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

* Rabbit Challenge First Week of October 2001: The Principal Investigator was Ivins and his Co-Investigators were Fellows and Little; Little “will not be handling the animals.”

Posted by DXer on November 28, 2013

Screen shot 2013-11-27 at 6.02.20 PM

8 Responses to “* Rabbit Challenge First Week of October 2001: The Principal Investigator was Ivins and his Co-Investigators were Fellows and Little; Little “will not be handling the animals.””

  1. DXer said

    Lab experiments on dogs cruel and unnecessary

    The San Diego Union-Tribune-7 hours ago…0.0…1ac.1.ioX_f6Xt6H0#hl=en&gl=us&authuser=0&tbm=nws&q=anthrax++dogs

  2. DXer said

    Mr. Little never went into the B3 for medical reasons (not since 1991 or so) and so Dr. Ivins’ help was much appreciated.

  3. DXer said

    USAMRIID today, by letter, has falsely claimed it does not have a copy of the Stephen Little civil deposition even though John Peterson told me by telephone that USAMRIID employee Little had provided him a copy. (It was sent initially to the USAMRIID FOIA officer.) (Mr. Little himself still has his copy and had merely sent a duplicate).

    The Court said “that an agency must first either create or obtain a record as a prerequisite to it becoming an agency record within the meaning of the FOIA.”

    Questions have been raised as to whether various types of records in an agency’s possession are agency records. In general, the courts have been extremely reluctant to accept arguments that they are not. To accept such an argument forecloses any consideration of whether or not access should be granted. See, e.g., Weisberg v. Department of Justice, 627 F.2d 365 (D.C. Cir. 1980) (copyrighted materials); Crooker v. Office of the Pardon Attorney, 614 F.2d 825 (2d Cir. 1980) (records of the Office of the Pardon Attorney); Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980) (senators’ responses to a questionnaire concerning their procedures for selecting recommended candidates for federal judgeships); Government Sales Consultants, Inc. v. G.S.A., No. 77-1294 (D.D.C. 1979) (contract proposals).

    In the case of the Little civil deposition transcript, it is really, really REALLY wrong to claim that you don’t have a document when you do.

    John had wanted to withhold it on the grounds that the sworn transcribed statement was a “draft.”

    USAMRIID, you may recall, was the defendant in that Stevens v. US litigation. DOJ is just the law firm.

    If Client X has a document, the fact that the law firm does also is immaterial.

    Indeed, under the typical controlling precedent, the documents in the possession of the law firm are imputed to be within the control of the client.

    Lawyers are just the hired guns. A client does not circumvent FOIA by handing off the documents to a lawyer.

    Instead, Mr. Peterson should state the claimed exemption that the transcribed statement is a “draft” (if he thinks it applies) — alternatively he should produce the document subject to any other exemptions that apply.

    If JP’s argument is that Mr. Little, in consultation with the agency lawyer, wanted to revise his sworn statement, then JP can claim attorney-client privilege/attorney work product as to whatever sworn testimony Mr. Little and his lawyer thought proper to change. It is such advice that is subject to the privilege, not the transcribed statement.

    I have researched the issue of the “draft” exemption and under the facts, JP is mistaken.

    Mr. Peterson told me that the litigation would be protracted and the amount of attorneys fees that USAMRIID would have to pay would not be much.
    (I told him that the issue was decidable on summary judgment and he was making a mistake).

    JP’s sort of approach, while candid, does not bode well for the state of the Freedom of Information Act or the rule of law.

    USAMRIID allowed the Lab Notebook 4241 to be withheld for 4 years by DOJ. The difference between Lab Notebook 4241 and Mr. Little’s civil deposition is that USAMRIID provably has a copy of that civil deposition by Mr. Little.

    USAMRIID CLAIMED not to have a copy of Lab Notebook 4241 relating to Dr. Ivins’ work with the 52 rabbits. But now that we’ve seen USAMRIID in a formal letter falsely claim that it does not have the Little deposition, we can see that we no longer can credit its claim that it did not have Lab Notebook 4241.

    When I emailed her about the 52 rabbits, AUSA Lieber at DOJ wrote back to tell me that I would never be getting any documents under FOIA relating to Dr. Ivins experiment with the 52 rabbits.

    The view seems to be that Dr. Ivins is just dead and buried — we can bury the mistake with him. USAMRIID seems on board with that approach after all.

    Certainly, one would expect that JAG would have made copies of anything turned over to a federal prosecutor. That’s the nature of the role. The JAG attorney attended Mr. Little’s civil deposition.

    • DXer said

      Before turning to 2013 precedent in Maryland, New York and the District of Columbia, let’s consider former guidance from the DOJ on the issue.

      Note that there is no protective order that applies to the Stephen Little deposition.

      This is not transcript of grand jury testimony. Nor was any classified information discussed in the Little deposition.

      We can credit for the sake of the argument on this point that DOJ is the originator of the transcribed statement of a USAMRIID employee that was noticed by a civil plaintiff suing USAMRIID. (In fact, DOJ was just defense counsel).

      The consultation that is recommended by DOJ under its “Referral and Consultation Procedures” has in fact occurred. DOJ advised that no protective order applied.

      USAMRIID’s response was then just to deny falsely that it had a copy in its possession.

      At the end of the day we are dealing only with the inexplicable false claim that USAMRIID does not have a copy of the Little deposition within its possession.

      Referral and Consultation Procedures

      When searching for records requested under the Freedom of Information Act, it is not uncommon for an agency to locate a responsive document that originated outside of the agency. This occurrence can present an agency with the threshold jurisdictional question of whether such a document is an “agency record” under the FOIA. In those cases in which the document is determined to be an “agency record,” the agency then must decide whether it should (a) process the record for the requester directly, (b) refer the record to the originating agency for its disclosure determination and direct response to the FOIA requester, or (c) consult with that originating agency before making a direct FOIA response.

      “Agency Record” Inquiry

      The threshold question of whether a document either created or otherwise obtained by an agency is an “agency record” under the FOIA should be resolved by determining whether the document is physically possessed by the agency and whether it was within the agency’s “control” at the time the FOIA request was made. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). Based upon an overall review of relevant FOIA precedents, it appears that the category of documents most frequently found not to be “agency records” under the Act are “personal materials in an employee’s possession, even though the materials may be physically located at the agency.” Id. at 145 (citing Kissinger v. Reporters Committee for Freedom of the Press FOIA Update, Fall 1984, at 3-4 (“OIP Guidance: ‘Agency Records’ vs. ‘Personal Records’”). ***

      On the other hand, “generally materials obtained from private parties and in the possession of a federal agency [are] agency ‘records’ within the meaning of FOIA.” Weisberg v. Department of Justice, 631 F.2d 824, 827-28 (D.C. Cir. 1980) (copyrighted photographs used in criminal investigation held to be “agency records”); see, e.g., Hercules, Inc. v. Marsh, 838 F.2d 1027, 1029 (4th Cir. 1988) (army ammunition plant telephone directory prepared by contractor at government expense held to be “agency record”); General Elec. Co. v. NRC, 750 F.2d 1394, 1400-01 (7th Cir. 1984) (internal company report submitted in connection with licensing proceedings held to be “agency record”). Accordingly, the agency in possession of such records is responsible for making any FOIA disclosure determination that might be required.

      Referral of Records

      With respect to records originating with another agency, one principle is beyond any doubt: “[W]hen an agency receives a FOIA request for ‘agency records’ in its possession, it must take responsibility for processing the request. It cannot simply refuse to act on the ground that the documents originated elsewhere.” McGehee v. CIA, 697 F.2d at 1110. In the McGehee case, the D.C. Circuit Court of Appeals confronted an agency’s extremely broad position that it had no obligation to take any action whatsoever regarding records originating in another agency; it responded by suggesting rigid administrative procedures by which the agency would process such records itself, primarily using consultations. See id. at 1110-12. …

      With the passage of time, this traditional FOIA practice has largely ceased to be an issue. Agencies have continued to refer requested records to originating agencies for direct FOIA responses — and when litigation has resulted, the government generally has not raised any issue over which agency is the “proper party defendant,” but instead has provided affidavits from the originating agencies to justify any contested nondisclosure. The practice has continued, as a practical matter, with acceptance both tacit and widespread. See,e.g., Oglesby v. Department of the Army, 920 F.2d 57, 69 & n.15 (D.C. Cir. 1990); Fitzgibbon v. CIA, 911 F.2d 755, 757 (D.C. Cir. 1990); Zang v. FBI, 756 F. Supp. 705, 706-07 & n.1 (W.D.N.Y. 1991).

      Accordingly, the question for FOIA officers now is how best to handle the records of another agency in a given case — by acting independently, by making a full record referral, or by merely consulting with the other agency. The short answer is that the agency that is best able to determine a record’s sensitivity, and in turn its exemption status, is the agency that should process that record under the Act. While this may vary in particular cases, as a general rule the agency that originated a record is usually the most appropriate agency to make a FOIA-disclosure determination regarding it. The primary advantages of record referrals are overall administrative efficiency and consistency of response.


      Interagency FOIA consultations, as distinct from record referrals, are particularly appropriate in two types of situations. First, they are well suited to the circumstance in which an agency deals with a responsive record that it originated itself, but which contains items of information that were furnished by (or perhaps are of special interest to) another agency. By carefully consulting with that other agency, either formally or informally, an agency can make a more informed disclosure decision regarding its own record.

      Consultations also are especially useful in informing an agency of any sensitivity of records originating with entities not subject to the FOIA. Indeed, in the case of confidential business information, such consultations often are mandatory under Executive Order No. 12,600, and its implementing regulations. As with referrals, requesters ordinarily should be advised that the agency is consulting with a record’s originator whenever this process delays an agency’s FOIA response.

  4. DXer said

    Anyone at DOM and FBI who did not know the rabbit/formaldehyde experiment was done in October at USAMRIID apparently did not read the documents in the FBI’s possession long before Dr. Ivins’ suicide.

    The documents were withheld and unavailable for the public to view until after the FBI officially closed the case in February 2010.

    Dr. Ivins tried to retrieve his emails but was told by the IT department that it was not possible to retrieve them after two years.

    20010821_batch33(redacted).pdf (303 KB) — Posted: 06/22/2010

    Click to access 20010821_batch33(redacted).pdf

    From: >Sent: Wednesday, August 08, 2001 3:24 PM >To: Ivins, Bruce E Dr USAMRIID;
    b >Cc: ) >Subject: RE: rPA meeting – 6 AUG 01 (

    > > > PROPRIETARY – NOT FOR PUBLIC DISTRIBUTION > > rPA RIID PDT Meeting > August 6, 2001 0900 to 1030 > Attendees:

    3) Bruce talked about the status of stability studies (rPA vaccine with and without formaldehyde) in the rabbit. The rabbits will be held and immunized at Covance, then shipped to USAMRIID for challenge. These animals are being immunized with vaccine prepared 5 years ago. so we are thus evaluating the potency stability of older vaccine preparations. The survival data should be in by the end of October. If there is enough available, some the the vaccines will be given to to evalutate protein stability over time by physical characterization . He will try to present the data at the next meeting with data obtained previously evaluating protein stability by SDS with and without formaldehyde. will identify other items, such as sucrose, which would be acceptable as stabilizers in a new rPA vaccine. It was emphasized that we need to look at both physical stability and potency stability in a new rPA vaccine. The use of formaldehyde as a stabilizer in vaccines is discouraged by the FDA. > >

  5. DXer said

    1. Here is a notebook pages relating only to mice earlier in September 2001. (The rabbit challenge was not until the first week of October.)

    Under the Mice Protocol, The Animals Were Challenged In B-305 (which is in Suite B3) ; Under This Protocol, Dr. Ivins Was In The B3 Those Nights The AUSA And Investigators Mistakenly Suggested He Had No Reason To Be In That Biolevel-3 Lab
    Posted on January 1, 2012

    2. Ivins assisted, for example, with the bleeding of the mice. Bleeding is controlled by Standard Operating Procedure AC-13-23.

    see also

    3. The lab notebook relating to the rabbits were withheld by the FBI until September 2012.

    4. Here are sample pages from Lab Notebook 4241 relating to the rabbit experiment.

    5. The animal cage cards for the rabbits were thrown out by 2004 and thus unavailable to be retrieved when Ivins was asked to recall how he had spent his time. (Things get thrown out pursuant a document retention policy).

    see also

    6. In an Oct 5, ’01 email among the materials provided by USAMRIID this week, Dr. Ivins explains the results 3 days after the challenge of rabbits in the formaldehyde experiment; the word “rabbits” has never passed the prosecutor’s lips
    Posted by Lew Weinstein on December 24, 2011

    In response to Dr. Ivins’ October 5, 2001 email discussing the rabbit deaths over the last three days, the participants in the study that day discussed by email the implications for further study
    Posted by Lew Weinstein on January 4, 2012

    7. 12 rabbits then died on day 3 and 4 and more on day 5; Ivins time then spent the extra time on those nights; AUSA Rachel Lieber got her facts seriously wrong in the investigative summary; DOJ should have required citations to the record.
    Posted by Lew Weinstein on January 3, 2012

    8. NOT FOR PUBLIC DISTRIBUTION: 10 days after the rabbits had been challenged on October 1, 2001, Dr. Ivins presented preliminary results from the Battelle study involving the 5 year old preps of rPA vaccine w/ and w/o formaldehyde.
    Posted by Lew Weinstein on December 24, 2011

    9. Patricia Fellows was the other investigator on the rabbit experiment. Keycard records show that she did not enter the lab at night in connection with the rabbits. Her civil deposition was shredded by the DOJ.

    10. Under the B1-11 protocol relating to the rabbits, the investigator was required to check the rabbits for the first week after challenge.

    11. The 52 rabbits needed to be moved into the B3 for the purpose acclimatizing them a week before — on or about September 24, 2001 when they arrived from Covance. Animals were required to be put in the B3 a week before challenge to acclimatize them to the surrounding and reduce their stress level.

    12 The lyophilizer discussed by US Attorney Taylor at the early August 2008 press conference was in Suite B5, not Suite B3 where Dr. Ivins was on the nights in question (where he was doing the study with the 52 rabbits)

    Posted by Lew Weinstein on November 11, 2011

    13. It would take 1 hour and 50 minutes to autoclave animal pans and cages (90 minute steam cycle and 20 minute drying cycle) The last person in for the day would tend to operate the autoclave.
    Posted by Lew Weinstein on October 31, 2011

  6. DXer said

    The USAMRIID took years before producing Dr. Ivins early October 2005 reporting on the results of the challenge in early October 2001.

    30 June 2009
    Ross Getman sends emails obtained by FOIA request of Dr. Bruce Ivins, a US Army anthrax research scientist suspected by the FBI of mailing anthrax to public figures in 2001 which killed five people and infected 17 others:

    John Peterson of USAMRC would send out the emails to a committee of DOJ and FBI and they would cull the emails they wanted. But the greatest harm of all was simply the years of delay that ensued. The early October 2001 emails were delayed until months after the closing of the case in February 2010.

    20010912_batch35(redacted).pdf (236 KB) — Posted: 06/22/2010

    Click to access 20010912_batch35(redacted).pdf

    There was an institutionalized de facto obstruction of justice — just as there is a continued DOJ withholding of documents.

    If USAMRIID had produced the emails from the timeframe from September/October 2001 before Amerithrax was closed, perhaps the former FBI WMD head Vahid Majidi would not have been confused. He wrote me recently suggesting that he had thought the rabbit experiment was done at some other facility.

    If USAMRIID had produced the emails from the timeframe from September/October 2001 before Amerithrax was closed, AUSA Lieber would not have been able to continue the mistaken claim that Dr. Ivins had no reason to be in the lab that first week of October.

    If the DOJ had given Lab Notebook 4241 and the September/October 2001 emails to Dr. Ivins, he and his lawyer, Paul Kemp, could have more persuasively reconstructed Ivins’ time. DOJ withheld Lab Notebook 4241 until September 2012. (Without the aid of contemporaneous documents, no one has reason to remember what they were doing some particular week over a half decade earlier).

    If the DOJ had not shredded Patricia Fellows’ deposition, we would at least have the benefit of her sworn testimony.

    CYA, due to Ivins’ tragic suicide, is not a reason to have Amerithrax go unsolved. No one is saying we could have done better in the rush of events — only that we now would do the right thing in moving forward.

    For starters, Vahid, you should now take the time to master the rabbit documents.

    Anyone party to the continued withholding of documents is equally responsible — maybe even more responsible. Those like AUSA Lieber and Vahid Majidi can at least continue to pretend the documents don’t exist — untll the documents showing otherwise are released.

    At least the AUSA and former WMD head have the possible argument that they had been ignorant and had not mastered the documents relating to how Dr. Ivins spent his time. (Certainly, Dr. Majidi had numerous other important responsibilities and was dependent on the briefing provided by subordinates). And AUSA Lieber had her own conflicting demands on her attention and time in the office.

    At the August 2008 science conference, you may remember the official who said that information was being withheld to avoid embarrassment to another country.

    Oh, really? The officials of which country had the greatest reason to be embarrassed? Pakistan because of ISI’s connection to the AQ operatives or the mistreatment of AQ operatives? Jordan because of torture of Samer Al-Barq, Hambali and others? Malaysia because of Yazid Sufaat’s role in their abandoned state bioweapons program? … or the United States? Because they have concealed from you that my onetime Facebook friend Yazid Sufaat and his two assistants were working with virulent Ames. Did someone kill Sufaat’s other assistant, the PhD? Hud Al-Sudani? If not, where is he?

    The DOJ is so focused on preventing you from hearing the whispers about PROJECT JEFFERSON at USAMRIID water coolers that Vahid Majidi has never had to come to grips with the fact that the FBI could not in fact exclude Adnan El-Shurkijumah as the mailer. His claim that the FBI had interviewed all of Atta’s associations and ruled them out is false on its face. El-Shukrijumah, like Sufaat, was iiving with KSM for a time that Fall. Shukrijumah called his mother the week before the first mailing (he called on or about 9/13) to tell his mom that he was coming to the United States. She protested that he would be arrested but he insisted. Shukrijumah is now said to be head of Al Qaeda’s external operations. Failure is not an option.

    Everyone should just stand down and move past such CYA considerations while it is recognized that an “Ivins Theory” was based on a number of central factual misapprehensions (which we will presume were in good faith) and there needs to be a “do-over.” It is never too late to get it right — until it is.

    Do what LeRoy Jethro Gibbs would do.

    Anthrax, Ayman Zawahiri and Anwar Awlaki: The Infiltration of US Biodefense

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: