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

* oops !!! … Justice Department retracts yesterday’s court filings that undercut FBI’s anthrax case … but the truth seems to have found a way to sneak through the suddenly leaky FBI stonewall … see the deposition statements quoted below

Posted by Lew Weinstein on July 20, 2011



see DOJ notice of errata at …


By GREG GORDON, MIKE WISER AND STEPHEN ENGELBERG- McClatchy Newspapers, ProPublica and Frontline (7/19/11) …

  • Rushing into court to undo a major gaffe, Justice Department lawyers defending a civil suit Tuesday retracted statements that seemed to undercut the FBI’s finding that a former Army microbiologist mailed the anthrax-filled letters that killed five people in 2001.
  • Although the seven-page correction, filed in federal court in Florida, addresses conflicts between lawyers in the Civil and Criminal Divisions, it does not erase depositions filed by the government that challenged the FBI’s finding that the late Bruce Ivins was the perpetrator.
  • The department’s legal dance stems from its two seemingly conflicting roles:
    • backing up the FBI’s finding that Ivins, who committed suicide in July 2008, was the killer,
    • and defending an Army bio-weapons lab at Fort Detrick, Md., against allegations of negligence.
  • The Civil Division is attempting to limit federal liability over the death of the first anthrax victim, a Boca Raton, Fla., man whose family is seeking $50 million in damages for alleged negligence by the lab at the U.S. Army Medical Research Institute of Infectious Diseases, or USAMRIID.
  • In trying to minimize USAMRIID’s liability, government lawyers have had to walk a fine line, because the FBI says Ivins produced the anthrax powder at the facility while the civil lawyers are arguing it could have been prepared elsewhere.
  • In a legal filing last week, department lawyers said that the lab lacked the “specialized equipment in a containment suite” needed for Ivins to have dried the deadly powder.
  • That and other statements raised hackles at the FBI and among prosecutors in the case, leading to hurried huddles at the Justice Department.
  • While amending the filing, the Justice Department could not take back what government scientists had said in sworn depositions …
    • Stephen Little, a technician (actually senior scientist) at the Army lab, was asked whether the equipment could have been used to make the dried spore preparation used in the letters. “Not any equipment I have seen,” Little replied. Little said that there was “no way” Ivins could have moved the lyophilizer to the containment suite. “The thing is as big as a refrigerator,” Little said.
    • Another scientist, Susan Welkos, said, “We don’t have any way to produce the massive amount of material that would have been necessary to grow up and dry in a way that wouldn’t have killed everybody in the institute.”
  • Both quotations were highlighted by Justice Department lawyers in their submission to the court last week.
  • Friday’s filing also said that Ivins sent anthrax from a flask in his lab – a flask that the FBI contends provided the parent material for the letter anthrax – to two outside laboratories, the Battelle Memorial Institute in West Jefferson, Ohio, and a lab operated by BioPort in Lansing, Mich.
    • The amended filing said that Ivins sent the spores only to Battelle, narrowing the number of parties who might have been considered suspects.
  • Boyd said that the department and the FBI “have never wavered from that view that Dr. Ivins mailed the anthrax letters.”

(McClatchy Newspapers collaborated with the investigative newsroom ProPublica and PBS’s “Frontline” to produce this article. Engelberg works for ProPublica and Wiser is with “Frontline.”)



7 Responses to “* oops !!! … Justice Department retracts yesterday’s court filings that undercut FBI’s anthrax case … but the truth seems to have found a way to sneak through the suddenly leaky FBI stonewall … see the deposition statements quoted below”

  1. DXer said

    At page 94 of “2001 Anthrax Deception”, Graeme McQueen lucidly explains:

    The civil division lawyers made reference to “highly specialized equipment and techniques to profoundly modify the spores in preparation for their use in the nation’s first deadly attack with a pathogen.” Someone, said the civil division lawyers, “had to take anthrax bacteria and cultivate it, concentrate it, dry it, and convert it into an extremely fine powder before mailing…Without each crucial step, the anthrax never could have been placed into letters, never could have been sent through the mail, and never could have been inhaled by an eventual victim such as Mr. Stevens.”
    Modifications involving drying and preparation of an extremely fine powder are especially significant for purposes of foreseeability because USAMRIID exclusively used liquid anthrax spore preparations when working with viable anthrax…It would also take special expertise (even amongst those used to working with anthrax) and equipment to make dried material of the quality used in the attacks…Alteration of the form of the anthrax required technical equipment that was not routinely used for that purpose, and the equipment used to prepare the dried spore preparations that were used in the letters has never been identified.
    Although the civil team’s arguments were not presented explicitly in favor of Ivins’ innocence, this was the direction in which they tended. It is little wonder law professor Paul Rothstein said, “I cannot think of another case in which the government has done such an egregious about-face. It destroys confidence in the criminal findings.”79 Ivins’ former lawyer, Paul Kemp, said the civil case went beyond providing reasonable doubt of Ivins’ guilt: it provided “millions of reasonable doubts.”80

  2. anonymous said

    WEDNESDAY, JULY 20, 2011

    Your Daily Anthrax Errata Sheet! WEDNESDAY, JULY 20, 2011

    Your Daily Anthrax Errata Sheet!

    Is anyone besides Glenn Greenwald following the civil suit before Judge Hurley regarding the FBI’s allegedly bungled anthrax investigation?

    The Justice Department recently filed an “errata” to end all erratas, one that adds so many qualifications and modifications you finish wondering genuinely what the meaning of is is.

    The deposition of whoever swore to the errata will be very interesting.

  3. DXer said

    Justice Department waffling in anthrax case could be costly, experts say
    Posted Wednesday, Jul. 20, 201

    Read more:

    • anonymous said

      More incredible stuff. This stuff is going to haunt FBI and DOJ big time. They never seemed to understand the old lesson – the cover up is worse than the crime.

      The main people to be personally sued have now mostly left FBI/DOJ. Hint – one’s initials are DA.

  4. DXer said

    Legal Statements on Anthrax Mailings Withdrawn
    Wednesday, July 20, 2011

    The U.S. Justice Department on Tuesday withdrew assertions that appeared to question evidence central to a federal investigation’s conclusions on the 2001 anthrax mailings (see GSN, July 19).
    Still, a seven-page update filed by the department does not nullify prior affidavits placing in doubt the government’s determination that deceased U.S. Army microbiologist Bruce Ivins was guilty of carrying out the attacks that killed five people, several news organizations said on Tuesday in a collaborative report published by ProPublica (PBS/ProPublica/McClatchy Newspapers, July 19).

    The department on Tuesday qualified its assertion last week that Ivins “did not have the specialized equipment in a containment laboratory that would be required to prepare the dried spore preparations that were used in the letters,” the New York Times reported. The earlier statement was intended to counter a legal challenge by relatives of Robert Stevens, a photo editor at Florida’s Sun newspaper who died in 2001 after breathing in anthrax spores mailed to his employer (Scott Shane, New York Times, July 19). The plaintiffs contend the U.S. Army Medical Research Institute of Infectious Diseases at Fort Detrick, Md., was negligent in securing the anthrax stocks the FBI says were used in the deadly mailings (PBS/ProPublica/McClatchy Newspapers).

    The July 15 statement should have specified that the U.S. Army facility contained a lyophilizer and other systems capable of freeze-drying fluid anthrax samples into dry spores of the type used in the attacks, but that no such apparatus was located in the specific laboratory containment area used most frequently by Ivins, the Times quoted the Justice Department as saying in its Tuesday court filing.
    The department attributed the language of the original filing to a lapse in coordination between its civil and criminal offices, which were respectively responsible for addressing the legal challenge and the years-long probe into the 2001 mailings (Shane, New York Times).

    The Justice Department’s Civil Division filed “inaccurate information,” department spokesman Dean Boyd said on Tuesday in released remarks included in the collaborative news report.

    “The Justice Department and FBI stand behind their findings that Dr. Ivins had the necessary equipment in the containment suite” to prepare the agent, Boyd said (PBS/ProPublica/McClatchy Newspapers). “We are confident that we would have proven his guilt beyond a reasonable doubt at a criminal trial,” the Timesquoted him as saying. Ivins committed suicide in 2008 before facing charges in the case (Shane, New York Times).

    The scientist at one point requested a lyophilizer for preparing dried anthrax, and one such device at a containment area in close proximity was marked “property of Bruce Ivins,” department officials said (seeGSN, Aug. 5, 2008).

    A number of government specialists, though, questioned the federal position in statements provided under oath for the department’s earlier filing, according to the collaborative report.

    Addressing whether a USAMRIID system could have generated the dried spores for the attacks, technician Stephen Little said: “Not any equipment I have seen.”
    Ivins had “no way” of relocating the apparatus to the containment area, Little added. “The thing is as big as a refrigerator,” he said.

    Scientist Susan Welkos added: “We don’t have any way to produce the massive amount of (anthrax) material that would have been necessary to grow up and dry in a way that wouldn’t have killed everybody in the institute.”
    In addition, the department in its statement last week said Ivins had provided the Battelle Memorial Institute in Ohio and a BioPort laboratory in Michigan with anthrax from the supply the FBI has linked to the mailings. The Tuesday document asserts he had only provided the material to the Ohio site (PBS/ProPublica/McClatchy Newspapers).

    The Justice Department reversal is the most recent hitch in the case that was formally declared closed last year, the Times reported. The department paid millions of dollars to another one-time Army researcher who had been publicly but wrongly identified as a chief suspect in the mailings (see GSN, Nov. 26, 2008). A 2011 National Academy of Sciences report also found fault with some of the FBI’s scientific efforts in the investigation (see GSN, Feb. 15; Shane, New York Times).

    Comment: I believe Luann Battersby a former colleague, now in Pa, relatedly debunked the SpeedVac theory (it’s like a mini-lyophilizer).

  5. DXer said

    This was the sworn DOJ position at the August 8, 2008 press conference.

    The DOJ now recognizes that Dr. Ivins could not have used the lyophilizer.

    It is a hoot that they attempt to minimize their error rather than acknowledge it and set forth a viable alternative theory for drying.

    ” The affidavits allege that, not only did Dr. Ivins create and maintain the spore batch used in the mailings, but he also had access to and experience using a lyophilizer. A lyophilizer is a sophisticated machine that is used to dry pathogens, and can be used to dry anthrax. We know others in Dr. Ivins’ lab consulted him when they needed to use this machine.”

    People with theories that are not viable avoid stating them to avoid them being readily debunked.

  6. DXer said

    In a July 18 report, emptywheel reminded us of the Byrne and Andrews depositions. They are just as powerful as the Worsham deposition. I liked the Worsham deposition given that she was such an authoritative speaker before the NAS, as she led off the explanation about the 4 morphs on behalf of the FBI.

    But the Little deposition is the most powerful of all given its concrete particulars.

    Government Inches Closer to Admitting It Hasn’t Solved Anthrax Attack
    Posted on July 18, 2011 by emptywheel
    As a number of you have noted, ProPublica is out with a story on yet more evidence why Bruce Ivins was probably not the anthrax killer. Here’s the deposition they cite in their story; his former colleague Patricia Worsham described how USAMRIID didn’t have the facilities to dry the anthrax used in the attack, and certainly not the quantities that were used in the attack.

    I think I summarized it before to a certain extent, in that I don’t believe that we had facilities at USAMRIID to make that kind of preparation. It would have taken a great deal of time; it would have taken a huge number of cultures; it would have taken a lot of resources that would have been obvious to other people within containment when they wanted to use those resources.

    We did not have anything in containment suitable for drying down anything, much less a quantity of spores. The lyophilizer that was part of our division was in noncontainment. If someone had used that to dry down that preparation, I would have expected that area to be very, very contaminated, and we had nonimmunized personnel in that the area, and I might have expected some of them to become ill.

    Just as interesting is the argument the lawyers for Maureen Stevens–Bob Stevens’ wife–made when withdrawing their earlier stipulation that Bruce Ivins was the killer. They cite two former supervisors of Ivins, William Russell Byrne and Gerard Andrews, explaining why they thought Ivins couldn’t have made the anthrax used in the attacks.

    Byrne argued that, had Ivins used the lypholizer to dry the anthrax, it would have left evidence.

    He reiterated that if the laboratory’s equipment (lypholizer) had been used to lypholize that powder, you would have been able to find evidence of it pretty easily (76/23). The powder would have gotten everywhere insider the lypholizer.

    And Andrews explained that the volume the equipment in Ivins’ lab was insufficient to make the amount of spores used in the attack.

    Dr. Andrews stated: “No, I don’t believe he had the equipment, in my opinion.” He said that the equipment in BSL3 had limitations in that the lypholizer was a low-volume lypholizer that could handle maybe up to 50 mils at a time in separate small tubes. He opined “where would he do it without creating any sort of contamination is beyond me, but it has been speculated that the lypholizer may have been moved into a Class 2 Biological Safety Cabinet to prevent spores from flying everywhere. I would think the physical size of the lypholizer would be difficult to get the entire, or the speed vac to get the entire apparatus under the hood. It might be possible to get the apparatus under the hood; however, there would be contamination of it inside the hood if that was the case.

    Byrne and Andrews also address Ivins’ training–that is, lack of training on weaponizing anthrax.

    Right now, to try to salvage this suit, the government is arguing that the plaintiffs have no evidence of anyone else making the anthrax, but that since Ivins’ supervisors didn’t think he had the capability to make the anthrax, the government can’t be held liable for the anthrax that killed Bob Stevens.

    But along the way, evidence like this–as well as further evidence that Ivins didn’t have sole control of the anthrax–is making it more and more clear that the government hasn’t solved this case.

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