Massport seeks release from 9/11 suit

Last unsettled case from attacks goes to court this week

By Stephanie Ebbert
Globe Staff / July 24, 2011

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Nearly 10 years after the Sept. 11 terrorist attacks transformed air travel and robbed a confident nation of its sense of security, the Massachusetts Port Authority is facing a federal lawsuit that is forcing officials there to re-live some of the agency’s darkest days.

If lawyers fail to persuade a federal judge to release Massport from a negligence case filed by a Boston family, Logan International Airport could be exposed to its first liability claim in the Sept. 11 terrorist attacks and a messy public trial airing claims that weak security and hapless management contributed to the national tragedy.

The Bavis family, which has steadfastly refused to settle its suit against United Airlines, Massport, and other defendants, will get their first day in court Wednesday, when US District Court Judge Alvin K. Hellerstein will hear arguments on whether Massport should remain a defendant in the wrongful death case of Mark Bavis. It is the last Sept. 11 case that has not been settled and would be the only one to proceed to trial.

Bavis was a 31-year-old hockey scout who was killed when United Flight 175 crashed into the World Trade Center South Tower after being hijacked by terrorists who boarded at Logan.

The Bavis family did not respond to requests for comment. Their case is supported in court by lawyers for World Trade Center Properties LLC and other the property owners who are also suing United and Massport.

A trial is scheduled for November, but lawyers for Massport hope to persuade the judge to release the agency on summary judgment, arguing that federal law gave the airlines sole responsibility for security.

“There simply is no connection between Massport’s responsibilities and the terrorist attack on September 11th,’’ James J. Welna, a security consultant and witness for Massport, said in a report filed with court documents in the case. “Massport’s approach to checkpoint security was entirely consistent with both federal regulations and industry standards at the time.’’

But the plaintiffs want to hash out at trial, for the first time, what exactly went wrong on Sept. 11, 2001. They view this case as their last chance to hold airports accountable for security problems that they believe contributed to the attacks. And they suspect they may unearth details that were not explored during the federal 9/11 Commission probe, which catalogued myriad security breakdowns preceding the terrorist attacks.

“Many of the families wanted to go to court. But the judge kept pushing them to settle, so they eventually settled,’’ said Brian F. Sullivan, an Federal Aviation Administration special agent who retired in January 2001 and has been closely watching the Bavis suit. “If they settle, then none of this information comes out. Massport was never held liable, never part of the process.’’

One revelation already unearthed in discovery for this case is testimony from an American Airlines technician who said he had spotted one of the terrorists acting suspiciously inside Logan Airport months before the attacks. Court documents show that Stephen J. Wallace told a State Police trooper to keep an eye on two men who were taking photographs and video of a security checkpoint in May 2001.

“I said, specifically, these two clowns are up to something,’’ Wallace said in a deposition filed in US District Court in the Southern District of New York. He found the men so suspicious that he asked the trooper to hold them if there were problems with their bags and urged two Massport employees to watch them, court documents say. Wallace was then called away and was uncertain what became of the men.

Six days after the attacks, Wallace was interviewed by agents from the Bureau of Alcohol, Tobacco, and Firearms and identified one of the men he had seen as 9/11 ringleader and American Airlines Flight 11 hijacker Mohamed Atta, court documents show.

“Wallace is positive the man he saw was Atta, who was wearing a shiny, solid gray 1960s type of shirt,’’ the ATF report filed in US District Court states. Wallace declined to be interviewed.

Massport’s lawyers dismissed the claim, saying in their own court filing that Atta was in Florida in May 2001 and that there were probably countless opportunities to deter the 19 hijackers in the months and years leading up to the attacks.

Though Massport has never been grilled in court about its role in the terrorist attacks, the agency faced intense public scrutiny in the immediate aftermath of 9/11, when it was criticized for its culture of politics and patronage. Massport’s executive director at the time, Virginia Buckingham, was a former chief of staff and campaign manager for former governor William F. Weld. Massport’s public safety director, Joseph Lawless, had been Weld’s driver.

The Bavis lawsuit rests in large part on showing that Lawless had been trying to tighten security at the airport, which, the plaintiffs argue, proves that Massport had the authority to do so. Critical to the case is an April 2001 memo, previously reported by the Globe, in which Lawless sought an immediate meeting with Buckingham to discuss solutions to dealing with terrorist risks.

“Recent covert efforts to sneak contraband beyond security by a local news media outlet have shown extremely poor job performance by the security checkpoint operators,’’ Lawless wrote. The security screeners’ performance, he wrote, “damages the entire security environment at the airport.’’

The Bavis case also focuses on the fact that Lawless was concerned enough about security to try to launch a State Police undercover operation to backstop screeners just eight weeks before Sept. 11, 2001.

“These efforts in the face of the acknowledged screening deficiencies belie Massport’s repeated canard that only the airlines - and not Massport - undertook responsibility for checkpoint security,’’ Jason Cohen, a lawyer for the World Trade Center Properties, wrote in a brief. “If that were so, why was Massport’s Director of Public Safety working so hard to improve screening?’’

But Lawless’s April 2001 memo notes that security is the airlines’ responsibility. And his effort to enlist undercover State Police at checkpoints was opposed by the airlines - and ultimately the FAA, which said Massport did not have the legal authority to conduct such tests.

The Bavis family cites its own expert witness, airport security consultant Michael K. Pilgrim, to call security at Massport a “sieve.’’ He reported that screeners at Logan were unskilled, insufficiently trained, and had a high turnover rate, and he noted that a review of the depositions of screeners working at the terminals the terrorists used Sept. 11 found that many of them had difficulty communicating in basic English.

“Airport security at Logan Airport was in such an abysmal state on Sept. 11, 2001, as to constitute a systemic failure,’’ Pilgrim said in his report, filed with court documents.

Although Massport claims it had no authority over security, the lawyers for the World Trade Center Properties also note in their brief that Massport exerted authority over security screening - to speed it up, rather than strengthen it.

Massport’s Guaranteed Passenger Standards Program required airlines to move passengers through security checkpoints within five minutes or face penalties under their lease with Logan Airport. In his testimony, Massport’s former aviation director, Thomas J. Kinton, acknowledged that Massport imposed that program without consulting the FAA or undertaking any analysis of how it might affect security. The program was discontinued before Sept. 11.

“If Massport used those powers to influence the air carriers to meet customer service standards, Massport could most certainly have used those same powers to influence and coerce air carrier behavior as to the notoriously deficient checkpoint screening,’’ Cohen wrote in his brief.

Massport lawyers counter that the transportation system’s defenses were unprepared for hijackers who would use planes themselves as weapons. In one brief, they noted that the terrorists “escaped the notice of the most powerful intelligence gathering entity on earth and, on the morning of Sept. 11, 2001, with years of studied planning, they were able to board any aircraft at any airport they chose.’’

Stephanie Ebbert can be reached at Follow her on Twitter @StephanieEbbert.