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

* Deposition Excerpt of USAMRIID Scientist Stephen Little: Bruce Ivins would not have had skill, equipment, or ability to decontaminate equipment

Posted by DXer on July 16, 2011










18 Responses to “* Deposition Excerpt of USAMRIID Scientist Stephen Little: Bruce Ivins would not have had skill, equipment, or ability to decontaminate equipment”

  1. DXer said

    Dr. Ivins’ assistant, Kristi Friend, testified:

    Q. Did he ever discuss with — you, obviously, 2 at least briefly, worked with him in terms of the 3 anthrax investigation. Did he ever discuss with you 4 whether he had the capacity or knowledge to — let me start with knowledge — whether he ever had the knowledge to actually dry anthrax and get it in the state that it was found in the letters?

    A. No.

    Q. Did he ever — and you must have had some discussion about the anthrax attacks in general.

    A. Yes.

    Q. Did he — what would he say to you about the capacity to be able to perform this type of operation?

    A. He would only say very minimally things. He never said that he had the ability to do what was in the anthrax attacks. The only comment that Bruce would commonly say is that once it was determined that it was the Ames strain, that he felt very guilty, because all of his animal studies prior to that were performed with the Ames strain, and he, of course, had published our data on that, and he felt that it was his fault that whoever used the — they were going off of his research to do it. So he felt very guilty about using Ames in all those studies, because if he hadn’t done those studies, the perpetrator would have never known to use that strain of anthrax. That was really the only thing I remember him saying about the actual attacks and his ability. I never remember him saying, “I could do it better,” or, “Yes, I have the capacity to do this.” I never remember him saying anything to that nature. (pp. 85-86)

  2. DXer said

    Dr. Byrne, in his civil deposition produced today, explained:

    “if the equipment had been used to lyophilize that powder, you [would] have been able to find evidence of it pretty easily.”

    “We don’t do PCR on the environment in the suites, or we didn’t then, because you’re going to find anthrax. You can’t get rid of the DNA, even if you kill the organism. And I don’t think that it would have been hard to identify the powder. The powder would have gone everywhere inside of the lyophilizer. It was so light, it was virtually impossible to weigh it. It was like a mist. It would have contaminated every bit of space inside that lyophilzer and you could not have gotten rid of all of it.” (p. 77)

    • DXer said

      Dr. Byrne continued:

      “So — year, it’s — if they named the lyophilizer, where is the evidence that RMR 1029 was ever there?

      No, the spores get out an you can’t get rid of them all. And even if you kill them, the DNA is still left behind. So that’s why>” (p. 77)

  3. DXer said

    As another illustrative court precedent, the District Court for the District of Columbia in Blackman v. United States Dep’t of Justice, No. 00-3004 (D.D.C. July 5, 2001) held that the agency’s search for deposition transcripts of one expert witness by using “pay records” index was adequate; manual search that would involve 3,000 aviation cases and as many as 37 million pages would be “overly burdensome.”'s+search+for+deposition%22&source=bl&ots=LjNaO1A7bF&sig=mBVj_7FR_zYm4X1aCu2NTh3ppSA&hl=en&sa=X&ei=pyyGUvzgAeqtsQTAj4CQAw&ved=0CCkQ6AEwAA#v=onepage&q=Blackman%20v.%20United%20States%20%22agency's%20search%20for%20deposition%22&f=false

    There is no undue burden, however, on USAMRIID in obtaining the civil depositions.

    I have identified the location of the depositions at Fort Detrick and even had one or more depositions delivered to the in-box of the FOIA officer for processing. (Any redactions should be made as deemed necessary).

    District of Columbia precedent would control the issue, but I am not asking that John search 37 million pages. Surely if past experience is any guide I would stop at 35 million pages in light of Thanksgiving being almost upon us.

    • DXer said

      The FOIA Officer Sandra responds just now by email: “We are looking for the deposition you have requested.” John is a couple hours behind us in Texas but when he gets in, they will find Stephen’s deposition in John’s in-box — for his convenience.

      When the Government in Sunshine Act works, there is no better example of the public interest well served. USAMRIID FOIA was always inclined and able to fire on all pistons. It was only the weight of “obstruction-by-DOJ/FBI committee” that caused the system to flash “check engine” for years.

  4. DXer said

    The Animal Protocol relating to the experiment in late September 2001 and early October 2001 was first provided to me under FOIA under November 13, 2013.

    Mr. Stephen F. Little also worked on experiment. But he did not handle the rabbits.

    The protocol from 2001 states:

    “Mr. Stephen F. Little, M.S., has had 27 years of experience in biomedical research, including 18 years of research on anthrax. Mr. Little has had research experience i mice, rats, guinea pigs, and rabbits, including 18 years of research on anthrax.”

    (Now it would be about 40 years of experience in biomedical research and I believe 30 years on anthrax. That’s deep experience and expertise.)

    The 2001 protocol states:

    “Mr Little has had research experience with mice, rats, guinea pigs, and rabbits. Mr. Little will not be handling the animals. He will be responsible for determining anti-PA ELISA and TNA titers.”

    Mr. Little, at my request, graciously provided his civil deposition to USAMRIID FOIA for processing. Only a brief excerpt was included by the DOJ in a court filing.

  5. DXer said

    Dent v. EOUSA, No. 12-0420 (EGS), 2013 WL 782625 (D.D.C. Mar. 2, 2013) (Sullivan, J.)
    March 2nd, 2013 Posted by The Office of Information Policy

    Exemption 5 / Deliberative Process Privilege: The court concludes that the defendant has not shown that the FBI properly withheld information under Exemption 5 and the deliberative process privilege. The FBI explains that it withheld an “unsigned draft complaint” and an “unsigned draft Federal Grand Jury Superseding Indictment.” The court concludes that “[t]he declarant ably provides a description of the documents withheld but makes no effort to establish that the information withheld is either inter- or intra-agency, or that the information is predecisional and deliberative.”


    Click to access USCOURTS-dcd-1_12-cv-00420-0.pdf

    Exemption 5 protects from disclosure “inter-agency or intra-agency memorand[a] or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). “[T]he parameters of Exemption 5 are determined by reference to the protections available to litigants in civil discovery; if material is not available in discovery, it may be withheld from FOIA requesters.” Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 516 (D.C. Cir. 1996) (internal quotation marks omitted); Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975). This exemption “is interpreted to encompass . . . three evidentiary privileges: the deliberative process privilege, the attorney-client privilege, and the attorney work product privilege.” Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002) ; Citizens for Responsibility and Ethics in Washington v. U.S. Dep’t of Educ., __ F. Supp. 2d __, __, 2012 WL 5907027, at *8 (D.D.C. Nov. 26, 2012) (citations omitted).

    “The deliberative process privilege protects documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Loving v. Dep’t of Defense, 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)) (internal quotation marks omitted). It “shields only government ‘materials which are both predecisional and deliberative.’” Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997) (quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc)). For example, the exemption “covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

    To show that a document is predecisional, the agency need not identify a specific final agency decision; it is sufficient to establish “what deliberative process is involved, and the role played by the documents at issue in the course of that process.” Heggestad v. U.S. Dep’t of Justice, 182 F. Supp. 2d 1, 7 (D.D.C. 2000) (quoting Coastal States Gas, 617 F.2d at 868). A document is “deliberative” if it “makes recommendations or expresses opinions on legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). However, if “[a] document . . . does nothing more than explain an existing policy [it] cannot be considered deliberative.” Public Citizen, Inc. v. OMB, 598 F.3d 865, 876 (D.C. Cir. 2010). The deliberative process privilege is thought to “prevent injury to the quality of agency decisions.” Sears, Roebuck, 421 U.S. at 151; see Coastal States Gas, 617 F. 2d at 866. Such protection encourages frank discussion of policy matters, prevents premature disclosure of proposed policies, and avoids public confusion that may result from disclosure of rationales that were not ultimately grounds for agency action. See, e.g., Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982).

    Citing Exemption 5 and the deliberative process privilege, the FBI has withheld information from 30 pages of records. Hardy Decl. ¶ 39. One document, withheld in full, “is an unsigned draft Complaint” written by a Special Agent assigned to the NYFO concerning a third party individual. Id. Another document, also withheld in full, is “an unsigned draft Federal Grand Jury Superceding Indictment from the United States District Court for the Eastern District of New York, concerning plaintiff and co-defendants, collectively known as the ‘Cream Team.’” Id. The declarant ably provides a description of the documents withheld but makes no effort to establish that the information withheld is either inter- or intra-agency, or that the information is predecisional and deliberative.

    • DXer said

      Here is an illustrative decisionon FOIA exemption 5 for drafts.

      Fox News Network, LLC v. U.S. Dep’t of the Treasury, No. 08-11009, 2010 U.S. Dist. LEXIS 94451 (S.D.N.Y. Sept. 2010) (Maas, Mag. J.)

      With regard to certain press releases, the court concludes that “[a]lthough opinions and recommendations regarding press inquiries do not qualify as deliberations about substantive policy decisions, disclosure of the various drafts of the press release at issue here would reveal how Treasury’s deliberations with respect to the underlying substantive policy progressed over the course of several days.” However, the court finds that a draft of the Secretary’s remarks does not qualify for protection under the deliberative process privilege because the “actual document . . . does not appear to contain any suggested revisions that would be disclosed.” Treasury properly withheld draft Congressional briefing materials which “do[] not merely reflect [its] decisions in relation to ‘massaging’ the agency’s public image,” but rather “reflects internal agency deliberation on matters of substantive policy prior to the Secretary’s public announcement of those decisions.” Conversely, the court finds that portions of a draft letter from the Secretary to Congressional leaders “[are] not predecisional (because [they] explain[] decisions previously made) and do[] not reflect deliberation on substantive policy-oriented matters.” The deliberative process privilege is likewise found to be inapplicable to emails between Treasury and outside counsel related to public relations issues and press inquiries, as well as to a document providing guidance to Treasury staff on how to respond to press inquiries.

  6. DXer said

    This deposition — and not merely this brief excerpt — is available to any requester under FOIA directed to USAMRIID.

  7. DXer said

    In fruitlessly seeking documents from years earlier so he could reconstruct his time, in regard one request for such decon documents before his grand jury appearance, he got a “oops, I forgot, sorry Bruce.”

    There is no need to be exchanging opinions when we could be exchanging computer forensics.

    The sloppiness of the DOJ and Rachel’s and Lawrence’s and Ed’s analysis was that they were relying on what Bruce could remember — instead of what the contemporaneous documents showed.

  8. Ralph said

    The animated video attached clearly shows that a man of Ivins’s build who was wearing overalls would need the assistance of another person to move a refrigerator-sized piece of equipment and any other items used in the manufacture of anthrax spores. If Ivins was guilty, then it was clearly a conspiracy.

  9. Richard Rowley said

    This is a great find by Lew Weinstein. It’s an example of how an investigation can ignore all the warning signs that their scenario of how a crime went down is totally at odds with reality.

  10. DXer said

    Boston Herald –

    Justice Department lawyers contradict FBI findings in anthrax case

  11. anonymous said

    This is excellent testimony. Drilling right down to the details of the lypholizer that the FBI claimed Ivins may have used to dry the spores.

    The FBI’s claim was as childish as their claim that a plastic box found in a lake was a biocontainment box.

    • DXer said

      If the US Army strain was used, then, and if we posit arguendo that a supporter of the militant islamists was responsible, how did they gain access to the Ames strain? And was weaponized product stolen or was it weaponized by the perp? Was a lyophilizer (freeze drying method) used? Was it milled? Was it spraydried? In June 2001, a conference was held at Aberdeen Proving Ground for small businesses that might contribute to the biodefense effort — and it showcased APG’s world class facillities that had the full range of relevant equipment, as well as the range of activities and research featured by presenters at such conferences. It was called”Team APG Showcase 2001″ APG built a Biolevel-3 facility and, according to a Baltimore Sun report, by October 2002 had 19 virulent strains of anthrax, including Ames. The US Army and other agencies would promote small business innovation under a program (SBIR) that required that a small portion of R&D appropriations be made available for innovative projects. An example would be the 2001 grant issued DOD/Army for $70,000 titled “Wet-Vacuum Sampler For Surface Biocontamination Detection,” which was awarded November 2000 to Rocky Mountain Resource Labs, Inc. of Jerome, Idaho (now named “Microbial-Vac”). Some work under that grant was subcontracted.

      Let’s assume for the sake of argument the processor used a Buchi 290 mini spraydryer, used a novel method to concentrate the spores, and then mixed the product with silica. ABC News, the Defense Threat Reduction Agency and Kenneth Alibek have all suggested a spray dryer could have been used; moreover, that without more, could explain why there was a static charge. The US Technical Applications engineer for the Buchi spraydryer (at Brinkman) reports that “some of our products come out so electrostatically charged that we want to ‘zap the charges out’ and never are able to.”

      The Buchi Product Manager for the spray dryer in Switzerland says that it “is with great probability possible to do a coating of spores on silica particles in a lab-bench spray dryer. Two reasons for this assumption: i) The systems can be used with small amount of samples and thus intended to be used with biological systems; ii) the spray drying process is used for heat sensitive products due to short retention time and mild evaporation conditions in the spraying chamber.” He explained “that biological application and spray drying has quite a broad range of overlap.”

      There are an estimated 200 mini spray dryers in the US (when you include the 190 and 191 models, which had basically the performance parameters). There really is no competitor –the smallest Niro model is far bigger. Notwithstanding all the containment and safety features available as accessories to the Buchi 290, the processor needed to be wearing a protective suit (or at least gloves and mask). The Product Manager for the spray dryer in the US (at Brinkman) reports: “There are not really any safety features to prevent breathing of the final product. Once you are done, you remove the vessel and proceed to remove the powder from the vessel. If you don’t want to breathe it in, then you would have to use a gas mask of some sort which is obviously not provided by us or Buchi.”

      Siloxane reportedly was detected — pointing to use of a hydrophobic treated fumed silica. Would it be observable by SEMs? Is that why Meselson and Alibek didn’t see any silica?

      The product manager for the US reports that there would also be some contamination of the spray cylinder:

      “Also keep in mind that the glassware does become coated with whatever you are spray drying, so you also have “containment issues” when cleaning the glassware. If it is water soluble, then we always just take the glassware to the sink and wash the product off and let it go down the sink. Some of the product on the glassware is heat destroyed product and is not viable ”

      Under this proposed scenario, the perp needed (1) access to Ames, (2) access to a Buchi mini spraydryer, (3) protective suit or at least mask and gloves, (4) a means of inserting the product into the envelope, and (5) he likely was a supporter of Ayman Zawahiri’s goals and recruited by him, Atef, KSM, Hambali or an intermediary. A Buchi mini spray dryer would cost up to $45k with accessories and, thus, if indicated, is quite limiting.

      Although I’ve suggested that the smallest Niro spraydryer was not used here — and that a smaller laboratory model is indicated by the small batch used — early in the investigation the FBI did contact Niro in Denmark about its spraydryers (according to a news report). Niro has sold over 2000 units of its Mobile Minor laboratory scale Spray Dryer — nearly one a week for 50 years. Niro maintains a Drying Technology Center at its Columbia, MD and Copenhagen, Denmark sites, with spray dryers, fluid bed dryers, flash dryers and its fully equipped analytical lab.

      The processor here likely would not only have expertise using a laboratory or pilot spray dryer in such applications that use fumed silica , but he or she would have experience with using the additive with bacteria. Without such experience, for example, one likely would render it unviable by not knowing the appropriate inlet temperature or not know the right flow velocity to get the right particle size. A perpetrator would not want to have to be on a learning curve such as accusers of Hatfill or Berry may imagine began after 9/11 — when, they imply, the idea occurred to the mischief maker. When dealing with a deadly pathogen, you don’t suddenly grab the bacteria, open up a laboratory manual, and power up a spray dryer for experiments — super patriot or not. The perp necessarily — prior to 9/11 — had experience with a spray dryer and use of silica (or some other means of drying). Notwithstanding any teach-ins with William Patrick, had Dr. Berry or Dr. Hatfill or Dr. Ivins ever even used a mini-spray dryer with fumed silica and an anthrax simulant? Had they ever even used a fluid bed dryer?

      In one report of an experiment involving biodetection equipment, after noting that “Silica is a common material for aerosolizing Anthrax spores, and would likely be found in a weaponized biological agent mixture,” the researchers then add it to bacillus thuringiensis in order to test their equipment. Biodetection is the key mission of the biodefense community — Edgewood maintains a database of simulant properties. The info and equipment, including spraydrying equipment, is available to participants in the SBIR — promoting small business innovation. So might it require learning of a state? Well, to get that, all you needed to do was go to the program that shares such research for the purpose of innovation in the area of biodefense. But in yesterday’s filing by the Department of Justice, the DOJ’s position is that it was not foreseeable that the anthrax might be obtained from a US lab. Thus, access to know-how through infiltration of US biodefense was not on the priority list of DOJ either.

      Amerithrax is Ali Mohammed all over again. As head of intelligence for Dr. Ayman’s Egyptian Islamic Jihad, he infiltrated the US Army, CIA and FBI. He taught Dahab how to make lethal weapons and they told Osama Bin Laden that they had recruited 10 Americans for future operations.

      Now I know previously critics had claimed that DOJ could not foresee infiltration of US biodefense and use of stolen liquid anthrax as a weapon. But now DOJ is embracing the argument as its own when it thinks its litigation goal of “winning” on this civil claim.

      The American public would benefit instead from a sound analysis of the Fall 2001 anthrax mailings.

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