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

* The Deposition Of Patricia Fellows and Mara Linscott Will Remain Sealed; Taxpayer Money Was Used In A Settlement Once Again To Hide Evidence of Government Negligence By An Overbroad Protective Order Under Rule 26(c)

Posted by Lew Weinstein on November 15, 2011

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17 Responses to “* The Deposition Of Patricia Fellows and Mara Linscott Will Remain Sealed; Taxpayer Money Was Used In A Settlement Once Again To Hide Evidence of Government Negligence By An Overbroad Protective Order Under Rule 26(c)”

  1. DXer said

    U.S. to pay widow $2.5M in 2001 anthrax death
    http://photos.syracuse.com/yourphotos/2011/11/funny_faces_a_thanksgiving_mos.html

    Lawsuits filed by other victims have been dismissed, although at least one is on appeal.

  2. DXer said

    As I best recall, Dr. Fellows took a two week TDY (temporary duty assignment?) in late October 2001. Where did she go?

  3. DXer said

    Settlement doesn’t settle
    OPINION BLOG

    Maureen Stevens deserved to win her lawsuit against the federal government. We just wish that she had won in court.

    Technically, one could argue that the widow of photo editor Robert Stevens didn’t “win” the lawsuit claiming that negligence – most likely at Fort Detrick, Md., the Army medical research facility outside Washington – allowed someone to steal weaponized anthrax, then send it through the mail to American Media Inc., in Boca Raton. Mr. Stevens worked there in October 2001, and became the first of five people nationwide to die from exposure to the anthrax. Ms. Stevens had asked for $50 million, and last week came news that she and the government had reached a tentative settlement.

    In this case, though, a settlement would be victory. The frustration is that we may never know for sure who did it.

    It was clear from the start that any resolution would have to wait for the FBI investigation. More than three years ago, the FBI identified the killer as Bruce Ivins, who had worked at Fort Detrick and had access to the anthrax. He killed himself before being arrested. Last July, however, there was talk of reopening the investigation. So did he do it?

    “I’m on the fence,” said Richard Schuler, one of Ms. Stevens’ attorneys, “and for me to be on the fence ” He acknowledged that there is “a lot of circumstantial evidence” against Mr. Ivins, but noted that the FBI “had a lot of coincidences against (Steven) Hatfill.” He also worked at Fort Detrick, and just before Mr. Ivins killed himself the government agreed to a $5 million settlement with Dr. Hatfill for wrongly suspecting him.

    But Ms. Stevens’ attorneys never had to identify a killer. They just had to show negligence, evidence of which emerged quickly enough. As the investigation began, one former official said of Fort Detrick that “a 7-Eleven had better inventory control.” Though Mr. Schuler says, “Security is much different now,” we would like to have heard from some of the roughly 40 people Mr. Schuler says he deposed. We would like to have heard how Mr. Ivins – assuming he was the killer – managed to elude detection. As Mr. Schuler said this week, “A lot of things don’t ring true.”

    If, as Mr. Schuler expects, the Justice Department gives final approval to the settlement in the next couple of weeks, those “things” will remain unresolved. Many of the documents in the case will stay under seal. None of that, of course, is Ms. Stevens’ fault. She can justifiably claim that, because of her lawsuit, there is less chance of a similar attack.

    For several days in October 2001, however, this area – already in shock from the 9/11 attacks – feared that Al-Qaeda had spread death from the sky. The Post reported that some of the 9/11 hijackers had checked out crop dusters in Belle Glade. For a time, the government’s failure to protect the anthrax made victims of many people. We might feel better about the future if we could know more about the past.

    – Randy Schultz,

    for The Palm Beach Post Editorial Board

    Comment: How is it not the responsibility of the attorney of Mrs. Stevens that the Linscott and Fellows depositions remain sealed? As I best recall offhand, he is the one whose name appears on the motion that they be sealed when he still would have succeeded in taking their deposition without the sealing. Even now, he could make a condition of settlement the unsealing of those depositions. His tenacity and perseverance in achieving the success for his client is to be highly commended (recovery in such as case is inevitably problematic and his firm necessarily invested a lot in pursuing it). But don’t let it be said that he served the public interest. We haven’t learned much new about the laxity at Detrick since the Hartford Courant’s early work in 2002 or so. Official reports would have been suppressed if they had not been called on it even though it was a patent violation of FOIA to rely solely on the sealing order in the Stevens litigation to deny their production under FOIA.

    To date Plaintiff’s counsel served merely the financial interest of his client. What about the rest of the public and their loved ones who need the very evidence?

    It is as simple as Mrs. Stevens saying “I want you to require that they be unsealed as a condition of settlement.” She would get the same money but the depositions would be unsealed. Or, for that matter, it is as simple a matter of the federal district court judge to say “No good cause has been shown under Rule 26(c) to justify the sealing of those depositions.”

    Palm Beach Post should move for the unsealing of the depositions — upon a third party motion (such as is contemplated under the federal rules) — I predict the district court judge would unseal the two depositions.

    Certainly, IMO Bob Stevens would want the depositions unsealed given the light that they will shed – one way or the other — on the correctness of the FBI’s “Ivins Theory.” He would want the facts known that might confirm or not the allegations regarding his murder.

    • The DOJ paid good money to get those depositions sealed.

      • DXer said

        Note the usual joint motion for a protective order, it is provided that a deposition page will be stamped if something requiring sealing is discussed. For example, if a trade secret is disclosed, that page can be withheld.

        Here, I don’t know anything that would warrant sealing. But if there were, it should be on a page by page basis.

        If there is an issue about the large amount of virulent Ames that Pat and Mara made that is missing, then by all means understanding that issue is central to understanding Amerithrax.

        If anyone misled investigators in that regard then they had the constitutional right to plead the FIfth Amendment.

        Proponents of an Ivins Theory would find that their theory would be more plausible if it did not posit the unrealistic scenario of Dr. Ivins growing 463 plates (see NAS report) on the nights identified by the FBI. .. especially when the FBI has never even mentioned the word “rabbits” which was what was consuming his time.

        On narrow concrete issues, consider the issue of the September 17, 2001 email to Dr. Linscott. When was that sent? From what computer? USAMRIID reports that they cannot find such an email written on his work computer (and he was at work in the morning). The FBI failed to produce the emails in response to a FOIA — while quoting the emails, we do not even know the time and date that they were sent.

        As another example, what happened to the Apple laptop? Dr. Ivins said that Dr. Fellows most likely would know. If there is a computer from B3 that could be located by GAO, then it is incredibly important that they have access to those records.

        Did Dr. Ivins prompt Pat and Mara by a 2004 email to falsely recollect that the anthrax to replenish RMR 1029 was grown from frozen stock?

        • DXer said

          At the end of the day, only the distinguished jurist wearing the black robe can sort out whether a protective order under Rule 26(c) is justified in the particulars. But he can best address the issue if it is raised upon motion and briefed under the applicable precedent. All indications are that the DOJ is acting in good faith in a matter with complicated interests to weigh. It is quite easy for private litigants to promote and agree to overbroad protective orders for the convenience of the parties and to err on the side of overbroad sealing. It is up to third parties or to the federal judge to have the line drawn differently. Unless it is raised and briefed, federal judges in the ordinary case are far too busy with the substantive issues to reach out and address such issues. (Though this is far from the ordinary case). So I am merely urging that McClatchy or Palm Beach Post recognize that it is worth the time and expense to move to unseal the Fellows and Linscott depositions. Or alternatively urging that the federal court sua sponte to reach out and address the issue (if from reviewing the contents of the deposition, it seems that there is not “good cause” requiring that it be sealed).

        • DXer said

          Consider the large amount of missing Ames made by Pat and Mara that was intended to replenish RMR 1029.

          Consider the possibility it was, in fact, added to flask RMR 1029.

          Consider that it was not made from frozen stock but that it was made from a aliquot from the flask… but using the single pick method (avoiding morphs).

          Consider that addition of the new Ames would result in a flask of Ames that would lead to variation among downstream samples (such as was observed) as to whether they had morphs.

          It would lead to a mixture of Ames strain such as was observed.

          Consider the possibility that Dr. Ivins redid the inventory. (GAO, see ink analysis the FBI did not give you).

          Consider that in the event he redid the inventory to cover up missing stock given to the DARPA researchers he would be indictable for obstruction of justice.

          Consider that anyone who makes a false statement to investigators is indictable for that.

          But all of these sensitive and important issues underlie the critical importance that the depositions be unsealed.

          We could care less that on the last day, Bruce and Pat took Mara blindfolded to the sex shop in Georgetown and handed her a dildo.

          That sort of stuff has already been disclosed — and in fact it is central to the FBI’s “Ivins Theory.”

  4. DXer said

    The FBI has a very challenging and complex job balancing the varying competing interests. In this decision under FOIA, the Court is merely pointing out that remembering to never lie to a federal district court is easy.

    http://www.boston.com/news/nation/articles/2011/11/17/judge_fbi_must_pay_penalty_to_calif_muslims/

    Judge: FBI must pay penalty to Calif. Muslims

    November 17, 2011

    SANTA ANA, Calif.—The FBI must pay the legal fees of Muslim activist groups that sued the federal agency for access to its files, according to a U.S. District Court ruling filed Thursday.

    Judge Cormac Carney made clear that the financial sanction was not based on the merits of the Islamic Shura Council of Southern California’s Freedom of Information Act case, but it was to punish a government that chose to lie to its own judicial system.

    “The Court must impose monetary sanctions to deter the Government from deceiving the Court again,” Carney wrote. He gave the Islamic Shura Council 14 days to provide an affidavit detailing its costs.

    After a nearly five-year court battle, Carney ruled in April that the council could not review additional records of FBI inquiries into its activities, but he berated the government for misleading the court about the existence of the files.

    “Parties cannot choose when to tell the Court the truth. They must be truthful with the Court at all stages of the proceedings if judicial review is to have any real meaning,” Carney wrote.

    FBI spokeswoman Laura Eimiller declined to comment on the ruling, noting that the agency does not comment on litigation and has not commented on this case.

    The ruling refutes the FBI’s claim that admitting the files existed would have compromised national security, noting the privacy of sensitive filings can be protected by the courts.

    “And the Court rejects the Government’s suggestion that it initially had to deceive the Court to protect national security. The Government could have availed itself of routine court procedures without compromising national security,” Carney wrote.

    The Islamic Shura Council is composed of six Muslim-American community organizations and five community leaders.

    The group had requested access to all records created since January 2001, including surveillance, monitoring and other investigations of the council.

  5. Dxer and Anonymous have pointed out the importance of the 2x, 3x checks per day change. The comparison of hours at night at BSL3 before checks during the day and after adding checks at night (3x phase) is going to go from close to 0 to much larger, especially during animal check days. September and October are such days.

    The graph of night hours in BSL3 for the entire Ivins team will have the same spike as the graphs. Moreover, the time of animal checks and whether 2x or 3x should be indicated on the graphs and in the stats. This is sort a kind a like what? Like hypothesis testing in basic statistics. Is the mean of the distribution of time at night in BSL3 for Ivins (or the team) the same during 2x animal challenges v 3x animal challenges with one check done at night

    At the time of the deposition of Pat Fellows, did the plaintiff know this? Florida DOJ lawyers? DOJ HQ.

    The government as a party is responsible for what it knows in discovery. They have a special obligation to the judge in a case the judge doesn’t have an understanding of. Federal judges don’t expect the DOJ to take advantage of the judge’s lack of knowledge of a case to fool them.

    The scientists in this case typically worked for the government. Who made the 3x rule? Employees of the defendant. Not some 3rd party.

    Almost everything in the case was done by government employees. So the government has an obligation to inform the plaintiff and judge of things they don’t understand like 2x to 3x transition, a change itself made by government employees.

    • DOJ gets to say in court that it represents the United States of America. It isn’t X v DOJ or DOJ v y, it is x v USA or USA v y. That means DOJ is responsible for everything the US government knows or does. They don’t get to say they represent the US of A and then turn around and say, we are not responsible for what the employees or contractors of the US government know. Practically every scientist in the case is either an employee or contract of USG.

    • DXer said

      “The graph of night hours in BSL3 for the entire Ivins team will have the same spike as the graphs”

      Huh? No. Dealing with the animals was a one person job and according to the 302s would take a couple of hours. See 302 interview I have excerpted elsewhere.

      As noted in the protocol, Dr. Ivins was expected to do the last check alone.

      In the protocol drafted June 21, 2001, there were two checks contemplated with the last check — by Dr. Ivins — in the afternoon.

      Then you’ll see it was changed to 3Xs. As I best recall offhand without checking, computer documents exist with titles perhaps of ADDENDUMrabbitprotocol, ADDENDUMrabbitprotocol2, and ADDENDUMrabbitprotocol3. Note that it is more humane for any suffering animals to have 3Xs although I have not yet seen a reason for the change.

      To simplify a couple of things:

      Note that no prosecutor or investigator has ever said the word “rabbit.” Let that be a magic word like on the Groucho Marx show and see what they say if they ever use the word. They arrived at Detrick the week of the 24th.

      Also, in describing the experiment with animals, they make it seem he was a lackey checking animals on someone else’s experiment when actually he was the principal investigator for the formaldehyde study involving the 52 rabbits during the critical period.

      I would have to check my pending FOIA requests to see what I have requested. Upon a flurry recently the FOIA officer asked me to lighten up — and so let’s see what comes this week from pending requests. In addition to the revised and signed protocol, there are NGAV meeting minutes from August coming — as well as the minutes and powerpoint from a September 28 meeting that details timetables for numerous experiments.

      Anyone else is free to contact Ms. Rogers. The key is to be precise in specifically identifying the particular document or documents you are requesting.

      • DXer said

        To avoid duplication of effort, specifically, the pending FOIA requests I see are for the documents

        attached to the email by Bruce Ivins sent on August 30, 2001;

        attached to the email sent on August 30, 2001 (the attachment is titled CommitD2.doc) ;

        attached to the August 29, 2001 email by Bruce Ivins (the attachment is titled NGRAV PDT 82301.doc).

        It is the revision of the formaldehyde rabbit protocols that need to be obtained next.

      • You take any BSL3 hours by anyone in the unit Ivins was a member of and graph them. The x axis is the date and the y axis is hours in BSL3 by any team member, it does not matter who.

        You then mark on the x-axis the dates on which a challenge was being done, as well as whether 2x or 3x was in effect.

        The point of this is that you are determining if the unit that managed a challenge as a unit was doing nighttime checks that took up roughly the same time as the unit as a whole did in Sep/Oct 2001.

        If during other 3x challenges the units hours in BSL3 are the same as the units’ time in BSL3 in Sep/Oct 2001, then the hypothesis of something else happening is rejected.

  6. In Watergate terms, this is the 18 minute gap. If DOJ withheld the lab notebooks from Pat Fellows and Mara Linscott during the deposition, then that would have hindered their recollection of Bruce’s work on the rabbits and animal checks.

    The plaintiff might not have understood that at the time. Then the DOJ withheld the notebooks from the public under FOIA so that the plaintiff would not realize what had happened to make a motion to the judge.

    Once the plaintiff became aware of this and the leadership of DOJ became more aware of it from this blog, they settled the case to conceal 1) the withholding of the lab notebooks during the depositions to hinder recollection of Ivins’ having legitimate reasons to be in the Suite B3 lab those nights 2) the DOJ withholding of these under FOIA to conceal the extent of their obstruction from both the plaintiff and the trial judge as well as the public and Congress.

    This is the type of stuff that can get people with attorney general as part of their title sent to jail. Or at least, once upon a time it did.

    • If the notebooks become public, the plaintiff lawyers would have to think twice about revealing that those were kept from them and from the witnesses during the depositions. Thus the DOJ misconduct is sealed.

      Moreover, the Florida DOJ lawyers likely did not understand the role of rabbits and notebooks very well if at all at the time of the depositions. It was the leadership of the criminal division that went crazy in the summer of 2011.

      DOJ HQ leadership was intentionally deceiving the DOJ’s Florida lawyers on what was going on and why the notebooks and rabbits mattered so much. They are the ones who likely decided to settle the case and pay any price to do it.

      The sealing of the depositions thus silences the DOJ Florida lawyers as to the misconduct and deception practiced on them by the leadership of the DOJ including the leadership of the criminal division of the DOJ.

    • DXer said

      Note that Dr. Linscott had long since left before September and October 2001.

      She made the Ames that is missing. She thought that is the reason she had been hired. To make Ames to replenish RMR 1029.

      She was thanked by the former Zawahiri associate and could testify about that visit and work.

      She also could testify in support of the so-called “sorority” theory and share her insights on that.

      She would have been acting in good faith throughout — just hired as a junior lab assistant who then moved on to the healing professional.

      She is not to fault for any of Dr. Ivins’ frailties or his liking and respect for her or his sense of betrayal that she apparently was saying mean things behind his back to Pat. (Just because you are paranoid it doesn’t mean that people are not saying unkind things about you privately). She could address any of these questions with a reporter — she is not under a gag or anything.

      She spoke to Mr. Willman for example and discussed his sorority theory, the claims by the first counselor etc. It’s lame that other reporters don’t get an interview and get needed information.

      Mr. Willman also spoke to the first counselor and did not ask her anything about what she reports in her 2009 book about the psychotic delusions she says she was having in the 2000-2001 about murderous entities. — to include the critical month of July 2000 when she met several times with Dr. Ivins.

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