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In re September 11 Litigation

July 16, 2009


The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.



Three wrongful death cases and nineteen property damage cases arising from the terrorist-related crashes into the World Trade Center remain to be tried against the Aviation Defendants.*fn1 All the cases are in pre-trial discovery, where they proceed in coordinated fashion. The parties dispute how close they are to being finished. Citing the billions of dollars in recovery that are claimed, the Aviation Defendants present a long list of witnesses and issues still remaining to be discovered. Plaintiffs press for early trial dates, and contend that the extensive discovery proceedings already conducted are more than sufficient. My rulings today clarify the few tasks that remain, and schedule a conference to fix dates for trial.

In the pending motions, the Aviation Defendants request discovery and evidentiary rulings. They seek to depose Federal Bureau of Investigation ("FBI") agents regarding the government's terrorist investigations of the September 11 attacks. And, they move for specific admissibility rulings regarding portions of the Zacarias Moussaoui trial record,*fn2 The 9/11 Commission Report ("The 9/11 Report") and related reports,*fn3 and a reporter's interview with Ramzi Binalshibh, one of the terrorist leaders. The Aviation Defendants desire this discovery and evidence to show at trial that the government's failure to apprehend the terrorists and stop the attacks was so considerable that it mitigates and excuses any alleged faults of the Aviation Defendants, and that the terrorists likely would have succeeded even if the Aviation Defendants had exercised due care.

I grant the motions to the limited extent that these sources can (1) provide information for an agreed narrative summary that explains to the jury the events of September 11, 2001, see Conf. Tr. 18-25 (Dec. 15, 2008), and (2) reveal the hijackers' plans and preparations. Otherwise, I deny the Aviation Defendants' motions. The issues to be tried relate to the acts and omissions of the Aviation Defendants, not the government. The government's failures to detect and abort the terrorists' plots would not affect the Aviation Defendants' potential liability. Moreover, efforts to prove these propositions would cause confusion and prejudice, and burden court and jury with long delays and unduly lengthy trial proceedings. See Fed. R. Civ. P. 26(b)(2)(c)(iii); Fed. R. Evid. 403. Finally, the additional discovery sought by the Aviation Defendants would add little of relevance, threaten national security, cause major digressions at trial, and cause substantial unnecessary expense and delays concerning the progress of the cases before me.

The following pending motions are terminated by the rulings herein:

1. Two motions to set aside the government's final administrative decisions denying the Aviation Defendants' requests to depose six FBI agents, and two motions by the government to uphold those decisions.

2. A motion that The 9/11 Report and various statements by the Commission staff be determined relevant and admissible.

3. A motion that prior statements by Khalid Sheikh Mohammed and Ramzi Binalshibh, regarding the preparation and execution of the September 11 attacks, be determined relevant and admissible.

4. A motion that the testimony given by FBI agents at the criminal trial of Zacarias Moussaoui be determined relevant and admissible.

The table of contents that follows describes the issues addressed by this Opinion.

Table of Contents

I. The Prior Proceedings Leading to the Motions

II. Whether the Government's Determinations, Refusing to Allow Depositions of FBI Agents, Were Arbitrary and Capricious

A. Factual Background

B. Standard for Deposing Nonparty Government Employees

C. Analysis of the Government's Determinations

III. Whetherthe Government's Failures to Apprehend the Terrorists and Abort Their Plots Excuse the Aviation Defendants' Alleged Faults

IV. Whether Evidence of the Terrorists' Preparation and Training Is Relevant

V. Proving Undisputed Background Facts by Summary Narrative

VI. Whether The 9/11 Report and Related Reports Are Admissible

A. History of The 9/11 Report

B. Rule 803(8)(C)-The Public Records Hearsay Exception

C. Analysis of the Staff Monographs and Staff Statements

D. Analysis of The 9/11 Report

E. Statements in The 9/11 Report Attributed to Khalid Sheikh Mohammed and Ramzi Binalshibh

F. Rule 403-Prejudice, Confusion, and Delay

VII. The Admissibility of the Moussaoui Trial Record

A. "Substitute Testimony" of Khalid Sheikh Mohammed

B. FBI Agents' Testimony

VIII. The Admissibility of Ramzi Binalshibh's Journalistic Interview

IX. Conclusion

I.The Prior Proceedings Leading to the Motions

The discovery in these cases has been extensive and difficult. The Transportation Security Administration ("TSA") has acted as a filter, reviewing the documentary production, seeking to regulate the conduct of depositions, and protecting against disclosure of Sensitive Security Information ("SSI"). See generally In re September 11 Litig., 236 F.R.D 164 (S.D.N.Y. 2006) (providing narrative of SSI procedures in this case). The TSA has reviewed over a million pages of documents and 121 deposition transcripts before allowing their release, in original or redacted form. See Conf. Tr. 10 (Sept. 24, 2008), Conf. Tr. 28-32 (Dec. 15, 2008). As a result, discovery has become extended, and a number of judicial interventions were necessary to avoid impasse. See, e.g., Memorandum and Order Regulating Deposition Protocol and Supplementing Orders of March 31 and May 5, 2006 (May 16, 2006); Order (June 14, 2006) (discussing security clearances of attorneys, procedures at depositions, and rulings on objections).

The release of The 9/11 Report on July 22, 2004, and the trial of admitted September 11 terrorist Zacarias Moussaoui in the spring of 2006, considerably helped this litigation progress. The 9/11 Report and the public Moussaoui prosecution revealed information previously considered sensitive and tended to undercut and make academic the TSA's confidentiality concerns. Moreover, a chief motivation for many who chose a lawsuit in this court, rather than a settlement with the Victim Compensation Fund's Special Master, was to elicit such a public record of the events leading up to September 11. Thus, these substantial disclosures, describing the terrorist investigations and detailing the events of September 11, facilitated settlements between the parties in many of the wrongful death and personal injury cases.

II.Whether the Government's Determinations, Refusing to Allow Depositions of FBI Agents, Were Arbitrary and Capricious

The Aviation Defendants seek to depose six former and current FBI agents. They sought permission from the United States Attorney's Office to depose the agents, pursuant to 28 C.F.R. § 16.22(c) (2008). See Unites States ex rel. Touhy v. Regan, 340 U.S. 462, 467-68 (1951). Permission was denied in final determinations, and the Aviation Defendants filed two proceedings in this court to set them aside: Am. Airlines, Inc. v. Fed. Bureau of Investigation, 07 Civ. 7051 (AKH) and Am. Airlines, Inc. v. Fed. Bureau of Investigation, 08 Civ. 10646 (AKH).*fn4 Both sides move for summary judgment. I affirm the Department of Justice's final determinations, and deny the Aviation Defendants' motions to set them aside. I hold that the depositions requested would be wasteful, cause undue delay, and raise national security concerns.

A.Factual Background

The Aviation Defendants claim that each of the six current or former FBI agents-Scott Billings, Coleen Rowley, Erik Rigler, Michael Rolince, Harry Samit, and Kenneth Williams-gained personal knowledge of the September 11 plot through their investigations of suspected terrorists. Billings, Rigler, Rolince, and Samit testified at the Moussaoui trial; Rowley and Williams did not. Brief summaries of their anticipated testimony follow.

Scott Billings was a special agent stationed in Oklahoma City. He was a member of the Joint Terrorism Task Force on September 11, 2001 and searched Moussaoui's Oklahoma residence after the attacks. Billings testified regarding written materials and other items recovered in that search which, the Aviation Defendants argue, could support an argument as to the extent of the terrorists' plans to penetrate aviation security and hijack airplanes. The materials seized by Billings included research on American airports, flight simulator software, contact information for other terrorists, and Moussaoui's notes from flight training sessions.

Erik Rigler, a retired FBI agent, testified as a witness for the public defender in the Moussaoui trial. Rigler discussed an investigative report issued by the Inspector General of the Department of Justice as to five missed opportunities to learn about the plans of the two terrorists who hijacked the plane that was crashed into the Pentagon, and about the lack of information sharing between the FBI and the Central Intelligence Agency ("CIA").

Michael Rolince, the section chief of the FBI's International Terrorism Operations Section on and before September 11, 2001, testified that the FBI had intelligence before September 11 suggesting that an attack might occur and could target civil aviation in the United States. He also testified about the investigative techniques in use at the time.

Harry Samit, an FBI Special Agent, testified at length that he had been assigned on August 15, 2001 to investigate Moussaoui's unusual activity as a trainee at a Minnesota flight academy. Samit conducted interviews and searches of Moussaoui and Moussaoui's associate, Hussein al-Attas.*fn5

Coleen Rowley, a former FBI Special Agent, has personal knowledge of the items Moussaoui had in his possession at the time of his arrest, including short-bladed knives. She also observed other items found amidst his personal property, such as the flight training materials.

Kenneth Williams was an FBI Special Agent assigned to the Phoenix Field Office from 2000 to 2001. The defendants' interest in deposing Williams arises from a memorandum he wrote alerting superiors that a large number of Middle Eastern students were training at civil aviation schools in Arizona.

B.Standard for Deposing Nonparty Government Employees

It is "'axiomatic' under the principle of sovereign immunity 'that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.'" Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). "[S]overeign immunity in the absence of a waiver" similarly bars actions seeking to compel a federal agency or federal employee to produce discovery. EPA v. Gen. Elec. Co., 197 F.3d 593, 597 (2d Cir. 1999). The Administrative Procedure Act, 5 U.S.C. §§ 551-59, 701-06, contains the sole waiver "that would permit a court to require a response to a subpoena in an action in which the government is not a party." EPA, 197 F.3d at 597.

Federal statutes impose special burdens on a party wishing to depose a Department of Justice employee when the United States is not a party, about information the employee obtained in the course of his official duty. 28 C.F.R. § 16.21. First, the party must submit to the United States Attorney's Office an affidavit supporting the request outlining "the testimony sought and its relevance to the proceeding." 28 C.F.R. § 16.22(c); see Touhy, 340 U.S. at 468-69. The United States Attorney's Office must then determine whether the "disclosure is appropriate under the rules of procedure . . . and the substantive law concerning privilege." 28 C.F.R. § 16.26(a). Two categories of information that the United States Attorney may not disclose are "classified information, unless appropriately declassified," and "investigatory records compiled for law enforcement purposes, [that] would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired." Id. § 16.26(b).

One "adversely affected or aggrieved by agency action . . . is entitled to judicial review." 5 U.S.C. § 702; see also id. § 704. "[T]he reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." 5 U.S.C. § 706(2)(A); see In re SEC v. Glotzer, 374 F.3d 184, 189-92 (2d Cir. 2004). The analysis consists of determining whether the agency:

has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983); see Long Island Head Start Child Dev. Servs. v. NLRB, 460 F.3d 254, 257-58 (2d Cir. 2006).

C. Analysis of the Government's Determinations

The Aviation Defendants support their request by arguing that each deposition would elicit testimony as to what intelligence the FBI, CIA, Federal Aviation Administration ("FAA"), and airlines had before September 11 regarding the terrorists' plans and capabilities, as well as how the entities shared and exploited this intelligence. The United States Attorney for the Southern District of New York denied all six deposition requests, five on May 7, 2007 and one on October 15, 2008.*fn6

The Aviation Defendants move to set aside these Touhy determinations for lack of substantial basis in fact, and as an arbitrary and capricious agency action. 5 U.S.C. §§ 701-06; Fed. R. Civ. P. 45. The Aviation Defendants argue that the testimony (1) is "vital for the jury to understand what took place on September 11, 2001," (2) establishes that the government's negligence caused plaintiffs' damages, (3) demonstrates that the Aviation Defendants could not have reasonably foreseen such terrorist acts, and (4) reveals that the terrorists would have accomplished their mission despite any negligence on the part of the Aviation Defendants.

The FBI represents that it remains engaged in a massive and sustained investigation, PENTTBOM, and that subjecting FBI agents to depositions regarding matters related to an ongoing investigation raises security and privilege concerns. The Aviation Defendants dismiss government apprehension about security because much of the information already exists in the public record. They add that precautionary ...

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