By Dan Christensen, FloridaBulldog.org
As the massive 9/11 lawsuit against Saudi Arabia plods on toward a looming decisive moment, tantalizing bits and pieces about new evidence are once again trickling out.
The most dramatic disclosure is of the existence of a video that “purportedly shows [Omar al] Bayoumi ‘casing’ the United States Capitol,” according to a January 26 order by U.S. Magistrate Sarah Netburn which was unsealed Thursday.
Bayoumi, publicly identified by the FBI as a Saudi spy, is one of two Saudis with extensive contacts to two 9/11 hijackers in southern California into whom the court has allowed a “limited” inquiry by attorneys for the 9/11 plaintiffs. The other Saudi is Fahad al Thumairy, who was then both a local religious leader and an official at the Saudi consulate in Los Angeles.
The video was among a collection of documents and footage released to the plaintiffs in March 2022 and December 2023 by London’s Metropolitan Police Service, which investigated Bayoumi shortly after the al Qaeda terror attacks on New York City and Washington on Sept. 11, 2001.
Court records say Bayoumi made the recording while on a trip to Washington, D.C. in June-July 1999. Plaintiff’s lawyers had retired FBI agent Bassem Youssef analyze the video, and he is apparently the person who characterized Bayoumi’s actions as ‘casing’ the Capitol.
Either the Capitol or the White House have long been considered the target of the United Airlines Flight 93 hijackers, who were ultimately defeated by passengers who stormed the cockpit and caused the hijackers to push the jet down into a field near Shanksville, PA. Everyone on board, 44 passengers and four suicide hijackers, died.
SAUDI ARABIA MOVES TO DISMISS
News of the video’s existence comes as the kingdom and its co-defendant, the Saudi-based aviation services company Dallah Avco, recently made extensive court filings – many closed to the public – seeking to have all the claims against them dismissed on jurisdictional grounds. That is, that the court has no jurisdiction to decide the case because no evidence has been presented that Saudi Arabia has done anything wrong.
“The Kingdom of Saudi Arabia did not support the horrific terrorist attacks that struck its longstanding ally the United States of America on September 11, 2001,” lawyers for the kingdom wrote in a 42-page redacted motion to dismiss filed in late November. “Those attacks were carried out by the terrorist group Al Qaeda, whose leader Osama bin Laden had years earlier declared Al Qaeda an enemy of both the United States and Saudi Arabia. Long before the 9/11 attacks, Saudi Arabia’s most senior political leaders revoked bin Laden’s citizenship, froze his assets, and worked to bring him to justice. Its most senior religious leaders denounced terrorist attacks as contrary to Islam. Allegations that Saudi Arabia has been anything but a friend to the United States – or anything but a foe to Al Qaeda – lack any basis in fact.”
The plaintiffs, 9/11 victims and family members, countered on Dec. 20 with “two briefs, an averment of facts, and hundreds of documentary and multimedia exhibits.” All those materials are sealed. Magistrate Netburn’s order was a ruling on defense efforts to quash portions of those materials as improper due to violations of the court’s discovery orders and briefing schedule. She granted part and denied part of those efforts.
FBI records declassified and made public following President Joe Biden’s executive order in September 2021 requiring the bureau to review and release as many records as possible from Operation Encore, its once-secret probe into Saudi complicity in 9/11, identified Bayoumi as one of about 50 “ghost” employees who were paid by Dallah Avco, but didn’t do any work.
Bayoumi is known to have helped hijackers Nawaf al Hazmi and Khalid al Mihdhar with numerous day-to-day activities, like finding a place to live, shortly after they arrived in Los Angeles in January 2000. He has told authorities he met the future hijackers by chance at a Los Angeles restaurant.
Hazmi and Mihdhar were part of a five-man al Qaeda crew that commandeered American Airlines Flight 77 and crashed it into the Pentagon, killing themselves, 53 passengers and six crew members. Another 125 people in the Pentagon died, and 106 were wounded.
MORE SECRECY
Neither Bayoumi’s video of the Capitol nor Youssef’s report about it are public. And in her 14-page order, Magistrate Netburn ruled that it won’t be allowed into evidence because plaintiffs’ attorneys were late in providing a copy to the defense, in violation of court rules, and as a result prejudiced the defense which had no opportunity to challenge Youssef’s findings.
An earlier “timely” report by Youssef was not affected by the order. It “addressed Saudi Arabia’s use of diplomatic outposts in the District of Columbia and Los Angeles to export extremism; the roles of Thumairy and Bayoumi in those efforts; and the significance of Saudi Arabia’s support for extremism to the operation success of the 9/11 attacks,” Netburn wrote. It remains in the case as “expert” testimony.
Lawyers for Saudi Arabia won most of their challenges. One they did not win, despite Netburn’s conclusion that the plaintiffs had “violated the spirit” of a court rule, was their attempt to exclude parts of the plaintiffs’ 2,118-paragraph statement of the facts offered to foil the Saudi’s motion to dismiss.
The rule regarding how factual averment should be presented to the court was intended to “streamline” arguments “and spare the court from scouring hundreds of exhibits to find potentially dispositive nuggets of information,” Netburn wrote. She then cited from a 1991 case, “After all ‘judges are not like pigs, hunting for truffles buried in’ the record.”
Yet after concluding that the plaintiffs’ presentation leaves “the court no choice but to root around in the averments” she stated that the Saudi’s proposed remedy – striking entire passages of offending text – “would go too far.”
NEW WITNESSES EXCLUDED
Netburn sided with the Saudis in deciding to exclude the declarations of three new fact witnesses – Brian Weidner, Usman Madha and James Heavey – and the expert witness declarations of William Adams and, insofar as the Bayoumi ‘’casing’’ the Capitol video, Bassem Youssef. The principal reason: the failure to timely disclose the new witnesses to the defense.
The order describes Weidner as an ex-FBI agent and longtime consultant for plaintiffs’ counsel, who gave a sworn statement about the “purpose and significance” of a 130-page July 2021 FBI report.
Madha was a “regular attendee at two Los Angeles mosques and worked for the Islamic Foundation of Sheikh Ibn Taymiyah from 1998 to 2013. In that capacity, he had contact with Thumairy and other people of interest in this litigation.” He made a “timely” declaration regarding those contacts and was deposed by the defense in 2021. But two years later he reviewed “footage and photographs” released by London’s Metropolitan Police Service and wrote a second declaration that was excluded.
Heavey is identified in the order as “a Greenwich Parks and Recreation employee whose declaration discusses the visibility of the World Trade Center from Greenwich Point Park” in Connecticut on Long Island Sound. The significance of this isn’t discussed further.
Expert witness Adams is described as a “digital visualization” specialist who provided reconstructions “of an event” based on video, photographs and floor plans.
A Feb. 9 letter from plaintiffs’ lawyers to Netburn asked her to unseal her order, “but also all of the parties’ supporting and opposing filings.” That includes the Saudis’ exhibits “and all referenced materials produced by the Metropolitan Police Service.”
“Given the tremendous public interest in this vast MDL [Multidistrict litigation] addressing liability for the worst terrorist attack on U.S. soil, the bright light cast upon the judicial process requires that the public have access to not only the Court’s decision, but also [to] all of the materials ‘placed before the court…and relevant to the performance of the judicial function and useful in the judicial process,’ ” wrote attorneys Robert Haefele, of Mount Pleasant, SC, and Sean Carter, of Philadelphia.
“In this instance, those materials include each of the letters and all of the exhibits placed before the court for the court’s consideration in determining the defendant’s motion to strike evidence from the record on the two defendants’ pending dispositive motions. The public’s continued confidence in the judicial process requires that the public have access to both the decision as well as what was available for the court to consider in reaching its decision.”
In her order this week unsealing her Jan. 26 order, the magistrate gave lawyers for Saudi Arabia and Dallah Avco until Feb. 21 to respond to the plaintiffs’ request to unseal all the other material.
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