by Tom Flocco *
July 11th, 2002
On June 20, Bush Administration officials quietly informed a New York judge of their intention to commence legal actions likely to be far-reaching in their constitutional, political, and individual rights implications pertaining to current lawsuits and government secrecy related to the attacks on September 11, 2001. The moves were revealed in a letter obtained from a confidential source, with two other sources corroborating its existence, adding additional information.
U.S. Assistant Attorney General for the Civil Division Robert D. McCallum, Jr. and United States Attorney for the Southern District of New York James B. Comey advised U.S. District Judge Alvin Hellerstein, also of the Southern District of New York, that the Department of Justice (DOJ) will intervene to control access to all evidence and documents related to all private litigation before Hellerstein’s court regarding the terrorist attacks of September 11, 2001 -- citing “grave national security concerns” as their motivation.
The McCallum and Comey correspondence advised Judge Hellerstein of their intention to “seek [court] entry of a global discovery order [effectively controlling evidence obtained from any country],” requiring that 1) “Transportation Security Administration (TSA) be served with [have prior access to] all requests for party and non-party discovery,” 2) “defendants and non-parties submit all proposed discovery responses that may contain ‘sensitive security information’ (SSI) to the TSA prior to releasing such material to plaintiffs,” and 3) “TSA have the necessary opportunity to review such material and to withhold ‘sensitive security information’ ” [from victim-family attorneys].
One victim family plaintiff -- speaking off the record -- told Scoop Media that family members and their attorneys have not yet sought internal memos, electronic mail, facsimiles, and documents which would shed public light upon what had to be extraordinary legal maneuverings. However, added high stakes related to the publicly undisclosed contents of the controversial August 6, 2001 Presidential intelligence briefing prior to the attacks, and a secret July, 2001 FBI memo -- said to be "50 times more significant than the August 6 briefing," by a Congressional investigator (New York Times, 5-18-2002), will only serve to heighten the importance of the June 20 letter.
Will We Ever Know What Really Happened?
The victim family source complained to Scoop Media that "now the White House is trying to control or block the evidence we need to prove our negligence cases in court." The source then added that offices of United Airlines defense firm Mayer-Brown and lead attorney Michael Feagley, TSA, Bush Attorney General John Ashcroft’s Justice Department, Judge Hellerstein’s District Court, and the White House Counsel’s office were all likely involved in the legal machinations.
The resumes of TSA Director, John McGaw, and his personnel security chief, David Holmes, are already controversial enough to draw probing questions on many fronts; but plaintiff attorneys for the victim families may find the Administration's TSA appointee attempts to exert government control over their clients' private cases to be the proverbial last straw.
The DOJ letter to Judge Hellerstein reveals that Bush Administration officials at TSA have also been contacting witnesses already subpoenaed by attorneys for the plaintiff families, telling them that they should send all Plaintiff-subpoenaed evidence and documents to the TSA for initial inspection, prior to directly cooperating with family plaintiff attorneys and Judge Hellerstein's Court in New York. Thus, constitutional questions arise as to why the New York District Court is permitting Bush Administration bureaucratic appointees to tamper with witnesses and evidence in the private civil actions of American citizens.
Some 33 families have already chosen to forego financial awards from the congressionally authorized victim compensation fund in favor of seeking justice and accountability. Their lawsuits are attempting to recover damages for negligence, ticket contract safeguards, and failure to prevent the attacks, even as more evidence regarding prior knowledge of the terrorism recently leaked out from Capitol Hill -- from congressmen and senators themselves.
The letter also disclosed that Ashcroft’s Office will push for “the appointment of lead counsel,” effectively exerting a consolidated supervisory role over all victim family attorneys, while seeking “adoption of uniform [similarly controlled] discovery requests to streamline litigation, reduce costs for all parties and conserve judicial resources.”
Informed sources close to the case told Scoop Media that actions brought by the Justice Department will dilute and trivialize the more clear-cut and important cases which seek answers to many of the questions related to security, negligence, and prior knowledge of the attacks.
Moreover, the legal moves will be seen by some to help Bush attorneys shut down and cut off victim family access to important government documents which would likely lead to the accountability and justice their attorneys have sought through litigation. This, while other victim families watch -- deciding whether or not to introduce their own civil actions against airline companies or other government entities.
Some of the unknowing victim family members soon to be affected by imminent but discreet Justice Department legal action [which literally assumes total control over evidence gathering, depositions, testimony, and government reports] were at the Capitol just last month on June 10 and 11 to attend events related to calls for open September 11 probes.
Some family members attended a Monday National Press Club media conference sponsored by the 9/11 investigative organization UnansweredQuestions.org, an independent, non-partisan online community of concerned citizens, researchers, independent investigators, and journalists asking and exploring the unanswered questions of September 11. Believing in transparency, the group’s panel members told gathered TV, radio, and print media attendees that good questions lead to answers and solutions.
On Tuesday, busloads of 9/11 victim families descended on Capitol Hill to voice their concerns at a rally also attended by more media and some congressmen and senators. The families were pleading for open, aggressive, and complete investigations in Congress, but also for a truly independent, non-partisan investigative commission with lawyers and serious researchers totally in concert with the families’ goals of justice and accountability. Meanwhile, Bush attorneys were moving to take control over needed evidence for their civil actions against the airlines.
BUSH LAWYERS THREATEN VICTIM PLAINTIFFS
Curious indications of additional Administration political machinations linked to Special Master Kenneth Feinberg and the September 11th Victim Compensation Fund were also revealed in Justice’s letter to Hellerstein’s court: “The Government has been advised that the Court is developing a procedure by which all Plaintiffs in the September 11 Tort Litigation must formally acknowledge the ramifications of pursuing a lawsuit rather than filing a claim with [the Fund].”
This action will permit Feinberg to force families to listen to his attempts to convince them to give up their lawsuits -- accepting his reduced financial offers, instead of taking their chances for fair compensation in court, but also for justice and accountability. However, Feinberg might be losing his battle, as only 10 families out of 3,200 have thus far completed applications permitting him to determine their financial futures, rather than a judge and jury, according to wide press reports.
DOJ lawyers McCallum and Comey further advised Judge Hellerstein that “In making their election, plaintiffs should be fully informed of the risks that accompany litigation.” However, the Administration added that the “TSA’s vigorous enforcement of the rules governing non-disclosure of sensitive security information may present significant litigation consequences for all plaintiffs, and the Government respectfully requests that the Court include a statement to this effect in any finalized protocol,”-- clearly the letter’s most controversial statement.
Some might consider the Administration’s statement a veiled threat, warning that any victim family continuing with or thinking about suing either the airlines, security firms, or other government entities would likely lose any civil action because the Government is going to take complete control of their access to the very evidence needed to prove their cases in court.
Moreover, these and other statements in the Justice Department’s correspondence to Hellerstein could well test the legal ire of many of the families -- given the staggering individual, legal, and constitutional implications.
“CONSOLIDATING” THE CONTROL
Constitutional separation of powers notwithstanding, the Executive Branch is also attempting additional circumnavigation of treacherous legal waters that some might consider blatant usurpation of judicial branch authority in order to control access to evidence in legitimate private lawsuits.
The Assistant Attorney General and U.S. Attorney advised that “the Government will seek to intervene in these cases, and will move to implement a consolidated litigation plan that would enable TSA to enforce both statutory and regulatory aviation safety measures effectively and efficiently.”
On the heels of its strict enforcement intentions, Ashcroft’s Office requested “that the Court -- on its own motion [acting by itself] -- stay [suspend] all discovery in the September 11 Tort Litigation pending the July conference.” McCallum and Comey then asked the Judge to “permit the Government to address these and other issues at the upcoming July status conference,” -- taking the unprecedented action of halting legal evidence discovery in all September 11 tort litigation. The undisclosed victim litigant told Scoop Media that the conference will be held on Friday.
DOJ USING SSI TO CLOAK TSA AND FAA NEGLIGENCE IN USA
Bush Administration lawyers at Attorney General Ashcroft’s Department of Justice (DOJ) may be employing legerdemain in their efforts to suppress useful court evidence, adding that “Congress charged TSA with prohibiting the disclosure of SSI, an entire category of information relating to transportation security.”
They also said that [the Under Secretary of Transportation for Security] “shall prescribe regulations prohibiting disclosure of information obtained or developed in carrying out security or research and development activities” the release of which would “be detrimental to the safety of passengers in transportation.” Justice lawyers then said that “SSI includes, but is not limited to, any approved, accepted, or standard security program; Security Directives and Information Circulars; any selection criteria used in any security screening process; and any security contingency plan.”
Brian Sullivan, former Special Agent for the Federal Aviation Administration (FAA) New England Region, pointed out to Scoop Media in an interview that “the purpose of protecting information should be in the interests of defending national security. SSI should not be used as a shield to hide FAA and TSA negligence and incompetence.”
Sullivan added that “the intent of the SSI designation was not to hide the ineptitude of the failed FAA civil aviation security apparatus; nor was it intended to preclude legitimate legal inquiry, as government lawyers carry out White House orders to cloak bureaucratic incompetence in a blanket of ‘sensitive security.’ ”
THE PRESIDENT'S PROTECTORS OF AIRPORT INSECURITY
Victim families will be relieved to know that the recent Bush-appointed protector of the nation’s airport security, TSA Director John McGaw, is a 26-year Secret Service veteran. What the families won’t want to know is that wide reports cite McGaw as spearheading the Bureau of Alcohol, Tobacco, and Firearms (BATF) investigations into the 1995 Oklahoma City bombing, the 1996 crash of TWA Flight 800, the bombing at the 1996 Olympics in Atlanta, and the national church-arson task force -- packing enough controversy into a couple years to last a couple lifetimes.
McGaw was also criticized by Senator Arlen Specter at a recent Senate Commerce Committee confirmation hearing for defending the actions of BATF agents at Ruby Ridge, Idaho, where the government paid Randy Weaver .5 million because the agents killed his wife and son in the altercation.
And notwithstanding Bush appointee McGaw’s controversial and questionable new power to “prescribe regulations prohibiting disclosure of information” [controlling evidence] and “security or research and development activities” at the nation’s airports, his newly-recruited TSA personnel security chief David Holmes may be America’s worst security nightmare.
Former Commerce Department colleagues charge that, as favors for politicians and friends, “David Holmes signed off on Commerce applicants with criminal or other derogatory information in their background files. One felon even got Top Secret clearance,” according to WorldNetDaily.com. (4-24-2002)
WorldNetDaily added that a senior Commerce official said “TSA is under enormous pressure to meet that Nov.19 deadline [for hiring 30,000 new baggage screeners].” He then added: “And then you have a guy, who’s already predisposed to looking the other way, making critical decisions on the people who are essentially our last line of defense against armed hijackers. You do the math.”
SEE YOU IN NOVEMBER
At this point, not knowing whether to laugh or cry over such bumbling incompetence -- or worse, victim families and their attorneys will now watch Bush Administration lawyers madly shuffling legal paperwork over to the Southern District of New York, using every desperate and unprecedented creative legal theory available in an attempt to steal their constitutionally-given right to a fair civil trial in front of a jury of American citizens.
The Ashcroft lawyers will try to pull it off by smothering access to critical evidence required to win victim family cases, even as some are forced to listen to their Special Master Kenneth Feinberg reiterate the Justice Department’s coming threats to their previously filed litigation.
The letter Americans were not supposed to know about tells it all. And implications for the U.S. rule of law will be seen by many as truly astonishing. However, Fall elections will reveal whether Americans will tolerate what one 9/11 victim plaintiff told Scoop Media is nothing more than “slick government shenanigans."
Grieving families, on the whole, are still emotionally unable to demand that Judge Hellerstein allow their attorneys the right of legitimate legal inquiry and discovery of evidence. It will likely take righteous outrage and responsible citizen activism to halt taxpayer-funded DOJ lawyers attempting to innovatively cloak what many will describe as inside-the-beltway negligence, ineptitude, and abuse of power by Bush Administration appointees at TSA.
Moreover, the anguished victim litigants, their first-rate attorneys, and other potential 9/11 plaintiff families closely watching the lawsuits already filed, may now have to rethink their strategy: It just might take a coterie of constitutional attorneys to prevent the Administration’s impending assaults upon the Constitution’s separation of powers.
This, while having waited nine months for sequestered congressional hearings to commence behind closed doors in a sound-proof room at the Capitol -- to all intents and purposes, placing a 9/11 evidence blackout via a) the Legislative Branch’s secret, soft, and un-aggressive “hearings,” and b) the Executive Branch’s legal lapdogs snapping at the heels of justice, fairness, and God-given rights. How sad for the country that such are the “leaders” placed in power by the citizenry -- corrupt and unresponsive. But Americans get to vote again in November.
* - Tom Flocco is an independent American investigative journalist, having previously written for Scoop.co.nz, AmericanFreePress.net. WorldNetDaily.com, FromTheWilderness.com, NewsMax.com, NarcoNews.com, and JudicialWatch.org. Contact: TomFlocco@cs.com
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