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

* Jdey FOIA Lawsuit: FBI Has Identified Voluminous Additional Material For Processing

Posted by DXer on November 5, 2013

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11 Responses to “* Jdey FOIA Lawsuit: FBI Has Identified Voluminous Additional Material For Processing”

  1. DXer said


    In Dillon v. FBI, the plaintiff shall file his opposition to the defendant’s motion for summary judgment on or before September 8, 2014; and the defendant shall file its reply on or before September 19, 2014.

    In a second 96-page declaration by Dave Hardy in support of the motion for summary judgment, Dave Hardy explains supervises approximately 260 employees who staff 10 FBIHQ units and 2 field operational service centers.

    In para. 8, Mr. Hardy explains the initial denial on the grounds that release would require Jdey’s signature on a release.

    In para. 13, Mr. Hardy explains that the FBI later denied the request on the grounds that Jdey is the subject of a pending law enforcement file.

    In para. 16, Mr. Hardy explains that there was no proof that Jdey was dead.*

    By far, most of the declaration related to the reasons for denying Plaintiff’s FOIA for documents relating to Moussaoui.

    Mr. Hardy, I think, has one of the most interesting jobs in government — but he certainly has responsibility that extends a wide range of underlying subject matter content.

    Anthrax, Ayman Zawahiri and Al Qaeda: The Infiltration of US Biodefense

    * Here is some background for Ken’s suggestion that Jdey was dead

    Montreal man downed U.S. Plane, CSIS told
    ‘Farouk the Tunisian’ involved, al-Qaeda say, but officials insist crash was accidental

    Stewart Bell
    National Post

    Friday, August 27, 2004

    1 | 2 | NEXT >>

    A captured al-Qaeda operative has told Canadian intelligence investigators that a Montreal man who trained in Afghanistan alongside the 9/11 hijackers was responsible for the crash of an American Airlines flight in New York three years ago.

    Canadian Security Intelligence Service agents were told during five days of interviews with the source that Abderraouf Jdey, a Canadian citizen also known as Farouk the Tunisian, had downed the plane with explosives on Nov. 12, 2001.

    The source claimed Jdey had used his Canadian passport to board Flight 587 and “conducted a suicide mission” with a small bomb similar to the one used by convicted shoe bomber Richard Reid, a “Top Secret” Canadian government report says.

    But officials said it was unlikely Jdey was actually involved in the crash, which killed 265 people and is considered accidental. The fact that al-Qaeda attributed the crash to Jdey, however, suggests they were expecting him to attack a plane.

    “We have seen no evidence of anything other than an accident here,” said Ted Lopatkiewicz, spokesman for the U.S. National Transportation Safety Board. “There has been no evidence found, from what I can tell — at least that’s been relayed to us — that there was any criminality involved here. It appears, at least the evidence we have, is that a vertical fin came off, not that there was any kind of event in the cabin.”

    Jdey, 39, came to Canada from Tunisia in 1991 and became a citizen in 1995. Shortly after getting his Canadian passport, he left for Afghanistan and trained with some of the Sept. 11 hijackers, according to the 9/11 commission in the United States.

    He recorded a “martyrdom” video, but was dropped from the 9/11 mission after returning to Canada in the summer of 2001. The planner of the World Trade Center attack, Khalid Sheikh Mohammed, claims Jdey was recruited for a “second wave” of suicide attacks.

    The FBI issued an alert seeking Jdey’s whereabouts in 2002. John Ashcroft, the U.S. Attorney-General, told a news conference in May that Jdey was one of seven al-Qaeda associates “sought in connection with the possible terrorist threats in the United States.”

    The information on Jdey’s alleged role in the plane crash is contained in a memo on captured Canadian al-Qaeda operative Mohammed Mansour Jabarah. The Canadian government memo was written in May, 2002, and was based on information provided by a “source of unknown reliability.”

    Jabarah is a 22-year-old from St. Catharines who allegedly joined al-Qaeda and convinced Osama bin Laden to give him a terror assignment. He was tasked with overseeing a suicide-bombing operation in Southeast Asia, but was caught and has since pleaded guilty in the United States.

    The report, which was sent to the Philippine National Police intelligence directorate, recounts what Jabarah said he was told about the U.S. plane crash by Abu Abdelrahman, a Saudi al-Qaeda member who was working for Khalid Sheikh Mohammed.

    “In discussions, Abu Abdelrahman mentioned AL QAIDA was responsible for the assassination of Massoud, the Northern Alliance leader,” the report says. “According to the source, Abu Abdelrahman added that the 12 November 2001 plane crash (btb American Airlines flight 587) in Queens, New York was not an accident as reported in the press but was actually an AL QAIDA operation.

    • DXer said

      Jdey was intended to be part of the “911 planes operation” and was close to anthrax plotters KSM and Hambali. He went missing at the time of the anthrax mailings.

      When Ken first suggested Jdey as a candidate for mailing about a decade ago, I immediately viewed it as excellent theory. But even though it was very appealing to me, he had first dibs because it simply hadn’t occurred to me even though I had the same information available to me.

      I had put my money down instead on momma’s boy Adnan given he called from KSM’s house upon 9/11 and told his mom he was coming to the US. There was something about a dimunitive asthmatic momma’s boy as the little engine that could that appealed to me.

      Yazid Sufaat and his assistants had been working at the Kandahar lab since May 2001 and Sufaat too stayed at KSM’s house. In correspondence with me, Yazid does not deny responsibility for the anthrax mailings.

      And the anthrax, if made at the Kandahar lab, had to get here somehow.

      I have no idea whether Ken’s candidate for mailing, Jdey, is dead or alive. I note merely that there is $5 million reward for him and his travelling companion Boussara had really funny ears that likely may have been useful in locating the pair if together.

      The original Stewart Bell story — supporting the suggestion he is dead — is no longer available at the newspaper.

      It can be retrieved through the Wayback Machine.

      Bell, Stewart. National Post, Montreal man downed US plane, CSIS told, August 27, 2004

      Page 2 does not show until you go to print. The article continues:

      “Abu Abdelrahman informed Jabarah that Farouk the Tunisian conducted a suicide mission on the aeroplane using a shoe bomb of the type used by Richard Reid …. ‘Farouk the Tunisian’ was identified from newspaper photographs as being identical to Abderraouf Jdey, a Canadian citizen who had resided in Montreal.”

      Jabarah was initially suspect of the claim about Jdey, but he later believed it after he saw the same information on a “mujahedin Web site,” the report says.”

  2. DXer said

    David C. Thomas of Chicago has written an important and lucid piece of advocacy on the subject of “special administrative measures” (SAMs) and representation of his client, Mohammed Warsame. After being in Afghanistan, Warsame briefly worshipped at the same mosque as Yazid Sufaat’s friend, Zacarias Moussaoui.

    How Mohammed Warsame Became an Accidental ‘Terrorist’
    In the wake of 9/11, prosecutors have embraced “special administrative measures” to keep terrorism suspects guilty until proven otherwise.

    David Thomas

    David Thomas explains:

    “Special administrative measures are applied administratively before a trial by the attorney general through a “finding” that there is a “substantial risk” the defendant’s “communications or contacts with persons could result in death or substantial bodily harm to persons.” The attorney general does not have to provide reasons for the finding publicly, and there is noprovision for input by the defendant or anyone outside law enforcement.”

    There has long been great secrecy surrounding the case.

    Legal experts question secrecy around Warsame case
    by Elizabeth Stawicki, Minnesota Public Radio
    February 9, 2004

    A federal magistrate has ordered a man accused of providing support to the al-Qaida terrorist network to remain in jail because he’s a flight risk. Mohamed Warsame appeared in federal court in Minneapolis Monday. Several constitutional scholars say the Warsame case is an example of post-9/11 court secrecy that’s unprecedented in U.S. history.

    I previously described some background relating to the USG’s possible reason for concern.

    Mohammed Warsame knew Zacarias Moussaoui and had broken bread with Osama Bin Laden.

    Documents in court say Warsame attended lectures and ate with Osama Bin Laden during the same time al-Qaeda attacked the U.S.S. Cole while anchored at a harbor in Yemen. Warsame allegedly told an FBI agent he maintained covert communications with persons he met at the training camps and wired them funds to a Pakistani bank account. USG concerns about Warsame were amplified by their concerns about Moussaoui and his friendship and close connection with Al Qaeda anthrax lab director with Yazid Sufaat.

    UMinn biosecurity expert and a NYT co-author wrote in December 2000:

    “Dozens of Websites offer information on new and used crop-dusting planes and equipment that can be fitted to almost any plane or even trucks. Most of the equipment can be found on those sites produce a highly controlled mist spray, with nozzles that can set the droplet size precisely….

    “A quick call to the toll-free number for a state university’s agricultural service (listed, naturally on its Website) revealed that powder dispersal systems, while less popular than wet systems, are still available. One Website even provides a handy guide to the area one would expect to cover using various particle sizes, wet and dry — from thousand micron particles to half-micron particles capable of drifting almost four hundred miles.”

    It was no small irony that by the time the paperback version came out in September 2001 just a few miles away Zacarias Moussaoui had in fact downloaded such materials onto his laptop.

    Attorney General Ashcroft, on October 1, 2001 explained:

    “I think shortly after the September 11 events, we developed information about crop dusters and noted that there had been an interest expressed in the dispersal of chemical agents by some of the individuals who had relationships with the hijackers and were the hijackers, and we asked those who were associated with the agriculture, chemical industry, and crop dusting to begin to be more careful, to lock their airplanes, to be aware of anyone seeking to adjust the kind of way in which the nozzles would be, which would maybe require a different approach.”

    President Bush, at a press conference on October 11, 2001 said:

    “We received knowledge that perhaps an al-Qaeda operative was prepared to use a crop-duster to spray a biological weapon or a chemical weapon on American people, and so we responded. We contacted every crop dust location, airports from which crop-dusters leave. We notified crop-duster manufacturers to a potential threat. We knew full well that in order for a crop-duster to become a weapon of mass destruction would require a retrofitting, and so we talked to machine shops around where crop-dusters are located.”

    Mohammed Atta and Zacarias Moussaoui reportedly made inquiries about cropdusters and a cropdusting manual was found among Moussaoui’s belongings. By an email dated July 31, 2001, after receiving $14,000 from Ramzi Binalshibh, Moussaoui inquired about a 6 month cropdusting course. Ahmad Ressam, an Al Qaeda terrorist caught in the United States, revealed that Bin Laden was personally interested in using low flying aircraft to disperse biological agents. In early June 3, 2003, a CIA report concluded that the reason for Atta’s and Zacarias Moussaoui’s inquiries into cropdusters was in fact for the contemplated use in dispersing biological agents such as anthrax. Moussaoui, however, has confessed only to a plot to fly a 747 into the White House if the United States government refused to free the blind sheikh. On August 13 and 15, 2001, Moussaoui was getting practice on a 747 simulator in Minneapolis and thus the evidence has always remained ambiguous.

    In an interview with ABC News, Johnelle Bryant, a USDA employee, provided this very dramatic account of a meeting with Atta in connection with a loan he wanted for $650,000 to start a cropdusting business. Anthrax likely can be delivered using the nozzle setup that some USDA official says Atta imagined (as explained by Secretary Cohen some years ago). Secretary Cohen’s remarks were found in the Kabul home with papers relating to the aerial delivery of anthrax.

    Some investigators on the team prosecuting Zacarias Moussaoui thought he wasn’t expected to take part in the 9/11 plan as such or fly into the White House as prosecutors would allege in January 2003, but was expected instead to use a cropduster. In an e-mail dated July 31, 2001, he inquired of a Minnesota school concerning a 6 month or year long cropdusting course. Although French intelligence suggests instead that there was a separate hijacking plot (of an international airline) to occur later, in light of the e-mail, use of a cropdusting plane may have been an alternative plan at least as of the end of July 2001. Khalid Mohammed reportedly has told his interrogators that Moussaoui was to be part of a second wave of attacks. He said that Moussaoui’s interest in cropdusters may have related to Yazid Sufaat’s work on anthrax. Hussein Attas drove Moussaoui there and was detained after 9/11. Another Oklahoma State University student, Ali Mukhram. worshipped at the mosque with Attas and Zacarias.

    In a coded communication in the summer of 2001, KSM told Ramzi Binalhibh to send the “skirts” to “Sally”, apparently referring to sending funds to Zacarias Moussaoui. Moussaoui may have been considered as a substitute if one of the pilots, who had developed a strained relationship with Atta, dropped out. They were referred to as the “unhappy couple” and it was said that a divorce would be expensive. Was Moussaoui really slated for a “second wave” of similar attacks on California targets that merely involved the same modus operandi? In an email dated July 31, 2001, he was inquiring about a cropdusting course. Was this just a means of avoiding the need for “muscle hijackers?” (After the first “wave”, it likely would be more difficult for such muscle to get into the country.)

    Relatedly, it’s unknown what role Atta’s roommate, pilot Ramzi Binalshibh, would have played if he had succeeded on one of his four attempts to get into the country. Ramzi Binalshibh was Atta’s former roommate in Germany and was captured in Karachi, Pakistan on September 11, 2002. The government deleted the two allegations regarding cropduster inquiries from the indictment of Moussaoui. Although the move was never explained, it was likely because in his defense he was relying on a July 31, 2001 e-mail seeking to sign up for a cropdusting course that would take 6 months to a year. Moussaoui was attempting to use the e-mail to argue that it demonstrated that he was not part of the 9/11 conspiracy. Alternatively, of course, allegations often are deleted where there is insufficient proof.

    On September 19, 2001, an FBI agent asked a federal judge in Colorado for permission to search an e-mail account named “” that Sufaat had given Moussaoui to use.

    Perhaps the cropdusters related to a chemical or nerve agent. Based on the interrogation of Ramzi Binalshibh, it now appears that the 9/11 planners lost confidence in Moussaoui’s discretion, and intended to use him only as a fallback. Whatever the reason for any inquiries, perhaps they ran out of pilots (due to Zacarias Moussaoui’s arrest and Ramzi Binalshibh’s inability to get into the country). The prosecution team in the Moussaoui case at one point, in January 2003, argued there was to be a fifth plane targeting the White House. Bin Laden wanted the White House to be targeted. Atta thought it would be too difficult. Or perhaps use of cropdusters was still in the drawing board stage (such as the brainstormed use of a balloon). The FBI is currently looking for a diminutive Saudi Arabian, Adnan Shukrijumah, who, at least according to some reports, was trained as a pilot and was last known to have been in Miami in late 2001. El-Shukrijumah was living with KSM on or about September 13, 2001 when he called his mother and told her he was coming to the US. She protested that he would be arrested but he insisted. The Saudi Arabian from Florida is said to be at the level of Atta. Jdey, also hotly sought by the FBI, was one of two other pilots who for unknown reasons were not still candidates for the first wave.

    Meanwhile, back in the United States, Chicago attorney David C. Thomas was representing Mohammed Warsame — while subject to restrictions on what he could tell the public. His client was held in isolation under strict conditions. A Somali college student who knew Moussaoui, Mohammed Warsame from Canada, was detained kept in isolation for years. Before being detained, he lived in Minneapolis. Initially, he was arrested as a material witness. Like Moussaoui, Warsame attended Khalden Camp at the Darunta complex the same time as Ahmed Ressam. He reportedly roomed with Moussaoui at one point. U.S. Attorney Tom Heffelfinger in Minneapolis declined to comment on the case and said he would seek to prosecute any federal law enforcement officials who provided information to the media. Warsame’s wife said that FBI agents had entered their apartment, given him $100 and had money for her too. The agents wanted her husband’s cooperation, told him to tell his wife not to worry and said they would bring him back in two days. Warsame was indicted in the end. A superseding indictment in June 2005 alleges that Mohammed Warsame provided false statements to the FBI when he claimed that since 1995 he had traveled only to Saudi Arabia and Somalia. The indictment alleges that from 2000 through 2001, Warsame traveled to Pakistan and Afghanistan to attend military training camps and participate in combat. Relatedly, the indictment alleges he also made false statements about his frequent contact with associates he met while attending Afghanistan military training camps. Those associates, according to the indictment, have since relocated to Canada, Pakistan and elsewhere throughout the world.

    As part of “Operation Tripwire,” the FBI has asked crop-dusting companies to make sure they alert the bureau if they detect suspicious activity. The FBI has reached out to various industries and institutions, such as prisons and crop-dusting companies, to alert the FBI of suspicious activity. “We are not looking at just the obviously dangerous activity but looking at terrorist fund raising, terrorist recruiting efforts, training efforts, maybe logistical support efforts, and .. signatures,” FBI official Larry Mefford said. Might Al Qaeda plan on coming in under the FBI’s radar — under the tripwire — by using ultralights? KSM had Ohio truckdriver Faris researching ultralights at an internet cafe. There was a suggestion that leaders would use them for escape.

    Variations of the threat that should be encompassed within the FBI’s “Operation Tripwire” include ultra lights, Unmanned Aerial Vehicles (”UAV”) of all types including small planes and helicopters, balloons, and gliders.

    What the FBI was being told by other detainees and learning from arrests in the US did nothing to assuage the concern that an attack was being planned to disperse anthrax aerially.

    The interest in ultralights is not new and dates back to the hang glider purchased in 1995 or so when one was purchased and shipped to Afghanistan by a US doctor named Zaki. The doctor was a friend of Bin Laden’s chief of security in Sudan, former US Army sergeant Ali Mohammed. Dr. Ali Zaki (along with his brother, a NYC/NJ pharmacist) travelled with Ayman but claimed not to know the real identity of his fellow alum from Cairo Medical school. Zawahiri would speak at the room established at the Cairo University Medical School for the Egyptian Islamic Group, which had not yet been banned. The group during this time was extremely influential with the student body. Dr. Zaki is a gynecologist and prominent civic leader in San Jose, CA. He disputes the date of Zawahiri’s visit, claiming it was years earlier, when the jihadists were our friends. A used car salesman from Silicon Valley was going to train on the hang glider and train others. The plan was to break imprisoned islamist leaders out of an Egyptian prison, according to the US doctor. Other official intelligence reporting, in contrast, suggests the plan was to assassinate Mubarak at one of his palaces.

    What word, beginning with a vowel apparently, might be redacted in this alleged message to an Albany, NY imam shortly before 9/11: “how close the individual could get to an (redacted) aircraft.” When the leader of an Albany mosque who had arrived in the states in 1999, was convicted in 2006 of supporting terrorism, the jury never heard about his 14 phone calls to a Syrian number the FBI linked to Osama bin Laden. An FBI informant claimed that only weeks after the 9/11 attacks, a messenger from al-Qaeda approached him delivering a message: Bin Laden was looking for information about flight schools and “how close the individual could get to an (redacted) aircraft.” The messenger gave the informant two fax numbers in Damascus, Syria, one of which Aref contacted 14 times between November 1999 and October 2001. Prosecutors argued that a senior IMK leader, Mullah Krekar, formed Ansar-al-Islam in 2001. Subsequently, when Aref was convicted, the 30 guilty counts included lying to FBI agents about knowing Krekar. In targeting Aref, the government also had evidence showing that his name, address and telephone number were found in a notebook when U.S. forces raided a suspected Ansar-al-Islam facilities in Iraq in the spring and early summer. An Iraqi Kurd, Aref’s grandfather had been a well-known imam.

    In 2002, a man named Singh tried to purchase over the internet a wireless video module and a control module for use in an unmanned aerial vehicle (”UAV”). He chose an airborne video system with a camera and transmitter able to transmit video images from a UAV back to a receiver from as far as 15 miles away. The video camera could be used in military reconnaissance and in helping aim artillery and other weaponry across enemy lines. Singh placed his order from England, but the company was unable to confirm Singh’s overseas credit card. Two young men from Northern Virginia, among the group later known as the “Virginia Paintball Defendants,” assisted him in completing the purchases. In the summer of 2002, Singh visited Virginia, staying first with one of them and then with another.

    In December 2003, it was announced that a suburban Chicago woman had been pled guilty to lying about her involvement with an attempt to export remote-controlled aircraft to Pakistan. The shipment of radios, modems and auto pilot systems to a company in Pakistan apparently was confiscated. The relative whom she was doing a favor fled the country. It is not clear when the shipment occurred. Such a plane reportedly cost $12,000 and could carry a 220 lb. payload.

    In late May 2004, Great Britain’s Tony Blair got hit by purple powder thrown from the balcony from area where guests sit. The bioshield covered only where members of the public sit. Blair now may be skittish about pigeons flying overhead, particularly given MI5 once considered the feasibility of dropping small anthrax bombs using pigeons during WW II. It was not until August 2004 that we learned about casing of helicopters in the Spring of 2001 by Adnan El-Shukrijumah, Jafar the Pilot — who had been sent by anthrax plotters KSM and Hambali.

    Condoleezza Rice says no one ever imagined (at least she didn’t imagine) that Al Qaeda would fly planes — first into the World Trade Center and then into Pentagon. Let’s hope it was within her imagination that Al Qaeda may be planning to disperse weaponized anthrax aerially — for example, by a remote controlled airplane, a cropduster, or even a hang glider. Or, yes, maybe even by carrier pigeons. Condoleezza should go around with the television theme song “Stop that Pigeon Now!” in her head.

    As for David C. Thomas’ lucidly written argument in The Nation against restrictions on communication relating to defendant Mohammed Warsame, it is ironic that precisely because he cannot communicate some things that we do not learn about possible national security threats that may (or may not) warrant such restrictions.

    • DXer said

      The reason for the great secrecy, in part, was because USG wanted to keep his arrest a secret and turn him into a Double Agent.

      We criticize the USG for not developing spies that have penetrated Al Qaeda but then hamstring or second-guess their efforts when they try to do so.

      Did authorities keep Jdey’s arrest secret because they wanted to turn him into a Double Agent? (The top CIA analyst said in a report on WMD issued from a Harvard institute that he had been detained at the same time as Moussaoui and then released).

      There is a $5 million BOLO.

      Did authorities attempt to turn Aafia into a double agent and send her into Afghanistan from Pakistan?
      Plan to Infiltrate Al Qaeda Compromised
      Feb. 13 By Pierre Thomas

      When a Somali-born computer student was arrested in Minneapolis last December on suspicion of helping al Qaeda, federal counterterrorism officials thought they might finally have found what they desperately need — a way of getting inside Osama bin Laden’s shadowy network.
      The counterterrorism officials developed a plan to turn the man, Mohammed Warsame, into a double agent working for the United States, ABCNEWS has learned.

      “We need people inside al Qaeda, talking to us. We need spies,” said Richard Clarke, former counterterrorism official with the Bush administration. “There’s only so much you can get from technology, from electronics, from pictures.”
      Warsame’s arrest was supposed to be secret. But within days stories appeared in the Minneapolis Star Tribune about the case — dashing the government’s hopes of gaining greater insight into al Qaeda activities against the United States.

      Federal officials were furious about the apparent leak, and the Justice Department has launched an investigation to determine how the information about Warsame’s arrest leaked to the media. Senior officials told ABCNEWS they are very concerned about the implications of the leak.

      Government agents believe that Warsame, a 30-year-old Canadian citizen, was a potentially dangerous al Qaeda agent, sent to live quietly in downtown Minneapolis.

      Law enforcement officials suspect Warsame has ties to accused Sept. 11 conspirator Zacarias Moussaoui and Fazul Mohammed, suspected of being a key planner of the 1998 attacks on U.S. embassies in Africa. Authorities believe Fazul Mohammed is still on the run.
      In early December of last year, FBI agents confronted Warsame and arrested him as a material witness against al Qaeda.

      According to recently unsealed FBI affidavits, Warsame acknowledged that in 2000 and 2001 he trained with al Qaeda in Afghanistan, twice facing combat in front line units. FBI agents claim Warsame told them one of the camps was “personally led” by Osama bin Laden.

      The FBI said Warsame told agents he once sat next to bin Laden at a meal, and found the al Qaeda leader to be “inspirational.” The affidavit said that “he [Warsame] was instructed by al Qaeda to return to North America and that al Qaeda paid the costs of his return.” The group provided Warsame with $1,700 in travel money.

      Though they knew it was a longshot, some investigators hoped Warsame might cooperate after his arrest and become a double agent, perhaps out of concern for his wife and 6-year-old daughter.

      During an appearance in federal court in Minneapolis on Monday, Warsame pleaded not guilty to a single charge of providing support to a terrorist organization.

    • DXer said

      Which of the prisoners in Terre Haute, IN are actually working as a double agent in the hope of getting their sentence reduced?

      What about Guantanamo?

  3. DXer said

    I think Barry Kissin would make the ideal candidate for local counsel in the next FOIA litigation relating to USAMRIID and FOIA.

    The 2012 book, Slingshot to the Juggernaut, by Sander Hicks at pages 186-200 discussed attorney Barry Kissin’s interest in the Fall 2001 anthrax mailings.

    I had not known Barry was an excellent saxophone player. (I think that is the coolest instrument to play, bar none). But I had known him as legal counsel whose involvement led to the production of withheld documents relating to the levels of silicon. He became involved, as I best recall, at the joint request of me and a participant on this blog (“Anonymous”). Anonymous’ FOIA request had been denied. (USAMRIID is quick to withhold anything it doesn’t want to produce — without regard to the legal precedent interpreting the exemptions.)

    Once sitting next to him at the conference on Amerithrax sponsored by UCLA, I think it might have been some additional issue involving factual development that I had complimented him on.

    If these USAMRIID scientists want to whisper at the water cooler and over the transom about “Project Jefferson” — and USAMRIID wants to withhold and shred documents — then Barry is just the guy to make them straighten up and fly right.

    The fact that he and I may not agree on Amerithrax is of no moment.

    In a playground fight, would Fonzie’s political views matter? Would you hesitate to call Shrek just because he was a progressive attorney?

    Slingshot to the Juggernaut.

  4. DXer said

    If USAMRIID does not provide the copy of animal protocol B01-11, relating to how Dr. Bruce Ivins was spending his time in late September 2001 and October 2001 — even though it claims, rightly or wrongly, only to have an unexecuted copy — USARMRIID will be obligated to pay attorneys fees.


    No. 12-5032


    719 F.3d 689; 2013 U.S. App. LEXIS 12243; 41 Media L. Rep. 2328

    CORE TERMS: requester’s, attorney’s fees, public benefit, assassination, fee awards, committee report, reasonableness, prevailing, public-benefit, disclosure, Freedom of Information Act, fees provision, prevailing party, award of fees, news organization’s, meritorious claim, acted unreasonably, legislative history, en banc, entitlement, incentivize, meritorious, predictable, satellite, atextual, wasteful, qualify, vacate

    COUNSEL: James H. Lesar argued the cause and filed the briefs for appellant.

    Benton Peterson, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

    JUDGES: Before: KAVANAUGH, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges. Concurring opinion filed by Circuit Judge KAVANAUGH.


    [*689] Per Curiam: Jefferson Morley submitted a Freedom of Information Act request to the CIA for records related to CIA officer George E. Joannides. Morley believed the records might shed light on the assassination of President John F. Kennedy because Joannides had served as the CIA case officer “in charge of” a Cuban group whose officers had contact with Lee Harvey Oswald [*690] in the months before the assassination. After not obtaining documents from the CIA, Morley filed a FOIA suit and as a result subsequently received some documents from the CIA. Morley then sought attorney’s fees as a substantially prevailing party. See 5 U.S.C. § 552(a)(4)(E)(i). The District Court applied the four-factor standard that this Circuit [**2] has set forth for considering a substantially prevailing party’s entitlement to attorney’s fees in FOIA cases. See Morley v. CIA, 828 F. Supp. 2d 257, 261 (D.D.C. 2011). Those four factors are: (1) the public benefit derived from the case, (2) the commercial benefit to the requester, (3) the nature of the requester’s interest in the information, and (4) the reasonableness of the agency’s conduct. Applying those four factors, the District Court determined that Morley should not receive attorney’s fees. Id.

    This Court recently elaborated on one of those four factors, the public-benefit factor, which looks to the public benefit derived from the plaintiff’s FOIA suit. See Davy v. CIA, 550 F.3d 1155, 384 U.S. App. D.C. 49 (D.C. Cir. 2008). Davy, like this case, concerned a request for records related to President Kennedy’s assassination. In Davy, this Court said that records “about individuals allegedly involved in President Kennedy’s assassination[] serve[] a public benefit.” Id. at 1159. We also noted that the standard for entitlement to attorney’s fees does not “disqualify plaintiffs who obtain information that, while arguably not of immediate public interest, nevertheless enables further research ultimately [**3] of great value and interest, such as here the public understanding of a Presidential assassination.” Id. at 1162 n.3. We concluded, moreover, that “a balancing of the factors can only support the conclusion that Davy is entitled to an award of attorney’s fees.” Id. at 1163.

    In this case, the District Court did not consider the Davy Court’s analysis of the public-benefit factor. See Morley, 828 F. Supp. 2d at 262-64. We therefore vacate and remand for the District Court to apply the four-factor standard in a manner consistent with Davy. We take no position here on whether the District Court should award fees.

    So ordered.



    Kavanaugh, Circuit Judge, concurring: The Freedom of Information Act provides: “The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case . . . in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). In determining whether a substantially prevailing FOIA plaintiff is entitled to attorney’s fees, this Court has long applied a four-factor standard that looks to (1) the public benefit derived from the case, (2) the commercial benefit to the requester, (3) the nature [**4] of the requester’s interest in the information, and (4) the reasonableness of the agency’s conduct. See Cuneo v. Rumsfeld, 553 F.2d 1360, 1365, 180 U.S. App. D.C. 184 (D.C. Cir. 1977); see also Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704, 714, 182 U.S. App. D.C. 83 (D.C. Cir. 1977).

    We should ditch the four-factor standard. As Judge Randolph has cogently explained, the four factors have no basis in the statutory text. See Davy v. CIA, 550 F.3d 1155, 1166, 384 U.S. App. D.C. 49 (D.C. Cir. 2008) (Randolph, J., dissenting); Burka v. HHS, 142 F.3d 1286, 1293-94, 330 U.S. App. D.C. 59 (D.C. Cir. 1998) (Randolph, J., concurring). And Congress’s decision not to include the four factors in the statutory text appears to have been deliberate: The four factors were in the original Senate bill addressing FOIA attorney’s fees, but the final bill did not include them. To be sure, [*691] the factors were mentioned in a Senate committee report, but the Supreme Court recently reiterated — in an eight-Justice opinion by Justice Kagan in a FOIA case — that we should heed the statutory text of FOIA, not committee reports. See Milner v. Department of the Navy, 131 S. Ct. 1259, 1267, 179 L. Ed. 2d 268 (2011). In short, the text of FOIA does not require this four-factor standard.

    Rather than mandating a [**5] four-factor standard, FOIA grants courts discretion to determine when attorney’s fees should be awarded. It is not inappropriate for courts to flesh out that discretion with specific rules or standards that are rational and consistent with the structure and purposes of FOIA. But the four-factor standard adopted by this Court is arbitrary and inconsistent with the structure and purposes of FOIA.

    FOIA is an equal-opportunity disclosure statute. For disclosure purposes, FOIA treats all requests and requesters the same — no matter the identity of the requesters, the specific benefit that might be derived from the documents, or the requesters’ overt or subtle motives. See 5 U.S.C. § 552(a)(3)(A) (“each agency . . . shall make the [requested] records promptly available to any person”) (emphasis added). With that backdrop, three of the four factors in the four-factor standard for attorney’s fee awards make little sense in the FOIA context — namely, the three factors that require evaluation of the public benefit derived from the case, the commercial benefit to the requester, and the nature of the requester’s interest. Those three factors incentivize and reward only certain kinds of FOIA requests [**6] and requesters, notwithstanding that FOIA deliberately renders the nature of the request and the identity of the requester irrelevant to whether a request should be granted. Those three factors are therefore in tension with the basic structure and purposes of FOIA.

    Apart from the three factors’ basic incompatibility with FOIA’s structure and purposes, the three factors in application generate additional problems. With respect to the first factor, the public benefit from the case, how can courts know whether some disclosures of government documents benefit the public more than others? How does a judge evaluate “public benefit” in a principled way? Doesn’t this factor inevitably devolve into what the judge subjectively thinks is important, rather than an objective determination? And what about cases where the degree of public benefit may become apparent only years later, after the litigation has ended? After all, information sometimes becomes meaningful only when later pieced together with other information. And more broadly, even if the information is of value only to a small group or segment of the public, why treat those citizens as second class in determining who gets attorney’s fees? [**7] Put simply, the public-benefit factor is riddled with arbitrariness in addition to contravening the basic equality-of-requester principle embodied in FOIA. See Burka, 142 F.3d at 1293-94 (Randolph, J., concurring).

    The second and third factors — the commercial benefit to the requester and the nature of the requester’s interest — are similarly flawed. Courts have stated that the requester’s potential commercial benefit from the information counsels against a fee award. But no business is a bottomless well, and that is especially true of small businesses and individual proprietors. And if attorney’s fees are not available, some businesses presumably will not litigate some FOIA disputes that they might otherwise have litigated. Yet FOIA doesn’t prioritize certain kinds of requests or requesters over others. Moreover, the [*692] case law has drawn an odd distinction between an ordinary business’s commercial interests (which count against an award of fees) and a news organization’s commercial interests (which do not count against an award of fees). But one of the broad purposes of FOIA was to enable all citizens to directly access government information without having to rely on filters. So why [**8] penalize non-media businesses that directly seek more information about how the government is carrying out its responsibilities? And to add a further complication, who qualifies and doesn’t qualify as a news organization today? In short, the second and third factors also rest on arbitrary and ill-considered distinctions. See Burka, 142 F.3d at 1293-94 (Randolph, J., concurring).

    When taken together, these factors cause even more problems for FOIA plaintiffs and for the courts. The factors are so vague and malleable that they provide very little guidance to district courts. That leads to unpredictable and inconsistent fees results from case to case and judge to judge. And that unpredictability undermines whatever incentive the four-factor standard is supposed to create in the first place for plaintiffs with meritorious FOIA claims. In light of the uncertainty, how can would-be FOIA plaintiffs count on fees even if they have a meritorious claim?

    To reiterate, if FOIA required courts to consider these four factors, we would have to make the best of it. But FOIA does not so require. The courts have adopted the factors on our own. In my view, we should stop relying on these atextual factors [**9] and stop discriminating against FOIA requesters’ fee requests based on a necessarily ill-informed perception of public benefit and an arbitrary assessment of the nature of the requester’s interests. Cf. Sebelius v. Cloer, 133 S. Ct. 1886, 185 L. Ed. 2d 1003, 1016 (U.S. 2013) (an interpretation of an attorney’s fees provision should not be “inconsistent with the goals of the fees provision”); Martin v. Franklin Capital Corp., 546 U.S. 132, 139-40, 126 S. Ct. 704, 163 L. Ed. 2d 547 (2005) (“When applying fee-shifting statutes, we have found limits in the large objectives of the relevant Act . . . .”) (internal quotation marks omitted).

    We can do better. In an appropriate case, I think the Court should jettison the four-factor standard and adopt the rule from Newman, where the Supreme Court construed a similarly worded civil rights fees statute and held that prevailing plaintiffs should receive attorney’s fees — with only a very narrow exception for “special circumstances” such as bad faith by a prevailing plaintiff. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968).1 A Newman-style rule for FOIA fee awards would be clear and predictable, would treat FOIA requests and requesters equally, and would incentivize would-be [**10] FOIA plaintiffs with meritorious claims. As a narrower alternative, albeit one not as favorable to FOIA plaintiffs as the Newman rule, we could simply continue to use the one factor from the current four-factor standard that makes some sense in the FOIA context: the reasonableness of the agency’s conduct. That factor makes some sense because it discourages a federal agency from using its superior administrative and litigation resources [*693] to unfairly wear down meritorious FOIA plaintiffs. Under that approach, if the district court were to find that the agency acted unreasonably in withholding documents or otherwise acted unreasonably during the litigation, the district court would award attorney’s fees to a substantially prevailing plaintiff. Otherwise, the district court would not award fees.2

    – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
    1 Notably, a Senate committee report cited the statute construed in Newman as the model for FOIA attorney’s fee awards. See S. Rep. No. 93-854, at 17-18 (1974). Of course, the same Senate committee report elsewhere listed the four factors. Cf. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law [**11] 36 (1997) (using legislative history can be like picking out your friends at a party).2 That factor is substantially the same as the standard for attorney’s fees under the Equal Access to Justice Act. See 28 U.S.C. § 2412(d)(1)(A); Burka, 142 F.3d at 1293-94 (Randolph, J., concurring).

    – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
    Either of those two alternatives would be clear, simple, predictable, efficient, and consistent with the overarching structure and purposes of the statute — characteristics that courts should strive for when deciding cases and that are sorely lacking in the current four-factor standard.

    It’s tempting to think that we should leave well enough alone given that we have applied the four-factor standard since our 1977 decision in Cuneo. Two points together convince me that inertia is not the right answer. First, Justice Kagan’s majority opinion for the Supreme Court in Milner recently rejected a similarly atextual 30-year-old FOIA precedent from this Court. See 131 S. Ct. at 1267. The Supreme Court emphatically concluded that it did not matter that this Court had applied a contrary interpretation for three decades. Id. at 1268. The obvious lesson to be drawn from Milner is that we should not reflexively cling [**12] to FOIA decisions that were decided on the basis of legislative history during an era when statutory text was less central to statutory interpretation. Second, and just as important, the four-factor standard causes continuing real-world problems — among other things, drawing arbitrary and unfair distinctions among FOIA requesters and requests, and generating satellite litigation that is wasteful and unnecessary. This case, which is now going back for a second round in the District Court, is a good exhibit of wasteful and unnecessary satellite litigation. Under a Newman approach, Morley would already have his fees, and this litigation would have long since concluded.

    As a three-judge panel, we of course have to adhere to the four-factor standard set forth in our precedents. Applying that four-factor standard, I accept the Court’s decision today to vacate and remand in light of our prior decision in Davy. But the en banc Court has the authority to correct mistaken or outdated precedents of three-judge panels. I hope that, at some point, the en banc Court will adopt a more coherent approach, whether it be the Newman rule or a rule focused on the reasonableness of the agency’s conduct. [**13] As stated above, I prefer the Newman rule, but either of those two alternatives would be a significant improvement over the current four-factor standard.

  5. DXer said

    USAMRC FOIA Supervisor John Peterson by telephone message denied the request for the Animal Protocol B01-11 showing what Ivins was doing in late September 2001 and early October 2001 because they destroyed the original copy and only have an unsigned copy!

    He also refuses to produce, for example, the civil deposition of Stephen F. Little because the copy they have is unsigned.

    I am so tired of this garbage. Suit needs to be brought on this issue and precedent made — with attorneys fees paid — so that the FOIA people take to heart what the law is about concerning transmitted drafts.

    I’ll post the precedent next week.

    (The issue of USASMRIID’s destruction of evidence relating to how Dr. Bruce E. Ivins spent his time in late September 2001 and October 2001 is a separate issue that can be addressed separately by USAMRIID command or the GAO.)

  6. After 9/11, the FBI canvased hotels near King Fahad Mosque, in Culver City.
    They examined registration cards from Jan. or Feb. 2000,
    and were looking for any of the known aliases of Abderraouf Jdey.
    This would have been when Hazmi and Mihdhar arrived in LA …
    very interesting, and one imagines, very sensitive.

    • DXer said

      Yes, Jdey was at the Mes Aynak camp in Afghanistan at the same time as Nawal Al Hazmi and Khalid Al Midhhar. There is onlinrecord of the details of that canvassing at the national archives.

      By way of background for others, there was a Top Secret briefing on June 24, 2004 in which Dieter Snell on the 911 Commission Staff and his colleagues were bried about Jdey. Jdey was a Canadian citizen from Tunisia. The FBI has a case against Jdey in New York.

      In that canvassing, no records showed they had all stayed there although Nawaf and Khalid had stayed there with a different fellow on another occasion.

      In January 2000, Jdey was in Afghanistan making a martyr video about the same time as Binalshibh did, under the instruction of Egyptian Islamid Jihad military commander Saif Adel. Jdey’s video was one of five recovered from the home of Mohammed Atef in late 2001. Former Cairo police sergeant, Atef, was the Al Qaeda’s military commander. Atef was the fellow to whom Dr. Zawahiri was reporting on his anthrax planning.

      Jdey was present in Karachi when KSM was training Atta before Atta’s return to Germany.

      Between December 1999 and January 2000 he was at “Camp 6” at the same time as hijacker Ziad Jarry.

      Binadlshibh once made reservations to fly to Montreal, where Jdey was located, but never took the flight.

      The most famous piece of information is that Jdey was part of the 911 planes operation but dropped out — but he did not drop out due to cold feet. That appeared in a document that was written either by KSM or Saif Adel. Tenet says Saif Adel had a CBRN role. Sufaat for a period lived with KSM (as did Adnan El-Shukrijumah).

      I first read of Saif Adel in connection with his denial of responsibility in denying the Al Hayat letter bombs to newspapers in DC and NYC — and people in symbolic positions. The London cell spokesman, in regular touch with the Blind Sheik’s paralegal in New York, told Saif Adel to shut up given he did not have authority to deny the letter bombs. Al-Sirri was the spokesman for Vanguards of Conquest which was doing militant operations for the Egyptian Islamic JIhad outside of Egypt. The Al Hayat letters were intended to protest the retaliation of the Blind Sheik. EIJ head of intelligence, Ali Mohammed, who lived here in the US and had fooled the CIA, FBI and Army, had taught Dahab how to make lethal letters. The FBI for years has been embarrassed of the thread that runs up through EIJ intelligence head and Ali Mohammed right up through Saif Adel, the Al Hayat letters, and Amerithrax. If the FBI did not understand that retaliation for the imprisonment of senior EIJ officials (including the Blind Sheik) was the motivation of the Fall 2001 anthrax letters — and they apparently didn’t — then they were never going to solve Amerithrax. The FBI should have turned to intelligence analysts — not profilers. Vahid Majidi’s failure to recognize the tactical value that the EIJ placed on false denials in connection with the Al Hayat letter bombs illustrates how foolishly Amerithrax was botched. But he was an analytical chemist, why should he know?

      After Jdey’s martydrom video was found in anthrax planner Atef’s home, a “seeking information” was put on January 2002. Information on the particulars as to why the FBI was seeking Jdey is still classified.

      At the time of the mid-2004 briefing, the FBI reported to the 911 Commission that there was no record of Jdey coming to the US — and no registration cards were found at the Culver City motels showing he stayed there with Nawaf and Al-Hazmi. But the briefers recognized that he may have travelled to the US given he had a Canadian passport. A review of Jdey’s telephone records did not show calls to the hijackers.

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