OA 1061

Stats

• Hosts: Thomas Smith; Matt Cameron
• Title: A 9/11 Lawsuit No One Is Talking About Reveals Deep Saudi Complicity
• Date published: 2024-08-19
• Patreon: https://www.patreon.com/posts/9-11-lawsuit-no-110371017

Podcast decription

OA1061

This week Matt shares a mostly under-the-radar story which has completely changed his understanding of the events of September 11, 2001.

As the 23rd anniversary of the attacks approaches, a mountain of information emerging from lawsuits filed by 9/11 families has revealed far more extensive ties between both al-Qaeda and at least two of the hijackers to the Saudi government than were ever previously known. Why has justice taken so long? How does the law even allow this suit to proceed, and why did Congress have to override Barack Obama’s veto to allow it to move forward? Why has some of the best journalism about this lawsuit been from Golf Digest? And has the time come for a second 9/11 commission to re-evaluate everything we thought we knew about the day that changed everything?

• Complaint in Ashton v. Kingdom of Saudi Arabia (filed March 20, 2017)

• Kingdom of Saudi Arabia’s Memorandum in Support of Motion to Dismiss (filed 5/10/24)

• Plaintiffs’ Opposition to Motion to Dismiss (filed 5/7/24)

• Blood, Oil and Golf: The emergence of LIV Golf highlights the Kingdom’s troubling influence Alan Shipnuck, Golf Digest (8/19/2022)

• New 9/11 Evidence Points to Deep Saudi Complicity, Daniel Benjamin and Stephen Simon, The Atlantic (5/20/24)

• “The Declassified 28 Pages,” 28Pages.org

• 60 Minutes excerpt which includes Omar Al Bayoumi’s 1999 video of the US Capitol (6/20/2024)

Notes

• Matt Cameron notes senior leaders of Saudi Arabia actively supported the plot to crash airplanes into buildings in the United States.

Transcript

Note: Text copyright Opening Arguments, LLC.

[ intro ]

THOMAS: Hello and welcome to Opening Arguments. This is episode 1061. I'm Thomas Smith. That over there is real life lawyer Matt Cameron. How you doing?

MATT: Hey, Thomas. I'm excited to talk about something I just have not seen covered enough.

T: Yeah, you know, the legal system moves slowly. But... How... How are we just having updates on a 9-11 lawsuit now? Let me do some math. 23-ish years later.

M: Yeah, coming up on the 23rd anniversary in a few weeks here. I mean, a number of reasons we might get into as to why we haven't heard that much about it. But there has been not too much long-form journalism about this. There's been some basic, you know, mainstream coverage. But until an Atlantic piece back in May, the only major long-form coverage of this was in Golf Digest. Which is usually where I go for my anti-terrorism news.

T: Oh! Is it because of the Saudi League that they're doing?

M: Yeah.

T: Yeah, wow.

M: They did a very long piece about that. And they explained in detail about the claims that the families had, just to really underscore this. And I want to start just to set this up. I think that learning this information, as I have over the last couple of weeks, has really changed my view of September 11th. And I think it should change the view of anybody listening. Because there is a lot now that the 9-11 Commission did not have. And I guess I want to say this right at the beginning, just as I did with the MKUltra episode. Everything we're going to be talking about here is going to be carefully sourced in places from PBS, ProPublica, New York Times. These are all major sources. If it's something that's only alleged in the complaint, I'll be clear that it's only alleged in the complaint. But if half the stuff alleged in this complaint is true, then this is an incredible case. And almost all of it is verifiable, just the documentation that has been released.

T: Wow. Well, as crazy as this is, it's probably not as crazy as MKUltra. But! It's as well sourced and I can't wait to hear. I know there is some crazy stuff about this. So I'm so glad you looked into it. And I'm really fascinated to hear what's happening and how it took so long. So on the other side of this break, we're going to get into it.

(commercial break)

T: What is happening? Who? (laughs) I just heard about these buildings coming down. What happened? Seems crazy. No, not really. But how did we just have new updates now? That's the first question. How could it have taken so long? I don't get it. You can say my question sucks if you want and move on.

M: No, it's a good question. It's a good question. I think that it's taken so long because Congress had to actually change the law to make this lawsuit possible. The families have been running up against the wall of the existing law again and again and again. Most of the case was dismissed at some point until Congress finally changed the law. So I want to take you through how that happened. I think that if the law had been as it is now, as of 2002, 2003, maybe we'd be seeing a lot more justice here. But just off the top, this suit is outlining in exhaustive detail– And I recommend that anybody who's halfway interested in this, go just browse the complaint. If you have any doubt about the things we're saying, about what I'm saying about the Saudi government's complicity here, just read the complaint and read the plaintiff's response to the defendant's motion to dismiss because it's just overwhelming. The evidence that the Saudi government was not only aware that there was going to be a major attack in the United States involving planes crashing into buildings, but was actively facilitating it, actually helping to plan it. And senior officials of the Saudi government. And again, the degree to which the Saudi government itself was involved is still being litigated.

T: But we knew all this. That's why we bombed Iraq.

M: That's right. And Afghanistan. Naturally.

T: And Afghanistan. You're right. I don't know if geographically I'm terrible at it. Is that getting close? Like, were we closing in, maybe?

M: Americans aren't great at geography. Yeah, that might be the whole thing. But the question I keep running against as I think about all of this is what you just said. Why not just invade Saudi Arabia? Once we proved that 15 out of the 19 people were nationals of Saudi Arabia who were responsible for the hijackings, we have extensive funding that we can prove. We know that they were funding al-Qaeda. That they were funding al-Qaeda. All this other extremism that became the Taliban, everything else. I think the answer is that we've been depending on them as a sort of geopolitical axis there, along with Israel. And we're ready to have them fight a proxy war because they're deeply opposed to Iran and they'll do anything on our behalf for Iran, it seems. And now with the Abraham Accords, they're moving closer to a better relationship with Israel. So at this point, I think we're trying not to rock the boat too much. But this is a boat that needs rocking. This is not a country that we should be this close with.

T: But back then, I feel like it's hard to remember. But I don't remember us having anywhere near the friendly relationship back then that kinda now have with them. So it's one thing now to say, yeah, now we'll let them get away with murdering a journalist in an embassy, apparently, and do almost nothing. But back then, I still don't fully get it.

M: No, we've been counting on them for a long time as allies in that area. And if nothing else, it's a quarter of the world's oil. And that's really what it comes down to. But if they say that we've invaded Iraq for the oil, which I certainly don't dispute, why would we not have gone to the place that has a quarter of the world's oil? It's just, I don't know. This is a very complicated geopolitical question. And it's a little beyond the scope of this discussion. But let's start with the fact that you can't really sue a foreign government. That's the first part.

T: Now, when you say “you”, you mean just like a citizen?

M: Right.

T: Okay. Can a country sue another country? Is there somebody that can do that? Or is it just not really how it works?

M: Yeah, there are ways. But it's very limited. And I'm talking about the Foreign Sovereign Immunities Act of 1976. It generally controls this stuff. That's 28 U.S.C. 1330. And generally speaking, it only has a couple of exceptions. And the families in this case found themselves tripping up against these established exceptions because the Foreign Sovereign Immunities Act was not really contemplating a non-state actor with possible backing from a state doing something like this on U.S. soil. So the exceptions are that you can sue a foreign government for non-commercial torts, because they don't want people suing over business deals, obviously, occurring within the United States, as this did. And the other exception is that you can sue state sponsors of terrorism. But of course, the Saudi government has never been determined to be a state sponsor of terrorism despite overwhelming evidence that they have been a state sponsor of terrorism for a very long time, for most of our lifetimes.

T: Boy, we got to fix our detector. You know, like, I don't know if we're using one of those Ghostbusters things or whatever is detecting whether or not you're a state sponsor of terrorism, maybe we need to adjust the dials on that a little bit.

M: Well, the problem with that detector is it's really bad in the presence of oil. For some reason, that really seems to throw it off.

T: (laughs) A lot of interference. You know, oil. Yeah, it's a technical thing.

M: Really suppresses that needle. Yeah. So I want to take you through. I don't want to get too far in the weeds. But I think the legal evolution here is interesting. And it's also interesting to sort of see why Congress had to finally do something. Because everyone understood this needed to change. And I want to thank a friend of the show, Steve Vladeck, for a lot of this analysis. He's done a lot of writing, obviously, on national security issues. It's one of his main things. And I was really helped a lot. I was edified by a lot of what he had to say about this. So I want to make sure I give him credit. So you've got this fundamental problem that the courts are just not going to find jurisdiction over the Saudi government because none of these exceptions clearly apply. And the families have been starting in 2002. There's another major one we're going to talk about that started in 2017. They're kind of conglomerated right now. I'm going to sort of refer to them as one sort of giant action because the same issues arise in all of them. And there were two 2005 rulings early on when the families are trying to go after banks. They're trying to go after Saudi officials. They're trying to go after anybody they could prove was linked to funding or plotting anything. And these two cases were called NRE terrorist attacks one and two (?). And these went through.

M: It's interesting just to track the analysis of how they're looking at this. So the Foreign Sovereign Immunities Act, when they're looking at these exceptions, the district court originally found that the discretionary function exception applied, which means that if a foreign state is doing something that arises from its discretionary function, which they literally said was funding terror groups where it puts its money. Yeah.

T: Yeah, in my budget, I put that. That's not like medical or, you know, rent or anything. I put that in discretionary personally.

M: Just terror. Yeah. But they found that that actually, because it was a discretionary spending thing, the original district court decision found. That the foreign states were protected. And the Second Circuit reviewed this. They agreed that there was no jurisdiction, but they found that there could be no exception, simply because the U.S. had not designated the Saudis a state sponsor of terror, which has been the fundamental problem through all of this, because there's non-state actors that were officially responsible. The other issue that continued to come up, as we'll discuss, is secondary liability. And I'll get to that in a minute. But obviously, you can't say that the Saudis were primarily responsible, because obviously Al-Qaeda as an organization actually carried it out. And you have to be able to show these links to show secondary.

M: So when this was done, this went up. This is just a little interesting note here on a process I don't think we've talked about. But the Supreme Court, when it receives a cert petition, it will sometimes put out what's called a “call for the view of the Solicitor General”. So literally just kind of calling up the SG and saying, hey, what do you think? You represent the United States in front of us. Would you like to provide a brief? And apparently this is not so much a call as an actual order. And Elena Kagan was the Solicitor General at the time. And she actually introduced a new argument, which has come up since, that you theoretically could allow a non-state sponsor of terror to be sued, but only if the entire tort took place in the territorial U.S. So sort of merging the two exemptions that are there.

T: Now, not to make light of it, but is terrorism a tort?

M: Yeah, it's strange to think of. But yeah, I mean, we've got wrongful death, we've got property damage.

T: Building demolition. I don't know. Hijacking. A lot of things, I guess. It's just down to like the death part.

M: Yeah, the wrongful death is the main thing, right? But certainly there's a lot of other claims. It is very strange, though, to think of the worst terrorist attack in American history as a “tort”. It's kind of the least of it. Yeah.

T: Just the guy on the— Have you been hit by two to three jets? Yeah. That's not really how it works. It's weird to think of that, but you know.

M: Yeah, but if you can get money, let's get money out of this. So this became more and more of an issue because everything, like all of these families, every one of these litigations, were just finding themselves up against the wall of the law not really applying to them. So Congress got energized about this. And this was an unusually bipartisan thing. It was first introduced in 2009. But it's the Justice Against Sponsors of Terrorism Act. It was originally introduced by John Cornyn and Chuck Schumer, so you can get an idea of the across-the-isle-ness of this. And it went through the Senate with no opposition. And it unanimously passed the House, which, again, in May 2016, I don't think it was much that it was unanimously passing the House.

T: I do remember this, though. I remember that, like, 2016, obviously, interesting for many reasons. But I do think that election showed—was the first one where it really showed we were kind of moving on from the mindset of 9-11 a bit, like the—you know? And more people were like, hey, maybe we should look at what actually happened, you know? And who actually sponsored it. And I do remember I have a—kind of a libertarian friend who, at the time, was talking a lot about it. It was refreshing that that was kind of a bipartisan thing somewhat.

M: It was. But unfortunately, it was vetoed by Barack Obama almost immediately. Because he actually said he was disappointed with Congress for passing this unanimously. He said that it was unfortunate because it was an election year that they felt like they had to do it. But he said he was looking out for the bigger interest. It does seem very strange to veto a bill that allows 9-11 families to sue. Because it was—the bill was written very broadly, but it was obviously supposed to be for this purpose.

T: Did they override the veto?

M: Yes. Five days later, they did pass it, again, overwhelmingly. Overrode the veto.

T: What a weird thing.

M: It is.

T: Like, why would Obama— It's weird to see something, like, unanimous and be like, I'm disappointed in you. Like, what are you—

M: Yeah.

T: When's the last time Congress was unanimous on anything?

M: Yeah. Well, I can read a bit from his statement, because I had the same question. I certainly would like to know. And he was positioning it as kind of more of a political and economic issue. But he said that enacting this into law would neither protect Americans from terrorist attacks or improve the effectiveness of our response.

T: Doesn't seem like— Doesn't seem like it was what we were trying to do, though.

M: Yeah. He said it would permit litigation against countries that have not been designated by the executive branch as state sponsors of terrorism, nor taken direct actions in the United States. He says it would be detrimental to the U.S. national interest more broadly. I will tell you that the Saudis were very angry about this. They were threatening to sell off $750 billion worth of treasuries, which would have hurt them quite a lot if they'd done it. I don't think they would have gone—followed through on that. But they were really worked up about this. Even when they passed it, though—and there's—again, I'm going to link to Steve Vladeck's analysis. Because he's brilliant on this stuff. And this is not my field, obviously. And I trust what he's saying here. But he has a couple of pieces on how they watered it down. Even what was passed was not—didn't have the teeth that it should have, necessarily.

M: So there's another bill involved. And again, I don't want to get too far in the weeds. I want to try to keep this to what we need to understand this. But the Anti-Terrorism Act is also in play here. And that actually allows triple damages, if you can prove. Now, the Anti-Terrorism Act is very poorly drafted, as Ledeck points out. So the Anti-Terrorism Act says any national of the United States injured in person, property, or business by reason of an act of international terrorism—or as a state and survivors—may sue, therefore, in any appropriate district court of the United States and shall recover threefold the damages. But it doesn't say who you get to sue. And it doesn't say what the standard for that suit is. So there's been all kinds of litigation around this.

T: So how would you collect that?

M: Right. Well, that's—we'll talk about that at the end. That's the real problem when you're talking about these people. So in the Second and Seventh Circuit, both held at the point that JASTA was being considered, that the Anti-Terrorism Act didn't allow secondary liability, which remains the problem. So the specific issue that they had to pass JASTA to address was the fact, as we've discussed, that this was a secondarily liable country. They're not necessarily primarily liable as a state. And what's really interesting about this to me is Congress, when they passed this, the authority that they claimed to be able to authorize these kinds of claims was based on a D.C. Circuit case, on an actual judicial case. I don't think I've really seen it put that way before.

But they were very explicit in the bill itself that it was Halberstam v. Welch from 1983. And I want to talk about that because they're applying the logic of a petty burglary. We're talking about a career burglar named Bernard Welch who broke into someone's home, unfortunately killed the father of the home during the burglary.

T: And then hijacked a plane and crashed into a building? How is this—

M: No, yeah, you wouldn't think this would be related at all, but it actually really is. And it was an interesting read. I did not expect to be reading a burglary case in the research for this. But the fact was that Welch was living with a woman named Linda Hamilton, and they'd lived together for five years. And she knew that he had nothing when they got together.

T: The Terminator lady?

M: Yeah, that's right, the Terminator lady. Yeah. That's right, I knew that name. They had nothing when they got together, and she knew that by the end of their five-year relationship that he had a fortune. And she didn't really seem to care where it came from. And they found that there's all kinds of reasons that she should have known what he was getting up to. So she was sued as a secondary liability theory. And this allowed the court to examine vicarious liability for tortious conduct, you know, as it relates to secondary defendants, not the perpetrators. And this is becoming relevant, obviously, for the Saudi issue here. So they're talking about the aiding and abetting analysis for criminal liability and how that applies to civil conspiracy. And it's all pretty interesting. But when it comes down to it, what they arrive at is a civil aiding and abetting liability standard in which the part of the defendant is aiding. The defendant, in this case, being the secondarily liable person, has caused the injury. The defendant has to be generally aware of what the person is doing, that they're doing things that are illegal or tortious, and they must knowingly and substantially assist the violation. So it's pretty straightforward for secondary. And the problem, though, with JASTA is that Congress just says in the bill, well, this is what we're proceeding on. This is the legal theory. But they don't really break down how it's going to work, what the standards are so much. And that's up to the courts, as it always is.

M: So the Supreme Court got around to refining this, actually, in a case I wouldn't have expected. I missed this one somehow, but it was called Twitter v. Taamneh from last year. And there was a case in which the plaintiffs were claiming that Twitter failed to control terrorist activity on its platform. And that actually ended up resulting in a shooting in Istanbul. And so they're trying to apply the secondary vicarious liability theory to Twitter.

T: Interesting. Even though they're not, like, funding it?

M: Yeah, even though they're allowing these communications. They're allowing these communications knowingly.

T: Oh, okay. So it's like sort of aiding. So being basically, it sounds like the standard is like you have to be aware of it and in some way helping, not necessarily like cutting checks, really.

M: Yeah, that you know that this person is doing things that are illegal, atrocious, and you're just kind of letting it happen.

T: Gotcha.

M: So the Supreme Court took it upon itself to review the Halberstam standard and to refine all of this. And they decided they could come up with something better. It's kind of interesting the way that Clarence Thomas does this, where he says basically, well, you know, they had some factors. And Halberstam, we think those are interesting. But at the end of the day, they were just using the common law. So we're going to go back to a common law standard. And we're just going to say as long as you have a conscious, voluntary, and culpable participation in another's wrongdoing, then that's enough for secondary liability. And at the end of the day, it comes down to the basic common law idea that you participated in a way that helps it succeed. But they said we don't have to resolve the extent of this difference. But, you know, as it is, that's the standard now.

M: They also said that you don't have to have a strict nexus between the activity and the attack. You don't have to know what the plan is. You don't have to know exactly what they're going to do. You just have to know they're going to be doing something illicit, something that's going to hurt people in this case. You still have to be supporting the attack in some way. That's what it comes down to. Sorry, I just wanted to give some of the history. This is why it has taken so long. This is the very long answer to your question, is that it has taken so long because we had to not only pass a bill but then figure out what that bill meant. And then there have been multiple motions dismissed and all kinds of litigation around what this bill meant, even after it was passed, trying to help the families to do this.

M: The other complication, as Vladeck points out, is that in the end, it not only limited the ATA claims. So the ATA claims are only limited. It's only for primary liability at this point. We can only do the JASTA-based claims. So you don't get the triple damages is the main significance of that. But it also allows the U.S. government to intervene to seek a stay if the Secretary of State can certify that the U.S. is in some sort of good faith discussion with the foreign government about trying to resolve it. So you can imagine what happens to that. You're going to end up in litigation limbo. You're going to have the U.S. Secretary of State say, just to smooth things over with Saudis.

T: (sarcastically) Talking over, yeah, we'll find some diplomatic solution to this, you know.

M: We're working on it. It's on the agenda. And they can come back every 180 days. And just keep getting stay after stay after stay indefinitely.

T: No wonder. Okay, that sounds like it could be the major timing factor.

M: Yeah.

T: That could go on forever. I can certainly see that be a problem. There is one more issue that we'll discuss at the end when we're getting through. I just want to keep it organized. So that is what we're working from. And that is why we're able now to finally get into the courthouse door after all of this back and forth and all of this effort. And now we're going to start to talk about some of the facts that I wasn't really aware of and that a lot of listeners may not have been aware of either. And, of course, we've learned a lot since 2002. And a lot of things have been declassified. Other governments have discovered things and handed them over to us.

T: Plus, I bet we learn a lot when we're not making an effort to justify a war that had absolutely no justification. Like I'm sure once you've taken those lenses off, your analysis probably helps learn more actual facts.

M: It certainly does when you can actually step back and pay attention. You know, again, we're talking about basically there's a whole suite of cases here. But the one of them is Burnett from 2003 that's been going on for a very long time. The other one is Ashton v. Saudi Arabia from 2017. And that one was filed actually by the guys you want to get if you're doing any kind of aviation disaster. Kreindler & Kreindler. And the New York Times called Lee Kreindler the founder of air aviation disaster law. Basically, they've had their hands in all kinds of cases you've heard of. The biggest one before this was the Pan Am 103 Lockerbie bombing, which they not only won the suit against Pan Am for negligence, but then they got $2.7 billion in a settlement with Libya.

T: Wow.

M: Which is a lot of money.

T: Huh.

M: Yeah. Some heavy hitters on that side. On the other side of it, representing the kingdom, you've got Kellogg, Hansen, Todd, Figel & Frederick. And they're a very well-known commercial litigation firm, best known recently for Neil Gorsuch being an alumni. We had to mention Neil Gorsuch somewhere in here, I guess.

T: Yeah. I mean, I get that there's always the, you know, everyone deserves their advocate in court. But it's pretty weird to be like, we're going to defend Saudi Arabia.

M: Yeah.

T: I don't know who does that job and why, I guess.

M: Yeah. I well, I know why. There's a lot of it. I mean, I, okay. But yeah, I agree. I don't judge lawyers by their clients.

T: Well, no, I do. I do judge them by their clients. Somewhat.

M: You can. It can be done. They're usually like an antitrust and communications kind of firm, like doing serious commercial litigation.

M: So the 2017 case I wanted to focus on because it really brings everything into focus here. Beautiful complaint, as I said, is extremely well written and it incorporates at the time a lot of what they knew and now they've been able to update it through several more filings. But just talk about some of the basic things here. There's so much that has been revealed, but starting with somebody named Omar al-Bayoumi, and he was a known Saudi intelligence agent and the FBI has finally admitted that they know that he was a known Saudi intelligence agent. He was posing as a grad student. He had a fake job, but he was getting a stipend from the Saudi government to do intelligence work in the United States for more than 20 years.

T: Wow.

M: And he was working on behalf of the Ministry of Islamic Affairs, which is the part of the kingdom which spreads their Wahhabi Islam, you know, the very extremeist form of Islam that they support.

T: Right.

M: And this office was openly, actively supporting al-Qaeda and other extremist operatives. Like, they're not being very subtle about it even. And, that, you know, he was sending information directly on to Ambassador Bandar. I mean, this is, again, a known Saudi intelligence agent who was working in the United States. But we didn't know exactly what he was doing for all these things. And more and more has come out. But the most important thing that we have learned and that really is the top line item out of all of this is that agents of the Saudi government, including al-Bayoumi, met Nawaf al-Hamzi and Khalid al-Mihdhar, who were two of the hijackers who were in the Pentagon plane. These are people who just showed up in the U.S. They didn't speak English, have ties to the area, they didn't know anything about anything. And al-Bayoumi just claims to have run into them at random somewhere in L.A. And then they just show up in San Diego. The Saudi government's official position on this still is that these two Saudi nationals who would go on to be on the Pentagon plane, al-Hamzi and al-Mihdhar, they showed up in L.A. and just randomly ran into al-Bayoumi. Al-Bayoumi at the consulate, even though he didn't actually need a new passport, allegedly that's what he was doing. And he runs into a cafe near the mosque and they start chatting. And they claim, the Saudis still claim, that al-Bayoumi never offered any help, never invited them to San Diego. That somehow, for some reason, they just turned up in San Diego a few days later and then happened to have a welcome party, which was caught on video. Like, they have this entire welcome party of them hanging out with these terrorists, just, you know, having a party on video. But he found them an apartment, he co-signed their lease, he opened up a bank account. And put in $10,000 of his money.

T: That's like he's trying to win the award for best aiding and abetting.

M: That's right, yeah, just the full package.

T: You need direct, I printed out the MapQuest for you of where you need to go. Yeah, just everything you could possibly need.

M: Yeah, here's some Starbucks gift cards and, yeah, you know, get yourself started. But, you know, the party is a remarkable document, just the video itself, because you've got any number of key figures that we know about.

T: Why is someone videoing?

M: Yeah, I know. It's a good question, too.

T: Are there some amount of people involved that were, like, don't know what's happening or just know? Are they just normal people or something? Like, is that why? Or is this, I don't know, they do weird stuff, these terrorists sometimes. They do film stuff, maybe because they're proud of it. I don't know.

M: Yeah, they're just having a party and want it on video. I guess everybody's videoing everything. I don't know. This is before cell phones, so. Yeah, you're out of your way to actually do it.

T: I know. It wasn't that easy back then.

M: Sure. And the complaint exhaustively details all of the different ways that funding has been flowing through. And all of the different ways that known contacts in the U.S. were assisting these people. But discovery at the moment has been limited. And itʼs probably going to be opened up pretty soon. But it's been limited to these two terrorists we've been talking about.

T: Wow.

M: And there's more than enough there. But, yeah.

T: Geez. So everything we're talking about with all of this is just these two?

M: Right. Because this is what all this new information mostly pertains to. But there's a lot of other stuff that could likely come out. And a lot of things that have been declassified. And I should mention, the 9-11 Commission, which did a beautiful report. I haven't read the whole thing, but I was going back and revisiting some of it. They did not have a lot of the information that I'm telling you about. And I should read their official finding as to the Saudis right now, just so we have this in mind. The Commission staff found no evidence that the Saudi government as an institution or as individual senior officials supported al-Qaeda. Which I'm not the first person to point out that's individual senior officials. So certainly you're leaving room for other officials. And the Saudi government as an institution is a very specific turn of phrase. Because it appears to maybe have been factions within the Saudi government that were doing this. But there's a lot here. And I want to be careful not to speculate beyond what we know. And I don't want to be getting into conspiracy stuff. I'm just going to present the stuff that we have here. But there was a section called, “Finding Consensus on Certain Security Matters”. Which remained classified until 2016. It was 28 pages. And it opens with this finding. “While in the United States, some of the September 11th hijackers were in contact with and received support or assistance from an individual connected to the Saudi government. There is information, primarily from FBI sources, that at least two of these individuals were alleged by some to be Saudi intelligence officers.” So, the 9-11 Commission was at least aware of this. But they have said they did not know a lot of this stuff about Bayoumi. They didn't have a lot of the evidence that is now coming out. And that, you know, maybe things would have been different. It seems like it's time to revisit a lot of this. Because there's just this network of support that we seem to know about now.

T: Yeah. They are remaking every single movie. They're doing a sequel where everybody's old. You know, do that with the 9-11 Commission.

M: That's right. Do the 2024 edition.

T: No, I don't do that anymore. I'm retired. I know. But there's... Get the band back together, you know?

M: Or just a reboot. Reboots are big now, too.

T: Yeah. You know, the one, like, younger member, just in case the franchise is going to continue forward. You do have to have that, like, you know, one of them's... Well, he's no longer with us. Okay. But I hear his grandson is just as good at 9-11 commissioning. So, let's just get him.

M: The evidence that really recently came out for declassification... I've sent you a video here. We'll just play a few minutes of it. This was on 60 Minutes in June. And this is al-Bayoumi casing the Capitol. There's no other way to say it.

(video)

A voice on the video says in Arabic, I am transmitting these scenes to you from the heart of the American capital, Washington. This video, unsealed in federal court this week and obtained by 60 Minutes, was recorded in the summer of 1999. The man behind the camera is Omar al-Bayoumi, who the FBI says was an operative of the Saudi intelligence service with close ties to two of the 9-11 hijackers. The video was filmed over several days. Bayoumi recorded entrances and exits of the Capitol, security posts, a model of the building, and nearby landmarks.

In this portion of the video, Bayoumi points out the Washington Monument and says, ‘I will get over there and report to you in detail what is there.’ He also notes the airport is not far away.

M: I'm sure you'd like to know how the Saudi government has characterized this.

T: Oh, just, yeah, tourism.

M: Yeah. Plaintiff's increasingly wild theories even include assertions that al-Bayoumi prepared a flight plan and a casing report for the attacks. I'll skip, we'll talk about the other thing in a second. A tourist video that includes footage of artwork, flower beds, and a squirrel on the White House lawn. That's what he was really concerned about, was the squirrel.

T: The squirrel was one of the targets, yeah.

M: But, I mean, you can see in the link to the video, it is explicitly, he's targeting security stuff. He's just showing you all the different security things. It's not, I don't know, maybe I don't do tourism right, but I don't usually take extended videos of security.

T: Oh, you're missing out, yeah.

M: It's the best part. Yeah, the Saudi's position is very indignant, all the way through their response to all of this. They think this is all coincidence. You know, how dare you say this guy was an agent? How dare you say that the stipend that he was receiving, and, you know, just coincidentally it happens that we, you know, quadrupled his stipend just when the terrorists showed up and, you know, started giving him more money. There's also another piece of evidence that was found by the British that was given to us, and we didn't seem to really know what to do with it, and the 9-11 Commission didn't see it either, but I sent it to you actually in an email. If you want to take a look so you can see what I'm looking at, it is a notepad.

T: Someone's math notes, yeah.

M: Math notes. And you can see it in cursive there, so there's definitely a drawing of a plane and some little dotted lines, and under the dotted lines it says, distance from the plane on horizon. And height, the plane, something, the earth, I can't quite read that, in mile, but it's pretty obvious.

T: Height, the plane from the earth in mile.

M: Yeah.

T: They could see the horizon, that's what they wanted to know?

M: Yeah, so the expert that analyzed this said that it could be used to help calculate the rate at which a plane would need to descend in order to hit a target on the horizon. And so, Bayoumi acknowledged in the deposition that he did this, and the Saudi story, the official Saudi story, as argued in court and their motion to dismiss, was that this was his 14-year-old son's math homework. Which, I don't know. That doesn't seem like something that you'd be assigned in math class to calculate a plane crash.

T: Doubtful. Doubtful.

M: Good on them for trying to explain it, I guess, because you've got to come up with something. But the judge was very skeptical and said, you know, if he didn't testify this belonged to his son, if he's saying, yeah, that was mine, why are we supposed to believe this? Like, this is in his deposition, you know, come on.

M: So, you know, these two things that were not previously available, and that video I should mention, I just showed you a little bit of it, but he not only is casing the building, but he talks about the demons of the White House, and he talks about a plan.

T: Tourism stuff! You know, I go on the demons of the White House tour, there's a double-decker bus.

M: Yeah, again, it's just hard to miss what this stuff is and what's going on. And especially, I just can't encourage you enough to just read the complaint because it is just a mountain. I mean, it's just, it's incredible, too, the way that they've just responded to this. They're doing the best they can to respond, but all they can really do is just try to say that this isn't us. Like, it just, you know, but they can't.

T: Well, and that's the thing about complaints. Obviously, you can say pretty much anything in a complaint, but this is not your typical, you know, two civilians suing each other over some car accident, just nonsense. This is like, first off, massive resources going into this. And you can also, yes, you can allege anything in a complaint, but the response is pretty telling. Like, if you allege something and the best they can do is, (sarcastically) you know, tourism stuff, like, that's...

M: Math homework.

T: Yeah.

M: And the plaintiffs make that point in their response. They say, The Kingdom's unwillingness to engage the very question the Court directed the parties to address, which is about their agency in this, reflects its recognition that it has no credible argument to make on the agency issue. “The evidence is clear that Saudi Arabia deployed its officials and agents to serve in an illegal government enterprise that was extensively intertwined with terrorism.” So they're coming on strong with this. And I just want to point out the legal theory at this point. So what the case is down to is respondeat superior. We're looking at the scope of the agency. That's the official sort of Latin term for when you're, you know, how liable an employer is for something that employee does. And kind of an interesting side note here that they had to narrow it down to California law because they decided that California was where the agency was established because of this San Diego connection. But they also acknowledged that, even if we use New York law, it basically works out to the same. And the standard that we're working with here is if the employer's liability extends beyond his actual or possible control of the employee to include risks inherent in or created by what they call an enterprise, this is enterprise liability. And they're saying that the Saudis were aware that there's some kind of enterprise, that they're responsible for anything that happens out of that. And it makes sense. You know, I think that's what you can do with this.

T: Yeah, again, it does seem pretty reasonable to be like, you can't have, just as an example, you can't have a state set up a cell somewhere and be like, hey, we don't really want to know what's going on, but, you know, here's some help, and give them hell, you know? Like, that doesn't get you out of jail free.

M: You can't wash your hands, yeah. No, it's not that easy. I mean, the Saudis in this case, they went so far out of their way to give him cover. They gave him a false job with the Saudi presidency of civil aviation. You know, they tried to, in every different way, deny or cover up anything that he was doing for them. And he and this imam, Thumairy, provided, they were hosting. I mean, there's no other way to say it. They were hosting these people. They were helping them through. They were facilitating all kinds of extremists. But these two terrorists, of course, are the people that were focused on the most.

T: You know, this may be a dumb question, Matt, and maybe out of the scope of what you're looking at, but, like, why? Why did Saudi Arabia want to do, like, you know, was it merely a question of extremism? You know, like, is there any answer to that? Like, why they, as a country or as a, certainly to a broader extent than we knew, would have wanted to, do something like this?

M: It might be a little bit beyond my understanding. I mean, the official reason, right, was that the U.S. was too involved in Saudi Arabia. That was the official reason that Al-Qaeda gave. And maybe there were people in the Saudi government that felt the same way. You know, maybe they just thought we should be taking down a peg. Certainly one way to do it. But that's pretty far beyond what I can speculate on. I should mention also that we know a lot about this from Abu Zubaydah, who was number three at some point in Al-Qaeda. Now, some of what we know about him, unfortunately, is from extreme acts of torture. He was one of the people who was tortured the most. We still have him in custody.

T: So do we really know it?

M: He did provide the actual private phone numbers of people when he was, you know, under interrogation in the Saudi government, including Ahmed bin Salman, who's a pretty important Saudi businessman who was actually one of the first people to get out. You know, I'm sure you're familiar with the flights that, you know, we now know about, that the FAA denied for a long time. There were flights of not only the bin Ladens, but some other Saudis.

T: Oh, no, I don't remember this. Like after the terror attacks, they got out of there?

M: Yeah. No, there was this whole story, especially about this one on the 13th, because planes were down. Nothing was happening.

T: Right.

M: Nobody was going anywhere. And the bin Laden family and a number of high-ranking Saudi officials, including Prince Achman [sic?] were allowed to leave at a time when nobody else was. And this all kind of came out in 2004. But the official explanation was the U.S. government was concerned about acts of retaliation against the bin Laden family, that there are a lot of bin Ladens. I think that Osama bin Laden was 17th out of 54 or something. Very influential.

T: Wow.

M: For those who don't know, very involved in construction. You know, at the time, Prince Ahmed was in the process of spending $1.2 million on a thoroughbred when he was snapped up. And, you know, this is just what they've been doing.

M: The FAA denied, though, for years, for whatever reason, that this had ever happened until they finally had to, until June 2004.

M: You know, he also provided, Abu Sayyed [sic?] also provided numbers and information about a number of Saudi princes and military commanders who would know about this attack. And three of them were killed under mysterious circumstances within days of this information coming out. And I should mention, I'm drawing on the book Secrets of the Kingdom by Gerald Posner from 2005. So some of this obviously doesn't have to do with the new stuff, but I went back just to try to get a sense of what we knew. And we've actually known quite a lot, a lot more than I would have expected, has been known for quite a while. And Posner's a serious journalist. He actually, just for context, he wrote a book about why Oswald acted alone. So he's not a conspiracy theorist.

T: Why Oswald acted alone?

M: Mm-hmm. It's called Case Closed. And he's establishing his belief that there was a solo act. That book is really well researched, and it's really, it's an interesting read. I just went back and read some of it. But again, just the known connections between the U.S. and Saudi government.

T: So Saudi Arabia didn't support Lee Harvey Oswald. Okay.

M: No. We do know that at least. We got that for sure.

T: Cleared that up. Glad I could help.

M: But they have been spending a lot of money on PR and lawyers and trying to protect themselves here and do their best to make sure that this is not what we know about it.

T: I was going to ask that too, because they have more money than is even believable.

M: Mm-hmm.

T: And I have to imagine, like a settlement probably could happen, but, is it less about money for them and more about image and reputation and the principle of it?

M: Yeah. I don't think they want to have any kind of admission that anything to do with, you know, the worst terrorist attack. But yeah, no, I mean, it is, I was going back, and I mean, as of the time he wrote the book, it was, Saudi Arabia was making in profits $300 million a day, and that's split between 6,000 men in the kingdom.

T: Jesus.

M: That's why they have so much money. And it's much more a day now.

T: Can we get off the oil, everybody? You want to maybe get off oil?

M: Yeah.

T: A little bit?

M: I think that the quarter of the world's oil ended up in this place. I mean, it's really unfortunate because this is, these are not people we should be doing business with. The more you learn about this government and about their beliefs and what they're spreading in the world right now, it's bad. It's very concerning.

M: So remember, of course, this isn't a criminal case, so they don't have to prove beyond a reasonable doubt. They just have to prove to the civil standard. And the test from JASTA, from 18 USC 2333, is that they can be held liable if they aid in abets by knowingly providing substantial assistance or conspires with the person who committed such an act of international terrorism. It has to be more than negligence. They have to be actively involved in aiding and abetting and knowing that there's some kind of plot out there. And at this point, it just seems like I don't see how they haven't met that burden. I don't see how the motion to dismiss is possibly going to work. This is what was just litigated recently. It was a motion to dismiss in which the Saudis are denying agency. And that was heard on July 31st. It's in front of District Judge George Daniels down there in the mother court, as we like to call it. For those of us who heard the Lawd Awful Movies episode so good. What was the name of that show? I've already forgotten.

T: Oh, it wasn't the mother court. Like it seemed like the name of the show was that and then it got changed. I don't remember. It's Justice for It's a really generic name.

M: Something bland.

T: Metallica album. Love is blind. No, just I don't know.

M: It was a fun episode.

T: We the People. It might have been We the People, honestly.

M: I think it was. It was We the People.

T: It was so generic.

M: Yeah. And I'm going to think of the SDNY as the mother court forever. Thank you very much. So. It is stuck in my mind.

M: But George Daniels is managing all of this and he has taken under advisement this very long motionand I'm sure we're going to get some kind of decision over the next few months and we'll be able to talk about it again. I'd love to talk to Steve Vladeck about this actually because he follows this stuff like nobody else. National security is very much his game. There's so much complexity to this, but knowingly provide substantial assistance is not the highest standard. I think that's something that they should be able to prove here. I don't see how this doesn't get past a motion to dismiss and how this doesn't go on to real damages, but we will have to see.

T: Okay. How would you collect those damages?

M: That is a really good question.

T: I do remember that for this show when we covered the Fanni Willis hearings, the best character in the history of all fiction except somehow he's real came on. Governor Barnes, I want to say.

M: Barnes, yeah.

T: His past [[governor of Georgia, I think. Most interesting. He's so interesting. Lydia and I went back and watched that again like a month ago because we were like, remember that guy? It's the best. Anyway, he talked about when he sued some, might have been Saudia Arabia?, I don't know. He sued somebody, some other country for killing someone and did win money. So it must be possible, but I don't know how.

M: It can be done.

T: How would you get that money?

M: Well, the thing is that you're getting this money through this new bill, which again is untested and we don't know a lot about because it's really only for this kind of case. And it creates a new exception in the Foreign Sovereignty Immunity Act,

M: but there's a problem that Steve Vladeck pointed out and this is an extremely technical problem, but it could be a very serious issue and he's pointing it as one of the ways that it was actually watered down and has become more toothless than it should have been maybe. So this new exception that it created under JASTA for non-state sponsors of terror, for secondary liability, doesn't actually have a corresponding waiver of attachment immunity. And attachment immunity is how you actually do the job of collecting. So, you know, there's the separate question as to if you can actually bring the suit versus can you attach any kind of damages to this foreign state and actually get the money out of them. So that's something that may have to be looked at after all this anyway. But at the end of the day, you know, you read the interviews of families you hear them talking about this, and what they really want is the knowledge of this responsibility. They want an admission more than anything, of course. That's often what people want in litigation like this. They just want to know the truth and they want to know that we are able to hold, at least in some public way, that we're able to hold the Saudi government responsible for this.

M: And it is just, I don't know why in my mind, even as I'm saying that out loud, it does seem so strange to just say out loud the Saudi response, the Saudi government was responsible for 9-11. And again, in a broad sense, they absolutely were. And that's new information but it's not really new information. Most of this has been around since 2002, 2003. We know one way or another, we've known about some of these people.

T: Well, from the very beginning, weren't some number of the hijackers that's a very vast majority from Saudi Arabia?

M: 15 or 19. (!!!!)

T: Yeah. I remember that early on. It was like, what's going on there? That seems weird. But then I thought the explanation was that was some sort of intentional choice by bin Laden or something. But is that now bullshit or is that not, you have no idea?

M: No, I really don't know. It's, I mean, it's, Anything goes at this point. I am willing to believe after reading the complaint and especially the way the Saudis respond to this, I'm willing to believe quite a lot here. There's nothing I'm really not willing to believe about the Saudi complicity in this at this point because it just seems so widespread. It seems like they put so much money into it. And if nothing else, they really were pretty intent on funding al-Qaeda. They've denied this. They say that they're fighting al-Qaeda and whatever. But at the same time, they are our best allies against Iran. So this is very complicated to the United States and I think they would probably prefer that we didn't talk about this at all.

T: So, this is all very complex and there is so much going on. Can you dumb it down a little in terms of the extent? Now, granted, we're just talking about these two hijackers. So literally, who knows if there's way more connections to the others, right? But when it comes to these two hijackers, draw us that straight line again in summary just for our takeaway. It's that this known Saudi spy, this agent, was aiding and abetting in all the ways you said. What's the argument against that person being a rogue agent or whatever? I mean, it sounds like they didn't even try to argue that, but what's the, I guess, the evidence that you've seen that makes the case more against a broader group of Saudis rather than just some one or two people like the original 9-11 Commission said?

M: I mean, just starting with the fact that the FBI has confirmed that al-Bayoumi was a Saudi agent. So we already got somebody who's on the Saudi payroll who they were pretending to give a job but actually paying directly to do this kind of intelligence work. And it was a no-show job. He never did anything resembling the job that he was being paid for.

M: So we've got that to begin with. The FBI is aware of this. It's very hard for the Saudi government to deny, but they try to. And they are trying to say that all of these things are coincidental and there's just no way that you could possibly believe that they weren't. And these people, I mean, try to imagine the version of this where these two potential hijackers show up not speaking English or knowing anything about the United States with no help, right? I mean, I don't know if it's a big comedy. I can see a comedy version of that where they just don't have any ability to rent a place. They don't know how to order food.

T: They have to train. There's a lot they had to do.

M: Sure.

M: So once these issues are established and once, I'm assuming, just based on everything I've read so far, that this is going to go forward, what's going to get really interesting is when this opens up and the plaintiffs would then be allowed to examine the other hijackers to see locations including Florida and Phoenix and Virginia, New Jersey, you know, the people that were operating all over and start looking into more ties because I think there's a lot more that's going to come up when you start turning these rocks over and this could be a story that is potentially with us for, unfortunately, many more anniversaries of September 11th. But this really seems like a turning point from what I've seen. This seems like if this goes forward from this motion to dismiss that we're actually going to get somewhere, assuming that the government doesn't step in and put in a stay {{bkc|[[2024-09-20|Matt may be referencing the provision in JASTA to permit the US government to intervene if the United States Secretary of State involves themselves to prevent the JASTA-based claims from going forward. From earlier: “But it also allows the U.S. government to intervene to seek a stay if the Secretary of State can certify that the U.S. is in some sort of good faith discussion with the foreign government about trying to resolve it.” }} that we were talking about or there's not something else that trips up the litigation. But there's more that should still be declassified and probably more things we should know and more that's going to come out in discovery. But I am fundamentally shocked, honestly, by just the weight of the evidence against the Saudi government in all of this. And it's so hard to argue with when you see it all in one place and I hope that that gets the families some justice because… and also fundamentally changes our understanding of what this event was and why it happened. There's a lot we don't know. And even the why, as you said at this point, we don't really know if it's the Saudis doing it. I'm not sophisticated enough in geopolitics to be able to tell you what this all means. I'm just trying to look at it as a lawyer.

T: Sure. Yeah, me neither. Yeah, it is interesting, though. And they have put so much money and effort into laundering their reputation in the past 20 years or whatever, you know. Soccer teams, golf leagues, like there's so much stuff. It is depressing because I feel like while I do hope there's some level of success on this legal front, I don't know what that really means. You know, it might be nice to get some sort of piece of paper that says something or maybe some money for those families. But I don't, … I feel like a lot of this was probably known at some, at least it's maybe not at first, but like U.S. intelligence that we have to have known this. And there's so many times it seems like we just prioritize some other objective or something than justice on these things.

M: In typical fashion. It's just really, it's unfortunate.

M: There was one more little detail I meant to mention involving Jamal Khashoggi. And this is, again, kind of like in the MKUltra direction of things I don't really know what to do with. The last time, and because Khashoggi was very well connected, I think we all remember that he was, we know for sure, assassinated by the Saudi government when he went into the embassy there in Turkey. But the last known interaction between Khashoggi and the Saudi ambassador to the U.S. happened the day that he met with the investigator for this case. A former FBI agent who was interviewing people in connection with this lawsuit. And the investigator for this case has talked about this and said that he was kind of agitated, that he was very concerned about talking about these things, that he had a lot to say. And that was the last time that she met with him. He was killed about a year later, so it wasn't like it was the next day. But it certainly, if he wasn't already a target, it seems like that might have really moved him into that territory. But I don't want to make any direct connections. We don't know for sure any of these things. It just happens that Jamal Khashoggi was involved in this on top of everything else. And as is the case with a lot of these lawsuits, though, even if you can't ever an admimssion of liability, even if you can't ever get damages. And I badly hope the families get both of those things. I think they deserve it. The country deserves it at this point. We all need to know what actually happened. What this lawsuit is kind of doing is writing a second 9-11 commission report just in its filings. And we might get something approaching that from all of this discovery. And I think it would actually be a good time once this comes a little further along and maybe if it does open up to the rest of the investigation to call on Congress to revisit all of it and to do a second report. You know, we're joking about a reboot, but, you know, things come out and I don't think that the report as it is should be allowed to stand without this information and it just seems too vital.

T: Yeah. Well, what's the next thing we look for court deadline-wise?

M: Well, we should see what happens with this motion dismissed. As I said, I'm optimistic that it will not be dismissed. We don't have a date. We don't have anything official yet. So we're just going to have to wait to see and we'll keep talking about it. All right.

T: Well, fascinating, Matt. Thanks for doing that deep dive. And yeah. Wow. What the hell.

M: Yeah. I'm still getting my head around it weeks later. I'm still trying to understand everything I have just read and putting it into context for what I thought I knew for the last 23 years.

T: All right, Matt. Well, thanks as always for the deep dive and thanks to our listeners as always. And please support the show patreon.com/law We promise none of those funds will support terrorism. Yeah. I'm pretty sure. I'm pretty sure none of those funds will support terrorism. I think I could commit 100% to that.

M: Good to know.

T: Yeah. Okay. We'll see everybody on Wednesday.

M: All right.

OUTRO: This podcast is a production of Opening Arguments Media LLC, All Rights Reserved. It is produced and edited by Thomas Smith who also provided the fabulous intro and outro music used with permission.

[ BLOOPERS ]

M: Well, the real question is how this action was... Oh, I'm sorry. Let me not reframe that. Let me answer your question.

M: Most especially for the purposes of this lawsuit, what we have learned is... Let me make sure I've got these in front of me.

T: Suspense. Geez.

M: Yeah.

T: Is this the end of a reality TV show episode?

M: Sorry! M: I want to make sure I got...

T: And the thing we have learned... is...

See also

• Opening Arguments
• List of Opening Arguments episodes

External links

• bk4, reboil.com