U.S. Attorney General William Barr and acting Director of National Intelligence Richard Grenell broadly invoked the state secrets privilege this week to block 9/11 survivors and family members from obtaining crucial evidence to support their multi-billion dollar damages lawsuit against Saudi Arabia.
In sworn public declarations filed in federal court in New York, the nation’s top law enforcement official and the overseer of the U.S. intelligence community said their formal assertions of the state secrets privilege were necessary to “protect the national security interests of the United States.”
“This assertion of privilege is over highly sensitive and classified national security information concerning foreign government information; intelligence activities, sources and methods; and information concerning foreign relations and foreign activities of the United States, including confidential sources,” wrote Grenell, who was appointed by President Trump on Feb. 20. “This information must be protected because its disclosure reasonably could be expected to cause serious damage, and in many cases exceptionally grave damage, to the national security of the United States.”
Barr said his assertion of the state secret privilege “encompasses four categories of information.” They are:
- Subject information, including information which would indicate that a particular individual or entity is or was the subject of a national security investigation.
- Reasons for investigation and results, including information which would reveal the reasons a person or entity is or was the subject of a national security investigation and information obtained as a result of that investigation.
- Sources and methods, including information that could tend to reveal FBI sources, methods or techniques or classified policies and procedures.
- Foreign government information and information sharing and cooperation with foreign partners, including information received from a foreign government.
Sean Carter, a co-chair of the 9/11 plaintiff’s executive committee, called Barr’s assertions “extraordinary and unprecedented.”
State secrets privilege implications
“This has pretty staggering implications going forward,” Carter said. “Very broadly, it takes the view that the executive branch can declare that information falls into certain general categories, like investigative findings, and can declare that by virtue of status in those categories it can be treated as a state secret. If this is endorsed by the court, and putting aside 9/11, it is a glide path for the government to withhold almost anything.”
Along with the two public declarations, the government filed a number of “classified submissions lodged for the Court’s ex parte, in camera review.” Translation: even lawyers for the 9/11 plaintiffs cannot see them.
Those classified, nonpublic documents which ostensibly seek to justify the extreme secrecy are identified as a second declaration with attachments by Grenell, a declaration by the “Central Intelligence Agency,” and declarations by a trio of Barr’s subordinates, Jill Sanborn and Brian Gilhooly, officials in the FBI’s Counterterrorism Division, and New York City Assistant U.S. Attorney Sarah Normand.
The 9/11 families are seeking FBI records regarding Saudi Arabia’s alleged support to the al Qaeda terrorists who used passenger jets to attack New York’s World Trade Center and the Pentagon on Sept. 11, 2001.
Three years ago, the court allowed the 9/11 plaintiffs to try to discover new information about Fahad al-Thumairy and Omar al-Bayoumi, and their connections to senior officials of the Kingdom of Saudi Arabia. Thumairy and Bayoumi provided assistance to Nawaf al-Hazmi and Khalid al-Mihdhar, who were part of the hijacking team that plowed American Airlines Flight 77 into the Pentagon.
October 2012 FBI report
A heavily censored October 2012 FBI summary report obtained by Florida Bulldog in 2016 during Freedom of Information Act litigation revealed that as of that date – eight years after the 9/11 Commission had ended – FBI agents and prosecutors in New York were actively targeting an apparent support network in the U.S. for Hazmi and Mihdhar. The investigation was shut down in 2016.
Lawyers for the 9/11 families tried unsuccessfully later to obtain an unredacted copy of that report.
President Trump, after meeting with family members at the White House last Sept. 11, ordered the release of one name in the report – the person identified as having “tasked” Thumairy and Bayoumi with aiding Hazmi and Mihdhar. The name has not been made public.
A few days later, Attorney General Barr blocked the release of any additional “classified national security information” in the 2012 report when he asserted the state secrets privilege for the first time in the case.
Both Barr and DNI Grenell, who also serves as the U.S. ambassador to Germany, noted that their assertions of privilege were not made “to conceal a violation of law, or administrative error; to prevent embarrassment to a person, organization, or agency of the Government; to restrain competition; or to prevent or delay the release of information that does not require protection in the interests of national security.”
Said Grenell, “I make these assertions of privilege mindful of the public disclosures – both authorized and unauthorized – of information regarding the events surrounding and investigations of the terrorist attacks on September 11, 2001. However, it remains necessary to withhold considerable details about the investigations into the attacks to protect highly sensitive intelligence information.”