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His Service Was Not a Good Idea Either from His Own, or the Families', Perspective

Monday, Dec. 16, 2002

Last week, Henry Kissinger resigned from the National Commission on Terrorist Attacks Upon the United States (commonly known as the "9/11 Commission"). His resignation came as a shock to many, including the President.

I suspect, however, that many in the White House are secretly relieved. They must realize now that, despite his many talents, Kissinger--perhaps unjustly--would never have been accepted as an honest broker by the families of the victims of 9/11.

On the morning of the day of his resignation, Kissinger offered a compromise: He would reveal the clients' names, but only to members of the families of the victims of 9/11, and only if they signed an agreement never to reveal those names. Whether the families would have agreed to public secrecy and private access is not clear, and is now a moot point: Kissinger resigned before it could be resolved.

Some have speculated that the disclosure issue was merely a fig leaf for other reasons Kissinger might have wanted to step down. After all, Kissinger's appointment was controversial: A few American commentators, and many international one, had interpreted it as an affront to the international human rights community. Indeed, it is possible that human rights attorneys may someday ask a judge abroad (In Spain? Belgium? England?) to indict Kissinger for alleged war crimes, in the same way that Pinochet was indicted. Kissinger might have stepped down, at least in theory, to avoid further talk of such an indictment.

But I think, instead, that Kissinger stepped down for exactly the reason he claimed: He realized, after he accepted the job, that it would force him not only to disclose his client list, but also to lose many of his clients.

Two questions follow from this. First, why would doing the 9/11 job require Kissinger to lose and disclose clients? Second, is this job requirement a good or bad thing?

Kissinger's Potential Conflicts of Interest Arising From The Commission Job

Even putting aside the Senate rules requiring disclosure, Kissinger would still have had to disclose his client list in order to succeed at his job. The reason that Kissinger really had to disclose was the families.

To see why, it's important to note that many of the families are still trying to decide whether to accept the deal offered by the September 11 Victim's Compensation Fund. The Fund offers victims a sum of money, but only if they give up the right to sue domestic defendants such as the airlines and the U.S. government. (They could still join the current lawsuit against a variety of Saudi defendants).

Some families have already declined the Fund's offer, and have retained lawyers to sue a wide range of defendants, including the federal government, the airlines, and the Port Authority. But here's the problem: What if some of the defendants in these suits - or the Saudi suits, for that matter - were Kissinger's clients?

That would present an obvious conflict of interest - for he could not represent both the plaintiff-families and his client-defendants.

In a sense, this type of waiver is exactly the solution Kissinger put forward. He offered to meet with the families, reveal his clients, and let them decide whether to waive any apparent conflicts.

Unfortunately, this solution was not as complete as it might have seemed. The families could not give Kissinger a binding waiver because, from their point of view, they would have sacrificed too much.

The families needed to maintain as much leverage over the work of the 9/11 Commission as possible, and giving Kissinger a waiver of conflicts of interest would have partially sacrificed that very leverage.

Why a Waiver Was Too Costly From Everyone's Perspective

The families fought hard to expand the scope of the Commission's subpoena power beyond national security to reach other areas - such as the funding of terror through banks and aviation security. As a result, the Commission's work may be very helpful in the families' lawsuits (against Saudi banks, the airlines, and possibly others), for several reasons.

First, the families would not have to pay for the Commission's information- gathering. In contrast, they would have to pay the expenses of civil discovery, which could be very expensive, given that they may be looking for a needle in a haystack.

Second, the Commission information-gathering may be broader than the civil discovery the plaintiffs are allowed. Indeed, it could save those lawsuits - allowing the plaintiffs to include in complaints information linking particular entities to the events of 9/11. Without such evidence, plaintiffs' complaint might be dismissed after limited (or no) discovery.

Thus, a sympathetic Commissioner could help the families' suits a great deal. Conversely, an unsympathetic Commissioner could refuse to help the suits, focusing on other 9/11-related inquiries instead. If Kissinger represented one of the civil defendants, and the families waived the conflict, he might become exactly that kind of unsympathetic Commissioner, and the suits would suffer.

That risk was too great for the families to take on. And the risk to Kissinger was a serious one, too. Kissinger might have looked bad even if he did nothing wrong.

If the families were unhappy with the Commission's inquiry, they might have pointed to these quasi-conflicts as a source of bias on Kissinger's part. It is always easy to criticize an investigation for choosing to look in the wrong places; the families could charge that Kissinger pulled his punches when it came to going into areas that might hurt his clients. And if made, it would be a very difficult charge to rebut.

Finally, even if Kissinger were free of any actual conflicts or "conflicts" involving similarly situated entities, it is understandable why he would be loath to have his client list become public.

No wonder neither Kissinger himself nor the 9/11 families ended up wanting him to stay. Even if he could have finessed the Senate rules, and made disclosures only to the families, the risks to both sides would still have been great.

Should Kissinger Have Been Able to Keep His Clients Secret? Probably Not.

Is this a bad thing? After all, a talented Commissioner was effectively disqualified for reasons that had nothing to do with any actual misconduct on his part.

I don't think so. Since the 9/11 attacks, the families have been given very mixed signals by the government, and only the combination of their civil suits, and a Commission without even any appearance of possible conflict of interest, can possibly give them the answers, and peace of mind, that they need. (Is Jimmy Carter available?)

Here is the family's mixed situation. On the one hand, they have been offered a very generous compensation package through the Victim's Compensation Fund. For families who are worried about their economic future, that's very good news. But for families looking for answers, it may not be.

To participate in the Fund, families must promise not to sue the airlines, the government, and a whole host of other defendants. And not suing also means not getting evidence in civil discovery - and potentially not getting answers to questions about who may have been negligent.

Thus, even some families who don't really want to litigate, may still do so because they fear taking the Fund Offer may mean the end of all serious inquiries. After all, answers don't yet seem to be forthcoming from any other source.

The Commission, then, may be the families' last best hope to figure out why 9/11 was not prevented. It may also help some who have insisted on litigating, but don't really want to, to be able to accept the Fund offer without, at the same time, feeling they are sacrificing their right to know.

In light of the importance of the answers the Commission will offer, the families - and the country - deserve a Commissioner free of all actual, apparent, and even possible conflicts of interest. A public servant could be a good choice; so might someone permanently retired from private practice. It says nothing against Kissinger that he does not fit the bill, but he was wise to see that fact and resign.

Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School. He has written a number of 9/11-related columns, which can be located in the archive of his columns on the site.

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