Obstruction, Obstacles, Objections... Or Cover-Up... Or Continuing Conspiracy?

Court Crafts Scheme to Break Deposition Impasse in Sept. 11 Suits

It appears that the secrecy of the Bush administration even extends to creating obstacles for families of those killed (murdered) on 9-11, making it difficult to seek civil suit and damages from the airlines and agencies responsible for such lax security that it allowed the hijackers onto the planes in the first place.

The problem is that there is some evidence indicating that there may indeed be a governmental cover-up, and possibly an underlying conspiracy, that may point to members of the Bush administraion not just being incompetent, but actually having information related to the terrorists' plans but not acting on it (c.f. 911 Loose Change 2nd Edition).

At least the federal judge involved has recognized that the interests of justice and the interests of national security can be met by making it possible to review sensitive material for the purposes of the numerous court cases while also protecting sensitive material... still, there are objections and obstacles coming from the Bush gang.

Frustrated by the government's approach to protecting sensitive security information, a federal judge has crafted a compromise so depositions can proceed in earnest in the litigation against airlines and airports over the Sept. 11, 2001, terror attacks.

Southern District of New York Judge Alvin K. Hellerstein said he had to intervene "to avoid further and unnecessary delay in the progress of these cases and relieve counsel of the inherent conflicts and artificial roles" that the position of the Transportation Security Administration has created for plaintiffs lawyers.

The judge's ruling in In Re September 11 Litigation, 21 MC 97 and 21 MC 101, concerned the refusal of the Transportation Security Administration to attend depositions of the airline defendants in the litigation -- and require that defense lawyers be charged with safeguarding the security information.

The TSA intervened in the cases, which involve family members of Sept. 11 victims who opted to proceed to court instead of applying to the federal Sept. 11 Victim Compensation Fund.

There was a lot of pressure upon the surviving family members of 9-11 victims to take the government funds and not pursue these individual or class action suits. President Bush took an active role in pushing the government fund as an opportunity when he met with many of these family members.

The transportation administration intervened to protect what is called Sensitive Security Information -- information about security plans and procedures of the airports and airline industry.

Instead of attending the depositions, Hellerstein said, the TSA "seeks to impose on defendants' counsel the obligation to object and prevent answers that might disclose SSI," which the judge called a "strange and significant phenomena."

Counsel for the plaintiffs objected to the transportation administration's proposal, saying it would handicap their ability to aggressively pursue their cases. They also worried it might be hard to figure the applicability of sensitive information to conditions of airline security as they existed in 2001.

In my view, the FAA, TSA, MassPort (the Massachusetts transportation authority operating Logan International Airport) and the airlines all have some culpability because the lax security has been an issue that was raised over and over again. During the late 1960s and throughout the 1970s there were numerous hijackings, many seeking safety in Cuba or some other country. During the 1980s and 1990s there were cutbacks in airport and airline security. Many security, law enforcement and emergency response planners raised the issue of airport security as being an overlooked area of concern with the rise of international terrorism. Even now these issues remain unaddressed with appropriate measures, with the TSA security folks being inadequately trained, adhering to completely inappropriate security protocols and leaving our airport and airline security in shambles. Several news media groups have tested the physical security of major US airports and found that they were able to plant equipment and restricted materials in airports and on planes without any real security review, as well as entering "restricted access" areas without diffifculty.

"Defense counsel also express concern about exposure to civil penalties if they and their witnesses fail to protect SSI," the judge said. "Plaintiffs press to proceed, citing lengthy delays, and pointing out that many of their counsel -- all those who would be taking depositions -- were cleared by TSA to obtain access to SSI pending TSA authorization of such disclosure."

Seems a bit odd that witnesses and lawyers involved in a legitimate lawsuit can be prosecuted, fined or pursued in civil court for seeking information necessary to make their case... but that is what the TSA was (is) threatening.

The plaintiffs opposed a TSA plan that would allow them to put questions to witnesses, but not hear the answers to those questions until the administration determined that the answers could be given.

If the information provided by Phil Jayhan and Korey Rowe (911 Loose Change producers) is even remotely accurate, then letting the TSA--which is under the direction of the executive branch, answers to DHS (et al), and ultimately is answerable to the Bush gang--screen what information is or is not released in the court cases is like letting a murder suspect decide what questions the prosecution can ask in pursuit of a murder case.

Initially, the airline and airport defendants turned documents over to the Transportation Security Administration in three groups beginning in late 2003. TSA reviewed the documents and then produced them to the defense counsel, albeit slowly, the judge said. The agency did not complete its review of the first and second waves of documents until late last year.

But two years after the agency began reviewing documents, the judge said, it "retreated" from its initial position and said it would not conditionally disclose sensitive security information material to precleared defense counsel.

He pressed for the sides to negotiate a protocol to break the impasse, but negotiations dragged on.

Hellerstein then directed the plaintiffs to serve defendants notices that they would be asking for testimony on four "critical" areas: "the warnings and information supplied to the U.S. carriers by the Federal Aviation Administration about the threat of hijackings, including terrorist hijackings, prior to Sept. 11," airport passenger screening procedures, "the so-called 'common strategy' in the event of a threatened hijacking," and, finally, the identity of documents submitted to the Transportation Security Administration to determine whether they contain sensitive security information.

But the agency's proposed final orders for the depositions had defense counsel concerned that they would be placed in conflict because government regulations might prohibit disclosure, and yet disclosure might be in the best interests of their clients.

There is a bottom line... The families of the victims of 9-11 do not deserve to be stonewalled by our own government. The judge is right to insist on a protocol to allow sensitive security information to be released in a controlled, mediated manner... There should never be a time when sensitive information cannot be brought to court in the interest of justice. We have seen our government, especially Republican presidents Nixon, Reagan, George H.W. Bush and George W. Bush, claim executive privilege and national security interests in matters like Watergate, the Iran-Contra Affair, and the ongoing NSA warrantless surveillance/wiretapping fiasco. While national security is an extremely important concern, our system of checks and balances should be allowed to operate even when information is sensitive and secret... Otherwise we should just elect dictators and skip the discourse on freedom, liberty and civil rights altogether.