On 7 May 2003, Harold Baer, Jr., Federal District Judge for the Southern District of New York, handed down a decision awarding damages against Iraq for the deaths of two men in the 9/11 attacks. While the judge admitted the plaintiffs presented “few actual facts of any material support that Iraq actually provided,� he commanded Iraq to pay up to $64 million. Baer’s default judgment validates the very argument the Bush administration has been unable to prove: that Iraq was responsible for the 9/11 terrorist attacks.
Baer based his decision on the Flatow Amendment, which allows victims of terrorism to sue for damages and which requires proof of five elements in addition to a primary limitation, that if an American agent cannot be held liable for a type of action, then no one can bring a case against someone else for the same type of action if he or she acts as an agent for another country.
In his written opinion, Baer concedes, “The Supreme Court has held that a claim against a US President for the conduct identical to that alleged against Saddam Hussein would be barred because of the President’s absolute immunity from damages for conduct associated with the exercise of his official duties.� The fact that under US law no one could hold President Bush liable for commanding acts similar to 9/11 against another country prevents similar action against Saddam Hussein or any other national leader. Thus, Baer dismisses the case against Hussein without even a court appearance. Despite his human rights record, our own laws protect Hussein and leave the people of Iraq to share guilt or innocence with Osama bin Laden et al.
In the case against Iraq, the plaintiffs did not meet at least two of the other required elements of the Flatow Amendment. The plaintiffs must provide evidence to meet a minimal standard of proof that Iraq gave material support or resources for the purpose of flying an airplane into the World Trade Center, evidence that Baer admits the government also seeks.
The matters which plaintiffs seek to prove are identical to those that our government has sought to uncover and prove. However strong the engine of discovery for uncovering the truth may be, it pales in comparison to the combined resources of the United States law enforcement, military, and intelligence agencies, who have bent every effort to make the case that Saddam Hussein was involved in the September 11 attacks.
President Bush failed in this pursuit. The war against Iraq was a preemptive action because there is no evidence that Iraq had any connection to 9/11. When asked point blank at a press conference, “Do you believe that there is a link between Saddam Hussein, a direct link, and the men who attacked on September the Eleventh?,� Bush responded “ I can’t make that claim.� Baer’s judgment came just three weeks after that press conference. Surely a federal judge at least heard that the President could claim no connection. Surely Bush would have been the first to reveal evidence of a link if he had evidence of it.
What classified information was revealed in court establishing an Iraq/Al Qaeda connection? Baer’s decision is based on the testimony of two expert witnesses: James Woolsey and Laurie Mylroie. Mylroie is a New York Times best-selling author of a book on the first Gulf War and the first World Trade Center attack. James Woolsey is a military and political player who served as Director of the CIA from 1993-1995. Mylroie is a right-wing publisher of a not-credible on-line newsletter. Woolsey is a lawyer out of practice for eight years. Woolsey even told the judge that while he “‘has a lot of experience in intelligence matters,’ he is trained as a lawyer, not a security analyst.�
By using expert witnesses, the plaintiffs can present hearsay as evidence. According to Baer, “As every first-year law student knows, hearsay is an out-of-court unsworn statement offered for the truth of the matter asserted, and hearsay is inadmissible.� However, “expert witnesses may rely on hearsay evidence to reach their conclusions.� While a judge cannot look at hearsay, an expert can look at hearsay and then tell the judge what he or she thinks it means. The evidence itself is inadmissible, but the opinions are valid and can result in decisions about guilt or innocence.
The evidence presented in the experts’ opinions falls into one of two categories: evidence unrelated to 9/11 and evidence rejected by the US government. All of Mylroie’s evidence falls into the former:
• “She claimed that Iraq provided…support to two of the main perpetrators of the bombing of the World Trade Center in 1993.�
• “She noted bin Laden’s fatwah against the United States, which was motivated by the presence of US forces in Saudi Arabia to fight the [first] Gulf War.�
• “She noted that threats by bin Laden in late 1997 and early 1998 which led up to the bombings of the US embassies were ‘in lockstep’ with Hussein’s threats about ousting the UN weapons inspectors.�
The evidence that Iraq aided on 9/11 includes the assertions that they harbored people who bombed the World Trade Center in 1993, that bin Laden released a fatwah against the US and that bin Laden’s threats about bombing an embassy coincided with Saddam’s threats to expel weapons inspectors. From these acts unconnected to 9/11, Mylroie says, “Iraq, I believe, did provide support and resources for the September 11 attacks…. I think that in many respects, al Qaeda acts as a front for Iraqi intelligence.� Notice the qualifiers “I believe� and “I think.� These are necessary because Mylroie has no actual evidence, merely her ideas.
Half of Woolsey’s testimony also has little to do with 9/11:
• “Woolsey described the existence of a highly secure military facility in Iraq where non-Iraqi fundamentalists (e.g. Egyptians and Saudis) are trained in airplane hijacking and other forms of terrorism.�
• “Woolsey noted that his conclusion was also based on ‘contacts,’ which refer to interactions between Hussein/Iraq and bin Laden/al Qaeda that are described in a letter from George Tenet, the Director of Central Intelligence, to Senator Bob Graham on October 7, 2002.�
Half of Woolsey’s evidence is that Iraq trained Egyptians and Saudis and that there were “contacts� that Judge Baer notes “contain multiple layers of hearsay.� These contacts occurred in the early to mid 1990s and include al Qaeda and Iraq trying to reach a mutual non-aggression pact.
Senior intelligence officials have claimed there is “no smoking gun – not even an unfired gun� in the Bush administration’s search for an Iraq/al Qaeda link, despite their best investigation. CIA chief George Tenet himself said in March of 2002, “Their ties may be limited by divergent ideologies, but the two sides’ mutual antipathies toward the United States and Saudi royal family suggests [sic] that tactical cooperation between them is possible.� Anything is possible, but there is no evidence that it is true.
The other half of Woolsey’s evidence has been denounced by the US government and is so far removed as to become comical:
• “Director Woolsey mentioned a meeting that allegedly occurred in Prague in April 2001 between Mohammad Atta, the apparent leader of the hijackings, and a high-level Iraqi intelligence agency.�
• “Finally, plaintiffs also place considerable weight on an article that appeared in a regional Iraqi newspaper in July 2001…. This article… mentions that bin Laden 1) ‘will try to bomb the Pentagon after he destroys the White House,’ 2) ‘is insisting very convincingly that he will strike America on the arm that is already hurting,’ and 3) ‘will curse the memory of Frank Sinatra every time he hears his songs.’�
The Bush administration found no hard evidence of any such Prague meeting and dropped the subject. The New York Times reported, “Many American and Czech officials have disavowed earlier reports of a Prague meeting.� These denials are in addition to later comments from Colin Powell affirming no link between Iraq and 9/11.
In the matter of the regional newspaper, Woolsey claims, “there is a probability of a vague foreknowledge of what was contemplated.� In short, it may be possible that Hussein had some inkling about something bin Laden was once thinking about. This evidence does not come from a secret memo; it was in a newspaper. The US intelligence community easily could have read the same article, meaning they would have known as much as Hussein about what bin Laden was planning.
Woolsey concludes, “Based on what I still believe is quite likely to have been this meeting in 2001 between Al-Ani and Mohammed Atta… I believe it is definitely more likely than not that some degree of common effort in the sense of aiding and abetting or conspiracy was involved here between Iraq and al Qaeda.� Again, notice the qualifier “I believe� combined with reliance on a meeting the American government now says didn’t happen. The expert opinion rests on nothing and discredits the man presenting it.
Baer defends his decision as follows: “Although these experts provided few actual facts of any material support that Iraq actually provided, their opinions, coupled with their qualifications as experts on this issue, provide a sufficient basis for a reasonable jury to draw inferences which could lead to the conclusion that Iraq provided material support to al Qaeda and that it did so with knowledge and intent to further al Qaeda’s criminal acts.� Despite the contradicting words of Bush, Tenet and Powell, Baer believes a reasonable jury could draw inferences from opinions based on discredited evidence and conclude that Iraq was behind 9/11. Baer maintains, “My decision reflects no more than that the facts and the available inferences meet the plaintiffs’ burden of proof.�
The damage of this decision is not that the court ordered the defendants to pay a significant amount of money. The damage is our own law’s willingness to subvert the Constitutional guarantee of due process. The whole case rests on the fact that Iraq, the entire country of Iraq, did not show up to defend itself. Without a present defendant, Baer needed only the bare minimum of questionable evidence and inferences to find for the plaintiffs. If anyone had shown up to question these experts, Baer probably would have deemed the case frivolous. The court might even have ordered the victims to pay costs to Iraq as a penalty for bringing such a ridiculous case. Although Iraq received the summons and complaint from the US State Department, how realistic is it to expect the people of Iraq to show up defend themselves in a country simultaneously bombing them? How just is our law that will saddle the people of a decimated country with this decision and let the dictator go free? Is this a war of regime change or against the people of Iraq?
The deeper issue in this case is that of defining truth. Judge Baer places himself on the revolving end of catch-22 fantasy. First, Bush claims a link between 9/11 and Iraq that he cannot substantiate with evidence. Plaintiffs then use this claim to file suit against Iraq. Next, Baer finds the link proven to the barest extent possible without being dismissed automatically. Bush can now say his original claims have been proven in a court of law. Other cases can refer to Baer’s decision as precedent. On and on it goes until fiction has become “fact� and it becomes accepted that it was Iraqis who flew both planes into the World Trade Towers. At least our British allies could bring Harry Potter into the act and have a chance at explaining this fantasy.
For more information:
US District Court, Southern District of New York:
www.nysd.uscourts.gov
Selling an Iraq-al Qaeda Connection. CNN.com:
www.cnn.com/2003/WORLD/meast/03/11/Iraq.Qaeda.link
Making the Case. ABCNews.com:
abcnews.go.com/sections/us/DailyNews/Iraqpolitics020926.html
Q & A: Are Iraq and Al-Qaeda Allies? The New York Times Online:
www.nytimes.com/cfr/international/backgroundiraq021203.html
Judson Laughter teaches 5th grade English and high school semiotics at the University School of Nashville.
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