* It’s well past time for the NAS to be frank and honest about what it has agreed with the FBI regarding the sequestering of FBI-submitted documents in apparent violation of FOIA requirements
Posted by DXer on October 3, 2009
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Another week has passed … NAS has still not explained the basis for its decision, together with the FBI, to sequester FBI-submitted documents until the conclusion of its review of the FBI’s anthrax science
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These are the currently outstanding questions …
- Does the NAS/FBI agreement specifically prohibit the disclosure of FBI-submitted documents, in whole, in part, now, or later?
- If so, can you provide the language of the agreement that does so?
- What do you claim as your lawful authority to sequester the FBI-provided material until the end of your review?
- Do you understand that you are required to state specific exemptions pursuant to FOIA?
- Are you prepared to have your attorney cite specific FOIA exemption provisions for each document sequestered?
- Are there provisions of the FOIA law which allow the exemptions you cite to apply now but not at the end of the review period?
- How do you characterize FBI-submitted material which you believe is not exempt?
The total correspondence between myself and NAS related to the FBI-submitted documents is reproduced below. Here is a brief summary of that correspondence …
- It begins with a simple request (9/4/09) for access to documents accumulated by NAS and the immediate response from the NAS spokesperson that FBI-submitted documents will not be made available “until the end of the study.”
- When I asked the legal basis for sequestering these documents, I was told that they are exempt from FOIA requirements but, according to the (undisclosed) agreement between NAS and the FBI, they are to be made available at the end of the study.
On 9/11/09, I communicated DXer’s comment to the NAS, as follows … There is nothing in the statute that permits the withholding until after their review is done. To the contrary, it holds the opposite and makes FOIA applicable. If it is producible at the end of their review, it is producible now. Thus, his present position constitutes a willful breach.
- To this assertion, there has been three weeks of silence from NAS. No explanations. No citation of specific FOIA exemptions. No release of the relevant NAS-FBI contract provisions.
In my judgment, this failure to respond is an insult to me and to the American people who are paying $880,000 to fund this NAS study.
If NAS believes it has legal justification under FOIA or under its contract with the FBI to withhold and sequester FBI-submitted documents, then they should put that alleged justification forward. That this might lead to unfavorable analysis and litigation does not excuse the three weeks of silence.
It’s well past time for the NAS to be frank and honest about what it has agreed with the FBI.
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Correspondence between Lew and NAS …
9/4/09 … Lew to NAS … Many of us at the CASE CLOSED blog followed the opening hearings of the NAS study panel with great interest. The questions asked by panel members suggested that the study is off on exactly the right foot. There have since been reports of documents received by the NAS panel, which documents are preumably now being reviewed. My question is whether these documents can now be made available, and if so, what is the procedure (FOIA?) for requesting them.
9/4/09 … NAS to Lew … Lew, the NAS is a nonprofit private institution that operates under a congressional charter and the Section 15 of the Federal Advisory Committee Act which requires that material presented to our committees as part of their data gathering go in our Public Access Office files. Some material given to the anthrax committee is already in that file and I’ll ask someone from public access to send you link to list. However, the FBI case documents periodically being given to the committee will not go in the public access file until the end of the study.
9/4/09 … Lew to NAS … I wonder if you could explain what seems on the face of it to be an inconsistency. If material received by the committee is supposed to go into a public access file, why is material from the FBI excluded from that requirement. What is your lawful authority to sequester the FBI-provided material?
9/6/09 … NAS to Lew … I’ve asked our general counsel for the legal language you requested but I don’t know if I’ll have it for you before Tuesday.
9/10/09 … NAS to Lew … Lew, below is my response to how we’re handling material from FBI. Before it is a link to FACA sections applying to NAS and under which we operate, so you can see the language with which we comply. Sorry it took me a few days to get back to you. http://www.nasonline.org/site/PageServer?pagename=ABOUT_FACA The study committee expects to receive thousands of pages of material from the F.B.I. in the course of its study. Some has already been received; more will be coming as the study progresses. Much of this material is exempt from mandatory release to the public under the Freedom of Information Act. However, we have an agreement with the F.B.I. that all of the material will be made available to the public at the same time that our report is released, so that everyone will be able to review the information that was available to the committee in reaching its conclusions.
9/10/09 … Lew to NAS … Thank you for your response, although I must say it seems inadequate. You say that much of the FBI material is exempt from release under the FOIA law, but you do not cite the specific legal authority under which such exemptions are claimed. It is my understanding that there are several reasons for possible exemption from release. Which reasons do you specifically cite for each category of FBI material you claim is exempt? Also … I note that you say “much” of the FBI material is exempt, which means that some is not exempt. Could you please advise which FBI material you believe is not exempt, and how the non-exempt FBI material differs from the FBI material which you say is exempt? Finally, how does one go about requesting the FBI material which you say is not exempt?
9/11/09 … DXer to Lew to NAS … There is nothing in the statute that permits the withholding until after their review is done. To the contrary, it holds the opposite and makes FOIA applicable. If it is producible at the end of their review, it is producible now. Thus, his present position constitutes a willful breach.
9/18/09 … Lew to NAS … I wonder if you could let me know the status of any response to my 9/10/09 email (repeated below). Are you in the process of preparing a response? When can I expect to receive a response?
9/22/09 … Lew to NAS … I can understand if my previous questions have led to a need for legal opinions regarding the FBI-submitted documents, and that this may take a while to complete. My questions are … is NAS in fact seeking or preparing legal opinions? do you have an intent to respond to my previous questions? if so, when would be a reasonable time to expect a response?
9/22/09 … NAS to Lew … Lew, you can call me about these questions.
9/22/09 … I had a telephone conversation with the NAS spokesperson. He was quite cordial but offered no new information, saying only that he would again refer my questions to NAS counsel.
9/24/09 … Lew to NAS … I think you are being as forthcoming as you can be, given that you have little information to share, and I think the conscientious scientists on the NAS panel are being undermined by the decision of NAS bureacrats to accede to the FBI’s rules of conduct. I have waited the two days I said I would; here’s a heads-up on today’s post on the CASE CLOSED blog. https://caseclosedbylewweinstein.wordpress.com/2009/09/24/its-seems-the-fbi-said-the-documents-were-exempt-from-foia-and-nas-with-no-independent-verification-accepted-that-conclusion/ As I told you when we spoke, I think the NAS is taking a very bad route in aligning itself with the FBI’s refusal to tell the American people the basis on which they concluded that Dr. Ivins was the sole perpetrator (or even involved at all) when there is no supporting science, no physical evidence, and no witnesses which point specifically to the man the FBI says is the anthrax killer. In my view, shared by many, it’s been eight years since some as yet unidentified terrorists conducted mass murder on American soil, and we have no credible answers.
9/30/09 … Lew to NAS … Any word from NAS counsel on the claimed FOIA exemption items?
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CASE CLOSED ... what really happened in the 2001 anthrax attacks? 
DXer said
“This is a very attractive book. As many photos, drawings, maps, etc. as possible will help with this type of book. Make sure to price it high enough to support the cost of distribution, production, and editing. Even if you do that on this book, price it so that you can pay people on the next one.”
It will be priced at cost at Booksmart’s fixed rate of $14.95 for B&W text with no mark-up. It will be 440 pages. It will be freely available online if technically possible as I managed with the book linked above published a day or two ago. There is no out-of-pocket cost of distribution, production or editing not covered by the modest S&H. The software is Booksmart, which I recommend. It will be B&W. It is currently about 880 pages but a few key decisions in some legal matters will dramatically ease the burden of explanation. In the highly classified prosecution of Ali Al-Timimi, I can’t even find it on PACER now and so am in the dark as to the status of the ex parte briefing. The federal district court was not allowed assistance by his clerk (per direction of the National Security Council). Defense counsel was not allowed to see the government’s briefing even though the distinguished eminent counsel has highly compartmentalized clearance. So while Lew is hypercritical of the FBI for not disclosing this or that — that is to be expected. They are not “hiding” anything, they are just “failing to disclose it.” The case is open until it is closed. There is an ongoing investigation and a criminal matter currently ongoing in which Dr. Al-Timimi is fighting to overturn a sentence of life plus 70 years for sedition. He is presumed innocent of all other crimes — except for the sedition for which he was found guilty. But for the scientists at NAS not to have asked the tough questions about whether the Silicon Signal could have resulted from silica in the culture medium, as the WMD Chief has said, was pretty lame.
If upon Dr. Ivins’ suicide, the FBI had laid things out, they would have blown their chances of having his conviction reinstated. It was remanded because of the wireless wiretapping that began on or about October 7, 2001 under the Presidential Surveillance Program. While I don’t know whether Andrew Card wrote Ali a letter of recommendation for his graduate program, Ali was immediately suspected of being part of an Al Qaeda conspiracy the first week after 9/11.
More generally, on the means of aerosolizing anthrax, it is to be expected that they should not be making much of that public. Joe Michael, of course, doesn’t know anything about aerosolizing anthrax and so releasing his powerpoints does not implicate those concerns. Although I don’t know the scientific basis for the conclusion, he concludes it was not use of antifoam which is notable and can be cited. It leaves the question: So what was the source of the Silicon Signal in Flask 1030?
The FBI knows. But they are not hiding it — they are failing to disclose it because it has investigative implications.
DXer said
In a filing unsealed this Spring, Dr. Ali Al-Timimi’s lawyer, Professor and MSNBC commentator Jonathan Turley, explained that his client “was considered an anthrax weapons suspect.” Al-Timimi was a computational biologist who came to have an office 15 feet from the leading anthrax scientist and the former deputy commander of USAMRIID. A motion filed in early August 2008 seeking to unseal additional information in federal district court was denied. The ongoing proceedings are highly classified.
Dr. Al-Timimi’s counsel summarizes:
“we know Dr. Al-Timimi:
* was interviewed in 1994 by the FBI and Secret Service regarding his ties to the perpetrators of the first World Trade Center bombing;
* was referenced in the August 6, 2001 Presidential Daily Briefing (“Bin Laden Determined to Strike in US”) as one of seventy individuals regarding whom the FBI is conducting full field investigations on a national basis;
* was described to his brother by the FBI within days of the 9-11 attacks as an immediate suspect in the Al Qaeda conspiracy;
* was contacted by the FBI only nine days after 9-11 and asked about the attacks and its perpetrators;
* was considered an anthrax weapons suspect;
[redacted]
* was described during his trial by FBI agent John Wyman as having “extensive ties” with the “broader al-Qaeda network”;
* was described in the indictment and superseding indictment as being associated with terrorists seeking harm to the United States;
* was a participant in dozens of international overseas calls to individuals known to have been under suspicion of Al-Qaeda ties like Al-Hawali; and
* was associated with the long investigation of the Virginia Jihad Group.
***
The conversation with [Bin Laden’s sheik] Al-Hawali on September 19, 2001 was central to the indictment and raised at trial. ***
[911 imam] Anwar Al-Aulaqi goes directly to Dr. Al-Timimi’s state of mind and his role in the alleged conspiracy. The 9-11 Report indicates that Special Agent Ammerman interviewed Al-Aulaqi just before or shortly after his October 2002 visit to Dr. Al-Timimi’s home to discuss the attacks and his efforts to reach out to the U.S. government.
[IANA head] Bassem Khafagi, the Ann Arbor fellow Egyptian acquaintance of Tarek Hamouda (who Bruce Ivins supplied virulent Ames), was questioned about Dr. Al-Timimi before 9-11 in Jordan, purportedly at the behest of American intelligence. [redacted ] He was specifically asked about Dr. Al-Timimi’s connection to Bin Laden prior to Dr. Al-Timimi’s arrest. He was later interviewed by the FBI about Dr. Al-Timimi. Clearly, such early investigations go directly to the allegations of Dr. Al-Timimi’s connections to terrorists and Bin Laden — [redacted]”
The letter attached as an exhibit notes that in March 2002 Al-Timimi spoke with Al-Hawali about assisting Moussaoui in his defense. Al-Hawali was Bin Laden’s sheik who was the subject of OBL’s “Declaration of War.” Moussaoui was the operative sent by Bin Laden to be part of a “second wave” who had been inquiring about crop dusters. The filing and the letter exhibit each copy defense co-counsel, the daughter of the lead prosecutor in Amerithrax. That prosecutor has pled the Fifth Amendment concerning all the leaks hyping a “POI” of the other Amerithrax squad, Dr. Steve Hatfill. His daughter withdrew as Al-Timimi’s pro bono counsel on February 27, 2009.
‘Dr. Ali Al-Timimi’s Support Committee’ in an email to supporters dated April 5, 2005 explained: “This is a summary of the court proceedings that took place yesterday April 4th 2005. We will send a summary everyday inshallah. *** “In his opening statement, Defense attorney Edward B. MacMahon Jr. said that Al-Timimi was born and raised in Washington DC. He has a degree in Biology and he is also a computer scientist, and a mathematician. He worked for Andrew Card, who’s now the White House chief of staff, at the Transportation Department in the early 1990s.”
Bruce Ivins had supplied the virulent Ames strain of anthrax to Ann Arbor researchers. One of the researchers, Bassem Khafagi’s acquaintance Dr. Hamouda, obtained his PhD in microbiology from Cairo Medical in 1994. He and his wife came to the United States to settle that year. By 1998, he was working on a DARPA-funded project involving nanoemulsions and a biocidal cream. In December 1999, he and two colleagues travelled to a remote military installation in Utah to test its effectiveness in killing aerosolized anthrax surrogates. An April 2001 report describing testing at Dugway concluded that the best performing decontamination agents were from University of Michigan, Sandia National Laboratories, and Lawrence Livermore Laboratory (LLNL). The FBI and CIA may have been concerned that there might have been unauthorized access to the Ames strain. That would explain their aggressive prosecution of various matters related to Al-Timimi’s charity IANA charity which was in Ann Arbor 1 mile from the NanoBio office. IANA promoted the views of Bin Laden’s sheiks. Al-Timimi was IANA’s most celebrated speaker. He was in active contact with one of those sheiks, who had been Ali’s religious mentor at university in Saudi Arabia. IANA speaker Ali Al-Timimi worked in the same building as two other DARPA-funded researchers — famed Russian bioweapons scientist Ken Alibek and former USAMRIID Deputy Commander and Acting Commander Charles Bailey. Al-Timimi was a current associate and former student of Bin Laden’s spiritual advisor, dissident Saudi Sheik al-Hawali. Ali Al-Timimi preached on the end of times and the inevitability of the clash of civilizations. He was in active contact with the sheik whose detention had been the express subject of Bin Laden’s 1996 Declaration of War. At GMU, Dr. Bailey would publish a lot of research with the “Ames strain” of anthrax. The anthrax used in the anthrax mailings was traced to Bruce Ivins’ lab at USAMRIID, where Ivins, according to a former colleague, had done some work for DARPA. Al-Timimi would speak along with the blind sheik’s son at charity conferences. The blind sheik’s son served on Al Qaeda’s WMD committee. Al-Timimi’s mentor Bilal Philips was known for recruiting members of the military to jihad. The first week after 9/11, FBI agents questioned Al-Timimi. He was a graduate student in a program jointly run by George Mason University and the American Type Culture Collection (”ATCC”). Ali, according to his lawyer, had been questioned by an FBI agent and Secret Service agent in 1994 after the 1993 World Trade Center bombing. He had a high security clearance for work for the Navy in the late 1990s. The defense webpage reported he hadonce served as the assistant for the White House Chief of Staff Andrew Card. (Mr. Card had been Secretary of Transportation in 1992-1993; from 1993 to 1998, Mr. Card was President and Chief Executive Officer of the American Automobile Manufacturers Association.) As time off from his university studies permitted, Ali was an active speaker with the charity Islamic Assembly of North America.
A laptop evidencing Al Qaeda’s intent on weaponizing anthrax was seized in Baku in July 1998. Two months later, Dr. Ken Alibek, then Program Manager, Battelle Memorial Institute, testified before the Joint Economic Committee on the subject of “Terrorist and Intelligence Operations: Potential Impact on the U.S. Economy”about the proliferation of know-how. Dr. Alibek noted that “[t]here are numerous ways in which Russia’s biological weapons expertise can be proliferated to other countries.” Indeed. Sometimes such proliferation is funded by DARPA and any student who wants to apply to work in the building can submit an application. One applicant accepted was this Salafist preacher seeing signs of the coming day of judgment and the inevitable clash of civilizations. He had been mentored by the sheik named in Bin Laden’s declaration of war in 1996. In 1999, Al-Timimi had a high security clearance for work for the Navy. His father worked at the Iraqi embassy.
Dr. Alibek testified before the House Armed Services Committee Oversight Panel on Terrorism again on May 23, 2000 about the issue of proliferation of biological weapons. He explained: “Terrorists interested in biological weapons are on the level of state- sponsored terrorist organizations such as that of Osama bin Laden; on the level of large, independent organizations such as Aum Shinrikyo; or on the level of individuals acting alone or in concert with small radical organizations.” Dr. Alibek in 2003 told me he knew Ali was a hardliner. More recently he described Ali as a fanatic. Dr. Alibek continued: “Although these groups will produce biological weapons with varying levels of sophistication, they all can potentially cause great damage. *** Furthermore, there is no doubt that we will see future uses of biological weapons by terrorist groups, as there have been several attempts already.” Dr. Alibek explained to the Congressional Committee in May 2000: “When most people think of proliferation, they imagine weapons export. In the case of biological weapons, they picture international smuggling either of ready-made weapons material, or at least of cultures of pathogenic microorganisms. However, this area of proliferation is of the least concern. Even without such assistance, a determined organization could obtain virulent strains of microorganisms from their natural reservoirs (such as soil or animals), from culture libraries that provide such organisms for research purposes, or by stealing cultures from legitimate laboratories.” American Type Culture Collection, the largest microbiologist depository in the world, co-sponsored Ali’s bioinformatics program. Dr. Alibek explained: The proliferation issue is particularly complex for biological weapons. In many cases, the same equipment and knowledge that can be used to produce biological weapons can also be used to produce legitimate biotechnological products ***”
By 2001, Al-Timimi was allowed access to the most diverse microbiological repository in the world and allowed to work alongside staff at the DARPA-funded Center for Biodefense. The Center for Biodefense personnel were working under the largest biodefense award in history. Delta (avirulent) Ames was supplied by NIH. Raymond H. Cypess, president of the germ bank, said of the Ames strain, “We never had it,’ and we can say that on several levels of analysis.” ATCC refuses to confirm to me whether its patent repository, as distinguished from its online category, had Ames, but we can assume government scientists would have ensured that the patent repository was considered at the same time as the online catalog and excluded as a source of the Ames. Dr. Bailey, who may be under a gag order similar to that imposed on USAMRIID personnel, refuses to confirm Ali was not much more than 15 feet from both Dr. Alibek and Dr. Bailey. Through the university counsel, he similarly has failed to address this issue of access to virulent Ames.
Al-Timimi had supervised Cairo-based militants writing for the Pittsburgh-based Assirat and then for IANA. One of them, Kamal Habib, was the founder of the Egyptian Islamic Jihad and a friend of Ayman Zawahiri. The Cairo-based writers Kamal Habib and Gamal Sultan, approached the blind sheik Abdel Rahman about starting a political party in early 1999. On March 1 and 2, 1999, Lynne Stewart and translator Yousry visited Abdel Rahman in prison in Rochester, Minnesota and relayed the proposal. On March 6, 1999, the first press reports appeared quoting the blind sheik’s Cairo lawyer, Montasser al-Zayat, and detainees in a massive trial al-Zayat was defending, stating that Ayman likely was going to use weaponized anthrax against US targets to retaliate against the rendering and detention of the Egyptian militants. On March 9, 1999 following the visit in prison at which the political idea had been proposed, Abdel Rahman issued a statement rejecting a proposal that the Islamic Group form a political party in Egypt. That day, the Islamic Group military commander Mustafa Hamza spoke with the blind sheik’s liaison, US Post Office employee Abdel Sattar. The next month, the Blind Sheik’s publicist Sattar spoke with Taha, the IG head close to the Taliban and Bin Laden, in a three-way call with Cairo attorney Al-Zayat. Sattar also spoke on the telephone with Vanguards of Conquest spokesman Al Sirri (based in London). From the beginning, the weaponization of anthrax for use against US targets was inextricably linked to the detention of senior militant Egyptian leaders, including the blind sheik.
Old Atlantic said
The evidence pointing to al Qaeda or Pakistan, likely with some infusion of knowledge from Stepnogorsk, Kazakhstan or something equivalent is what stands out. The silicon points to a more complex effort than one that started after 9/11 and mailed by 9/18. That means prior knowledge 9/11 was coming.
After WTC 1993, al Qaeda and Pakistan saw that the FBI tends to reset to focus on domestic terrorism. After WTC 1993, the FBI evidently considered Waco the main threat against America, and then provoked a battle. They sent the same sharp shooter there who shot Vicki Weaver while holding her baby, allegedly while behind a door.
Both al Qaeda and Pakistan would have wanted to refocus the US onto a domestic terrorist after 9/11 since neither had an interest in the US invading Afghanistan. They seem to have profiled the FBI and sent out letters that did just that.
The FBI went after Ivins following a long pattern that includes Jewell, Thomas C. Butler, and the many raided in the anthrax case. These include Hatfill, Dr. Berry and others. The FBI was easy to profile this way.
Andrew McCarthy has written about his view, he was involved in prosecutions in the 1990’s of Islamic terrorism. The US government simply didn’t want to refocus from its fixation with the lone white male, even if he is married and has a job and is a respected member of the community like Dr. Thomas C. Butler.
The FBI’s mindset is that it is involved in Second Reconstruction, but this time extended to the whole country.
DXer said
On September 29, 2009, the United States Department of Justice issued the following guidelines for complying with the Freedom of Information Act.
http://cryptome.org/0001/doj092909.htm
Under these guidelines, why isn’t the contract between the FBI and the National Academy of Sciences subject to production? Why hasn’t it been put in the public access file? What exemption is relied upon for withholding production? Section 554(b) is not an exemption available to cite. The exemptions are in the subsections. If one applies, it is subject to withholding. If there is not one that applies, then it is subject to production (and can be redacted as necessary). If the exemption relied upon “the pendency of a law enforcement investigation,” that exemption can be cited and then it can be deposited when the investigation is closed (and the US DOJ has said it is on the verge of closing the matter).
DXer said
I once was talking to a friend of mine, who tells me he is the brother of the lead Egyptian prosecutor in terrorism cases relating to the Vanguards of Conquest, about the idea of doing a book. He’s known Ayman Zawahiri all his life and so I’ve always been interested in his perspective. Now there’s a free technology that allows one to publish online for free where it clicks just like a book. (In fact, for the price of a Barnes and Noble book, it prints and looks just like such a book).
As a test, here is a 120 page book I uploaded last week that now you can click and turn the page and view it in “full page” mode.
If DC Field Office head Mr. Persichini and CIA won’t tell you the solution to Amerithrax and prefers telling you the bedtime story about the crazy, dead guy, I’ll tell you. Frankly, for lead CIA WMD analyst and former Amerithrax FBI agent Jennifer Smith to have not been given all the information by the FBI so that she could do her job is outrageous.
Maybe I’ll call it “This is what happened.” Audio transcripts, photographs… the type of intelligence analysis that you can’t write if in a compartmentalized squad not even permitted to use google or read a library book.
Mohawk Valley Family Portrait
Old Atlantic said
This is a very attractive book. As many photos, drawings, maps, etc. as possible will help with this type of book. Make sure to price it high enough to support the cost of distribution, production, and editing. Even if you do that on this book, price it so that you can pay people on the next one.
Its difficult to know how a book will sell, but too low a price will make you feel bad about it. I would suggest a price around 35 dollars. Also think in terms of 200 pages max and put additional material into a second volume at the same price. People think in terms of price per book instead of pages.
You will have a narrow market of those interested who will buy such a book. Each person whose name is in the book and is not famous is likely to buy the book. So if you have 300 names and charge 35 dollars, you have over 10,000 dollars already.
An easy system for writing books is Latex which is free, you can download it. It does table of contents, index, sectioning, tables, etc. well. You can embed graphics in it. It has a great deal of control if you master it but is not as well suited for a mostly pictures type book.