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

* does the NAS/FBI contract support the sequestering of FBI-submitted documents until the end of the NAS study?

Posted by DXer on October 30, 2009

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does the NAS/FBI contract

support the sequestering of FBI-submitted documents

until the end of the NAS study?


NAS-FBI contract extracts - FOIA disclosure


The NAS/FBI contract refers to possible exemptions from FOIA disclosure requirements and states that the FBI “will mark any information provided to the Contractor (NAS) as exempt from FOIA and list one of the exemptions.”

The NAS/FBI contract also provides that “if a request for information … is requested under FOIA” the Government (???) “shall have the right to disclose any information” … “to the extent provided under the FOIA, notwithstanding any restrictive legends that may have been placed upon it in accordance with the FBI Central Record System.”

The term “Government” is not defined in the contract. The NAS is referred to as “Contractor” and the FBI is referred to as “FBI.”

The above cites are the only references to FOIA which I found in the NAS/FBI contract.

There is no reference in the NAS/FBI contract to withholding information until the end of the NAS study.

There is no reference in the NAS/FBI contract to withholding information without specific listing of a FOIA exemption.


9 Responses to “* does the NAS/FBI contract support the sequestering of FBI-submitted documents until the end of the NAS study?”

  1. Ike Solem said

    One of the more important documents will be a complete list of the private contractors and government agencies that played a role in the anthrax investigation from the point of Bob Steven’s diagnosis as a victim of terrorism onwards.

    The list is pretty long. The Bob Stevens case didn’t have much evidence. No letter was recovered, but the genetic identity of the Bob Stevens anthrax strain was recovered. The microbe that passed through Bob Steven’s body should be a identical genetic clone of whatever infected him, although a mutation or two is also possible.

    Initially, the recovered Daschle letter and its contents were brought to USAMRIID at Fort Detrick MD. So, that’s one agency. The spores were quickly shown to be free of smallpox, but they were also highly engineered to form a perfect aerosol.

    Such knowledge is not widespread, but is rather top-secret and limited to a handful of people and institutions within the U.S. & Russian & British biodefense establishments. The ability to form a “perfect spore aerosol” is at the heart of all biological weapons programs, and all indications are that it requires unique equipment and top-secret chemical recipes, as well as a lab equipped with BSL-4 level containment ability, in order to avoid infecting everyone in the area – an equally challenging task. Overall, this is more like separating uranium isotopes than constructing a car bomb – only technologically advanced states can even think about doing it. The people involved will also have to be vaccinated – this is no basement operation.

    Within 48 hours of the USAMRIID report, samples were flown to West Jefferson Ohio, where a complementary and controversial “second opinion” analysis was conducted by unknown and unnamed scientists from Battelle Memorial Institute’s West Jefferson facility, which specializes in microbial aerosols and anthrax vaccines.

    A further agency was the Armed Forces Institute of Pathology (AFIP), which conducted a series of X-ray scattering experiments on the spores in fall 2001. Such scattering spectra can be used to identify the elemental composition of the material; this is where the large silicon spike was seen. More importantly, no aluminum was found, which matters because Iraq had been known to make an aluminum-based anthrax powder.

    Now, if this had been a normal investigation, there would have been no question that you were looking at a high-tech preparation of anthrax – and the only people known to have made that were the people employed by a handful of “biological threat assessment projects” run in the 1990s, inspired by the revelations about the massive Soviet biowarfare program that operated in total secrecy during the 1970s and 1980s, at a truly gigantic scale. The most probable explanation of the letters would then be that some of the weaponized material was set aside or stored by persons unknown, who then decided to use it to start a panic after 9/11.

    Okay, so now the FBI wants to know, what strain of anthrax infected these victims, and is the same strain of anthrax in all of them? Now, things get confusing. The strain was ID’d as the Ames strain in all cases – or was it? To know that, you need the documents from all those who were involved in the sequencing and analysis. This is a longish list:

    Ibis Biosciences

    TIGR Genomic Institute

    Some US Navy lab in San Diego???

    Plenty of questions there.

    This was not the end of USAMRIID’s involvement – they quickly became the central clearinghouse for thousands and thousands of anthrax swabs, samples – all to be tested for the presence of anthrax as soon as possible. This of course could lead to some contamination problems due to the high turnover, right?

    That’s a 2004 article on contamination issues at USAMRIID – back when Hatfill was target #1. The scale was truly monumental:

    Over roughly eight months, USAMRIID researchers ran tests on 30,000 suspect envelopes, packages and other items that arrived at the lab.

    They also tested about 320,000 environmental samples from such places as the Hart Senate Office Building and Washington, D.C.’s Brentwood postal center, which lost two employees exposed to the lethal letters. (In addition to the Florida victim and the postal workers, an elderly woman from Oxford, Conn., and a Vietnamese immigrant from New York City were killed.)

    “They were running just fantastic numbers of (anthrax) samples,” says biodefense expert D.A. Henderson of the University of Pittsburgh. “I’m not sure what they have accomplished is appreciated.”

    Astonishingly, this story was ignored during the Hatfill witch hunt (a textbook case of leak-led storytelling):

    In April 2002, four months after Ivin’s initial suspicions, the contamination resurfaced. A microbiologist spotted the liquid slurry in which anthrax is grown leaking from flasks inside a secure lab suite. He reported the episode up the chain of command, which set off alarms throughout the lab. Ivins did more tests.

    This time he found that three strains of anthrax had escaped the supposedly secure “Biosafety Level 3,” or BL-3, laboratory, which is designed to enable scientists to safely work with deadly microbes. Two of the strains were used in biodefense work. One of them may have come from the envelope sent the previous October to Daschle’s office.

    Powdered anthrax from the Daschle envelope so readily surfed currents of air that it frightened USAMRIID experts who opened the envelope.

    “The good news is nobody got the disease,” says Alan Zelicoff, a biodefense expert who is now a consultant at ARES Corp., a risk analysis firm. “The bad news is that nobody got the disease because just about everybody near the BL-3 suite had been vaccinated.”

    And then, we find a flask in USAMRIID “controlled by Ivins” that had the anthrax strain in question in it – wow, a lawyer would have a hard time tearing that argument apart.

    Finally, we have the issue of the curious “technological advance” that allowed investigators to differentiate between subtypes of the Ames strain that differed from one another by a single base pair out of the five million that make up the anthrax genome. This was the supposed “fingerprint” that “uniquely” tied the Ivins flask to the letters.

    However, this is nonsense. Anthrax bacteria are genetic clones of their parents, and the contents of the Ivins flask were distributed to multiple institutions, because the Ames strain was also the challenge strain used to test the anthrax vaccine. Those other institutions were not rigorously scoured for evidence of Ames – and yet, even so, there was another positive ID from a separate institution that remains unnamed – the FBI claimed they were sure that the sample had come from Ivins.

    Secondly, the FBI has not done the obvious thing – attempt to make the powdered spores using only equipment that Ivins had available. Or rather, they tried and failed to produce anything like it.

    All told, the whole thing is just ridiculous. The worst bioterror attack in U.S. history – the one that new FBI agents had been warned about for years, the subject of dire warnings and weighty seminars – and then, the first FBI investigation is flushed, a lynch mob is formed to chase down Steven Hatfill, the case stagnates for years, and then they try and blame it all on some guy that they managed to hound to the point of alleged suicide – and after he’s dead, they go public with one of the most ridiculously unbelievable trains of scientific garbage – what is obviously a concocted story cooked up with the aid of the DOE’s National Labs, namely Sandia, which is managed by Lockheed Martin for the DOE. Battelle is one of the DOE’s primary contractors, by the way… they run the “clean coal and carbon capture” nonsense as well.

    What’s really unbelievable is that the National Academy of Sciences is participating in the whole thing, primarily by agreeing to a two-year timetable. The U.S. Congress should demand that the timetable be speeded up to three months – that should be enough time to look over the details.

    • Anonymous Scientist said

      I think you summarize the FBI’s fairy tale of breathtaking audacity quite nicely.

      The worrying thing is – they appear to be getting away with it. Even the elected officials (Leahy who is chairman of the judicial oversight committee !) who were victims of attemtped murder with a weapon of mass destruction and who publicly accused the FBI of concealing a conspiracy, seems to have fallen silent these days.

    • Anonymous Scientist said

      Ike wrote:
      “Within 48 hours of the USAMRIID report, samples were flown to West Jefferson Ohio, where a complementary and controversial “second opinion” analysis was conducted by unknown and unnamed scientists from Battelle Memorial Institute’s West Jefferson facility, which specializes in microbial aerosols and anthrax vaccines.”

      Actually Richard Preston gives the names of the Battelle scientists who gave the second opinion. They are Michael Kuhlman and Allyson Simons.

      • Anonymous Scientist said

        Well, things do get interesting when you Google “Michael Kuhlman” and “Battelle”.

        One of the hits is this link:

        “A business entity spun off from Battelle Memorial Institute will manage NBACC for DHS as an FFRDC. Battelle is well suited for this job as it has experience successfully running other US National Laboratories. (If you need to name names please cite Pat Fitch, Mike Kuhlman and Jim Burans – they are running the place.)”

        The name Mike Kuhlman appears on the above link right next to our old friend Jim Burans.
        Burans, as you recall, was the guy who was really running the show at the intial FBI briefing to the media in August 2008. He was introduced as being a scientist – although the FBI carefully avoided mentioning that he works for Battelle.

        • Anonymous Scientist said

          A person with the qualifications below is badly needed on the NAS committee – at least one that doesn’t have the enormous conflicts of interests that Kuhlman has:

          Michael R. Kuhlman, Battelle National Biodefense Institute

          Dr. Kuhlman is director of the National Biological Threat Characterization Center of the Department of Homeland Security, National Biodefense Analysis and Countermeasures Center. Formerly he was manager of Battelle’s Aerosol and Process Technologies (APT) product line, a multidisciplinary technical expertise focused on problems associated with airborne hazards: their production, propagation, detection, and mitigation. In this position he manages over 100 research staff members, and is responsible for state-of-the-art aerosol research laboratories. Throughout most of his 25-year career with Battelle, Dr. Kuhlman has been responsible for the performance and technical oversight of research programs involving various aspects of aerosol science, ranging from the dynamics of aerosol particles to the generation, collection, and detection of biological aerosols. The applications of this work have ranged from nuclear safety to atmospheric chemistry to the technical assessment of various respirable hazards. Dr. Kulman received his Ph.D. in environmental science and engineering from the University of North Carolina.

  2. DXer said

    Let me clarify how FOIA redactions are done. The exempt material is blackened out by a black magic marker. The subsection under which the redaction applies is indicated by typewritten (b)(6) or whatever applies. Having the NAS specify the exemption is not the priority. That has been done by the FBI. The obligation of the NAS is to put the documents, as redacted, in the public access file and make them available for request upon payment of a reasonable fee.

    As for the justification by the NAS more generally why it is not producing the documents when there is no justification under FACA for their withholding, the reason NAS does not state a justification is because there is none (as one can see from the plain language of the statute). While NAS may perceive a policy justification or a personal or bureaucratic self-interested reason (the NAS is making $890,000 off the contract), to withhold the documents violates the mandatory language of the statute. Ironically, the money is funding the staff acting in knowing violation of the statute.

  3. DXer said

    “The Academy shall make available to the public, at reasonable charge if appropriate, written materials presented to the committee by individuals who are not officials, agents, or employees of the Academy, unless the Academy determines that making material available would disclose matters described in that section.”

    “After publication of the final report” of subparagraph (6) only governs the identification of individuals who reviewed the NAS draft report. Such language could have been added to the mandatory production of documents of “written materials presented to the committee by individuals who are not officials, agents, or employees of the Academy, unless the Academy determines that making material available would disclose matters described in that section.”

    But it did not.

    NAS cannot read into a statute the language it failed to have added at the time of the passage of the law.

    If as a matter of policy it disagrees with the statute as written, it can seek to have it amended. Failing that, it should comply with the law and produce all documents given to it (that are revealed by the contract to be FOIA-ready i.e., already processed by the FBI). That is, they should be deposited into the open file and upon payment of the reasonable fee, distributed to requesters.

    As a cursory review of the documents and the contract itself would confirm, the FBI has redacted all information subject to Section 554 exemptions. The withholding that NAS is engaged in pending completion of its review is something that NAS unsuccessfully sought in the past. Its recourse is before Congress but in the meantime it needs to comply with the rule of law.

    It is FACA, not FOIA, that applies.

    Here are the pertinent excerpts from the Federal Advisory Committee Act.

    The Federal Advisory Committee Act became law in 1972 and is the legal foundation defining how federal advisory committees operate. The law has special emphasis on open meetings, chartering, public involvement, and reporting. This version is from the House web site, complete with all Amendments and annotations.
    5 USC TITLE 5 – APPENDIX 01/02/01





    Sec. 2. Findings and purpose
    (a) The Congress finds that there are numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government and that they are frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government.


    Sec. 3. Definitions

    For the purpose of this Act –
    (2) The term ”advisory committee” means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as ”committee”), which is –
    (ii) any committee that is created by the National Academy of Sciences or the National Academy of Public Administration.

    Sec. 11. Availability of transcripts; ”agency proceeding”


    Sec. 15. Requirements relating to the National Academy of Sciences and the National Academy of Public Administration

    (3) The Academy shall ensure that meetings of the committee to gather data from individuals who are not officials, agents, or employees of the Academy are open to the public, unless the Academy determines that a meeting would disclose matters described in section 552(b) of title 5, United States Code. The Academy shall make available to the public, at reasonable charge if appropriate, written materials presented to the committee by individuals who are not officials, agents, or employees of the Academy, unless the Academy determines that making material available would disclose matters described in that section.

    (6) After publication of the final report, the Academy shall make publicly available the names of the principal reviewers who reviewed the report in draft form and who are not officials, agents, or employees of the Academy.

  4. DXer said

    The relevant provision is the provision that relates to SECURITY (C.5) and not the provision that relates to the proposal (which would refer, I think to the NAS proposal) being subject to FOIA. Lew will upload the pertinent provision after lunchtime in France. (Or the reader can refer to the full contract posted in a different thread).

    The contract does not restrict production. Nor does it provide an independent basis for withholding. Instead, it confirms that the documents have been processed under FOIA before being given to the NAS. The reference to the final report does not provide a legal basis for withholding given the statutory command. It is merely a reference to the final report.

    One would have to find statutory authority under FACA for withholding during pendency of review. There is none. Instead, NAS has explained the law to be as follows:

    “This project is subject to Section 15 of the Federal Advisory Committe
    Act (FACA); which states that all written materials presented to the
    committee (at data-gathering meeting, between such meetings, or at any
    other time in the course of the project) by any organization (whether
    government or private) or by individuals who are not officials, agents,
    or employees of the institution are subject to public disclosure and
    must be listed in the Public Access File.”

    The NAS is correct in its explanation. Just derelict in its duty of production under FACA.

  5. DXer said

    To reiterate in this thread, there is nothing in the contract that provides authority for, or requires, the delay of production of the documents processed under FOIA by the FBI. To the contrary, they are FOIA-ready. They are ready to be produced. Redactions have been made. The public policy favoring not producing those exempt under 554(b) has been addressed by the redactions.

    Rather than providing cover for the NAS withholding of documents until after their study is done, it has revealed it to have no legal basis. The point of Lew in pressing for the document was to find out whether NAS was under contractual restriction.

    No statutory basis has been suggested by NAS despite repeated requests for the statutory language authorizing such delay to be quoted.

    As 911 demonstrated, timing is everything. Some large media organization should bring suit if they are not promptly produced.

    Now NAS is withholding all the FOIA-processed documents THAT IT IS STATUTORILY OBLIGATED TO PRODUCE UPON REQUEST (AND PAYMENT OF A REASONABLE FEE) UNDER THE FEDERAL ADVISORY COMMITTEE ACT. There is not even a single aerosol scientist on the panel.

    They should comply with the law lest the National Academy of Sciences be EXHIBIT A in the argument that a self-interested bureaucracy stands in the way of sharing information that is necessary for intelligence analysis. The NAS withholding of documents is akin to the FAA withholding of documents from the 911 Commission. (See recent book by former 911 Commission counsel) Heads of agency from the head of MI5 to the head of the US Homeland Security to the 911 Commission have pointed to how the sharing of such information is critical to national security in a participatory democracy. The statutory provisions have already balanced the conflicting needs (for example, protecting classified information, personal privacy etc.) The self-interested agenda of the NAS is not one contemplated by the FACA. The NAS DID NOT PREVAIL IN GETTING SUCH LANGUAGE WRITTEN INTO FACA. IF IT DOES NOT LIKE THE LAW, THEN THE RULE OF LAW CONTEMPLATES THEY SHOULD SEEK ITS AMENDMENT. UNTIL FACA IS AMENDED, IT IS THE RESPONSIBILITY OF THE NAS TO COMPLY WITH THE PLAIN LANGUAGE OF THE LAW including the provisions that makes mandatory upon request (and payment of a reasonable fee if deemed necessary) documents not exempt under FOIA 554(b).


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