Chapter 3 - HOMELAND SECURITY
Article 3-10
HOMELAND SECURITY – U.S. SUPREME COURT CONFIRMS ATTORNEY GENERAL, AND OTHER FEDERAL, STATE & LOCAL OFFICIALS ENJOY QUALIFIED IMMUNITY - FBI LAWFULLY ARRESTED PLAINTIFF BOARDING PLANE TO SAUDIA ARABIA ON A MATERIAL-WITNESS ARREST WARRANT
On May 31, 2011, in ASHCROFT v. AL-KIDD, the Court (8 to 0; Justice Kagan did not participate; she had been Solicitor General when this case was pending) held that the lawsuit against the Attorney General for damages should be dismissed.
http://www.supremecourt.gov/opinions/10pdf/10-98.pdf
The plaintiff claimed that in response to 911 attacks, the Attorney General had developed an illegal detention policy for those of Arab decent. The U.S. Supreme Court was not persuaded.
“It is alleged that this pretextual detention policy led to the material-witness arrest of al- Kidd, a native-born United States citizen. FBI agents apprehended him in March 2003 as he checked in for a flight to Saudi Arabia. Two days earlier, federal officials had informed a Magistrate Judge that, if al-Kidd boarded his flight, they believed information ‘crucial’ to the prosecution of Sami Omar al-Hussayen would be lost. App. 64. Al-Kidd remained in federal custody for 16 days and on supervised release until al-Hussayen’s trial concluded 14 months later. Prosecutors never called him as a witness.”
Court was critical of the 9th Circuit Court of Appeals (San Francisco) for not promptly dismissing this lawsuit.
“The Court of Appeals seems to have cherry-picked the aspects of our opinions that gave colorable support to the proposition that the unconstitutionality of the action here was clearly established.” ***
“We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Because Ashcroft did not violate clearly established law, we need not address the more difficult question whether he enjoys absolute immunity.”
Great precedence:
Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982).” ***
“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.'"
Legal Lessons Learned: The decision will be very helpful is getting lawsuits against federal, state and local government officials (including FD officials) promptly dismissed.
Article 3-9
HOMELAND SECURITY – SEIZURE OF E-MAILS - U.S. DEPARTMENT OF JUSTICE CAN SERVE A SEARCH WARRANT ON GOOGLE OR OTHER INTERNET SERVICE PROVIDER TO GET COPIES OF E-MAILS - DO NOT NEED TO NOTIFY AUTHOR OF THE E-MAIL
On Nov. 1, 2010, in Application For Warrant For E-Mail Account [actual e-mail deleted]@gmail.com, Maintained On Computer Services Operated By Google, Inc, Headquartered At 1600 Amphitheatre Parkway, Mountain View, CA; Mag. No. 10-291-M-01, U.S. District Court for District of Columbia, Federal Judge Royce C. Lamberth ruled in favor of the U.S. Department of Justice, overturning ruling by a federal Magistrate.
Judge Lamberth held:
“the government is not required to give notice to the subscriber or customer of an e-mail account whose account is the subject of a warrant issued under the Electronic Communications Privacy Act, Sec. 2701-2710.”
This is an important decision in the Nation’s war on terrorism. In 2001, after the attacks of 9/11, Congress enacted the USA PATRIOT Act. The statute amended the Electronic Communications Privacy Act to permit the U.S. Department of Justice to obtain search warrants compelling internet providers to disclose e-mails “issued using the procedures described in the Federal Rules of Criminal Procedure.”
Rule 41of the Federal Rules requires law enforcement officers, when personally executing a search warrant, to leave a copy with the person being searched. However, under Rule 41(f), a law enforcement officer “shall not be required for service or execution” of a search warrant under the Electronic Communication Privacy Act. Judge Lamberth concluded that Rule 41(f)(1)(C) does not require the government to inform the author of an e-mail after the execution of the search warrant. The government complies with the law by:
“leaving a copy of the warrant with a third-party ISP [Internet Service Provider].”
Legal Lessons Learned: The war on terror requires unique tools to intercept terrorist plans.
Article 3-8
U.S. SUPREME COURT: ANTI-TERRORIST STATUTE UPHELD
On June 21, 2010, in Eric H. Holder, Attorney General v. Humanitarian Law Project, 561 U.S. ____ (2010), the Court (6 to 3) in an opinion by Chief Justice Roberts, held that the Antiterrorism And Effective Death Penalty Act of 1996, 18 U.S.C. 2339(B)(a)(1), does not violate the First Amendment rights of free speech and association, and is not too vague in violation of the Fifth Amendment. http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf.
The statute provides:
“UNLAWFUL CONDUCT – Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and if the death of any person results, shall be imprisoned for any term of years or for life.”
PKK, and LTTE – Foreign Terrorist Organizations
The Secretary of State has designed several groups as foreign terrorist organizations, including in 1997 the Patriya Karkeran Kurdistant (“PKK”), which was founded in 1974 and has sought to establish in southeastern Turkey an independent Kurdish state. Another designated group is the Liberation Tigers of Tamil Eelam (LTTE), which aim to establish independent state for the Tamils in Sri Lanka.
Chief Justice Roberts wrote that both groups are “deadly groups” that have harmed Americans.
“We are convinced that Congress was justified in rejecting that view. The PKK and the LTTE are deadly groups. “The PKK’s insurgency has claimed more than 22,000 lives.” Declaration of Kenneth R. McKune, App. 128, ¶5.The LTTE has engaged in extensive suicide bombings and political assassinations, including killings of the Sri Lankan President, Security Minister, and Deputy Defense Minister. Id., at 130–132; Brief for Government 6–7.
‘On January 31, 1996, the LTTE exploded a truck bomb filled with an estimated 1,000 pounds of explosives at the Central Bank in Colombo, killing 100 people and injuring more than 1,400. This bombing was the most deadly terrorist incident in the world in 1996.’ McKune Affidavit, App. 131, ¶6.h. ”
The Humanitarian Law Project, a human rights advocacy organization, filed a lawsuit in federal court in California 12 years-ago seeking to use lawyers and others to train the PKK on “how to use humanitarian and international law to peacefully resolve disputes.” Included in that training would be to “teach PKK members how to petition various representative bodies such as the United Nations for relief.”
U.S. Supreme Court majority held:
“We simply hold that, in prohibiting the particular forms of support that plaintiffs seek to provide to foreign terrorist groups, Sec. 2339B does not violate the freedom of speech.”
Legal Lessons Learned: Antiterrorist statute upheld by 6 to 3 vote. Our Nation needs these terrorist statutes and Justices that will uphold them.
FED - HOMELAND SECURITY – 9th CIRCUIT HOLDS THAT TERRORIST WHO TRIED TO BOMB LOS ANGELES AIRPORT SHOULD BE RESENTENCED TO FAR MORE THAN 22 YEARS IN PRISON
On Feb. 9, 2010, in United States of America v. Ahmed Ressam, the U.S. Attorney in Seattle won an important terrorist sentencing decision. http://www.ca9.uscourts.gov/datastore/opinions/2010/02/02/09-30000.pdf.
Ressam, an Algerian native who traveled to Canada in Feb. 1999 with $12,000 in cash and bomb making materials, was convicted by a jury in 2001 on nine counts of criminal activity in a plot to detonate explosives on New Year’s Day, 2000 (the new Millennium) at LAX Airport. The advisory Sentencing Guidelines call for a sentence from 65 years to life in prison.
Facing this sentence, Ressam decided to enter into a cooperation agreement with the U.S. Government, where a lesser sentence (BUT NOT LESS THAN 27 YEARS) would be recommended to the Federal judge in return for his providing information to the FBI and foreign countries concerning al-Qaeda. He cooperated and even testified against one of his co-conspirators, Mokhtar Haouri. After two years of cooperation, Ressam stopped providing information and even sought to recant his prior testimony.
The Federal judge in Seattle then sentenced him to 22 years in prison. The 9th Circuit reversed, an ordered a new sentence be imposed. The judge again imposed a 22 year sentence, and the U.S. Attorney again appealed. The 9th Circuit (3 judge panel) now vacates that sentence, and orders Ressam be sentenced by another Federal judge in Seattle.
The 9th Circuit described the bomb plot:
“On November 17, 1999, Ressam and his co-conspirator, Abdel Dahoumane, traveled from Montreal to Vancouver, B.C., where they prepared explosives for the LAX bomb in a rented cottage. On December 14, 1999, Ressam and Dahoumane traveled from Vancouver to Victoria, B.C., with all of the components of the bomb, including explosives, hidden in the wheel well of the trunk of a rental car. Continuing alone, Ressam drove the car carrying the explosives onto an American car ferry, M/V COHO, at Tswassen, B.C. Before boarding the ferry, a U.S. Immigration and Naturalization Service inspector checked Ressam’s documentation and destination. Ressam provided the inspector with a fraudulent Canadian passport in the name of Benni Noris and stated that he was heading to Seattle. Because the ferry was not the typical route from Vancouver to Seattle, the inspector decided to search the car. The inspector failed to check the hidden wheel well in the trunk, however, and Ressam was allowed to board the ferry.
The M/V COHO arrived in Port Angeles, Washington later that evening. Upon leaving the ferry, Ressam was questioned by U.S. Customs Inspector Diane Dean. Inspector Dean detected nervousness and directed Ressam to a secondary inspection area. Ressam filled out a custom’s declaration form falsely, stating his name was Benni Norris and that he was a Canadian citizen. One customs inspector conducted a pat-down search on Ressam as others were searching the car. When an inspector discovered what appeared to be contraband in the wheel well of the trunk, Ressam fled on foot. Customs inspectors gave chase. In the course of the chase, Ressam attempted to carjack a vehicle. He was apprehended by the customs inspectors and returned to the inspection area in a police car.
The inspectors resumed searching the trunk of Ressam’s car. Believing the contraband to be narcotics, the inspectors did not handle the items as carefully as one would handle explosives. As the inspectors reached into the wheel well to remove the items, Ressam ducked down behind the protection of the police car door. [Footnote 1 - An explosives expert later determined that the materials found in the car were capable of producing a blast forty times greater than that of a devastating car bomb.]
The following items were found in Ressam’s car: two lozenge bottles filled with primary explosives, one of which contained hexamethylene triperoxide diamine (HMTD) and the other of which contained cyclotrimethylene trinitramine (RDX); 10 plastic bags of approximately 118 pounds total of urea in fine white powder form, which is a fertilizer that, when nitrated, can be used as a fuel in explosives; 2 plastic bags of about 14 pounds total of a crystalline powder determined to be aluminum sulfate; two 22-ounce olive jars each filled approximately 3/4 full of a golden brown liquid covered with a sawdust like substance, which liquified was determined to be an explosive, etheylene glycol dinitrate (EGDN).
Also discovered with these chemicals were four timing devices, comprised of small black boxes which each contained a circuit board connected to a Casio watch and nine volt battery connector. Tests later confirmed that the timing devices were operational. Ressam’s fingerprints and hair were found in some of the timing devices.”
Ressam was a valuable informant. After the 9/11 attacks in NYC and Pentagon, Ressam identified Zacarias Moussaoui from a photograph as an individual he had met at the Khalden training camp. Ressam also provided information that assisted law enforcement in determining that the shoe confiscated from Richard Reid, the so-called “Shoe Bomber,” was a complete device that needed to be disarmed before being put on a plane for transport to a lab for analysis.
Unfortunately, he decided to stop cooperating in Nov. 2004 and he recanted his sworn testimony. This forced the Government to drop charges against other alleged terrorists:
“At the December 3, 2008 sentencing hearing, the Government explained that Ressam’s recantation of his prior statements regarding his terrorist training and the activities of other terrorists, and his decision to cease cooperating, forced the Government to dismiss criminal charges against Doha and Mohamed. The prosecution explained that as a high- ranking al Qaeda member with close ties to Osama Bin Laden, Abu Doha is, without question, one of the most dangerous terrorists ever charged by the United States. After the dismissal of the charges against Doha in the United States, he was released from custody and is currently living in England.”
The 9th Circuit ordered Ressam to be re-sentenced by another judge:
“Because the district court procedurally erred by failing to address specific arguments raised by the Government, or otherwise justify the extent of its departure from the advisory Guidelines, we must vacate the 22-year sentence imposed by the district court.
SENTENCE VACATED, REMANDED FOR REASSIGNMENT AND RESENTENCING.”
Legal Lessons Learned: This case illustrates the need for all, including those in fire service, to be ever diligent about terrorists in our midst. Thankfully, U.S. Customs Inspector Diane Dean observed the nervousness of this terrorist, and thankfully the 3-judge panel on the 9th Circuit has ordered the terrorist to be resentenced.
Article 3-6
FED: 9/11 ATTACK - WHITE HOUSE WAS TO BE STRUCK BY 747 AIRCRAFT - CONSIPIRATOR ZACARIAS MOUSSAOUI WAS TRAINING AT FLIGHT SCHOOL IN MINNESOTA – COURT OF APPEALS REFUSES TO SET ASIDE HIS PLEA OF GUILTY AND JURY’S LIFE SENTENCE
On Jan. 4, 2010 in Zacarias Moussaoui v. United States, the U.S. Court of Appeals for the 4th Circuit in Richmond, VA, http://pacer.ca4.uscourts.gov/opinion.pdf/064494.P.pdf, upheld (3 to 0) the plea of guilty and jury’s life sentence. At his plea hearing, he signed a Statement of Facts prepared by federal prosecutors which chillingly described the plan to attack the White House, and also the U.S. Capitol, in addition to the planes that flew into the World Trade Centers in New York, and the Pentagon.
The Court described the facts as follows:
“Zacarias Moussaoui pled guilty to six criminal conspiracy counts arising from the al Qaeda terrorist organization’s plot to use commercial aircraft to commit terrorist attacks in this country, including the attacks that occurred on September 11, 2001. In a subsequent sentencing proceeding, the jury declined to impose the death penalty and the district court sentenced Moussaoui to life imprisonment without the possibility of release on all six counts, with the sentence on the first count to be served consecutively to the sentences on the other counts. In this appeal, Moussaoui challenges the validity of his guilty plea and his sentences. He has also filed a motion to remand, based upon the Government’s disclosure of classified information during the pendency of this appeal. We affirm Moussaoui’s convictions and sentences in their entirety and deny his motion to remand.
I. Facts
On August 16, 2001, Moussaoui, a French citizen, was taken into custody for overstaying his visa after he raised the suspicions of his instructor at the Pan American International Flight Academy in Eagan, Minnesota, where he was receiving pilot training on a jet simulator. Less than a month later, September 11, 2001, nineteen members of al Qaeda hijacked three commercial airlines and crashed them into the World Trade Center towers in New York City and the Pentagon in Virginia. A fourth airplane, apparently destined for the Capitol Building in Washington, D.C., crashed in a field in Pennsylvania after its passengers attempted to retake control of the airplane from the al Qaeda hijackers. Collectively, the 9/11 attacks resulted in the deaths of nearly 3,000 people. Moussaoui was still in custody, awaiting deportation, when the attacks occurred.”
In April 2005, Moussaoui pled guilty as a tactic to avoid the death sentence. His tactic worked. He signed the following chilling statement of facts:
2. The Statement of Facts
In connection with his guilty plea, a written statement of facts (the "Statement of Facts") was prepared, detailing the facts pertaining to al Qaeda’s plans for terrorist attacks in the United States, Moussaoui’s association with al Qaeda, and the steps Moussaoui took to prepare for the operation and to protect it after he was detained. When he signed the document, Moussaoui added the designation "20th Hijacker" to his signature.J.A. 1413.
A summary of the Statement of Facts, as adopted and executed by Moussaoui, follows.
Al Qaeda is "an international terrorist group" founded by Usama Bin Laden (hereinafter "Bin Laden"), that is "dedicated to opposing the United States with force and violence." J.A. 1409. The head of its military committee was Mohammed Atef, a/k/a Abu Hafs al- Masri (hereinafter "al-Masri"). Al Qaeda members pledge "bayat" to Bin Laden and al Qaeda, J.A. 1409, meaning that they "give allegiance to Bin Laden and the group." J.A. 1671. Since 1996, al Qaeda has been headquartered in Afghanistan, but it associates with terrorists in other parts of the world to further its goals. In the mid-1990s, Bin Laden issued a fatwah (or religious ruling) declaring jihad (or war) against the United States and its allies, sanctioning the killing of United States military and civilians alike. In furtherance of these aims, "Bin Laden and al Qaeda provided and supported training amps and guesthouses in Afghanistan, including camps known as al Farooq and Khalden." J.A. 1409. The training "camps were used to instruct members and associates of al Qaeda and its affiliated groups in the use of firearms, explosives, chemical weapons, and other weapons of mass destruction." J.A. 1409/
In connection with al Qaeda’s declaration of war, "al Qaeda members conceived of an operation in which civilian commercial airliners would be hijacked and flown into prominent buildings, including government buildings, in the United States." J.A. 1410. In preparation for the attacks, "al Qaeda associates entered the United States, received funding from abroad, engaged in physical fitness training, and obtained knives and other weapons with which to take over airliners." J.A. 1410.
Some of these "associates obtained pilot training, including training on commercial jet simulators, so they would be able to fly hijacked aircraft into their targets." J.A. 1410. "Bin Laden personally approved those selected to participate in the operation, who were willing to die in furtherance of their religious beliefs and al Qaeda’s agenda." J.A. 1410. Moussaoui was a member of al Qaeda and pledged bayat to Bin Laden. He trained at al Qaeda’s Khalden Camp and managed an al Qaeda guesthouse in Kandahar, "a position of high respect within al Qaeda." J.A. 1410. Moussaoui communicated directly with Bin Laden and al Masri while in Afghanistan. He "knew of al Qaeda’s plan to fly airplanes into prominent buildings in the United States" and "agreed to travel to the United States o participate in the plan." J.A. 1410.
As he did with the other hijackers, Bin Laden personally selected Moussaoui to participate in the planes operation and approved Moussaoui to attack the White House, which had been Moussaoui’s dream.
In preparation for the operation, the al Qaeda leadership first sent Moussaoui to Malaysia to explore flight training. They also provided him with information about flight schools in the United States. In September 2000, Moussaoui contacted Airman Flight School in Norman, Oklahoma. Moussaoui’s intent was to obtain pilot training to further "al Qaeda’s plan to use planes to kill Americans." J.A. 1411. "On February 23,2001, Moussaoui traveled from London to Chicago and then on to Norman, Oklahoma," where he enrolled at Airman Flight School and began pilot training on small planes. J.A. 1411.
Like his co-conspirators, he joined a gym and purchased knives, intentionally selecting knives with blades short enough to pass through airport security. In the summer of 2001, Moussaoui was instructed by an al Qaeda associate to train on larger jet planes. Ramzi Bin al- Shibh, another al Qaeda operative, sent Moussaoui a wire transfer of money from Germany to the United States to pay for the flight training. Shortly thereafter Moussaoui enrolled at the Pan American International Flight Academy in Eagan,Minnesota, and began simulator training for a Boeing 747-400. Moussaoui told another al Qaeda associate that his simulator training would be completed before September 2001.
At the time of his arrest, Moussaoui was in possession of knives, flight manuals for the Boeing 747-400, a flight simulator computer program, fighting gloves and shin guards, a piece of paper referring to a handheld Global Positioning System ("GPS"), software that could be used to review pilot procedures for the Boeing 747-400, and a hand-held aviation radio. When questioned after his arrest, Moussaoui "lied to federal agents to allow his al Qaeda ‘brothers’ to go forward with the operation." J.A. 1412. He "falsely denied being a member of a terrorist organization and falsely denied that he was taking pilot training to kill Americans." J.A. 1412. He told the "agents that he was training as a pilot purely for his personal enjoyment and that, after completion of his training, he intended to visit New York City and Washington, D.C., as a tourist." J.A. 1412.
The attacks of 9/11 happened less than a month after Moussaoui’s arrest. At the ex parte guilty plea proceeding, Moussaoui advised the court that he had read the Statement of Facts "more than probably ten time[s]." 2 Supp. J.A. 45. Moussaoui made a single correction to the Statement of Facts, changing the date that he told his al Qaeda associate that he would finish jet simulator training from "by August 20, 2001" to "before September 2001." 2 Supp. J.A. 45-46. At the public Rule 11 hearing, Moussaoui confirmed that he had received a revised copy of the Statement of Facts, which had been corrected in accordance with his request at the ex parte hearing.
The U.S. Department of Justice asked for the death sentence, but Moussaoui took the stand and convinced the jury to not sentence him to death.
“Moussaoui told the jury that he wanted to advance two arguments in his defense: first, that ‘jail [was] a greater punishment than . . . being sentenced to death, and [that] martyrdom, execution, [would] be a reward" and, second, that the jury ‘could save [an] American life by keeping [him] alive because they could use [him] as a bargaining chip, so if one day some American serviceman [is] taken hostage in Iraq or Afghanistan, they could . . . exchange Moussaoui [for] the American soldier." J.A. 4433. Moussaoui testified that the ‘jury might spare the death penalty to their enemy, but . . . not to a coward liar,’ J.A. 4480, and that ‘by testifying truthfully, I will save my life,’ J.A. 4482.”
The Court of Appeals concluded that his guilty plea and conviction is final:
“In the meantime, the finality of the guilty plea, entered knowingly, intelligently, and with sufficient awareness of the relevant circumstances and likely consequences, stands.
VII. Conclusion
For the reasons set forth above, we affirm Moussaoui’s convictions and sentences in their entirety. We also deny his renewed motion to remand for further proceedings.”
Legal Lessons Learned: The facts in this case are a chilly reminder that we all must be diligent about homeland security.
Article 3-5
NY: HOMELAND SECURITY - AIRLINES SUED FOR THREE WRONGFUL DEATHS AND BILLIONS IN PROPERY DAMAGES ARISING OUT OF 911 ATTACKS ON WORLD TRADE CENTER - AIRLINES CAN NOT TAKE DEPOSITIONS OF 6 FBI AGENTS
On July 16, 2009 in consolidated case called In Re September 11 Litigation, U.S. District Judge Alvin K. Hellerstein, Southern District of New York, 621 F. Supp. 2d 131; 2009 U.S. Dist. LEXIS 61594, held that for national security reasons, the airlines defendants can not take depositions of these FBI agents, seeking to put the blame on the U.S. Government absolve themselves from fault.
The three wrongful death lawsuits were filed by families who turned down compensation under the Victim Compensation Fund established by Congress; accepting that compensation would have prevented them from filing a lawsuit against the airlines. The airline defendants include: American Airlines, Inc.; AMR Corporation; United Air Lines, Inc.; UAL Corp.; US Airways Group, Inc.; US Airways, Inc.; Delta Air Lines, Inc.; Continental Airlines, Inc.; and AirTran Airways, Inc. Other defendants include Colgan Air, Inc., Argenbright Security, Inc., Globes Aviation Services Corporation, Globe Airport Security Services, Inc., Huntleigh USA Corp., ICTS International NV, The Boeing Company, The Massachuesttes Port Authority, The Metropolitan Washington Airport Authority.
The Court described the expected testimony of the six FBI agents:
"Scott Billings was a special agent stationed in Oklahoma City. He was a member of the Joint Terrorism Task Force on September 11, 2001 and searched Moussaoui's Oklahoma residence after the attacks. Billings testified regarding written materials and other items recovered in that search which, the Aviation Defendants argue, could support an argument as to the extent of the terrorists' plans to penetrate aviation security and hijack airplanes. The materials seized by Billings included research on American airports, flight simulator software, contact information for other terrorists, and Moussaoui's notes from flight training sessions.
Erik Rigler, a retired FBI agent, testified as a witness for the public defender in the Moussaoui trial. Rigler discussed an investigative report issued by the Inspector General of the Department of Justice as to five missed opportunities to learn about the plans of the two terrorists who hijacked the plane that was crashed into the Pentagon, and about the lack of information sharing between the FBI and the Central Intelligence Agency ("CIA").
Michael Rolince, the section chief of the FBI's International Terrorism Operations Section on and before September 11, 2001, testified that the FBI had intelligence before September 11 suggesting that an attack might occur and could target civil aviation in the United States. He also testified about the investigative techniques in use at the time.
Harry Samit, an FBI Special Agent, testified at length that he had been assigned on August 15, 2001 to investigate Moussaoui's unusual activity as a trainee at a Minnesota flight academy. Samit conducted interviews and searches of Moussaoui and Moussaoui's associate, Hussein al-Attas.
Coleen Rowley, a former FBI Special Agent, has personal knowledge of the items Moussaoui had in his possession at the time of his arrest, including short-bladed knives. She also observed other items found amidst his personal property, such as the flight training materials.
Kenneth Williams was an FBI Special Agent assigned to the Phoenix Field Office from 2000 to 2001. The defendants' interest in deposing Williams arises from a memorandum he wrote alerting superiors that a large number of Middle Eastern students were training at civilaviation schools in Arizona."
The Court held they may not be deposed:
"The FBI represents that it remains engaged in a massive and sustained investigation, PENTTBOM, and that subjecting FBI agents to depositions regarding matters related to an ongoing investigation raises security and privilege concerns. The Aviation Defendants dismiss government apprehension about security because much of the information already exists in the public record. They add that precautionary measures could be taken to prevent any classified information from being disclosed during the depositions.
"The government's decision that the depositions requested are likely to interfere with its continuing investigation and compromise national security is reasonable and appropriate, not arbitrary and capricious. 28 C.F.R. § 16.26(b). The depositions sought necessarily will involve, or lead to disclosures of, pre- and post-September 11 intelligence, intra- agency communications, recommended countermeasures to anticipated threats, and other sensitive information. The precautions that the Aviation Defendants suggest are likely to impose substantial burdens on the government and on the court, and create unacceptable risks of inadvertent disclosures of protective information.
Prior FBI testimony can be used for a limited purpose:
The Court will allow the Airline Defendants to use the prior testimony of FB agents Samit (Minneapolis) and Billings (Oklahoma City) during the Moussaouri trial, to help prepare a written narrative for submission by both sides to the jury in this civil lawsuit. [Note: During his trial, Zacarias Moussaoui pled guilty to conspiracy to commit acts of terrorism, commit aircraft piracy, destroy aircrafts, use weapons of mass destruction, murder United States employees, and destroy property, as part of the September 11 attacks. See United States v. Zacarias Moussaoui, 01 Cr. 455 (LMB) (E.D. Va.) (plea accepted April 22, 2005) ("Moussaoui Trial"). "Because the case was death-eligible, the court and jury heard evidence as to whether Moussaoui should be sentenced to death or to life without possibility of parole. On May 3, the jury issued its verdict, rejecting the death penalty and finding that Moussaoui should serve a life sentence with no possibility of parole. The court sentenced Moussaoui to six life sentences."]
There was some "eye opening" FBI testimony at the trial about pre-911 investigative problems. The trial judge wrote:
"Samit was a special agent in the FBI's Minneapolis Field Office who worked in counterterrorism. On August 15, 2001, he received a report from a Minnesota flight training school concerning an atypical student. School personnel told Samit that the student, Zacarias Moussaoui, had no affiliation with any airline and very little experience flying planes. Nevertheless, he was studying to fly commercial jets, a relatively expensive and time-consuming endeavor, he was focusing on planes with a particular type of cockpit that would be easier than others to hijack, and he lived and was born abroad. Samit opened an investigation immediately.
"The next day, Samit interviewed Moussaoui and arrested him for immigration violations. Samit questioned Moussaoui's roommate, Hussein al-Attas, who related comments Moussaoui had made about his Muslimconvictions, disapproval of Israel/American policy, belief in Fatwas, and approval of harming citizens in a Jihad. During the post-arrest interrogation, Moussaoui answered questions about his background, friends, and family, giving extremely vague and incomplete answers. For example, Moussaoui stated that he could not remember the name of the company at which he had worked the previous year, his salary, or his jobdescription. Samit recounts pressing Moussaoui unsuccessfully for details about his finances, including how he secured funding to travel and attend flight school.
On August 17, Samit notified headquarters, passing the information he had obtained to a centralized intelligence office at the FBI, the International Terrorism Operations Section ("ITOS"). ITOS is composed of several units, each of which focuses on a particular area of international terrorism. Moussaoui had given up so little information that Samit did not know of his association with Osama Bin Laden. Moussaoui's Sunni faith led Samit to report his findings to the Radical Fundamentalist Unit at ITOS, rather than the ITOS unit focused specifically on Bin Laden.
By August 24, Samit had received additional information linking Moussaoui to Bin Laden, which prompted him to report his findings to the Bin Laden Unit. Samit did not receive a response from that unit prior to the attacks. Samit also requested permission to approach the federal prosecutor's office and pursue criminal charges, in part to permit a lawful search of Moussaoui's possessions seized from his Minneapolis residence. Samit's superiors denied the request because they believed that there was insufficient evidence that a crime existed.
The FBI was also concerned that if they failed to convince a judge to issue a criminal warrant, the rejection would have made it difficult to successfully obtain a similar warrant from the special court established under the Foreign Intelligence Surveillance Act ("FISA"). Nevertheless, the FISA request was denied.
Then the FBI made arrangements to deport Moussaoui to France, where he claimed to reside, recognizing that French law would permit a search of his possessions upon arrival. But the FBI did not receive authority to pursue deportation until the afternoon of September 10. On September 11, 2001, Moussaoui was still in FBI custody at Sherburn County Jail in Minnesota.
Based on the attacks and the information Samit had already obtained from the interrogations, a magistrate judge granted a search warrant for Moussaoui's possessions on September 11. The FBI completed the search immediately and found the following: a small knife, two utility tools containing small blades, boxing gloves, shin guards, field binoculars, operating manualsfor a 747 aircraft, new hiking boots, a laptop, a notebook, rent and utility bills for an Oklahoma address, identification documents and papers regarding the loss of identification documents, and a wire transfer receipt. Samit ordered a search of the Oklahoma address as well and transported Moussaoui to the Southern District of New York.
Billings was the FBI agent stationed in Oklahoma City who carried out the search of Moussaoui's residence pursuant to Samit's recommendation. Billings's testimony relates to the items he found in that search. See Section II.A.
During Samit's cross-examination, defense counsel sought to draw out mistakes or oversights that Samit, and others in the FBI, made during the pre-September 11 investigation, regarding investigative decisions and intra-agency communication. Samit discussed his subsequent accusations against FBI personnel for negligently handling pre- September 11 intelligence. Samit accused one senior FBI official of intentionally frustrating the investigation by refusing to submit a worthy application to search Moussaoui's apartment for fear that a rejection would hurt that official's prospects for career advancement. Samit accused the senior official of modifying language and removing facts to weaken the application, then refusing to submit it to the FISA court.
Samit recounted how another FBI official, arguing in favor of applying for a warrant to the FISA court, urged the senior official that Samit was simply trying to make sure that Moussaoui did not get control of a plane and crash it into the World Trade Center--a "metaphor," the official later explained, that he had "pulled . . . out of the air." Moussaoui Trial Tr. 1207.
Limited use in this civil lawsuit of the FBI testimony:
"The portions of testimony by Samit and Billings regarding how the terrorists planned to overcome airport and airplane security are admissible under Rule 807, preferably as bases for an agreed narrative and, potentially, in their own rights if the agreed narrative is shown to be insufficient. All testimony of the government's intramural discussions and alleged shortcomings is not relevant or admissible."
Legal Lessons Learned: National security considerations prevail over "pre-trial discovery" needs.
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FED: KATRINA - NATIONAL RESPONSE PLAN - FEMA AND OTHER OFFICIALS ENJOY SOVEREIGN IMMUNITY FOR DISCRETIONARY ACTIONS
On January 22, 2009, in Herbert Freeman, et al, v. United States of America, the U.S. Court of Appeals for the 5th Circuit (located in New Orleans), held 3 to 0 that the families of three elderly loved-ones who died in the Katrina Hurricane evacuations cannot sue for alleged negligence of FEMA and other officials, since the National Response Plan is a discretionary activity of the government, and therefore the U.S. Government and its officials enjoy immunity from suit. See full opinion at http://www.ca5.uscourts.gov/opinions/pub/07/07-31066-CV0.wpd.pdf.
Death of Ms. Freeman: Herbert Freeman’s mother died on Sept. 1, 2005 in the New Orleans Convention Center. Hurricane Katrina made landfall on Aug. 29, 2005 and Mrs. Freeman was chronically ill and decided to stay in her home. After waters from Lake Ponchartrain breached the Industrial Canal, her home was flooded. Her son borrowed a boat from a friend, and safely removed her and her wheelchair to higher ground. New Orleans police officers directed them to the Convention Center. She needed immediate medical attention. Officers told them that she would be evacuated by bus, but the bus never came. She died the next day. The Court wrote:
"Squalid conditions existed at the Convention Center, and it was not equipped with food, water, medical assistance, triage, or transportation. Ms. Freeman died the day after she arrived there. An image of her blanket-covered body was broadcast on national television."
Death of Ms. Elby: Ms. Elby was bedridden, and remained in her home with a care taker as the hurricane hit. Later they were rescued by boat, and delivered her and a care-taker to a highway, where they spent the night without food, water, shelter or medical care. The next day her family carried her to an Interstate highway, where a large truck took her to the Convention Center. She died at the Convention Center on September 1, 2005.
Death of Mr. DeLuca: Mr. DeLuca died on September 3, 2005 at the Louis Armstrong International Airport. A helicopter crew had rescued him from an assisted living facility and took him to the Ponchartrain Center in Kenner, LA. When this Center also flooded, another helicopter moved him to a cloverleaf on Interstate 10. He was taken to the cloverleaf on August 30, where he remained without water, food, shelter, medical assistance, triage or transportation until he collapsed on Sept. 2 from dehydration, stress, heat exhaustion and hunger. He was airlifted to the airport, where he died the next day.
National Response Plan: The families of the three deceased filed a lawsuit in U.S. District Court, alleging that FEMA and other officials contributed to the deaths by negligently failing to perform "nondiscretionary" duties arising under the National Response Plan (now replaced by the National Response Framework).
The NPR was promulgated by the Department of Homeland Security under a 2003 Presidential Directive, to "integrate Federal Government domestic prevention, preparedness, response, and recovery plans into one all-discipline, all hazards plan." Presidential Directive HSPD-5 (Feb. 28, 2003). Department of Homeland Security Secretary Michael Chertoff released the NPR in Dec. 2004. It included an Annex (called the Catastrophic Incident Annex) that formed the backbone for the federal government’s response to catastrophic incidents, like hurricanes. This included FEMA supporting state and local agencies. See 44 CFR 206.5.
The 5th Circuit noted that FEMA performed poorly, writing:
"the federal government was unprepared for Hurricane Katrina, and its response was universally criticized as inadequate, unorganized, and flawed [citing Congressional hearings]. Among the many shortcomings, FEMA officials displayed a lack of situational awareness that led to organizational inaction, and critical elements of the National Response Plan were executed late, ineffectively, or not at all. See H.R. Rep. No. 109-377, at 2-5. More specifically, the record reveals that federal agencies did not initiate decisive action to assist the Convention Center until September 2, 2005, and contains no evidence of any mission to aid evacuees at the [Interstate 10] Cloverleaf."
The lawsuits named former FEMA Director Michael Brown, DHS Secretary Chertoff, and numerous other officials, seeking to sue them personally, as well as in their official capacity. The U.S. Government filed motions to dismiss, arguing that Congress has not waived under the Federal Tort Claims Act (28 U.S.C. 2680(a)) or the Stafford Act (42 U.S.C. 5121 – 5208) the government’s sovereign immunity for discretionary conduct of its officials, and that the NPR did not create any nondiscretionary duties.
The U.S. District Judge granted the government’s motion, and dismissed the lawsuits on the basis of sovereign immunity. The Court refused plaintiffs’ request for pre-trial discovery prior to deciding to dismiss the case – therefore plaintiffs did not take any pretrial depositions or obtain any documents in pretrial discovery.
The families appealed to the U.S. Court of Appeals, which affirmed the District Court:
"In this case, plaintiffs argue that the government failed to perform or was negligent in its performance of the specific duties prescribed by the NRP—namely, the provision of food, water, shelter, medical assistance, and transport to the Convention Center and to the Cloverleaf. (See Pls.’ Br. 34.)"
"The NRP directives that plaintiffs cite permit agents to exercise judgment or choice that is subject to policy analysis. We therefore hold that the government’s conduct under the NRP—even its failure to provide food, water, shelter, medical assistance, and transport to the Convention Center and to the Cloverleaf—qualifies under the Stafford Act’s discretionary function exception."
"Under the first prong of the Berkovitz test [U.S. Supreme Court’s decision in Berkovitz v. United States, 486 U.S. 531 (1988], plaintiffs fail to identify any specific, nondiscretionary function or duty that does not involve an element of judgment or choice. To the contrary, plaintiffs cite a large number of NRP provisions that contain generalized, precatory, or aspirational language that is too general to prescribe a specific course of action for an agency or employee to follow."
The 5th Circuit also held that the plaintiffs can not sue under Federal Tort Claims Act, since the FTCA "excepts discretionary functions and duties from the waiver of sovereign immunity."
Likewise, the government is immune from liability for the breach of the water levy. Congress in the Flood Control Act of 1938, while authorizing federal damns and other flood controls, provided in the Act: "No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place."
The 5th Circuit concluded with these sobering observations:
"The tragedies that gave rise to this litigation were compounded by the well-documented inability at all level of government to provide timely relief to hurricane victims. The federal government has publicly admitted that it made mistakes; however, even if those mistakes caused decedent’s deaths, which we are presently in no position to determine, the federal government’s negligence does not give rise to tort liability absent the U.S. Government’s express waiver of sovereign immunity."
Legal Lessons Learned: We have all learned from the Katrina response issues. The good news is that this decision is consistent with many court cases, holding that Incident Commanders and other officials who exercise discretion at emergency scenes are generally not personally liable for their good faith conduct.
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NIMS / Incident Command - Safety Video Issued By U.S. Chemical Safety Board – Chemical Explosion Created Blast Wave In Danvers, MA
The Chemical Safety Board has just released an interesting video, regarding a massive explosion at a chemical manufacturing plant located near neighborhood homes in Danvers, Massachusetts, a suburb just north of Boston, at 2:46 am on November 22, 2008; see http://www.cbs.gov/index.cfm?folder=video_archieve&page+index.
The 18-minute is great training for FDs regarding NIMS and Incident Command at a disaster scene.
Legal Lessons Learned: U.S. Chemical Safety Board produces very informative videos of chemical accidents; it would be great if NIOSH would do the same in some LODD incidents.
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FEDERAL – CONGRESS PASSES 9/11 BILL – GRANTS, EMERGENCY OPERATIONS CENTER IMPROVEMENT, ENHANCED DRIVER’S LICENSES, CREDENTIALING OF FIRST RESPONDERS
On July 24, 2007, the U.S. House of Representative (H.R. 1) and the U.S. Senate (S.1) passed the Congress and was sent to President Bush for signature (http://thomas.loc.gov/). The bill implements many of the 41 recommendations made by the 9/11 Commission in 2004.
Grants: The bill provides $37.6 billion for the budge year starting Oct. 1, 2007, with $2.3 billion more that President Bush recommended, with most of this additional money going to state and local governments for emergency responders.
Emergency Operations Centers Improvement Program: The bill provides grants to States to equip, upgrade or construct “all-hazards” State, local or regional centers.
Interoperability Communications: The bill provides grants to maintain, throughout an emergency response operation, a continuous flow of information among emergency response providers, agencies, and government officers from multiple disciplines and jurisdictions and at all levels of government, in the event of a natural disaster or act of terrorism.
Enhanced Driver’s License: the bill calls for a pilot program to determine if an enhanced driver’s license, which is machine-readable and tamper proof.
Credentialing Emergency Responders: bill calls for nationwide standards for the credentialing of emergency responders, ensuring that such personnel possess a minimum common level of training, physical and medical fitness, and capability for the position, compatible with NIMS.
Legal Lessons Learned: These federal initiatives will have a great impact on Fire & EMS nationwide; read the bill and get a sense of the future.
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OHIO PATRIOT ACT – OHIO SUPREME COURT – ATTORNEYS SEEKING APPOINTMENT AS DEFENSE COUNSEL FOR INDIGENTS WHO REFUSE TO SIGN DECLARATION WILL BE DISQUALIFIED FOR APPOINTMENT
On September 13, 2006, in State ex rel. Triplett v. Ross, 111 Ohio St.3d 231, 2006-Ohio-4705, attorney Marc S. Triplett seeks continuing appointment by the Bellefontaine Municipal Court as an attorney for indigent criminal defendants, but he refused to sign the declaration that he is not a member of any terrorist organizations, and has not provided material assistance to a terrorist organization. The attorney claims that the form he is required to sign is “deeply offensive” and does “nothing to prevent terrorism.” The Ohio Supreme Court held that it did not need to decide the constitutionality of the Ohio Patriot Act, since the attorney made less than $100,000 annually in court appointments so the statute did not require he sign the state form.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
NEWSLETTER IS NOT PROVIDING LEGAL ADVICE;
Posted by UC solely as information and for the benefit of students.