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THE TERRORISM FILES

18 years after 9/11, an SC man's lawsuit against foreign government kicks into high gear

18 years after 9/11, an SC man's lawsuit against foreign government kicks into high gear

It was an extraordinary lawsuit, even for lawyers who had raked in billions taking on Big Tobacco:

Take the pain and questions of those who lost loved ones on Sept. 11, 2001, and find out what really happened.

And make the financial puppeteers behind it pay.

And do it in American courts.

In August 2002, Mount Pleasant trial attorney Ronald Motley unveiled the lawsuit during a Washington, D.C., press conference.

Flanked by grieving family members of the attacks, Motley noted that the lawsuit ran more than 250 pages. Its allegations were explosive: more than 200 entities financed the hijackers in one way or another. They included the world’s most prominent Muslim charities, Middle Eastern banks, Saudi princes and the Kingdom of Saudi Arabia itself. The lawsuit asked for $1 trillion in damages.

“We fully expect the Saudi nationals and the banks to fight,” Motley said in his North Charleston twang. “But if they fight. They must fight here. They must cross the oceans and appear in court here.”

Eighteen years passed since the hijackers took the lives of more than 3,000 people, and Motley died six years ago. But the lawsuit he helped create has lived on, moving slowly through a judicial system that had never handled a case quite like it.

Ron Motley at Washington, D.C. press conference announcing Sept. 11, 2001 lawsuit

Ron Motley at Washington, D.C. press conference announcing Sept. 11, 2001 lawsuit. File/AP

For years, the case seemed to sputter as the 9/11 lawyers argued that their clients should be allowed to sue foreign governments — a challenge to the longstanding notion of sovereign immunity. Federal judges shot them down time and again.

Then, in 2016, Congress passed a new law that narrowed the sovereign immunity concept. The move, long pushed by the 9/11 families and their lawyers, may have been the litigation’s biggest success so far.

It opened the door to more depositions and secret documents. And since then, the 9/11 attorneys in Mount Pleasant and elsewhere have fanned out across the globe to interview potential witnesses and investigate more clues. In July, one of the key architects of the attacks suggested that he might talk if the U.S. government calls off its plan to execute him.

At the same time, the FBI recently supplied the 9/11 litigators with new caches of once-classified documents. And last year, a federal judge ordered Iran to pay victims billions of dollars. Though it was the legal battle’s only major payday so far, it offered a glimpse into the fight’s risks and rewards.

It also showed that, despite the long passage of time, some of the court battles to come could be the most revealing.

Release full truth about the 9/11 attacks on America

Smoke billows from the Pentagon along Interstate 395 on Sept. 11, 2001. The Washington Monument and the Capitol building (far right) are visible through the smoke. File/AP 

Murky world of terrorism

On Aug. 22, Robert Haefele, one of the case’s lead attorneys, sat in Motley’s old office in the headquarters of Motley Rice. It was six years to the day that Motley died at age 68. Haefele said Motley’s presence is still felt deeply at the firm, especially when it comes to the 9/11 case. “None of us would be doing what we’re doing here if he hadn’t made the decisions he made.”

Motley’s old office is now used as a conference room. It has a spectacular view of Charleston Harbor and has changed little since Motley died, giving it the feel of a museum.

Motley was a character out of a John Grisham novel, with working-class roots in Charleston, who played key roles in lawsuits against the asbestos and tobacco industries. In his office, he kept framed copies of tobacco industry bank deposit slips, including one to Texas for $15.3 billion. It was widely reported at the time that his firm earned as much as $2 billion in fees from the national tobacco settlements.

Famed lawyer who challenged asbestos, tobacco dies at 68 (copy)

Attorney Ron Motley in 1999. File/Staff

The firm’s financial success helped pay for what would become a dangerous and risky investigation into the financiers of the 9/11 attacks. His firm began working with families soon after the attacks. In interviews with The Post and Courier in 2003, Motley said investigators and lawyers were burning through $400,000 a month on their probe, and that he had pledged $10 million of his fortune to the cause.

He described how the firm created what amounted to a private CIA, with a team of more than 50 operatives on five continents. He said he’d enlisted the help of former U.S. and French intelligence agents who managed to obtain computer hard drives and other evidence from warlords in Afghanistan, information that they turned over to U.S. government officials.

At one point, he dispatched one of the firm’s attorneys, Mike Elsner, to Europe to secretly interview a potential witness from Afghanistan, who said he’d seen Saudi Arabians give money to al-Qaida and the Taliban.

Meantime, Charleston attorneys Harry Huge and Jack Cordray obtained crates of files and data from German and Spanish intelligence agencies. While scanning documents in Spain, Cordray found himself staring at hotel and rental car bills for Mohamed Atta, the ringleader of the Sept. 11 hijackers.

“I don’t know of any more complex litigation out there,” Cordray said recently. “You have multiple languages, multiple continents, multiple banks, and victims spread across the world.”

Some of the 9/11 investigators worked in a risky netherworld, one outside protections found in the U.S. judicial system. In early 2003, a man hired to serve legal papers against defendants in Saudi Arabia and United Arab Emirates disappeared in the desert. Motley’s associate hired a private investigator and learned that the man might have been murdered on a highway to the UAE. Legal documents were in the passenger seat of the man’s abandoned car. The murder remains unsolved.

Robert T. Haefele, an attorney with Motley Rice

Robert T. Haefele, an attorney with Motley Rice, has been a key attorney in the litigation brought on behalf of the families who lost loved ones in the Sept. 11, 2001, attacks. Photo/Provided

Haefele arrived in Mount Pleasant in 2003, during the lawsuit’s heady investigative phase. He’d been practicing in New Jersey, but Motley persuaded him to move to the Lowcountry. “Ron took this on because it was an important social cause to him,” Haefele said. “But we all benefit from understanding what happened that day.”

Early on, the investigations yielded new insights into the attacks, information beyond what government agencies and commissions brought to light.

But the 9/11 team had less success in a much less dangerous arena: the courtroom.

Failure, then a break

One of the lawsuit’s biggest hurdles was the debate over “sovereign immunity” — whether private individuals can sue governments.

The origins of sovereign immunity date to English common law when the king “was at the apex of the feudal pyramid,” the U.S. Supreme Court noted in a 1979 ruling. The justices added: “We must, of course, reject the fiction. It was rejected by the colonists when they declared their independence from the Crown.”

But that case involved a plaintiff’s ability to sue the state of Nevada, not a foreign country. And, federal courts had long been leery about opening the American judicial system to issues that diplomats normally handled.

As the years passed, federal judges dismissed many of the 200 defendants listed in the original lawsuit, including the Kingdom of Saudi Arabia.

Court battles and appeals followed. The court's docket filled with files and orders, adding to its complexity, and media interest ebbed, Haefele said.

The 9/11 families and their supporters pressed Congress for a new sovereign immunity law that dealt with harm caused by foreign terrorism on U.S. soil.

Year after year, they ran into resistance, first from Republican President George W. Bush, then Democratic President Barack Obama.

Then, in 2016, amid that year’s tumultuous presidential campaign, Congress passed the Justice Against Sponsors of Terrorism Act, or JASTA, and then overrode then-President Obama’s veto.

“That was a game-changer,” Haefele said.

The JASTA law clarified the scope of sovereign immunity, effectively making it easier for U.S. citizens to sue foreign governments that caused them direct harm in the United States, such as in a state-sponsored terrorism attack. It triggered a ferocious lobbying counterattack from Saudi Arabia, but it injected new life into the 9/11 litigation. “It was a new beginning,” Haefele said.

The 9/11 families filed an amended complaint that once again included the Kingdom of Saudi Arabia. When Saudi Arabia asked a judge to dismiss the suit, this time the judge ruled more favorably with the 9/11 families, keeping the Saudi Arabian government in the case. The Saudi Arabian Embassy declined to comment for this story.

This decision in March 2018, in turn, opened more doors to documents and witnesses. Now, attorneys could seek subpoenas and depose witnesses under oath. Attorneys took depositions in New York, Madrid and Rome, more than 30 so far, Haefele said. Like a case against organized crime, some witnesses are unsavory characters. “If you’re doing a case against al-Qaida, some of your best witnesses will be in that world.”

One possible witness is Khalid Sheik Mohammed, a key architect of the attacks now housed in the government’s Guantanamo Bay, Cuba, detention camp.

In a letter, his attorneys told the 9/11 team that “the primary driver” of Mohammed’s decision not to talk has been the government’s plan to execute him through the military tribunal process. “In the absence of a potential death sentence, much broader cooperation would be possible,” Mohammed’s attorneys wrote July 26.

Another possible break came from the FBI, which last year turned over piles of documents, including a once-secret 2012 report, one that once was so sensitive that even its title was classified.

The summary actually came to light in 2016, when the Florida Bulldog watchdog journalism site obtained a redacted version through a Freedom of Information Act Request. The FBI report named three targets. One was a suspected Saudi operative who befriended two hijackers in California. A second was a Saudi diplomat and imam in Los Angeles. A third has yet to be identified but is thought to be a high-ranking Saudi, the Florida Bulldog reported.

On Aug. 22, after a seven-year fight, a federal judge ruled that the FBI unlawfully withheld documents from the Florida Bulldog under the federal open records law.  

Haefele said the identity of the third man could provide yet another missing piece of the 9/11 puzzle. “The elephant in the room has always been that the Kingdom of Saudi Arabia was pulling the strings.”

Moving forward

When Motley held the press conference in 2002, he mentioned that 9/11 families had been cautioned that this is “a 3- to 4-year struggle.”

Today, the federal court docket is stuffed with more than 5,000 entries. The list of attorneys for both sides runs for pages. Some clients have died, and children of parents lost in the attacks have become adults.

"Nobody expected it to take this long," said Terry Strada, who lost her husband, a bond broker for Cantor Fitzgerald, when the North Tower of the World Trade Center fell.

She said the court battles have been frustrating. And so has pushback from U.S. intelligence agencies, which often fought the families over their evidence. "Fighting the Saudis was difficult, but fighting our own government sometimes was even worse." But, she added, "we're in it for the long haul."

Anniversaries of the attacks can be particularly trying times, said Jodi Flowers, a Motley Rice attorney who also has played key roles in the litigation from the beginning. Each memorial brings it back for them," she said. "We get so many calls from people who just want to talk, not just to me, but everyone on the staff."

For 9/11 families, she added, "justice has been delayed, but I don't think it will be denied."

There has been at least one financial win.

A related lawsuit alleged that Iran helped hijackers travel through their territory to the United States, and in May 2018, a federal judge in New York ordered Iran to pay what could be more than $6 billion. A separate committee of attorneys has been formed to handle that payout.

But Haefele said the Motley’s original ambition remains the driving motivation.

“Ron did it because it was an important social cause for him. Ron’s reward was going after another big wrongdoer.”

Six years after Motley's death, and nearly a generation after the attacks, the case continues to ripple through the courts — and across foreign borders.

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Reach Tony Bartelme at 843-937-5554. Follow him on Twitter @tbartelme.

Tony Bartelme is senior projects reporter for The Post and Courier. He has earned national honors from the Nieman, Scripps, Loeb and National Press foundations and is a three-time finalist for the Pulitzer Prize. Reach him at 843-937-5554 and @tbartelme