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

* DIAG refuses to produce IG report ; if this were the rule, civil litigants would gut agency’s independent obligations under FOIA to produce official reports

Posted by Lew Weinstein on October 11, 2011

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11 Responses to “* DIAG refuses to produce IG report ; if this were the rule, civil litigants would gut agency’s independent obligations under FOIA to produce official reports”

  1. DXer said

    That November 2001 IG report relating to Dugway would put this new June 25, 2015 report in context — and bear on analysis of the Fall 2001 anthrax mailings.

    GAO Discovers More Problems at Military Labs Beyond Anthrax Fiasco
    http://www.military.com/daily-news/2015/06/29/gao-discovers-more-problems-military-labs-beyond-anthrax-fiasco.html

    By way of background, I obtained the IG report from November 2001 from USAMRIID. It had been requested by McClatchy but internal emails that I obtained (inadvertently) showed that they were withholding even though agency officials acknowledged there was no legitimate grounds for withholding it.

    But the IG report for Dugway and Edgewood was not produced.

    Some journalist should obtain it. I recommend Alison at USA Today given that she currently seems on track for a Pulitzer.

  2. DXer said

    Remember this? The Army allowed the DOJ to keep it under wraps even though internal emails showed that all the Army folks recognized that there was grounds under exemption under FOIA for producing it. It was produced only Margaret Baines was called out on it.

    USAMRIID is doing it again. This is why FOIA has an attorney fee provision.

  3. DXer said

    DOJ and Plaintiff moved the court on October 19, 2011 to amend the protective order and permit release of the following documents below. (How gracious of them to permit the statutory mandate of FOIA to be the law of the land instead of the convenience of some civil litigants).

    DOJ needs to be sued under FOIA for its continuing wholesale gutting of FOIA under its overbroad approach — where it sealed even depositions previously filed.

    The documents that now will be permitted to be subject to FOIA are:

    a. Army Inspector General memo and report of Special Inspection of 3 Army Biological Defense Program labs, Nov. 2001, ARMY02-010041 to 010061

    b. Sandia National Laboratory, Security Review of USAMRIID – Final Report, 9/26/02, ARMY02-10253-10346

    c. Integrated Vulnerabililty Assessment Center, Sept. 1996, ARMY02-10530 to 10667

    d. Integrated Vulnerabililty Assessment Center, Feb 1009. ARMY02-10668 TO 10681

    e. Army Inspector General Report of Special Inspection of U.S. Army Biological Defense Program – Anthrax, Nov. 2001, dated Jan. 23, 2002, ARMY02-011078 tO 011108

    f. Appendix A: Consol. List of Recommendations (appendix to Jan. 2002 IG report), ARMY02-0111109 TO 011113.

    These additional documents — which had been sealed because they discussed the sealed documents — will now also be released.

    Depositions of Jay Arrison, Edward Eitzen, Peter Jahrling, Reynolds Salerno, and Richard Wade.

    Steven Afergood of FAS (“Secrecy News”) should consider this issue and someone should enlist Public Citizen (the Fonzie of the FOIA world) or Judicial Watch to show DOJ civil division that the American public will not stand by while a circle-the-wagons CYA approach to public policy dominates production of documents not exempt under FOIA.

    Rule 26(c) of the Federal Rules of Civil Procedure involves a balancing act. On the one side, there is the public’s right to know the threat they face regarding an anthrax attack by Al Qaeda. On the other side, there are personal privacy law and other exemptions that apply under the very specific provisions under FOIA. Everything not exempt under FOIA should be produced. The DOJ refused to produce to me because the public would not be interested. I disagree.

  4. DXer said

    As I noted to Ms. Baines this morning in a telephone call, she was not incorrect in referring to the protective order as the reason it could not be produced. It is up to the outside requestor to file a formal motion or other informally explain that such a protective order is overbroad. And it is not just overbroad as to the official report. To start, an administrative appeal should be filed so as to kick it upstairs..

    The protective orders in the Stevens litigation are grossly overbroad and should be rescinded as to ALL documents that are not exempt from production under FOIA.

    Mrs. Stevens’ counsel has absolutely no business agreeing to such a protective order. His client Maureen Stevens purports to want matters to come to public light.

    All the usual privacy exemptions and other exemptions under FOIA and any applicable statutes will still apply. But the gutting of FOIA through such protective orders needs to stop.

  5. DXer said

    If you file a FOIA request for a non-exempt document and it is denied, I will arrange a pro bono lawyer to bring suit if your administrative appeal is denied.

    The only way to stop this sort of power is to grab it by the tail and gun it in the opposite direction.

  6. DXer said

    It’s worth considering whether an independent panel should evaluate the full case against Ivins, looking at the science, the evidence investigators gathered and all other relevant material, Relman said.
    “We have to decide … how important this case is to us as a society, and I’m not presupposing it is,” he said.
    Fraser-Liggett and Lenski said it would be valuable to continue testing the anthrax samples in the case as new, more sensitive technologies came on line.
    “Speaking as an individual citizen,” Lenski wrote in an email, “I think it would benefit the public. Even if it didn’t resolve the Amerithrax case with respect to criminal culpability, it would be a valuable test run of what science could contribute if a similar terrorist event were to occur.”

    Read more: http://azdailysun.com/news/science/80c10166-f44d-11e0-99dc-001cc4c002e0.html#ixzz1aZPzX7Xg

    Comment:

    The same people who think it is worth considering whether an independent panel should evaluate the full case against the science should use their influence to encourage the DOJ to expedite the long-pending FOIA requests.

    • DXer said

      Those lab notes pictured in the Frontline special showing what Dr. Ivins was doing in the lab on those nights Rachael had speculated he was making a dried powder were withheld by DOJ — and produced to this blog pursuant to a FOIA request.

      The DOJ removed the only copy of other key notebooks.

    • You don’t spend billions on bio science research and not finish the job on these morphs and genetic lineages.

      “With price no longer an issue, the DNA in a colony of anthrax could be sampled over and over and over, assuring accuracy. And you wouldn’t be limited to four morphs; you could test as many as you felt were useful.

      Fraser-Liggett doesn’t fault the FBI for not switching to an untried technique in 2006. But she said the enhanced precision now available could bring new evidence to light, confirming investigators’ original conclusion or pointing in other directions.

      Read more: http://azdailysun.com/news/science/80c10166-f44d-11e0-99dc-001cc4c002e0.html#ixzz1aZqtSBwI

      So finish the experiment. You don’t build a billion dollar particle collider and shut it down because you don’t like the results.

  7. DXer said

    Let’s go behind the curtain to understand the denial.

    Peggy Baines of DIAG wrote this email:

    From: Baines, Margaret B Ms CIV USA HQDA OTIG
    Sent: Tuesday, August 23, 2011 9:38 AM
    To: Lee, James E LTC MIL USA MEDCOM OTSG; Hodgson, Linda Ms CIV USA ATEC; Jorgenson, Michael R Mr CIV USA AMC; Patton, James T Mr CIV USA HQDA ASO; Lee, Gregory CIV USA ATEC; Glenn, Ricardo A COL MIL USA MEDCOM HQ; Muelhaupt, Jeff Mr CIV USA AMC; Humpton, John H Mr CIV USA HQDA DCS G-3/5/7
    Cc: McManus, Edward M Mr CIV USA HQDA OTIG; Ford, Fred K COL MIL USA HQDA OTIG; Blose, Todd E Mr CIV USA HQDA OTIG; De Ocampo, Robert M Mr CIV USA HQDA OTIG; Broyles, Barbara D Ms CIV USA HQDA OTIG
    Subject: DAIG FOIA request for 2001 “U.S. Army Biological Defense Program – Anthrax” S: 7 Sep 11 (UNCLASSIFIED)
    “Classification: UNCLASSIFIED
    Caveats: FOUO

    Ladies and Gentlemen, I am Ms Peggy Baines, Records Release/Deputy Legal, Army IG. We received a Freedom of Information Act request for the attached inspection report, the Nov 01 “U.S. Army Biological Defense Program – Anthrax.” Please keep this report close hold.

    I need each of your organizations to review this report and tell me which portions – down to the exact words, if possible – should be withheld or redacted. Please give me your input by COB 7 Sep 11. I’ve sent this to the AMC/ATEC/MEDCOM IG offices and to AMC/ATEC/MEDCOM/Safety Office/G3 points of contact indicated to me by the DAIG Technical Inspections division.

    Keep in mind that the only possible legal justification I can conceive of for withholding any of this is if the ten-year-old findings reveal current security weaknesses at these labs that could be exploited, thanks to this report. I hope this is not the case. Assuming that the deficiencies in this report have been remedied, I intend to advocate for release of all of this report (minus personally identifiable information) to the requestor at this point, unless one of you convinces me otherwise. Please feel free to coordinate with your legal/FOIA personnel on this.

    Thank you – I am at 703-545-4588 or this email. Ms Baines”

    The people in overall charge of FOIA at USAMRIID (they are not at USAMRIID and not FOIA officers as such, but oversee that USAMRIID-FOIA) wrote:

    “From: Peterson, John P Mr CIV USA MEDCOM HQ
    Sent: Thursday, September 29, 2011 12:24 PM
    To: Rogers, Sandra Ms CIV USA MEDCOM USAMRMC
    Subject: FW: DAIG FOIA request for 2001 “U.S. Army Biological Defense Program – Anthrax” ) (UNCLASSIFIED)

    Classification: UNCLASSIFIED
    Caveats: FOUO

    Sandra,

    FYI.

    Our office recently reviewed OTSG/MEDCOM applicable portions of the DAIG Report for release determination.

    Refer the requestor to DAIG.

    Respectfully,

    Jpp

    John P Peterson
    Chief, Freedom of Information/
    Privacy Act Office
    HQ, U.S. Army Medical Command
    COMM: 210-221-7826″

    From: Peterson, John P Mr CIV USA MEDCOM HQ
    Sent: Friday, September 02, 2011 1:46 PM
    To: Price, Michael H LTC MIL USA MEDCOM HQ
    Cc: Orck, Charles E Mr CIV USA MEDCOM HQ
    Subject: RE: DAIG FOIA request for 2001 “U.S. Army Biological Defense Program – Anthrax” S: 7 Sep 11 (UNCLASSIFIED)

    Classification: UNCLASSIFIED
    Caveats: FOUO

    LTC Price,

    Thank you for the opportunity to review/comment on the subject inspection report prior to the planned release under the FOIA.

    I have reviewed the report and conferred with the Attorney Advisor, HQ, U.S. Army Medical Command Staff Judge Advocate Office.

    No recommended redactions/withholding of information pertaining to OTSG/MEDCOM is indicated.

    Please call upon me should you have any questions concerning this action.

    Very Respectfully,

    jpp

    John P Peterson
    Chief, Freedom of Information/
    Privacy Act Office
    HQ, U.S. Army Medical Command
    COMM: 210-221-7826″

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