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Why the US Government Rejected an American Judge’s Finding of an Iranian Role in the 9/11 Attacks | ASHARQ AL-AWSAT English Archive 2005 -2017
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Iranian protesters taking part in a demonstration on the 36th anniversary of the attacks on the US embassy in Tehran last year whilst chanting “Death to America” (Getty)

As shown by Asharq Al-Awsat in a series of reports, exclusive interviews, and U.S. federal court and government documents, an elaborate case brought to trial by September 11 victims and insurance companies against the Islamic Republic of Iran has concluded in a default judgment in favor of the plaintiffs: Judge George Daniels of New York’s Southern District has found Iran to have provided material support to Al-Qaeda prior to and after the September 11 attacks. In his detailed ruling, he validated witness testimony that the Iranian government and Hezbollah had provided training, funding, and logistical support to Al-Qaeda that was essential in enabling the attacks on the World Trade Center, Pentagon, and Washington DC (Shanksville, Pennsylvania) — as well as other attacks, including the bombing of the U.S. Embassies in Kenya and Tanzania in 1998, the suicide boat bombing of the U.S.S. Cole near Yemen in 2000, and the Khobar Towers bombing in Riyadh. In addition to his overall finding against the Tehran regime and its Hezbollah proxy, Judge Daniels also held that Supreme Leader Ayatollah Khamenei himself — among other senior Iranian and Hezbollah officials — bore direct responsibility for the September 11 operation.

The monetary fine, which had been estimated in excess of $22 billion, is continuously expanding as the plaintiffs’ attorneys calculate their motions for a final judgment. Yesterday, James Kreindler, a lead attorney for the plaintiffs, told Asharq Al-Awsat, “We’re preparing our motions for final judgment against Iran and hope to have those submitted within a couple of weeks. We’re going to do them in batches of 50 or 100 at a time, as there is information needed from each family. I expect the total will be over $300 billion.”

These stunning determinations are based on court proceedings dating back over a decade, which in turn relied on evidence that had been accessed by researchers as early as the aftermath of the September 11, 2001 tragedy. As such, the trial raises even more questions than it answers: If there has long been a body of information credible enough to persuade a federal judge to place responsibility for the most devastating terror attack in American history on the Iranian government, then what has been the response of the U.S. government, intelligence community, and successive White Houses to the same set of facts? What is the relationship between these findings on the one hand, and the set of accommodationist policies toward Iran that culminated in the establishment of the Iranian nuclear deal last October on the other? Will the staggering sums demanded by the judge actually be paid by the Iranian government? And between the Obama White House’s conciliatory policies toward Iran on the one hand and a federal judge’s uncompromising stance on the other, what future directions in Iran policy may be expected from Washington?

To answer these questions, Asharq Al-Awsat conducted an extensive investigation, including interviews with senior White House, Defense Department, and State Department officials; lawyers for the September 11 victims; and some of the most trusted experts on Iran policy in Washington.

The Legislation Behind the Ruling — and the Politics Behind the Legislation

What, to begin with, was the basis for an American court to issue rulings against a foreign government and a foreign head of state? Historically, foreign governments have been largely protected from civil action in American courts by the 1976 “Foreign Sovereign Immunities Act” (FSIA). In 1996, Congress passed the “State Sponsored Terrorism Exception,” which allowed for civil suits against terrorist states by their U.S. victims. This exception enabled a number of lawsuits to proceed successfully, but it also had serious shortcomings, which came to a head in 2007: That September, a federal judge determined that the Islamic Republic of Iran and its Ministry of Information and Security should pay $2.6 billion to family members of the victims of the 1983 Beirut Marine barracks bombing that killed 241 American military personnel. But a variety of legal obstacles made it impossible for the victims to attach and execute against Iranian assets in the U.S. In response, in 2008, Congress passed the National Defense Authorization Act for Fiscal Year 2008, which greatly expanded the legal tools which plaintiffs could use to recover damages from Iran or any other state sponsor of terrorism.

But according to Patrick Clawson, one of Washington’s foremost Iran experts and Director of Research at the Washington Institute for Near East Policy, there was also a political context to the legal reforms Congress instituted: the frustration many Americans share at the lack of accountability by terrorist supporting states — particularly Iran — and the limited actions which the U.S. government has taken in response. “The people behind the legislation knew that the Executive Branch of government wasn’t doing much about these matters,” Clawson told Asharq Al-Awsat. “It was a conscious decision to enable some people to single-mindedly concentrate on Iran sponsoring terrorist attacks against Americans, and simply ignore the White House policies against Iran. And that’s what judges do: They are very good at ignoring political issues unrelated to the facts of the case and concentrating on what’s before them.”

This is the context in which New York judge George Daniels made his initial ruling against Iran — in December 2011, ten years after the September 11 tragedy — in the landmark case “Havlish, et al. v. Bin Laden et al.” That case, based on the deaths of 45 of the September 11 victims, ended in a $7 billion default judgment against Iran. The more expansive, March 2016 “Ashton” ruling was the result of the extension of the same factual determinations about Iran to 850 more September 11 victims and the claims of two insurance companies. These, in turn, are but two cases among several dozen that have now been brought to trial in American courts by victims of terrorism against the Iranian government. In all of them, Iran refuses to recognize the legitimacy of the proceedings.

This chain of legal actions and outcomes stands in contrast to the Saudi record in American courts. As readers will recall, the post-September 11 period was also marked by intense American criticism of Saudi Arabia over an attack in which 15 of the 19 hijackers were Saudi nationals, along with Bin Laden himself. Eventually, a few Saudi intellectuals themselves entered the American public discussion to voice outrage at the jihadist strain in their society, calling for reforms in religious education to address the problem. But on the issue of alleged Saudi state participation in the attacks, no American court ruling was ever made against the Saudi government itself: The United States had never designated the Kingdom of Saudi Arabia a “State Sponsor of Terrorism” — meaning that neither the “State Sponsored Terrorism Exception” nor the “National Defense Authorization Act” apply to it. Moreover, by contrast to the Iranian government, which refused to recognize the legitimacy of the American proceedings, Saudi Arabia opted to robustly participate in any lawsuit entered against it in an American court: Its lawyers demanded the same application of the Foreign Sovereign Immunities Act that would be applied to any other nation which the U.S. State Department does not regard as a sponsor of terrorism. Over the 15 years that have passed since September 11, all judges have abided by this principle.

The Evidence Against Iran

Iranian culpability in the 9-11 attacks was argued before the Daniels court largely on the basis of ten individuals who were accepted by the judge as “expert witnesses.” Three were former staff members of the “National Commission on Terrorist Attacks Upon the United States” (also known as the “9-11 Commission”), an independent, bipartisan commission created by congressional legislation and the signature of President George W. Bush in late 2002 to prepare a full and complete account of the circumstances surrounding the September 11, 2001 terrorist attacks.

Two of the witnesses were former CIA case officers. Two others were investigative journalists who had spent years researching Iranian terrorist activities. Among the policy researchers who also testified as experts was the Washington Institute’s Patrick Clawson, who has testified in numerous other court cases involving Iranian terrorism. In addition to the Americans who testified, three Iranians, described as “defectors who had been operatives of the Iranian intelligence services and IRGC,” also presented affidavits. Though their testimony was entered under seal and is therefore inaccessible, it was possible to identify one of the witnesses as Abolghasem Mesbahi. Judge Daniels accepted the attorneys’ representation of Mesbahi as a former Iranian intelligence operative who had testified credibly in other prosecutions of Iranian and Hezbollah terrorists, including the case of the assassination of Iranian Kurdish dissidents at the Mykonos restaurant in Germany in 1992 and the Jewish community center bombing in Argentina in 1994.

The massive amount of evidence assembled, Clawson suggests, could be broken into two categories. The first — which was provided largely by the Iran scholars and the 9-11 Commission members — documented base-line Iranian and Hezbollah support for Al-Qaeda, dating back to the 1990s and continuing for years after the September 2001 tragedy, which amounted to logistical assistance, training, facilitation of transit, and providing shelter to Al-Qaeda operatives. The second category of testimony — provided by the two former CIA operatives, the former Iranian officials who testified secretly, and the investigative journalists — alleged direct and explicit Iranian operational support for the September 11 attacks, as well as other attacks.

“From a legal evidentiary standpoint,” explains Clawson, “it was not even necessary to prove the second category of claims in order to win the case.” Mere proof of providing any meaningful assistance to Al-Qaeda, with or without direct involvement in the September 11 attacks themselves, would have been sufficient to satisfy the definition of “material support” according to the legal statute. “There didn’t have to be a ‘smoking gun,’” Clawson added.

Judge Daniels ultimately validated the attorneys’ decision to introduce both forms of evidence into the record, by affirming all of it in his “Findings of Fact and Conclusions of Law.”

But in the murky world beyond the courthouse, over three successive presidencies, the attempt to comprehensively assess and act on claims and evidence about Iran-Al-Qaeda cooperation has been hindered by shifting political priorities, analytical weaknesses in the intelligence community, interpersonal rivalries, and, ultimately, a single-minded decision by the Obama Administration to pursue a new course with the Tehran regime.

The Iran-Qaeda Connection Under the George W. Bush Administration: Competing Claims, Shifting Priorities

Eight years before September 11 — after the first attack on the World Trade Center by Islamist activists in 1993 — one American researcher became convinced that it was not the mullahs of Tehran but rather Saddam Hussein and the Iraqi government who were pulling the strings behind Al-Qaeda. Laurie Mylroie had held teaching positions at Harvard University and the U.S. Naval War College before joining Bill Clinton’s 1992 presidential campaign as an advisor on Iraq. In a lengthy journal article which became the basis for her 2000 book, Study of Revenge: Saddam Hussein’s Unfinished War Against America, she argued in substance that Al-Qaeda and its affiliates were penetrated by Iraqi intelligence agents, and Saddam was trying to use Al-Qaeda to attack American targets in order to avenge American leadership in the 1990 Gulf War. Mylroie alleged that in addition to the 1993 World Trade Center plot, Saddam Hussein had also ordered the 1995 bombing of the Oklahoma City Federal Building by white supremacist Timothy McVeigh. Following the September 11, 2001 attacks, she robustly advocated for the view that Saddam was behind them as well.

A variety of American Middle East specialists on both sides of the political spectrum assailed Mylroie’s writing as shoddily researched and speculative. According to Middle East scholar Daniel Pipes, “The shock of Saddam Hussein’s invasion of Kuwait left Mylroie with a monomania about the Iraqi dictator that encroached on her judgment and eventually overturned her good sense. After the invasion, she self-hijacked a hitherto-promising career to prove two bizarre assertions: that Saddam Hussein had a hand in virtually every terrorist incident and, conversely, that Islamists and others did not have a part in them.” Peter Bergen, a CNN National Security Analyst who had himself interviewed Osama Bin Laden in 1997, dismissed Mylroie as a “crackpot.”

And yet Mylroie’s views were naturally of interest to elements in the George W. Bush Administration, following the September 11 tragedy, at a time when the possibility of deposing Saddam Hussein militarily was being seriously explored for other reasons.

David Schenker, who served in the Office of the Secretary of Defense as Levant Country Director under George W. Bush, recalls that a proactive vision of a “new Iraq” had crystallized in some quarters of the administration: “There’s a school of thought I’d ascribe to people more sympathetic to the ‘democracy argument,’” he told Asharq Al-Awsat, that was that Iraq was at one point the richest, most powerful, influential states in the region, that under Saddam became the most militant, anti-American, terrorism-supporting state. If you could make a dramatic change in Iraq — from a dictatorship to a democracy — then it could have a profound impact on the region. Otherwise, we could spend decades on incremental democracy-promotion projects and get nowhere and meanwhile we lost more than 3,000 people in a single day that September.” Adherents to this school of thought were by no means friendly toward Iran, which they also regarded as a state sponsor of terrorism. In their eyes, Schenker explained, if Saddam Hussein’s regime was succeeded by a pro-American Iraqi government, the outcome would serve to weaken Iran as well: “[A US-allied Iraq] would have changed the whole strategic architecture of the region in any event, because it wouldn’t have been any longer dual containment. It would have been a US ally sitting on Iran’s border.”

This mindset naturally engendered an appetite for evidence of Saddam’s support for all forms of international terrorism.

Following the 2001 attacks, Laurie Mylroie was paid roughly $75,000 by the Office of Net Assessment, an internal Defense Department think tank, to produce a 300-page study for internal use: “The History of Al-Qaeda.” The monograph artfully fuses fact, inference, and speculation to imply that Saddam and his inner circle were responsible for September 11 — and the popular claims of an authentically transnational jihadist political movement were exaggerated. In the following excerpt, for example, Mylroie extrapolates from the fact that September 11 plotter Khaled Sheikh Muhammad had Baluchi roots:

“The Baluch have no evident motive for these murderous terrorist attacks, save one: the former Iraqi regime of Saddam Hussein had deep and extensive ties with the Baluch on both sides of the Iranian-Pakistani border. Going back to the 1970s, Iraq used the Baluch against the Shi’a government in Tehran, with which Baghdad was long at odds, and Baghdad employed the Baluch extensively during the Iran-Iraq war (1980-1988). Notably, these Baluch–KSM and his extended family–do not appear to be particularly religious.”

As the Bush Administration set out to present its case for war to the American public, it did not allege an Iraqi role in September 11. “The issue wasn’t raised because it was never proved,” Dov Zakheim, former Comptroller of the Pentagon under George W. Bush, told Asharq Al-Awsat. “If anybody had tried to link Iraq to 9-11, I don’t think we would have had any support.” Instead, the Administration focused on advancing the view, shared at the time by the major European intelligence agencies, that Saddam Hussein maintained weapons of mass destruction. Nonetheless, in September 2003, a poll by the Washington Post showed that 7 in 10 Americans (69%) believed that Saddam Hussein was personally responsible for the September 11 attacks — a view that persisted for years thereafter. Some Administration officials at the time also conveyed their belief in the link privately to visiting international diplomats.

In any event, between the indulgence of the Saddam – 9/11 theory and the substantial commitment of American blood and treasure to two simultaneous wars, there naturally developed an institutional bias against evidence of Iranian involvement which might beg the conclusion that the United States is in a state of war with Iran. Adam Garfinkle, who served in the Bush State Department as speechwriter to Secretaries of State Colin Powell and Condoleezza Rice, told Asharq Al-Awsat, “Most Administration principals soon settled on Iraq as the next target after Afghanistan, and any Iran talk would have been an unwanted distraction.”

There were, to be sure, less mainstream voices, supportive of the Administration, who advocated the view that Iran was a greater threat to the United States than Iraq, and should be the primary target of American military action. Perhaps the most prominent among these was Frank Gaffney, Founder and President of the Center for Security Policy. But even Gaffney at the time did not focus his arguments on the allegation that Iran had been responsible for September 11. And more than a decade after the invasion of Iraq, important figures in the former administration maintain that the choice to attack Iraq and not Iran was appropriate. Former Deputy Secretary of Defense Paul Wolfowitz, asked in 2011 to comment in retrospect on the “Iran-first” approach, said, “There are people who say that somehow Iran was the bigger problem; we should have gone after Iran. Iran, I’ve always been skeptical. It’s a much bigger country, a more unified country with all of its problems. But I think Iran’s real vulnerability is political. And what we should have been doing, and failed to do under the Bush Administration, and now even worse under this administration, was to support political opposition to the Iranian regime. I believe that would have put us in a very different situation than we are in today.”

Dov Zakheim, the former Pentagon Comptroller, told Asharq Al-Awsat, “The preoccupation was first with Afghanistan and then Iraq. All Iraq. There was a famous story about how [Israeli Prime Minister Ariel] Sharon told Rumsfeld, ‘You have the wrong country. You should focus on Iran.’ But clearly they didn’t.”

In any case, Garfinkle, like David Schenker, recalls that champions of the Iraq war had initially hoped that challenging Iraq and Iran militarily were not mutually exclusive: “Some [in the Administration] reasoned that if Iraq could be flipped into a U.S. ally that subsequently housed U.S. bases, then pressure on Iran could later on be amped up …” As an illustration of the grounds for hope in this regard, two former Administration officials told Asharq Al-Awsat that the Syrian withdrawal from Lebanon would likely not have happened were it not for the presence of 150,000 American troops in the general vicinity.

Patrick Clawson also noted another factor that may have had the effect of lessening the U.S. Government’s inclination to entertain arguments for a more confrontational stance with Iran: “We badly needed Iranian assistance in closing off escape routes for the Al-Qaeda leadership when we went after the Taleban in Afghanistan,” he recalled. “That was at the time when [U.S. Ambassador] Ryan Crocker had regular meetings with Iranian officials discussing that cooperation. And we had some cooperation. You could say that was a mistake. They should have done more. Fine. The point is, there was a relationship.”

According to witnesses in the Havlish case, the initial years following September 11 were also a period in which evidence of a potential connection between Iran and Al-Qaeda had become available to the U.S. Government but was not being adequately examined. The former CIA case officers Clare Lopez and Bruce Tefft stressed this point in their interviews with Asharq Al-Awsat. It was also the view of the 9-11 Commission, which stated in its concluding report, “After 9-11, Iran and Hezbollah wished to conceal any past evidence of cooperation with Sunni terrorists associated with Al-Qaeda … We believe this topic requires further investigation by the U.S. Government.”

A former Bush Administration official told Asharq Al-Awsat that to his knowledge, no follow-up investigation of Iran-Al-Qaeda links based on the 9-11 Commission recommendations was ever conducted. Another official added his recollection that the CIA had examined allegations of direct Iranian involvement in 9-11 and determined that the evidence was inconclusive.

But as the Iraq war grew bloodier and American soldiers came to be killed in increasing numbers by “Improvised Explosive Devices [IEDs],” it became clear to Administration officials that Iran was perfectly willing to cooperate with local elements in Iraq to target American servicemen and installations. President George W. Bush told a news conference in 2007: “What we do know is that the Quds Force was instrumental in providing these deadly IEDs to networks inside of Iraq. We know that. And we also know that the Quds Force is a part of the Iranian government. That’s a known.” Bush nonetheless added a cautionary note, which had the effect of tempering any suggestion that the United States would retaliate against the Iranian government: “What we don’t know is whether or not the head leaders of Iran ordered the Quds Force to do what they did,” he said.

A forthcoming series in Asharq Al-Awsat will document how the U.S. Government gradually became aware that Iran was partnering with Al-Qaeda in Iraq in the perpetration of attacks on Iraqi, American, and other troops — as well as civilians — in the country. It will also show that a new crop of prosecutions are imminent arising from some of these killings.

But over the course of the Iraq war, several Bush Administration officials were raising questions about Iran-Al-Qaeda connections, at times posing them to the CIA. One former official told us that following conflicting reports on the Iranian government’s holding Al-Qaeda operatives under “house arrest,” he queried the CIA as to what the true nature of this ‘house arrest’ was. “The CIA was not able to explain what it was,” he said, “or what the Al-Qaeda-Iran relationship was.”

The Obama Years and the Road Ahead

President Obama signaled a clear break with the Bush Administration, early on in his first term, in his “Nowruz message” to the “people and leaders of the Islamic Republic of Iran.” It is now well documented that the Administration, nearly since its beginnings, aggressively pursued an accommodation with the Iranian government, culminating in the establishment of the JCPOA last October. President Obama himself has explained his thinking that the nuclear deal is part of a security realignment in the Gulf littoral — and perhaps beyond — that would lead to a new “strategic equilibrium” between “Sunni powers” and Iran.

Naturally, this is not a political environment in which the U.S. Government is interested in reexamining the possibility that Iran played a role in the September 11 attacks.

In the context of an accommodationist White House, Patrick Clawson notes, the wave of civil court suits against the Islamic Republic of Iran has served as a conduit through which U.S. citizens could exercise their own pressure on Iran, regardless of what the President of the United States wants. “The actions by the judiciary would create a basis for harassing the Iranians,” Clawson said, “hopefully getting any money out of them, but at the very least harassing them.”

And indeed, there are indications that at least some Iranian government functionaries do feel a psychological pressure as a result of the lawsuits. On more than one occasion, the subject of the lawsuits has been raised by members of the Iranian “Majlis.” Conveying the feeling that the U.S. legal system might begin to seize billions of dollars in Iranian assets in any number of parts of the world, they have criticized their own leadership for failing to block such measures. They have also called for Iranian trials against the U.S. Government — but of course, as Clawson explains, few are under the illusion that such trials would have international weight.

As of now, among the dockets of American terrorism cases against the Tehran regime, there are a total of roughly $49 billion in outstanding American judgments — with hundreds of billions more likely in coming months, according to the attorney James Kreindler. Victims have received, to date, several hundred million dollars which were released from a fund that had been controlled by the U.S. government, as well as some additional funds from Iran. A current case before the Supreme Court is likely to enable the confiscation of a 36-story Manhattan office tower — 650 Fifth Avenue — which is owned by the Government of Iran and likely worth more than $800 million. A lawsuit against the Central Bank of Iran appears promising which would lead to the recovery of an additional $1.8 billion. But of course, these settlements together are only the beginning of what will be required for the victims’ families to receive their due compensation.

Ahead of the signing of the JCPOA, in August 2015, a group of American terrorism victims filed a lawsuit against Secretary of State John Kerry — also in the Southern District of New York — asking a federal judge to stop the U.S. government from releasing billions of dollars in Iranian assets as part of the Obama administration’s nuclear deal. (The approximately two dozen victims were Americans injured or killed in suicide bombings in and around Israel from 1995 to 2006, and their family members.) Thus far the case has not translated into action.

Looking ahead to the potential of a future comprehensive settlement for all court cases, it appears that there are two potential paths toward a resolution: one conciliatory and collaborative, the other confrontational.

The conciliatory approach, as envisioned by the attorney James Kreindler, is based on the premise that Iran would like to rejoin the “community of nations.” As Kreindler told Asharq Al-Awsat, “Iran will want to get all sanctions lifted and get off the list of state sponsors of terrorism. And just like we did with Libya, Iran will want to clean up all US judgments so it will be free to engage with commerce and oil companies. To me, that will be the real and ultimate resolution of all the Iran claims.”

On the other hand, Clawson notes that new legislative measures may lead to new varieties of further sanctions to be imposed on people who deal with Iran — not only American but also foreign companies. “Congress is interested in imposing sanctions for Iranian actions recently, that would be quite far-reaching restrictions on foreign companies’ access to US financial system if those countries have dealings with Iran. [But] this administration is not interested in that.

Among prominent Presidential candidates today, despite differences in the tone of their rhetoric, Hillary Clinton, Donald Trump, and Bernie Sanders all assert that they would abide by the Iranian nuclear accord provided Iran does the same. Only candidate Ted Cruz maintains that he would “tear up the agreement on day one.” As Asharq Al-Awsat previously reported, the Cruz campaign counts among its Middle East policy advisors Ms. Clare Lopez, the former CIA case officer who gave testimony in the Havlish case. In addition to Lopez, Cruz has sought advice from Frank Gaffney, the advocate for war on Iran during the Bush years. A widely reviled figure in the United States, Gaffney was raised by a CNN journalist on a live televised interview with Ted Cruz on March 2016. Challenged to defend his decision to appoint Gaffney a foreign policy advisor Cruz said, “Frank Gaffney is someone I respect. He is a serious thinker who has been focused on fighting jihadism across the globe. And he’s endured attacks from the left, from the media, because he speaks out against radical Islamic terrorism … Frank has been leading the effort to focus on the threat of an EMP – electromagnetic pulse — which would be a nuclear weapon detonated in the atmosphere that would take down our electrical grid. It could kill tens of millions of Americans. And all Iran would have to do is fire one nuke into the atmosphere. They don’t need to hit anything, they just need to get it above the eastern seaboard, and they could kill tens of millions. That is valuable work focusing on national security.”

Cruz’s comment clearly suggests that his faction of the Republican party remains willing to entertain the proposition that Iran would seek to inflict mass civilian casualties on the United States.