Grand Jury, FBI Lawsuits Enter New Phase: An Interview with Mick Harrison and John O’Kelly
On this week’s episode of 9/11 Free Fall, host Andy Steele is joined by Mick Harrison and John O’Kelly of the Lawyers’ Committee for 9/11 Inquiry to discuss the latest developments in two major cases: the petition for a federal grand jury investigation, which the Lawyers’ Committee first filed in April 2018, and the FBI 9/11 Review Commission lawsuit filed last March.
The Lawyers’ Committee and its co-plaintiffs are at critical junctures in both cases. In the former, they are about to enter a legal battle with U.S. Attorney Geoffrey Berman over whether he is required to disclose some information regarding his office’s handling of the grand jury petition and over his statutory duty to present that petition to a special grand jury. In the latter, they will soon be filing an appeal of the Washington, D.C., District Court’s recent ruling that the plaintiffs — including 9/11 family member Bob McIlvaine — lack standing to bring the FBI lawsuit.
We invite you to listen or read below for a detailed update from Mr. Harrison and Mr. O’Kelly.
I’m happy to be joined by my esteemed guests today. The first one is Mick Harrison. Mick is the director of litigation for the Lawyers’ Committee for 9/11 Inquiry. He’s a public interest attorney. He’s a graduate summa cum laude of the University of the District of Columbia School of Law. He has a national practice focused on cases that involve whistleblower protection, government accountability, corporate fraud and false claims, and dangers to public health or the environment. And we’ve been following him here all along on these two cases, and it’s been a long struggle. But we are moving forward with it. And just encountering everything that comes up on our path. And when I say we, I really mean they. I’m just bringing the news to you here. But Mick, welcome to the show.
Thank you very much. Good to be here.
And he is joined today by John O’Kelly. John is a new board member for the Lawyers’ Committee. And I’m just meeting him here for the first time myself. So we’re going to be getting to know John a little bit here at the beginning of this episode. So John, thank you for stepping up and for your service to, not just the 9/11 truth community, but you’re doing this for all of America, too. So thank you for that and welcome to 9/11 Free Fall.
Oh, it’s great to be here. Great to be here. A little bit about myself. Do you want me to say anything?
Please. That was my first question. So please, tell us more about your background.
Well, I’m a New York attorney in Nassau County now. Grew up in Queens. Admitted to the bar for about 35 years. Do defense and plaintiff’s work in both commercial litigation and personal injury work, mostly in the New York City area. I followed 9/11 since the second it happened. Was aware it wasn’t what the government portrayed it as from the beginning. But haven’t formally been involved except occasionally with AE911Truth on a couple of occasions with their petition drive in New York to put on the ballot the resolution to have a real investigation which, of course, the courts threw out after invalidating some signatures.
I got re-involved here when I saw the Franklin Square resolution. Franklin Square is just a couple of neighborhoods away from mine. Happy to see it. Saw an opportunity: Maybe we can break the dam here. And I got involved with the current petition in front of the Southern District.
That is amazing. And what’s so amazing about it to me is it really proves that whole story or legend about the butterfly wings. They say a butterfly flapping its wings somewhere can cause a hurricane in another part of the world. Now, I don’t know if that’s scientifically accurate. But I understand the point it’s trying to make is that one thing influences the other. And you have no idea who you’re reaching out to when you talk about this evidence. And I was woken up because somebody had decided to upload a video about 9/11 to a website, sort like YouTube — I don’t it exists anymore. It obviously didn’t survive the great battle for life here in the internet world. But somebody uploaded it. At two in the morning, I came across this video thinking it was something else. And here I am. And because Chris Gioia led that effort at the Franklin Square and Munson Fire District, here you are. You’re involved. And so I want to say to other people, put out your information, do your activism. Even if you don’t know who you’re reaching out to, you could have a huge impact without even knowing it. So that is great for me to hear. It just proves that point.
Well, John, I always ask this of every guest the first time they’re on here. Where were you when you heard that we were under attack today?
Oh, sure. I was home. We got a call from my sister telling us about the first plane that hit. Turned on the television. Saw the second plane that hit. And first plane that hit, I thought “Terrorism.” Second plane that hit, I said, “CIA.” My brother’s with the fire department. He retired as a chief recently. So we were concerned about where he was. I also have a sister who had her office in the South Tower. Luckily, she had just gotten off the bus for the Brooklyn Bridge when the second plane hit. So she wasn’t up in her office at the time. They had a meeting at a quarter to 10 that morning. She wasn’t up there at the time. So luckily she was spared. Although one of her colleagues did die who was up there at the time.
That’s terrible. And especially in an area like New York City. Given the number of people that died there in the towers that day, it’s like everybody knew somebody, even if it was sort of a twice removed situation. Could be an old college roommate or somebody they had worked with. So it really shows how this tragedy touched so many people.
All right, so we’re here today for a reason, though. Because there have been developments on both fronts. We have the grand jury petition that was filed and we also have the FBI lawsuit, both of which have been featured on this show. And every time there’s a new development, we want to tell our supporters about it. We bring Mick Harrison here and another member of the board for the Lawyers’ Committee to talk about it, so that you guys are right here, involved with what we’re doing. When I say you guys, I’m talking to the audience because we want to be fully transparent and fully disclose what’s happening with the lawsuits that you out there are helping to fund.
So for the purpose of clarity here, we’re going to take one, and then we’re going to go and talk about the other. We’re going to start and talk for some time about the grand jury petition. Mick, in case there are newcomers to this movement, to the show, can you first remind our audience what the grand jury petition is all about and what action has been taken so far that’s led us up to this point?
Right. The Lawyers’ Committee prepared a 50-some-page petition to the U.S. Attorney in the Southern District of New York. That was filed back in July 2018, I believe. The purpose of that petition, which had attached to it a considerable amount of the scientific evidence that has been martialed by architects and engineers and other independent scientists regarding the demolition of the Trade Center towers and Building Seven on 9/11—the purpose of that filing was to get the U.S. Attorney to relay all of that evidence to a federal special grand jury and to have the grand jury investigate, for the first time, this very persuasive and, as we would say, legally dispositive evidence of the use of explosives at the Trade Center on 9/11.
For those who have not heard this before and may not realize, there is a federal statute that mandates that a U.S. Attorney anywhere receiving a report of a federal crime from a citizen must relay the information about that crime to a special grand jury. There is no specification about what happens next in the statute. It’s going to be up to the other duties imposed on the grand jury to investigate crimes thoroughly and on the U.S. Attorney to investigate any, of course, federal crimes.
But the key mandatory duty is that the evidence has to be—must be—handed over to the special grand jury to do with what it sees as appropriate. So the goal was pretty simple for this petition. Get the evidence in the hands of 16 to 21 regular citizens assigned to a special grand jury with all the subpoena power—the power to possibly grant immunity, maybe through the U.S. Attorney’s office; to conduct investigations; bring witnesses in; acquire documents; even do, if they choose, laboratory analysis and stuff like that.
So we wanted to get that process started. We can’t control where it goes, but we wanted to get it started. Somewhat to our surprise—but a pleasant surprise it was—after we filed that petition we heard back from the U.S. Attorney’s office in a letter. One of the Assistant U.S. Attorneys there, Michael Ferrara, and another of his colleagues signed the letter. And they said: We received your submissions in July—I think April was the earlier one which was the petition and the amended petition—and we will comply with the federal special grand jury statute regarding your submissions.
And we took that to mean pretty much what it literally says: that the requirement in the special grand jury statute that the U.S. Attorney hand over the evidence they were given about a federal crime to a grand jury—that they were actually going to do that in our case. And we took that as a positive development. But because we didn’t hear anything further for a few months, we called the U.S. Attorney’s Office and spoke with Mr. Ferrara, who was kind enough to take our call. We just asked him what the status of our petition was and whether the evidence had been given to a special grand jury.
He told us, unfortunately, that he didn’t feel like he could tell us anything about the status because of this federal rule of criminal procedure, Rule Six, which imposes secrecy regarding grand jury proceedings to some extent. There is, I think, a difference of opinion as to what extent. So Dave Meiswinkle and I were talking with him and basically said, “Look, we’re trying to avoid having to file a mandamus lawsuit in the federal court on this. Is there anything else that you can tell us that might help us avoid filing that lawsuit? What we really want to know is that the grand jury has received the documents?” And he said, “No, I can’t tell you anything further.”
So, because of that, unfortunately, we were forced to file a federal lawsuit in the federal court in the Southern District of New York. And that’s the lawsuit that John O’Kelly is helping us with. We’re very fortunate to have John as my co-counsel on that case. That case has been pending now for a while. The purpose of it is pretty simple. There are two components. One is that we want a disclosure from the U.S. Attorney, either to us or to the court—hopefully to the public—that our evidence has been given to the grand jury on the demolition of the Trade Center buildings on 9/11. Or it has not. Either way, we want to know.
And if the answer is the latter—that the evidence was not given to the grand jury—then the second part of our lawsuit would become active. Otherwise it would be moot. But the second part is: If there has been no compliance with the grand jury statute by the U.S. Attorney, then we want the court to order compliance. Which means we want a court order requiring the U.S. Attorney to hand our petition and the evidence we submitted to the special grand jury. So that’s what that lawsuit is about. And if you’re ready, I can tell you the status, but you may have some questions.
Not really. I just want everyone to have the background because I’m aware that we’re always taking in new people. That is where we were at, so please share the new development with our audience.
All right. So, John, would you like to explain the procedural history or shall I?
No, you can, Mick.
Okay, so the short version, Andy, is that once we filed the mandamus complaint in the Southern District of New York’s District Court, the government had 60 days to answer it. And normally what an answer is is a paragraph-by-paragraph reply to each allegation in the complaint, either admitting or denying each allegation. However, in this case, instead of doing that, which I think would have served the public interest better, what the government in its wisdom chose to do was to file a letter brief, a letter motion, with the local U.S. District Court judge asking for a conference, according to local procedure, before they file what they anticipate filing, which is a motion to dismiss our complaint on procedural grounds without getting to the merits of whether we’re right or wrong about their duties and their compliance.
John and I have responded to the government’s letter motion with a letter brief of our own. And so both sides are now put before the U.S. District Court. What I would call the gist of the government’s anticipated argument is that we lack standing to bring this suit and that the statute that we’re trying to enforce isn’t really enforceable by citizens. And even if it was, there’s no mandatory duty imposed on the government. So that’s the short version of the government’s position. They took pains to say that they were not saying in their letter brief to the judge that they had not given our evidence to the grand jury and they were not saying that they had.
What they were saying was we didn’t have a right to find out, basically, through this lawsuit. So we responded and basically said the opposite: That we have standing. There’s actually a case in the Southern District of New York where someone did this before and did a submission to a U.S. Attorney of evidence they wanted given to a grand jury, and that was not done. So that person sued, and the District court actually found, in a very well-analyzed decision, that the citizen reporting the crime had standing to bring the lawsuit to enforce the duty to give the evidence to the grand jury. And so we explained this to the judge in our short letter brief, and [explained] that the law was enforceable by two different federal laws.
One was the Administrative Procedures Act, which allows citizens to sue a federal agency that fails to perform a mandatory duty under law or that unreasonably delays the action required of it under law.
We also sued under the federal mandamus statute, which allows citizens to sue federal officials for failure to perform a mandatory duty. The judge looked at both of the filings and then canceled the planned status conference. He didn’t say why he canceled it, but my guess is he had his questions answered by the two written submissions. So he’s now basically issued is a briefing order—a briefing schedule.
So the government is now planning to file its formal Motion to Dismiss about ten days from now. The court gave us a fairly short time to respond—only seven days. And I think the reason for that short time frame was that we told the court we anticipated filing an amended complaint after the Motion to Dismiss is filed, which is our right under the federal rules of procedure. And that would add, we hope, new plaintiffs, including one or more 9/11 family members. We’re actually hoping that Architects & Engineers [for 9/11 Truth] will join us in that lawsuit. Currently, Richard Gage is already a co-plaintiff. But we’re hoping that [the judge] would consider [adding it] as an organization.
Then we’re going to beef up our standing allegations, probably submit some standing affidavits to support our position more clearly for the judge’s benefit, and articulate as clearly as we can our legal claims. Once we file that amended complaint, it essentially moots the Motion to Dismiss that the government will have by that time already filed, because we have a right to amend, and the amendment replaces the original. So, because the government’s first motion was targeted to the original complaint, it now becomes moot. And the government has to refile a new motion if it chooses.
[The government] doesn’t have to do this, but we predict they probably will. But once they read our amended complaint, if they still find, in their own mind, that their standing and other arguments are correct, they’ll probably just re-file their Motion to Dismiss. At that point, we’ll file our opposition. And eventually we’ll get a decision from the Southern District of New York District Court on whether we have a right to proceed with this lawsuit or not.
If we do have that right, it’ll get very interesting pretty quickly, because the government will have to respond to the merits of our allegations about their duty to give the evidence to the grand jury and whether they have done so or not, which is something they don’t seem to want to disclose. If the district court decides we don’t have the right to pursue this lawsuit, we will then bring an appeal to the U.S. Court of Appeals for the Second Circuit and see if the Court of Appeals can establish our right to proceed. So that’s where that case is standing at the moment.
Now I just want to clarify for our audience, because there’s a lot of talk in legalese, and it can get a little bit confusing: This is only in regard to the mandamus lawsuit. The grand jury petition itself has not been thrown out. This is just regarding your attempt to make the U.S. Attorney’s office disclose whether or not they’re actually doing anything with it. Is that correct?
It’s precisely correct. It’s a good point. Whether or not we have a right to bring the mandamus lawsuit to find out the status of the grand jury proceeding, the grand jury proceeding has already been initiated by our initial petition. So it could be going full speed ahead as far as we know. Unfortunately, we don’t know. But whether it is or it isn’t, our right to submit the evidence is . . . I don’t think anyone disputes that, even the government. Their only argument is what are they obligated to do once we submit it.
So we don’t know whether that grand jury process is proceeding, but even if we were to lose the mandamus lawsuit, which I think is the point of your clarification, that grand jury petition will still go wherever it’s going to go.
All right. I just want to get that established with the audience. This is just you guys trying to compel the U.S. Attorney to tell you what’s going on with it. And it’s not like you’re demanding to be right there in the room as they present the petition. We just want to know if they’re doing their job. If they’re following what they said they would going to do in that initial letter.
Now, either of you feel free to chime in on this question: What are some of the grounds that the U.S. Attorney is arguing against this mandamus suit? In particular, I want to hear from you guys: What’s your response to it?
Okay, John, you want to pick your favorite?
Well, it’d primarily be the standing argument. Really, I think they don’t look at the organization as a person with a concrete enough interest in the case to bring the suit. Standing, at this point, is a weaponized doctrine, as far as I’m concerned. If you’re favored, they find you have standing. If you’re not favored, you don’t have standing.
Or for policy reasons: The courts aren’t looking for more business. They have too many cases as it is. So one way to limit the number of cases is to find lack of standing in certain instances for policy reasons. And I think this is one of those areas, because they fear that if they open the doors to allowing us to bring the grand jury petition and to force it to be heard, you’ll have lots of plaintiffs doing the same. It’s similar to the RICO statutes, which the Second Circuit always discourages to the utmost extent.
So it’s a standing issue. And in order to deal with that, our best arguments for standing will be more plaintiffs who were either directly injured or whose family members were killed in the attacks. That would be our strongest case. So if there are family members out there or if there are persons who were injured—and there still are. There are lots of firemen and other people who are still coming down with cancers and different injuries at this point. Some of them have found out only in the last few years. Those people could be our plaintiffs.
It’s going to be standing, I think, that’s the primary argument. That’s the battlefield.
All right. I’ll add a little bit to what John is saying about the standing, and then there are a couple other points you may want to know about in terms of the government’s arguments—points which are not as central as the standing argument. For those of you who haven’t been to law school and are wondering what this whole standing controversy is about: The short version is that the Constitution gives the courts the right to decide what are called “cases and controversies.” The Supreme Court over the years has determined that that means real disputes, between real people, about things that matter. They’ve unpacked that over the years and, unfortunately, have become more and more demanding in terms of who has the type of case that the courts have the power to decide. In other words, who has standing to walk into the court with their dispute.
They’re basically saying that you have to be adversely affected in some way by what you’re complaining about. For example, if you’re complaining about a violation of a federal statute, which we are, that it was the sort of statute that Congress intended to benefit you, and that you’ve been harmed in some way by the noncompliance. If the courts find that you have been harmed and you fall into the zone that Congress intended folks to be protected by the statute, then they’re going to let you proceed with your lawsuit—find that you have standing.
And if they find that you haven’t been harmed in any legally recognizable way or that you don’t fall into the group that Congress intended to protect with the statute, then the courts are going to say you don’t have standing and it’s not the type of case that they have the power to hear. So that’s what underlies this whole thing. But, as John points out, the case law has developed over the last several decades to be more and more restrictive of citizens’ right to sue. You see a lot of environmental suits dismissed for lack of standing—suits by nonprofits and so forth.
I agree with John that the doctrine has been developed in an overly restrictive manner. And it’s basically keeping citizens from what I would call seeking redress for government wrongs through the courts. And I think that’s actually contrary to the Constitution. One of these days, that whole thing may come to another decision by the Supreme Court and hopefully open back up the courts more to citizens.
In the meantime, we’re dealing with laws as it exists. Now, in addition to the standing argument, the government is claiming that we don’t have a right to enforce the special grand jury statute because it isn’t one of those statutes that creates or implies a right to sue. The problem with the government’s argument on that is that we have two other statutes that give us the right to sue in this case. I’ve mentioned them: The Administrative Procedures Act and the mandamus statute. So the government’s pretty much dead wrong on that.
And then they also argue somewhat mysteriously that the grand jury statute doesn’t actually impose a mandatory duty on the U.S. Attorney to give citizen-reported evidence to a grand jury. Pretty much every Court has looked at it, [though there] may be a couple exceptions. But the Second Circuit, I think is one, and the D.C. Circuit is another. And the Southern District of New York itself has looked at it. And they have all said yes, the duty is mandatory on the U.S. Attorney to relay the evidence to the grand jury. The only question is who has the right to enforce the statute if they don’t. So that’s the short version of what the government is arguing.
It’s fascinating to me, when you dive into the legal talk, to look at how they tried to dismiss this based on the standing issue. I mean to an ordinary citizen, it’s like we’ve all been adversely affected by September 11th. I know things aren’t that simple when you step into a courtroom. But it’s just hard to believe that you could have a situation where you have so much corruption going on—and you can see it on television with the media and you can see it with the politicians who refuse to do anything—that there is no recourse if all the institutions are so corrupted that you can’t go through the FBI to try to get justice on this, you can’t go through Congress, that there isn’t something for people to bring new evidence someone might have about a matter so big as this.
Now why do you believe that we do have standing. What is your argument?
Well, it’s pretty straightforward. I would encourage you to read this District Court decision from the Southern District of New York. It went through a history of the special grand jury statute which imposes this duty on the U.S. Attorney. And there is a clear history of what Congress intended when they passed the statute. It was already the default in terms of citizens trying to force a prosecutor to do something that, as a general rule, federal prosecutors have discretion as to whether they enforce a given law and how they enforce it and when they enforce it. Whether that’s good for the public interest or not is another question. But that has been the law.
But when Congress passed the special grand jury statute, it made clear that it wanted to remove the discretion of the U.S. Attorney on this particular action of when a citizen reports a crime, handing the information over to a special grand jury. And the Southern District of New York got it right in their decision in this case called “In Re: Special Grand Jury.” I think it was back in 1982, 1986, something like that they decided this. And they said it’s clear that the statute imposes the duty. It’s clear that Congress intended to the remove the discretion of the government. It’s clear that that duty creates a right that runs to the citizen plaintiff who reports the crime and that he has a right and standing to enforce when the duty is not honored.
The case goes into actually a more persuasive analysis than what I just said, and I believe it’s entirely correct. So we’ve basically adopted the rationale that this particular court has made explicit in a decision twenty-something years ago, which we believe is correctly decided. And as you said, almost everybody has had some kind of adverse impact from 9/11. But as John says, family members of victims have special egregious impacts, which should give them standing. And we think that the Lawyers’ Committee and Architects & Engineers have unique organizational interests in this issue. As nonprofits trying to bring the truth out and trying to get some transparency and accountability on the issue, we also would have standing because of our special, organizational interests that are adversely affected by the secrecy.
That’s the short version. I don’t know, John, do you want to add anything to our standing position?
No, I want to make a comment on what Andy had said earlier: With this increase in corruption, we have an inverse relationship now on standing. The more corruption, the less standing we find we get. And it’s when we need it more. And there’s a reason for that. The corruption goes hand-in-hand with the constriction on our rights to seek redress, I think. It’s political. With regard to the standing issue, Mick can tell us more about it. But he mentioned before, we’ll appeal if we’re denied, and it’ll put the issue squarely before the Second Circuit, and that could be interesting.
Yes, it will be. And I just want to go back to this because I have forgotten now. But wasn’t there a time period by which the U.S. Attorney’s office has to do this? Has to submit this to the grand jury? When was that time frame, and how close are we to it?
There is no statutory deadline for the U.S. Attorney doing his or her job in submitting citizen-reported evidence of a federal crime to the grand jury, which I think the law would say then implicitly creates a “reasonable time” deadline. It’s not a certain number of months or certain number of days or something like that. It’s mandatory that it be done, and under the Administrative Procedures Act, if there is a statutory requirement or duty and it’s not honored in the short term, basically you can sue a government agency or official for what’s called “agency action unreasonably denied or delayed.”
Then the Courts have to decide the answer to your question, which is: What is an unreasonable delay?
Well, it just seems so odd to me that they can just put this into a black hole and give you no word on what’s happening with it. And now it’s becoming an issue because of the mandamus suit. So the pressure is on them. And the 9/11 truth movement is watching. Anybody interested in this issue is watching them. I don’t think they can just get away with sticking it in a file somewhere and hoping that it goes away. I mean, the people will know about this. So you’re doing everything that you can do with it. Obviously, the issue is what it is. The situation is what it is. They’re going to try to challenge us on every level that they can. So it’s going to be a long fight.
I think you alluded to this before, but I want our audience to take note of it. They’re always waiting for the next big step. What is the next big thing we have to wait for?
On the mandamus or the grand jury petition?
Well, on the mandamus, since we’re talking about that.
Well, the next big step would be the government’s Motion to Dismiss, as I said, due in about ten days. The second big step would be our amended complaint. The third big step would be the government’s renewed Motion to Dismiss, or it would be an even bigger step if they said, “Oh, we’ve read the amended complaint. We actually agree with the plaintiffs. They have a right to proceed, so we’re going to file a substantive answer to the complaint.” And that would be a big step. I wouldn’t hold my breath waiting on it, but I hope that it happens.
Well, we’re going to follow it and we’ll be letting our supporters know as soon as anything significant happens. Again, it takes a long time sometimes for these things to come forward. So when we know something, then you [supporters] will know something. Now I want to make sure we cover the FBI lawsuit because it’s just as important here.
Hey, Andy, sorry to interrupt. Before you go to the FBI lawsuit, there’s one other twist and turn on the grand jury petition and mandamus that your listeners might want to know about. It’s one of our arguments more than one of the government’s arguments, so they responded. There’s a category of records related to the grand jury proceedings that we call ministerial. And these are not the transcripts of witness testimony or copies of exhibits actually handed to the grand jury while they’re looking at evidence.
So it’s not proceedings directly occurring before the grand jurors. But ministerial records have to do with the business of getting the grand jury up and running and how it proceeds. And there is case law in some circuits, at least, that ministerial records don’t fall under the Rule Six secrecy requirement or, if they do, they’re available to the public under a much more relaxed standard in terms of showing a need for the records, because they don’t really disclose evidence being given to the grand jury—testimony or exhibits. And they can be easily redacted to take out the names of either witnesses or grand jurors. So there’s no real risk of harm from the release of those types of ministerial records.
Like let’s say there was a notice into the grand jurors of their appointment or a notice of the convening of the first grand jury meeting. Maybe an agenda to be addressed. Things like that. So we’ve asked in our Motion for Disclosure, which is part of the mandamus petition, to be given at least enough of the ministerial records just to let us know whether the grand jury is looking at our petition. And even if they just gave us that, it basically would moot the entire lawsuit, because that’s all we’re trying to find out. Did they do their job by giving this to the grand jury? I just wanted you to know that the government is trying to argue—and they don’t have very good authority for this—that the ministerial record should be just as secret as testimony before the grand jury. And I don’t expect the courts to agree with that. We’ll have to wait and see.
Yeah, it doesn’t surprise me that they’re being so secretive about what’s happening, because they’re probably hoping that it will go away. Alright, so on to the FBI lawsuit. First, Mick, same as before, can you just give the background on what this is about and then give us the new update.
The lawsuit began because there was another mandate from Congress back in 2013–2014—to the FBI in this case. The FBI was mandated by Congress to do a new independent evaluation related to 9/11. They were required to do several things in this congressional mandate, which was made part of an appropriations bill by Congress but still enforceable, in our view, and still imposes duties on the FBI just as in a regular law that becomes a statute.
So the requirements of the new mandate from Congress were that the FBI look at and evaluate how well the FBI was doing in terms of implementing the recommendations from the original 9/11 Commission back in 2004, but also to evaluate all evidence related to 9/11 that had not been assessed by the original 9/11 Commission.
What the FBI did in response to this mandate was create what they call the 9/11 Review Commission. Some folks don’t even know that that commission was created in 2014. It was headed by a small panel of folks appointed by the DOJ. The chair was Ed Meese, former Attorney General, as I recall.
This new 9/11 Review Commission did issue a report in March 2015, and they purported, at least, to address the congressional mandate that they look at all new 9/11 evidence. The problem is that they didn’t do that. In fact, they looked at very little that could be described as new 9/11 evidence. And they ignored the entire body of the evidence of demolition—the use of explosives at the Trade Center on 9/11. They ignored the evidence regarding the “High Fivers” who were arrested celebrating the 9/11 attacks on the morning of 9/11. They ignored the evidence of videos from the Pentagon that have yet to be released. They ignored evidence of the Saudi financing and other international financing of alleged hijackers and other aspects of the terrorist acts of 9/11. They ignored the evidence of plane parts recovered at the crime scenes and what those parts showed. And they ignored a couple other categories of evidence.
So because this duty, in our view, was another of these mandatory duties—it wasn’t within the discretion of the FBI to just thumb their nose at Congress on this—and because they didn’t honor the duty, they didn’t comply, we decided to sue them, again, under the Administrative Procedures Act and the federal mandamus statute. And we did that. That complaint was then the subject of a somewhat predictable government Motion to Dismiss on similar grounds that we were talking about for the mandamus case. The government asked the case to be dismissed on standing and [said] that the statute in question was not enforceable.
We briefed that and made our arguments to the contrary. The District Court, unfortunately, agreed with the government on the standing question and decided that we—we being the Lawyers’ Committee and Architects & Engineers and Bob McIlvaine, the father of Bobby McIlvaine, who was killed at the Trade Center on 9/11— that none of us had standing to require the FBI to comply with this congressional mandate. And so where that leaves us is appealing to the United States Court of Appeals for the District of Columbia, because this suit was brought in the District Court in D.C., and our deadline for filing our Notice of Appeal on that case—asking the Court of Appeals to reverse the District Court’s decision—is coming up. And that’s around March the 3rd. So that’s where that case stands and we do intend to appeal.
How does Bob McIlvaine not have standing? A guy who lost his son that day. It just baffles me. That 9/11 victims’ family members don’t have a right to compel the FBI to look at reasonable evidence. Again, this is reasonable evidence. And if they don’t believe it’s reasonable, then they need to make the case for why they don’t believe it’s reasonable, which I don’t believe they’ve done. You can correct me if I’m wrong. I want to hear from both of you. I mean what do you think about what I just said?
Yeah, this goes to Bob McIlvaine. It’s a great point: How much closer can you get? And what the government might argue—and this is why, again, I’m going to harp on getting more plaintiffs in our case—they might, for instance, argue that the son was over the age of 18. So he’s emancipated. Or he wasn’t living [with his parents], so they’re not endowed with the right to bring this suit on [his] behalf. It just goes to show the extent that they will carry this argument unless they are absolutely pinned in a corner with nowhere to turn. That’s why it’s just so important that we get as many people with as direct injuries as is possible, so that they can’t slither out. And if we get it dismissed in a district court we can bring it to a circuit court and put it squarely before them.
I just want to add my two cents on your question about the dismissal of the FBI lawsuit on the standing question. I find it offensive that the Court found that Bob McIlvaine did not have standing. I think it was wrong to find that Architects & Engineers and the Lawyers’ Committee do not have standing, but I’m not as offended by that. But I am offended that the court would say that a family member who had lost a family member at 9/11 did not have standing to enforce the requirement that the FBI look at all of the evidence regarding the event that caused the death of that family member.
So I think that’s just dead wrong. One of the arguments the government made, and that the court relied on, was that in their view—and I think the court made a mistake on this—there was no reporting requirement involved in this law. That it was just a law to assess the evidence and not a requirement to report back to Congress on what they found in assessing the evidence. Which, to me, would be dumb for Congress to spend a couple million dollars for a study and then never get a chance to see the results.
But that’s basically what the Court said: That there was no reporting requirement, and if there was no reporting requirement to tell anybody, including Congress, the results, then we, the plaintiffs, were also not intended to receive those results and be the beneficiaries of that information. It’s what we call an informational standing argument. And the court is wrong on that. The Congress has made clear more than once that they want maximum transparency with the public on the facts regarding 9/11. And they want the family members to know as much as can be told regarding what happened on 9/11.
There’s no real doubt that Congress, had they received this report from the FBI—and, by the way, they did receive it, it was actually reported to them, [but] the court is saying, I guess, that they didn’t have to, but they chose to report it to Congress, which is contrary to what the law says. So it’s clear that there was a reporting requirement. There was a special statement from the Senate Intelligence Committee—no, the Senate Appropriations Committee Chair, I believe at the time—which basically laid out what Congress expected from this law, where they tasked the FBI to do the study. It was very explicit in saying that the FBI will report back on its findings—after assessing all this evidence independently—to Congress. The entire Congress actually voted and approved the bill on a statement that said that that statement, that clarification statement by the Senator, would be treated as if it were a joint statement of a Committee of Conference, which means both Houses saying: Here’s what we think this law requires. That is as dispositive of evidence on legislative intent by the Congress as you can find.
And I guess I should add that this isn’t just our view about what Congress intended. The actual report from the Ed Meese 9/11 Review Commission in the beginning, when they describe how they came to exist and what their task was, they basically say: We had a mandate from Congress. The FBI had a mandate from Congress to do this assessment and report it back to Congress. So even the FBI and its new Commission read the law the same as we now read it. They read it right at the time. But after we sued them, they suddenly had a different view of the law.
It seems pretty contradictory to me that we have a mandate to do this work and report to Congress, and then they say that they don’t have to—that any reporting that they did is voluntary. It makes you wonder who was really running the country, and it also makes you wonder what does the law actually mean anymore if they can just deny what is right in front of them? If you can wear a red shirt and somebody tells you that it’s blue. I’ve seen skits on comedy shows where people are in court and someone says you were standing there with a knife in your hand and he says, “No, I wasn’t.” And it becomes a whole routine and it’s supposed to be a joke, but this case sounds very similar. We’re mandated. We’re not mandated. It depends on who’s asking. And, of course, the people that are asking are not just Architects & Engineers for 9/11 truth. Not just the Lawyers’ Committee. It’s the family members. It’s Americans. Concerned people who have no reason to pursue this other than for the sake of justice and wanting to see justice done for those we lost on that day. So I think it’s just absolutely disgusting what you guys are having to go through on the road to pursuing this.
Same question as before on the grand jury petition, what’s the next big step that our supporters can look forward to in this? You may have said it, but I just want to highlight it here for them?
Yeah, that’s no problem. Next step would be our Notice of Appeal, which will be around March the 3rd. And then there are some preliminary papers that have to be filed, which I wouldn’t call a big step. But the next big step after that would be the actual appellate briefs, where you lay out your arguments to the Court of Appeals, and that schedule normally gives you about 30 days for the plaintiffs and the appellants, which would be us, to file the first brief.
That 30 days will probably start counting after all the preliminary paperwork is filed. So I’m guessing—and it is a bit of a guess—we’re probably talking about mid-to-late April for our appellate brief. Of course we’ll post it, but our arguments will be laid out about why the District Court was wrong in dismissing our FBI lawsuit.
Now let’s focus on what is out there among the supporters. Because we get a lot of questions about these two court cases—the grand jury petition and the FBI lawsuit. And sometimes there’s just nothing happening, because it takes time for these things to move forward. So we say be patient and not get frustrated. So I want to hear from both of you: Why is it so important to keep on pursuing this? Even though we can see there’s a lack of will obviously from the institutions we’re trying to appeal to, why is it so important to keep on knocking on the door and expecting them to answer, even if they keep on trying to close it? We’ll start with John.
Well, for one thing, we are developing new information all the time. Although we may not be able to talk about what we’re doing—and I think Mick will second it—we’re very actively looking at new information right now in different aspects of these cases—underlying events that maybe help push this over the top. [Information] that maybe helps gain some additional momentum—either political or legal momentum. So that’s one reason.
And people keep coming on board or come forward. They’ll hear something. Somebody makes contact. Leads to something else. Leads to something else. So the dam may break. In general, people across the country in lots of different areas are seeing a lot of this corruption, a lot of this dishonesty in a lot of different areas. And there is a certain momentum building underneath. How’s it going to play out with this? I don’t know. But I think it’s there.
Mick, same question?
Well, I agree with what John said. And then, as an additional answer, there’s this old saying that persistence is the key—or the alternative version: Never give up. There’s a reason why those old sayings are old sayings. And that is, there’s a lot of truth in them. I can tell you from my own experience. I had a whistleblower case where my colleagues and I at Public Employees for Environmental Responsibility represented the first female chief of the United States Park Police, Teresa Chambers, and she had disclosed to The Washington Post that the Bush administration was not funding the U.S. Park Police sufficient to protect either citizens in the parks or to protect national monuments, including from terrorism.
She was promptly fired for having basically had the courage to say something critical about the Bush administration in public. So we represented her and sued on her behalf under the federal whistleblower protections. And we lost the first round, at an administrative judge level, at the merit system protection board. And we lost—I believe we lost; it’s been a while now, which is the point of this story, that it’s been a while—we lost, I think at the second level with the merit system protection board. Then we won at the third level, which was the U.S. Court of Appeals for the federal circuit. And then we ended up winning back at the merit system protection board.
That whole process took us seven to ten years to get her reinstated into her job, which she was, as the first female chief of the U.S. Park Police. And had we not been persistent, and, in particular, had she not been persistent, she would not have prevailed.
I had another case, very similar: A senior scientist at U.S. EPA who had actually blown the whistle on the dangers from the World Trade Center dust after the buildings collapsed on 9/11, and we now know just how dangerous that was with all the folks who have unfortunately been getting sick and dying years and years after. So she reported to Congress and the FBI and, of course, they promptly fired her.
It took us I think about seven years to actually get her reinstated through various levels of litigation. And we did. We won. But if we had not been persistent, we wouldn’t have gotten there. So I don’t know if I want to tell folks to be patient or not be frustrated; I think all of us probably have a right to be frustrated at the moment. But that doesn’t mean that we shouldn’t still be persistent.
Right. I think it’s great to be frustrated. It just it needs to be directed at the U.S. Attorney’s office and the FBI—not at the people who are fighting hard here to get justice done. And I agree with you: Persistence is so important. And nothing has ever been accomplished without persistence. There’s a quote out there—I can’t remember the exact wording of it, but it says that talent is not that big of a deal, it’s the persistence that really pays off. And those are the people who are successful in any endeavor.
Guys, we’re going to keep on following this. And we give you the highest praise for taking on this mission. For years, we waited for a lawyers’ group to come along and do this—to do the work that you are doing. And now you’re here. So, thank you so much, and thank you for coming on 9/11 Free Fall today.
Thank you, Andy.
You’re welcome, Andy.