijackers.
“When discovery ends, the record will show no support for Plaintiffs’ baseless allegations that al Thumairy or al Bayoumi received or gave any directions to assist the 9/11 hijackers,” Kellogg wrote. “Counsel for one group of Plaintiffs has recently, publicly claimed that depositions in this case contained multiple ‘smoking guns’ and have described confidential deposition testimony as ‘lots and lots of people inculpating every Saudi official.’ Let Plaintiffs show the Court the evidence they purport to have, let Saudi Arabia respond, and let the Court determine who is correct. That will serve the interests of justice better than indefinitely prolonging discovery.”