Tuesday, January 16, 2007
Strange, but true. In May of 2003, U.S. District Court Judge Harold Baer, Jr., sitting in the Southern District of New York, ruled that Saddam Hussein was complicit in the 9/11 attacks and ordered him to pay restitution to 9/11 families that had brought suit against him, Osama bin Laden, and others in US court. The full ruling is available online.
From CBS News:
A federal judge Wednesday ordered Osama bin Laden, Saddam Hussein and others to pay early $104 million to the families of two Sept. 11 victims, saying there is evidence – though meager - that Iraq had a hand in the terrorist attacks.
U.S. District Judge Harold Baer ordered that the damages be paid by bin Laden, al-Qaida, the Taliban, Saddam and the former Iraqi government. The judge ruled against them by default in January after they failed to respond to the lawsuits brought on behalf of two of the trade center dead.
Beasley called Baer’s finding “a significant victory” because it represented the first time a judge linked al-Qaida and Iraq in the Sept. 11 terrorist attacks.
In his ruling, Baer concluded that lawyers for the two victims “have shown, albeit barely … that Iraq provided material support to bin Laden and al-Qaida” and collaborated in or supported al-Qaida’s Sept. 11 attacks.
Baer said lawyers relied heavily on “classically hearsay” evidence, including reports that a Sept. 11 hijacker met an Iraqi consul to Prague, Secretary of State Colin Powell’s remarks to the United Nations about connections between Iraq and terrorism, and defectors’ descriptions of the use of an Iraq camp to train terrorists.
I was very curious about this, so I skimmed through the ruling. As far as I can tell,
- Saddam was named in the lawsuit but (of course) did not respond.
- For regular mortals, such as the Al Qaeda defendants, failure to respond to a lawsuit means they are automatically found liable (default judgment)
- Because Saddam is a head of state, however, special rules apply:
The Foreign Sovereign Immunities Act provides that: “No judgment by default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.”
- More specifically, the standard the court applied against Saddam was that of “a legally sufficient evidentiary basis for a reasonable jury to find for plaintiff.” As I understand it, this means that the court had to find that there was enough evidence that, if a jury trial were held, it is conceivable that a jury could find in favor of the plaintiffs.
The court considered a bunch of affidavits, news reports, and live testimony to support the Saddam / Al Qaeda link. Two experts testified:
Robert James Woolsey, Jr., the Director of Central Intelligence from February 1993 to January 1995; and Dr. Laurie Mylroie, an expert on Iraq and its involvement in terrorism generally and the bombing of the World Trade Center in 1993 in particular.
Mylroie noted that:
- Iraq provided support for two of the main perpetrators of the Trade Center bombings in 1993, Abdul Rahman Yasin and Ramsey Yusef.
- bin Laden’s fatwah was motivated by the presence of US troops in Saudi Arabia to fight the Gulf War against Iraq.
- “threats by bin Laden in late 1997 and early 1998 which led up to the bombing of the U.S. embassies (on August 7, 1998) were “in lockstep” with Hussein’s threats about ousting the U.N. weapons inspectors”
For some reason, based (apparently) on these facts, she concludes that “Iraq, I believe, did provide support and resources for the September 11 attacks” and “I think that in many respects, al Qaeda acts as a front for Iraqi intelligence. Al Qaeda provides the ideology, the foot soldiers and the cover . . . [a]nd Iraq provides the direction, the training and the expertise.”
Woolsey seemed a little more credible. he pointed to:
- The Salman Pak facility in Iraq, which he claimed was a terrorist training facility.
- 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 agent”
- Alleged “interactions between Hussein/Iraq and bin Laden/al Qaeda” described in a letter from George Tenet, the Director of Central Intelligence, to Senator Bob Graham on October 7, 2002.
Based on this, he concluded:
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.
Based largely on these experts’ live testimony, the court concluded:
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. [...] Juries are invited to draw inferences from facts presented and this constitutes circumstantial evidence and this is what the Court has done here.
So, what have we learned?
The court issued its finding that Saddam had a hand in the 9/11 attacks because two credible experts testified that, in their opinion, this was true, and the court applied the standard that a jury could conceivably have believed them. I think two things are worth pointing out:
Firstly, the test used here of “someone could conceivably have believed this” is not, shall we say, the most impressive standard of proof. So, it would be misleading to describe this ruling as anything like judicial agreement, endorsement, or confirmation that Saddam and al Qaeda had any kind of operational relationship.
Secondly, as far as I can tell, all the specific allegations made by the two experts have been disproved. According to Wikipedia’s article on the matter,
- Investigations by the Joint Terrorism Task Force in New York, the F.B.I., the U.S. Attorney’s office in the Southern District of New York, the C.I.A., the N.S.C., and the State Department “all found no evidence implicating the Iraqi government in the first Trade Center attack.”
- Investigations by the CIA, the FBI, the Czech Police, and the 9/11 Commission all indicate that the “Atta in Prague” meeting never took place.
- The Defense Intelligence Agency and the CIA concluded that there was no evidence Al Qaeda fighters were ever trained at Salman Pak.
All in all, though, it’s more than a little troubling that the “fact” that Saddam had a hand in the 9/11 attacks, now almost universally believed to be false, managed to get enshrined into a court decision in this way. There was an honest-to-God order issued against Saddam Hussein putting him on the hook for part of a $104 million settlement. Obviously, nobody including me is going to feel inclined to feel sorry for Saddam being liable for anything, but we now know that finding Saddam liable for 9/11 damages was an objectively incorrect decision. It’s never a good thing when courts reach conclusions we can later demonstrate to be in error.