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

* For 3 years, the FBI has withheld the 302 interview statements which would reveal the aggressive tactics that Dr. Ivins found so upsetting

Posted by Lew Weinstein on June 6, 2011

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LMW COMMENT …

The failure to produce records in accordance with FOIA requests is a continuing issue in the aftermath of the FBI investigation of the 2001 anthrax attacks and its undocumented, unproven assertion that Dr. Bruce Ivins is the perpetrator.

Why are documents being withheld? What can be done to insist they be released?

Here is an opportunity for investigative journalists to make a real contribution.

  • Make your own requests. 
  • Write stories about the documents being withheld. 
  • Write to the FBI, the DOJ, and any other agency which is stonewalling legitimate requests for information.
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Here are some of the many previous posts on the CASE CLOSED blog dealing with failure to produce documents under FOIA.
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* FBI failure to produce documents under FOIA: April 19, 2011 FOIA for Ivins’ E-mail to Linscott on Sept 17, 2001, as quoted and relied upon in the Amerithrax Investigative Summary, February 2010

* The DOJ should disclose under FOIA the 2004 article provided by Dr. Bruce Ivins to the FBI regarding silica and Bacillus spore suspensions

* The FBI did not provide the list of attendees at the June 2001 Annapolis International Anthrax Conference pursuant to FOIA even though a Zawahiri infiltrator Rauf Ahmad attended the conferences for Zawahiri in 1999 and 2000.

* Dr. Bruce Ivins’ July 2003 through February 2004 emails will finally be released next week … there is still no satisfactory answer for the extended (unlawful) delays which amount to nothing less than a purposeful withholding of relevant information from the public and from the U.S. Congress … who is responsible for these delays? FBI Director Mueller? Attorney General Holder?

* DXer … the DOJ continues to interfere with lawful production of documents under FOIA

* from DXer … why has the DOJ failed to provide critical cited references under FOIA?

* from DXer … more FOIA materials not produced? a violation of the law? who is responsible for this?

* DXer … Why weren’t all of Dr. Ivins emails provided as required under the Freedom of Information Act?

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To refresh your memories, here is what FOIA is about and also the only legal exceptions to providing information as requested. Read the exceptions carefully and see if you can find legal justification for the information willfully being withheld.

The Freedom of Information Act (FOIA) is a federal law that allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.

see … http://www.justice.gov/oip/foia_updates/Vol_XVII_4/page2.htm

Twenty days to respond to requests …

Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall (i) determine within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination

Exceptions where information may be legally withheld …

This section does not apply to matters that are–

(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;

(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) geological and geophysical information and data, including maps, concerning wells.

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5 Responses to “* For 3 years, the FBI has withheld the 302 interview statements which would reveal the aggressive tactics that Dr. Ivins found so upsetting”

  1. DXer said

    The McClatchy newspapers had an early article “FBI won’t release details on anthrax suspect.”

    The article explained that David M. Hardy, the section chief of the FBI’s records management division, notified McClatchy that his office could not immediately release the records because there were “investigative leads still open” and the FBI needed to withhold the documents in order to protect confidential sources, privacy, law enforcement techniques and a suspect’s right to a fair trial.

    The investigation, known as Amerithrax, was not yet officially closed. But when it is, Hardy said, the FBI will release documents on a “rolling basis as soon as practicable.” …
    “Although the FBI cannot predict with absolute certainty when the Amerithrax investigation will be formally closed, we can assure you that the FBI has already begun to make initial preparations,” he said.

    Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press, said she was not surprised by the decision because open records exemptions give the FBI broad latitude to cite the need to protect law enforcement efforts.

    “There’s virtually no chance of getting FBI records in this case until they decide to close it,” she said. “This is a situation where it’s probably going to be years before we figure out what they’ve got.”

    David Hardy never did not release the lab notebook pages from the nights that the DOJ claimed Dr. Ivins was making a dried powder. AUSA Rachel Lieber specifically refused a written request from this blog to do so.

    Now Mr. Hardy is refusing even to produce the family 302 interview statements (and those statements are subject to redaction just as was done in connection with the family statements in countless other cases). Sentences can be redacted as needed, although an intelligence source confirms that they just point to the family’s insistence that Dr. Ivins was being wrongfully accused. The FBI agents, for example, screamed at Amanda that her father was a murderer and offered the son $2.5 million plus a sports car if they would not serve as alibi witnesses.

    • DXer said

      http://www.fredericknewspost.com/sections/news/display.htm?StoryID=79844

      “For The Frederick News-Post, unraveling the Ivins mystery will be a marathon, not a sprint. And you’ll know just where we obtained every bit of information.”

      Comment: I will be able to tell you which newspapers and journalists have submitted which FOIAs if the DOJ would take the 2 minutes and do the requested search of the electronic database and send the list of FOIAs submitted.

      I don’t know that Barry Kissin has submitted a FOIA for the unsealed documents in the Stevens case — which would benefit from his status as a media requestor. And now that Mr. Willman has published his book, I am not sure he’ll bother to submit any follow-up FOIA. But I wish a lot of reporters would choose the issue of their focus and file a simple FOIA request. Scott Shane’s September 2008 request for emails, for example, eventually let loose a wastershed of hundreds of pages of documents that provided a contemporaneous chronicling of sorts stretching a decade.

    • DXer said

      Right. The rule of the blog is to support factual claims with support. Either scan and send the writings or stop making baseless claims. Amerithrax is closed. Wikileaks says its employees have been offered bribes but it has nothing to do with Amerithrax.

  2. Lew Weinstein said

    The FBI is denying the requested information because it pertains to a living third party. I don’t see that exception in the law. What am I missing?

    • DXer said

      Almost all the 302s were of interviews of a living third party. It is the public interest in disclosure that is important here (for example, on this alibi issue).

      Personal issues were not discussed — what was discussed was the family’s position that Dr. Ivins was being wrongfully accused. Line item redaction is still available for any personal issues not outweighed by the interest in public disclosure.

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