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

* The Government Has Not Shown Any “Good Cause” That Should Prevent the Unsealing By Judge Daniel T.K. Hurley Of The Depositions Of Bruce Ivins’ Former Assistants Patricia Fellows and Mara Linscott

Posted by Lew Weinstein on November 14, 2011

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8 Responses to “* The Government Has Not Shown Any “Good Cause” That Should Prevent the Unsealing By Judge Daniel T.K. Hurley Of The Depositions Of Bruce Ivins’ Former Assistants Patricia Fellows and Mara Linscott”

  1. DXer said

    Only the official government reports were unsealed. The depositions of Patricia Fellows and Mara Linscott will remain sealed. Courts including Judge Daniel T.K. Hurley, in the rush of court business, end up merely rubber-stamping collusion by the parties to keep important evidence secret. It is done throughout the court system and greatly undermines public policy.

    • Would they have given Pat Fellows the lab notebooks from August to Oct 2011 during or before her deposition? If not, was that not obstruction at the time of the deposition by DOJ?

      By making the settlement and sealing the deposition the DOJ can conceal that they withheld the lab notebooks from Pat Fellows during the deposition. The plaintiff might not have known about them at the time. So the settlement payment can buy the silence of the plaintiff about this failure to make the lab notebook available at the time of the deposition.

      The refusal from the time of the deposition to now to make the lab notebook public under FOIA thus served to conceal how much information was withheld from plaintiff and Pat Fellows during the deposition and that this hindered the deposition.

      • DXer said

        Congress should hold hearings and subpoena Pat Fellows and her notebooks relating to Ivins/Ames. If there is a Committee that has effective oversight (and I don’t think there is), Congress should prevent the DOJ from settling for so long as the civil deposition is sealed and all of Ivins’ notebooks are not provided. A large amount of virulent Ames she made is missing and she has a First Amendment right against self-incrimination not to answer questions at deposition or before Congress.

        Litigants regularly collude to keep important information from the public though such voluntary protective orders. Indeed, it was Mr. Schuler’s name on the document moving for the protective order.

        So while I am happy for their success given Mrs. Stevens’ tremendous loss, they should spare us the sanctimony about how they wanted the facts to come out. If Mrs. Stevens wants the facts to come out, she’ll instruct Mr. Schuler to move the court to unseal the deposition of Dr. Ivins’ two assistants. Otherwise, she and her lawyers have profited at the expense of the public interest favoring disclosure.

  2. DXer said

    A court considering a motion for a continuation of the protective order must proceed in two steps. First, it must determine whether particularized harm will result from disclosure of information to the public. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Fed. R. Civ. P. 26(c) test. Rather, the person seeking protection from disclosure must allege specific prejudice or harm. Second, if the court concludes that such harm will result from disclosure of the discovery documents, then it must proceed to balance the public and private interests to decide whether maintaining a protective order is necessary. Courts doing this balancing consider the following factors: (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public.

    Even when the factors in the two-part test weigh in favor of protecting discovery material (i.e., where the court determines that disclosure of information may result in particularized harm, and the private interest in protecting the discovery material outweighs the public interest in disclosure), a court must still consider whether redacting portions of the discovery material will nevertheless allow disclosure.

    See, e.g., Roman Catholic Archibishop v. Various Tort Claimants, 2011 U.S. App. LEXIS 22569 (Nov. 7, 2011)

    • DXer said

      The Eleventh Circuit held in Chicago Tribune that Rule 26 confidentiality is not automatically foregone because confidential materials are submitted with a substantive motion. Chi. Tribune Co., 263 F.3d at 1313. The common law and First Amendment presumptive right of access can be overcome with a showing of “good cause.” Id. To determine whether good cause exists this Court must balance the moving party’s interest in obtaining access against the affected party’s interest in keeping the information confidential. See Id.

      When determining whether “good cause” has been show, courts consider: (1) whether allowing access would impair court functions or harm legitimate privacy interests, (2) the degree of and likelihood of injury if made public, (3) the reliability of the information, (4) whether there will be an opportunity to respond to the information, (5) whether the information concerns public officials or public concerns, and (6) the availability of a less onerous alternative to sealing the documents. Romero v. Drummond Co., Inc., 480 F.3d 1234, 1246 (11th Cir. 2007).

      In assessing the balance, the District Court should consider that the Homeland Security undersecretary has urged that the country faces a grave anthrax threat — and has urged that all members of Congress receive a classified briefing so as to appreciate the threat. The public has a keen First Amendment interest in understanding whether the Department of Justice was correct in its analysis of the Fall 2001 anthrax mailings. This is not a matter affecting private citizens — this is a matter that affects all Americans equally,

  3. DXer said

    Dr. Felllows published many papers to include the following selection from pubmed. If she has insights that differ from Dr. Andrews, Adamovicz, Heine, Worsham, Friedlander and Welkos, it is important the public learn of them. The present or former USAMRIID scientsts have all explained that Dr. Ivins did not have the opportunity or means of creating the dried powdered anthrax used in the Fall 2001 anthrax mailings. The access records to the B3 now show that rather than his time being unexplained, his visits to the B3 on those particular nights was explained by the scheduled animal studies, work on bacteremia etc. — such as the experiment involving the 52 rabbits subcutaneously challenged under Biolevel 3 conditions in Suite B3. Moreover, the photo recently uploaded of the lyophilizer confirms that it was too big for Dr. Ivins to get into the B3 through the airlock. If Dr. Fellows disagrees, her sworn testimony is of keen importance and central to the public interest.

    Dr. Linscott, for example, gave repeated press interviews to book author David Willman and so it is hard to imagine justification for sealing her deposition on the same subject. Is the public only entitled to the government’s spun version of events — is that it? One need only look at US Attorney Taylor’s claim that Dr. Ivins’ time was unexplained and that a lyophilizer was used to see that sometimes the government is mistaken about its facts.

    Indeed, Dr. Ivins’ first counselor gave an interview to the Washington Post in which she described conversations with Dr. Ivins in July 2000 — that book author David WIllman, writing for the Los Angeles Times, continues to rely upon in arguing that Dr. Ivins is guilty. It is crazy to allow her and journalists relying on her account to spin her version of events without being allowed to see the contemporaneous documentation. The records, on information and belief, will show that the counselor annotated the notes of the psychiatrists.

    https://caseclosedbylewweinstein.wordpress.com/2011/08/12/dxers-email-to-washington-post-ombudsman-about-its-august-7-2008-dark-side-poisoning-story/

    If these people are going to use the press to spin Dr. Ivins’ guilt, then the public is entitled to the best information available to parse the correctness of their claims.

    If they are correct, that is all the more reason the public should see the documents so as to get on the same page.

    Here are examples of articles describing Dr. Fellows’ research.

    This case is closed. There is no pending investigation. There is no justification for the sealing under Federal Rule of Civil Procedure 26(c).

    1.
    Duration of protection of rabbits after vaccination with Bacillus anthracis recombinant protective antigen vaccine.
    Little SF, Ivins BE, Webster WM, Fellows PF, Pitt ML, Norris SL, Andrews GP.
    Vaccine. 2006 Mar 24;24(14):2530-6. Epub 2005 Dec 27.

    7.
    Bacillus anthracis virulence in Guinea pigs vaccinated with anthrax vaccine adsorbed is linked to plasmid quantities and clonality.
    Coker PR, Smith KL, Fellows PF, Rybachuck G, Kousoulas KG, Hugh-Jones ME.
    J Clin Microbiol. 2003 Mar;41(3):1212-8.

    8.
    Anthrax vaccine efficacy in golden Syrian hamsters.
    Fellows PF, Linscott MK, Little SF, Gibbs P, Ivins BE.
    Vaccine. 2002 Jan 31;20(9-10):1421-4.

    9.
    Efficacy of a human anthrax vaccine in guinea pigs, rabbits, and rhesus macaques against challenge by Bacillus anthracis isolates of diverse geographical origin.
    Fellows PF, Linscott MK, Ivins BE, Pitt ML, Rossi CA, Gibbs PH, Friedlander AM.
    Vaccine. 2001 Apr 30;19(23-24):3241-7. Erratum in: Vaccine 2001 Nov 12;20(3-4):635.

    10.
    Comparative efficacy of experimental anthrax vaccine candidates against inhalation anthrax in rhesus macaques.
    Ivins BE, Pitt ML, Fellows PF, Farchaus JW, Benner GE, Waag DM, Little SF, Anderson GW Jr, Gibbs PH, Friedlander AM.
    Vaccine. 1998 Jul;16(11-12):1141-8.
    PMID: 9682372 [PubMed – indexed for MEDLINE]

    11.
    Passive protection by polyclonal antibodies against Bacillus anthracis infection in guinea pigs.
    Little SF, Ivins BE, Fellows PF, Friedlander AM.
    Infect Immun. 1997 Dec;65(12):5171-5.

    12.
    Efficacy of a standard human anthrax vaccine against Bacillus anthracis spore challenge in guinea-pigs.
    Ivins BE, Fellows PF, Nelson GO.
    Vaccine. 1994 Aug;12(10):872-4.

  4. DXer said

    On a separate front involving government accountability and disclosure, Senator Grassley recently was successful in blocking a FOIA rule drafted by DOJ which was unnecessary — instead of outright lying that responsive documents do not exist, the DOJ already can answer that if such records existed they would not be subject to production. His staff’s help is needed on DOJ’s stonewalling of numerous FOIA requests relating to Amerithrax.

    Grassley Will Try to Block FOIA Rule Drafted By DOJ
    By Samuel Knight | October 31, 2011 12:37 pm

    Sen. Charles Grassley (R-Iowa) said on Friday that he would “take all necessary action” to block rules drafted by the Department of Justice, which would allow government agencies to deceive people about the existence of information in response to Freedom of Information Act Requests.

    The ranking Republican on the Senate Judiciary Committee informed Attorney General Eric Holder of his intentions in a letter that also requested more information and clarifications about the proposed legislation, known as section 16.6(f)(2).

    Grassley said that he was against the proposed rule change in its current language because he believed that it would lead to an increase in FOIA related litigation — if those requesting information can’t trust a “no records” response — and would undermine the public’s trust in government.

    “Proposed section 16.6(f)(2) stands in stark contrast to both the President’s and your prior statements about FOIA, transparency and open government,” Grassley said in his letter, citing Holder’s prior support of President Barack Obama’s Open Government Initiative — a memo issued by President on his first day in office, which called for “a presumption of disclosure” from government agencies dealing with FOIA requests.

    The Republican senator also asked whether or not the proposal was necessary, citing the argument of transparency advocates that the government can already withhold information under current exemptions without neither lying nor explicitly acknowledging the existence of the information in question.

    Grassley asked Holder to clarify when the government would be allowed to deceive those who filed FOIA requests, asked the Attorney General if it was currently doing so and whether or not the Justice Department was counseling other government agencies on FOIA deceptions. He also wanted to know how the DOJ intends to proceed with the proposed rule change.

    The regulation was first proposed in 1987 as official policy by Edwin Meese, Attorney General under President Ronald Reagan, to avoid inadvertently revealing ongoing investigations.

    Recent proposals by the Department of Justice would enshrine Meese’s policy as law.

    Melanie Ann Pustay, director of the Justice Department’s Office of Information Policy, told the AP on Friday that the provision “has been implemented the same way for the 25 years it has been in existence,” and praised the Justice Department for reopening the public comment period on the proposed revision of FOIA regulations.

    • DXer said

      Was the new FOIA guidiance in 2009 just public relations? What do the actual statistics show regarding agency disclosure under FOIA?

      New FOIA Guidance: Government Must Open Files
      By Mary Jacoby | March 21, 2009 10:35 am

      The Freedom of Information Act has come in from the cold.

      Attorney General Eric Holder on Thursday issued new FOIA guidance to government agencies directing full compliance with requests for government documents. The guidance rescinds then-Attorney General John Ashcroft’s Oct. 12, 2001 memo essentially directing agencies to nit-pick FOIA requests to death by using legal technicalities to deny as many as possible.

      The new FOIA guidance implements a policy articulated by President Obama on his second day in office: “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, oppenness prevails.” What that means in practice: ”An agency should not withhold information simply because it may do so legally… [or] demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption,” Holder’s memo says. The Holder memo returns to the standards set by President Clinton’s attorney general, Janet Reno, in 1993.

      The memo continues:

      FOIA professionals should be mindful of their obligation to work “in a spirit of cooperation” with FOIA requesters, as President Obama has directed. Unnecessary bureaucratic hurdles have no place in the “new era of open Government” that the President has proclaimed.
      Agencies should work “pro-actively” to post information on-line before it’s requested, the memo says, and generally make better use of technology to speed up the notoriously long delays (ie: strategic foot-dragging) that have long plagued FOIA disclosure.

      Holder also directed the DOJ to review pending FOIA litigation in light of the “substantial likelihood that application of the [new] guidance would result in a material disclosure of additional information.” Henceforth, the DOJ will defend government agencies only if it concludes their FOIA denials were truly (not just technically) prohibited by law. DOJ will also defend statuory exemptions protecting disclosures that would harm national security, law enforcement interests and personal privacy.

      Open-government activists generally applauded. But David Sobel at the Electronic Frontier Foundation struck a cautionary note in this blog post:

      [I]t remains to be seen if these proclamations from on high produce real results down in the bureaucratic trenches. We will soon learn in our pending lawsuits whether the new administration is truly prepared to reverse the pro-secrecy practices of the Bush administration.

      The public interest group filed a lawsuit in 2006 seeking information from the Federal Bureau of Investigation about its Investigative Data Warehouse, a database used in counter-terrorism probes. On Jan. 23 — two days after Obama’s FOIA statement — the DOJ moved for summary judgment, asserting it had fully complied with EFF’s documents request. EFF asked the U.S. District Court for the District of Columbia to stay the proceedings. The FBI and DOJ should reconsider whether their previous disclosures during the Bush administration were adequate, given the new Obama policy of openness, EFF argued.

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