The U.S. is asking a federal judge to allow it to file secret legal arguments in the mammoth New York lawsuit against Saudi Arabia brought by 9/11 families and survivors.
If the court allows it, the government’s hidden line of reasoning would be so secret that even the 9/11 victims and their lawyers would not be allowed to see it.
No final decision has been reached, but on March 31 U.S. Magistrate Sarah Netburn did allow the government to file those legal arguments “ex parte” – for the court’s eyes only – for now. Netburn cited FBI representations about various logistical burdens it faced in preparing classified materials during the COVID-19 pandemic.
“The court will revisit the propriety of the in camera [private] submission when ruling on the merits of the [9/11 families’] motion to compel,” Netburn wrote.
“The court is not inclined to permit the submission of fully classified legal arguments or case citations unless the FBI can demonstrate that even that disclosure could tend to reveal classified information.”
Meanwhile, as New York City’s federal judges continue to work from home, “the Court will be unable to review the classified materials until the court resumes full operations.”
Plaintiffs suing the kingdom have asked the court to compel the FBI to cough up untold classified documents regarding alleged Saudi government support for the al Qaeda terrorists who attacked New York and Washington on Sept. 11, 2001.
The Justice Department, however, says it needs such extraordinary secrecy to protect national security while it explains why the FBI should be allowed to withhold that evidence from the 9/11 families and the public.
Senators seek probe
On Monday a bipartisan trio of U.S. senators sent a letter to Department of Justice Inspector General Michael Horowitz citing apparent “major abnormalities” in the FBI’s handling of a civil subpoena served on the FBI two years ago by the 9/11 families. The letter cites a half-dozen concerns, including “potential efforts to conceal that the FBI’s investigative files are in a state of disorder.”
“We request that you commence an investigation immediately,” says the letter signed by Senate Minority Leader Charles Schumer, D-N.Y.; Republican Charles Grassley, President Pro Tempore of the Senate; and Sen. Richard Blumenthal, D-Conn.
Secrecy is another hallmark of the sprawling civil case. The docket is pockmarked by dozens of sealed court filings the court has allowed at the request of the FBI and/or attorneys for Saudi Arabia.
But the FBI’s latest request for more extreme secrecy has touched off a storm of angry protests from 9/11 survivors and the families of the 2,977 persons who died in the attacks.
“We are infuriated by the letter filed with the court by the Federal Bureau of Investigation March 27, which now proposes to file under seal a secret brief and hundreds of pages of classified information,” says a declaration signed by 18 members of one group of plaintiffs.
“We are outraged,” says another signed by more than 60 additional plaintiffs, “that the government now seeks permission to present an entire legal brief to the court that even our attorneys would not be permitted to see. This case represents nothing less than our last chance to secure justice for our murdered loved ones, nearly twenty years after their murder, and we cannot be fairly represented if the government is permitted to conceal evidence on the basis of secret arguments.”
Secrecy in a time of COVID-19
Both sets of signers also expressed concern about such excessive secrecy when the nation is focused on the COVID-19 crisis.
“In such an environment, the government’s tactics will not receive the kind of attention from the media and public that they would normally command,” the second declaration says. “The government’s attempts to evade scrutiny of its arguments is especially concerning given public reporting that calls into question some of the most basic claims the government has presented in support of its efforts to withhold the relevant evidence from us.”
A key focus of the secrecy fight is a 2012 FBI summary report obtained by Florida Bulldog during Freedom of Information Act litigation in 2016.
That heavily censored report – even the investigation’s code name was blanked out – revealed that as late as Oct. 5, 2012 FBI agents and federal prosecutors in New York were actively looking to file charges against a suspect for providing material support to the 9/11 hijackers and other crimes.
Declassified portions of that four-page FBI report indicated that the New York investigation targeted an apparent U.S. support network for two of the 9/11 suicide hijackers – Saudis Nawaf al-Hazmi and Khalid al-Mihdhar – who with three other terrorists crashed American Airlines Flight 77 into the Pentagon.
“This has never been disclosed before and it’s to the contrary of almost everything the FBI has produced so far that has indicated that 9/11 is history,” former Sen. Bob Graham, D-FL, who co-chaired Congress’s Joint Inquiry into the terrorist attacks, told Florida Bulldog.
“It’s interesting that it took them 11 years to get there, and a FOIA to get this information to the public.”
News of the continuing FBI probe was shocking because U.S. officials had repeatedly told the 9/11 families that all questions of Saudi involvement had been resolved by the 9/11 Commission, which closed in August 2004.
In January of this year, the New York Times Magazine and ProPublica jointly reported that the 2012 FBI investigation was the result of a “bitter rift with the bureau over the Saudi connection.” The story detailed how some suspicious agents had continued to investigate the connection until their efforts were unceremoniously shut down by FBI leaders in 2016.
The story said the investigation was code-named “Operation Encore.”
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