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Clifford compared airport surveillance video of the 9/11 hijackers (above) with a training video showing proper screening procedures. If you were to watch the two videos side by side, he says, “you’d puke.”The lawsuit proceeded—slowly. For years, Clifford’s team was stymied because the defendants—and the government—were unwilling to turn over documents as part of discovery, saying that the material was “security-sensitive information,” or SSI. “The airlines had even argued that some of the 9/11 Commission report was SSI, even though it had been translated into six, seven languages and published all around the world,” recalls Jim Warden, of the Kansas City firm Warden Grier, another lead lawyer on the case.
Clifford was denied a copy of surveillance footage taken at the security checkpoint at Dulles Airport on the morning of September 11th that showed one of the terrorists being screened with a hand-held metal detector. In fact, the video had already been shown on TV news programs. No matter, the Justice Department said, the tape was SSI. Clifford had wanted to show the clip on a split screen with footage from a security company’s training video that demonstrated the proper slow, deliberate process for screening passengers with hand-held wands. In the Dulles footage, according to Clifford, the security agents used hurried, herky-jerky motions. “If you saw the training film and put it next to the [footage of the] terrorists being wanded at Dulles, you’d puke,” he says.
By coincidence, at the same time Clifford was battling for access to SSI materials, the trial of Zacarias Moussaoui, the so-called 20th hijacker, had just started in Virginia. Clifford sent several paralegals from his firm to monitor the proceedings. One day, he recalls, a paralegal phoned. “You’re not going to believe what’s going on,” he told Clifford. “The tape that [the government] is telling you is SSI, they just played it on the TV screens here.”
Clifford went to Judge Hellerstein. “I argued that what’s public in Virginia cannot be a national secret in New York,” says Clifford. “And Judge Hellerstein agreed. The next thing you know, the government says, ‘Okay, we’ll approve it.’”
The Dulles video was just the tip of the iceberg. From then on, the plaintiffs got access to loads of SSI materials. Clifford—and a few other designees who were granted special security clearance—could go to an unmarked building with no address near the courthouse in Manhattan and peruse SSI documents. “That was huge, because for years we were stuck,” says Badger. “Once we got past the SSI issue because of Bob’s work, we were able to conduct discovery, and discovery is key.”
The Clifford team’s intelligence-gathering operation turned up mountains of materials—literally millions of documents from the airlines, security companies, and the government—that helped give new detail to the security lapses that may have allowed the attacks to occur. “We spent an enormous amount of time looking into checkpoint security—how the people employed at the security companies were trained, how they were briefed on what to look out for, how much rigor was put into keeping them alert and vigilant,” says Clifford.
The materials remain largely confidential. But Clifford says his side was prepared to prove that, prior to 9/11, the airlines and security companies essentially ignored the growing terrorist threats and tried to provide security on the cheap.
Again, not true, says the defense. The airlines and their security companies followed all of the government-mandated security procedures that were in place at the time. As the defense put it in one of their briefs: “Federal law assigned to the FAA and other federal agencies, not to the Aviation Defendants, the responsibility for assessing the threat of terrorism to civil aviation and for determining appropriate countermeasures.” In other words, they were doing as much as they were told to do.
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With the large number of litigants, lawyers, and philosophies thrown into the mix, the subrogation case moved at a glacial pace. Part of Clifford’s role was to manage the 20-plus attorneys on his side, many of whom—Clifford included—have puffy egos. “It was hard to fit all the egos in, say, the island of Manhattan,” says Gregory Joseph, a veteran New York litigator whom Clifford brought on as his co-counsel.
Meanwhile, the defense dug in its heels. The airlines felt strongly that they were 9/11 victims, too. They had lost planes, they had lost employees, and they had lost millions of dollars from air travel disruptions. Still, at a hearing in December 2006, Desmond Barry, the lead defense counsel, told the judge that although the defendants weren’t to blame for what had happened, they were ready to settle the wrongful death cases. “For obvious reasons, it’s the right thing to do,” he said. But Barry argued that the subrogation litigation, the insurance cases headed by Clifford, was insulting, even unpatriotic: “To have the property cases pending against these defendants resulting from an attack against the United States of America, I must tell you, sticks right in the craw of [the airlines and their insurers]. And . . . they are not going to settle these cases.”
Led by Barry, a partner at Condon & Forsyth in New York, the defense lawyers fought Clifford’s side on almost every point of law. “This case was a war,” recalls Joseph. “Fortunately for us, none of the knockout punches the defense tried to land hit.”
On the other hand, the plaintiffs thought that their two big punches—winning access to the security-sensitive materials and, soon afterward, getting nationwide subpoena powers—had landed. With the limits removed on subpoenas, Clifford ended up deposing 180 witnesses from all over the world—including airline and security personnel, corporate executives, and government safety experts. He issued his first subpoena to James Woods, the actor. A month before the attacks, Woods had flown from Boston to Los Angeles, sitting in first class with four Middle Eastern men, since identified as 9/11 hijackers. Clifford says that, by Woods’s account, the men never spoke—only whispered—during the six-hour flight, and they didn’t eat, drink, or sleep. Alarmed by their strange behavior, Woods told a flight attendant, the pilots, and, later, the authorities about his suspicions. Turns out, the flight was a practice run for September 11th. Subpoenaing the famous actor first, explains Clifford, was a way to catch the defense’s attention: “It was a message to the other side, saying, ‘Game on. Get ready, we’re coming.’”
But the defense was not ready to concede a thing. Despite the gap between the two sides, Judge Hellerstein vigorously pushed the litigants to the bargaining table. He asked the parties to deal with damages—the billions of dollars in dispute—before confronting the liability issues, in the hope, he said, that the sides could use the figures as a road map toward settlement. Hellerstein also appointed John Martin, a respected former federal judge, to mediate the proceedings. In November 2009, the mediation talks opened, initiating a process that Clifford describes as “slow and grinding.” Badger says that when he vented to Clifford about the pace, the Chicago lawyer answered with a catch phrase from the old TV show Kung Fu: “Patience, young grasshopper.”
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Photograph: AP Photo/APTN