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

* Why did the DOJ and FBI deem it acceptable not to return all of the lab notebooks — when the AUSAs appreciate the importance of the contemporaneous record of events provided by the notebooks?

Posted by Lew Weinstein on December 7, 2011

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13 Responses to “* Why did the DOJ and FBI deem it acceptable not to return all of the lab notebooks — when the AUSAs appreciate the importance of the contemporaneous record of events provided by the notebooks?”

  1. DXer said

    Let’s consider the notebooks that have been produced by either FBI or USAMRIID, and let’s consider the notebooks still being withheld by the FBI (see Dave Hardy’s denial of Dillon’s FOIA request).

    Kenneth J. Dillon’s FOIA April 18, 2015 request to FBI for materials from September and October 2001 not previously produced
    Posted by Lew Weinstein on April 19, 2015
    https://caseclosedbylewweinstein.wordpress.com/2015/04/19/kenneth-j-dillons-foia-april-18-2015-request-to-fbi-for-materials-from-september-and-october-2001-not-previously-produced/

    Below are the notebooks (or excerpts thereof) produced to me over the years. But USAMRIID could not provide those never returned by the FBI. Source: written correspondence on innumerable occasions from the wonderful USAMRMC FOIA officer Sandra.

    • LabNotebook 3716(redacted) Posted: 08/24/2012
    • LabNotebook4103(redacted) — Posted: 06/02/2011
    • LabNotebook3919(redacted) — Posted: 05/10/2011
    • LabNotebook4000 — Posted: 06/21/2011
    • LabNotebook3745– Posted: 06/02/2011
    • LabNotebook4237(redacted) — Posted: 06/02/2011
    • LabNotebook 4240(redacted) — Posted: 08/24/2012
    • LabNotebook 4241_B01-11 — Posted: 08/24/2012
    • LabNotebook3921(redacted) — Posted: 06/02/2011
    • LabNotebook4281(redacted) — Posted: 05/13/2011
    • LabNotebook4306(redacted) — Posted: 05/03/2011
    • LabNotebook4383(redacted) — Posted: 04/29/2011
    • Notes and Sample Anaylsis from Notebook 3268 — Posted: 01/05/2012

    • DXer said

      Dr. Ivins listed the following as not returned by the FBI to USAMRIID.

      3655
      3760
      3945
      4010
      4037
      4282

      They still have not been produced. USAMRIID explained that FBI still had them and so they could not be produced by USAMRIID.

      Below are the notebooks produced so far. The FBI produced only 30 of 88 pages from 4010 relating to Flask 1029.

      The FBI finally has produced 30 pages of the 88 pages from Lab Notebook 4010.
      Posted by Lew Weinstein on March 3, 2011
      https://caseclosedbylewweinstein.wordpress.com/2011/03/03/the-fbi-finally-has-produced-30-pages-of-the-88-pages-from-lab-notebook-4010-relating-to-dr-ivins-flask-1029/

      These are the lab notebooks produced. (They were produced by USAMRIID rather than the FBI).

      3268 (limited to notes and sample analysis from Notebook 3268)
      3716
      3745
      3919
      3921
      4000
      4103
      4237
      4240
      4241
      4281
      4306
      4383

      I will confirm my sourcing so that FBI’s Dave Hardy knows the notebooks that should now be produced under FOIA.

  2. DXer said

    Notebooks were removed by the FBI — without making copies as USAMRIID Command had directed — in February 2004.

    From: To: Subject: Date:
    Ivins, Bruce E Dr USAMRIID
    RE: Notebook policy Thursday, February 19, 2004 8:57:47 AM
    (b) (6)
    (b) (6)
    Thanks, . I was never informed of this regulation, and the three FBI agents that took them simply asked me to give them to them. They didn’t bring a subpoena or go up front and request them or request to copy them. Perhaps, since they were new, they weren’t aware of the rule. I certainly wasn’t. If they aske for more, I’ll tell them what I have now been told. Thanks again. – Bruce
    —–Original Message—– From: To: Ivins, Bruce E Dr USAMRIID Sent: 2/19/04 8:36 AM Subject: Notebook policy
    Bruce, I spoke with about letting the FBI remove the laboratory
    notebooks from(6)the Institute, and she said “no”. said that the FBI isnottoremoveoriginaldocumentsorspecimens(6;)RIIDistoprovide photocopying access for anything they need.
    Please let me know if you need more information.
    (b) (6)
    (b)
    (b)
    (b) (6)
    From: Ivins, Bruce E Dr USAMRIID To: Subject: RE: Notebooks…again Date: Tuesday, February 17, 2004 1:13:07 PM
    I was not aware that I was supposed to ask for a subpoena. I remember the edict from HQ that came down to us that we were to “cooperate fully” with the FBI and its investigation, but didn’t know I was supposed to refuse them things. They’ve also received strains and other material from us. It’s very troubling when we get mixed messages from those above!
    As far as the notebooks go, three agents asked specifically for the 12 notebooks. Now I’m in the position of either “cooperating fully” and letting them have them – they filled out a chain of custody form for them – or “hindering” their investigation by refusing to let them borrow them and telling them they have to get a subpoena. Wonderful. When it comes close to the time for the notebook inventory, please let me know, and I’ll contact them and ask if we can have them back. Hopefully they can get whatever information out of them they need from Xerox copies of the notebooks.
    With regard to the missing notebook , I know that I never took it out of the office since the last notebookinventory,soIhavenoidea(2w)hereitmightbe.Ican’timaginesomeoneborrowingitwithout permission, but if I can’t find it, I’ll first ask people in Bacteriology Division, then at USAMRIID.
    Thanks for your help. I’m currently going over the notebooks to see what I have. – Bruce
    —–Original Message—– From: Sent: Tuesday, February 17, 2004 8:52 AM To: Ivins, Bruce E Dr USAMRIID Subject: RE: Notebooks…again
    Bruce, It’s probably too late now…but who gave the FBI permission to remove the notebooks? When
    the FBI were here a yr ago, and they wanted to remove notebooks, HQ said they could not do so unless they had a subpoena.
    According to our regulations, notebooks are not supposed to leave the building.
    —–Original Message—– From: Ivins, Bruce E Dr USAMRIID Sent: Tuesday, February 17, 2004 7:59 AM To: Subject: RE: Notebooks…again
    Thanks, ‘ll check what I have again, then send out a message bulletin boards. – Bruce
    —–Original Message—– From: Sent: Tuesday, February 17, 2004 7:57 AM To: Ivins, Bruce E Dr USAMRIID Subject: RE: Notebooks…again
    (b) (6)
    (b) (6)
    (b)
    (b) (6)
    (b) (6)
    (b) (6)
    (b) (6)
    (b) (6)
    Bruce, According to our records, notebook has not been turned in. The following
    notebooks are assigned to you:
    If you cannot find the notebook, I suggest you send a bulletin board message about it. We’re planning on doing an Institute-wide inventory again within the next few months.
    —–Original Message—– From: Ivins, Bruce E Dr USAMRIID Sent: Friday, February 13, 2004 4:35 PM To: Subject: Notebooks…again
    Hi,
    I’m having notebook problems again. I keep my notebooks in my office, and they don’t leave it. I am missing one very important notebook, dealing with the purification of anthrax spores. I do not believe that it has been turned in. The(2F)BI was in my office a couple of months ago and took possession of a number of notebooks – they signed for them, but I don’t have that
    particular notebook ( ) as being one of them. I can’t imagine having turned it back in, and I’m sure it was here when I la(s2t)looked for it – when I asked you for a list of my notebooks still out. Could you please send to me again a listing of notebooks I still have, and tell me what I need to do if there’s a notebook that has turned up missing? I have absolutely no idea where it could be.
    (b) (2)
    (b) (2)
    (b) (6)
    (b) (6)
    (b) (6)
    (b)
    (b)
    Thanks for your help again. – Bruce
    From: To: Subject: Date:
    Ivins, Bruce E Dr USAMRIID
    RE: Notebooks…again Tuesday, February 17, 2004 7:58:41 AM
    (b) (6)
    (b) (6)
    Thanks, ‘ll check what I have again, then send out a message bulletin boards. – Bruce
    —–Original Message—– From: Sent: Tuesday, February 17, 2004 7:57 AM To: Ivins, Bruce E Dr USAMRIID Subject: RE: Notebooks…again
    (b) (6)
    Bruce, According to our records, notebook # has not been turned in. The following notebooks are
    (b) assigned to you: (2)
    (b) (2)
    If you cannot find the notebook, I suggest you send a bulletin board message about it. We’re planning on doing an Institute-wide inventory again within the next few months.
    (b()b)
    (6()6)
    —–Original Message—– From: Ivins, Bruce E Dr USAMRIID Sent: Friday, February 13, 2004 4:35 PM To: Subject: Notebooks…again
    Hi,
    (b) (6)
    (b) (6)
    I’m having notebook problems again. I keep my notebooks in my office, and they don’t leave it. I am missing one very important notebook, dealing with the purification of anthrax spores. I do not believe that it has been turned in. T(h2e) FBI was in my office a couple of months ago and took possession of a number of notebooks – they signed for them, but I don’t have that particular notebook as being one of them. I can’t imagine having turned it back in, and I’m sure it was here when I last looked for it – when I asked you for a list of my notebooks still out. Could you please send to me again a listing of notebooks I still have, and tell me what I need to do if there’s a notebook that has turned up missing? I have absolutely no idea where it could be.
    Thanks for your help again. – Bruce
    (b)
    (b) (2)
    From: Ivins, Bruce E Dr USAMRIID To: Subject: RE: Notebooks…again Date: Tuesday, February 17, 2004 3:24:27 PM
    I won’t turn over any more notebooks without getting permission. I just went through what I have, and I can’t account for the following:
    I’ll keep looking. – Bruce
    —–Original Message—– From: Sent: Tuesday, February 17, 2004 2:51 PM To: Ivins, Bruce E Dr USAMRIID Subject: RE: Notebooks…again
    Bruce, I mentioned the problem to , and he wants to talk to If you haven’t already
    done so, please do not turn over the notebooks until I receive word from H(6Q). Thanks,
    —–Original Message—– From: Ivins, Bruce E Dr USAMRIID Sent: Tuesday, February 17, 2004 1:13 PM To: Subject: RE: Notebooks…again
    I was not aware that I was supposed to ask for a subpoena. I remember the edict from HQ that came down to us that we were to “cooperate fully” with the FBI and its investigation, but didn’t know I was supposed to refuse them things. They’ve also received strains and other material from us. It’s very troubling when we get mixed messages from those above!
    As far as the notebooks go, three agents asked specifically for the 12 notebooks. Now I’m in the position of either “cooperating fully” and letting them have them – they filled out a chain of custody form for them – or “hindering” their investigation by refusing to let them borrow them and telling them they have to get a subpoena. Wonderful. When it comes close to the time for the notebook inventory, please let me know, and I’ll contact them and ask if we can have them back. Hopefully they can get whatever information out of them they need from Xerox copies of the notebooks.
    With regard to the missing notebook , I know that I never took it out of the office since the last notebook inventory, so I have no idea w(h2e)re it might be. I can’t imagine someone borrowing it without permission, but if I can’t find it, I’ll first ask people in Bacteriology Division, then at USAMRIID.
    Thanks for your help. I’m currently going over the notebooks to see what I have. – Bruce
    (b) (6)
    (b) (6)
    (b)
    (2)
    (b) (6)
    (b) (6)
    (b)
    (b) (6)
    (b) (6)
    (b) (6)
    (b)
    —–Original Message—– From: Sent: Tuesday, February 17, 2004 8:52 AM To: Ivins, Bruce E Dr USAMRIID Subject: RE: Notebooks…again
    Bruce, It’s probably too late now…but who gave the FBI permission to remove the
    notebooks? When the FBI were here a yr ago, and they wanted to remove notebooks, HQ said they could not do so unless they had a subpoena.
    (b) (6)
    (b) (6)
    (b) (6)
    (b) (6)
    boards.
    According to our regulations, notebooks are not supposed to leave the building.
    —–Original Message—– From: Ivins, Bruce E Dr USAMRIID Sent: Tuesday, February 17, 2004 7:59 AM To: Subject: RE: Notebooks…again
    Thanks, I’ll check what I have again, then send out a message bulletin
    – Bruce
    —–Original Message—– From: Sent: Tuesday, February 17, 2004 7:57 AM To: Ivins, Bruce E Dr USAMRIID Subject: RE: Notebooks…again
    Bruce, According to our records, notebook # has not been turned in. The
    (b) (6)
    (b) following notebooks are assigned to you: (2)
    (b) (2)
    If you cannot find the notebook, I suggest you send a bulletin board message about it. We’re planning on doing an Institute-wide inventory again within the next few
    months.
    (b) (6)
    Original Message—– From: Ivins, Bruce E Dr USAMRIID Sent: Friday, February 13, 2004 4:35 PM To: Subject: Notebooks…again
    (b) (6)
    (b) (6)
    Hi,
    I’m having notebook problems again. I keep my notebooks in my
    office, and they don’t leave it. I am missing one very important notebook, , dealing with the
    (b)
    (2)
    purification of anthrax spores. I do not believe that it has been turned in. The FBI was in my office a couple of months ago and took possession of a number of notebooks – they signed for them, but I don’t
    have that particular notebook ( as being one of them. I can’t imagine having turned it back in, and I’m sure it was here when(I2)last looked for it – when I asked you for a list of my notebooks still out. Could you please send to me again a listing of notebooks I still have, and tell me what I need to do if there’s a notebook that has turned up missing? I have absolutely no idea where it could be.
    (b)
    Thanks for your help again. – Bruce

  3. DXer said

    GAO, who at DOJ or FBI was responsible for the failure to return Dr. Ivins notebooks so that he might reconstruct his time?

  4. DXer said

    The way it works is that the FBI kept the only copy of the ones that were most relevant. The FBI returned a bunch to Dr. Ivins. Then he wrote on April 20, 2007 to urge that “I am still missing 3655, 3716, 3760, 3945, 4010, 4037, 4240, 4241, 4282.”

    The FBI waited 5 years before returning 3716, 4240, and 4241 to USAMRIID uploaded last week. The Notebooks related to work that he did at the time the FBI speciously argued he had no reason to be in the B3 lab — when in fact the notebooks related to work that REQUIRED he be in the B3.

    The FBI now needs to return — and USAMRIID needs to upload — 3655, 3716, 3760, 3945, 4010, 4037, 4240, 4241, and 4282.

    This is no-brainer. The case is closed. The FBI needs to return USAMRIID property.

    If USAMRIID does not insist on it, then the failure is one of USAMRIID Command — which has its own issue because of the page 10 missing from all copies of the 2001 Annual Report that showed who visited USAMRIID during that period.

    (It will be awkward if they show Dr. Ivins giving a tour of his B3 on a night he was allegedly making a dried powder).

    I mentioned that AUSA Lieber should recognize that this is a national security matter.

    It is also an international security matter.

    You do not want to be the individual seen as standing in the way of the production of documents not exempt under FOIA.

    They are exculpatory of Dr. Ivins and continuing to withhold them puts any way who shares responsibility behind the eight ball.

    Everyone who helps now to see that they are produced gets a hall pass.

    • DXer said

      It is my understanding that the 3 notebooks produced were the direct result of a request by Frontline — and an appeals process they took. Kudos to them for their continued good and important work by Frontline, McClatchy and ProPublica.

  5. DXer said

    Three additional notebooks from the FBI have now been released on the FOIA website

    Link:

    https://mrmc.amedd.army.mil/index.cfm?pageid=foia_reading_room.overview

    • DXer said

      When you go to that link, your computer will warn you that the link is untrusted. That is because the security certificate differs from what it otherwise might be. It likely merely means that they are tracking who visits — and has always been the case with the AMEDD FOIA webpage. I don’t recall whether I was told that Army Intelligence is doing the tracking or the FBI but small matter. If you are concerned that it might install spyware on your computer, you can just wait for me to post highlights.

      19950124_LabNotebook 3716(redacted).pdf (18811 KB) — Posted: 08/24/2012
      20000216_LabNotebook 4240(redacted).pdf (7698 KB) — Posted: 08/24/2012
      20000216_LabNotebook 4241_B01-11(redacted).pdf (6173 KB) — Posted: 08/24/2012

  6. DXer said

    One of the notebooks involves plague and not anthrax. I have asked for a copy of it if it includes the 1998 period as in his correspondence with Dr. Ivins, Dr. Baker noted that both researchers who were coming were also vaccinated for plague.

    On the issue of the rabbit formaldehyde protocol, note that you have seen the June 21, 2001 draft of the formaldehyde rabbit study. But you haven’t seen the protocol as executed — IT is the ghost protocol.

    Your mission, should you decide to accept it, is to get a copy of the protocol attached to the July 16, 2001 email.

  7. DXer said

    The FBI provided this document under FOIA with its main production of documents. As best I recall, it is the only peer reviewed article that it produced in the thousands of pages of documents. The article thanks Dr. Ivins for supplying virulent Ames and thanks Dr. Fellows and Dr. Linscott, whose depositions are apparently going to be shredded, for providing technical assistance.

    University of Michigan is subject to the state FOIA law.

    Archived records exist for the 98th general meeting of the American Society for Microbiology, Atlanta, May 1998 (poster A49); 38th Interscience Conference on Antimicrobial Agents and Chemotherapy, San Diego, September 1998 (late-breaker slide session II, LB-9); 99th general meeting of the American Society for Microbiology, Chicago, May 1999 (poster A300).

    Just because DOJ has arranged for the shredding of the discussion of the research doesn’t mean you cannot obtain and review an even more authoritative account.

    The DARPA whistleblower willing to testify is associated with the Unconventional Pathogen Countermeasures Program.

    A Novel SurfactantNanoemulsion with Broad-Spectrum Sporicidal Activity against Bacillus Species
    Tarek Hamouda, 1 Michael M. Hayes, 1,.!! Zhengyi Cao, 1 Richard Tonda, 1 Kent Johnson/ D. Craig
    Wright
    ,3 Joan Brisker,3 and James R. Baker, Jr. 1
    1Centerfor Biologic Nanotechnology and Department oJMedicine,

    and 2Department ofPathology, University ofMichigan

    Medical School, Ann Arbor; 3NOVAVAX,

    Inc., Rockville, Maryland

    Received 10March 1999; revised 30June 1999; electronically published 12 November 1999.

    Two nontoxic, antimicrobial nanoemulsions, BCTP and BCTP 401, have been developed. These emulsions are composed of detergents and oils in 80% water. BCTP diluted up to 1 : 1000 inactivated >90% of Bacillus anthracis spores in 4 h and was also sporicidal against three other Bacillus species. This sporicidal activity is due to disruption of the spore coat after initiation of germination . without complete outgrowth. BCTP 401 diluted 1 : 1000 had greater activity th’an BCTP against Bacillus spores and had an onset of action of <30 min. Mixing BCTP or BCTP 401 with Bacillus cereus prior to subcutaneous injection in mice reduced the resulting skin lesion by 99%. Wound irrigation with BCTP 1 h aft~r spore inoculation yielded a 98% reduction in skin lesion size, and mortality was reduced 3-fold. These nanoemulsion formulas are stable, easily dispersed, nonirritant, and nontoxic compared with other available sporicidal agents.

    Presented in part: 98th general meeting of the American Society for Microbiology, Atlanta, May 1998 (poster A49); 38th Interscience Conference on Antimicrobial Agents and Chemotherapy, San Diego, September 1998 (late-breaker slide session II, LB-9); 99th general meeting of the American Society for Microbiology, Chicago, May 1999 (poster A300). The animal experiments were approved by and performed according to the guidelines of the Unit for Laboratory Animal Medicine, University ofMichigan. ? D.C.W. and J.B. are employees ofNOVAVAX, Inc., and have significantfmancialinterestin the company. NOVAVAX, Inc., is the supplier of the emulsions. J.RB., T.H., MM.H., IlC. W., and J.B. have a patent application entitled: Methods of inactivating bacteria including bacterial spores. Financial support: Defense Advanced Research Project Agency (contract MDA 972-1-007 of the Unconventional Pathogen Countermeasures Program).

  8. The Warren Commission did not hide notebooks like this. The FOIA act is to be interpreted in light of the multivolume disclosure by the Warren Commission in an age of manual type writers and no Internet.

    • DXer said

      No. FOIA needs to be interpreted in light of the language of the statute and controlling precedent. Nothing related to the Warren Commission has any bearing from a legal standpoint — and one never has occasion to even interpret legislative history (as one does where language is ambiguous).

      But given you haven’t submitted a FOIA request for the notebooks, you can’t be heard to complain.

      • DXer said

        But given that as always you raise excellent policy points, this counsels that Congress pass a law that would ensure access to such materials — the Holt bill for example.

        And major media with some chops has to go after the notebooks and then report the DOJ/FBI failure to comply with FOIA.

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