WASHINGTON – Lawyers here are hinting that there will be many more lawsuits, some rather novel, filed by families of the Sept. 11 victims in the coming months, in spite of the liability-limiting federal Victims Compensation Fund that President Bush signed into law within 11 days of the terrorist attacks – at the behest, incidentally, of Dallas pal Don Carty of American Airlines and his chief lobbyist, Linda Daschle.
Such litigation is inevitable in the wake of some 2,800 deaths and 1,000 injuries, not to mention an estimated $100 billion in property damage.
But here’s the latest twist: There may be other defendants besides airlines. Foreign defendants.
I’ll return to that in a bit.
First, let’s look at why suits against the airlines aren’t likely to pan out.
I know, federal airport-security agents say the Transportation Department and airlines are hiding the fact that at least one gun, knives larger than box-cutters and other prohibited items, such as pepper spray, got through screening checkpoints on Sept. 11. And, yes, the airlines were in charge of security at their terminals at Logan, Newark and Dulles, and would appear to be liable for letting the Islamic hijackers on planes with those alleged items.
But to prove American and United Airlines were responsible for the deaths of passengers on the four crashed flights, plaintiffs have to prove negligence.
And to prove the carriers were negligent, lawyers point out, they have to prove they knew the terrorists were a threat to the flight, yet allowed them to board anyway.
The fact that the hijackers raised enough suspicion for the airlines’ computerized passenger profiling system to single them out for extra baggage screening shows airline officials had some prior knowledge of a possible threat. And that could help the plaintiffs’ case.
The airlines never followed up by questioning the flagged passengers before they were allowed to board. No human profiling was conducted. Bottom line: They weren’t stopped, even though there was cause for suspicion.
It’s still not known which hijackers were selected by the Computer-Assisted Passenger Profiling System, or CAPPS, which flags passengers who pay cash or buy one-way tickets (among other things). But hijackers who did one or the other, or both, include: Mohand Alshehri (Flight 175), Fayez Ahmed (175), Satam al-Saqami (11), Khalid al-Mihdhar (77), Mahed Moqed (77), Ahmed al-Ghamdi (175) and Hamza al-Ghamdi (175).
Four of the five hijackers on United Flight 175 out of Logan, the second plane to ram into the World Trade Center, bought one-way tickets. If they were all CAPPS selectees, United plainly dropped the security ball. All were young and male with Middle-Eastern names, yet none were interrogated in any way as to why they were all traveling to Los Angeles with no return tickets.
Still, United could argue, successfully, that the Federal Aviation Administration, which regulated airport security, discouraged such human profiling. (I know what you’re thinking. But trial lawyers say that, for some obscure technical reasons I don’t fully understand, suing the U.S. government in this case would be a non-starter.)
Plaintiffs suing on behalf of American Flight 11 victims may have a unique edge.
They have a possible CAPPS selectee in al-Saqami, who paid for his ticket with cash. But they also have evidence – a high-level FAA internal report – that a banned weapon, a gun, got on the plane out of Logan, the first to hit the WTC, and was even fired – by al-Saqami, who allegedly shot and killed passenger Danny Lewin, as WorldNetDaily first reported.
The FAA and American both deny, however, that the information in the report is accurate.
Also, Flight 11 plaintiffs may be able to point to another banned item – pepper spray. The FBI found it in one of Flight 11 lead hijacker Mohamed Atta’s bags, which did not make it aboard Flight 11. Was it a back-up can to one he got on the plane?
Far too speculative, American would argue. (There’s better evidence of pepper spray on Flight 175, actually.)
But here’s something American can’t deny: Its terminal at Logan – Terminal B – has had a horrendous security record, and it’s well-documented, even by the FAA.
Those who sue the airlines for negligence in deaths that occurred on the ground have an even tougher legal battle.
The husband who’s suing American for the death of his wife – a highly paid portfolio manager killed in the tower struck by Flight 11 – really has his work cut out for him.
He wants $50 million just in actual damages. Even if he wins, which will be twice as hard to do, he won’t likely get the dough, lawyers say.
To win, he has to clear not one, but two negligence hurdles.
He has to prove American knew the hijackers were dangerous when they let them on Flight 11, for starters. Then he has to prove it also knew they were going to ram the plane into the tower.
Say, by miracle, he wins. He’ll still be running up against the airline-liability limits set by Congress. Consensus among lawyers is that it amounts to about $1.5 billion per flight, which is about what the carriers’ insurance covers.
So that’s $3 billion total coverage for the WTC part of the attacks. And that will likely be chewed up with property-damage claims. New York victims, you see, will be competing with claims for losses from a slew of property owners.
The New York husband could challenge the constitutionality of the liability caps. But that could be argued all the way up to the Supreme Court and take years.
Even if the law were struck down, American could simply declare bankruptcy to avoid paying any big awards.
Pentagon plaintiffs, on the other hand, won’t be running up against liability limits, since there are fewer property-damage claims and victims to compete with in that disaster.
But the best target, and deepest pockets, might be overseas.
Some lawyers representing families of 9-11 victims are pursuing litigation against the Saudi royal family, sources tell me. Whether they’ll file or not remains to be seen.
But they might have an intriguing case.
It’s well-known that 15 of the 19 hijackers came from Saudi, also home to the mastermind of the Sept. 11 plot, Osama bin Laden.
Of course, just because some of the hijackers came from wealthy and connected Saudi families doesn’t mean the government knew or condoned their terrorism plans.
But federal authorities have been investigating whether the Saar Foundation, which is connected to the Saudi royal family, has been laundering money to Islamic terrorist groups through U.S.-based Muslim charities.
What did the Saudi royal family know, and when did it know it?
Making a case for Saudi liability in the Sept. 11 murders, of course, would rely heavily on the ongoing federal criminal investigation, which would be dicey.
And even if plaintiffs could prove Saudi negligence, good luck getting the royal family to pay up. The courts would have to order the feds to seize their U.S. assets, which would cause untold political and diplomatic turmoil.
It’s a case that probably would never go the distance, but I’d still pay for tickets to see a gutsy lawyer try to argue it in court.