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Under oath, AG Barr and other top Trump officials invoked ‘state secrets privilege’ to hide FBI 9/11 report with no state secrets

state secrets
state secrets

By Dan Christensen, FloridaBulldog.org

Long before last month’s release of a 2016 FBI report about Operation Encore, the bureau’s probe into possible Saudi complicity in 9/11, top Trump administration officials swore under “penalty of perjury” that information in the report was a “state secret” whose public release was likely to cause “significant harm to the national security.”

But when the 16-page report was finally made public on Sept. 11 following a declassification review ordered by President Biden the week before, no state secrets were apparent. A “redaction key” provided by the FBI to explain some deletions shows that only a few short bits and pieces of the report were kept classified by the bureau, presumably for genuine national security reasons.

The key likewise shows that another unspecified U.S. government agency, perhaps the Central Intelligence Agency, accounted for two other censored portions, totaling about one full page of the report.

Nevertheless, twice under oath Trump Attorney General William Barr personally invoked the law’s state secrets privilege to keep records about Operation Encore away from public view. In 2019, Barr said his assertion was specifically necessary to “protect from disclosure certain national security information contained in an October 2012 FBI report” about Operation Encore, a report first released to Florida Bulldog in moderately redacted form in 2016 amid Freedom of Information Act litigation.

Barr cited the state secrets privilege again more broadly in April 2020 to hide the 2016 follow-up Encore report, plus numerous other federal records sought by thousands of 9/11 Family members who are suing to hold Saudi Arabia responsible for the 2001 terrorist attacks that killed nearly 3,000 men, women and children and injured thousands more.

Given we now know the contents of the 2016 Encore report, Barr’s assertion of the privilege is problematic. The Justice Department’s own rules governing the use of the state secrets privilege prohibit a sweeping invocation of the privilege.

‘ONLY TO THE EXTENT NECESSARY’

Specifically, those standards established in 2009 require the “narrow tailoring” of the state secrets privilege, meaning “the U.S. Government will invoke the privilege only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests.”

“As part of this policy, the Department also commits not to invoke the privilege for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials,” says a DOJ press release issued when the new rules were announced.

state secrets
Trump administration Attorney General William Barr, right, and Director of National Intelligence Richard Grenell

Yet Barr wasn’t alone in invoking the state secrets privilege to protect a key FBI document we now know contains no state secrets. The same day, Trump’s Acting Director of National Intelligence Richard Grenell swore, “This information must be protected because its disclosure could be expected to cause serious damage, and in many cases exceptionally grave damage, to the national security of the United States.”

Two assistant FBI directors in the counterterrorism division, Michael McGarrity and Jill Sanborn, also filed sworn public declarations in support of Barr’s assertions of the state secrets privilege.

The effect of all that legal maneuvering, besides keeping the public in the dark, was to prevent thousands of U.S. plaintiffs who are suing Saudi Arabia in federal court in New York from learning details of the FBI’s once-secret investigation of Saudis living in Southern California who provided substantial assistance to 9/11 hijackers Nawaf al-Hazmi and Khalid al-Mihdhar.

‘MISLEADING THE COURT’ ON STATE SECRETS

In an interview with Florida Bulldog, plaintiffs’ lawyer Andrew J. Maloney III accused the Justice Department of “misleading the court.”

“The report is clearly not a secret and should not have been described in court as a state secret. It was an abuse of power by the former attorney general,” said Maloney. “The judge should call him in and question him to explain how this document was a state secret. He needs to explain himself.”

Andrew Maloney

That seems unlikely. U.S. Magistrate Sarah Netburn, assigned by U.S. District Judge George Daniels to hear and decide many pre-trial matters, allowed to stand Barr’s assertion of the state secrets privilege regarding the 2016 Encore report and the numerous other FBI records. And she did so without providing any public explanation.

Her decision, of course, raises the question of whether she read the 2016 report and if so why she concluded it deserved state secrets protection when the FBI itself, though pushed by President Biden, has largely made it public.

While the 2016 Encore report did not contain any substantial official secrets, it does contain significant and previously unknown information about al Qaeda operatives Hazmi and Mihdhar, and the Saudis who assisted them after their arrival in Los Angeles in January 2000 – including a diplomat and a suspected spy. Some of that information raises fresh questions about why the U.S. never brought criminal charges against possible co-conspirators.

Hazmi and Mihdhar were part of the five-Saudi suicide hijack team that 20 months later crashed American Airlines Flight 77 into the Pentagon, killing 59 passengers and crew and another 125 people at work in the building.

FOCUS ON OPERATION ENCORE

For five years, finding out what FBI agents uncovered during the nine-year life of Operation Encore has been at the core of the intense civil litigation in New York. Saudi Arabia has long maintained it had nothing to do with the attacks – a position it reiterated last month just days before the emotional 20th anniversary of the attacks.

“Any allegation that Saudi Arabia is complicit in the September 11 attacks is categorically false,” said a statement released by the Saudi embassy in Washington. “As the administrations of the past four U.S. presidents have attested, the Kingdom of Saudi Arabia has unwaveringly condemned and denounced the deplorable crimes that took place against the United States, its close ally and partner… The Kingdom is an essential counterterrorism partner to the United States.”

The kingdom often has cited in its support the final report of the bipartisan 9/11 Commission which in 2004 stated, “Saudi Arabia has long been considered the primary source of Al Qaeda funding, but we have found no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization.”

Yet three years after the commission shut down, the FBI quietly opened Operation Encore to examine persistent questions about the existence of a U.S.-based support network for the hijackers. Encore’s scope has yet to be disclosed, but both the October 2012 and the April 2016 reports make it appear as if its focus was completely on Hazmi and Mihdhdar’s intriguing connections in Southern California – the specific issue for which the New York court authorized ongoing discovery by plaintiffs.

Those connections center on Fahad al-Thumairy, a diplomat and imam at a Los Angeles area mosque when the two hijackers arrived in January 2000, and Omar al-Bayoumi, a part-time student and suspected Saudi agent with a lucrative no-show job with a Saudi contractor to the kingdom.

The two Encore documents make clear the FBI suspected both men of having wittingly helped Hazmi and Mihdhdar in their terrorist mission. A third “main subject” of Encore was ex-Saudi embassy official Musaed al-Jarrah, who the 2012 FBI report says “tasked al-Thumairy and al-Bayoumi with assisting the hijackers.”

Numerous other government records about 9/11, including Encore documents, are currently undergoing declassification reviews per President Biden’s recent executive order. The first batch of records to be readied for public release by Nov. 2 include “all other records that previously were withheld as classified, in full or in part, during discovery” in the New York lawsuit, and “the 2021 FBI electronic communication” that formally closed Operation Encore earlier this year.

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