Pay Any Price (11 page)

 

More than a decade after 9/11, the war imperative, the war economy, and the war lobby all remain powerful in Washington. The transfer of power from one political party to another seems to have had little effect. But the homeland security gravy train will someday have to come to an end. With trillion-dollar annual federal deficits and a mountainous national debt, the country cannot sustain this spending on counterterrorism, and political leaders in Washington will eventually have to say “Enough.”

In late 2012, just before he resigned his post, Jeh Charles Johnson, the Pentagon's general counsel, gave a speech at Oxford University. It was one of the first efforts by a top American official to raise the possibility of bringing the war on terror to a close. Johnson's speech presaged the themes that President Obama used in his national security address in May 2013. Al Qaeda's leadership has been so decimated, Johnson said, that the United States should begin to think about when it can call off the war on terror. Victory could be declared, and the remnants of al Qaeda could be dealt with as a law enforcement problem. That would mean returning to a pre-9/11 normalcy.

“I do believe that on the present course, there will come a tipping point—a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed,” Johnson said. “At that point, we must be able to say to ourselves that our efforts should no longer be considered an ‘armed conflict' against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community—with our military assets available in reserve to address continuing and imminent terrorist threats.”

“‘War' must be regarded as a finite, extraordinary and unnatural state of affairs,” Johnson added. “War permits one man—if he is a ‘privileged belligerent,' consistent with the laws of war—to kill another. War violates the natural order of things, in which children bury their parents; in war parents bury their children. In its twelfth year, we must not accept the current conflict, and all that it entails, as the ‘new normal.' Peace must be regarded as the norm toward which the human race continually strives.”

 

President Obama's national security address five months later hit many of the same themes. He said that “America is at a crossroads” in its fight against terror, and warned that the nation “must define the nature and scope of this struggle or else it will define us. We have to be mindful of James Madison's warning that no nation could preserve its freedom in the midst of continual warfare.”

The speeches by Obama and Johnson raised an intriguing question—wealth can't be generated from the war on terror forever, can it?

But nervous defense and intelligence contractors put on edge by the Obama administration's rhetoric could rest easy. In October 2013, just five months after Obama's speech, General Atomics was awarded a contract worth up to $377 million to build twenty-four more Reaper drones for the air force. That same month, Obama named Jeh Johnson to be secretary of the Department of Homeland Security—less than one year after Johnson's speech in which he tried to imagine an end to the war on terror.

 

 

 

 

PART II

4

New York. Humid, overcast July weather. The narrow streets of lower Manhattan are nearly empty. In courtroom 21D of the U.S. District Court for the Southern District of New York, in the Daniel Patrick Moynihan Federal Building at 500 Pearl Street, the Honorable George B. Daniels presiding, a patent case drones on.

The arcane case has an unusually large audience of esteemed lawyers listening in, but only because they are waiting patiently on the back benches of the courtroom for the next case on Judge Daniels's docket,
In re Terrorist Attacks on September 11, 2001, MDL 1570.

Judge Daniels, a balding man with glasses, a moustache, and a gravel-voiced New York accent, spars with the patent lawyers, and then, having exhausted the minutiae of patent law, calls for a break. When he returns, he says he will hear about September 11, and so the lawyers in the back of the courtroom spring to life. More than a dozen file awkwardly forward to their familiar tables. They know their places from long practice. They have all been here many times before.

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.