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Sitting at a table in a hotel conference room in Portland, Maine, the Chicago personal injury attorney Robert Clifford studied the man who had once famously—or infamously—stared into the eyes of the devil.
On this day in November 2006, Clifford was deposing Michael Touhey, a former US Airways ticket taker who had checked in Mohamed Atta and a second al-Qaeda terrorist in the early morning of September 11, 2001. Hours later, Atta piloted a connecting flight into the World Trade Center. Questioned by Clifford, Touhey recounted how the two terrorists approached his counter in a rush to catch the 6 a.m. flight to Boston. The ticket agent recalled having a bad feeling. Atta had the eyes of a killer—the devil—Touhey said. And there were other red flags: The two men arrived just minutes before departure, and they had $2,500 one-way first-class tickets, though business travelers typically fly roundtrip.
A 37-year airline veteran, Touhey insisted that he wanted to stop the two from boarding, but he did nothing. He told Clifford that he convinced himself that these were just harried businessmen, not terrorists, and singling them out would have been inappropriate.
Touhey said he later learned that terrorism warnings had been conveyed to the highest levels of government and to the airlines and their security providers. No one, however, had instructed him to be more vigilant. Had he been alerted, he told Clifford, he would have acted differently—notifying security and ordering a search of the men’s carryon luggage. Agents might have found suspicious items, including a hand-held electronic flight computer and a suicide note. The attacks, Touhey concluded, could have—should have—been prevented.
Clifford knew that this testimony could be useful evidence in the complicated insurance lawsuit that he was leading against the airlines and the security firms that screened the hijackers. Even though after 9/11 Touhey had hit the talk-show circuit to tell his story, Clifford needed him to repeat it under oath. Though not necessarily a smoking gun, Touhey’s testimony could send a strong message to the jury: The defendants might have prevented the hijackers from boarding the planes and thus stopped the attacks before they started.
But because of constant objections by the defense lawyers, Touhey’s deposition turned into a halting exercise that Clifford worried would be ineffective in court. And because of a legal complication, he couldn’t subpoena Touhey to appear in person at the actual trial. By law, all 9/11-related civil cases had to be filed in Manhattan, in the U.S. District Court for the Southern District of New York, and by long-standing court rules, subpoenas could be issued only to someone living within that judicial district or within 100 miles of the courthouse. “The lawyers for the defense knew that,” says Clifford. “No question, it was part of their strategy.”
Clifford knew he had one choice: He had to get the law changed. Armed with some legal research, he called a friend—Joe Biden, then still in the Senate—to get the legislative ball rolling. Clifford also spoke to other influential politicians he calls friends: Dick Durbin, Barack Obama, Rahm Emanuel, and Patrick Leahy, a senator from Vermont and the chairman of the influential Judiciary Committee. Before long, Biden’s office drafted a bill that amended federal law to give 9/11 litigants—both plaintiffs and defendants—the ability to serve subpoenas nationwide. It sailed though the House and Senate before the airline lobby could block it. “I just kept it real quiet,” recalls Clifford. “I knew that if the airline industry found out about it, they’d do everything they could to kill it.” President Bush signed the measure into law on November 8, 2007.
The revised law turned out to be “a big game changer” in the case, according to Clifford. “The defense was operating on the premise that we, the claimants, could never effectively put a trial on in front of a jury because of the [subpoena] handicap. But that handicap was removed, and they knew the playing field was now level.”
Even the lawyers for the defense—who aren’t so quick to acknowledge the broadened subpoena power as a turning point—admit that Clifford’s move was a clever ploy. “It was nice strategy on Bob’s part,” says one attorney for the defense, who requested anonymity because he did not have his client’s permission to discuss the case. “But ultimately, the government witnesses who testified were extremely favorable to the defendants and hurt the plaintiffs’ case tremendously.”
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Photograph: Katrina Wittkamp; Photo Assistant: Emily Gillott
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