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

* Under The Controlling District Court Decision, DOJ Should Produce To GAO All Of The Material Submitted In Support Of Warrants

Posted by Lew Weinstein on April 24, 2012

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10 Responses to “* Under The Controlling District Court Decision, DOJ Should Produce To GAO All Of The Material Submitted In Support Of Warrants”

  1. DXer said

    Grafft writes in “Analysis of the Search Warrants of the Amerithrax Investigation”:

    “it is unclear throughout the American judicial system as to whether a suspect’s email, stored by an Internet company, deserves an expectation of privacy.”

    Such a sentence in an article might seem odd and silly but one should appreciate the context:

    Andrew Card and the White House oversaw warrantless NSA telephone wiretapping of Ali Al-TImimi and cut the DOJ out of the loop.
    Not a single member of the Amerithrax Task Force was aware even of the existence of the program.

    FBI Director Mueller threatened to quit. That much is known. There is still more to come out about that argument between Director Mueller and Mr. Card according to the sources talking to the NYT correspondent who authored a book on the subject.

    I once implied to a beautiful visiting FBI agent that in light of Section 1983, the DOJ and FBI might best take a prudential view of the progeny under Katz if they wanted to keep their house.

    This past month at the Constitution Center in Philadelphia I had the fun of listening to the arguments in Katz in which the court found that a reasonable expectation of privacy existed at the public phone booth.

  2. DXer said

    In the Fast and Furious matter, in a letter to Rep. Darrell Issa, R-Calf., chairman of the House Oversight and Government Reform Committee, a Justice Department official said executive privilege applies to documents that explain how the department learned of problems with the investigation.

    Thus Department of Justice is making plain that they are withholding the documents from GAO that would explain how the department learned of problems with the Amerithrax investigation.

    Privately, the DOJ snickers at the thought that there is meaningful Congressional oversight.

  3. DXer said

    The Fourth Circuit explained in a suit involving the Department of Justice that “bad faith” need not be shown to constitute “spoliation”. Instead, it merely need be relevant to some issue at trial and his willful conduct [even if taken in good faith] resulted in its loss or destruction.”

    The GAO should direct that all evidence in DOJ’s files relating to Amerithrax be preserved. Electronic evidence is stored simply on a CD and takes no additional space.

    This way, in the event of an attack using anthrax, the public and Congress will be able to go back and trace who did what.

    BUCKLEY v. MUKASEY
    Mary E. BUCKLEY, Plaintiff-Appellant, v. Michael B. MUKASEY, in his official capacity as Attorney General of the United States, Department of Justice, Defendant-Appellee.

    No. 07-1195.

    Argued:  March 18, 2008. — August 20, 2008

    ***

     The Vodusek plaintiff had alleged negligence, products liability, and wrongful death claims following the death of her husband from injuries sustained in a boat explosion and fire.   See 71 F.3d at 151.  “In examining the boat to discover the cause of the explosion and fire, [Vodusek’s expert witness], together with Vodusek’s two sons, employed destructive methods which rendered many portions of the boat useless for examination by the defendants and their experts.”  Id. at 155.   At the defendants’ request, the trial court then instructed the jury that it was permitted to “assume that evidence made unavailable to the defendants by acts of plaintiff’s counsel or agents ․ would have been unfavorable to the plaintiff’s theory in the case.”  Id. (internal quotation marks omitted).   On appeal, Vodusek contended that the court erred in instructing the jury on the spoliation issue, because there was no evidence on the “necessary element” of bad faith.  Id. In our opinion, however, “[w]e reject[ed] the argument that bad faith is an essential element of the spoliation rule.”  Id. at 156.   Rather, we concluded that

    when a proponent’s intentional [but not necessarily bad faith] conduct contributes to the loss or destruction of evidence, the trial court has discretion to pursue a wide range of responses both for the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct.  [The court may, inter alia,] permit the jury to draw unfavorable inferences against the party responsible for the loss or destruction of the original evidence.   An adverse inference about a party’s consciousness of the weakness of his case, however, cannot be drawn merely from his negligent loss or destruction of evidence;  the inference requires a showing that the party knew the evidence was relevant to some issue at trial and that his willful conduct resulted in its loss or destruction.

    Id. (internal citations omitted).   Applying this standard in Vodusek, we determined that, because portions of the boat “were permanently destroyed as part of [the plaintiff’s expert’s] deliberate investigative efforts”-even if Vodusek and her expert “did not act in bad faith”-the trial court had properly submitted the spoliation issue to the jury.  Id. at 156-57.

     In its analysis of Buckley’s request for an adverse inference instruction, the district court appears to have committed an error of law by equating the intentional conduct necessary for such an instruction with bad faith, thereby deeming non-bad faith conduct to be negligent conduct.   The court did not acknowledge that the DEA’s document destruction, though not conducted in bad faith, could yet be “intentional,” “willful,” or “deliberate.”   See Vodusek, 71 F.3d at 156.

    • DXer said

      Here is some District of Columbia precedent relating to the suggestion that GAO should direct no additional evidence in DOJ’s files be deleted, shredded or otherwise destroyed.

      ELECTRONIC SPOLIATION SANCTIONS: DELETE AT YOUR OWN RISK
      http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2010/2010_err_030.authcheckdam.pdf

      “in Jones v. Hawley, 255 F.R.D. 51 (D.C. 2009), the court entertained a request for an adverse inference instruction, due to the failure to preserve and produce a number of documents. The court noted, “[i]t is settled beyond all question that at common law the destruction, alteration, or failure to preserve evidence in pending or reasonably foreseeable litigation warrants the finder of fact inferring that the destroyed evidence would have been favorable to the opposing party” (citing Ashford v. E. Coast Express Eviction, 2008 WL 4517177, at *2 (D.D.C. October 8, 2008) (citing United Med. Supply Co., Inc. v. United States, 77 Fed. Cl. 257, 263 (2007)). The Jones v. Hawley decision also cited Shephard v. Am. Broad. Cos., 62 F.3d 1469, 1481 (D.C. Cir. 1995) for the proposition that each party has an obligation to preserve and also not to alter documents “it knew or reasonably should have known were relevant . . . if it knew the destruction or alteration of those documents would prejudice its opponent.” The Jones v. Hawley court also repeated the rule that “a court may employ an adverse inference rule to a party’s failure to preserve evidence, even if deliberate or reckless conduct is not present” (citing Moore v. Snow, 480 F. Supp. 2d 257, 275 (D.D.C. 2007)). The Jones v. Hawley court described the procedure to be followed in spoliation situations by ruling that before an adverse inference should be allowed, “the court should consider the degree of negligence or bad faith involved, the importance of the evidence involved, the importance of the evidence lost to the issues at hand, and the availability of other proof enabling the party deprived of the evidence to make the same point.” Id., citing Miller v. Holzmann, 2007 WL 172327, at *3 (D.D.C. January 17, 2007).

      Another court further delineated the practical aspects of a spoliation analysis in D’Onofrio v. SFX Sports Group, Inc., 254 F.R.D. 129 (D.C. 2008). In that instance, the court faced a scenario in which the party seeking to conduct discovery alleged, via an expert witness from Kroll, that email and other electronically stored information had not been produced. The court found that the party suspected of spoliation was obliged to permit the opposing expert to conduct a diligent search of all potential repositories of electronically stored information that are likely to yield information that is responsive to the discovering party’s demands. Id. at *132. Courts in the District of Columbia also abide by the proportionality doctrine. “The choice of sanctions should be guided by the ‘concept of proportionality’ between offense and sanction.” United States v. Philip Morris USA Inc., 324 F. Supp. 2d 21, 25 (D.D.C. 2004) (citing Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1074 (D.C. Cir. 1986)) and Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996)). The Philip Morris opinion recognized that the courts have the authority to impose sanctions including an adverse inference instruction. 327 F. Supp. 2d at 25.

      Finally, the common law of the District of Columbia provides for the tort of spoliation. For a plaintiff to succeed on a spoliation tort claim, the plaintiff must demonstrate that The underlying claim was significantly impaired due to the spoliation of evidence; A proximate relationship exists between the projected failure of success in the underlying action and the unavailability of the destroyed evidence; and the underlying lawsuit would enjoy a significant possibility of success if the spoliated evidence were still in existence. Krieger v. United States Department of Justice, 529 F. Supp. 2d 29, 60 (D.D.C. 2008) (citing Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 848-54 (D.C. 1998)).”

  4. DXer said

    http://www.neontommy.com/news/2012/04/coping-anthrax-attack-what-would-city-do

    Using Seattle as a focal point, University of Southern California researchers at the Center for Risk and Economic Analysis of Terrorism Events (CREATE) assessed the some of the consequences of a large-scale anthrax attack. Various visual scenarios examined psychological and economic impacts of hundreds of Seattle residents who participated in the study. The project, funded by the Department of Homeland Security, focused on perceptions of risk, awareness of individuals’ health, and livelihood objectives following the uncertainty of a terror attack in a situation where an anthrax attack claims the lives of 50,000 in a metropolitan city. It examines what government can do to make a difference in terms of whether people move back or pursue their lives in a different location following such an attack.

    “The way we did this is by using the Department of Homeland Security’s national planning scenarios of an anthrax attack,” said Heather Rosoff, a post doctoral research associate at CREATE. “What we did is we took the language of the scenario and developed it further into short videos segments starting with the initial attack and extending out over a two year period.”

    The video segments emulate real news to survey research participants’ responses to how they would react.

    “This is a hypothetical situation, but surprises do happen and we need to be prepared for them,” said Adam Rose, who assessed some major economic impacts of the disaster.

    Researchers found that an anthrax attack on a major city would have obvious immediate consequences and perhaps not-so-obvious longer-term ramifications. A sophisticated anthrax attack would cause death and injury, contamination of buildings, and a declining economy. Property values in the affected area would plummet—and so would those for surrounding areas.

    “An anthrax attack like this could have a devastating impact on the real estate market,” said Rose. “It would really cause a major decline in property values.” The harm to real estate is not exclusive to the contaminated areas, but would likely affect the neighboring zone and even the suburbs farther out.

    Just as in the aftermath of the Katrina disaster, following an anthrax attack on a metropolitan city, a significant number of residents impacted by sharply declining residential real estate prices and business investments would leave. Underwater mortgage levels would increase by $15 billion, and the number of foreclosures could reach 70,000, according to Rose.

    Comment:

    Wouldn’t it be simpler to engage in the ounce of prevention and disclose the affidavits in support of warrants — and the forensic reports on the full range of issues — so that we can kick the tires of an Ivins Theory by being in a position to assess Dr. Majidi’s claim that the FBI could exclude the 200+ others? ( Which included hardened killers like Jdey and El-Shukrijuman whose whereabouts were unknown to the FBI?)

  5. DXer said

    The link to the full-text of this important decision is

    http://scholar.google.com/scholar_case?case=7722470286504776157&q=Amerithrax&hl=en&as_sdt=2,33

    • DXer said

      In fn. 2, the Court explained:

      “The government concedes that there is a common law right of access to search warrant materials. (Gov’t Opp’n 9.) Whether there is also a First Amendment qualified right is an important question because different legal standards apply. The common law right of access test is a multi-factor balancing test, see infra. If the First Amendment qualified right of access applies, however, the government has the burden of demonstrating that a compelling interest is advanced by denying access to the documents and that the denial of access is narrowly tailored to serve that interest. Washington Post v. Robinson, 935 F.2d 282, 288 n.7 (D.C. Cir. 1991).”

      In fn. 8, the Court explains:

      “The Court has been advised by the clerk’s office in the United States District Court for the District of Columbia that the routine practice is to make warrant materials publicly available after a search has been executed and a return is available.”

      The Judge’s Conclusion states in part:

      “CONCLUSION

      For the reasons set forth in this opinion, the Court finds that the public has a qualified First Amendment right to access warrant materials after an investigation has concluded. Although the government has a compelling interest in keeping the identity of informants secret, it has failed to show that it is necessary to seal all of the warrant materials to accomplish that objective. As a result, the Times’ motion will be GRANTED. The United States will be required to release the warrant materials, redacting limited portions that would tend to reveal the identity of a confidential informer. The United States shall promptly provide the Court with the proposed redactions of their records.”

    • DXer said

      The New York Times itself in an editorial explained why the material filed in court in support of the warrants should be produced:

      Who Mailed the Anthrax Letters?Source:New York Times; 10/18/2011, p26, 0p

      Abstract: There was a strong sense of relief when the federal government concluded that a lone psychologically troubled government scientist mailed anthrax-laced letters in 2001, killing five people and terrorizing the nation. Now its evidence is looking increasingly shaky. Dr. Bruce Ivins, an Army biodefense expert at Fort Detrick in Maryland, committed suicide in 2008 before the case against him could be tested in court. Independent inquiries this year have raised questions both about the genetic analyses that traced the anthrax to Dr. Ivins’s laboratory and a web of circumstantial evidence. There needs to be a new independent evaluation of the findings. [ABSTRACT FROM AUTHOR]

      • DXer said

        The information filed in federal court should have been sought and released 4 years ago.

        Title:Case not closed: the FBI says it has evidence showing that Bruce Ivins was behind the 2001 anthrax attacks–but with his death, this will not be tested in court. A full enquiry into the case is needed if justice is to be done
        Source:Nature. 454.7207 (Aug. 21, 2008): p917.

        Was Bruce Ivins a scientist-gone-wrong who single-handedly orchestrated the 2001 anthrax attacks in the United States? Or was the 62-year-old anthrax-vaccine researcher at Fort Detrick, Maryland, an emotionally unstable innocent whose profile made him a convenient fall guy for the FBI?

        The jury is still out on those questions–or rather, it would be if one had ever had a chance to hear the evidence. Ivins’s apparent suicide last month means there will not be a trial, which makes it all the more important that the government release the evidence it planned to use to accuse him. In full. Now.

        On 6 August, the FBI’s parent agency, the US Department of Justice, released what it described as hundreds of pages of evidence against Ivins, and declared it would close the case because it was satisfied it had its man. But Ivins’s attorney, Paul Kemp, has described these documents as “heaps of innuendo and a staggering lack of real evidence”. He has a point.

        For example, many of the documents are just search warrants–a reminder that, despite extensive searches of Ivins’s house and cars, the FBI failed to come up with any physical evidence directly implicating him in the attacks. Similarly, the bureau has no evidence to place Ivins at the postboxes in Princeton, New Jersey, from which the anthrax-laden letters were sent.

        The core of the case against Ivins, as released so far, is contained in just a couple of dozen pages of affidavits–only four paragraphs of which discuss what the FBI says is the smoking gun: the genetic analysis of the anthrax powder from the letters. The FBI says it found four distinctive genetic mutations in the anthrax used in the attacks. It tested for these mutations in isolates of the Ames anthrax strain from 16 domestic, government and university laboratories, alongside ones from labs in Canada, Sweden and the United Kingdom.

        In all, more than 1,000 samples were collected, only 8 of which had the 4 mutations, according to the affidavit. Each of these isolates, it says, was directly related to a strain batch named RMR-1029, which was created in 1997 and held in a flask at the US Army research facility in Fort Detrick. The affidavits describe Ivins as the “sole custodian” of that batch. Many other researchers had access to it, but the FBI claims to have eliminated them as suspects.

        The genetic analysis itself seems quite solid. The FBI has collaborated with some of the best outside scientists on anthrax, and on 18 August convened many of them to answer journalists’ questions about the science. The researchers on the panel explained that none of the analysis techniques used in this case is new; just the application to anthrax forensics. Several peer-reviewed papers on the forensic work have already been published, and another dozen or so are anticipated (see page 928).

        Although this openness about the techniques is commendable, neither the conclusions drawn from the scientific analysis, nor such crucial legal elements as the veracity of the provenance and handling of samples, have been tested in court. So far only one side of the story has been heard: that of the prosecution.

        Certainly Ivins’s behaviour in the crucial autumn months of 2001 raises questions about his emotional stability, but mental illness does not necessarily a murderer make.

        The FBI should explain why it thinks the scientific evidence implicates Ivins himself, and not just the flask. As Kemp aptly puts it: “In this country, we prosecute people, not beakers.” The absence of such a full disclosure can only feed suspicions that the FBI has again targeted an innocent man in this case–as it did with former Fort Detrick researcher Steven Hatfill.

        This case is too important to be brushed under the carpet. The anthrax attacks killed five people, infected several others, paralysed the United States with fear and shaped the nation’s bioterrorism policy. Science and law share a conviction that conclusions require evidence, and that the evidence be debated openly. The FBI says it regrets that Ivins’s untimely death has denied it the chance to have its day in court. So presumably the bureau would welcome a full congressional or independent enquiry into this case, as has been called for by Senator Chuck Grassley (Republican, Iowa) and several other lawmakers. It is essential that such an enquiry takes place.

        Source Citation
        “Case not closed: the FBI says it has evidence showing that Bruce Ivins was behind the 2001 anthrax attacks–but with his death, this will not be tested in court. A full enquiry into the case is needed if justice is to be done.” Nature 454.7207 (2008): 917. General Science Collection. Web. 24 Apr. 2012.
        Document URL
        http://go.galegroup.com.ezproxy1.onlib.org:8080/ps/i.do?id=GALE%7CA188943230&v=2.1&u=nysl_ce_ocpl&it=r&p=PPGS&sw=w

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