The intangible right to honest services, due process, and accurate reports

 

December 11, 2007 – Responding to the Complaint for Injunctive and Declaratory Relief filed on May 7, 2007, Michael J. Garcia, United States Attorney for the Southern District of New York and Attorney for the Defendants has issued a Memorandum in Support of Government Defendants’ Motion to Dismiss.  Garcia filed his motion on October 26, 2007. 

 

The purpose of the Complaint for Injunctive and Declaratory Relief is to prevent the National Institute of Standards and Technology (NIST) from releasing an incomplete, inaccurate, and / or misleading final report on the destruction of World Trade Center Building Seven (WTC7).  It is the assertion of the plaintiff that if the court allows the government to proceed on its present path, with its technical investigation of how and why WTC7 collapsed on September 11, 2001, absent a parallel criminal investigation, the end users of the final report will interpret the findings, even if words such as “probable collapse sequence” are employed, as conclusive.  The plaintiff maintains that employees at NIST along with sub-contractors hired to work on the WTC7 technical investigation are ignoring evidence that does not fit into the current technical hypothesis, and therefore there is a need for injunctive and declaratory relief. 

 

NIST readily admits that it is not authorized under The National Construction Safety Team (NCST) Act (P.L. 107-231) to conduct criminal investigations.  P.L. 107-231 authorizes NIST to only conduct technical investigations into the cause of building failures.  But what happens if in the course of conducting its technical investigation, NIST is confronted with evidence that could be interpreted as criminal evidence?  Shouldn’t NIST, if dedicated to providing honest services that demonstrate integrity, objectivity, utility, and quality, call for a parallel criminal investigation when confronted with evidence that does not fit into the context of the totality of technical evidence it is relying upon in pursuit of its hypothesis? 

 

The government maintains that Complaint for Injunctive and Declaratory Relief is predicated on an alleged conspiracy to cover up the true cause of the collapse of 7 World Trade Center on September 11, 2001 – and therefore, must be dismissed for several reasons.  This assertion from the government is a desperate attempt to further the concept that any person[s] that questions the government regarding any element of the events of September 11, 2001 is bewitched and should therefore be ignored – no matter how thoughtful the questions asked. 

 

To further its maintenance of the false perception that the plaintiff is bewitched, a purposeful distortion in which it hopes the court will subscribe, the government has taken a section of the Complaint for Injunctive and Declaratory Relief and twisted it to its own delight, completely changing the context, and creating a distortion of fact.  In the complaint, the plaintiff pointed out the obvious: that some of the sub-contractors employed by NIST to investigate the collapse of WTC7 are involved with other government contracts and technologies that might disqualify their work as a potential conflict of interest if a parallel criminal investigation were to be conducted.

   

In the complaint, the plaintiff brought attention to the fact that Applied Research Associates, Inc. (ARA), a sub-contractor hired by the government to provide computer modeling of the collapse of WTC7, is believed to be actively engaged in direct energy weapon (DEW) research, development, and deployment.  In the complaint it is stated:

 

‘ARA, upon information and belief, manufactures or causes to be manufactured, develops and / or tests DEW that are operational in Earth orbit, at high altitude, low altitude, at sea and on land ranging in lethality from the capacity to do great damage, such (emphasis added) as that of destroying the World Trade Center Towers in less than 10 seconds each, as occurred on 9/11/01, down to and including imposition of a disabling stun on human beings for crowd control and / or other psy ops purposes.’ 

 

In its Motion to Dismiss, the government suggests that the plaintiff’s overall complaint is frivolous and may be dismissed for that reason alone, wrongly suggesting that the complaint in the action is predicated on a conspiracy theory alleging that WTC7 was destroyed not be a terrorist attack but by an elaborately planned controlled demolition.  However, in the complaint, the plaintiff issued examples of the technology that ARA explores if not employs.  Never is it suggested that such technology was deployed on September 11, 2001 in this particular complaint.  The plaintiff only illustrates the fact that there does exit other technologies, controlled demolition being one of those technologies, that could explain how WTC7 collapsed. 

 

The fact that WTC7 was not a target of terrorist attacks, but only suffered what has been described by many, as minimal collateral damage as a result of the collapse of the Twin Towers should not be so easily dismissed NIST.  The video evidence of the collapse of WTC7 mimics that of previously video documented controlled demolitions of buildings.  The plaintiff does not claim to know whether WTC7 collapsed as the result of controlled demolition.  What the plaintiff claims is that there is evidence that warrants a parallel criminal investigation into whether or not there was a motive and opportunity for those that might have had prior knowledge of the September 11, 2001 attacks, to take advantage of the event and destroy WTC7 for yet to be fully understood purposes.  Such a criminal investigation could reveal that the direction NIST is heading with its technical investigation into the WTC7 failure is completely without merit. 

 

In the Complaint for Injunctive and Declaratory Relief, the plaintiff reminds the government of the statements made by Larry Silverstein, a principal of defendant Silverstein Properties, in a publicly disseminated video statement airing on the US Public Broadcasting System, in which Larry Silverstein stated, quoted verbatim:

 

“I remember getting a call from the er, fire department commander, telling me that they were not sure they were gonna be able to contain the fire, and I said, ‘We’ve had such terrible loss of life, maybe the smartest thing to do is pull it.’  And they made that decision to pull and we watched the building collapse.” 

 

NIST maintains in a letter received by the plaintiff dated August 22, 2007 that this statement is not evidence of a controlled demolition because Larry Silverstein’s spokesman had previously refuted on September 9, 2005, the suspicion that the Larry Silverstein statement suggests controlled demolition. NIST provided a ‘dead link’ as its reference of the spokesman’s statement.  To refute a proposition or theory is to establish or prove that it is false.  A statement by an unidentified spokesman does not refute the suspicion that Larry Silverstein knows something about the collapse of WTC7 that has yet to be made public and could greatly impact any technical investigation, and therefore begs for a criminal investigation.  For NIST and its sub-contractors to so easily gloss over the Silverstein statement suggests that it is they that might be bewitched.  And only a full, independent criminal inquiry will suffice to discover and decide the authentic cause and interpretation of what Larry Silverstein meant when he said that the decision was made to “pull and we watched the building collapse.” 

 

The Silverstein statement coupled with the spokesman’s statement remain today as prior inconsistent statements that warrant a criminal investigation.  NIST is not authorized to conduct criminal investigations by its own admission.  So why shouldn’t the plaintiff expect honest service from NIST and call for a halt in the technical investigation until such time when the findings of a criminal investigation are made public?  It is unnerving to say the least that NIST seems incapable of recognizing that it could be wasting valuable tax dollars trying to develop a plausible explanation for the collapse of WTC7 when there does exist evidence that suggests the contrary – that the building might have been purposely destroyed for reasons that could only be determined by a criminal investigation. 

 

Silverstein’s statement does not exist in a vacuum.  Numerous 9/11 first responders have gone public with information regarding a countdown being heard on police and emergency worker radios moments before the collapse of WTC7.  Former Air Force Special Operations for Search and Rescue expert, Kevin McPadden was at ground zero on 9/11 prior to the collapse of WTC7.  He claims to have heard, ‘three, two, one’ over the radio, followed by explosions and then the collapse in approximately 6.6 seconds of WTC7. 

 

An anonymous EMT named Mike told documentary producer Dylan Avery that hundreds of emergency rescue personnel were told that WTC7 was about to be "pulled" and that a 20 second radio countdown preceded its collapse.

 

Volunteer EMT Indira Singh described how she learned that WTC7 was going to be "brought down" and the context was clear that it was to be deliberately demolished.

 

Former NYPD officer Craig Bartmer described hearing bombs tear down the building as he fled the collapse.

 

A countdown to collapse of WTC7 is criminal evidence of a controlled demolition that cannot be ignored by the government or the court.  This evidence does not prove a controlled demolition event.  It proves that a criminal investigation should be launched based upon the evidence and the technical investigation halted until the outcome of the criminal investigation is determined. 

 

NIST is aware of these eyewitness accounts and many others like them.   But because they do not fit neatly within the totality of evidence NIST is relying upon in pursuit of proving its collapse hypothesis, a progressive collapse theory in which after six years, there still remains no proof of the initiating event, the government is simply ignoring their testimony.  The point that needs to be emphasized again and again is that NIST is not authorized to conduct criminal investigations.  However, due process demands that NIST produce and provide honest services to the public.  Since NIST cannot investigate a controlled demolition of WTC7 because such an event would be a crime, while having amble evidence that suggests the possibility of a controlled demolition, it should have long ago called for a parallel criminal investigation. 

 

The government maintains that the plaintiff has yet to state a claim on which relief can be granted.  The claim is simple.  Evidence exists that warrants a criminal investigation into the collapse of WTC7.  NIST has not called for a criminal investigation either because it is not qualified to determine what criminal evidence is or is not, is purposefully and fraudulently ignoring evidence, or because it does not recognize its duty and authority to recommend a parallel criminal investigation.  The court can provide relief by granting the plaintiff the due process right to be heard before the court at trial.   The plaintiff also asks the court to grant relief in the form of an injunction, stopping the current NIST investigation into why WTC7 collapsed until such time that a criminal investigation is complete, disseminated to the public, and fully reviewed by the courts. 

 

In its Motion to Dismiss, the government has also attempted to deflect the obvious while maintaining that the plaintiff lacks standing to bring suit and therefore the court lacks jurisdiction.  “Standing” or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.

 

 It is disturbing that the government suggests that a citizen, seeking injunction in pursuit of honest services by a government agency tasked with investigating the collapse of a building which occurred on one of the most defining days in our nation’s history, does not have “standing”.  

 

The plaintiff is guaranteed by the First Amendment to the Constitution the right to petition the Government for redress of grievances.  In this action, the grievance is that the government agency authorized to determine the building failure of WTC7 is ignoring evidence, or lacks the authority, or lacks the expertise, to recognize and / or discern criminal evidence. 

 

The Complaint for Injunctive and Declaratory Relief was filed as a Bivens Action.  A Bivens case allows for damages and / or remedies for constitutional violations committed by federal agents – agents / employees / sub-contractors of the federal government.  The Fifth Amendment and Fourteenth Amendment of the Constitution guarantees that no one, including the plaintiff, shall be “deprived life, liberty, or property without due process of the law.”  “Liberty” is truth as well as many other things.  When government lies or deceives, or when government is derelict in its duties, “liberty” is denied.  The plaintiff maintains that NIST has denied “liberty” by ignoring evidence, or dismissing evidence it is not qualified to identify or understand. 

 

18, Part I, Chapter 47 § 1001 states:

 

Whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully –

 

(1)   falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2)   makes any materially false, fictitious, or fraudulent statement or representation; or

(3)   makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

 

shall be fined under this title, imprisoned not more than 5 years, or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. 

 

The court should grant the plaintiff’s Complaint for Injunctive and Declaratory Relief so that it can be determined whether the defendants are in violation of U.S.C. Title 18, Part I, Chapter 47 § 1001.

 

By ignoring evidence that is in conflict with the working technical hypothesis of NIST, the plaintiff is being denied the right to due process under the law and therefore is suffering harm.  Under Mail Fraud statutes is found the Intangible Rights Doctrine. 

 

18 U.S.C. § 1346 states:

 

For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.

 

Due process demands honest services provided by government agencies.  The plaintiff is a citizen entitled to honest services.  Ignoring evidence that is in conflict with a technical hypothesis can only be understood as a scheme or artifice to defraud the plaintiff of honest services.  NIST is providing a service to the public.  That service is to produce a final report on the collapse of WTC7.  The public expects the NIST WTC7 report to be complete and accurate.  However, NIST is not authorized to conduct a criminal investigation by its own admission.  Yet, NIST has been confronted with evidence that can be easily interpreted as criminal evidence.  But, rather than recognize this type of evidence as crucial to a accurate and honest technical investigation, NIST has demonstrated that it would rather not be bothered by any information that does not fit nicely into technical investigation hypothesis. 

 

Attorney Jerry Leaphart will be filing a Memorandum in Opposition of the Government Defendants’ Motion to Dismiss on behalf of the plaintiff no later than December 18, 2007.  What remains to be seen is whether the court will finally take an objective look at a component of the 9/11 event that desperately demands unbiased, unmolested, judicial oversight.