by James Risen
America has spent the long years since the September 11, 2001, attacks exhausting its soldiers and its treasury fighting wars in Iraq, Afghanistan, and a global war on terror. But here in courtroom 21D, time seems frozen. A lawsuit brought in the heated aftermath of 9/11 (now consolidated into a larger legal action), pointing the finger of blame at the financial elite of Saudi Arabia, accusing them of financing al Qaeda and the terrorist strikes against New York and Washington, and seeking a trillion dollars in damages, still shambles through the American legal system. Progress, any movement at all, is barely perceptible.
Many of the original targets of the lawsuit were dismissed from the case years ago. Even Al Baraka Investment and Development Corporation, a Saudi-based financial services firm that gave its name to the main 9/11 lawsuit, Burnett et al. v. Al Baraka et al. (now consolidated, along with several other 9/11 lawsuits, into In re Terrorist Attacks on September 11, 2001) was dismissed from the case in 2005.
But the case grinds on, just a few blocks from the World Trade Center site, and a trial in the case, if it ever happens, is still years away. It may never go before a jury. On this day, the two sides were conducting painfully drawn-out arguments over procedural issues, including discovery, the process to determine whether the lawyers for the plaintiffs (in the Burnett case, there are 4,733 plaintiffs, representing 2,762 victims) can obtain the documents and other information from the defendants that they say they need to pursue their case.
George Daniels has displayed time and again why he has earned a reputation as one of the slowest federal judges in the nation. In 2010, lawyers representing the 9/11 victims took the unusual step of asking an appeals court to remove Judge Daniels from the case because he was moving too slowly. He wasn’t taken off the case, and nothing changed.
And so almost everyone, undoubtedly including many of the lawyers who have trudged to lower Manhattan in the summer doldrums to attend Daniels’s courtroom, have largely given up hope that the lawsuit will ever achieve its original objective—to gain justice for the victims of 9/11.
For a court case like In re Terrorist Attacks on September 11, 2001, which has occupied the federal docket for so long, there is remarkably little legal activity once the hearing actually gets under way. Daniels’s great achievement for this day in July 2011, just two months short of the tenth anniversary of 9/11, is to issue an order on something called a Rule 54(b) motion, formalizing a long-since-accepted fact that one particular defendant is being dismissed; this ruling briefly excites the assembled lawyers, apparently in the hopes that they can now chew on the issue all over again in some different way.
The judge is about to gavel the hearing to a close when a hulking, broad-smiling New York lawyer stands up. It is Jim Kreindler, one of the lawyers for the 9/11 victims in In re Terrorist Attacks. “Your honor, I thought I might tell you where the case stands,” Kreindler explains. “We’ve been working on this case for ten years, without getting paid, and that’s been difficult. Ten years has been a long time. But I wanted to tell you that an end is in sight.” Kreindler’s bold statement is met with silence, save a ruffling of papers at the lawyers’ tables.
“As you know, South Sudan has declared its independence, and I think it is now likely that the United States will remove Sudan from the list of state sponsors of terrorism,” Kreindler says. “And I think both the United States and Sudan will then want to reach a settlement of all outstanding civil litigation. If Sudan settles and pays a significant amount, that will be a huge event in this case.”
As Kreindler speaks, the frustration in his voice is clear. He is a man desperately looking for a way to cut the Gordian knot that now ensnares In re Terrorist Attacks. The possibility that an independence movement in Sudan could provide a way out of the 9/11 legal thicket entices him. Like a thirsty man who sees an oasis just up ahead, he is calling out to his comrades to join him and drink.
The other lawyers ignore Kreindler. They act as if they have heard it all before, the dreams of a final resolution of a case that has now consumed a good portion of their legal careers. They look the other way, like members of an extended family who have just witnessed a crazy uncle give his annual rant over a holiday dinner.
Only one lawyer bothers to stir, ever so briefly, to express his disappointment that he had not been informed of this “diplomatic issue” before Kreindler chose to share it with the whole court.
Kreindler takes his seat.
Judge Daniels responds as if Kreindler has not said a word. “Okay, let’s continue to make progress and I’ll see you all on January 13th.”
The judge has just declared that the next hearing won’t take place for another six months.
As the hearing ends, and the lawyers pack their papers, one lonely 9/11 widow sits quietly in the back benches of the courtroom, taking notes.
The fate of Burnett v. Al Baraka has become a depressing tale within the legal profession, but it is one with a bizarre backstory. It is a case study in how unintended consequences and the search for money and power have become the hallmarks of the war on terror.
The story begins with a legal campaign against the financiers of 9/11 launched by a brilliant Southern lawyer. It ends with controversy, finger-pointing, and unanswered questions amid evidence of strange and secretive intelligence ties between investigators hired to support the legal campaign and the Pentagon, the FBI, and the Drug Enforcement Administration.
The story shows how, during the war on terror, greed and ambition have been married to unlimited rivers of cash and the sudden deregulation of American national security to create a climate in which clever men could seemingly create rogue intelligence operations with little or no adult supervision. It is also a story of the potential abuse of power: how federal agencies, including the Defense Department and the FBI, may have perverted the American legal system. American officials who prosecuted the global war on terror in the name of the victims of 9/11 may have enabled and cooperated in the hijacking of their efforts to seek justice.
Crazy became the new normal in the war on terror, and the original objectives of the war got lost in the process. One of the unintended consequences has been to deny the families of the victims of the 9/11 attacks their day in court. Their lawsuit has been idling in court for years. In fact, more than a decade later, one of the few things the families of the 9/11 victims have to show for their trillion-dollar lawsuit is an Afghan drug dealer sitting in an American prison. He was lured to the United States through an intelligence operation conducted for the U.S. government by the people who were also acting as investigators supporting the 9/11 case.
Above all, this is a story about a mystery, one that reflects the confusion that has become all too common in the American national security apparatus. Since 2001, the United States has poured billions of dollars down one rabbit hole after another, searching for the magic bullet to battle terrorism. The years since the 9/11 attacks have been a time when it is often difficult to determine what is real—and what is concoction.
On the morning of September 11, 2001, Deena Burnett was up early with her three daughters when her husband, Tom, an executive with a medical device company who was returning home to California from a business trip to New York, called from his seat on United Airlines flight 93. In a few rushed words, he told her that his plane had been hijacked and asked her to call the authorities. During a series of frantic conversations, Deena told Tom about hijacked planes crashing into the World Trade Center and Pentagon, and he told her that he was planning to fight back against the hijackers with a group of other passengers. On their fourth call of the morning, Tom Burnett told his wife: “We’re going to do something.” He never called back.
In the aftermath of the 9/11 attacks, most Americans were not searching for justice. They were in the mood for retribution and revenge. The Bush administration quickly threw out any notion of using the American legal system to arrest and prosecute those responsible for the attacks, despite the fact that the criminal case involving the
biggest al Qaeda attack prior to 9/11, the 1998 suicide bombings of two U.S. embassies in East Africa, had been successfully prosecuted in federal court in New York a few months before September 11, with convictions and life sentences for four al Qaeda operatives.
The U.S. legal system had put together a remarkably successful track record on terrorism—especially on cases involving al Qaeda. By the time of the 9/11 attacks, the FBI’s New York office and the U.S. Attorney’s Office for the Southern District of New York had become the government’s leading experts on targeting al Qaeda. They already had an indictment of Osama bin Laden waiting to be used if he were captured and brought to the United States for trial.
But for the Bush administration, using the courts was never an option. It smacked of the 1990s, of the Clinton administration, and of a new phrase—“pre-9/11” thinking. Bush brushed aside the FBI and Justice Department, and turned instead to the Pentagon and Central Intelligence Agency to launch a global war, both overt and covert, on terrorism. Bush reached for a national security answer to terrorism rather than a law enforcement solution. That would turn out to be the crucial decision that would alter the history of the next decade.
Deena Burnett was one of the first Americans to be shocked into the war on terror. But once she recovered from the immediate trauma of losing her husband, she had the courage to find her voice and become a leading spokeswoman for the group that would become known as the 9/11 families. Despite Bush’s declaration of war, many of these families were eager to seek accountability through a more conventional path. In particular, Tom Burnett’s father was driven by a determination to sue anyone responsible for funding or supporting the terrorists who had murdered his son. And so, in November 2001, Deena Burnett called Ronald Motley, a South Carolina lawyer famed for securing the largest class-action settlement in U.S. history with a victory over the tobacco industry.
At the time, Ron Motley was like a shark out of water. In the late 1990s, no lawyer in America had been more celebrated, more triumphant. He had won the largest legal victory ever in the United States, bringing Big Tobacco to its knees through a $246 billion settlement with a group of states’ attorneys general. But in the years since that historic victory, he had been restless, and by September 11, 2001, he was searching for his next big case.
Motley took Deena Burnett’s call and agreed to fight a legal battle against terrorism, much to the chagrin of Joseph Rice, the partner who kept an eye on the bottom line at their firm, Motley Rice. Rice knew how difficult it would be to ever repeat their tobacco success.
But Ron Motley would not be swayed. He was going to take on Saudi Arabia, the richest oil kingdom on earth, a country with more political influence in Washington than almost any other foreign power. It was also the native country of fifteen of the nineteen hijackers on 9/11, and there was a widespread belief in the United States that wealthy Saudis had been financing terrorism for years. The Saudis, Motley was convinced, were behind 9/11, and he was going to hold them accountable.
On August 15, 2002, at a Washington press conference, standing with Deena Burnett and other 9/11 family members by his side, Motley announced that he had filed a trillion-dollar lawsuit—Burnett et al. v. Al Baraka Investment and Development Corporation et al.—accusing Saudi banks, charities, and even members of the Saudi royal family of financing Osama bin Laden’s reign of terror.
Now all Ron Motley had to do was prove it.
Motley realized that in order to jump-start his massive legal assault on the Saudi elite, he would need evidence to prove that the defendants had actually financed terrorism. He would have to back up his claims that there were significant ties between the Saudi financial elite and al Qaeda.
To help him in the hunt, Motley decided he needed to hire his own investigators. He wanted to create his own intelligence service, built from the ground up, to unlock the secrets of 9/11. He was determined to bring together the greatest collection of antiterrorism experts outside of the CIA, experts who were willing to take on the oil-rich Saudis in a way that the Bush administration was not. But Ron Motley could never have guessed what he would end up with instead.
As he started to assemble his investigative team, Motley first turned to a French writer and analyst who claimed to have ties to French intelligence.
The 9/11 attacks brought a sudden burst of notoriety for Jean-Charles Brisard. Just two months after the attacks, he published one of the first books to deal with 9/11, one that made sensational accusations against the Saudis. In Forbidden Truth, published in France in November 2001, Brisard named banks, charities, and individuals in Saudi Arabia that he claimed were responsible for funding al Qaeda. He took particular aim at one of the richest men in Saudi Arabia—Khalid bin Mahfouz.
Brisard devoted an entire chapter of his book to bin Mahfouz, whom he dubbed “the Banker of Terror.” “The bin Mahfouz financial and charity network is one of the most active in facilitating Osama bin Laden’s activities,” Brisard wrote. In a separate paper he published in 2002, which he said was submitted to the president of the United Nations Security Council, Brisard named bin Mahfouz as one of seven prominent Saudis who were the “main individual sponsors of terrorism.”
For Ron Motley, who knew virtually nothing about Saudi Arabia, Forbidden Truth provided a road map to follow as he put together his case in 2002. Motley took the Saudi organizations and individuals identified in Brisard’s book—including Khalid bin Mahfouz—and named them as defendants in the Burnett case. Forbidden Truth became Ron Motley’s bible.
Brisard said that he first met with the Motley Rice lawyers in June 2002, before the 9/11 lawsuit was filed, during a trip to Washington to testify before Congress. Jodi Flowers, a Motley Rice lawyer and one of Motley’s key lieutenants, contacted Brisard and arranged for him to meet with Motley and a group of lawyers at a Washington hotel where they talked about terrorism financing for three hours. At the end of the session, Motley asked Brisard to work for him. As Motley Rice was preparing its lawsuit, Brisard helped the lawyers to identify potential defendants, he recalls.
“They were basing the names of the defendants on my writings,” said Brisard. “I was participating in the selection process of defendants.” Soon, Brisard set up a five-member team in Paris to launch a global hunt for documents that could establish financial links between wealthy Saudi institutions and al Qaeda. He began reaching out to his contacts in governments throughout Europe, seeking access to their files on al Qaeda. Brisard’s biggest coup was acquiring what became known as “the golden chain,” a document that was to become a key part of Motley’s case as well as one of the most widely disputed pieces of evidence of Saudi complicity in terrorism financing.
In 2002, Bosnian police, working with the CIA, raided the Sarajevo offices of Benevolence International Foundation, an Islamic charitable organization. There, on a computer they found a document that purported to identify early financial backers of Osama bin Laden and al Qaeda. The Justice Department used the document as evidence in a criminal case against Benevolence International in Chicago, and a key al Qaeda defector and informant, Jamal al-Fadl, testified that it was authentic and dubbed it “the golden chain.”
Brisard traveled to Bosnia in 2003 to try to get the golden chain and other Benevolence files from the Bosnian government. He was armed with formal legal requests from U.S. District Judge James Robertson, the federal judge in Washington who was then presiding over Motley’s lawsuit against the Saudis. The Bosnians were willing, but the Justice Department wanted the documents to be used exclusively for its criminal case in Chicago. The Justice Department finally agreed only after the president of the Bosnian Supreme Court issued an order asking the Americans to share the documents with the Motley Rice team.
The biggest problem, however, was that it was virtually impossible to prove whether the golden-chain document was genuine. No one could say who wrote it, exactly when it was written, or what the list of names really meant. It was supposedly a list of donors to bin Laden’s efforts to
support Arab fighters in Afghanistan in the late 1980s. Yet at that time, support for anti-Soviet mujahideen in Afghanistan was official American and Saudi policy. So, it was difficult to show whether the golden-chain document was really a smoking gun identifying al Qaeda’s founding financial backers.
Meanwhile, Brisard’s work came under scrutiny in Saudi Arabia. Khalid bin Mahfouz was not amused by Forbidden Truth or by the fact that Brisard’s book was now providing the blueprint for a massive American lawsuit blaming him for financing 9/11. Bin Mahfouz was an angry billionaire with plenty of lawyers, and by 2003, he had decided to sue Brisard for libel. Other defendants in the Burnett case followed his lead and also filed libel cases against Brisard. Soon the French investigator was fending off lawsuits in Belgium, Switzerland, France, and Britain.
To Brisard and Motley, the libel suits against Brisard’s book appeared to be a Saudi counterattack on the 9/11 lawsuit. “No one sued me until I started working for Motley Rice,” said Brisard. “It was obvious they were targeting me as the lead investigator for Motley Rice.”
Ultimately, Brisard was able to fend off the libel suits in every country—except Britain. There he didn’t put up a fight, other than to argue that he had not authorized the publication of his book in England. The libel laws in Britain at the time were notoriously difficult for authors, so he defaulted. As part of a settlement with bin Mahfouz, Brisard issued an extensive apology and recanted many of the assertions he had made in his book and in the report that he said he had submitted to the president of the UN Security Council.