The Judge proceeded to invite discourse on why an investigation was needed. When [NYC CAN attorney Dennis] McMahon raised as an example the 9/11 Commission’s omission of the collapse of Building 7 from its final report, the Judge replied in puzzlement, “Building what?”
When asked by the Judge whether or not there has been an investigation into 9/11 by New York City authorities, Steve Kitzinger, the City’s lawyer, replied, “It’s irrelevant”, to which the packed courtroom was loudly disdainful, some openly laughing in disbelief. At which point Mr. Kitzinger prevailed upon Judge Lehner to quiet the crowd, which the Judge did.
With order restored, the Judge again asked Kitzinger if the City had done anything to investigate 9/11. Kitzinger flatly responded, “No.”
“The City never did anything?” retorted the Judge in disbelief. Nothing, Kitzinger admitted.
As part of his unrelenting attack on the NYC CAN petition, Kitzinger repeatedly alluded to the proposed commission’s intention to investigate national security matters beyond its jurisdiction such as “intelligence failures”. A simple reading of the petition shows such assertions to be completely unfounded.
Later, Judge Lehner seemed unimpressed by Kitzinger’s argument pertaining to the limited jurisdiction of New York City to investigate 9/11, on the grounds of inherent limits to a municipality’s subpoena power. “You can investigate anything, can’t you?” the Judge asked rhetorically. “Because somebody may have jurisdiction over certain witnesses doesn’t mean you can’t have a commission.”
On the complicated question of the commission being a privately funded entity but still having subpoena power granted under the auspices of New York City government, the Judge made comments that gave the Petitioners hope for a favorable ruling. “You want a law that says this private commission shall have the right to subpoena people?” To which McMahon assented. Offering similar examples, the Judge noted, “A private lawyer can issue subpoenas… a lawyer issues [subpoenas] in connection with an action [during] litigation in court.”
After the hearing, the consensus among NYC CAN members and supporters in attendance was that Judge Lehner is intrigued by the proposed referendum, and that he will give both sides’ arguments due consideration.
Near the end of the hearing, McMahon stated emphatically, “The citizens are desperate. We want to find out what really happened on 9/11.