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

* Dr. Dillon’s FOIA appeal of the denial of his request for Agent Lambert’s “whistleblower” report regarding the Amerithrax investigation

Posted by Lew Weinstein on May 15, 2015

Screen Shot 2015-05-15 at 4.56.24 PM

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19 Responses to “* Dr. Dillon’s FOIA appeal of the denial of his request for Agent Lambert’s “whistleblower” report regarding the Amerithrax investigation”

  1. DXer said

    What is happening in the “whistleblower” suit by the former lead Amerithrax FBI investigator? Former Agent Lambert understandably is still upset by the FBI’s raid and investigation of him relating to his going to work at a US lab managed by Battelle, which had the Ames anthrax used in the Fall 2001 anthrax mailings. (He should have it cleared before going; it was especially problematic because Battelle manages Dugway).

    (Meanwhile, the former lead Amerithrax criminal prosecutor whose daughter later represented anthrax suspect Ali Al-TImimi for free went on to lucrative private practice). (What is happening in that remanded, long-pending Al-Timimi matter?)

    An Ex-FBI Agent previously commended by me in this blog in the off-topic Isabella Gardner heist matter has been sentenced to perjury in connection with his claim that he was a whistleblower in the White Bulger matter.

    Ex-FBI Agent Pleads Guilty to Perjury During Bulger Trial
    • By denise lavoie, ap legal affairs writer

    BOSTON — May 9, 2016, 4:43 PM ET
    http://abcnews.go.com/US/wireStory/fbi-agent-plead-guilty-perjury-bulger-trial-38974477

    Hafer said Fitzpatrick lied when he portrayed himself as a “whistleblower” who tried to end the Boston FBI’s corrupt relationship with Bulger. Bulger worked as a criminal informant for the FBI at the same time he led a violent gang responsible for numerous murders.

    Hafer said if the case against Fitzpatrick had gone to trial, prosecutors would have presented evidence that Fitzpatrick actually “thwarted” efforts to close Bulger as an informant. He said Fitzpatrick was motivated in part by a desire to promote sales of a book he co-authored, “Betrayal: Whitey Bulger and the FBI Agent Who Fought to Bring Him Down.”

    The prosecution and defense agreed to recommend a sentence of two years of probation.

    Comment:

    I found Mr. Fitzpatrick’s relationship with narcotics trafficker Joe Murray in the 1990s — when he worked for him for pay — more interesting. Joe, according to former Agent Fitzpatrick, reportedly told him that he could lay his hands on the Isabella Gardner paintings but then was killed precipitously later that year in Fall 1992. Mr. Fitzpatrick was mistaken in his recollection that Susan Murray was Joe’s fiance (as opposed to wife). With a cease and desist order against him, Joe was killed by his wife with a 357 magnum. (Never bring a knife to a gun fight). Murray’s wife then was killed by a hot shot in 1997.

    Lesson learned: It never pays to annoy the FBI or the mafia. So just stop and go dig up the Isabella Gardner paintings yourself at Robert Gentile’s used car lot in South Windsor instead of continuing to jabber about it. Go buy a metal detector. Go get and read the Amerithrax documents.

    Speaking of which, the 16 pages on an Ivins Theory authored by Agent Lambert are now circulating among DOJ/FBI officials.

    How does Vahid Majidi square his Ivins Theory with those 16 pages and the discussion of forensics? Is it that he had not read the Interim Case Management Summary?

    p.s. How will it be possible for a liberal to support Senator Grassley — supporter of FBI whistleblowers — when he opposed a hearing on Merrick Garland’s nomination to the US Supreme Court? Under the rule of law, the principled thing would have been to have a hearing and then let the Senate do its job and vote Garland up or down.

  2. DXer said

    In Congressional hearing, a panel could ask a senior FBI official about correspondence from Matthew Hurd, Senior Attorney, for Sean O’Neill, Chief, Administrative Appeals Staff, Appeal No. AP-2016-00037, Request No. 1329350 MWH:MTC. so as to try to understand the FBI’s approach to withholding — and its failure to promptly provide these documents once Dillon’s appeal of the initial denial was granted.

    It’s as if the functionaries implementing FOIA policy at the FBI are not imbued with the letter and spirit of the Freedom of Information Act. (This is surprising given that the entire purpose of the agency is to enforce the law). The FBI’s FOIA operation workload does not alone explain it.

    Perhaps the FBI spends too much time unproductively readiing other people’s email and not enough time handling their own correspondence.

    Senior Attorney Hurd, in his correspondence last year, appeared not to understand Amerithrax — or what is at stake in connection with the threat of an anthrax attack on Washington, DC and New York City.

    A little snow is the least of DC’s problem as we move forward in this Century.

  3. DXer said

    Look again at the powerful appeal Dillon wrote in connection with the initial denial of his request.

  4. DXer said

    Excerpt from Filed 12/09/15 PLAINTIFF’S REPLY MEMORANDUM

    OPPOSING INDIVIDUAL FEDERAL DEFENDANT PATRICK KELLEY’S MOTION TO DISMISS

    UNITED STATES DISTRICT COURT for the

    EASTERN DISTRICT OF TENNESSEE at KNOXVILLE

    RICHARD L. LAMBERT

    v.

    UNITED STATES, et al.,

    STATEMENT OF MATERIAL FACTS

    From 2002 through 2006, Plaintiff headed the FBI’s investigation into the U.S. anthrax attacks of 2001. 2d Amend. Compl’t at 24-25. In July 2006, Plaintiff provided a whistleblower report to the FBI Deputy Director pursuant to the FBI Whistleblower Protection Act, Title 5

    Civil Action No. 3:15-cv-147 ) (Reeves/Guyton)

    Case 3:15-cv-00147-PLR-HBG Document 34 Filed 12/09/15 Page 1 of 26 PageID #: 872

    United States Code, Section 2303. 2d Amend. Compl’t at 25. This report disclosed several instances of mismanagement by senior executives which impeded the investigation, slowed its progress, and sapped investigators’ sense of urgency. 2d Amend. Compl’t at 25-26. When the FBI and Department of Justice (DOJ) disregarded Plaintiff’s report without explanation, Plaintiff, unlike Edward Snowden, did not go to the press or attempt to bring media scrutiny or congressional oversight to the issues. Instead, Plaintiff deferred to senior officials’ disinterest as executive prerogative.

    Plaintiff’s concerns about senior leadership’s obstruction of the case were nonetheless fronted, however, as a result of civil litigation filed against the Bureau by Steven Hatfill who had been named as a “person of interest” in the investigation by the Attorney General. See Hatfill v. Ashcroft, No. 1:03CV01793 (D.D.C. filed Aug. 26, 2003). During the discovery phase of the Hatfill litigation, the FBI produced for Hatfill’s attorneys a number of e-mails authored by Plaintiff which identified the same bureaucratic malfeasance detailed in Plaintiff’s whistleblower report. Plaintiff was also compelled by the Department of Justice to sit for a video-taped deposition by Hatfill’s attorneys. Plaintiff was accompanied to this deposition by three DOJ attorneys. Plaintiff’s testimony was taken under oath. At the deposition, testimony was elicited from Plaintiff (without any DOJ objection) concerning the Director’s detrimental decision to stove-pipe the anthrax investigation by compartmentalizing the sharing of information among investigators. 2d Amend. Compl’t at 26-27.

    In collaboration with the CBS television network, Hatfill’s attorneys made Plaintiff’s internal FBI e-mails and excerpts of Plaintiff’s video-taped deposition available to the producers of 60 Minutes who showcased them in an April 2008 episode. 2d Amend. Compl’t at 26. This

    2

    Case 3:15-cv-00147-PLR-HBG Document 34 Filed 12/09/15 Page 2 of 26 PageID #: 873

    episode of 60 Minutes publicly humiliated the FBI and intensified congressional calls for formal inquiries into the FBI’s handling of the case. 2d Amend. Compl’t at 26-27. Plaintiff was viewed by the FBI’s senior leadership as having “embarrassed the Bureau” – a sin so cardinal it has been memorialized in a graduate level textbook on public administration. Terry L. Cooper, The Responsible Public Administrator: An Approach to Ethics for the Administrative Role 19-20 (6th ed. 2012) (citing “don’t embarrass the bureau” as one of the “more colorful moral rules . . . from the field of law enforcement”).

  5. DXer said

    The FBI will release the so-called 2006 whistleblower report of the former Head of Amerithrax Richard Lambert if he consents.

    Or so suggests Christiana D. Troiana, Attorney-Advisor for Sean O’Neill, Chief, Administrative Appeals Staff, in a well-reasoned letter.

    CBS “60 Minutes” saw it. Can we please now see it?

    Rick? I realize you haven’t had your coffee yet. But what do you say?

  6. DXer said

    Just to clarify, Dillon’s appeal above was successful and it was remanded for reconsideration. Right now the issue relates to a denial of a fee waiver request.

    • DXer said

      In addition to the fee waiver, the FBI needs to turn to the merits and respond to the request.

      Here is the key background. Does FBI FOIA official head Dave Hardy really not follow the news?

      Former FBI Agent Claims Bureau Hid Anthrax Evidence, Accused Wrong Man
      by NowThis 0:27 mins
      https://screen.yahoo.com/nowthis-nowthis-us-news/former-fbi-agent-claims-bureau-221200182.html

    • DXer said

      I am working to clarify my gross and continuing confusion. Ken filed a FOIA request for this “whistleblower” report — but he also filed a FOIA request for the 2000 page Interim Major Case Summary. Today Lew will upload the first page of the actual document denying the fee waiver request as to the 2000 page Interim Major Case Summary.

      The greater my confusion, the more indebted I feel to Ken for staying the course and filing such important requests.

      Given that the Interim Major Case Summary is 2000 pages long, it is all the more important that Dr. Dillon appeal the denial of his request for a fee waiver.

    • DXer said

      I’ve confirmed that so far it was only his request for the 2000 page Interim Major Case Summary that has been remanded pursuant to an administrative appeal. The FBI has not yet initially addressed this request for the so-called “whistleblower report.”

  7. DXer said

    https://www.emptywheel.net/2015/03/20/is-matt-dehart-being-prosecuted-because-fbi-investigated-cia-for-the-anthrax-leak/

    Is Matt DeHart Being Prosecuted Because FBI Investigated CIA for the Anthrax Leak?
    Published March 20, 2015 | By empty wheel

    Buzzfeed today revealed a key detail behind in the Matthew DeHart case: the content of the file which DeHart believes explains the government’s pursuit of him. In addition to details of CIA’s role in drone-targeting and some ag company’s role in killing 13,000 people, DeHart claims a document dropped onto his Tor server included details of FBI’s investigation into CIA’s possible role in the anthrax attack.

    Is it possible DOJ would really go after DeHart for having seen and retaining part of that FBI file?

    For what it’s worth, I think Bruce Ivins could not have been the sole culprit and it’s unlikely he was the culprit at all. I believe the possibility that a CIA-related entity, especially a contractor or an alumni, had a role in the anthrax attack to be possible. In my opinion, Batelle Labs in Ohio are the most likely source of the anthrax, not least because they’re close enough to New Jersey to have launched the attacks, but because — in addition to dismissing potential matches to the actual anthrax through a bunch of smoke (only looking for lone wolves) and mirrors (ignoring four of the potentially responsive samples) — Batelle did have a responsive sample of the anthrax. Though as a recently GAO report made clear, FBI didn’t even sample all the labs that had potentially responsive samples, so perhaps one of those labs should be considered a more likely source. Batelle does work for the CIA and just about everyone else, so if Batelle were involved, CIA involvement couldn’t be ruled out.

    So I think it quite possible that FBI was investigating CIA or someone related to CIA in the attack. It’s quite possible, too, that someone might want to leak that information, as it has been clear for years that at least some in FBI were not really all that interested in solving the crime. Even the timing would make sense, coming as it would have in the wake of the FBI’s use of the Ivins suicide to stop looking for a culprit and even as the Obama Administration was beginning to hint it wasn’t all that interested in reviewing FBI’s investigation.

    But there’s something odd about how this was allegedly leaked.

    According to Buzzfeed, the anthrax investigation came in one unencrypted folder with the ag document and a document on drone targeting the source of which he thinks he knows (it would like have been a former colleague from the ANG).

    How would it ever be possible that the same person would have access to all three of those things? While it’s possible the ag admission ended up in the government, even a DOJ investigation into such an admission would be in a different place than the FBI anthrax investigation, and both should be inaccessible to the ANG people working on SIPRNet.

    That is, given how unlikely it would be to find these juicy subjects all together in one folder, I do wonder whether they’re all authentic (though DeHart would presumably be able to assess the authenticity of the drone targeting documents).

    And DeHart no longer has the documents in question — Canada hasn’t given them back.

    ***

    There’s definitely something funky about this story. Importantly, it’s not just DeHart and his family that are acting like something’s funky — the government is too.

    But that doesn’t necessarily mean the FBI thinks CIA did the anthrax attack.

    Comment:

    Emptywheel, Matt’s parents were former NSA and Army intelligence. They would have no reason not to have made a back-up (even in addition to the one sent to the UK). As Emptywheel indicates toward the end of the thoughtful essay, one copy reportedly is in the UK.

    So we can expect to see it — and I expect it will be no more interesting than dozens of others we have seen. A document becomes much more sexy if it is mysterious and concealed. I’ve read many hundreds of State Department cables uploaded by WIkileaks and couldn’t tell you a single one that was particularly memorable.

    This CIA theory has been a mainstream theory since my learned friend BHR first suggested it might be a CIA experiment “gone awry” on BBC. If someone like Cheney or Card thought it was hogwash, I don’t doubt that there is a memo (especially from late 2001) dismissing it and asking the FBI to focus on Al Qaeda.

    In any event, people should request the memo under FOIA and the FBI should produce it, with any redactions required under the statutory exemptions.

    This blog has uploaded dozens of leaked classified documents relating to Amerithrax. If Matt’s defense attorneys think there is any benefit in not making it part of the court record, I think they are mistaken. They should be the first ones to see that it is requested under FOIA.

    At the very least, I expect we’ll see the copy in the UK. The downside for Matt is if it is boring as I expect to be. It would have to name particulars — name names — to be interesting.
    The worst crime Matt could commit is to bore us.

    People are far too enamored with secrets. The greatest power stems from having no secrets.

    Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
    http://www.amerithrax.wordpress.com

    • DXer said

      Now compare the recent press to the incredibly damning FBI interrogation summary about Matt Dehart’s visit to the Russian embassy and his attempts to spy for the Russians for a substantial monthly stipend.

      While the Amerithrax document should be uploaded or sought to FOIA, this seems just a case of an incredibly reckless and stupid attempted act of espionage.

      (In my day, the FBI filmed and sought to identify everyone who walked into the Russian embassy from the second floor of the building across the street).

      FBI interrogation summary
      https://mattdehart.com/2015/03/01/fbi-interrogation-summary-26810/

    • DXer said

      Mr. Dehart says he was a member of Anonymous since its beginning.

      When he was given the IV, he reportedly had been yelling and was agitated.

      (I expect the prosecution will argue that it was pursuant to a standard protocol followed in the prison.)

      Matt DeHart asylum decision
      https://mattdehart.com/2015/03/01/matt-dehart-asylum-decision/

      I don’t know of anyone who struggles so eagerly for additonal contemporaneous documents about Amerithrax than I do. I think the document should be uploaded and then this fellow might simply defend charges brought on the merits — and be thankful that the government didn’t bring claims relating to attempted (and incredibly reckless and stupid and amateurish) espionage.

      The FBI’s motivation seems related to his offer to the Russians, not some FBI file memo about Amerithrax.

      And as I’ve said, I doubt it is classified — and it should simply be released and uploaded without further hullabalo.

    • DXer said

      Very interesting wrinkles — for example, Mr. Dehart allowed the FBI to assume his online identity. I don’t know anything about Anonymous and the subject is way beyond the scope of this blog.

      https://mattdehart.com/2015/03/01/defense-motion-to-dismiss-indictment/

    • DXer said

      Below are a bunch of videos about the Matt Dehart. As I’ve said in other posts, it seems a simple matter of the prosecutors messing with a guy who offered (in a visit to the Russian embassy in Washington DC) to engage in espionage against the United States.

      The fact that he belatedly claims that there was a sexy Amerithrax document in the mix seems of little significance to the motivation in bringing the charge.

      Instead, Mr. Dehart should be hugely relieved they did not indict him for attempted espionage. The Amerithrax memo he mentions — which I seriously doubt is classified — should simply be uploaded by the person who has it in the UK. Matt, whatever happened to being opposed to secrets? And did you ever think to learn about and use the FOIA process?

      As for the charges against Matt, blogger Ed received nude photos from people (whose age he did not know) for years and even blogged about it. He proudly kept a set of black notebooks containing the images. He has them to this day. (He previously has posted that he would promptly delete any that were objectionable — as if that somehow avoided the crime just committed when received from a minor or when depicting a minor). It seems that the Dehart defense strategy of invoking these national security issues (to include even Amerithrax) is going to have an effect opposite than the one intended. He might have been better served by a public defender and gotten probation on the pending charge. He may even have had a meritorious defense on the merits of that charge — but it is beyond the scope of the blog.

      https://mattdehart.com/category/video/

  8. DXer said

    The head of the Amerithrax scientific effort in its early months, Randall Murch, in a May 16, 2015 article, writes:

    “The design, development, validation, establishment and exercising of capabilities should occur before they are needed. During a crisis, poor planning and preparation will likely result in poor performance, complications resulting in delays, bad outcomes or even overall failure.”

    • DXer said

      Dr. Murch, in his May 16, 2015 article, continues:

      “Much of this can be avoided by initially conducting a thorough and objective assessment of what capabilities exist and what is needed, and then laying out and acting on a plan to get the current state to the desired state in a rational, cost effective manner. Awareness training for and exercising by key legal and policy offices should be provided in advance to minimize impedances on operations and decision making.

      Key components are:

      Properly Staffed Teams, Coordinated Investigation, Information Access, Analysis and Sharing:

      Law enforcement and public health investigative teams require individuals that possess strong professional credentials and experience in their respective professions and disciplines, and experience in complex investigations, including joint investigations. These teams should have: established and tested investigative protocols; coordination and cross communication between the respective teams, respective lines of command, control and communication and protocols for engagement with key stakeholders; and, all necessary i on-demand information and knowledge resources

      Technical Forensic Capabilities:

      Forensic hazardous materials (hazmat) sampling and contaminated traditional evidence collection must occur in an effective, safe and secure manner. Evidence must be packaged, documented and transported in an appropriate manner to maintain the chain of custody and evidence integrity. Necessary equipment and logistics must be available and used to meet regulations for hazmat transport. Fully equipped and configured laboratories staffed by the appropriately educated and certified personnel should be available to conduct required analyses using validated methods under a comprehensive quality program. These experts render the accurate and defensible reports and opinions that answer or inform priority investigative, forensic, legal and policy questions.

      Legal Process and Decision Making:

      Laws must be in place to allow the prosecution and punishment of illegitimate acquisition, development, use and proliferation dangerous pathogens …

      Forensic experts must be trained to and communicate complex science in an understandable, relevant manner and ensure that decision makers understand the value, weight, attributes, limitations and uncertainties of the science and practice.

      Policy Process and Decision Making:

      Policy formulation and decision making is different than the legal process, though it may be influenced by law as well as politics. That said, the investigation, and particularly the supportive scientific activities conducted should be thorough, timely, objective, informative and defensible with the understanding that policy makers will consider and act on what is provided as they see fit. In keeping with good science and professional integrity, nevertheless, policy makers and politicians should be provided relevant, complete, accurate, reliable, testable, defensible information and conclusions from the technical experts to use in deliberations and decision making.”

  9. DXer said

    Victoria Sutton, in her 800 page 2014 treatise on Biosecurity Law and Policy: Biosecurity, Biosafety and Biodefense Law

    “In July 2008, the United States Department of Justice announced that the Amerithrax case was closed following the suicide of a suspect, Dr. Bruce Ivins, a career biodefense researcher at USAMRIID. The U.S. Federal District Court made available the evidence against Dr. Ivins through opening some of the court documents for public access, but questions still remain about whether the perpetrator was Dr. Ivins.” (p. 7)

    As a law professor and scientist, Professor Sutton writes academic books on the environment and emerging technologies and law — nanotechnology, biotechnology and bioterrorism. In academia she has won the Best Book Award at her University (Texas Tech University)and two book awards for each of her “pop law” books, “The Legal Kiss” and “Halloween Law”. She has also explored fiction, winning one award in romance writing from the prestigious Golden Acorn competition.

  10. DXer said

    While Ken Dillon speaks up for the mute swan known as Bruce Ivins, I’ve been busy with real mute swans. I am eagerly awaiting a response to a “FOIA” of all the NYS DEC officials using the word “swan.”

    After the NYS Senate voted 60-1 on April 22 to stop the DEC, I am optimistic that the Assembly will overwhelmingly pass the bill within the next week or so.
    (And I still plan on filing an Article 78 judicial challenge if Governor Cuomo vetos this pending, soon-to-be passed moratorium on the kill plan.)

    But you should never put all your swan eggs in one basket.

    There is an unexplained bottleneck in the Ways and Means Committee headed by someone from Manhattan whose motivation is not known to me. And so I knew it was time to take out the LEGOS and to do an end-run around the duck-hunting adults controlling the DEC.

    My design of an Eagle and Mute Swan Viewing Station won First Place in a design contest in the adult category this week at the local art museum. It was featured in the hard copy of the newspaper today. It appeared alongside the proposed design (in the real world) titled “Lake Lounge.” The gala reception is June 5 and will be displayed June 6th to August 9th. The exhibit depicts NYS DEC officers in a boat going out to shoot our swan Kate (of William and Kate). There are mini-figures with on shore have cameras, walkie-talkie, and binoculars.

    The DEC officers in a boat headed for Kate the mute swan have a gun, crossbrow and (today I added) a curved tool for breaking necks. I considered a battle axe but didn’t want (the mini-figure) to go overboard. I’m pleased that it worked out. After a trip to Rockefeller Center in NYC to buy the right bushes and flowers, I had to anxiously await a banana for the picnic table to be sent from Poland.

    The Mayor and I are tight — I’ll invite her over to play with my LEGOS. The DEC is going to feel embarrassed about spending $750,000 on a mute swan viewing station and then shooting our handful of swans — with a film at 11.

    It is called “S.O.S.: Save Our Swans”
    http://photos.syracuse.com/yourphotos/2015/04/sos_save_our_swans_the_bill_wa.html

  11. DXer said

    Former agent claims FBI concealing evidence in anthrax case
    An ex-director of the FBI’s anthrax investigation says the agency is hiding evidence that casts doubt on its conclusion that Army scientist Bruce Ivins sent the anthrax-filled letters that killed five people and sickened 17 others in 2001.

    http://www.foxnews.com/politics/2015/04/16/former-fbi-director-alleges-agency-concealing-evidence-in-anthrax-case/

    Man freed from prison after 9 years when FOIA requests reveal FBI hid documents
    By Xeni Jardin at 12:23 pm Fri, Jan 9, 2015
    http://boingboing.net/2015/01/09/man-freed-from-prison-after-9.html

    Judge Tells FBI To Stop Screwing Around And Search For Documents Requested By Man Seeking To Clear His Name
    https://www.techdirt.com/articles/20150418/14042030716/judge-tells-fbi-to-stop-screwing-around-search-documents-requested-man-seeking-to-clear-his-name.shtml

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