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

* you’re invited to … the Anthrax Mailings Investigation … a seminar to discuss the investigation, the scientific aspects, the lessons learned, and the broader implications of the case

Posted by Lew Weinstein on November 26, 2010

The FBI has closed the 2001 anthrax mailings investigation.  The alleged preparer and mailer of the anthrax, U.S. Army scientist Bruce Ivins, committed suicide before the FBI announced he was the sole perpetrator, so the case was never tried in court.

A group of experts (see agenda below) assembled by Kenneth Dillon at Scientia Press and UCLA-based researchers Dr. Peter Katona and Prof. Michael Intriligator, will discuss the investigation, the scientific aspects, the lessons learned, and the broader implications of the case.  (Speaker bios are attached.)

Please RSVP, acceptances only, to Joseph R. McGhee at the IGCC Washington office:  Phone (202) 974-6295; Fax (202) 974-6299; email: joseph.mcghee@ucdc.edu .  For more on IGCC, see http://www-igcc.ucsd.edu.

******

PROGRAM:

1:00 pm:  Registration, coffee and tea

1:30 pm:  Introduction:  Peter Katona, UCLA, Master of Ceremonies

1:50 pm:  Panel I:  The Investigation

  • Moderator:  Lewis Weinstein, author, Case Closed
  • Ross Getman, author, Anthrax and al Qaeda
  • Paul Kemp, attorney of Bruce Ivins
  • Meryl Nass, Mount Desert Island Hospital, http://anthraxvaccine.blogspot.co
  • James Van de Velde, consultant on terrorism

3:30 pm:  Break

3:45 pm:  Panel II:  Lessons Learned and Broader Implications

  • Michael Intriligator, UCLA
  • Peter Katona, UCLA
  • Leonard Cole, Rutgers University, author, The Anthrax Letters

5:00 pm:  End


SPEAKERS …

Leonard A. Cole is an expert on bioterrorism and terror medicine.  He is an adjunct professor in the Division of Global Affairs at Rutgers University, Newark, NJ.  Trained in the health sciences and public policy, he holds a Ph.D in political science from Columbia University, and a doctorate from the University of Pennsylvania School of Dental Medicine.  Cole has written numerous articles for professional journals and general publications.  He has lectured widely and made invited presentations to several government agencies including the U.S. Department of Energy, the Department of Defense, the Centers for Disease Control and Prevention, and the Office of Technology Assessment.  He is the author or editor of nine books, including Terror:  How Israel Has Coped and What America Can Learn (2007), Essentials of Terror Medicine (co-editor, 2009), and The Anthrax Letters (revised, 2009).

Kenneth J. Dillon is an historian and science writer.  He has a Ph.D in history from Cornell University and teaches a course in European history as an adjunct at Marymount University.  Dillon served 11 years as a foreign service officer, including as an intelligence analyst.  He has also worked as a medical device entrepreneur and currently has a scientific publishing business.  Dillon has written articles and books on history, science, and medicine; and he has made theoretical contributions in history and science.  His articles on the anthrax mailings case are at www.scientiapress.com.

Ross Getman graduated from Harvard Law School in 1984 where he was a member of the Law Review.  After working for Arnold & Porter, and Jones, Day, Reavis & Pogue in Washington, D.C., and living in Arlington for 15 years, he returned to his roots in Upstate New York.  In past years, in alliance with public interest groups and class action law firms, he advocated that soda should not be sold in public schools.  Separately, he represented a soda industry whistleblower that forced numerous recalls internationally relating to soft drinks that contained benzene and forced the reformulation of drinks worldwide.  Relying on industry lab testing, he caused recalls of bottled water in the Northeastern U.S. containing the carcinogen bromate.  Getman has closely followed the Amerithrax investigation since December 2001 and has written Anthrax and Al Qaeda:  Infiltration of US Biodefense.  The Washington Post credited Getman with first publicly identifying the Pakistani scientist Rauf Ahmad with helping Ayman Zawahiri in his plan to develop anthrax as a weapon.

Michael D. Intriligator, Ph.D is Professor Emeritus of Economics and Professor of Political Science, Professor of Public Policy, and Co-Director of the Jacob Marschak Interdisciplinary Colloquium on Mathematics in the Behavioral Sciences at UCLA.  He is also a Senior Fellow of the Milken Institute.  He has taught economic theory, econometrics, mathematical economics, international relations, and health economics; and he has received several distinguished teaching awards.  Intriligator is the author of more than 200 journal articles and other publications in economic theory and mathematical economics, econometrics, health economics, reform of the Russian economy, and strategy and arms control, his principal research fields.  He has authored or edited many books in economics and international relations.  Intriligator is Vice Chair of Economists for Peace & Security and past president of the Peace Science Society (International) and Western Economic Association International.  Intriligator is a member of the Council on Foreign Relations and the International Institute for Strategic Studies, and is listed in Who’s Who in America, Who’s Who in the World, and Who’s Who in Economics.  He co-teaches a terrorism seminar and has co-edited Countering Terrorism and WMD (2006) and Global Biosecurity:  Threats and Responses (2010).

Peter Katona, MD is Associate Professor of Clinical Medicine at the David Geffen School of Medicine at UCLA in Infectious Diseases.  He has worked at the Centers for Disease Control and Prevention and for Apria Healthcare as the corporate medical director.  Katona has been a consultant to the Los Angeles County Department of Health Services on the development of an information management system geared toward biological terrorism preparedness (known as the Health Alert Network) and as medical consultant to the county Emergency Medical Services Agency.  He is co-founder of Biological Threat Mitigation, a bio-terror consulting firm and has an active infectious disease practice at UCLA.  Katona is co-editor of Countering Terrorism and WMD (2006) and  Global Biosecurity:  Threats and Responses (2010).

Paul F. Kemp, JD has practiced law in Maryland since 1974 and in the District of Columbia since 1976.  Kemp is a fellow of the American College of Trial Lawyers.  He focuses his practice on litigation in the state and federal courts, primarily in the area of white-collar crime and general criminal practice.  For white collar criminal defense, Kemp has been cited in The Best Lawyers in America; Maryland Super Lawyers “Top 50” Attorneys lists, and D.C. Super Lawyers “Top 50” Attorneys lists.   In 2002, Washingtonian named Kemp one of its “Top Seventy Five Lawyers” in the Washington area.  Prior to entering private practice, Kemp served as an Assistant State Public Defender with the Maryland Public Defender’s Office, an Assistant State Attorney with the Office of the Maryland Attorney General and Deputy Federal Public Defender, United States Department of Justice, District of Maryland.  During the “Amerithrax” investigation, Kemp represented Bruce Ivins from May, 2007 until his death on July 29, 2008.

Meryl Nass, MD has a varied career practicing inpatient internal medicine, running an outpatient clinic for complex disorders, investigating epidemics, and blogging.  She identified the world’s largest epidemic of anthrax (affecting over 10,000 Rhodesians in 1980) as a biological warfare event in 1992 based on careful analysis of its different features; diagnosed Cuba’s 1993 neuropathy epidemic as due to a combination of cyanide exposure and nutritional deficiency; investigated the safety and efficacy of anthrax vaccine; and has discussed both the scientific and investigative features of the anthrax letters case.  Nass has testified before 3 Congressional committees and provided requested testimony to 4 additional hearings on bioterrorism, anthrax vaccine, and Gulf War Syndrome.  Nass may be the only person who has consulted both for the Cuban Ministry of Health and the Director of National Intelligence.  Her blog http://anthraxvaccine.blogspot.com is an important source for discussion of the anthrax case.

James Van de Velde, Ph.D., is a former White House Appointee for nuclear weapons arms control under President George H.W. Bush Sr., Lecturer of Political Science and residential college dean at Yale University, State Department foreign service officer and naval intelligence reserve officer.  He was a fellow at the Stanford Center for International Security and Arms Control and at the US-Japan Program, Center for International, Harvard University.  From 2003-2004, he volunteered for a Presidential recall (an active duty mobilization) and served as a Senior Intelligence Analyst for al-Qa`ida and biological weapons at the Joint Interagency Task Force for Counter Terrorism (JITF-CT), at the Defense Intelligence Agency.  Van de Velde made two trips to the detention facility at Guantanamo Bay, Cuba, to interview an individual involved in al-Qa`ida interest in developing anthrax in Afghanistan.

Lewis M. Weinstein has had a career that included top management posts in the private, public, and not-for-profit sectors.  Most recently, he was for 15 years the CEO of the Public Health Research Institute, an organization specializing in sophisticated infectious disease research.  In 1980, he was candidate for U.S. Congress.  Lew received an undergraduate degree in engineering from Princeton University and an MBA from the Harvard Business School.  Since retiring in 2005, Lew has become a fulltime author.  His third novel, CASE CLOSED, is about the 2001 anthrax attacks and the subsequent FBI investigation.  His CASE CLOSED blog (https://caseclosedbylewweinstein.wordpress.com/) has become one of the primary sources for information and discussion of the anthrax case.  It is Lew’s view that the FBI has either not solved the case or is withholding crucial aspects of what really happened.

******

LMW COMMENT …

The FBI’s case against Dr. Ivins is clearly bogus: no evidence, no witnesses, an impossible timeline, science that proves innocence instead of guilt. So what really happened? And why?

I can imagine only 3 possible “actual” scenarios …

  1. The FBI has more evidence against Dr. Ivins but is, for some undisclosed reason, withholding that evidence … POSSIBLE BUT NOT SO LIKELY
  2. The FBI, despite the most expensive and extensive investigation in its history, has not solved the case and has no idea who prepared and mailed the anthrax letters that killed 5 Americans in 2001 … EVEN LESS LIKELY
  3. The FBI knows who did it (not Dr. Ivins) but is covering up the actual perpetrators, for undisclosed reasons … THE MOST LIKELY SCENARIO

The “fictional” scenario in my novel CASE CLOSED has been judged by many readers, including a highly respected official in the U.S. Intelligence Community, as perhaps more plausible than the FBI’s unproven assertions.

* buy CASE CLOSED at amazon *

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69 Responses to “* you’re invited to … the Anthrax Mailings Investigation … a seminar to discuss the investigation, the scientific aspects, the lessons learned, and the broader implications of the case”

  1. richard rowley said

    Posted by Mister Lake:
    ———————————-
    December 1, 2010 at 3:53 pm
    “Actually, AT LEAST ONE of the St Petersburg hoax letters was mailed on September 20th 2001:”

    I think that article is in error. Erin O’Connor first learned that she had anthrax on the 12th of October. She remembered the St. Peterburg letter and it was tested. But, it tested negative. So, they searched again and found the real letter.

    That article is a summary, but it doesn’t say where the information came from. It’s probably a misinterpretation by the author. I think a better source is needed. Until then, it’s probably safe to assume that all of the St. Peterburg letters were postmarked on October 6. That seems to be what The St. Peterburg Times indicates, and they actually received one of the letters.
    ===============================================================
    How about we go to Professor Don Foster, one-time FBI consultant on……Amerithrax?
    ——————–
    http://www.ph.ucla.edu/epi/bioter/messageanthrax.html
    ——————————————————–

    On the phone that day, S.S.A. Fitzgerald told me that Erin O’Connor (case 2), an NBC aide, had been diagnosed with cutaneous anthrax 17 days after opening a powder-filled letter addressed to NBC News anchor Tom Brokaw. The letter, postmarked on September 20 in St. Petersburg, Florida, began:

    “THE UNTHINKABEL” (the Ns are reversed as Cyrillic characters in the published Vanity Fair article)

    SAMPLE OF HOW IT WILL LOOK

    Brief but ominous, the handwritten note threatened bioterror attacks on New York, Chicago, Los Angeles, and Washington, D.C.

    I found the text curious for a number of reasons. First, the quotation marks were done Russian-style, with the opening quotes below the line, and the document’s backward N’s resembled the letter I in Russia’s Cyrillic alphabet. But a bilingual Russian would be unlikely to confuse English and Cyrillic characters. This appeared to be someone’s attempt to make his writing look Russian, or at least foreign. The same went for the block letters, which Russian adults don’t use.

    The Brokaw letter matched two other biothreat letters, also from St. Petersburg, mailed 15 days later — same writing, same backward N’s and Russian quotes, same threats of imminent bioterror. One was sent to New York Times reporter Judith Miller, a co-author of Germs: Biological Weapons and America’s Secret War, and the other to Howard Troxler, a columnist for the St. Petersburg Times. Troxler opened his powder-packed letter on Tuesday, October 9. Miller opened hers at her office on Friday the 12th”the same day the NBC infection was diagnosed.

    “THE UNTHINKABEL” looked like a deliberate misspelling, but why had it been placed in quotation marks” Turning to the Internet, I found announcements for a disaster-management conference to be held in Orlando called “It Could Happen to You — Preparing for the Unthinkable” and featuring talks on bioterror readiness. The St. Petersburg letters, with their arrows and lists and dashes, vaguely resembled a slide from a Power-Point presentation, a common feature at scientific conferences. Then, too, Howard Troxler’s surname — in the letter proper, though not on the envelope — was spelled “TOXLER.” Could the error have been in-advertent, I wondered, a reflexive misspelling by someone used to writing such words as “toxic,” “toxicity,” “toxins,” “toxicology,” “toxoid?”
    ============================================================
    Just on the chronology question: Foster has the earliest St Pete letter on the same day as the summary I already posted: September 20th. This is 12 days before Bob Stevens checked himself into a hospital………

  2. richard rowley said

    And from Wikipedia a timeline of October 2001 which characterizes what HHS Sec Tommy Thompson said on Oct 45h:

    http://en.wikipedia.org/wiki/Timeline_for_October_following_the_September_11_attacks#Friday.2C_October_5.2C_2001
    ——————————————
    (composite)
    Thursday, October 4, 2001

    3:30 p.m. EDT: At a White House press briefing, Health and Human Services Secretary Tommy Thompson states that a 63-year-old Lantana, Florida resident was admitted to a hospital on Tuesday with non-contagious pulmonary anthrax. The British-born outdoorsman is the only known case, and the FBI, HHS, and CDC state that there is no evidence to support that this would be an act of bioterrorism (he dies later that day). See 2001 anthrax attacks for later developments, showing that this was an act of terrorism.

  3. richard rowley said

    Post by Mister Lake:
    ——————–
    Richard Rowley wrote:“That was a case involving ricin………..in 2003!”

    No, I was right. The St. Petersburg letters also mentioned trucks. Here’s the information from the St. Peterburg Times:

    >p>The cryptic letter misspelled Troxler’s name and had little punctuation. It said:

    “Howard Toxler … 1st case of disease now blow away this dust so you see how the real thing flys. Oklahoma-Ryder Truck! Skyway bridge-18 wheels.”
    ===========================================================
    Uh, that’s ONE truck mentioned specifically and since the Oklahoma City bombing was via a rented truck (a Ryder? truck), that is the evident frame of reference for the note. So the comparison being made by the AUTHOR of the note is between “this dust” (evidently the pseudo-anthrax contained in the letter)and a prior terrorist attack in the mid-1990s in Oklahoma City. But the note DOESN’T talk about ‘trucking’ per se. It talks about USING (ie abusing) trucks for a terroristic purpose. And it does so 1-2 days after HHS Secretary Tommy Thompson held a press conference in which he said that Stevens’ anthrax could well have been acquired (ie he could have been infected) in a North Carolina or other wilderness area. Meaning that the letter writer was going out on a limb in making the terrorist connection. The ONLY question was(is): did the letter-writer know something Tommy Thompson DIDN’T know on Oct 5th/6th?
    (and if so, HOW would he know that?)

  4. richard rowley said

    Partial post by Mister Lake:
    —————-
    There are details of what was written in the letters somewhere. As I recall, it had something to do with truckers and trucking, but I could be wrong.
    ———————————————————–
    You are. That was a case involving ricin………..in 2003!

    http://en.wikipedia.org/wiki/2003_ricin_letters

    The 2003 ricin letters refer to two ricin-laden letters found on two separate occasions between October and November 2003. One letter was mailed to the White House and intercepted at a processing facility; another was discovered with no address in South Carolina. A February 2004 ricin incident at the Dirksen Senate Office Building was initially connected to the 2003 letters as well.

    The letters were sent by an individual calling him or herself “Fallen Angel”. The sender expressed anger over changes in federal trucking regulations and stated that they owned a trucking company. As of 2008, no connection between the Fallen Angel letters and the Dirksen building incident has been established. A $100,000 reward was offered in 2004 by the federal law enforcement agencies investigating the case, but to date the reward remains unclaimed.
    ————————————————————–

  5. richard rowley said

    Previously posted by Mister Lake:
    ————————-
    The St. Petersburg letters were postmarked after the news broke about Bob Stevens. They were postmarked October 6, the day after Stevens died and three says before the senate letters were postmarked.
    ———————————————————
    Actually, AT LEAST ONE of the St Petersburg hoax letters was mailed on September 20th 2001:
    ———-
    http://www.historycommons.org/timeline.jsp?anthraxattacks_other=anthraxattacks_anthrax_letters___hoax_letters&timeline=anthraxattacks

    ———————————————————
    September 20-October 15, 2001: Hoax Anthrax Letters from St. Petersburg Initially Thought to Be Real On September 20, 2001, a letter purporting to contain anthrax is postmarked in St. Petersburg and addressed to NBC News anchor Tom Brokaw. On September 25, Erin O’Connor, an assistant to Brokaw, gets sick with cutaneous anthrax. During the first days of the anthrax investigation in early October, it will be assumed that O’Connor got sick from the St. Petersburg letter. A brief handwritten note is found in the letter with some powder. The note threatened biological attacks on New York, Chicago, Los Angeles, and Washington, DC. The letter contains misspelled phrase “THE UNTHINKABEL” with the Ns reversed. On October 5, two more letters are sent from St. Petersburg that resemble to earlier letter to Brokaw. For instance, it is written in the same capitalized, blocked letters, the Ns are reversed, there are similar biological threats made, and there is a powdery substance inside. One of the letters is sent to New York Times reporter Judith Miller, who is a co-author of Germs: Biological Weapons and America’s Secret War, a book published just days earlier. The other letter is to Howard Troxler, a columnist for the St. Petersburg Times. Troxler opened his letter on October 9 and Miller opened hers on October 12. But laboratory analysis soon determines that the powder in all three of the St. Petersburg letters is non-toxic. Furthermore, it is learned that a different letter containing real anthrax was sent to Tom Brokaw, explaining O’Connor’s infection. [Vanity Fair, 9/15/2003]
    Entity Tags: Erin O’Connor, Judith Miller, Tom Brokaw, Howard Troxler
    Category Tags: Anthrax Letters & Hoax Letters
    ————————————————————–
    THAT (the chronology) is PRECISELY why the St Petersburg hoax letters should have been front and center in evaluating the nature of the anthrax attacks. Even the Oct 5th or 6th letters reflect a knowledge that Stephens’ illness was NOT a product of his nature sojourns in North Carolina as the Adminstration was claiming after Stephens’ diagnosis…..

    • If Ed Lake can forget the evidence that tends to exonerate Ivins, then how much easier is it for the FBI/DOJ? How much easier is it for the FBI/DOJ to hope the public/Senate forgets?

    • Erin Again said

      Anthrax articles from MSNBC

      Anxious About Anthrax
      A few cases do not an epidemic make. But they’re unprecedented; worry over what’s next is contagious

      By Sharon Begley and Michael Isikoff
      Newsweek

      Oct. 22 issue — At first, the anthrax scares popping up everywhere could be dismissed as t

      Postmarked St. Petersburg, Fla., it arrived Sept. 25, with no return address. When Brokaw’s assistant, Erin O’Connor, opened it, she found white powder and …
      http://www.anthraxinvestigation.com/msnbc.html

      NBC, the FBI reported, had received a suspicious business letter addressed to “Nightly News” anchor Tom Brokaw. Postmarked St. Petersburg, Fla., it arrived Sept. 25, with no return address. When Brokaw’s assistant, Erin O’Connor, opened it, she found white powder and a

      • DXer said

        The anthrax letters: a medical detective story – Google Books Result

        Leonard A. Cole – 2003 – Political Science – page 69
        It might be one from September 18,” she responded. … Erin O’Connor, may have been infected by an anthrax-filled letter some weeks earlier. …
        books.google.com/books?isbn=030908881X…

      • Erin Again said

        The anthrax letters: a medical detective story – Google Books Result

        Leonard A. Cole – 2003 – Political Science – page 69
        It might be one from September 18,” she responded. … Erin O’Connor, may have been infected by an anthrax-filled letter some weeks earlier. …
        books.google.com/books?isbn=030908881X…

    • http://www.sptimes.com/News/101301/TampaBay/Brokaw_s_aide_tests_p.shtml

      “The letter was postmarked in St. Petersburg on Sept. 20 and opened Sept. 25, authorities said. ”

      The Troxler letter is shown lower down and looks like its postmarked October 5, 2001.

      Historycommons.org:

      “On October 9, two letters containing deadly anthrax spores are postmarked. One letter is sent to Senator Tom Daschle (D-SD) and the other is sent to Senator Patrick Leahy (D-VT). The letters are sent from a mailbox in Trenton, New Jersey. They could be sent any time after 5 p.m. on October 6 (the last pick up on the day, a Saturday), and before 5 p.m. on October 9. (There is no pickup on October 7, a Sunday, and October 8 is Columbus Day.) The letter to Daschle is opened by one of his staffers on October 15 (see October 15, 2001).”

      It is possible for one person to have mailed the letters from Princeton Sep 17/18, drove to Florida, mailed the first St. Petersburg on Sep 20, 2001, mailed the Oct 5, 2001 from St. Petersburg, driven to Princeton and mailed the Princeton letter between Oct 6, 2001 and Oct 9,2001. Of course, that sole person could not have been Ivins.

      But it would fit an al Qaeda person, since they were using locations in NJ and Florida.

  6. anonymous said

    http://www.fredericknewspost.com/sections/news/display.htm?StoryID=113107

    Amerithrax experts debate FBI findings, insist Ivins was innocent
    Originally published November 30, 2010

    By Megan Eckstein
    News-Post Staff

    Amerithrax experts debate FBI findings, insist Ivins was innocent

    Staff file photo

    Bruce Ivins

    Barbara Bell DDS Banner Ad

    WASHINGTON — The FBI may have closed its Amerithax case against Fort Detrick scientist Bruce Ivins nine months ago, but some experts are not willing to let the issue die quite so easily.

    A group of about 25 scientists, professors, writers, terrorism experts and more convened Monday afternoon to discuss the particulars of the investigation and to debate who the real perpetrator may have been.

    Lewis Weinstein, who has written extensively about the anthrax attacks in 2001 that killed five and sickened 17 others, introduced the first panel of speakers by saying “none of us on this panel believe the FBI proved its case against Dr. Bruce Ivins.”

    Though each speaker came from a different perspective and had different opinions on the real killer, Weinstein said they wanted to address the group Monday “to continue to keep this case alive so someday Americans can know who committed this bioterrorism attack.”

    The first panelist to speak was Paul Kemp, Ivins’ attorney since 2007, whose nearly 25 minute presentation could have been the opening argument to the trial that never took place — Kemp’s client committed suicide in July 2008 as the FBI investigation was closing in on Ivins.

    “There is no evidence that Dr. Ivins ever made the dried anthrax” used in the attacks, Kemp said. “There were no spores found in his house, in his car, at his desk, any place that it shouldn’t have been.”

    Because the attack anthrax was never found on Ivins’ property and because his DNA was never found on the attack letters, critics of the FBI investigation said the final report released in February is nothing more than a laundry list of circumstantial evidence strung together to make Ivins appear mentally unstable and, therefore, guilty.

    Kemp argued back with his own list of reasons why Ivins did not appear guilty. Ivins talked openly in front of a grand jury twice in 2007 without legal representation, implying he did not think he had anything to hide. Ivins always insisted Steven Hatfill, who was originally considered a “person of interest” and later cleared of any involvement in the attacks, was innocent, whereas a guilty person would have taken advantage of having a scapegoat. And the FBI found nothing suggesting Ivins’ guilt on his home computer, which investigators admitted had not been tampered with in any way.

    Meryl Nass, a doctor who has also written extensively about the Amerithrax investigation, followed by listing and discounting each of the FBI’s means, motive and opportunity for Ivins to have committed the crime.

    “We don’t know if he had access to the equipment and the knowledge because we don’t know what knowledge and equipment were required,” she said of the FBI’s inability to pinpoint how the anthrax was prepared. “”Did he have a motive? The FBI comes up with several purported motives, but none of them make sense. É Did Bruce have the opportunity to commit the crime? The scenario the FBI initially floated about how he might have driven to New Jersey to mail the letters was shot down and they never came up with a better story.”

    James Van de Velde, a consultant on terrorism issues, added that Ivins, as a prominent anthrax researcher, would not have been dumb enough to use anthrax from his own beaker in an attack. And Ross Getman, a lawyer and author on the subject, said the FBI changed its timeline of when the letters would have had to be mailed to fit Ivins’ calendar, which has not been released. Getman asserted that Ivins had group therapy sessions scheduled for the two days the FBI originally thought the letters were mailed.

    In an interesting turn of events, John Ezzell, who was mentioned several times during the first panel discussion, was sitting in the audience. Ezzell was an anthrax researcher at the U.S. Army Medical Research Institute of Infectious Diseases with Ivins. He personally handled the anthrax letters in 2001 when the FBI asked USAMRIID to help identify the powder inside.

    Because of his involvement in the investigation, Ezzell had been under a gag order until he recently retired from USAMRIID. In what he said was his first time speaking out about the issue, Ezzell stood up toward the end of the panel’s presentation to address a question. When those in the room realized a true expert was among them, audience members and panelists tossed question after question his way.

    “I think it is very valuable for you to have come forward,” said Kemp, Ivins’ lawyer. “This kind of open, forthcoming information É this is the kind of thing that should have been going on since August of 2008 at the very least.”

    “Dr. Ezzell, obviously you’ve retired now, so now you can speak out, and now you can provide this kind of information, and that’s all I’ve ever wanted on behalf of Dr. Ivins,” Kemp said.

    Despite some strong opinions from the panelists and audience members, the seminar itself never drew any conclusions as to Ivins’ guilt or who the real attacker could have been. When Van de Velde asked Ezzell if he thought Ivins could have done it, Ezzell responded with a hesitant “possibly yes.”

  7. anonymous said

    It is now 37 days since the NAS anthrax science report was supposed to be completed and published.

    Recent rumors suggested “the end of November or first week of December”. Clearly the end of November is not going to happen.

    http://www8.nationalacademies.org/cp/projectview.aspx?key=49105

    The start date for the project is 4/24/2009.

    A report will be issued at the end of the project.

    Project Duration: 18 months

  8. DXer said

    I have a copy of the presentation of the first four speakers – I will study means of uploading. This portion also includes the extended comments of the distinguished fbi’s scientist je.

  9. DXer said

    John Ezzell had a heart attack. let us wish him a speedy recovery. He looked very distinguished as he took all questions. I believe he was taken to GWU hospital.

    • DXer said

      He is still in surgery. Our prayers and best wishes are with him.

    • BugMaster said

      Clearly, attending the conference and responding to inquiries was very stressful to Dr. Ezzel.

      • Lew Weinstein said

        BUGMASTER … I think it is very unfair to suggest that any questions from panelists were the cause of Dr. Ezzel’s health problems. He came willingly and enthusiastically. He wanted to answer questions. All of the questions were posed respectfully and Dr. Ezzel responded in kind. How did you form a different impression? Were you there? … LEW

        • DXer said

          Dr. Ezzell was warmly received and heartily congratulated for so forthrightly addressing the issues. As he told me in July 2009 when I interviewed him (when he was equally forthcoming), he explained that he made dried powder anthrax out of Ames supplied by Bruce Ivins at the request of DARPA. (It was irradiated while in the slurry). He said it was more pure than the Daschle product. He said it was for the purpose of study using a mass spectrometry detection. The research considered the effect of a sonicator and corona plasma discharge on Ames spores. Everyone in the room was extremely impressed by everything about Dr. Ezzell (sounds like “gazelle”). He is a very classy guy as well as a sharp dresser. Dr. Ivins’ attorney also passed on the high regard with which Bruce had held John. Dr. E has Parkinsons.



        • Anonymous said

          Just FYI, the person who constantly attacks people on this forum, Ed Lake, writes this today on his website:

          “It couldn’t have been easy to stand up in front of such a hostile group and tell them that Ivins could have been guilty. I can only imagine how that would truly get the heart to pounding.”

        • BugMaster said

          No, Lew, I wasn’t. But heart attacks can be triggered by intense situations, both good and bad.

          I never intended to give the impression that the questions posed to Dr. Ezzel caused him to have a heart attack.

          My apologies if I gave that impression.

          How is Dr. Ezzel doing, BTW?

        • BugMaster said

          Also, note, Lew, since you didn’t post my entire message, that I was trying to make a bit of an off-color joke.

          It was in poor taste, I once again apologize.

        • Lew Weinstein said

          You are of course forgiven. We all tend to a little hyperbole every once in awhile. I have heard that Dr. Ezzell is doing well and expects to be released from the hospital in 2-3 days. If anyone has any further or more complete information, please post your report.

  10. Lew has done a great job with this website allowing all comers to defend their views or debate others. Other than Ed Lake, no person that I know of has made a consistent stand to defend the FBI/DOJ or the Ivins theory. Nor has anyone done so on any other blog with a pseudonym or not.

    Why does no scientist come forth to defend the FBI/DOJ theory?

    Isn’t this a good reason why NAS, Congress, a court of law, a coroner’s inquiry, the MSM, and all of the above should question the FBI/DOJ, Battelle, Dugway, etc. in detail about their Ivins theory.

    Congress should also task Ft. Detrick to do its own internal investigation and make the information public. After all, the FBI/DOJ claim Ivins did it. One would think public policy would require the lab employing a person fingered by the FBI/DOJ to do its own investigation. Why not let Detrick do an investigation and let those who defend Ivins participate as a defense team for Ivins in the Detrick investigation? Let Detrick also bring witnesses from Dugway and Battelle as well as FBI/DOJ material and employees to do its report. Isn’t this good public policy? Shouldn’t the FBI/DOJ want the agency in charge to investigate where they claim an employee did this?

    • Shouldn’t the FBI/DOJ welcome this before people retire, move away, forget or even die? Shouldn’t they want the lessons to be learned and applied?

      • anonymous said

        “Shouldn’t the FBI/DOJ welcome this before people retire, move away, forget or even die?”

        It seems they actually want people to retire, forget or die before they are forced to provide information. If they can continue to stall, stall, stall, all the better for them. Stalling is the tactic they have very successfully employed for the last 9 years.

        An internet commentator put it quite well:

        “It is wiser to rely on the obvious inference that if the FBI had a simple, straightforward, true and compelling story to tell about how Ivins could have made such a deadly powder in a few brief spates at night, they would have told it. They did not tell it because they did not have it.”

    • The defense team should get a salary from the government, expenses, and be able to call witnesses and subpoena evidence including from the government.

  11. The letters from St. Petersburg Florida that went to Brokaw and others at the same time were dropped by the FBI for the sole reason that they contradicted the lone mailer theory? Has anyone tried a FOIA request for these letters? They are still not available to the public?

  12. What working area(s) did Ivins have in his lab? A hood? A glovebox? Something else?

    When Ft. Detrick grew anthrax before 2001 and after, where was it grown? In the hood in Ivins lab? In the glove box? Was a centrifuge used? Does it fit in the glove box? Under the hood?

    Suppose they grew the anthrax under the hood. That growth involved no stage at which it was powder? Spread to outside the hood was minimal?

    When their materials were placed in the autoclave, spread back to other areas was zero? minimal?

    If the operations under the hood were continued to produce powder in gram quantities, would it spread all over the BSL3? Further in Ft. Detrick? All the way to their homes? It would get on their skin, up their nose, etc. and end up outside the lab?

    Places that produce powder anthrax do it in what conditions to prevent this? What additional steps if any are needed over Ivins BSL3 while producing wet anthrax to contain powder spores?

    • The FBI/DOJ claim that Ivins in 48 hours from Friday Sep 14, 2001 to Sep 16, 2001 working just 2+ hours each evening produced 5 to 10 or more grams of dry anthrax powder in envelopes using his equipment has never been done by anyone in history? Not even once. Is that correct?

    • BugMaster said

      Of course, Ivins had the skill set to accomplish all of this under these conditions.

      And do so without leaving a trace of evidence!

      • BugMaster said

        “He left spores all over the place, and twice he violated lab procedures to wipe down and clean those various areas without authorization.”

        Right! Said Ed!

        And I am sure they used the same decontamination procedures (wiping everything down with bleach) to deal with the material at the Hart Senate Office Building as well.

    • BugMaster said

      “Centrifuging may be done out in the open since material in liquid is not particularly dangerous”.

      Yikes! I’d hate to be present in any lab where centrifugation of liquid Ames anthrax was “done in the open”.

      Why? Despite that fact that the tubes are sealed, they can break. The liquid can be atomized by the high rpms within the centrifuge, and when the centrifuge is opened at the end of the run, atomized material can be released.

      I did once witness the atomization of material within a centrifuge. The material was non-hazardous, but it made me think a bit when I saw the fog that results rising out into the room.

  13. DXer said

    Anthrax and Al Qaeda: Infiltration of US Biodefense (May 27, 2010; fully previewable)
    http://www.blurb.com/books/1385387

  14. DXer said

    1. Ayman’s recruiting network for his anthrax planning and the announcement of his plans in March 1999

    2. Ayman Zawahiri’s correspondence with infiltrating scientist Rauf Ahmad

    3. Document seized in Afghanistan boasting of infiltration of US biodefense

    4. Here is the floor plan of suite at GMU’s Discovery Hall in 2001 with Ali Al-Timimi and leading anthrax scientists

    5. Shouldn’t GAO subpoena the records relating to the connection between Ali Al-Timimi and the Ames researchers at the DARPA-funded Center for Biodefense? That is where he had unfettered access to the largest microbiological repository in the world where the bacteriology collection scientist was the future head of the Amerithrax science investigation who would guide the NAS review and the production of documents from the FBI to NAS. …

    6. This document seized in Afghanistan pointed to infiltration of US biodefense. To what was the author referring?

    7. Bruce Ivins email – concern samples were missing

    • DXer said

      8. Why is 100 ml discrepancy missing in Dr. Ivins’ records?

      9. How could US Attorney Taylor not have known that it was also stored in Building 1412 (to include leftovers while awaiting autoclaving)?

      10. Ayman Zawahiri used “school” to refer to the Egyptian Islamic Jihad given that Ayman Zawahiri’s letter to his supporters (which was obtained by the CIA).

      11. Was the interpretation of the code the brainchild of the two scientists, Mara and Pat, Former Colleage #1 and Former Colleague #2, who were thanked for technical assistance by the former Zawahiri associate supplied Ames by Bruce Ivins?
      https://caseclosedbylewweinstein.wordpress.com/2010/02/20/ivins-coded-message/

      12. There were spraydrying documents on Al-Hawsawi’s laptop, which was seized on KSM’s capture.

      13. US Attorney Taylor and AP create the impression that the Federal Eagle stamp was uniquely sold in Ivins’ post office (near USAMRIID) when it in fact was sold throughout Maryland and Virginia.

      • DXer said

        14. Why didn’t the FBI disclose that the photocopy mentioned in the Amerithrax Summary could be excluded as the source of the Amerithrax letters?

        15. Didn’t the only expert interviewed by the FBI about the code in the letters for which documents were produced disagree with the FBI’s theory of code in the letters?

        16. Dr. Ivins’ calendar for September and October 2001

        17. Why didn’t the DOJ credit the uncontradicted 302 interview statement that checking the health of the animals typically would take 2 hours and was a one person job?

        18. The FBI removed the original of Lab Notebook 4010 and other notebooks from USAMRIID without leaving a copy. Doesn’t FOIA require that the FBI produce the relevant pages from the lab notebooks it took?

        19. Why didn’t US Attorney Taylor in explaining Ivins’ overtime in Fall 2001, including November and December, not realize that the 2-person rule that in 2002 precluded such overtime and that Ivins moreover was working overtime with his assistant for OPERATION NOBLE EAGLE? … https://caseclosedbylewweinstein.files.wordpress.com/2010/03/ivins-noble-eagle.jpg

        20. Dr. Bruce Ivins had group therapy sessions scheduled on both September 17, 2001 and on October 8, 2001, the same dates the FBI says he was mailing the anthrax letters

        • DXer said

          21. [mailer graphic to be inserted]

          22. The Al Hayat letter bombs involved lethal letters sent to newspapers in NYC and DC and symbolic targets relating to the WTC 1993 plotters. Were the Al Hayat letter bombs the model for the Amerithrax letters? Were the same people responsible?

          23. [mailer re Ivins’ superior to be inserted]

          24. Dr. Bruce Ivins hosted one Egyptian visitor in the B3 who was the lifelong friend of a former Egyptian Islamic Jihad member, a schoolmate, recruited by Ayman Zawahiri. Who does he think is responsible

          25. Did this scientist working with virulent Ames by Bruce Ivins know Ayman Zawahiri like his good friends did?

          26. In Ann Arbor, which of the prominent supporters of the Salafist-Jihadis did the former Zawahiri associate in Ann Arbor supplied virulent Ames by Bruce Ivins know?

          27. When did Anwar Aulaqi first become acquainted with Ayman Zawahiri?

        • DXer said

          28. Dr. Assaad, the Coptic Christian who was the subject of a letter in early Fall 2001, says that the charges against his friend, Dr. Ivins, are part of a “vicious plot.” Who does he suspect is involved in the plot? Who does he think is responsible for the anthrax mailings?

          29. In Amerithrax, the leaker of the hyped Hatfill stories was the father of the lawyer who later represented “anthrax weapons suspect” Al-Timimi pro bono.

          30. Who submitted these slants to the FBI?

          31. Did the dry powder made by the FBI expert have a Silicon Signature? If so, what was its source?

          32. Aerosol experiments done with the irradiated dry powder that Dr. Ezzell reports he made at the request of DARPA. Were such aerosol experiments done anywhere else such as Johns-Hopkins or Southern Research Institute?

          33. Dr. Ivins thought it was an incredible coverup that he was not allowed to also swab the Diagnostic Services Division.

          34. Where was the research on the corona plasma discharge and sonicator on Ames spores supplied by Bruce Ivins conducted for DARPA? Anywhere else? Where were aerosol studies done using dried powder?

        • DXer said

          35. DOJ should disclose the 2004 article helpfully provided by Dr. Bruce Ivins to the FBI regarding silica and Bacillus spore suspensions (that had been provided by a colleague)

          36. Why was the FBI asking everyone whether they had seen olive oil in one of the aerosol rooms. Was that indicated by the forensics?

          37. Is olive oil what the bloodhounds smelled at Denny’s when the FBI assume they were tracking Steve Hatfill who had visited the day before?

          38. Why did the FBI let USAMRIID General John Parker’s false claim that USAMRIID did not make dried powder stand when the FBI and the scientists overseeing the investigation knew its own expert had made dried powdered aerosol using Ames? Wasn’t that anthrax the closest to the anthrax mailed to the Senators?

          39. When (prior to 9/11) did USAMRIID’s John Ezzell, the FBI’s anthrax expert, send the dried spores to Johns-Hopkins Applied Physics he had made at the request of DARPA? Did those spores show a silicon signature?

          40. Why did the FBI never disclose the email withheld for 2 years that shows Dr. Ivins knew that 5 ml of virulent Ames had been taken from Building 1412?
          https://caseclosedbylewweinstein.wordpress.com/2010/05/25/a-new-email-withheld-for-2-years-shows-that-ivins-recognized-that-some-of-his-ames-was-missing/

          41. The FBI’s case against Ivins is a fantasy. The investigation is rife with conflicts of interest that need to be sorted out. NAS is not able to do that because the FBI only provided it a narrow range of documents relating to the science.

          42. Like in pool, in true crime analysis, sometimes a combination shot is required. More than one person may have been involved and Flask 1029, to which hundreds had access, may merely have been the original source of the anthrax.

  15. DXer said

    Ziyad Khalil, who arranged to buy the satellite phone used by Zawahiri and Bin Laden met with Aulaqi.

    Bank records for a St. Louis area account used to buy minutes for phone on Zawahiri’s labtop.

    Ziyad Khalil rented a room in Royer’s father’s St. Louis home.

    CAIR’s Royer, Al-Timimi’s friend, drove Awlaki around DC in October 2002 when he visited and tried to coordinate with Al-Timimi, his fellow Falls Church imam sharing a suite with two of the country’s leading Ames researchers, in recruitng young men to jihad.

    When did Anwar Awlaki first become acquainted with Ayman Zawahiri?

  16. DXer said

    Why does the USG say the protocol for submitting slants was clear when the May 24, 2002 email to FBI’s anthrax expert John Ezzell states:

    “I’ve located the stocks that the agents wanted me to provide them, and have been waiting to get the slants and protocol from you for preparing slant cultures and for their removal from the suite. Have you located these items yet? I would like to take care of this ass soon as possible.

    Please answer.”

    • DXer said

      The FBI can hardly vaguely assert that there was clear communication by the FBI’s anthrax expert on the issue of slants and protocol when the record seems to indicate that there wasn’t. Moreover, the record shows that the FBI anthrax expert was the only one who made a dried powdered anthrax aerosol at USAMRIID using Dr. Ivins’ Ames.

      He thus has a disqualifying conflict of interest despite his expertise, integrity and good faith.

  17. anonymous said

    It is now 34 days since NAS said they would complete their project and publish a report. Still no new update on their website on when the $1M report might be ready to be released to the public.

    http://www8.nationalacademies.org/cp/projectview.aspx?key=49105

    The project is sponsored by the Federal Bureau of Investigation.

    The start date for the project is 4/24/2009.

    A report will be issued at the end of the project.

    Project Duration: 18 months

  18. DXer said

    Judging by the documents produced, only one expert was interviewed about the FBI’s theory of the code in the letters. He disagreed with the FBI’s theory. Moreover, the expert “suggested that the manner in which some of the letters were formed may have been because the writer usually writes right to left.”

  19. DXer said

    Harv Rev Psychiatry. 2010 November-December;18(6):369-378.

    Terrorism and the Behavioral Sciences.

    Schouten R.

    From Harvard Medical School and Department of Psychiatry, Massachusetts General Hospital, Boston, MA.

    Abstract

    Terrorism has existed for millennia and is a phenomenon well-known to many parts of the world. Americans were forced to recognize this phenomenon, and our vulnerability to it, by two sets of events in 2001: the attacks on New York City and Washington, DC, and the anthrax mailings that followed shortly thereafter. Psychiatry, psychology, and other behavioral and social sciences have been looked to for assistance in collecting and analyzing intelligence data, understanding terrorism, and developing strategies to combat terrorism. In addition to reviewing areas in which the behavioral sciences have made contributions in addressing this problem, this article discusses the developing roles for behavioral scientists in this field.

    • DXer said

      Dr. Schouten has served as a subject matter expert for the Biological Threat Classification Program of the Department of Homeland Security and has testified before the Congressional Subcommittee on Prevention of Nuclear and Biological Attack. He was the mental health liaison for the Association of Trial Lawyers of America to the September 11 Victims’ Fund and served on consensus panels drafting guidelines on workplace violence for the FBI and the American Society of Industrial Security. Dr. Schouten is a consultant to the FBI’s National Center for the Analysis of Violent Crime. He participated in the Office of the Director of National Intelligence (ODNI) 2008 Summer Hard Problem Program (SHARP) entitled “Biological Warfare Perpetrators: Rationality, Culture, and Likelihood of Discovery.” In 2008 he was appointed to ODNI’s Biological Sciences Expert Group (BSEG).

  20. DXer said

    http://grand-chessboard.com/blog/2010/11/12/meryl-nass-%C2%AB-antiwar-radio-with-scott-horton-and-charles-goyette/

    Dr. Meryl Nass, among a range of other topics, discusses “the lack of evidence in the FBI’s conclusion that Bruce Ivins was behind the 2001 anthrax mailings, previous attempts by the FBI to harass and intimidate Ft. Detrick lab employees and why FBI agents seemed to purposely spend all their time and resources pursuing the wrong avenues of investigation.”

    I haven’t listened to it yet but specifically I relatedly would ask: How can it be that it was not until 2005 that the FBI was receiving documents from Dr. Friedlander concerning correspondence relating to Dr. Ivins research with a former Zawahiri associate who received virulent Ames from Dr. Ivins. That is what the documents seem to indicate — that the fax of 16 pages coming from Dr. Friedlander’s phone number did not occur until 2005. And if you doubt me, ask Tarek whether he got a top grade from Ayman’s sister Heba, whose brother Mohammed was rendered and tortured. Ask him if Ayman did not recruit his good friend “Tawfik” Hamid, who now consults with US intelligence agencies, into the Egyptian Islamic Group. He wrote INSIDE JIHAD that appeared in May 2008 or so.

    Disclaimer: I’ve admired Dr. Nass since I first became acquainted in 2002. The fact we disagree on central issues is irrelevant.

  21. teegr said

    Will “The Anthrax Mailings Investigation” seminar be recorded for folks like me to see? I would be very interested in seeing this but can not travel.

  22. DXer said

    Attorneys fees are recoverable given the NAS violation of the controlling law requiring production of the documents at a time when participation can be meaningful (prior to completion of the study).* Indeed, the willness of the violation of the statute is especially plain given Mr. Weinstein raised these issues last year. He wrote: “There is no reference in the NAS/FBI contract to withholding information until the end of the NAS study.”

    Who is responsible for the withholding of the documents? Organizations don’t make unlawful decisions. Individuals make the decisions and then subordinates are just required to adhere to the boss’ decision. The violation can only be mooted if production of documents commences next week. Upon a failure to produce the documents, the GAO report sort of writes itself, don’tcha think?

    https://caseclosedbylewweinstein.wordpress.com/2009/10/30/does-the-nasfbi-contract-support-the-sequestering-of-fbi-submitted-documents-until-the-end-of-the-nas-study/

    */ Physicians Committee For Responsible Medicine, et al. v. Dan Glickman, Secretary, Department of Agriculture, et al., 117 F. Supp. 2d 1 (D.D.C. 2000); Food Chemical News, Inc. v. U.S. Dep’t of Health and Human Services, Admin., 760 F. Supp. 220 (D.D.C. 1991).

    Concurring in ANIMAL LEGAL DEFENSE FUND, et al., v. Donna SHALALA, 53 F.3d 363, (D.C. Cir. 1995), District of Columbia Circuit Judge Wald explained in a case involving the National Academy of Sciences:

    “In the FACA context particularly, there may be a big difference between relief now and later. As the Eleventh Circuit has stated,

    [b]ecause FACA’s dictates emphasize the importance of openness and debate, the timing of [public] observation and comment is crucial to compliance with the statute. Public observation and comment must be contemporaneous with the committee process itself [citation omitted]. If public commentary is limited to retrospective scrutiny, the Act is rendered meaningless.”

    The Code of Federal Regulations, 41 C.F.R. 102 (7-01-05 Edition), provides express guidance in Appendix A.

    Here is a GSA memo explaining FACA obligation to have timely provided the documents contemporaneous with the meetings so that participants might have attended the public meetings and meaningfully participate. The emails withheld for 2 years and only recently produced show that USAMRIID prevented Dr. Ivins’ attorney from interviewing Dr. Ivins’ colleagues. That led to his suicide. NAS now has prevented that same attorney from reviewing the documents in advance of this conference. That’s not right and violates the law.
    Public Access to Records (FACA)
    http://www.gsa.gov/portal/content/100785

  23. DXer said

    The National Academy of Sciences withheld all the documents produced to it by the FBI — in violation of controlling law explained in the District of Columbia precedent cited below — until after there could be meaningful participation in the NAS proceeding. The NAS prevented outside scientists from submitting comments informed by the documents. The violation was with the full knowledge of the precedent — some of which even involved the National Academy of Sciences. Those documents, as another example, bear on the forensics relating to the patents issued by the alma mater of Anwar Aulaqi’s friend and fellow Falls Church imam Ali Al-Timimi. Al-Timimi’s program was co-sponsored by the American Type Culture Collection whose bacteriology division collection scientist is now in charge of the FBI science effort and involved in the production of documents. If the production of documents does not begin immediately, then the NAS report will be subject to both preliminary and permanent injunctive relief under settled precedent in the District of Columbia decisions cited below.

    Ali Al-Timimi worked at George Mason University’s Discovery Hall throughout 2000 and 2002 period. The Mason Gazette in “Mason to Pursue Advanced Biodefense Research” on November 17, 2000 had announced: “The School of Computational Sciences (SCS) and Advanced Biosystems, Inc., a subsidiary of Hadron, Inc., of Alexandria, are pursuing a collaborative program at the Prince William Campus to enhance research and educational objectives in biodefense research. The article noted that the program was funded primarily by a grant awarded to Advanced Biosystems from the Defense Advanced Research Projects Agency (DARPA). A 2007 GMU PhD thesis explains that the “An Assessment of Exploitable Weaknesses in Universities” by Corinne M. Verzoni offices and research located in Discovery Hall, making this an attractive building on the Prince William Campus to target for information and technology.” The 2007 PhD student biodefense student explained: “Discovery Hall currently has BSL 1, 2 and 2+ labs in which students work with attenuated and vaccine strains of Fracella tularemia, anthrax and HIV. GMU will eventually have new biological labs featuring a BSL-3 lab which will have anthrax and tularemia.”

    Instead of starting a center from scratch, GMU chose to join forces with Dr. Alibek and Dr. Bailey’s existing research firm, Hadron Advanced Biosystems Inc. Hadron was already working under contract for the federal government, having received funding from DARPA. Dr. Alibek told the Washington Post that he and Bailey had spent their careers studying an issue that only recently grabbed the country’s attention, after the anthrax mailings the previous fall. Dr. Bailey and Alibek met in 1991, when a delegation of Soviet scientists visited USAMRIID at Ft. Detrick. Former USAMRIID Deputy Commander and Acting Commander Ames researcher Bailey coinvented, with Ken Alibek, the process to treat cell culture with hydrophobic silicon dioxide so as to permit greater concentration upon drying. He was in Room 156B of GMU’s Discovery Hall at the Center for Biodefense. The patent application was filed March 14, 2001. Rm 154A was Victor Morozov’s room number when he first assumed Timimi’s phone number in 2004 (and before he moved to the newly constructed Bull Run Hall). Morozov was the co-inventor with Dr. Bailey of the related cell culture process under which the silica was removed from the spore surface.

    One ATCC former employee felt so strongly about lax security there the scientist called me out of the blue and said that the public was overlooking the patent repository as a possible source of the Ames strain. ATCC would not deny they had virulent Ames in their patent repository pre 9/11 (as distinguished from their online catalog). The spokesperson emailed me:

    “As a matter of policy, ATCC does not disclose information on the contents of its patent depository.” Previously, though, the ATCC head publicly explained that it did not have virulent Ames.

    George Mason University, Department Listings, accessed August 17, 2003, shows that the National Center For Biodefense and Center for Biomedical Genomics had the same mail stop (MS 4ES). The most famed bioweaponeer in the world was not far from this sheik urging violent jihad in an apocalyptic struggle between religions. Dr. Alibek’s office was Rm. 156D in Prince William 2. The groups both shared the same department fax of 993-4288. Dr. Alibek advises me he had seen him several times in the corridors of GMU and was told that he was a religious muslim hard-liner but knew nothing of his activities. At one point, Timimi’s mail drop was MSN 4D7.

    Charles Bailey at 3-4271 was the former head of USAMRIID and joined the Center in April 2001. He continued to do research with Ames after 9/11. Dr. Alibek reports that shortly after the mailings, he wrote FBI Director Mueller and offered his services but was advised that they already had assembled a large group. A 2004 report describes research done by Dr. Alibek and his colleagues using Delta Ames obtained from NIH for a research project done for USAMRIID. There were two grants from the Defense Advanced Research Projects Agency from 2001. One $3.6 million grant dated to July 2001 and the other was previous to that.

    Ali Al-Timimi had the same telephone number that Dr. Victor Morozov of the Center for Biodefense would later have when he joined the faculty and occupied the newly constructed Bull Run Building, which opened in late 2004 (Rm. #362). Dr. Morozov focuses on the development of new bioassay methods for express analysis, high-throughput screening and proteomics. He has recently developed a new electrospray-based technology for mass fabrication of protein microarrays. Dr. Morozov was currently supervising a DOE -funded research project directed at the development of ultra-sensitive express methods for detection of pathogens in which slow diffusion of analytes is replaced by their active transport controlled and powered by external forces (electric, magnetic, gravitational or hydrodynamic). His homepage explains that: “A variety of projects are available for students to participate in “*** 7. Develop software to analyze motion of beads. 8. Develop software to analyze patterns in drying droplets. 9. Develop an electrostatic collector for airborne particles.”

    Al-Timimi obtained a doctorate from George Mason University in 2004 in the field of computational biology — a field related to cancer research involving genome sequencing. He successfully defended his thesis 5 weeks after his indictment. Curt Jamison, Timimi’s thesis advisor, coauthor and loyal friend, was in Prince William II (Discovery Hall) Rm. 181A. The staff of Advanced Biosystems was in Rm. 160, 162, 177, 254E and several others. Computational sciences offices were intermixed among the Hadron personnel on the first floor of Prince William II to include 159, 161, 166A, 167, 181 B and 181C. Rm. 156B was Charles Bailey, former commander of the U.S. Army Medical Research Institute of Infectious Diseases, who was head of the Center for Biodefense. Defense contractor Hadron had announced the appointment of Dr. Bailey as Vice-President of Advanced Biosystems in early April 2001.

    “Over 13 years, Dr. Bailey had served as a Research Scientist, Deputy Commander for Research, Deputy Commander and Commander at the U.S. Army Medical Research Institute. As a USAMRIID scientist, he designed and supervised the construction of BL-3 containment facilities. His hands-on experience with a wide variety of pathogens is chronicled in 70 published articles. During his 4 years with the Defense Intelligence Agency, he published numerous articles assessing foreign capabilities regarding biological weapons.” When I asked Dr. Bailey to confirm Al-Timimi’s room number relative to his own, his only response was to refer me to University counsel. Counsel then never substantively responded to my inquiry regarding their respective room numbers citing student privacy. (When I recently asked her to expedite the production of documents as required by law, the NAS Director did not even oblige by referring me to counsel who would have been able to assess the controlling and on-point nature of the legal precedent.)

    Ali’s friend and thesis advisor, Dr. Jamison never responded to an emailed query either. GMU perhaps understandably was very nervous about losing the $25 million grant for a new BL-3 regional facility to be located very near our country’s capitol.

    In 2001, the reports on the study on the effectiveness of the mailed anthrax in the Canadian experiment was reported in private briefings in Spring and Summer. An insider thus was not dependent on the published report later that Fall. (The date on the formal report is September 10, 2001).

    Dr. Charles Bailey for DIA wrote extensively on the the biothreat posed by other countries (and presumably terrorists). He shared a fax number with Al-Timimi. What came over that fax line in Spring and Summer of 2001? At some point, Dr. Al-Timimi, Dr. Alibek and Dr. Bailey also shared the same maildrop. It certainly would not be surprising that the two directors who headed the DARPA-funded Center for Biodefense — and had received the biggest defense award in history for work with Delta Ames under a contract with USAMRIID — would have been briefed on the threat of mailed anthrax. The 1999 short report by William Patrick to Hatfill at SAIC on the general subject was far less important given that it did not relate to actual experimental findings.

    Plus, it is common sense that while someone might use as a model something they had surreptitiously learned of — they would not use as a model something in a memo that they had commissioned. Thus, it was rather misdirected to focus on the 1999 SAIC report commissioned by Dr. Hatfill rather than the 2001 Canadian report. The Canadian report related to the anthrax threat sent regarding the detention of Vanguards of Conquest #2 Mahjoub in Canada. Mahjoub had worked with al-Hawsawi in Sudan (the fellow with anthrax spraydrying documents on his laptop). The anthrax threat in late January prompted the still-classified Presidential Daily Brief (“PDB”) in early February 2001 by the CIA to President Bush on the subject.

    In Fall 2001, the Armed Forces Institute of Pathology (”AFIP”) had detected silicon dioxide (silica) in the attack anthrax — with a characteristic big spike for the silicon. No silica was observable on the SEMs images that Dr. Alibek and Dr. Matthew Meselson saw. The Daschle product was “pure spores.” Was silicon dioxide used as part of a microdroplet cell culture process used prior to drying to permit greater concentration? As explained in a later related patent, the silica could be removed from the surface of the spore through repeated centrifugaton or an air chamber.

    Dr. Alibek and Dr. Bailey had filed a patent application in mid-March 2001 involving a microdroplet cell culture technique that used silicon dioxide in a method for concentrating growth of cells. The patent was granted and the application first publicly disclosed in the Spring of 2002. Weren’t the SEMS images and AFIP EDX finding both consistent with use of this process in growing the culture? It’s been suggested informally to me that perhaps the silicon analytical peak was due to silanol from hydrolysis of a silane, used in siliconizing glassware. But didn’t the AFIP in fact also detect oxygen in ratios characteristic of silicon dioxide? Wasn’t the scientist, now deceased, who performed the EDX highly experienced and expert in detecting silica? Hasn’t the AFIP always stood by its report. In its report, AFIP explained: “AFIP experts utilized an energy dispersive X-ray spectrometer (an instrument used to detect the presence of otherwise-unseen chemicals through characteristic wavelengths of X-ray light) to confirm the previously unidentifiable substance as silica.” Perhaps the nuance that was lost — or just never publicly explained for very sound reasons — was that silica was used in the cell culture process and then removed from the spores through a process such as centrifugation. The applicants in March 2001 for an international patent relating to vaccines were a leading aerosol expert, Herman R. Shepherd, and a lonstanding anthrax biodefense expert, Philip Russell.

    By its withholding of documents until after there could be meaningful comment, the NAS violated the controlling law and thwarted the purpose of the National Academy Act. The NAS prevented transparency in decision-making and public participation contemplated by the Federal Advisory Committee Act. The FBI’s role in the NAS process was supervised by the former collections scientist who was the go-to person for anthrax at the largest microbiological repository in the world to which Anwar Aulaqi’s good friend and fellow Falls Church imam had been given unrestricted access. One of the reasons transparency is required is precisely so that such conflict of interest can be avoided.

    Dr. Victor Morozov is co-inventor along with Dr. Bailey for a patent “Cell Culture” that explains how the silicon dioxide can be removed from the surface. Perhaps it is precisely this AFIP finding of silicon dioxide (without silica on the SEMs) that is why the FBI came to suspect Al-Timimi in 2003 (rightly or wrongly, we don’t know). The FBI had a right to keep these scientific findings secret until after the closing of the investigation to protect the integrity of the confidential criminal/national security investigation. There was still a processor and mailer to catch — still a case to prove. After 9/11, intelligence collection took precedence over arrests. As Ron Kessler explains in the new book, Terrorist Watch, many FBI officials feel that they are damned if they do, and damned if they don’t. Outside observers are constantly second-guessing them about how to proceed rather than trusting that they are in the best position to balance the competing considerations of national security, intelligence gathering, the pursuit of justice, and the safeguarding of civil liberties. Above all, in disclosing the theory of access to know-how, the FBI needed to protect the due process rights of Al-Timimi while he defended himself on other charges. But after invoking the process of the National Academy of Sciences, it triggered all the obligations of the Federal Advisory Committee Act which has a separate provision expressly applicable to the NAS.

    Al-Timimi’s prosecution has been highly classified and was remanded while the defense is given an opportunity to discover any documents that existed prior to 9/11 about al-Timimi and to address an issue relating to NSA intercepts after 9/11. Ali’s defense counsel explained to the federal district court, upon a remand by the appeals court, that Mr. Timimi was interviewed by an FBI agent and a Secret Service agent as early as February 1994 in connection with the first World Trade Center attack. The agents left their business cards which the family kept. Defense counsel Johnathan Turley further explained that “We have people that were contacted by the FBI and told soon after 9/11 that they believed that Dr. Al-Timimi was either connected to 9/11 or certainly had information about Al Qaeda.”

    Who screwed the pooch in Amerithrax and why? The NAS, if it had complied with the law requiring production of documents at a time participation could be meaningful, could have been part of the solution rather than the part of the problem.

    • DXer said

      Ali Al-Timimi’s friend and fellow Falls Church imam Anwar Aulaqi will be a name that comes to be commonly invoked if the ongoing attempts to bring down airliners are successful. Esoteric procedural issues like whether the NAS needed to comply with the requirement to produce the FBI documents at a time when comment by outside scientists would have been meaningful may take a more central stage. The consequences of the NAS’ failure to comply with the statute will reveal themselves most pointedly if there is an attack using anthrax. Just as the public will need to be educated about the procedure applicable to the NAS, NAS scientists need to be told about what is reported on counterterrorism investigations.

      Awlaqi was hired in early 2001 in an attempt by the mosque’s leaders to appeal to younger worshipers. Born in New Mexico and raised in Yemen, he had the total package. He was young, personable, fluent in English, eloquent and knowledgeable about Middle East politics. Hani Hanjour and Nawaf Al Hazmi worshiped at Aulaqi’s mosque for several weeks in spring 2001. The 9/11 commission noted that the two men apparently showed up because Nawaf Hazmi had developed a close relationship with Aulaqi in San Diego. In 2001, Awlaqi came to Falls Church from San Diego shortly before Nawaf did. Awlaqi told the FBI that he did not recall what Nawaf and he had discussed in San Diego and denied having contact with him in Falls Church.

      The travel agent right on the same floor as Al-Timimi’s Dar Arqam mosque organized trips to hajj in February 2001. San Francisco attorney Hal Smith was Aulaqi’s roommate. Mr. Smith tells me that he was very extreme in his views when speaking privately and not like his smooth public persona. “Aulaqi is deep into hardcore militant Islam. He is not a cleric who just says prayers and counsels people as some of his supporters have suggested.” Sami al-Hussayen uncle checked into the same Herndon, VA hotel, the Marriot Residence Inn, on the same night — September 10, 2001 as Hani Hanjour and Nawaf al-Hazmi, and another hijacker. Hussayen had a seizure during an FBI interview and although doctors found nothing wrong with him was allowed to return home. During his trip to the US, al-Hussayen had visited both “911 imam” Aulaqi and Ali Al-Timimi.

      The unclassified portion of a U.S. Department of Justice memorandum dated September 26, 2001 states

      “Aulaqi was familiar enough with Nawaf Alhazmi to describe some of Alhazmi’s personality traits. Aulaqi considered Alhazmi to be a loner who did not have a large circle of friends. Alhazmi was slow to enter into personal relationships and was always very soft spoken, a very calm and extremely nice person. Aulaqi did not see Alhazmi as a very religious person, based on the fact that Alhazmi never wore a beard and neglected to attend all five daily prayer sessions.”

      The Washington Post explains that “After leaving the United States in 2002, Aulaqi spent time in Britain, where he developed a following among young ultra-conservative Muslims through his lectures and audiotapes. His CD “The Hereafter” takes listeners on a tour of Paradise that describes “the mansions of Paradise,” “the women of Paradise,” and “the greatest of the pleasures of Paradise.” In London, after leaving the United States, he spoke at JIMAS and argued that in light of the rewards offered to martyrs in Jennah, or Paradise, Muslims should be eager to give his life in fighting the unbelievers. “Don’t think that the ones that die in the sake of Allah are dead — they are alive, and Allah is providing for them. So the shaheed is alive in the sense that his soul is in Jennah, and his soul is alive in Jennah.” He moved to Yemen, his family’s ancestral home, in 2004.” Before his arrest in Yemen in mid-2006, Aulaqi lectured at an Islamist university in San’a run by Abdul Majid al-Zindani, who fought with Osama bin Laden in Afghanistan and was designated a terrorist in 2004 by the United States and the United Nations.

      Law enforcement sources told the Post that Aulaqi was visited by Ziyad Khaleel, who the government has previously said purchased a satellite phone and batteries for bin Laden in the 1990s. The Post explains: “Khaleel was the U.S. fundraiser for Islamic American Relief Agency, a charity the U.S. Treasury has designated a financier of bin Laden and which listed Aulaqi’s charity as its Yemeni partner. A Washington Post article explained: “The FBI also learned that Aulaqi was visited in early 2000 by a close associate of Omar Abdel Rahman, the so-called Blind Sheik who was convicted of conspiracy in connection with the 1993 World Trade Center bombing, and that he had ties to people raising money for the radical Palestinian movement Hamas, according to Congress and the 9/11 Commission report.”

      He now has been released and came to be at the center of a controversy concerning what the FBI should have known and shared about Hasan, the Ft. Hood shooter. The next month he was alleged to have been involved with the planned bombing of a airliner flying into Detroit. What did Awlaqi, detained in mid-2006 and held for a year and a half, tell questioners, if anything, about his fellow Falls Church imam and fellow Salafist conference lecturer Ali Al-Timimi?

      • DXer said

        Instead of targeting Anwar for assassination, the Administration should have just launched a campaign to defriend him on Facebook. I once emailed Anwar and asked him who he thought was responsible for the anthrax mailings. I didn’t realize he was in jail in Yemen at the time and had lost his posting privileges. In an interview that he later gave, he said that the FBI repeatedly interrogated him. But as he has explained in a 1999 video uploaded to YouTube, he says that one must never cooperate with law enforcement against a fellow co-religionist accused of terrorism.

        Prime suspect in cargo plane bomb plot: Anwar al-Awlaki
        ‘Spiritual leader’ of al-Qaida in the Arabian peninsula is the only US citizen known to be on CIA list of assassination targets

        http://www.guardian.co.uk/world/2010/oct/31/cargo-plane-bomb-suspect-anwar-al-awlaki

  24. DXer said

    The documents that have been wrongfully withheld by NAS bear on hypotheses relating to Aafia Siddiqui’s time in Boston, Houston and Ann Arbor. Specifically, did Aafia Siddiqui’s research into germ warfare or work as a lab technician expose her to the use of silica or a siliconizing solution for the purpose of encapsulation? The documents will bear on whether that is indicated by the forensics.

    For starters, what was the nature of her research at the Karachi technical institute and through what labs did she rotate while at Brandeis? The fact that her PhD thesis on cognitive science was irrelevant to bioweapons — the point emphasized by defense counsel Dawn Cardi at her sentencing on September 23 — is not the key. The key was what was her skill sets as a lab tech such as at her lab tech job at Karachi where she studied bioweapons or the job she applied for at Johns Hopkins. (Her counsel implied at sentencing that it did not relate to her PhD training in neuroscience).

    In the September 23, 2010 transcript at sentencing, the judge refers to handwritten documents that “clearly indicated types of attacks to include chemical/biological attacks. They indicated what appeared to us as a target inside of the United States, targets specifically in the New York City area.” Some of this material, the judge noted, was “admitted into evidence at trial, principally as background or as reflective of knowledge, motive or intent, opportunity, preparation, plan and absence of mistake.” The judge noted that “After Al Baluchi’s arrest by the Pakistani intelligence, Dr. Siddiqui apparently moved to Karachi. According to the defense memo, she had claimed that a short after moving there a man named Abu Lababa issued a Fatwah for her to do biological research in order to develop defenses for her country should Pakistan be attacked by an enemy. And she did this for approximately six months.”

    For her part, Aafia, in addressing the court, dismisses the rumors that she was tortured and asks that people not believe it. She reports that she is quite content with the sentence although she thinks it was unjust.

    With regard to the NAS document, does the silicon signal relate to silicon dioxide microparticulates such as was used in Dr. Perlman’s yogurt processing in Boston? He did anthrax research at Brandeis in Fall 2001 using a virulent Army strain.

    Encapsulation was understood by Bruce Ivins (and was addressed by him in passing in a patent). It also was suggested by Ken Alibek’s former assistant two doors down from Al-Timimi as perhaps indicated by the forensics. The fact that various anthrax researchers used microencapsulation and silica in 2001 is something that still needs to be explored with the benefit of the documents that the NAS has been withholding.

    Did Aafia know Al-Timimi who shared a suite with the inventors of a process to use silica in the culture medium to concentrate anthrax at the GMU Center for Biodefense? Ali Al-Timimi’s program was co-sponsored by the American Type Culture Collection and the lead FBI scientist guiding the NAS inquiry was its collection scientist for the bacteriology division. Was Al-Timimi one of the cell members referenced in the correspondence on Aafia’s thumb drive when she was captured in July 2008? Why is Dr. Bannan privately mentioned by a reporter to me in connection to the Aafia Siddiqui case? Does Dr. Bannan multi-task and consult with intelligence agencies on bioweapons when he is not supporting hanging Amerithrax on the dead guy who — yikes! — used fake screen names on the internet, tended sometimes to be acutely depressed, and liked pictures of beautiful blindfolded sorority coeds?

    And did Aafia have potential access to the collection of anthrax strains at Brandeis and did that long-held collection include Ames? (Dr. Mahler tells me no). On March 11, 2002, the Brandeis General Counsel sent an email advising that the federal authorities had subpoenaed records in connection with the investigation of the anthrax crimes.

    In November 2001, the Hazmat Team and the State Department of Health was called after three researchers were doing research with anthrax and Administration officials were concerned there might be contamination. The scientists were confident all scientific protocols had been followed but Hazmat was called nonetheless. The research had been done after the anthrax mailings seeking means to detect anthrax spores. The anthrax used had been at Brandeis a long time, acquired at a time before federal regulations in 1997 required that transfers be recorded — and before Ivins’ flask 1029 was created. The lab was in the Kalman Building, part of the complex of buildings adjoining the Volen Center. Brandeis researchers Daniel Perlman and Inga Mahler had “decided to focus on developing a solid growth medium for cultivating B. anthracis that might be usable in the field with a minimum of equipment. They further developed the growth medium for use at room temperature thereby obviating the need for equipment such as incubators for sustaining an elevated temperature.” The pair obtained a patent issued March 2004 titled “Selective growth medium for Bacillus anthracis and methods of use.”

    DR. PERLMAN HAS BEEN INNOVATIVE ON A WIDE RANGE OF CONSUMER PRODUCTS TO INCLUDE YOGURT INVOLVING SILICON DIOXIDE MICROPARTICULATES IN ITS PROCESSING. AYMAN ZAWAHIRI’S PROGRAM WAS CODE-NAMED YOGURT OR CURDLED MILK — ZABADI IN ARABIC. Brandeis life sciences PhD was tasked with researching germ warfare. The FBI’s Dr. Bannan needed to put aside his visions of Bruce Ivins’ panty raids and roll up his sleeves regarding the hypothesis of silicon dioxide microparticulates in processing.

    Dr. Mahler had published on the subject of gram positive and gram negative bacteria (the subject underlying the patent) in the Journal of Bacteriology in 1989. Dr. Mahler years ago advised me that the strain of Bacillus anthracis they used in December 2001 was ordered by her group at Brandeis almost 40 years ago. It came from the American Type Culture Collection and was kept viable, together with other stock strains. She explains that before 9/11 you could simply obtain the organism from culture collections or colleagues. Their offices are in Abelson-Bass-Yalem, adjoining the Volen Center where Aafia’s lab was located. The strain used, Dr. Mahler advises (referred to in the paper as MC 607) — MC stands for Rosenstiel Center — was Vollum, not Ames. Vollum is a strain that like Ames is used to challenge vaccines. It is less lethal but was used by the US in the 1950s in makinganthrax weapons. Dr. Mahler reports she knew of no Ames on campus. Dr. Perlman, however, did not respond to an email query. The anthrax was autoclaved, or inactivated in a pressure cooker, before the inspectors arrived at the scene.

    Aafia obtained her PhD from Brandeis in 2001, having graduated from MIT with a degree in biology in 1994. The Visual Lab at which Aafia worked had rules: “No Hitting, No Punching, No Pushing, No Grabbing, No Biting.” Judging from its internet page, the lab seems to have been a pleasant place to work. The operating manual instructed that if you don’t know “ask.” The lab’s work under Robert Sekuler, mainly funded by a grant from the NIH, related to how we remember, forget, or misremember things. Aafia’s 2001 183-page thesis “Separating the components of imitation,” which concerns visual learning and visual discrimination, was very far removed from questions like the Palestinian conflict or creating a fine powder using a mini-spraydryer.

    In the first year of their Ph.D. program, students do 4 nine-week rotations in different laboratories of their choosing. First-year course work includes a core class in principles of neuroscience, and intensive graduate level seminars that give students experience in reading original research literature and making oral presentations. Graduate research advisors are typically chosen at the end of the first year. So one question is: what different labs did Aafia work in during her first year? It is related to the question: what is the origin of the anthrax spraydrying documents on the laptop of the colleague of Aafia’s future husband al-Balucchi? She says that she for a time was tasked with researching germ weapons and worked as a lab technician at Karachi Institute of Technology. This apparently was while there was a $5 million BOLO out for her. Good work guys in tracking down the scientists helping Al Qaeda develop anthrax as a weapon.

    “Aafia Siddiqui was here (Boston) in June 2001— when some press reports suggest she was in Liberia meeting with Atef — says the family’s attorney, Elaine Whitfield Sharp. “And I can prove it.” When her attorney proposed to the family that they obtain her credit card records by subpoena, the family vetoed the idea. Although it should have been easy to check, no members of a play group were brought forward to say that Aafia was in Boston in June.

    The District Court Judge seemed to be bending over backwards in being fair. His permitting her to address the gallery at length from the defense table was extraordinary. Aafia fired her counsel again in a handwritten letter dated October 15, 2010 and waived any right of appeal. But for the sake of the rule of law, every effort needs to continue to be made to assure that Aafia Siddiqui’s rights are protected so that justice may be done. It is highly relevant where she has been for the past 5 years as it bears on her psychological state and well-being. She seems to be saying at her September 23, 2010 sentencing conference that she was detained for 5 years but not tortured. Moreover, if she and her family are lying to hide some fact not yet known, we need to figure out whether it related to the anthrax mailings of Fall 2001.

  25. DXer said

    Under the law controlling in the District of Columbia, the NAS’s failure to have timely provided the documents will not be mooted by the eventual production of documents after the November 29, 2010 conference. Physicians Committee For Responsible Medicine, et al. v. Dan Glickman, Secretary, Department of Agriculture, et al., 117 F. Supp. 2d 1 (D.D.C. 2000).

    In Physicians Committee, plaintiffs in Count II sought “a judgment declaring that defendants violated the public disclosure requirements of FACA section 10 by failing to disclose on an ongoing basis all records prepared by or for the Committee. The defendants’ motion to dismiss asserted that all documents have been released, that the claims set forth in count II are moot, and that the injury plaintiffs allege is not redressable by the requested relief.” Physicians Comm., 117 F. Supp. 2d at 3, 4.

    Section 10(b) of the “FACA obligates the government to make publicly available documents which were made available to or prepared for or by each advisory committee. And, unless the agency claims an exemption under FOIA, a member of the public need not request disclosure in order for FACA 10(b) materials to be made available.” Physicians Comm., 117 F. Supp. 2d at 4 (citing Food Chemical News v. Dep’t of Health and Human Services, 980 F.2d 1468, 1469 (D.C. Cir. 1992).

    “Defendants do not dispute plaintiff’s claim that FACA 10(b) material, not subject to a FOIA exception, was unavailable ‘for public inspection and copying before or on the date of the advisory committee meeting to which they apply.’ Food Chemical News, 980 F.2d 1468, 1469 (D.C. Cir. 1992). What they do say is that plaintiffs’ FACA claim is moot, because all documents have now been made public. Plaintiffs nevertheless demand a declaration that defendants violated FACA by failing to release the documents on an ongoing basis, asserting that a declaratory judgment would provide them ‘valuable ammunition for publicly questioning the final Dietary Guidelines.’” Physicians Comm., 117 F. Supp. 2d at 4.

    “A case is moot when it ‘has lost its character as a present, live controversy of the kind that must exist if the court is to avoid advisory opinions on abstract questions of law.’ Physicians Comm., 117 F. Supp. 2d at 4 (citing Schering Corp. v. Shalala, 995 F.2d 1103, 1106 (D.C. Cir. 1993)). Nevertheless ‘even the availability of a partial remedy is sufficient to prevent a case from being moot.’” Physicians Comm., 117 F. Supp. 2d at 4, 5 (citing Calderon v. Moore, 518 U.S. 149, 150, 116 S. Ct. 2066 (1996)).”In Byrd v. EPA, 174 F.3d 239 (D.C. Cir. 1999), a panel of the Court of Appeals declined to find mootness on facts closely analogous to those of this case. ‘Because Byrd’s injury resulted not only from EPA’s failure to provide him materials but also from the tardiness of their eventual release, . . . declaratory relief would afford Byrd some relief and prevent his action from becoming moot.’ Physicians Comm., 117 F. Supp. 2d at 5 (citing Byrd, 174 F.3d at 244; see also Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999) (finding a declaratory judgment to be an appropriate remedy for a FACA violation)).”

    “The Byrd opinion is difficult to reconcile with Payne Enterprises v. United States, 837 F. 2d 486, 491 (D.C. Cir. 1988)(“A declaration that an agency’s initial refusal to disclose requested information was unlawful, after the agency made that information available, would constitute an advisory opinion in contravention of Article II of the Constitution”); and with Hill v. United States Air Force, 795 F.2d 1067, 1071 (D.C. Cir. 1986). It is nevertheless controlling authority. Here, as in Byrd, declaratory relief ‘will provide the plaintiffs with this Court’s declaration that the agency failed to comply with FACA; and such a declaration will give them ammunition for their attack on the Committee’s findings.’ Byrd, 174 F.3d at 244. How effective such ammunition will be is not for this court to say.” Physicians Comm., 117 F. Supp. 2d at 5.

    • DXer said

      Another controlling decision is Food Chemical News, Inc. v. U.S. Dep’t of Health and Human Services, Admin., 760 F. Supp. 220 (D.D.C. 1991).

      The central issue in this case was whether under the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. II, § 10(b), “an agency is obligated to make available for public inspection and copying all documents that are made available to or prepared for or by an advisory committee.” Food Chemical News, 980 F.2d at 1468.

      FCN, a newsletter that focused on food safety issues, had closely monitored and reported on the activities of the Committee since its inception. Prior to a Draft Subcommittee meeting on February 28, 1991, Stephen Clapp, a reporter for FCN, requested copies of the two drafts of the FDA Committee’s final report. After the Executive Director of the Committee informed Clapp that the drafts would not be publicly disclosed, FCN sought to enjoin all meetings of the FDA Committee and its subcommittees until all drafts, working papers, and other documents prepared for future meetings were releases. FCN claimed that withholding these documents was a violation of section 10(b) of FACA.

      The appellate court held that under section 10(b) of FACA, an agency is generally obligated to make available for public inspection and copying all materials that were made available to or prepared for or by an advisory committee and that, whenever practicable, all 10(b) materials must be available for public inspection and copying before or on the date of the advisory committee meeting to which they apply.

      The appellate court concluded that “the language and structure of FACA express unequivocally that the Government is required to make available all nonexempt section 10(b) materials regardless of whether a FOIA request was filed.” Food Chemical News, 980 F.2d at 1472. Further, “the legislative history of FACA shows that Congress intended for the public to have access to section 10(b) materials before or at the meeting for which they were prepared.” Food Chemical News, 980 F.2d at 1472. The court noted that “Congress passed FACA to open the advisory committee process to the public to prevent ‘subjective influences not in the public interest’ from controlling the meetings.” S. REP. No. 92-1098, 92nd Cong., 2d Sess. 6 (1972), Food Chemical News, 980 F.2d at 1472.

      The Department of Justice and National Academy of Sciences, of course, was familiar with this precedent when they withheld the documents and prevented meaningful participation in the proceeding.

      If the documents are not immediately produced, both an injunction against reliance on the report and attorneys fees will be warranted.

      The NAS can produce and its reviewers can examine its report at their leisure. It is only the production of documents that is, contrary to controlling law, grossly overdue.

      If the Department of Justice does not comply with the law then it will not have the confidence of the American public in enforcing it.

      When it comes to producing documents, the solution is simply to immediately start the production and comply with the law. If you are the one to cause the report to be subject to an injunction or the government to incur attorneys fees, then please note your name for the record in the documents produced.

  26. BugMaster said

    Why did the FBI “grant” the NAS an extension on their report?

    You don’t suppose it was to delay the release of their information until AFTER the meeting!?

    • DXer said

      I certainly want the NAS to take all the time it needs in issuing its report.

      The production of documents, however, needed to be made contemporaneous with the meetings, so as to permit meaningful participation. If they are not immediately produced, the remedy under court precedent is an injunction preventing the use of the report in decision-making given that the failure to timely produce the documents prevented meaningful contribution by outside scientists and citizens.

      Natural Resources Defense Council, et al. v. Pena, et al., 147 F.3d 1012 (D.C. Cir. 1998) is illustrative of the principles that apply to the failure of the National Academy of Sciences to have produced the documents at a time that permitted meaningful participation.

      “Plaintiffs are Natural Resources Defense Council (“NRDC”), et al. “Defendants are the National Academy of Sciences (“NAS”) and Charles Curtis, Acting Secretary of the Department of Energy (“DOE”). Natural Resources, 189 F.R.D. at 6. “Plaintiffs allege that DOE violated the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. II, § § 1 – 15, et seq., through its use of a report prepared by the Inertial Confinement Fusion Committee (“ICFC”), an NAS committee.” Natural Resources, 189 F.R.D. at 6.

      “On March 5, 1997, the court issued an order permanently enjoining DOE from using the committee’s report or other work product.” Natural Resources, 189 F.R.D. at 6. “On August 6, 1997, the court granted DOE’s motion for an expedited entry of injunction.” Natural Resources, 189 F.R.D. at 6. “DOE then appealed the injunction on the basis that appellees lacked standing to sue for such relief and that even if they did have standing, such a drastic remedy was not warranted.” Natural Resources, 189 F.R.D. at 6.

      “The court of appeals also directed the district court to: consider whether FACA’s principal purposes – (1) avoidance of wasteful expenditures and (2) public accountability – will be served by granting a use injunction.” Natural Resources, 189 F.R.D. at 6.

      “On remand, the court ordered that plaintiffs inform the court, in light of their additional discovery, whether they would continue to seek a permanent injunction.” Natural Resources, 189 F.R.D. at 6. “Plaintiffs originally sought declaratory and injunctive relief to prevent NAS from publishing its report and to prevent DOE from using the report.” Natural Resources, 189 F.R.D. at 6. “In plaintiffs’ Amended Complaint for Declaratory and Injunctive Relief, plaintiffs now seek and order permanently enjoining DOE from using the report, and an order directing DOE and NAS to release all materials publicly available under FACA section 10.” Natural Resources, 189 F.R.D. at 6, 7.

      Since the court of appeals did not define “more precisely the discovery to be permitted, the parties quarrel as to its scope.” Natural Resources, 189 F.R.D. at 8. Plaintiffs insist that they are “entitled to discover matters which are reasonably likely to lead to admissible evidence and the discovery they seek as to conflicts of interests and use of the report will yield evidence that is itself relevant, let alone likely to yield relevant evidence.” Natural Resources, 189 F.R.D. at 8. “While plaintiffs admit the necessity of establishing their standing, they see no reason why discovery must be limited to the question of their standing or why discovery as to their standing must precede discovery as to other issues.” Natural Resources, 189 F.R.D. at 8. Plaintiffs “therefore insist that they are entitled to both jurisdictional discovery and discovery on what they call the merits.” Natural Resources, 189 F.R.D. at 8.

      “Without pre-judging the issue as to whether or not there were violations of FACA, for example, in the nature of the financial or other relationships between Committee members and the DOE, this information is discoverable because one must first know whether there were such violations before one can ascertain whether they had a deleterious effect on the committee’s output.” Natural Resources, 189 F.R.D. at 10. “Factual information bearing on asserted violations of FACA therefore falls within the broad discovery permitted of information which is reasonably likely to yield relevant information.” Natural Resources, 189 F.R.D. Natural Resources, 189 F.R.D. at 10. “It remains to be seen, of course, whether the information revealed will, in fact, establish FACA violations.” Natural Resources, 189 F.R.D. at 10.

      Finally, the court noted, “While the discovery sought relates to the general topic of possible violations of FACA and evidence disclosing such violations is relevant, a more specific inquiry must be made as to whether the documents sought as to conflicts of interest could disclose a potential FACA violation.” Natural Resources, 189 F.R.D. at 10.

    • Anonymous said

      I’m not sure that NAS asked the FBI for an extension. That seems to be something fabricated by Ed Lake. We don’t really know if NAS asked the FBI or the FBI requested that NAS take more time.

      It would also be interesting to know if anyone at FBI has read latest drafts of the report. Or will the FBI only get to see it at the same time as the public?

  27. DXer said

    In previous describing its process to the Government Accounting Office, the National Academy of Sciences neglected to advise GAO that documents were not in fact timely available so as to permit meaningful participation by the public and outside scientists.

    Government Accounting Office, “Federal Research: The National Academy of Sciences and the Federal Advisory Committee Act,” GAO/RCED-99-17, November 1998, p. 5 (“According to Academy officials, written materials presented to the committees by individuals who are not agents, officials, or employees of the Academy are available for inspection at the Academy’s public reading rooms in Washington, D.C.'”)

    The Government Accounting Office in its review of the NAS project in this matter can address the issue.

    Holt: FBI anthrax investigation is itself subject of probe | NJ.com
    http://www.nj.com/…/2010/…/holt_fbi_anthrax_investigation.html

  28. DXer said

    The Center for Science in the Public Interest (“CSPI”) has issued a Report titled “Ensuring Independence and Objectivity at the National Academies.” I have been a big fan of CSPI and Dr. Jacobsen, who issued the report, ever since reviewing a revision by him of his seminal report on soda called “Liquid Candy” and watching while the CSPI litigation director Steve played a key role in orchestrating an effort to get soda out of schools. (The industry agreed to voluntarily pull out regular soda).

    The CSPI Director and its litigation director would also be highly quotable on the importance of timely production of documents to permit meaningful participation. The timely production of documents is essential to transparency.

    As for CSPI generally, I’m always reminded of the joke: Where does an 800-pound gorilla sit? Wherever it wants.

    http://www.cspinet.org/new/pdf/nasreport.pdf

  29. DXer said

    The NAS website quotes the controlling statutory language:

    http://www.nasonline.org/site/PageServer?pagename=ABOUT_FACA

    About the NAS

    Federal Advisory Committee Act

    Requirements Relating to the National Academy of Sciences and the National Academy of Public Administration

    Sec. 15. (a) In general.–An agency may not use any advice or recommendation provided by the National Academy of Sciences or National Academy of Public Administration that was developed by use of a committee created by that academy under an agreement with an agency, unless–

    (1) the committee was not subject to any actual management or control by an agency or an officer of the Federal Government;

    (2) in the case of a committee created after the date of the enactment of the Federal Advisory Committee Act Amendments of 1997, the membership of the committee was appointed in accordance with the requirements described in subsection (b)(1); and

    (3) in developing the advice or recommendation, the academy complied with–

    (A) subsection (b)(2) through (6), in the case of any advice or recommendation provided by the National Academy of Sciences; or

    (b) Requirements.–The requirements referred to in subsection (a) are as follows:

    ***

    (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.

  30. DXer said

    Concurring in ANIMAL LEGAL DEFENSE FUND, et al., v. Donna SHALALA, 53 F.3d 363, (D.C. Cir. 1995), District of Columbia Circuit Judge Wald explained in a case involving the National Academy of Sciences:

    “In the FACA context particularly, there may be a big difference between relief now and later. As the Eleventh Circuit has stated,

    [b]ecause FACA’s dictates emphasize the importance of openness and debate, the timing of [public] observation and comment is crucial to compliance with the statute. Public observation and comment must be contemporaneous with the committee process itself [citation omitted]. If public commentary is limited to retrospective scrutiny, the Act is rendered meaningless.”

    The Code of Federal Regulations, 41 C.F.R. 102 (7-01-05 Edition), provides express guidance in Appendix A.

  31. DXer said

    Here is a GSA memo explaining FACA obligation to have timely provided the documents contemporaneous with the meetings so that participants might have attended the public meetings and meaningfully participate. The emails withheld for 2 years and only recently produced show that USAMRIID prevented Dr. Ivins’ attorney from interviewing Dr. Ivins’ colleagues. That led to his suicide. NAS now has prevented that same attorney from reviewing the documents in advance of this conference. That’s not right and violates the law.

    Public Access to Records (FACA)
    http://www.gsa.gov/portal/content/100785

    “Public Access to Records (FACA)

    MEMORANDUM FOR COMMITTEE MANAGEMENT OFFICERS

    March 14, 2000

    FROM: JAMES L. DEAN, DIRECTOR
    COMMITTEE MANAGEMENT SECRETARIAT

    SUBJECT: Public Access to Advisory Committee Records

    The purpose of this memorandum is to provide guidance regarding the circumstances under which requests for records generated by or for Federal advisory committees may be processed under the request and review process established by the Freedom of Information Act (FOIA), 5 U.S.C. 552(a)(3).

    Background

    Section 10(b) of the Federal Advisory Committee Act (FACA), as amended, (Public Law 92-463, 5 U.S.C. App.) provides that:

    “Subject to section 552 of title 5, United States Code, the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.”

    The purpose of section 10(b) is provide for the contemporaneous availability of advisory committee records that, when taken in conjunction with the ability to attend committee meetings, provide a meaningful opportunity to fully comprehend the work undertaken by the committee.

    ***

    In Food Chemical News V. Department of Health and Human Services (980 F. 2nd 1468, 299 U.S. App. DC 25), the District of Columbia Court of Appeals held that:

    “…under section 10(b) of FACA an agency is generally obligated to make available for public inspection and copying all materials that were made available to or prepared for or by an advisory committee. Except with respect to those materials that the agency reasonably claims to be exempt from disclosure pursuant to FOIA, a member of the public need not request disclosure in order for FACA 10(b) materials to be made available. Thus, whenever practicable, all 10(b) materials must be available for public inspection and copying before or on the date of the advisory committee meeting to which they apply.” (Emphasis added)

    Accordingly, agencies may not delay making available non-exempt records to interested parties under FOIA procedures as an administrative convenience, or for other reasons.

    The Attorney General issued guidance on October 4, 1993 and September 3, 1999, regarding additional steps that Federal agencies should take to comply with both the letter and the spirit of FOIA. As noted in the memoranda, the Department of Justice (DOJ) “will no longer defend an agency’s withholding of information merely because there is a ‘substantial legal basis’ for doing so. Rather, in determining whether or not to defend a non-disclosure decision (the DOJ) will apply a presumption of disclosure.”

    Given the plain and unambiguous language contained in section 10(b) of FACA, coupled with controlling case law and DOJ’s FOIA guidance, I am encouraging each Committee Management Officer (CMO) to assure the maximum timely availability of covered advisory committee records.”

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