Special Report by D. Alexander Floum
Online Journal Contributing Writer
January 28, 2005-The evidence that certain elements of the government intentionally allowed and caused the 9-11 tragedy appears to be extremely strong. See, for example, Painful Questions by Eric Hufschmid, Synthetic Terror by Webster Tarpley, and The New Pearl Harbor and The 9/11 Commission Report: Omissions and Distortions by David Ray Griffin.
After failing to obtain any competent investigation or tangible results from the 9/11 Commission, the White House, or Congress (many of the governmental personnel responsible for preventing an attack on the U.S. have actually been promoted since 9-11), many Americans are asking whether justice may be obtained through the courts. The answer is complicated, and it would be impossible for a brief article such as this to do anything other than scratch the surface concerning 9-11 justice.
Instead of being the final word on 9-11 legal issues, this article is intended to be an introduction to strategy regarding 9-11 lawsuits, and a practical discussion of how to avoid some of the landmines present on the path to the courtroom battlefield which could knock the unwary out of the game before they even get started.
CAN WE WIN A 9-11 LAWSUIT?
Legally, I believe we should win in court. If the facts surrounding the 9-11 attacks were applied to the elements of the law in a vacuum, then I believe that many of the real 9-11 perpetrators and accomplices would end up behind bars. There is strong evidence from numerous sources that the 9-11 attacks could not have occurred without the assistance of people in our government. Under theories of murder, criminal negligence, conspiracy, treason and other doctrines, the perpetrators should be found guilty and brought to justice.
However, in any 9-11 lawsuit, the government and its employees would claim that they are protected by sovereign immunity defenses (meaning, in essence, “I’m the king, so you can’t sue me”). This area of law is too complicated to discuss here, but I believe we might be able to overcome sovereign immunity defenses for at least some claims, since acts of murderous treason should not be considered within the normal scope of government employment. However, as discussed below, sovereign immunity has already been used to dismiss one 9-11 case, and it is an issue which must be taken very seriously by anyone filing a 9-11 lawsuit.
Moreover, it is unlikely that a court would allow high-level officials such as a sitting president or vice president to be tried until they leave office after the end of their designated term or through impeachment and removal. This is because the constitutional “separation of powers” doctrine provides that one branch of government, such as the judiciary, cannot unduly interfere with the workings of another branch, such as the executive branch. It is clear that, pursuant to federal statutes, a sitting president cannot be tried criminally, although it has not been decided whether the president can be indicted (the first step in the criminal process) while in office or whether the vice president has the same protections as the president. Thus, even if a court did not dismiss a lawsuit outright on sovereign immunity grounds, it would almost certainly stay (i.e. pause) any lawsuit against the president and vice president.
Finally, the government would argue in defense to a 9-11 lawsuit that everything that happened on 9-11 involves a “political question” or “national security interests” of the United States which supersede other considerations. Believe it or not, the government would likely argue that the executive branch is responsible for making war and protecting the country, and that the courts cannot question what the White House and Pentagon do in the realm of defense and military action. While this may sound odd, and while it would obviously be absurd for the government to argue that the 9-11 attack itself was in the national security interest, the courts tend to defer to the executive branch on military and defense issues. Judges’ brains often shut off when confronted by a claim by the military that something was necessary for national security or military purposes. Thus, a 9-11 lawsuit should argue that only rogue elements in the U.S. government and military participated in the 9-11 attacks, and that such actions were against the national security interests of the United States and have weakened our country.
WHAT SHOULD A 9-11 COMPLAINT INCLUDE?
Sometimes, less is more. Some of the complaints in 9-11 lawsuits have included claims that the Iraq war is illegal, that the USA PATRIOT Act and related laws are fascist, that President Bush was elected through vote fraud, and a host of other claims. I personally agree that 9-11 was probably committed as a new Pearl Harbor type event in order to justify imperial ambitions.
However, the vast majority of judges will immediately write off as bogus any complaint which contains too many different conspiracy claims. The reason is that every judge has reviewed a complaint written by someone who is literally psychotic which claims that everyone is out to get them and everyone has hurt them in some way. When I worked for a court of appeal judge, I read complaints written by defendants in cocaine possession cases who tried to blame everything on everyone else, and, ungrounded in any real facts, alleged that everyone was out to get them. Understandably, after seeing a couple complaints like this, judges tend to automatically close their minds to any lawsuit alleging too many conspiracies or conspirators. Therefore, any 9-11 suit which attempts to weave in too many different crimes, such as an unlawful war, unlawful seizure of centralized power by the government, voting rights fraud, etc., will probably fail.
But some 9-11 complaints have gone too far the other way, by failing to include some of the most important facts related to 9-11. For example, some of the complaints solely allege that the defendants were negligent in allowing 9-11 to happen, while completely ignoring the physical and documentary evidence showing that the 9-11 attacks could not possibly have happened in the manner that the government has described and could not have happened without direct assistance from certain governmental personnel. Failing to mention such evidence gives a court the easy way out by allowing it to decide that the government was careless, but not criminally so. This is the “mistakes were made, but who could have foreseen 9-11?” tack which the 9-11 Commission took, which lets everyone off of the hook without punishment.
Moreover, any complaint which fails to mention Operation Northwoods and the Reichstag fire might miss an opportunity to provide the historical background and context which a court probably needs to fully understand 9-11. In Operation Northwoods, the U.S. Joint Chiefs of Staff proposed committing terrorist acts against U.S. citizens in order to blame Cuba and serve as a rationale for invading that country. In the Reichstag fire, Nazis set fire to the German parliament building and blamed the Communists, in order to justify Adolph Hitler’s imperial wars against foreign nations.
Criminal law largely focuses on attempting to prove motive for committing the crime and the means of, and opportunity for, performing the criminal act. Operation Northwoods and the Reichstag fire are historically powerful examples of the type of motive which appear to be behind complicity within certain elements of the U.S. government in the 9-11 attacks. Specifically, a rationale for the invasion of Iraq, seizure of middle eastern oil, and a new imperial presidency may have been some of the motives for the 9-11 attack, and a judge needs some education on this basic concept.
The bottom line is that mentioning Iraq, voting fraud or oppressive new laws as additional offenses will likely cause a complaint to be tossed into the trash can-this is the “everything including the kitchen sink” type of complaint that a judge will assume is worthless. But mentioning such facts as part of the motive for why 9-11 was committed, if explained in a logical and understated fashion, might be helpful in providing background for the case. In other words, it might be advisable to tell the judge why the perpetrators committed the 9-11 attacks, but not to give the judge a catalogue of crimes that they committed in addition to 9-11.
WHAT’S HAPPENED SO FAR?
Several people have recently submitted a complaint to New York’s attorney general, Eliot Spitzer. Spitzer is a dedicated activist when it comes to fighting corporate crime. However, he is running for governor, and political considerations might lessen the chance that he would pursue a 9-11 case. While fairly well-written, the Spitzer complaint includes somewhat contradictory theories about who was behind 9-11. To view the Spitzer complaint and donate to the groups behind that effort, go to Justice for 9/11.
Ellen Mariani, the widow of a 9-11 victim, filed a case based on a civil conspiracy theory. After she was removed as administrator of her late husband’s estate, former world trade center employee and 9-11 hero William Rodriguez stepped in as lead plaintiff in the suit. While passionate and well-written, the complaint may-as discussed above-suffer from inclusion of too many conspiracy theories, such as election fraud. To view the Rodriguez complaint or donate to the legal effort, go to 911fortheTruth.org.
There are also numerous 9-11 related personal injury and insurance lawsuits, although they do not appear to directly address who was actually responsible for the attacks.
To my knowledge, no attorney has yet filed a class action case based upon 9-11. Not many trial lawyers handle class actions, since it takes a lot of work to get the plaintiffs certified as a class and to take the other necessary steps which are not required in other types of civil lawsuits. Also, class actions take a special type of expertise which many trial lawyers don’t have.
To date, no key insiders in the government have blown the whistle on the government’s role in 9-11. Former FBI translator Sibel Edmonds and others have laid bare the falsity of many of the government’s claims, but no one has stepped forward to reveal what actually happened on 9-11 (Edmonds is still under a gag order placed on her by the Department of Justice).
Moreover, no nationally-known, first-tier trial lawyer has yet filed a 9-11 lawsuit. One of the purposes of this article is to attract the attention of heavy-hitting trial lawyers to file a 9-11 suit or, at the very least, to persuade a better legal mind than my own to formulate a successful litigation strategy.
This is not to say that no top-notch lawyers have joined the 9-11 truth movement. In addition to the efforts of the lawyers filing the Spitzer and Rodriguez complaints, law school professors Peter Erlinder, Burns H. Weston and Richard Falk, and famed trial attorney Gerry Spence have all expressed, in writing, support for 9-11 justice.
A CAUTIONARY TALE: THE HILTON LAWSUIT
On January 3, a San Francisco federal court judge dismissed the 9-11 lawsuit filed by Bob Dole’s former chief of staff, attorney Stanley Hilton. The Hilton lawsuit is a cautionary tale of what not to do. Hilton’s complaint is poorly drafted, throws in too many unrelated crimes such as the unlawful war in Iraq, and is not carefully crafted to overcome governmental defenses.
Initially, the court held that Hilton failed to establish that any of the plaintiffs had “standing” to bring the suit (i.e they hadn’t been directly injured by the government’s actions upon which they sued). The Hilton lawsuit involved several plaintiffs who claimed that they (1) were fired for anti-war speech, (2) had had anti-war literature confiscated, or (3) had suffered a reduction in veteran payments. The court held these injuries were not directly related to the alleged unlawful governmental actions. Further, the court found that taxpayers in general do not have standing in this type of lawsuit. As discussed below, a family member of a victim of 9-11 would be more likely to have standing in a 9-11 lawsuit.
Moreover, the court dismissed the lawsuit because the government and its employees have sovereign immunity against civil “RICO” (i.e. conspiracy) claims. This might not bode well for the Rodriguez lawsuit, which is also a civil RICO suit.
Finally, the court held that Hilton’s allegation that the war in Iraq is illegal and request that the court should stop further expenditures on that war constitute a “political question” that the courts are not able to address.
Because Hilton’s complaint was so poorly drafted and ill-conceived, the court never even addressed the factual questions regarding what happened on 9-11 or who carried out the attacks.
Will a Government Prosecutor Be Our White Knight?
Some 9-11 activists are focused on attempting to convince state attorneys general to file 9-11 lawsuits. As mentioned above, a complaint has already been submitted to New York’s attorney general. Does this mean that the NY complaint should be copied and submitted to the other 49 state attorneys general?
It’s tempting to do so. State attorneys general have substantial resources to investigate, conduct discovery in, and prosecute cases. They often possess in-house investigators, special discovery powers (i.e. subpoena powers above and beyond a normal plaintiff in a case), and the staff needed to see a lawsuit through to the end.
However, it must first be determined whether the attorney general or another prosecuting agency has jurisdiction over the case. District attorneys or county attorneys usually have jurisdiction over murder cases which occur within their geographic district. State attorneys general can sometimes assist in a murder trial, and often handle appeals of a verdict in such a trial. Attorneys general also have the power to prosecute certain other types of cases pursuant to statute. And the United States Attorney has jurisdiction over crimes against the United States, which 9-11 probably was.
Therefore, before a complaint is filed with the attorney general, it must be determined whether that agency, the district attorney or county counsel, or the United States Attorney or U.S. Department of Justice is the agency with jurisdiction over the specific types of crime (such as murder or criminal conspiracy) which are being alleged. The analysis of which is the proper agency will depend on the types of crime alleged in the complaint.
Moreover, public prosecutors have wide discretion concerning which cases they choose to pursue. Unlike a civil lawsuit, which is initiated at the discretion of a citizen, criminal complaints are prosecuted by a governmental agency at its discretion. While a prosecutor receives many complaints, he or she will decide to pursue a small handful of such cases based on a number of factors, including which cases fit in with the priorities of that office (for example, corporate crime and securities fraud are Eliot Spitzer’s focus, environmental laws have been a prime concern for many California attorneys general, while enforcing anti-sodomy laws and punishing violent criminals and drug offenders have been the focus of some recent southern attorneys general).
Whether or not the prosecutor thinks that the case is winnable is another factor in the decision. Governmental prosecutors, whether county district attorneys, state attorneys general, or the federal department of justice, usually don’t touch cases they don’t think they have a good chance of winning.
Because no attorney general can pursue a lawsuit unless it can help right a wrong suffered by citizens of that particular state, the complaint needs to explain in some detail the physical or economic injuries which the perpetrators of 9-11 caused to at least one citizen of that particular state. If any 9-11 victims lived in that state, that should be pointed out. If any family members of 9-11 victims reside in the state, that might be good enough. If there are no victims or family members of victims, then more creative arguments about economic injury to the state and its citizens can be made. The same is true of a complaint submitted to a district attorney or other governmental prosecutor.
Finally, it should be noted that each attorney general has its own procedure for submission of a complaint. Some states, like New York, have no specific format requirement. Others, like Michigan, may only accept a complaint on one of the state’s pre-approved forms. Care must be paid to the practice of the particular prosecutor to which a complaint is submitted.
THE ROLE OF NON-PROFITS
Non-profit organizations which deal with legal and justice issues should be lobbied, especially by their own members, to take up the cause of 9-11 justice. Conservative groups such as Judicial Watch and liberal groups such as the National Lawyers Guild have the skill and resources to prosecute a 9-11 lawsuit. They should be persuaded to take up the cause.
IS IT WORTH THE EFFORT?
Given the challenges in successfully litigating a 9-11 lawsuit, it is fair to ask whether it is worth the effort. I strongly feel that the answer is yes.
Americans are taught in history class that we have a government of laws, and that our constitution guarantees a separation of powers between the courts, congress, and the White House. But the principles underlying the constitution only survive if those in power are forced to honor and protect its ideals. The power-brokers will only follow the principles embodied in the constitution to the extent that we the people demand that they do.
Justice should be considered a verb, not a noun. It is not something that our forefathers handed down to us in a frame. It is not a thing which we as Americans own. Justice is in fact a process, which only will survive to the degree that we fight for it. Indeed, one of our founding fathers, Benjamin Franklin, repeatedly warned that after 200 years, most governments become stale and corrupt. The saying “vigilance is the price of democracy” may be said of justice as well. Unless we demand that the high and mighty are subject to the same laws as the rest of us, than our justice system will wither.
September 11, 2001, appears to be an act as cynical and traitorous as the Nazi’s setting of the Reichstag fire, with many of the same motives. Nine-eleven has been used by those seeking empire to justify wars in the Middle East and elsewhere. It has been used to scare the American people into a state of passivity and subservience, allowing our constitutional liberties to be taken from us a piece at a time, through passage of the USA PATRIOT Act and other draconian legislation. Nine-eleven is a fulcrum of history, a leverage point in the American story, and the Achilles heel of the drive toward empire.
Nine-eleven is a test for the rule of law and for democracy. If the perpetrators are allowed to get away with their crimes, then the justice system will have failed, and the separation of powers which our founding fathers worked so hard to create will have been destroyed by the abdication of power by the judiciary to the executive branch. If, on the other hand, the truth behind the attacks is brought to light and those responsible punished, then-at least at this one crucial moment in history-justice will have prevailed over crime, sanity over chaos, and hope over fear. We will then have a chance as a nation and a people.
Is that worth fighting for?
Copyright (c) 2005 D. Alexander Floum. All rights reserved.
D. Alexander Floum is an attorney and former adjunct law school professor.