Discovery phase will focus on two Saudis in southern California accused of aiding hijackers who attacked Pentagon
By Brian P. McGlinchey
U.S. District Judge George Daniels has rejected Saudi Arabia’s motion to be removed as a defendant in a civil suit in which thousands of 9/11 family members, survivors and insurers allege Saudi government officials and agents supported the al Qaeda plot that killed 2,996 people, injured more than 6,000 others and caused billions of dollars in damage to businesses and property.
From a Saudi public relations perspective, the timing of the decision is particularly inopportune: Crown prince Mohammed bin Salman is in the midst of an aggressive two-week tour of the United States aimed at rehabilitating the kingdom’s image. Continue reading →
On Tuesday, U.S. District Court Judge George Daniels dismissed claims against Saudi Arabia by 9/11 family members, survivors and insurers who allege that the kingdom provided financial and other support to the September 11 hijackers. An appeal of the decision is likely.
Meanwhile, as the case stalls for a lack of evidence, 28 secret pages said to describe specific indications of foreign government support of the 9/11 hijackers remain unavailable to victims and their attorneys. An intelligence community review of the pages for possible declassification continues to languish, having already taken more than twice as long as the entire 9/11 inquiry that produced the pages.
Sean Carter, one of the attorneys for the plaintiffs, told Reuters, “Evidence central to these claims continues to be treated as classified. The government’s decision to continue to classify that material certainly factored into this outcome.”
Foreign Governments Protected from Most Suits
American law presents a high hurdle for anyone suing a foreign government. “Generally, foreign governments and their instrumentalities can’t be sued in the United States,” Villanova University law professor Tuan Samahon explained to 28Pages.org. “They enjoy immunity by federal statute. There are exceptions to that immunity and the 9/11 plaintiffs were suing under one of those exceptions.”
The decision should not be perceived as an exoneration of Saudi Arabia. “It was a jurisdictional dismissal,” says Samahon. That is, the decision reflected the judge’s opinion that the plaintiffs did not present enough evidence to persuade the court that an exception to the U.S. Foreign Sovereign Immunities Act (FSIA) applied to the case.
For the case to proceed, the plaintiffs needed to persuade Judge Daniels that individuals acting within the scope of their employment by Saudi Arabia committed “tortious conduct” inside the United States by helping the 9/11 hijackers advance their terror plot.
In his 21-page opinion, Daniels concluded that the plaintiffs failed to make that case. He said allegations about, for example, extensive assistance provided by suspected Saudi operative Omar al-Bayoumi to hijackers Nawaf al-Hazmi and Khalid al-Midhar, relied on speculative conclusions rather than compelling proof that al-Bayoumi was directed by the Saudi government to furnish that assistance to facilitate terrorist activity.
President Obama is said to have twice promised 9/11 family members that he would release the 28 pages. His failure to fulfill that promise in timely fashion may well have prevented an otherwise viable case from clearing the FSIA hurdle. “Having the 28 pages would have gone a long way to do that,” says Villanova’s Samahon.
Undermined by the U.S. government’s refusal to share everything it knows about the September 11 attacks, the pursuit of justice by 9/11 family members and survivors could be stopped in its tracks within the next 90 days.
In a courtroom just minutes from the World Trade Center, lawyers for the Kingdom of Saudi Arabia last Thursday asked Judge George Daniels to release the kingdom from a lawsuit seeking to hold it liable for aiding the 9/11 hijackers.
Representing Saudi Arabia, attorney Michael Kellogg said the victims have failed to provide “admissible, concrete, competent evidence” of Saudi Arabia’s complicity in the attacks.
Meanwhile, a 28-page chapter from a 2002 joint congressional intelligence inquiry that might tip the scales of justice in the plaintiffs’ favor remains out of reach, thanks to President Obama’s reluctance to declassify it.
Sean Carter, who represents the families and survivors, told New York’s PIX11 News, “The nature of Saudi support of al Qaeda remains classified at this point…it’s an issue that is featured in a whole range of intelligence documents…there is no real reason for them to be remain classified this many years out.”
The 28 pages detail specific sources of financial support for the hijackers and, according to former Senator Bob Graham, “point a very strong finger at Saudi Arabia as being the principal financier” of the attacks that killed 2,977 people. Graham and many others who’ve read the 28 pages insist there is no national security justification for the secrecy.
Saudi Arabia’s attorneys claim the 9/11 Commission Report exonerated the kingdom, a notion that’s refuted by, among others, commission member Bob Kerrey. In a sworn statement submitted for the suit last year, the former Nebraska senator wrote, “To the contrary, significant questions remain unanswered concerning the possible involvement of Saudi government institutions…and evidence relating to the plausible involvement of possible Saudi government agents in the September 11th attacks has never been fully pursued.”
The debate over the commission’s conclusion may be rendered moot with the release of the 28 pages: Congressman Walter Jones, who is leading the declassification drive in the House of Representatives, told the New Yorker “those 28 pages tell a story that has been completely removed from the 9/11 (Commission) Report.”
Will Judge Daniels “Connect the Dots”?
According to Michael D. Goldhaber, writing for The American Lawyer, Thursday’s courtroom exchanges emphasized a February 2000 meeting at the Saudi consulate in Los Angeles between alleged San Diego-based Saudi agent Omar al Bayoumi and embassy staffer Fahad al Thumairy. Plaintiffs attorneys and many observers point to that meeting as evidence of Saudi ties to the 9/11 plot.
Immediately after the meeting, al Bayoumi went to a restaurant where he said he just happened to befriend 9/11 hijackers Nawaf al Hazmi and Khalid al Mihdhar, who had only days earlier arrived in the United States. (According to Graham’s book, “Intelligence Matters,” before leaving San Diego for Los Angeles that day, al Bayoumi told at least one person he was going to pick up visitors.)
Al Bayoumi proceeded to help the two move to San Diego, initially hosting them in his own home. He helped them find an apartment, paid their first two months rent and introduced them to a network of associates that included Anwar al Awlaki, who would become a prominent al Qaeda figure before dying in a U.S. drone strike in 2011.
Al Bayoumi’s wife served as a conduit for cashiers checks routed from a Saudi princess, and al Bayoumi himself received a dramatic, temporary raise at his no-show cover job coinciding with his generous sponsorship of the pair. On 9/11, al Hazmi and al Mihdhar hijacked American Airlines Flight 77, which hit the Pentagon.
That mountain of circumstantial evidence, however, might not be enough to dissuade Judge Daniels from dropping Saudi Arabia from the suit. According to Goldhaber, Judge Daniels challenged the plaintiffs’ attorneys on exactly what was said at al Bayoumi’s meeting at the Saudi consulate, asking, “What’s the factual basis for you to allege that when al Thumairy met with al Bayoumi he said, ‘Give lodging to the hijackers, assist them and give financial support to the hijackers so that they can carry out the 9/11 attacks?’”
Summing the situation, Goldhaber writes, “The quest for historical truth threatens to founder on the judge’s futile desire for direct knowledge of espionage….This case ain’t going to trial against Saudi unless Judge Daniels is willing to connect the dots. The irony is that Daniels already entered a $6 billion default judgment against Iran on far weaker evidence.” (Indeed, even the word “evidence” seems too generous in the context of that case.)
Judge Daniels said he would render his decision within 90 days.
Heightened Urgency for Declassification Effort
Last summer, President Obama tasked the Office of the Director of National Intelligence (ODNI) to review the 28 pages for potential declassification. With a year passing since that order, and with the clock ticking on Judge Daniels’ self-imposed deadline, citizens, journalists and legislators should all be asking the White House one simple question: What’s taking so long?