"Airport Liability: Lawyers for 9-11 victims want to use Logan security report"

Saturday, September 4, 2004

Lawyers seek use of Logan draft report
Massport rapped in pre-9/11 review
By Sean P. Murphy
The Boston (MA) Globe


Lawyers representing passengers who were aboard the two airliners hijacked
out of Logan International Airport on Sept. 11, 2001, are fighting to use as
evidence a draft of a consultant's report that criticized airport executives
as failing to improve airport security before the terror attacks.

The report, titled "Physical Security Assessment," contains detailed
"findings, observations, and recommendations" on virtually every aspect of
physical security at the airport as of 2001.

The Massachusetts Port Authority had commissioned the internal security
review by a Maryland consulting firm before Sept. 11, 2001, based on a
request from the airport's director of public safety.

Lawyers for the passengers say the draft report goes to the heart of their
case in trying to prove that airport executives were negligent because of
porous security before the attacks.

But lawyers for Massport say the report contains sensitive security
information, and are strenuously opposing its public disclosure in a trial.
No date has been set for a trial, but lawyers involved in the case say one
could get underway before the end of the year.

For now, the report remains at the US District Court in New York, locked in
the courtroom vault of the judge who is hearing the remaining cases from the
terror attacks.

The internal draft report may be crucial to the case brought on behalf of
the family of Daniel E. Lewin, one of the founders of Akamai Technologies of
Cambridge, who was stabbed aboard American Airlines Flight 11, apparently
when he attempted to thwart the hijackers.

"It would be exhibit number one against Massport," Boston lawyer Joan A.
Lukey, the Lewin family's attorney, said of the 59-page draft report. "It's
a significant piece of evidence on liability, bearing on what went wrong at
Logan on 9/11."

David S. Mackey, Massport general counsel, while denying any airport
liability for the terror attacks, declined to comment on the lawsuits or the
draft report on the internal review. "I don't want to talk about defense
strategy," he said, which is being directed by a law firm representing
Massport's insurance carrier.

Mackey added that he could not comment in any way on matters related to the
draft report because it is deemed by the government to be a
security-sensitive document.

About 90 families of people killed in the terrorist attacks, including the
Lewins, are pursing lawsuits in US District Court in New York. Some 3,500
other families opted to accept cash settlements, without having to prove
negligence, from a special compensation fund set up by Congress. That fund
is now closed.

Lukey said she is not optimistic that opposing lawyers can reach a
compromise on the draft report and other documents that may contain
sensitive information. That could mean a judge must weigh the draft report's
value as evidence to the families pressing legal claims against its
potential damage to security, lawyers in the case said.

A Massport official provided a copy of the internal draft report to The
Boston Globe in 2002. Its major conclusions were described in two front-page
stories in the Globe. The Globe, in seeking comment from Lukey, provided her
with a copy of the draft report.

Mary F. Schiavo, a lawyer for families in the lawsuits, said she received a
copy of the draft report anonymously. Schiavo testified publicly about the
draft report last year before the 9/11 Commission, an independent board that
investigated the terror attacks.

The consulting firm Counter Technology Inc. of Maryland began its review
before Sept. 11, 2001. After the attacks, the review was expanded and took
on new urgency. The first written report was circulated among only those at
the highest echelon of Massport in November 2002, Massport officials said.
It described a turf battle between Joseph Lawless, then director of public
safety, and Thomas Kinton, the director of aviation.

The technology firm said the bureaucratic infighting delayed the
installation of closed-circuit cameras and the tightening of checks on
passengers preparing to board planes.

"A major challenge facing Massport and Logan will be the understanding of
why no action has apparently occurred on the many previous safety and
security recommendations submitted from multiple sources, including its own
Department of Public Safety," the report declared.

"The Department of Safety's efforts are continuously mitigated by rogue
attempts to address and solve safety and security matters by non-Public
Safety personnel," the report went on.

The result was "a split in authority and division of responsibility that has
effectively guaranteed inefficiency, encouraged rivalries, and disrupted
communications," the report said.

Those criticisms of Massport, however, were dropped from the shorter, final
report, following a meeting with Mackey to discuss revisions, according to
Massport documents on the meeting reviewed by the Globe.

Since then, several key executives, including Lawless, have either left
Massport or been demoted, and new leaders have moved aggressively to
overhaul security at the airport.

Last year, attorneys for Massport and the authority's insurance carrier
demanded that Lukey and Schiavo return copies of the draft report. The
matter eventually wound up before US District Judge Alvin K. Hellerstein of
New York, who is hearing the approximately 90 lawsuits arising out of the
terror attacks.

Schiavo and Lukey argued to Hellerstein that the draft report should not be
considered officially protected because it contains no information that, if
revealed, would compromise future security. They said it is a historical
record of events at Logan long since made public and widely disseminated.

Lukey said the fact that Massport's final report contained none of the
criticism of the draft report was an indication that Massport knew it had
failed to take all necessary steps to enhance security.


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