Proving the Details of the 9/11 Terrorist Attacks: The Admissibility of the Kean Commission Findings
Campbell, Richard P., Guilfoyle, Kathleen M., Howe, Christopher R., Defense Counsel Journal
MORE THAN ten years after the terrorist attacks of September 11, 2001, the devastation caused by the attacks remains difficult to comprehend. Nearly 3,000 people perished at the World Trade Center, the Pentagon and a field near the town of Shanksville in rural Pennsylvania. The resulting economic damage was so devastating that in the immediate aftermath of the attacks, Congress moved to stabilize the airline industry by enacting the Air Transportation Safety and System Stabilization Act (ATSSSA). (1) That legislation, signed by President Bush only eleven days after the attacks, sought "[t]o preserve the continued viability of the United States air transportation system." (2) ATSSSA's express purpose was to provide financial assistance to an airline industry potentially threatened with collapse as a result of the terrorist attacks and thereby to protect the American economy against the consequences of that collapse. (3) In addition to providing a $15 billion bailout of the airline industry, ATSSSA established the September 11th Victim Compensation Fund of 2001 ("VCF") to compensate those who were injured of lost family members in the attacks. (4) ATSSSA also vested in the United States District Court for the Southern District of New York "original and exclusive jurisdiction over all actions brought for any claim (including any claim for loss of property, personal injury, of death) resulting from or related to the terrorist-related aircraft crashes of September 11, 2001." (5) Given the tidal wave of litigation filed against various airlines, security firms, airports, and airplane manufacturers following the September 11th attacks, actions involving such claims were consolidated for discovery and other pre-trial proceedings. (6)
To help protect against similar attacks, Congress also enacted the Intelligence Authorization Act for Fiscal Year 2003 (the "Act"), signed into law by the President on November 27, 2002. (7)
The Act provides funding for intelligence-related activities and established an independent, bi-partisan agency called The National Commission on Terrorist Attacks Upon the United States (the "Kean Commission") to investigate the circumstances surrounding the September 11th terrorist attacks. (8) The Act specifically directed the Kean Commission to "examine" and "report" "the facts" and "the causes" to "make a full and complete accounting of the circumstances" surrounding the September 11th terrorist attacks, and to make recommendations designed to guard against future attacks. During its investigation, the Kean Commission published two monographs that provide detailed analyses of subjects covered by the Commission's mandate (9) and seventeen staff statements presented at twelve public hearings. (10) The Commission incorporated portions (but not all) of the monographs and staff statements into the final report ("the Report") issued on July 26, 2004.
In April 2008, the aviation defendants (11) in the consolidated actions litigated in the United States District Court for the Southern District of New York filed a motion seeking an order that the Report, Aviation Monograph, and certain staff statements contain relevant evidence not excluded by the hearsay rule and thus are admissible at trial. Although some findings in the Report and related Kean Commission documents arguably favor the plaintiffs more than the aviation defendants, the plaintiffs opposed the aviation defendants' motion and requested that it be denied in its entirety. On July 16, 2009, the court issued its order denying the aviation defendants' motion without prejudice to resubmission consistent with the court's rulings on the relevance and admissibility of the Report. (12)
This paper discusses the issues underlying the admissibility of the Report, staff statements and monographs. After briefly discussing the scope of the Kean Commission's investigation and the development of the Report, staff statements and monographs, this paper examines the factors governing the admissibility of public records under FRE 803(8)(C) and the Rainey Doctrine and considers whether the Report and related documents satisfy the public records exception to the hearsay rule. …