Homeland Security

The Nolan Law Group in Chicago filed the first wrongful death case against the airlines in December and is currently waiting for approval to file five more.

Neither Nolan nor Baum, Hedlund have set figures for damages sought. But Lorna Brett, public affairs official at Nolan, said, “Seven figures is not unusual, whether the case gets settled or sees a jury.”

The families say they are bringing the lawsuits to get to the bottom of the intelligence and security failures that led to Sept. 11. They say that money isn’t the issue, although some of them also claim that the Victims’ Compensation Fund set up by the Department of Justice pays much less than advertised.

To bring the suits, the plaintiffs had to start by opting out of the fund, which was created on Sept. 22 and offers as much as $1.85 million to families afflicted by Sept. 11 tragedies. Those who choose the fund waive their rights to bring lawsuits against American firms and government agencies. (Foreign nationals may still be sued by those who have accepted money from the fund.) Of the 2,823 people eligible for the fund, more than 500 have chosen to accept payments, according to the Department of Justice.

“I thought I’d go for the fund at first. I was thankful for it,” said Julie Sweeney, 29, whose husband, Brian, died aboard United Airlines flight 175 out of Logan International Airport in Boston. “But the more I learned about it, the more angry I became. I think it is there to tempt people to move on with their lives, tax free, so they won’t ever sue. I call it a government buyout. It screamed ‘coverup.’” Sweeney, from Massachusetts, filed her suit on March 6 after spending time researching airport security on the Internet and meeting with Schiavo.

Lance Koutny, also of Massachusetts, says he believes his mother-in-law had too much insurance to allow his family to qualify for even the $250,000 the fund claims is its minimum payout. (The fund’s payouts can be adjusted based on financial criteria like insurance.) “I don’t believe that we qualify for money from the fund,” he says. Koutney’s wife, Maria, lost her 53-year-old mother, Marie Pappalardo, on United flight 175. “Marie had significant life and travel insurance. My wife doesn’t care about the money. She wants to know what happened on Sept 11.” Koutny contacted Schiavo and filed suit against the airline in January.

Both law firms say they recommend that families with immediate financial needs accept the U.S. payment.

The first stage of the legal process — the collecting of evidence — has already begun. During a conference call in late April, presiding Judge Alvin K. Hellerstein of the Southern District Court in Manhattan told Donald J. Nolan, aviation attorney at the Nolan Law Group, he could proceed with discovery, a legal term for requesting information such as interoffice memos and subpoenas. Nolan filed discovery requests with United Airlines. Among the information sought was the following:

All ticketing, baggage and other travel documents related to Marwan Al-Shehhi, Fayez Ahmed, Hamza Alghamdi, Ahmed Alghamdi and Mohald Alshehri, the hijackers aboard United flight 175; a complete passenger list; the FAA-approved Air Carrier Security Plan for Logan International; any and all security directives received by the airlines from Jan 1, 2001, to Sept 11, 2001; information about liability insurance policy; and records of aircraft security inspections.

On May 3, the airline’s law firms, Quirk and Bakalor and Mayer, Brown, Rowe & Maw, replied to Judge Hellerstein that the request involved “sensitive security information” and that only the newly formed Transportation Security Administration (TSA), which took over some airport security issues as of Feb. 17, could release it. It asked the court to obtain the views of the TSA before going forward with discovery.

“They are claiming secrecy,” said Nolan. “They say they did everything the FAA told them to do with regards to security. But these secrets can’t be the basis for withholding evidence from us.”

“My guess is that the TSA is going to sit with the judge and say this is top secret information and then it will be up to the judge to decide,” said Lorna Brett, public affairs official at Nolan. “If the judge disagrees with them, we get our discovery and it becomes part of the court record. If the judge agrees it is sensitive information and can’t be handed over, then we have to file a motion against that call. Let’s put it this way, this is going to be a long battle.”

The airlines have denied that they were negligent and said they did what the FAA told them to do. Calls to their lawyers were not returned.

“I want answers. The answers go way beyond the airlines,” said Ellen Mariani of New Hampshire, a Nolan client who lost her husband, Louis Neil Mariani, on United flight 175. “You can’t keep covering this up. What did the FAA tell United?”

According to a number of FAA “Red Team” field officers, the staff personnel responsible for covert inspection of airport security, the FAA was ignoring warnings left and right. “The FAA could have easily taken measures to secure airports, given what they knew about lax security in some of the major hubs across the country, and they did nothing,” said Steve Elson, a Red Team agent from 1992 to 1995 and security inspector at Houston International Airport until February 1999. “The same thing goes with the FBI. No one listened to the field agents. I call that wanton criminal negligence.”

The FAA, various government agencies and Congress were warned about the potential for suicide hijackings numerous times in the past few years.

In 1993, the Pentagon commissioned a report called “Terror 2000″ by Marvin Cetron, president of Forecasting International, a think tank in Virginia. It was sent to the State Department, the FBI, the FAA and the Pentagon. “Anybody who was anybody was involved in that report — the CIA, the KGB, the [Israeli] Mossad — and we briefed the Pentagon and told them that a suicide hijacker could easily slam into the Pentagon,” Cetron said. “They were interested, but not convinced.”

On Sept. 12, 1994, a small private plane owned by Frank Eugene Corder crashed into a White House wall.

Also in 1998, Dale Watson of the FBI’s International Terrorism Section of the National Security Division reported to two congressional committees about terrorists in the U.S. He talked about “Operation Bojinka,” a terrorist plot to plant bombs on “numerous U.S. air carriers in a simultaneous operation.” This was the second time they had heard about Bojinka; the first time was in 1995. To this day, cargo is considered a very small security operation for the FAA. But Watson said in his statement that the FBI was better equipped to deal with international terrorism, given the lessons learned from the first World Trade Center bombing in 1993.

In 1999, a report to the FAA by the Library of Congress warned that al-Qaida operatives could hijack a commercial airliner.

In April 2001, Boston’s Fox News Channel 25 reported on Logan’s security woes. Brian Sullivan, a risk-management specialist for the FAA in Boston, said he sent copies to Sen. John Kerry, D-Mass., on May 7, adding that “multiple aircraft could be taken down by determined terrorists.”

From January 2001 to August 2001, the FAA sent out warnings to the airlines but, according to Sullivan, who left the agency during this period, did not instruct the airlines to act. “When the FAA says that they have had no specifics about terrorist threats, they are lying bastards,” said Sullivan. “These are legitimate threats that could have been carried out because of the vulnerability of the system. We made the FAA aware of this — we did everything we could. When I saw that the planes that hit the towers came out of Boston I wanted to throw up.”

Whether the above warnings and events, combined with the 9/11 terrorist attacks, add up to actionable negligence is a difficult question. (The law firms are concentrating on the airlines and the FAA because it is extremely difficult to sue other branches of the federal government, such as the FBI.) The unprecedented nature of the 9/11 attacks might seem to make the litigants’ task harder, since the defendants can argue that they could not have been expected to anticipate or take action against hijackings carried out by groups of men who then crashed the planes. But the principle of using private litigation to seek redress for negligence is well established. “The airlines assume the duty to monitor and screen passengers, and if they didn’t do that properly and it leads to damages, then that’s when they are legally negligent,” said Mark J. Conlin, an attorney at Conlin Maloney & Miller in Spokane, Wash. Conlin is handling a case against American Airlines flight 587, which exploded en route to the Dominican Republic on Nov. 12, 2001.

Only 25 percent of aviation crash cases eventually see a jury, Conlin attests.

The airlines and their security companies are responsible for passenger safety once they pass the security scanners. The FAA is only responsible for supplying the airlines with security warnings and recommendations according to its regulations, which are mostly confidential.

“The negligence of the airlines was clear from the get-go,” said Schiavo. “But if they received specific warnings from the FAA and did nothing about it, then we go right off the simple negligence charts and into egregious negligence, which is knowing the vulnerability and the threat and doing nothing.”

But Red Team whistleblowers, past and present, say that the airlines are not the only culprits. Senior FAA managers who knew about the security failures from field agents did little, if anything, to improve airport security, they say. And according to Sullivan, several high-ranking officials on whose watch 9/11 took place were promoted, including William J. Gripper Jr., formerly in charge of New England airport security for the FAA, and Mary Carol Turano, former FAA manager of the Boston Civil Aviation Security Field Office at Logan.

“Here are the chief architects of the federal insecurity at Logan and instead of holding them accountable, they get moved up a notch,” Sullivan said. In tests at Logan, Sullivan reported that on more than one occasion he was able to get through the metal detection systems with knives hidden in money pouches. When a security inspector waved the wand over his clothes, they found his belt to be responsible for the metal detection and waved him to the boarding area.

Despite the evidence suggesting FAA shortcomings, successfully suing the agency will not be easy. The government cannot be sued based on policy decisions. So if field inspections never warranted a policy change, then the FAA cannot be held accountable. But if the FAA was aware of airport or airline security lapses and failed to inform the offenders of the problems, it would be liable.

“These ‘gotcha’ reports are wonderful evidence because the FAA is responsible to file a warning with the airlines,” said Schiavo. “If these security violations were not passed on to the airlines, the FAA is negligent. That is what we are looking for right now.”

Stephen Gale, a professor at the University of Pennsylvania and counterterrorism expert, doesn’t think the airlines could reasonably have been expected to prevent 9-11, considering the fundamentally flawed system they’re operating in. In 1998, Gale helped the General Accounting Office with a report on airline security and later briefed FAA managers about suicide hijackers. “The FAA’s response to me was that you can’t protect yourself from a meteorite,” Gale said. “These lawsuits want to find a culprit, but no single airline could have protected against Sept. 11. The system is full of holes to this day. If you want a secure system, we’d have to start by looking at the best model out there, El-Al of Israel, and I don’t think airlines would want to put up with that. Our system is enormous and we can’t have airlines going around profiling people, but that’s what El-Al does at times and there’s no hijackings.”

Sen. Kerry, a member of the subcommittee on international operations and terrorism and former member of the Senate Intelligence Committee, says that information overload and cumbersome bureaucracies could have been the reason the federal agencies were unable to connect the dots. “Could turf battles and arcane inner-agency adherence to protocol have caused information to be lost in the bureaucracy? Definitely. Could simple, honest and understandable mistakes have caused valuable intelligence to be overlooked? Absolutely.”

Even if the agencies responsible for airport security and counterterrorism intelligence had utilized the information provided by their field agents, Kerry said, it is hard to say whether the terrorists’ plot could have been prevented. “We don’t know. And there are people obsessed with secrecy who are preventing us from knowing and learning,” he said. (It was unclear whether Kerry was referring to the airlines, the FAA, federal intelligence agencies, the Bush administration or all of the above.) “We have no information on which to make our best judgments today.”

On June 11, family survivors of Sept. 11 will rally in Washington to call for an official investigation of what led to that fateful day. Sens. Joseph Leiberman, D-Conn., and John McCain, R-Ariz., proposed a bill on Dec. 20 to investigate the security and intelligence failures leading up to the 21st century’s Day of Infamy. “An independent commission makes sense,” said plaintiff Mariani. “Especially for people who chose to go into the fund. They’ll get some answers.”

Skeptics doubt much information will come even from an independent commission inquiry. Proponents of an independent commission expect that the discoveries won’t lead to the hanging of any one person or agency, but are likely to create policy changes within the FAA, FBI and possibly other bodies of government. Whether or not a commission sees the light of day, claimants still want to take their case to trial.

“I’m in this case for the long haul,” said Catherine Stefani of California, who lost her daughter Nicole on United flight 93. “I don’t want to settle this out of court. I want answers. I want to know how these guys got through security with box cutters. I want to know about the people involved in the Venice, Fla., flight school,” she said of the school attended by Mohammed Atta. Stefani is traveling to Hawaii for Independence Day. Half seriously, she said that she would feel safer on the island than on the mainland during the Fourth of July.

“My daughter would not have flown that day if she heard warnings like we’re hearing now,” she said.