CASE CLOSED … what really happened in the 2001 anthrax attacks?

* LMW: The end of the NAS trail, I suspect, will be that the FBI’s anthrax science was a mess that couldn’t convict Bruce Ivins or anyone else

Posted by Lew Weinstein on August 1, 2009

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LMW report on the second day of the NAS review …

The day began with a statement from Congressman Rush Holt that the NAS mission, although important, was too narrowly framed to answer all of the doubts and questions surrounding the FBI’s investigation of the anthrax case.

see related post … * Congressman Rush Holt meets with NAS panel, says their work is important but their mandate is too narrow; calls for passage of Anthrax Investigation Commission legislation he introduced in March 09

The Congressman’s point was proven many times during the course of the subsequent testimony. The FBI has clearly stacked the deck in the NAS study, seeking to control the result as they have in every other aspect of the anthrax case. A search for the actual truth seems to be far down on the FBI’s list of priorities.

But when the other witnesses testified, all of them FBI consultants, a strange thing happened.

Hints of the truth came out.

The witnesses were

  • Dr. Bruce Budowle, Executive Director, Center for Human Identification, Department of Forensic and Investigative Genetics, University of North Texas Health Science Center; previously the FBI’s chief forensic scientist in DC
  • Dr. Claire Fraser-Liggett, Director, Institute of Genome Sciences and Professor of Medicine, University of Maryland School of Medicine
  • Dr. Jennifer Smith, BIOFOR Consulting

Let’s start with the conclusion of Dr. Fraser-Liggett (which she has stated before) that …

“in no way do the genomic investigations lead to the perpetrator.”

So, in the opinion of one of the chief scientists on whom the FBI relied, the science doesn’t lead to Dr. Bruce Ivins.

  • Nor do any witnesses lead to Dr. Ivins, since there are none.
  • Nor does any physical evidence lead to Dr. Ivins, since there is none.

So where is the FBI’s case against Ivins? The simple fact is that there is no case. That’s why they charged a dead man.

  • No need to present evidence in court, under oath.
  • No need to come forward with exculpatory evidence (see below).
  • No need to deal with a pesky defense attorney.

Here are some other things we learned at yesterday’s NAS hearing.

A significant scientific detail: all of DNA analyses were made from a single colony picked from a plate. The caveat was clear and stated: we may have missed mutations from other colonies in the same batch.

But those mutations, the famous “4 morphs,” are the foundation of the FBI’s assertion that the attack anthrax came from flask RMR-1029 and hence from Dr. Ivins (ignoring for the moment the hundred other scientists who had access to material from or derived from that same flask). And now it seems that maybe those “4 morphs” weren’t the only mutations, or even the most important mutations. Maybe a more complete scientific evaluation would have led in a totally different direction.

A question raised by Dr. Smith: Was the validation of test methods done before the test was applied to the evidence? If not, she said, “there is a great likelihood of false positives and false negatives.”

It’s my opinion that Dr. Smith would not have raised the issue if it did not point to a huge hole in the scientific analysis used by the FBI. Unproven techniques may have been used to provide a very shaky foundation upon which huge conclusions were drawn. I’ll bet that’s what NAS will find.

Issues were also raised about

  • the collection of evidence,
  • the movement of evidence between labs,
  • the possible absence of a clear and provable chain of custody,
  • the possibility of contamination,
  • and the fascinating question: did anything change as data moved?

What emerged from comments and questions like these was the picture of a supposed scientific process driven by FBI investigators, not scientists, under conditions of urgency and chaos.

An example: Dr. Budowle described a series of tests he thought were important to verify some crucial conclusions regarding the “4 morphs” which formed the crux of the FBI’s case; but, he added, the tests were not done.

  • Question: Why were the tests not done. Answer: “You’ll have to ask the FBI.”
  • Question: The FBI made the decision not to do those tests? Answer: “Yes.”
  • Question: Did the FBI impact the scientific directions taken? Answer: “Yes.”

Dr. Smith also asked herself, during her presentation, in a way that made the answer seem clear, “did intel needs override the protocols of science?” In other words, was the answer based on good science, validated science, replicable science, proper handling of samples, proper chain of custody? I would not be surprised if the NAS finds that the FBI’s supposed scientific answers cannot stand up to any of those tests.

Based on what seems to be emerging, any defense attorney would rip the FBI’s scientific “evidence” to shreds.

Dr. Budowle raised the fascinating question of “Brady” evidence. Dr. Budowle said if he was a defense attorney, he would look for the Brady material.

NOTE: Brady material is exculpatory evidence that favors the defense case or weakens the prosecution case. Brady v. United States, 397 U.S. 742 (1970) was the seminal Supreme Court case which determined that if the government has exculpatory evidence it must turn it over to the defense in a timely manner.

This committee, Dr. Budowle said, “is limited in not being allowed to look at the probative nature of the information. But there might be such Brady material that would be interesting for the committee to see.” As I listened to Dr. Budowle, it seemed to me he was certain that such Brady material existed, and that it was important for the NAS to find it.

Had there been a defendant to bring to trial, I suspect Dr. Budowle would have been a witness for the defense.

Even with all the limitations imposed by the FBI, it seems to me there is reason to be hopeful about the NAS process. The perceptive and probing questions asked by NAS committee members yesterday suggest that devastating weaknesses in the FBI’s case will emerge over the next 18 months as the study committee goes diligently about its business. For example …

  • Question: “where else should we look for data that we might not know about now?”
  • Answer: “great question.”

I think and hope the NAS scientists will want to go to places the FBI did not want them to see, and that their impressive credentials and the weight of people like Congressman Holt watching over the process will ultimately force the FBI to relent, because not to relent will make the FBI look more foolish than even the truth about their failed anthrax investigation.

I believe the NAS scientists will proceed in an open and rigorous manner to reach their conclusions, and that these conclusions will be the truth as they see it

The end of the NAS trail, I suspect, will be that the FBI’s anthrax science was a mess that couldn’t convict Bruce Ivins or anyone else.

Dr. Bruce Ivins

Dr. Bruce Ivins

for second day hearing, click … http://video.nationalacademies.org/ramgen/news/isbn/073109.rm

******

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5 Responses to “* LMW: The end of the NAS trail, I suspect, will be that the FBI’s anthrax science was a mess that couldn’t convict Bruce Ivins or anyone else”

  1. DXer said

    In November 2007, the following email was sent to the friends and colleagues of Bruce Ivins:

    “At this time you are absolutely not to contact Bruce by any methods or means. In addition, absolutely nothing is to be said about the investigation, what has happened or comments about anything related to Amerithrax or anthrax to anyone inside or outside the institute. These are very serious matters and under the current situation, nothing we saw can be taken lightly or commented on.

    At this point in time there is nothing we an do or say to anyone about what is developing. Absolutely no contact with the press or anyone inside or outside the institute by any of us will be permitted.

    No joking this matter has become critical.

    We will talk when I return.”

    Does anyone doubt Dr. Ivins had reason to commit suicide notwithstanding his guilt or innocence? His life’s work had been seized and he had just been escorted by armed guard off Ft. Detrick. He had spent his entire work life there. The scientists there were his social circle.

    After his death, what right did US Jeff Taylor and DC Field Office head Persichini insist that they were 99% confident he was guilty while preventing those with personal information bearing on the issue from coming forward?

    It’s simple: You say the dead guy did it and acted alone. Fine. You are the one with the undisclosed documents and evidence. You should know.

    You say he did not merely make an unregistered transfer of pathogen for innocent reasons but that he was the mailer and processor related to the serial murders.

    Fine. We’ll see the documents supporting that when you close the case or when you desist in preventing their production under the Freedom of Information Act as required by United States law.

    Extraordinary claims require extraordinary proof.

    In the meantime, lift the gag on USAMRIID employees. It is immoral to say he did it while not letting his friends still employed by USAMRIID to express their view that the FBI theory is a total crock.

    For example, you may not be able to disclose that Dr. Heine told the grand jury that your theory was a total crock but if you simply lift the gag order, he can do so.

    What DOJ lawyers cast as a privacy issue actually involves a violation by the government of the First Amendment rights and is actionable under Section 1983.

  2. DXer said

    Question: It was Dr. Alibek a half decade ago who first explained to me that the FBI suspected Ali Al-Timimi of the anthrax mailings. He said that their DARPA-funded research using virulent Ames was done at other facilities. Where was it done?

    We know now that DARPA had the FBI anthrax expert Dr. Ezzell make dry powdered anthrax at Ft. Detrick. Was the Alibek/Bailey DARPA research done there? Or was it done at Edgewood which had a BL-3 laboratory by 2001?

    Dr. Bailey’s program is funded by government tax dollars and is subject to FOIA and yet he and University counsel refuses to say where it was done.

    Who supplied the virulent Ames? Where was the research done? Was the work classified? If it was classified, how would withdrawals of virulent Ames coming from flask 1029 be noted in Dr. Ivins’ records? Would he be allowed to discuss it?

    The writing of the text of the letter is also interesting in that the “As” and “Ts” are double-lined — to suggest both ATTA, the lead hijacker and genetics research that was done as part of the anthrax biodefense effort.

    As explained at the Porton Down conferences attended by both Ayman’s operative Rauf Ahmad and Dr. Bruce Ivins, and the 2001 conference organized by Dr. Ivins, Keim’s research team eventually discovered 60 new ‘markers’ in the Bacillus anthracis genome. A decade earlier, it had been determined that one of three proteins comprising anthrax toxin, and the first nucleotide sequence to be reported from B. anthracis (by USAMRIID authors no less), had a consensus TATAAT sequence located at the putative -10 promoter site. It is greek to most of us but apparently something with meaning to the person who drafted the letter.

    Perhaps the sender was saying that the bacteria was pathogenic unlike what had been sent to the Canadian immigration minister six months earlier. Or perhaps the researcher was aware of the work being done by government-funded scientists to make a more virulent Ames strain of anthrax by inserting duplicates of x101 and x102. That work was being done by the scientists thanked by the former Zawahiri associate at the same time he thanked Bruce Ivins for supplying virulent Ames in connection with work he did with small animals at Ft. Detrick. Those scientists were the subject of questioning by the FBI according to the handwritten note Mrs. Ivins wrote to her husband the day he died to which he responded, “Please let me sleep.”

    You can just imagine the former CIA scientist Dr. Jennifer Smith or former ATCC scientist Dr. Bannan plugging the underlined letters from the anthrax letters and wondering whether it pointed to the 1988 article “Sequence and analysis of the DNA encoding protective antigen of Bacillus anthracis” in the journal Gene by the USAMRIID Bacteriology Division authors, including the scientist who later supplied Dr. Alibek and Dr. Bailey with Ames strain of anthrax for their DARPA research at GMU. Dr. Smith was quite emphatic in urging that we obtain all documents from Dr. Bannan, including correspondence that currently is in the classified file.

    The abstract reads: “The nucleotide sequence of the protective antigen (PA) gene from Bacillus anthracis and the 5’ and 3’ flanking sequences were determined. PA is one of three proteins comprising anthrax toxin; and its nucleotide sequence is the first to be reported from B. anthracis. A consensus TATAAT sequence was located at the putative -10 promoter site.”

    When authorities determined that the anthrax had not been genetically modified so as to be resistant to antibiotics, Condi Rice told the President: “That’s the best news you’ve had as president.”

    Years later, at trial for sedition, GMU microbiology grad student Ali Al-Timimi read “Genome Technology.” At least with the Bush administration, Dr. Al-Timimi perhaps knew that the Bush Administration might be embarrassed if it came out that he had been the former assistant to the White House Chief of Staff Andrew Card — and that the origin of the mailed anthrax was not Saddam but involved research by the suitemates of Card’s former assistant… who in turn was the son of someone working at the local Iraqi embassy and who was actively coordinating with the 911 imam and Bin Laden’s sheik.

    It was the responsibility of Jennifer Smith to connect the dots. It simply is not enough to say “Go ask Dr. Bannan” for the documents because he wouldn’t give them to us and scrapped a lot of good ideas we had that were left on the cutting room floor.

    This is not the time for CYA, Jennifer. This is the time for whistleblowers to come forward and be assured that they will be provided the utmost protection pro bono by the largest and finest DC law firms.

    Like President Bush said, you are either part of the problem or part of the solution.

  3. E. Barry Skolnick, M.S., Technical Analyst said

    Following is the prepared text of my “Public Comment” presentation to the “Anthrax Mailings” committee (National Research Council PIN: BLSX-K-08-10-A) on July 31, 2009, at the 2nd Day’s open session of its 1st Meeting (ref. URL: [http://www8.nationalacademies.org/cp/meetingview.aspx?MeetingID=3658&MeetingNo=1]), in which I advocated the Committee’s “science vetting” of the environmental monitoring (surface-testing) science associated with the Amerithrax case, in addition to the laboratory sciences of “microbial forensics”:

    /////

    Good morning, ladies and gentlemen of the “Anthrax Mailings” Committee. My name is Barry Skolnick, an independent technical analyst. For more than seven years I have been raising critical concerns about U.S. “anthrax incident” response and recovery operations across the Federal agencies, specifically in the area of environmental surface-testing practices. My scholarly concerns are grounded in comparative study of the ninety-year methodological “legacy” of environmental microbiology.

    My studies have prompted dissatisfaction with what I have learned about “anthrax incident” associated operations and their limited follow-up research support and national-preparedness initiatives in applied surface-testing science for future bioterrorism response. This is a field which appears to have been comparatively neglected in the post-“9/11” era, among “biological countermeasures” important to homeland security. To cite only one specific example of surface-testing practice deficiencies (as disclosed), there has been a complete lack of “positive controls”, which are essential to the procedural validation as well as to the quality assurance in training and actual practice, of such environmental surface-testing operations.

    I do appreciate the importance of the Committee’s requested focus on the essentially-qualitative sciences of “microbial forensics” as applied by the FBI for purposes of criminal attribution of the anthrax “weapon”. But I appear today to assert – with due respect to Arthur Miller’s “Death of a Salesman” – that attention must be paid as well to the essentially-quantitative “environmental monitoring science” of the FBI’s protracted “Amerithrax” case investigations, as manifested in several varied applications of the microbiological testing of environmental surfaces for detection of “trace” amounts of the anthrax bio-threat agent.

    I shall briefly mention five of these applications – more-or-less in descending order of their apparent efficacies and contributions to progress of the Amerithrax investigations. These five applications were:

    1. Swab-sampling of interior surfaces of large bags in numerous 55-gallon drums holding more than a million pieces of quarantined Congressional mail, which led successfully and safely to the isolation and recovery of the second anthrax-bearing “Leahy” letter, prior to its delivery to the intended recipient.

    2. Uses of swabs and of nutrient-agar contact-plates to successfully locate a single postal mail-deposit box in Princeton, New Jersey, which was allegedly used by the Amerithrax perpetrator to introduce the anthrax-laden letters into the mail-stream.

    3. Microbiological testing of letter-mail envelope surfaces for evidence of anthrax-spore cross-contaminations within the mail-stream. As examples, this was done within quarantined Congressional mail to progressively isolate the “Leahy letter”, and also in search of epidemiological/forensic explanation of why 94-year-old Ottilie Lundgren contracted and then died from inhalation anthrax disease in Oxford, Connecticut on November 21, 2001.

    4. Environmental surface-sampling at buildings in Florida and elsewhere, for “rule out” anthrax detection during early “crisis management” operations in 2001 for which the FBI was designated as lead Federal agency. These FBI-conducted or coordinated activities served several purposes including (1) to exclusively identify the “crime scenes” (i.e., all of the anthrax-contaminated facilities) by means of initial facility-“screening” tests; (2) to demarcate crime-scene hot-zone/cold-zone boundaries on-site, by means of preliminary site-“characterization” tests; (3) to secure the evidentiary value of environmental specimens collected in the course of such crime scene environmental-testing operations; and (4) to gather evidence of threat-agent dispersals through time and space, so as to “reconstruct the crime” of progression of the multi-focal mail-borne anthrax attacks, traced back to their perpetrated origin(s).

    5. Extensive sampling by FBI and U.S. Postal Inspection Service agents of environmental surfaces associated with various “persons of interest” who were investigated under suspicion of involvements as perpetrators of the mail-borne anthrax attacks. These operations were described in unsealed Court affidavits as being “biological swabbing techniques similar to those used by United Nations weapons inspectors”. As disclosed, both U.N. and FBI field operations of this kind appear to have been similarly unproductive. As such, one may speculate that they contributed to the protracted course of the Amerithrax investigations.

    I shall offer some documentation of the above activities for the Committee’s examination, in the near future.

    The value to society of the Committee’s vetting of each of these varied forms of environmental-monitoring practices in terms of their scientific foundations, can be argued from at least two points of view:

    (a) firstly, because nobody else has yet independently reviewed them — e.g., the FBI’s environmental-testing practices were intentionally excluded from cross-agency inquiries during the GAO’s 2002-5 investigations of anthrax detection practices on behalf of Congress, as a matter of standing policy, because of the then-ongoing criminal investigation; and

    (b) secondly, because the perceived efficacies, limitations and uncertainties of each of these kinds of environmental-testing activities may have had ramifications on the historical conduct of the protracted Amerithrax case, and might be expected to do so again in any future similar circumstances of bioterrorism-response, or otherwise-analogous forensic need.

    I believe that the Committee’s critical review of these surface-testing practices will have a constructive influence on the nation’s future preparedness for bioterrorism response and recovery operations generally (i.e., well beyond the “forensic” applications), as well as on the public’s confidence in the final outcome of the Amerithrax case.

    Because these surface-testing practices involved some specialized areas of basic and applied environmental science, I believe that the Committee should be expanded from its provisional membership to include at least one suitably-qualified environmental microbiologist, to take the lead in the Committee’s investigations of these “environmental” matters, which lie outside of the currently-recognized scope of “microbial forensics” scientific disciplines.

    I thank the Committee for your attention.

    /////

    For a broad cross-agency oversight perspective on still-“unvalidated” environmental surface-testing methods for anthrax detection indoors, I suggest:

    Anthrax Detection: Agencies Need to Validate Sampling Activities in Order to Increase Confidence in Negative Results. GAO-05-251, March 31, 2005. Report (119pp.), available at URL: [http://www.gao.gov/new.items/d05251.pdf].

    Also:

    Anthrax Detection: DHS Cannot Ensure That Sampling Activities Will Be Validated. GAO-07-687T, March 29, 2007. Testimony (18 pp.), available at URL: [http://www.gao.gov/new.items/d07687t.pdf].

    For some surface-testing methodological “critical review” background, I suggest:

    (a) Written and oral witness testimony of Hamilton RG (in collaboration with Skolnick EB) at the oversight hearing “Stamping Out Anthrax in USPS Facilities: Technologies and Protocols for Bioagent Detection”, May 19, 2003, Washington DC, of the Subcommittee on National Security, Emerging Threats, and International Relations (NSETIR), Committee on Government Reform, U.S. House of Representatives, 108th Congress. Hearing proceedings (Serial No. 108-57) available at URL: [http://www.access.gpo.gov/congress/house/pdf/108hrg/89545.pdf]. (Copy of written statement available on request.)

    (b) “Questions on US anthrax tests: At ASM biodefense meeting, scientists say methods are not based on solid science” By John Dudley Miller, March 9, 2004. The Scientist on-line ed., available at URL: [http://www.the-scientist.com/news/20040309/03/]. (Copy available for “fair use” on request.)

    (c) Skolnick EB, Hamilton RG (2004). “Legacy” Science Suggests Improved Surface-Testing Practices for Detection of Dispersed Bioagents (e.g., Bacillus anthracis Spores) in Bioterrorism Response. Poster P14 presented at the 20th Annual National Environmental Monitoring Conference (NEMC), July 19-21, 2004, Washington DC. Published on-line (pp. 93-110) in the Proceedings of the 2004 NEMC by the American Council of Independent Laboratories, Washington DC. Available at URL: [http://www.nemc.us/images/pdfs/2004_nemc.pdf], as indexed at URL:
    [http://www.nemc.us/index.php?option=com_content&view=section&id=7&Itemid=70]. (Poster content-file copy available on request.) Cited (pp. 130-131) in Chapter 9, Sampling Strategies and Technologies, pp. 120-136 in “Reopening Public Facilities After A Biological Attack: A Decision Making Framework. Report of the Committee on Standards and Policies for Decontaminating Public Facilities Affected by Exposure to Harmful Biological Agents: How Clean is Safe?, National Research Council” National Academies Press, Washington DC, June 2005. ISBN: 0-309-55166-8, 224 pp. Ref. URL: [http://www.nap.edu/catalog/11324.html]; available for full-text on-line browsing as indexed at URL: [http://www.nap.edu/books/0309096618/html].

    (d) “Anthrax testing: look to NASA? Space agency validated spore detection procedure in 1970s, but needs testing for biothreat agents” By John Dudley Miller, April 26, 2005. The Scientist on-line ed., available at URL: [http://www.the-scientist.com/news/20050426/02/]. (Copy available for “fair use” on request”.)

    (e) Sandia National Laboratories press release October 25, 2005: “Sandia researchers determine that common anthrax sampling methods need improvement…. More deadly spores may remain after decontamination than current sampling methods show.” Available at URL: [http://www.sandia.gov/news-center/news-releases/2005/elect-semi-sensors/sampling.html].


    E. Barry Skolnick, M.S.
    Technical Analyst
    Upper Marlboro MD 20772
    E-mail: [ebskolnick@jhu.edu]

  4. DXer said

              John Ezzell, the FBI’s anthrax specialist who first examined the finely powderized anthrax sent to the United Senators Leahy and Daschle, called me in July 2009 and confirmed that he had made dry powdered anthrax at USAMRIID’s Ft. Detrick in 1996 for the Defense Advanced Research Projects Agency (“DARPA”).  Beginning in 1996, he also worked for the FBI’s Hazardous Materials Response Unit.  Years later, Dr. Bruce Ivins later wrote an email to his colleague and friend Patricia Fellows saying that he had heard that the anthrax made by Dr. Ezzell for DARPA was the closest match to the anthrax mailed in Fall 2001 that Dr. Ezzell had examined.  He emailed a superior in December 2006 about what he heard about the FBI at a party and expressed concern that something might have been taken or altered from his B3 stocks.  He was told by email from the superior to not talk about it — that the FBI situation was under control.  But it turned out not to be under control. After his colleagues were ordered not to talk to him and he was removed from the base by armed escort, Bruce Ivins took his life in late July 2008.  The trail of evidence that should have led Amerithrax investigators to the infiltration of DARPA and US biodefense and withdrawal from Dr. Ivins’ stock, however, dated back to the time of the mailings and was discernable from “open source” intelligence.

    Jennifer Smith just needed to “connect the dots.”

  5. DXer said

    Experts urge panel to deepen forensic understanding
    Originally published August 01, 2009

    http://www.fredericknewspost.com/sections/news/display.htm?StoryID=93331
    By Adam Behsudi
    News-Post Staff

    ***

    Fraser-Liggett said the work to find a match began in late 2001, but the successful method was not completed until 2007, when agents began to seriously investigate Ivins.

    “I was hopeful that perhaps genomics would provide sufficient amount of information to be able to track the material to its source, but I then, and have always, asserted that in no way did I ever believe that this kind of genomics-based investigation was ever going to lead to the perpetrator,” Fraser-Liggett said.

    “That was going to require much more traditional police investigation.”

    The 18-month academy study will affirm the validity of the investigative science but will stop short of explaining how the FBI sorted Ivins from the dozens of people who had access to RMR-1029, the strain of anthrax used in the mailings.

    Jennifer Smith is a retired FBI agent and biochemist who now leads BioForensic Consulting. Smith was involved in the agency’s DNA unit when the investigation began.

    “I want to say that I hope this committee is able to see information that was shared … even if that information might currently be housed within the classified files,” she said.

    Bruce Budowle was a senior FBI scientist before his current post as director of the Center for Human Identification at the University of North Texas.

    He said no new methodology was used in the case, but it significantly advanced the field of microbial forensics.

    ***

    Alice Gast, the committee chairwoman and president of Lehigh University, said the academy has the ability to pursue classified materials. The study will deepen as the group learns more and asks additional questions, she said.

    “Really it remains to be defined — the scope of all materials we’ll receive,” Gast said.

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