Proving the details of the 9/11 terrorist attacks: the admissibility of the Kean Commission findings.

• Author: Campbell, Richard P.
• Position: Former New Jersey Governor Thomas H. Kean

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. Finally, this paper analyzes the court's July 16, 2009 Order and Opinion and concludes that the court should have found the Kean Commission Report and its accompanying documents to be admissible evidence under Rule 803(8)(C). (13)

1. Background

   Chaired by Thomas H. Kean, (14) former governor of New Jersey and, until July 2005, the president of Drew University, the Kean Commission reviewed more than 2 million documents, including classified national security documents containing Sensitive Security Information ("SSI"), interviewed more than thousand individuals in several countries, and took live testimony from many public officials and numerous experts from business and academia at open hearings. Initially, Congress allotted the Kean Commission just eighteen months, or until the end of May 2004, to complete its investigation into the 2001 terrorist attacks and to issue its report. (15) However, in February 2004, the Commission requested and received from Congress a sixty-day extension to complete its work and to issue its Report on July 26, 2004. Nearly eighty full time staff members and contractors divided into nine teams conducted the Kean Commission's core investigation. Each team organized its work around one of nine areas of inquiry: aviation, al Qaeda, intelligence, counter-terrorism, terrorist financing, immigration, law enforcement, immediate response to the attack and the White House. (16) The teams recorded the facts gathered during their inquiries in monographs. The monographs (created in iterative drafts) served as the basis for the Kean Commission's staff statements, delivered at several of the public hearings and ultimately incorporated into the Kean Commission's lengthy Report. (17)

2. Admissibility Under the Federal Rules of Evidence

   1. FRE 803(8)(C) and the Hearsay Exception for Public Records

      Relevance is the lynchpin of admissibility. "Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" (18) is relevant and "admissible, except as otherwise provided ... by these rules." (19) As the Second Circuit has noted, the "standard of relevance established by the Federal Rules of Evidence is not high." (20) Doubts as to whether proffered evidence is admissible should be resolved in favor of admissibility. (21)

      Even if relevant, the Kean Commission documents still constitute hearsay and are inadmissible absent some exception to the hearsay rule. FRE 803(8)(C), the public record exception, is central to the determination of the admissibility of the Kean Commission documents. Rule 803(8)(C) provides an exception to the hearsay rule for reports prepared by public officials that set forth factual findings resulting from an investigation authorized by law. (22) Official reports fall within an exception to the hearsay rule due to a presumption that public agents act conscientiously and have reasonably adequate education, training, and experience in their disciplines that allows them reliably to draw appropriate conclusions. (23) Under Rule 803(8), a party opposing the use of such an investigatory report has the burden of proving that the report is untrustworthy. The types of governmental documents admitted pursuant to Rule 803(8)(C) have included: accident reports prepared by specialized government agencies; reports issued by Congressional committees and specially convened task forces; safety studies on various products; diagnostic studies relating to issues of public health; administrative findings on issues of discrimination; police reports; investigative findings relating to official misconduct; and many other kinds of more generic public records. (24)

      1. The Rainey Doctrine

         Prior to 1988, federal courts faced with interpreting FRE 803(8)(C) disagreed about the meaning of the term "factual findings" because the rule does not define the term. A majority of the circuits applied an expansive interpretation of Rule 803(8)(C) on the ground that opinions and conclusions are admissible unless they are untrustworthy. (25) A minority of the circuits adopted a more narrow interpretation of Rule 803(8)(C) and held that opinions and conclusions are inadmissible, reasoning that Congress intended to support the reliability of facts found by public employees and that opinions are inadmissible because they are ordinarily less reliable. (26)

         The Supreme Court resolved this long-standing split among the federal courts concerning the admissibility of conclusions and opinions contained in investigative reports in the seminal case of Beech Aircraft Corp. v. Rainey. (27) In Rainey, a Navy flight instructor and her student pilot died during a training exercise when their aircraft crashed shortly after takeoff. (28) After the accident, the Navy conducted an investigation and issued a report. The report concluded that while the cause of the accident was nearly impossible to determine, the most probable cause of the accident was pilot error. (29)

         The surviving spouses of the pilot and student subsequently brought a products liability action in the United States District Court for the Northern District of Florida against the companies that manufactured and serviced the aircraft. Prior to trial, the district court judge ruled that several opinions in the Navy report were admissible. (30) The jury returned a verdict in favor of the defendants, and the plaintiffs appealed. The Eleventh Circuit reversed the lower court, holding that the opinions and conclusions contained in the Navy report were inadmissible under Rule 803(8)(C). (31) The Supreme Court granted certiorari and reversed the Eleventh Circuit, holding that Rule 803(8)(C) extends beyond the facts to include...