Legal minds respond to landmark 9/11 civil suit against Rumsfeld, Cheney Stephen C. Webster

Published: Thursday December 18, 2008





Print This Email This April Gallop 'will be very disappointed,' lawyer tells RAW STORY.

April Gallop, whom the Army News Service called a "hero" after she was awarded the Purple Heart for injuries sustained at the Pentagon on Sept. 11, 2001, will not likely be triggering another such response from internal government media.



On behalf of Spc. April Gallop, who served in the Network Infrastructure Services Agency as an administrative specialist, California attorney William Veale on Monday filed a civil suit against former Secretary of Defense Donald Rumsfeld, Vice President Dick Cheney and former US Air Force General Richard Myers, who was acting chairman of the joint chiefs on 9/11.



The suit alleges they engaged in conspiracy to facilitate the terrorist attacks and purposefully failed to warn those inside the Pentagon, contributing to injuries she and her two-month-old son incurred. Additional, unnamed persons with foreknowledge of the attacks are also named.



First news of the suit was carried exclusively by RAW STORY. Full text of the claims may be read here.



"Everything happened so fast," Gallop said in an Oct. 2001 published report. "I remember thinking that we had been bombed."



After rescuing one of her coworkers, the two began searching the smoldering debris that used to be April's office for her two-month-old son Elisha. She pulled him out and escaped the smoke-filled building, out onto the Pentagon's lawn, and collapsed.



Though thankful she survived the event, "I'm still angry at the enemy," she said. "They will pay."



Years later, she's pursuing that payment in the form of a civil suit.



"I remember being so disgusted at the frequency of random drill exercises taking place for us to evacuate the building," Gallop told George Washington blog in a 2006 interview. "It seemed as if they always happened when I had to take care of certain things.



"Yet on September 11th, the day when our lives were threatened, not one alarm."



April sustained a mild brain injury, but still struggles with Post Concussive Syndrome and hearing loss. Her son also suffered a mild brain injury which has since spiraled out into a learning disability.



On the attack, Gallop's recall is somewhat different from the official story. She continued, "I have been misquoted on numerous occasions. That happens when individuals have ulterior motives. But here is my statement for the record.



"I was located at the E ring. From my inside perspective, with no knowledge of what had actually happened on the outside, it did sound like a bomb. And we had to escape the building before the floors, debris etc. collapsed on us.



"And I don't recall at anytime seeing any plane debris. Again, I don't know what plane debris would look like after hitting a building. But I would have recalled unusual looking pieces similar to plane parts."



"What they don't want is for this to go into discovery," said Gallop's attorney, Mr. Veale, speaking to RAW STORY. "If we can make it past their initial motion to dismiss these claims, and we get the power of subpoena, then we've got a real shot at getting to the bottom of this. We've got the law on our side."



Does it have a chance? RAW STORY solicited the opinions of a number of lawyers with prior experience suing the federal government in civil court.



"The 15 page Complaint appears to be the product of a lot of hard research, alleging in meticulous detail an ongoing conspiracy among the named defendants to either cause or allow the attacks to happen and to catch us totally unprepared," said Gerald A. Sterns, Esq., of San Francisco law firm Sterns & Walker. "We have seen conspiracy allegations before and an undercurrent of doubt remains as to just what did happen that day and why? Without question it was the turning point in the up to that time, far from a notable term as president for George Bush, following his controversial ascent to the office less than a year before."



According to the Sterns & Walker Web site, the firm represents survivors of aircraft and other major accidents and catastrophes. The firm "has been involved in almost every major air carrier accident case, and hundreds of other cases involving claims against major defendants," including the United States of America.



"We have already had a precursor of this, which unfortunately for the plaintiff, spells out what will happen to her case. Ex-CIA agent, Valerie Plame, whose cover was deliberately blown by Cheney and probably others at the White House, in retaliation for the unkind remarks her husband made after his investigation concerning the Bush claim that Saddam Hussein had attempted to purchase raw material for a weapon of mass destruction from a country in Africa, filed a damage suit against Cheney and others for destroying her career," said Sterns.



He added: "However we may feel about these individuals, and what impact they had on the United States, we fear [Ms. Gallop] will be very disappointed in trying to address issues or obtain answers through the judicial process."



Sterns' prediction of failure is tempered by attorney Phillip L. Marcus out of Columbia, Maryland, who specializes in intellectual property and copyright law. Marcus professed to RAW STORY an expertise in Bivens vs. Six Unknown Federal Narcotics Agents, a case in which the Supreme Court determined that the government could be sued for the violation of a Constitutional right, even if no federal statute exists to support such action.



"Jurisdiction is the big hurdle for the plaintiff, but there are two routes over the hurdle, the Bivens Doctrine (that where the facts support serious rights violations by federal agents there is a kind of federal common law jurisdiction, else violations of the Bill of Rights could not be remedied), and 28 USC sec. 1331, which is the Tort Claims Act," said Marcus.



"Mr. Veale has made extraordinary allegations. Normally if you simply allege enough facts for jurisdiction the court goes past that defense.



"But with such bizarre facts the judge is going to want to see a little bit of evidence to believe it has Bivens jurisdiction or FTCA jurisdiction, before letting Veale go ahead with what will be massive discovery -- tons of documents, and depositions under oath of Cheney, Rummy and many others, defendants and plain witnesses."



He concludes: "I'd bet [this story] lives at least four or five years, lots of news stories."



The complete text of both attorneys' opinions on the April Gallop suit is below.



####



When is the United States or any of its officers, agents or employees able to be held liable in a court of law? Can the civil judicial system, seeking damages, as opposed to a criminal charge, be used to correct what might be perceived as just not misconduct, but alleged criminal activity on the part of those in our government?



The answers to these questions can be complicated, but it seems clear that one case, discussed below, will not have much chance of success.



The frustrations of many many Americans may well be evident in the suit filed in the federal court for the Eastern District of New York by [April Gallop], who seeks damages against the sitting vice president, Dick Cheney, the ex secretary of defense, Donald Rumsfeld, and others, all arising out of the events of September 11, 2001.



The 15 page Complaint appears to be the product of a lot of hard research, alleging in meticulous detail an ongoing conspiracy among the named defendants to either cause or allow the attacks to happen and to catch us totally unprepared. We have seen conspiracy allegations before and an undercurrent of doubt remains as to just what did happen that day and why? Without question it was the turning point in the up to that time, far from a notable term as president for George Bush, following his controversial ascent to the office less than a year before.



However, although it may be easy to sympathize with some of the criticisms and allegations made against Cheney, Rumsfeld and the others (interesting enough, Bush is not named in the suit), as we look back over the last eight years, and however we may feel about these individuals, and what impact they had on the United States, we fear [Ms. Gallop] will be very disappointed in trying to address issues or obtain answers through the judicial process.



We have already had a precursor of this, which unfortunately for the plaintiff, spells out what will happen to her case. Ex-CIA agent, Valerie Plame. whose cover was deliberately blown by Cheney and probably others at the White House, in retaliation for the unkind remarks her husband made after his investigation concerning the Bush claim that Sadaam Hussein had attempted to purchase raw material for a weapon of mass destruction from a country in Africa, filed a damage suit against Cheney and others for destroying her career.



The court summarily ruled that the case did not lie; political questions such as this are routinely not heard by the courts. The court also ruled there was an across the board immunity for anything the sitting vice president did or did not do while in office. The same would be true, of course, as to any suit one might try to file against Bush, including after he leaves office.



It seems clear here the same rules apply and the same result will obtain. The court will dismiss this case on motion of the defendants, for the same reasons. However one may view Mr. Cheney, described by many as the Prince of Darkness, and worse; his actions while vice president of the United States are protected from judicial review. The sole remedy found in the Constitution to deal with unworthy office holders is impeachment.



This is not to say that suits may not be brought against the government itself. Indeed they can be, and are filed every day on a variety of issues. Our law firm has handled many of these, and with success. The courts have held that the United States starts with an overall immunity, but may waive that and permit suits against it, as Congress dictates.



One common example is the Federal Tort Claims Act, from 1946, which authorizes suit against the United States for damages caused by an act or omission of the government, acting through agents or agencies, if such conduct would have been actionable under the law of the state where the act or omission occurred.



There are some exceptions and some special defense available to the government, principally the Discretionary Function defense, which also shield government employees, right up to and including the president for decisions and actions, turning out in retrospect to be right or wrong, based upon an exercise of that discretion.



That defense has so far shielded the United States from any liability arising out of the Kenya and Tanzania embassy bombings some ten years ago, but the fight goes on.



Gerald A. Sterns, Esq.

Sterns & Walker

www.Trial-Law.com



**



This is not a simple negligence claim. Veale does scatter-shoot the jursidictional issue, in par. 8 of the complaint. You should read about the Bivens case.



Jurisdiction is the big hurdle for the plaintiff, but there are two routes over the hurdle, the Bivens Doctrine (that where the facts support serious rights violations by federal agents there is a kind of federal common law jurisdiction, else violations of the Bill of Rights could not be remedied), and 28 USC sec. 1331, which is the Tort Claims Act.



Mr. Veale has made extraordinary allegations. Normally if you simply allege enough facts for jurisdiction the court goes past that defense.



But with such bizarre facts the judge is going to want to see a little bit of evidence to believe it has Bivens jurisdiction or FTCA jurisdiction, before letting Veale go ahead with what will be massive discovery -- tons of documents, and depositions under oath of Cheney, Rummy and many others, defendants and plain witnesses.



This has a little bit of the feel of the Hatfill case, the guy who was "of interest" in anthrax envelopes, and then wasn't. But different district. Veale has filed in the SDNY while Hatfill was in the EDVa, Alexandria.



I'd bet [this story] lives at least four or five years, lots of news stories.



--Philip L. Marcus, Esq.

Business Negotiations & Agreements & Intellectual Property

www.negotiationpro.com







