Flaws in the Citizen’s 9/11 Commission Campaign by Erik Larson

A new investigation of 9/11 is needed, as all investigations so far have been superficial or corrupted, and have failed to meaningfully address significant issues. However, the Commission proposed by the Citizens 9/11 Commission Campaign will be unable to meaningfully address these issues, and there are significant problems with the Campaign itself; this essay will address three. First, state authority will be of little value in a 9/11 investigation due to the ‘sovereign immunity’ of the US federal government. Second, the Campaign and proposed Commission are not structured in a way that makes them accountable to the public; mechanisms are not built in to ensure the public has adequate oversight of the course of investigation, the use of funds and those entrusted with responsibility for these things — short of passing another ballot initiative, or petitioning their state legislature to act. Finally, the Campaign has made inaccurate and misleading representations: The proposed Campaign promotes itself as a way to circumvent the federal government’s failure to adequately investigate 9/11, but state-level authority does not meaningfully provide a way to do this. And, despite rhetoric to the contrary, the Campaign and the Commission do not truly represent direct democracy, as the Campaign Steering Committee and Board of Directors are self-selected and the commissioners would by chosen by them, not by the people. The first two points will be addressed in separate sections below, and the third point will be addressed in both sections.

I. State authority will be of little value in a 9/11 investigation, and the Campaign has made inaccurate and misleading representations concerning what is possible and feasible for the proposed Commission to accomplish.

The 9-11cc.org FAQ: Is the Citizens 911 Commission Campaign’s approach legally sound? states that, “Legislative Counsels of the states of California and Oregon … drafted the legal language,” and that in the case of Massachusetts (where the ballot initiative was certified) “Several attorneys review [a proposed initiative] for the Attorney General, who then certifies it as legal and constitutional.” Furthermore, “It is [Mike Gravel’s] guess that more than ten attorneys in three states, who do nothing but review initiatives and draft legislation for their respective legislatures, have thus acknowledged the legality of our proposed 9-11 initiative.” It may be the case that the initiatives comply with state legal and constitutional requirements, but this says nothing about a more important question; whether or not a state-level investigation has meaningful authority over federal government witnesses and records.

According to the Citizens 9/11 Commission Campaign FAQ: Who Chooses the New Commission? How Will It Operate? web page:

Q. Will the Commission have the power to subpoena suppressed evidence, like the videos of the Pentagon that have been classified and withheld by the FBI? Can we subpoena the CIA? The NSA? The Bush presidential archives? Can we call Bush to testify, or is he immune?

A. Yes, all of the above can be exercised by the Commission.

This answer is misleading. The states belonging to the federal union known as the USA do not have the power or authority to oversee the federal government, except through the members elected to Congress by those states. Subpoenas can be issued by a commission authorized to do under state law, but federal agencies are not obligated to comply with state subpoenas for federal records, due to the sovereign immunity of the US federal government:

The complete immunity of a federal agency from state interference is well established. United States v. Owlett, 15 F. Supp. 736, 741 – Dist. Court, MD Pennsylvania 1936

It has been long settled that the United States cannot be sued, either in federal court or in any state forum, unless it has waived sovereign immunity. … States and comparable entities are treated no differently than any other litigant. Indeed, the lower courts have repeatedly held that, absent a waiver, the United States cannot be forced to obey a subpoena issued by a state court, state grand jury, or state legislative committee. [emphasis added] Commonwealth of Puerto Rico v. US, 490 F. 3d 50, 71 – Court of Appeals, 1st Circuit 2007

Persons no longer employed by the US government or not subpoenaed in their official capacity would be in a different situation, if subpoenaed to appear before a state commission and submit to questioning under oath. However, as the “Who Chooses” FAQ acknowledges, the Commission will have little recourse should they fail to appear:

The more likely scenario, however, is that certain individuals and agencies that the Commission subpoenas (presumably those with something to hide) will refuse to respond. Little can be done about this unless any one of these officials enters the state whose powers are used by the Commission to issue the subpoenas.

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