Fight within a fight: 9/11 widows and children appeal to force dismissal of thousands of wrongful death judgments given to non-heirs

9/11 widows
New York City Manhattan downtown skyline at night from Liberty Park with light beams in memory of September 11 viewed from New Jersey waterfront. Photo: IStock rabbit75_ist

By Dan Christensen,

In the 20 years since it began, the consolidated New York federal lawsuit brought by 9/11 victims has focused largely on allegations that the Kingdom of Saudi Arabia aided and abetted the 19 hijackers who killed nearly 3,000 people in the al Qaeda attacks of Sept. 11, 2001.

But in the last couple of years, as wrongful death claims have multiplied, the case’s immense docket has become an unwieldy monster – a thicket of 9,200 memorandums, briefs, replies, judgments, endorsements, transcripts, declarations, letters, notices, proposed orders, opinions and motions. That doesn’t count an accompanying river of multi-page exhibits.

Much that might shed new public light on the deadliest terrorist strike ever to occur on American soil remains hidden away behind a judicially consecrated curtain of secrecy deferentially erected at the government’s insistence to protect “national security.”

Today, the docket is often devoted to tracking various court actions involving two states that the court already has found liable to pay billions in 9/11 wrongful death claims: the Islamic Republic of Iran and the fundamentalist leaders of Afghanistan, the Taliban. Both were found to have provided material support to al Qaeda that aided the attacks, although much of the evidence against Iran was sealed years ago.

9/11 widows
New York U.S. District Judge George Daniels

While significantly less culpable than Saudi Arabia is alleged to be, Iran and the Taliban nevertheless chose not to appear to answer U.S. lawsuits brought against them. So, New York U.S. District Judge George Daniels assessed billions of dollars in default judgments against them – with no end to such judgments in sight.

But state laws that define who may recover wrongful death damages were not followed. And many awards made by Daniels, who rejected applying state law, were given not to rightful heirs – widows and children who lost their breadwinners – but to non-heirs like parents and siblings of the dead who were not financially dependent on their deceased relative.


Now, with the case against Saudi Arabia still seemingly years away from trial, a handful of 9/11 widows and their children have filed an emergency writ asking the Second Circuit Court of Appeals to force Daniels to dismiss thousands of wrongful death claims against Iran and the Taliban that he previously approved for those non-heirs, many of whom didn’t even file their claims until after the statute of limitations expired in 2019.

Why? Because the court committed “clear error” by adding thousands of “immediate family members” who, beyond widows and children, are not heirs under state laws to the pool of those eligible for payouts from the limited-assets U.S. Victims of State Sponsored Terrorism Fund (USVSST), says the 30-page petition for a writ of mandamus filed by New York attorney John Schutty.

The result: “substantially” diluted recoveries by true heirs.

Attorney John Schutty

Another result: the special master of the USVSST announced last week that “there will be insufficient funds to authorize an additional round of payments by January 1, 2024… The USVSST Fund continues to accept applications to be considered for future payment rounds, the timing of which will depend on the availability of funds.”

“The district court should be ordered to apply state estate distribution law to the wrongful death claims,” Schutty’s petition says.

“Relief is sought through this extraordinary remedy because exceptional circumstances exist – no other adequate means exist to obtain Petitioners’ requested relief, and there has been a judicial usurpation of power that will continue to cause irreparable financial injury to the petitioners…through erroneous, non-appealable decisions by the district court,” the petition says.


To make matters worse, the petition says, Daniels declined to enforce the statutes of limitations on claims against Iran and the Taliban made under the Foreign Sovereign Immunities Act (FSIA) and the Anti-Terrorism Assistance (ATA) Program – thereby allowing thousands of claims to be filed recently. Enforced limitations “would protect those authorized heirs who have fled timely claims.”

The petition accuses both Daniels and his magistrate, Sarah Netburn, whose recommendations he accepted, of rending decisions intended to “legislate from the bench by expanding the number of claimants who might recover wrongful death damages over and above what the common law (state) allows.”

U.S. Magistrate Judge Sarah Netburn

“The previous entry of billions of dollars in default judgments against Iran, from which no appeal was possible…improperly allowed thousands upon thousands of non-heirs, under state law, and non-dependents, and those filing untimely claims…to obtain substantial awards,” the petition says.

“Thus, with no right of appellate review previously available in this MDL [Multi-District Litigation] – these ‘non-heirs’ were and will continue to be awarded millions of dollars in damages against Iran through 2039 (under FSIA and ATA) in direct violation of state estate administration laws, state policy and state interests,” the petition says.

The case presents no issues of fact about the events of 9/11, only “pure questions of law, the petition says.


There are an estimated 2,800 9/11 widows. Much “irreparable harm’ to them and their children has already occurred because of hefty payouts to non-heirs with judgments against Iran, the petition says. That harm is now poised to continue because Judge Daniels recently adopted yet another of Magistrate Netburn’s recommendations that non-heirs be awarded default judgments against the Taliban, the petition says.

Under the ATA, wrongful death actions against the Taliban must have been filed no later than Jan. 1, 2019. The FSIA has a 10-year statute of limitations beginning on the date giving rise to the liability. “Many of the Iran and Taliban wrongful death actions here were, however, filed long after these deadlines,” the petition says.

“Under the district court’s order, no statute of limitations ever exists as to any defendant-in-default. This leads not only to absurd and unjust results, it invites serious consequences. The district court has opened the floodgates to tens of thousands of potential plaintiffs who may now file 9/11 claims in the decades to come…at the expense of the judiciary and the plaintiffs who have filed timely claims. Surely, that cannot be correct,” the petition says.

“A level of control over the docket by this Court is desperately needed. Here, the enormous and unmanageable size of the ever-expanding docket in this MDL [Multi-District Litigation], and the district court’s failure to enforce a statute of limitations defense in favor of those plaintiffs who have filed timely claims directly implicates the institutional interests of the judiciary.

“Granting this petition will materially advance the ultimate termination of this two-decade-long litigation and resolve uncertainty that surrounds thousands of wrongful death claims asserted against Iran and the Taliban,” the petition argues. The appeals court can accomplish that “by completely ending” the litigation as to thousands of plaintiffs.

The victims’ fund, established by Congress in 2015, is endowed by appropriations and monies obtained by federal law enforcement through violations of the Trading with the Enemy Act, the International Emergency Economic Powers Act or similar offenses. Its pro rata payments on eligible claims are made until they’ve been paid in full or the fund terminates in 2039.


According to a Justice Department press release in April, the fund to date has paid victims of international terrorism and their families (including non-9/11 victims) more than $6 billion. The number of eligible claimants has grown from over 2,000 in 2017 to over 15,500 today. Of those, 12,117 claimants are 9/11 victims and their family members (heirs and non-heirs), while another 3,652 claimants involve other acts of international state-sponsored terrorism.

One of the women Schutty represents in the appeal is Lisa O’Brien. She is the widow of Timothy O’Brien, a managing director at the financial services firm Cantor Fitzgerald who on 9/11 was at work at the firm’s offices on the 105th floor of the World Trade Center’s North Tower.

Timothy O’Brien

Lisa O’Brien and her three children are the New York state-designated heirs of Timothy O’Brien. In a declaration filed with the appellate court, she says she was until recently unaware that her “ex-in-laws (my deceased husband’s parents and siblings)” had filed separate wrongful death suits and that they’d been awarded “substantial” damages against Iran.

“I was dismayed to learn about how large the awards were to my ex-in-laws and even more dismayed to learn how these judgments affected/reduced the distribution of money from the U.S. Victims of State Sponsored Terrorism Fund to me and my children.’’

A listing of those awards against Iran shows that in 2017. Timothy O’Brien’s parents, Bernard and Marilyn O’Brien, were each awarded solatium damages of $8.5 million. Five brothers and sisters were awarded $4.25 million each in 2019, while the same claim by a sixth sibling is pending judgment. That brings the total to $42.5 million.

In contrast, Lisa O’Brien was awarded $12.5 million and her children $8.5 million apiece in solatium damages against Iran in 2020. Total: $38 million.

Much of that money has been paid, subject to caps by the fund which limit the legal heirs to a total of $35 million for all damages. The in-laws had a total cap of $20 million.

“What is undeniable is that the recoveries of parents and siblings necessarily decrease the fund’s assets and limit what is available to heirs,” her declaration says.

In 2022, the same multi-million-dollar awards were made to the heirs and non-heirs of Timothy O’Brien against the Taliban. None of those awards has been paid out yet.

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Latest comments

  • You mean New Yorkers are exploiting the shiit out of this tragedy? You mean people who had nothing to do with 911 and suffered nothing are making millions?? So unlike New Yorkers.

  • And now Congress is trying to re-write the law to allow corporations to file lawsuits under terrorism laws. There seems to be no end in sight for the 9/11 “money-grab.”

    Such a re-writing of terrorism legislation knowingly harms the rights of widows & children of those killed in terror attacks, including the 9/11 attacks.

    Why would any Senator ever allow business and property interests to trample the rights of innocent widows and children?

    Corporate/business “losses” of money should never be equated to the horrific loss of human life in terror attacks. The two kinds of loss (money vs. human life) are simply incomparable–>and Congress should know that.

    No Senator (especially those who take large contributions from corporate entities) should be allowed to re-write terrorism laws to serve corporate/business interests at the expense of innocent civilians like the 9/11 widows and children. Doing so is un-American, and hurting the very people these Senators so solemnly promised to protect and never forget.

  • What wasn’t addressed in this article is the degree of conflicts of interests that plague this litigation. Many of the attorneys represent multiples classes of clients with competing interests and for some reason the court allows such simultaneous representation to continue to the detriment of the proper heirs who are the spouses and children of those killed. This results in the case docket spiraling out of control with tens of thousands of plaintiffs who none of whom will see any real justice. What has been allowed to happen here has been a terrible injustice to the actual death victims and their dependents. I really wonder if the judges and lawyers can put themselves in our position and imagine the impact it would have on their families. Would they make the same decisions or would they want proper wrongful death laws applied.

  • The 9/11 parents & siblings were in this USVSST fund before the 9/11 wives were & now that they are apart of the fund they want to kick out the parents & siblings! Yes, they want to get the Parents of their 9/11 spouse kicked out of the fund. Saying b/c the parents & siblings are in the fund, they take up too money, money they want for themselves. Even though the 9/11 wives will also get paid through this fund, they are demanding the 9/11 parents & siblings be thrown out of the fund, saying this will help make their payments be bigger paychecks.

    These 9/11 wives who have been paid through the VCF, & just recently the 2,800 9/11 wives all shared $3.5 billion dollars amongst themselves for The Fairness for 9/11 Families Act, want more. How much will ever be enough for the 9/11 wives. One would think they would be happy their husband’s family is remembered & included in something.
    But that isn’t the case. Sad

    What could be worse than losing a loved one on 9/11? These two groups should be a community together. But yet, these wives are insistent on fighting about money.

  • What is not being said in this article is the conflicts of interests the attorneys have because their representation of many different classes of clients all with competing interests. This has resulted in tens of thousands of claims being filed in the 9/11 litigation to the detriment of the rightful heirs who are the only ones who should be allowed to sue in a wrongful death. The docket is spiraling out of control. The actual death victim and their dependents, who filed their claims on time in 2003 are being harmed. It is a inconceivable miscarriage of justice being brought against people who have and continue to endure their immeasurable loss every day. I wonder if the enablers of this broken system would feel the same way if it was their families being treated and harmed.

  • “9/11 JUSTICE”, What is sad is that you don’t seem to know that under the law, non-dependents are not allowed to recover for wrongful death in NY state. What that means is that if the judge had followed the law in the 9/11 case (or if the defendant, Iran, had appeared in the case and not been in default and asked for the law to be applied by the Court), your claims would have been dismissed and you would not have received a judgment. In NY, NJ, and CT, only people who are financially dependent on the person who died are able to recover money damages. That’s the LAW because it makes sense. You should be grateful that you received a judgment and got paid any money in the fund. If the law was followed, you would not have received any money whatsoever. Now that you are in the fund, and have received a judgment like thousands of other non-heirs (ie. those who were not financially dependent on the person who was killed and/or lived under the same roof as the person that was killed and should have never received an Iran judgment in the first place), the dependent spouses and children who are legally entitled to receive money damages for their parent/spouse who was killed receive 60% less compensation than what they are allowed under the law. How would your child have felt to know that his own parents and siblings took money out of his own spouse’s and children’s hands? His own parents and siblings collected millions of dollars when his own young children were barred from payment?? Many who had wills that reflected their wishes made it very clear that if they died, all of their money should go to their spouse and children. The wishes of the dead were ignored. The law was ignored. And people like you seem to wrongfully believe that you are entitled to money when you are not.

  • As a 9/11 widow, I, like many others, shared the money I received from the initial VCF 1 fund with my in-laws. It was a gesture of family support that many of us felt we could afford to do, given the tragic circumstances.

    However, we never anticipated that those same in-laws would later try to claim funds that rightfully belong to us and our children, even in cases where we might need it later due to unforeseen circumstances like cancer. If state recovery laws were properly applied, there would be no need for such competition over funds, and the animosity that has developed within some families could be avoided.

    It’s unfortunate that such situations arise just when we need each other the most.

  • I can’t imagine any parent or sibling would ever take money from a fund and not give it to the widow and children. What is not said here is those dollar amounts are not what widows and children actually received! They got a penny on the dollar! This is extremely misleading! The rightful heirs of the deceased are his or her surviving spouse and their blood children. The entire fiasco paying parents and sibling was done without even notifying the heirs. They were secretly paid. That says it all! The lawyers who are supposed to be representing the heirs are also representing anyone who files a claim. Absolute injustice to rightful heirs. This Court has enabled the lawyers to counsel, represent and collect fees from clients who are literally taking money from the 911 spouses and children!

  • I have seen firsthand what the fall out has been to the dependents spouses and children from these heartbreaking decisions made by the system that was supposed to protect them. They, the rightful heirs extended families have been torn apart by greedy entities (lawyers) that used their persons death to their financial gain. In what world are those rightful heirs (by law) rights being trampled ok? The grief these families have had to go through is going on 22 years and there is no end in sight. These children suffer every day. I hope the 2nd circuit court follows the law so these children and their parent can achieve the justice that has been marginalized from the day after September 11th.

  • New York Laws don’t apply in federal lawsuits. The federal judge does not have to follow New York law. I think the widows and children are being taken for a ride by their lawyer

  • heyjoe–A few things for you to consider: (1) In 2001, congress passed legislation (ATSSSA of 2001) that required that all lawsuits from 9/11 that resulted from the crashes at the Twin Towers were to be in SDNY and follow NY law. In the 9/11 case, no choice of law analysis was ever done by the Court mostly because the attorneys didn’t ask for it. Recently, John Schutty has brought the choice of law issue to the court’s attention. And that’s what will hopefully be heard and considered by the Second Circuit via John Schutty’s Writ of Mandamus that’s talked about in the article above. (2) There’s a reason why Congress and DOJ didn’t allow for the non-heirs to recover in the VCF1–because under NY law, they were not dependent spouses living under the same roof as the person who was killed. For some reason the current Judge has forgotten that fact. Interestingly, the Judge back in the early days held that the non-heirs had no right to claims and that it was the Personal Representative who had the right to pursue a claim for the death. This, too, seems to have been forgotten (or overlooked) by the current Judge. (3) Under JASTA as it is currently written, the law allows for persons with “physical injury” to file suit. The Second Circuit held that “physical injury” is not emotional injury. As such the solatium damage awards (emotional damage awards) of the non-heirs (under the federal law you cite), are not supposed to be allowed to proceed by the Court. That’s why defendants like Sudan (and soon to be Saudi Arabia) have asked the non-heirs to be dismissed from the cases under the “federal law” that you cite.
    Here is the cut and paste from ATSSSA 2001 which by the way was an unconstitutional law since it was an agreement based on fraud, made under duress, and took away the rights of the people killed on 9/11 after the fact (ie. after they were murdered). Nevertheless, here is the part of that law you might want to consider. To reiterate, the Judge has not done any choice of law analysis in the case. That is a gross miscarriage of justice that harms the dependent widows and children of those that were killed on 9/11:
    (2) SUBSTANTIVE LAW.—The substantive law for decision
    in any such suit shall be derived from the law, including
    choice of law principles, of the State in which the crash occurred
    unless such law is inconsistent with or preempted by Federal
    (3) JURISDICTION.—The United States District Court for
    the Southern District of New York shall have original and
    exclusive jurisdiction over all actions brought for any claim
    (including any claim for loss of property, personal injury, or
    death) resulting from or relating to the terrorist-related aircraft
    crashes of September 11, 2001.

  • Hey NYC.WTC2, you have more than a few things wrong with your analysis, some of which are echoed in Mr. Christensen’s article.

    First, your choice of law comments and reliance on the ATSSSA of 2001 are flawed. To start with, the ATSSSA does not requires all lawsuits that resulted from the crashes at the Twin Towers to be filed in the SDNY and to follow New York state law, only those addressed by the ATSSSA. When you cut-and-pasted the section of the ATSSSA, you did not include the heading of the section you cited, which is titled “Limitation on Air Carrier Liability”. In fact, the ATSSSA (the Air Transportation Safety and System Stabilization Act) was very much about managing the liability of air carriers and other participants in the U.S. aviation industry. Indeed, the very next subsection after the portion you cut-and-pasted (at Section 408(c)) says “Nothing in this section shall in any way limit any liability of any person who is a knowing participant in any conspiracy to hijack any aircraft or commit any terrorist act.” In short, the portion you quote does not apply to the 9/11 MDL suit against the defendants alleged to have participated in the 9/11 terrorist attacks, as you suggest. Moreover, even if the quoted provision did apply, your analysis overlooks one of the overarching principles and that portion of the quoted text that requires the court to apply relevant federal statutes.

    The application of multiple federal statutes to the plaintiffs’ claims raises another flaw in your analysis. Your comments adopt Mr. Schutty’s erroneous assumption (also wrongly assumed in Mr. Christensen’s article) that all of the cases are only “Wrongful Death” cases, suggesting (wrongly) that every complaint in every case has only a single claim for “wrongful death” under individual states’ wrongful death statutes. In fact, in all the cases against Iran and Sudan, the complaints included claims under a federal law, the Foreign Sovereign Immunities Act, which specifically provides individualized claims for “solatium” distinct from any death claim on behalf of the murdered person’s estate. Courts have routinely interpreted that statute to afford claims by close family members (including spouses, children, parents, siblings, or the functional equivalent of any of these categories) for emotional distress caused by the death of their family member.

    The complaints also include claims against the Taliban, Saudi Arabia, and other defendants, under another federal law, the Antiterrorism Act, which allows any U.S. national to sue for injury to his or her person, property, or business, due to an act of international terrorism, and extends that right to sue to “his or her estate, survivors, or heirs.” As the court overseeing this lawsuit told Mr. Schutty twice (after reading briefs and hearing oral arguments, including from lawyers for other plaintiffs who argued that Mr. Schutty was misreading the law), the Antiterrorism Act has long been interpreted to allow claims by close family members of those killed in terrorist attacks much like the solatium claims afforded under the Foreign Sovereign Immunities Act.

    These solatium claims, whether under the Foreign Sovereign Immunities Act or the Antiterrorism Act, are not wrongful death cases, do not flow through the estates, and are independent of any state’s wrongful-death laws. Not only has Judge Daniels found that here, but he based his determination on the fact that this principle has been adopted in virtually every other terrorism-related case arising under the Antiterrorism Act (or Foreign Sovereign Immunities Act). So, as aggressively as this has been argued, the argument has been rejected when it was made to other courts, when it was made to this court, and was even rejected by the other plaintiffs’ lawyers in this litigation.

    In the article, Mr. Christensen underscores Mr. Schutty’s argument that the judge has done something wrong in allowing the family-member claims to proceed to judgment, but because not all claims fall under the state wrongful-death laws, the court did not get that wrong. Moreover, the assertion in the article that certain plaintiffs would suffer “irreparable harm” if the direct blood relatives of the murdered family members do not have their claims extinguished seems backwards. No one seems to be arguing that Mr. Schutty’s clients have no right to recover for their losses. But Mr. Schutty’s clients do seem to want to cause irreparable harm by preventing the direct blood relatives from asserting claims recognized under federal statutes. Perhaps Mr. Schutty’s clients, widows and children of those murdered on 9/11, who suggest that only the widows and children have suffered loss from the attacks, might consider whether they would have suffered grief and loss if their own child had been murdered in the attacks.

    In fact, Mr. Schutty’s arguments undermine his own clients claims and judgments that are not premised on states’ wrongful death laws. The court’s judgments for each of the widows’ and children’s individual solatium claims, outside of the respective estates, are subject to precisely the limitations that Mr. Schutty (wrongly) argues apply to the other plaintiffs’ claims and judgments. If the parents and siblings do not have valid claims, as Mr. Schutty (wrongly) argues, then these judgments awarded directly to the spouses and children also have no basis in law as the wrongful-death claims are only available to the estate through its representative.

    Second, your comments about what the VCF did really do not matter because the VCF was a statutory creation that was governed by the statute that created it, and regulations authorized under the statute. It was not a judicial body, and determinations by the Special Master were not subject to review in the courts. A number of other aspects about the VCF did not line up directly with what happens in U.S. civil litigation. And given that people were killed and/or injured in the attacks in New York, Pennsylvania, and Virginia, the argument that New York law had anything to do with the VCF is laughable. So, I would not put much stock in that “thing to consider”.

    Third, your reference to how the term “physical injury” is used in JASTA is not just wrong, but very wrong. The only reference to “physical injury” in JASTA, in Section 3, removed immunity of foreign states “in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States” and two additional causation conditions are met. So, the only reference to “physical injury” in JASTA is not about (as you suggest) whether these blood relatives of the decedent have the right to sue; it is limited to the issue of whether the foreign state sued has immunity from suit. Regardless, because each of the direct blood relatives who lost loved ones are all instances where money damages are being sought from a foreign state for a death occurring in the United States, the provision would apparently apply to them. And if the foreign state is not immune, then claims by U.S. nationals may be brought in accordance with the Antiterrorism Act which, as stated previously, permits the solatium claims.

    Fourth, the argument Mr. Schutty advances would weaken the Antiterrorism Act, against all our interests. As the courts have explained, a core purpose of the Antiterrorism Act when it was enacted was to deter would-be evil-doers from engaging in, or providing material support for terrorist attacks. Congress intentionally authorized broad remedies because exposing would-be wrongdoers to greater potential penalties enhances the statute’s deterrent effect. The net effect of Mr. Schutty’s argument would effectively immunize the wrongdoers for real losses suffered by thousands of people. (Please don’t be that person that stands as the jury to divine whether someone else experienced loss from a loved one’s murder.)

    Fifth, and related to the last point, it seems that Mr. Schutty’s arguments help the wrong side. Thousands upon thousands of people suffered the excruciating loss of spouses and blood relatives in the September 11th attacks, and many thousands more suffered injuries. Mr. Schutty’s arguments would help to ameliorate the penalty imposed on those who would be found responsible if plaintiffs make their case. Why would a small set of plaintiffs be advancing an argument that would hurt other people who also suffered grievous losses, and would help the very bad guys that they, too, claim caused the atrocities on that day?

    Sixth, it seems that Mr. Schutty has filed a lot of paper in the litigation making these same arguments over and over (always unsuccessfully), but I have not seen his name associated with any of the work to advance the claims against the defendants that plaintiffs claim are responsible for killing thousands (including his own clients’ loved ones) and injuring thousands more. Wouldn’t it be better if he were to work with the lawyers trying to advance the claims against the wrongdoers (or just stay out of their way), rather than repeatedly advancing arguments that just distract the court and the other lawyers from that task? That would seem especially the case where Mr. Schutty and his clients presumably hope to benefit if the case is successful.

  • I can’t imagine a widow getting that kind of windfall over her husband’s tragic death for herself and her kids and not sharing it with in-laws and siblings of the deceased.
    And I’m not feeling the pain of the widow(s) who already collected 35-million+ and are complaining that non-heirs are making claims. Or getting more than they did.
    If you run out of 35-million in your life time (for “cancer”, which is really insulting to this cancer patient on a fixed income with catastrophic debt of nowhere near millions of $$), then, you’re an idiot.
    Mind your own business and move on. Greed will kill you faster than anything.

  • Lets get justice for our loved ones MY SISTER and finish the trial so the terrorist can be sentenced before my mom dies and let the the courts deal with the money issues God Bless

  • I am part of this NY case. My brother and I were on the list for our mother’s death. DID not know corporations and businesses stole money from us. Our mom was the matriarch of our family and it feels like she died yesterday, not 10 years ago from cancer. So am I hearing that we may not get a payment January 1, 2025. And wow people actually got 35 million and want more 😑. We who experienced this tragedy together should not be greedy and fighting. This greed is what the Terrorist said we were from the begining. Let’s not prove them right.

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