Rodriguez v. Bush, U.S. District Court (E.D. Penn.) Case No. 04 cv 4952

Below is the introduction which D. Alexander Floum wrote for the book which John Leonard is thinking of publishing about 9-11 justice and lawsuits.

I've been asked whether we can obtain justice against the perpetrators of the 9-11 attacks. I think the answer is yes. However, some background is needed to see the factors which would play out in a 9-11 lawsuit.

Is there a Legal Basis for a 9-11 Lawsuit?

Legally, I believe we should win in court. As shown in this book and other publications, the evidence that certain elements of the government intentionally allowed and caused the 9-11 tragedy is extremely strong. Under theories of murder, criminal negligence, conspiracy, treason and other doctrines, the perpetrators should be found guilty and brought to justice.

However, any government employee sued would claim that they are protected by sovereign immunity defenses (meaning, in essence, ";I'm the king, so you can't sue me";). This area of law is too complicated to discuss here, but I believe we might be able to overcome sovereign immunity defenses, since acts of murderous treason should not be considered within the normal scope of government employment.

However, it is unlikely that a court would allow high-level officials such as a sitting president or vice president to be tried until they leave office after the end of their designated term or through impeachent and removal. This is because the constitutional ";separation of powers"; doctrine provides that one branch of government, such as the judiciary, cannot unduly interfere with the workings of another branch, such as the executive branch. It is clear that a sitting president cannot be tried criminally, although it has not been decided whether the president can be indicted (the first step in the criminal process) while in office or whether the vice president has the same protections as the president. The courts would likely pass the buck by staying any criminal action against both the president and vice president until they are out of office.

Finally, the government would likely argue that the entire lawsuit is superseded by ";national security"; considerations, and so must be thrown out of court. This may be a tough, since post-911, all government employees, including judges, tend to defer to arguments about security, and because the Patriot Acts have already superseded many laws and constitutional provisions. Indeed, secret military tribunes now routinely decide important cases in secret. Therefore, a 9-11 case which made any headway would undoubtedly be attacked by the Department of Justice as interfering with national security interests, and the government would attempt to impose a total secrecy order on the trial.

Can we win in Court?

Lawyers know a dirty little secret that other people don't often think about: judges are people, and most of them decide lawsuits based on their personal prejudices, ideas, and belief systems. Therefore, in addition to the defenses discussed above, how a judge would decide a 9-11 related case depends partially on who he or she is as a human being.

There are some brave and patriotic judges out there who are true heroes. If a 9-11 case with a good lawyer and credible witnesses gets in front of one of these judges, justice might actually be done. The trick is to line up the attorneys and witnesses, make sure they have the resources to see the case through, and then play the odds game of filing lawsuits, and challenging closed-minded judges who would not decide the case based upon the facts and the law, until a brave and open-minded judge can be found.

Because any successful 9-11 lawsuit against a government employee would likely be appealed all the way to the U.S. Supreme Court, the alliances of the justices of that court would ultimately be an important factor in the outcome of a 9-11 case. By way of example, the Supreme Court ordered President Nixon to turn over his presidential tapes, which largely led to his downfall. In contrast, in 2000, the current supreme court handed Bush a victory against Gore. Therefore, the upcoming nominations to the Supreme Court could have a direct impact on the end game in any 9-11 lawsuit.

Current 9-11 Legal Efforts

Several people have recently submitted a complaint to New York's attorney general, Elliot Spitzer. Spitzer is a dedicated activist when it comes to fighting corporate crime. However, he is running for governor, and political considerations might lessen the chance that he would pursue a 9-11 case.

A copy of the Spitzer complaint is presented in this book. While fairly well-written, the complaint includes confusing and contradictory theories about who was behind 9-11.

Ellen Mariani, the widow of a 9-11 victim, filed a case based on a civil conspiracy theory. However, a law firm linked with the Bush administration succeeded in removing her as administrator of her late husband's estate as a back-door play to stop the suit. Former world trade center employee William Rodriguez and 9-11 hero stepped in as lead plaintiff in the suit.

A copy of the Rodriguez complaint is included in this book. While passionate and well-written, the complaint may -- as discussed below -- suffer from inclusion of too many conspiracy theories, such as election fraud.

Attorney Stanley Hilton, former chief of staff for Bob Dole, has filed a 9-11 case in San Francisco. However, the judge has expressed severe scepticism of his case.

There are also numerous 9-11 related personal injury and insurance lawsuits, although they do not appear to directly address who was actually responsible for the attacks.

To my knowledge, no attorney has yet filed a class action case based upon 9-11. Not many trial lawyers handle class actions, since it takes alot of work to get the plaintiffs certified as a class and taking the other necessary steps not required in other types of civil lawsuits. Also, class actions take a special type of expertise which many trial lawyers don't have.

To date, no key insiders in the government have blown the whistle on the government's role in 9-11. Former FBI translators have laid bare the falsity of many of the government's claims, but no one has stepped forward to reveal what really happened.

Moreover, few nationally-known, first-tier trial lawyers have yet gotten involved in the fight for 9-11 justice. One of the purposes of this book is to attract the attention of heavy-hitting trial lawyers to take up the cause.

Will a Government Prosecutor Be Our White Knight?

Some 9-11 activists are focused on attempting to convince state attorneys general to file 9-11 lawsuits. As mentioned above, a complaint has already been submitted to New York's attorney general. Does this mean that the NY complaint should be copied and submitted to the other 49 state attorneys general?

Its tempting to do so. State attorneys general have substantial resources to investigate, conduct discovery in, and prosecute cases. They often possess in-house investigators, special discovery powers (i.e. subpoena powers above and beyond a normal plaintiff in a case), and the staff needed to see a lawsuit through to the end.

However, it first needs to be determined whether the attorney general or another prosecuting agency has jurisdiction over the case. District attorneys or county attorneys usually have jurisdiction over murder cases which occur within their geographic district. State attorneys general can sometimes assist in a murder trial, and often handle any appeals of a verdict in such a trial. Attorneys general also have power to prosecute certain types of cases pursuant to statute. And the United States Attorney has jurisdiction over crimes against the United States, which 9-11 probably was.

Therefore, before a complaint is filed with the attorney general, it must be determined whether that agency, the district attorney or county counsel, or the United States Attorney or U.S. Department of Justice is the agency with jurisdiction over the specific types of crime (such as murder or criminal conspiracy) which are being alleged. The analysis of which is the proper agency will depend on the types of crime alleged in the complaint.

Moreover, public prosecutors have wide discretion on which cases they choose to pursue. Unlike a civil lawsuit, which is initiated at the discretion of a citizen, criminal complaints are prosecuted by a governmental agency at its discretion. While a prosecutor receives many complaints, he or she will decide to pursue a small handful of such cases based on a number of factors, including which cases fit in with the priorities of that office (for example, corporate crime and securities fraud are Elliot Spitzer's focus, environmental laws have been a prime concern for many California attorneys general, while enforcing anti-sodomy laws and punishing violent criminals and drug offenders have been the focus of some recent southern attorneys general).

Whether or not the prosecutor thinks that the case is winnable is another factor in the decision. Governmental prosecutors, whether county district attorneys, state attorneys general, or the federal department of justice, usually don't touch cases they don't think they have a good chance of winning.

So part of the art in drafting a complaint to an attorney general or district attorney is writing it in a way which implies that a 9-11 lawsuit would fit in with that agency's focus and that such a lawsuit has a real chance of being successful.

Because no attorney general will pursue a lawsuit unless it can help right a wrong suffered by citizens of that particular state (which relates to concepts which lawyers call ";standing"; or ";jurisdiction";, depending on the context), the complaint needs to explain in some detail the physical or economic injuries which the perpetrators of 9-11 caused to at least one citizen of that particular state. If any 9-11 victims lived in that state, that should be pointed out. If any family members of 9-11 victims reside in the state, that might be good enough. If there are no victims or family members of victims, then more creative arguments about economic injury to the state and its citizens can be made. The same is true of a complaint submitted to a district attorney or other governmental prosecutor. An attorney should definitely be consulted in drafting the complaint and addressing the jurisdiction and standing requirements.

Finally, it should be noted that each attorney general has its own procedure for submission of a complaint. Some states, like New York, have no specific format requirement. Others, like Michigan, may only accept a complaint on one of the state's pre-approved forms. Care must be paid to the practice of the particular prosecutor to which a complaint is submitted.

What Should a Complaint Include?

Some of the 9-11 complaints include claims that the Iraq war is illegal, that the Patriot Act and related laws are fascist and intended to strip away our liberties, and a host of other claims. I personally agree that 9-11 was probably committed as a ";Reichstag fire"; type operation in order to justify imperial ambitions, including seizure of Iraqi oil and suspension of civil rights within the U.S. which interfere with the exercise of unfettered, centralized power.

However, the vast majority of judges will immediately write off as bogus any complaint which contains too many different conspiracy claims. The reason is that every judge has reviewed a complaint written by someone who is literally psychotic which claims that everyone is out to get them and everyone has hurt them in some way. Understandably, after seeing a couple complaints like this, judges tend to automatically close their minds to any lawsuit alleging too many conspiracies or conspirators. Therefore, any 9-11 suit which attempts to weave in too many different crimes, such as an unlawful war, unlawful seizure of centralized power by the government, voting rights fraud, etc. will probably fail.

However, some 9-11 complaints have gone too far the other way, and have not included enough claims and theories related to 9-11. For example, some of the complaints solely allege that the defendants were negligent in allowing 9-11 to happen, while completely ignoring the physical evidence that the 9-11 attacks could not possibly have happened in the manner that the government has described and could not have happened without direct assistance from certain governmental personnel. Failing to mention such evidence gives a court the easy out of finding that the government was careless, but not criminally so. This is the ";mistakes were made, but who could have foreseen 9-11?"; tack which the 9-11 Commission took, which lets everyone off the hook.

Moreover, any complaint which fails to mention Operation Northwoods and the Reichstag fire might miss an opportunity to provide the historical background and context which a court probably needs to fully understand 9-11. In Operation Northwoods, the U.S. Joint Chiefs of Staff proposed committing terrorist acts against U.S. citizens in order to blame Cuba and serve as a rationale for invading that country. In the Reichstag fire, Nazis set fire to an important German building and blamed the Communists, in order to justify Adolph Hitler's wars on foreign nations.

Criminal law largely focuses on attempting to prove motive for committing the crime and the means of, and opportunity for, performing the criminal act. Operation Northwoods and the Reichstag fire are historically powerful examples of the type of motive which appear to be behind behind complicity within certain elements of the U.S. government in the 9-11 attacks. Specifically, seizure of middle eastern oil and a new imperial presidency may have been motive for the 9-11 attack, and a judge needs some education on this basic concept.

The bottom line is that mentioning Iraq or oppressive new laws as additional crimes will likely cause a complaint to be tossed into the trash can-- this is the ";everything including the kitchen sink"; type of complaint that a judge will assume is worthless. But mentioning such facts as part of the motive for why 9-11 was committed, if explained in a logical and understated fashion, might be helpful in providing background for the case. In other words, it might be alright to tell the judge why the perpetrators committed the 9-11 attacks, but don't give the judge a catalogue of crimes that they committed in addition to 9-11.

So How do we get there from here?

Lawyers and witnesses won't get anywhere without support. Unless the word about 9-11 is spread, then funding and support will not be available for the legal efforts.

Moreover, only a synergistic effort on all fronts will work. The whistleblowers and researchers have to explain to us what happened. The alternative press has to get the word out there, to develop a critical mass. And citizens have to pressure the media and politicians to take this issue seriously. The civil rights movement only won court victories because the attorneys arguing those cases had a huge, grassroots non-violent movement behind them. Short of a prominent whistleblower coming forward about 9-11, the same dynamic probably applies here. However, a single important whistleblower, outstanding lawyer, or brave judge might tip the scales and make for a successful case.

The 9-11 movement should not put all of its eggs in the legal basket, due to the difficulties discussed above. However, the legal effort should be one of the main prongs of the battle for 9-11 truth and justice, since any single case could bring real results. So the judicial effort must be adequately supported to give it a real chance to succeed.

Is it worth it?

While the effort will be difficult, there could not be a more important mission for us. There has been no real investigation about 9-11. The federal 9-11 commission almost completely ignored the questions of who carried out the attacks and supported the attackers, why the most powerful military in the world failed to timely scramble fighter jets but instead ";stood down"; and allowed the attacks, why the world trade center's twin towers and building 7 collapsed when no other steel-frame high-rise in history has collapsed due to fire, and why the attack on the Pentagon left very little if any visible record of a plane crash. The Bush administration attempted from day one to thwart any investigations, and then allowed one only after enormous public pressure. The official investigation was denied access to many important documents, was drastically underfunded (with less money to investigate the crime of the century than was allocated to the Monica Lewinsky investigation), and was really allowed to focus only on ";intelligence failures";, not what happened on that terrible day. It is up to the American people to demand, through the legal process, media, and politicians, that a full investigation into 9-11 is conducted and the perpetrators brought to justice.

The rule of thumb is that truths about U.S. government action are only revealed 50 years after they happen. Only in the 1990's did it come out that the U.S. let Pearl Harbor happen to justify our entry into World War II. Only now is Operation Northwoods being reported.

We need truth and justice now. If we wait 50 years, the perpetrators behind 9-11 will be long gone, and the ideals of liberty, justice and freedom may be forgotten. We are at a pivotal point in history, the time is now, and the stakes could not be higher. The legal system is not perfect, and there are difficulties in attempting to prosecute government personnel in an imperial government. However, at a time in which congress and the media appear more loyal to the forces of empire than to the good of the people, the legal system is one of the best tools we have for pursuing justice for the victims of September 11th.

Disintegration of the Rule of Law

Right now, the American constitution is largely being dismantled by the Patriot Act and Patriot Act II. Basic constitutional protections of privacy, freedom from illegal searches, freedom of speech and freedom of religion are under attack and are falling one by one by the wayside. Freedom from torture, guaranteed by the Geneva Convention, has unlitaterally been revoked by the United States.

Americans are taught in history class that we have a government of laws, and that our constitution guarantees a separation of powers between the courts, the congress, and the president. But the principles underlying the constitution only survive if those in power choose to honor and protect its ideals. And the power-brokers will only serve the principles embodied in the Constitution to the extent that we the people demand that they do.

Democracy is a verb, not a noun. It is not something that Americans possess and which was handed down to us as done deal. It is in fact a process, which only will survive to the degree we fight for it. The saying ";vigilance is the price of democracy"; is not a cliche but an ongoing cause and effect law of society. Indeed, Benjamin Franklin, one of our founding fathers, repeatedly warned that after 200 years, most governments become stale and corrupt.

What happens if judges, congressmen and the president become corrupted by power or ideology and stop honoring the constitution? More specifically, what happens if the courts no longer follow the rule of law and the constitution?

I believe that 9-11 is a test for democracy. If the perpetrators are allowed to get away with their crime, then the justice system will have failed, and the separation of powers which our founding fathers worked so hard to create will have been destroyed. 9-11 is the ";Achilles heel"; of a ruthless group of people bent on imperial control. Bringing such people to justice is a prerequisite to protecting our democratic republic.

D. Alexander Floum is an attorney and former law school professor.

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