Sovereign Immunity Still Protects the Government from Liability

Richard Gage, AIA, and constituent confer after meeting with staffers in the office of Sen. Mark Udall (D-CO), September 2010

AE911Truth members have written to and met with Congressional staffers, urging them and their bosses to push for a new, independent investigation of the events of 9/11, thus far to no avail. Once the contact has been made, the initiative rests with the members of Congress and/or their staffers, and we lose the initiative. Some 9/11 activists have urged that we keep the initiative by filing lawsuits alleging that some members or agents of the government have engaged in a conspiracy to perpetrate and then cover up the greatest “false flag” event in U.S. history. As a retired attorney I will explore this question, analyzing previous lawsuits with an eye toward evaluating the probability of success of a future lawsuit.

Many, if not most, readers of this newsletter are already convinced that the official explanation for the rapid, symmetrical, total destruction of the three World Trade Center skyscrapers on September 11, 2001 (“9/11”) is utterly false, among other reasons because virtually every feature of the buildings’ destruction is inconsistent with a purely gravity-driven collapse. Many in the 9/11 truth movement are further convinced that the promulgation of the official explanation by the Kean Commission and its defense by NIST constitute a deliberate attempt to cover up the involvement of high-level insiders. Although the most obvious explanation for the destruction of these buildings is controlled demolition, neither the Kean Commission nor NIST have given this possibility serious consideration. The fact that the Kean Commission did not even mention the collapse of WTC Building 7 makes the cover up an indisputable fact for most people who are aware of the omission.

Because we have all been taught that the United States is a country based on the rule of law, it might seem obvious that any high-level insiders involved in the events of 9/11, or at least certain aspects of the events, should be brought to justice in United States courts. While at present 9/11 researchers do not pretend to know the full details of the plot to destroy the buildings, exactly how it was accomplished, or by whom, court action could theoretically release that powerful truth-seeking weapon of federal civil procedure, namely discovery, to fill in the blanks and enable a judgment of responsibility. Such an approach would have the advantage of keeping more of the initiative in the hands of 9/11 truth activists and their legal representatives, rather than potentially asking the government to investigate some of its own members.

Alas, several lawsuits have been filed, alleging involvement by parties other than agents of Al Qaeda as commonly understood. Each of these lawsuits has been found wanting in such a way that further attempts appear, to me, to be hopeless. The two best-known lawsuits, Taxpayers of USA v. George W. Bush et al. (called the Hilton lawsuit after the lawyer bringing the case) and William Rodriguez v. George H. W. Bush et al. (called the Berg lawsuit for the same reason), have been criticized for pleading matters extraneous to the events of 9/11, among other noted flaws. Both lawsuits were dismissed before the stage of discovery was reached. In the Berg suit, Judge Denise Cote of the Southern District of New York, cited the United States Supreme Court: “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” In the Hilton suit, Judge Susan Illston of the Northern District of California, also citing the United States Supreme Court, noted that “the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants.”

The sovereign immunity doctrine comes from British common law, under which the king could not be sued (as is still the case in countries such as Denmark, Norway and other European countries). Of course, every American grade school child knows that the American Revolution did away with the king. But the foregoing judicial decisions make it appear, however shocking it may be to Americans, that a lawsuit making a direct frontal attack on high-level insiders, hoping to obtain through discovery information that will expose the truth regarding the 9/11 destruction, will not succeed.

The inability to obtain information by such a tactic was underscored by the opinion of Judge Denis Chin of the Southern District of New York in dismissing as frivolous the complaint in Gallop v. Cheney. According to Chin:

Allegations that high-ranking officials of the United States knew that the attacks were coming and that they facilitated the attacks and let them happen, knowing that thousands of civilians would die, to create an atmosphere of fear that would permit the administration to seize extraordinary power and start a pretextual global war on terror are not factual in nature. Rather, they are mere conclusions, unsupported by any specific factual assertion.

In other words, because Gallop did not know “specific” facts relating to a conspiracy, which she had alleged, she was not permitted to take discovery to obtain information that would support the general factual assertion she had made. So the government and its agents are not just immune from lawsuits alleging criminal acts; they are immune from the “frontal attack” strategy as a way of finding out facts that might support such an attack.

The extent to which such immunity may frustrate plaintiffs was strikingly illustrated in Benzman v. Whitman, filed in the Southern District of New York. While this lawsuit did not attempt to hold the government or its agents liable for the events of 9/11, it did attack Whitman and the EPA for telling the public that the air around the collapsed WTC buildings was safe, when they knew it was not. Judge Deborah Batts found that the action of Ms. Whitman “shocked the conscience,” denied a motion to dismiss her from the case, and was set to have discovery begin. However, in response to an interlocutory appeal by the government, two members of the Second Circuit appellate court noted that Ms. Whitman was being advised by the White House Council on Environmental Quality, which convinced the EPA to add reassuring statements and delete cautionary ones, all in conflict with facts that were well known to the EPA. That Whitman’s pronouncements followed the desires of the White House and not the true situation as she knew it did not shock the conscience of these two judges, and the suit was dismissed on the ground of “qualified immunity.”

Will any federal court really "hear" 9/11 Truth

Mindful of the failure of such lawsuits to achieve the desired goal, a group of New Yorkers filed a Justice for 9-11 Complaint and Petition with New York Attorney General Eliot Spitzer, demanding that Spitzer open a criminal inquiry and/or grand jury investigation into the many still-unsolved crimes of September 11 over which his office has jurisdiction. The Complaint and Petition were “accepted” on behalf of the AG by Chief Inspector William Casey. Spitzer initially expressed interest in meeting with the group, but the meeting never occurred and no action has ever been taken on the Complaint and Petition. It might not be a coincidence that the number-two person in the AG’s office was Dieter Snell, who, as a member of the Keane Commission staff, is reported to have played an important role in covering up the Able Danger matter. (See David Ray Griffin, The New Pearl Harbor Revisited.)

The conclusion seems inescapable: a direct frontal attack on high-level insiders, hoping to obtain through discovery information that will expose the truth about 9/11 is doomed to fail.

However, a less confrontational attempt to obtain documents and other records is possible under the Freedom of Information Act (FOIA). A FOIA suit brought against the Department of Justice by Sibel Edmonds to obtain documents and depose witnesses in connection to her firing from her government position has been frustrated by the government’s invocation of the State Secrets Privilege. However, the International Center for 9/11 Studies successfully sued NIST under FOIA, forcing the release of documents and other records used by NIST in preparation of its reports that purported to explain the destruction of the three World Trade Center skyscrapers. The difference in outcomes may be due to the fact that it would have been difficult for NIST, a government agency, plausibly to claim the State Secrets Privilege regarding materials used in preparing a published report. Thus it would seem that a carefully drafted FOIA suit targeting specific records might be able to avoid the State Secrets Privilege and obtain valuable information.

Attempts to obtain government documents pertaining to the assassination of JFK counsel against an overly optimistic reliance on the FOIA. Twenty-nine years after Kennedy’s death, the President John F. Kennedy Assassination Records Act was passed unanimously by Congress in 1992. It directed all government agencies to prepare, within 300 days, a list of all such records and to send it to the National Archives. It further directed all agencies to preserve such records. Since that time the CIA and the Secret Service have admitted to destroying records covered by that act. Moreover, it is estimated that at least one million such records are presently being withheld by the CIA alone, in addition to records being retained by the FBI, the Secret Service, the DEA, and the US military. Finally, the CIA has publicly stated that it will retain certain documents beyond the 2017 date, which is the last legally authorized date for withholding even the most sensitive of such documents. (See Legacy of Secrecy: The Long Shadow of the JFK Assassination by Lamar Waldron with Thom Hartmann.)

Nevertheless, there is certainly no reason for 9/11 truth activists to abandon using the courts to further 9/11 truth and justice. The possibility of legal action remains, whether through a narrowly drawn FOIA suit, or perhaps a suit under the Federal Tort Claims Act, which has eroded the sovereign immunity principle by permitting private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. Drafting such a suit may require a great deal of ingenuity when one does not as yet know which persons were responsible for which torts in connection with 9/11. But that does not mean such a suit is impossible.

Direct legal “frontal attack” has never been part of the mission of AE911Truth itself. We do not blame any specific persons inside or outside the government for the events of 9/11. Instead, we have collected evidence we think could potentially be used in court cases, but which in any case undermines the official explanation, making the case that controlled demolition with explosives was the means by which the 9/11 mass murder was conducted. The New Yorkers mentioned above have not given up, and are still trying to persuade the New York City Council to take action. The recent breakthroughs with Judge Napolitano and Geraldo should encourage us in our efforts to publicize the evidence and to finally obtain a real investigation of 9/11.