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

* NYT interview of former lead Amerithrax investigator Richard Lambert: “a staggering amount of exculpatory evidence” regarding Dr. Ivins remains secret

Posted by DXer on July 16, 2016

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“This case was hailed at the time as the most important case in the history of the F.B.I.,” Mr. Lambert said. “But it was difficult for me to get experienced investigators assigned to it.”

He said that the effort was understaffed and plagued by turnover, and that 12 of 20 agents assigned to the case had no prior investigative experience. Senior bureau microbiologists were not made available, and two Ph.D. microbiologists who were put on the case were then removed for an 18-month Arabic language program in Israel. Fear of leaks led top officials to order the extreme compartmentalization of information, with investigators often unable to compare notes and share findings with colleagues, he said.

In a lawsuit filed in federal court in Tennessee last Thursday, Mr. Lambert accused the bureau of trying “to railroad the prosecution of Ivins” and, after his suicide, creating “an elaborate perception management campaign” to bolster its claim that he was guilty.

***

Source: Former F.B.I. Agent Sues, Claiming Retaliation Over Misgivings in Anthrax Case
By SCOTT SHANE … APRIL 8, 2015
http://www.nytimes.com/2015/04/09/us/ex-fbi-agent-claims-retaliation-for-dissent-in-anthrax-inquiry.html?_r=0

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154 Responses to “* NYT interview of former lead Amerithrax investigator Richard Lambert: “a staggering amount of exculpatory evidence” regarding Dr. Ivins remains secret”

  1. DXer said

    “When it comes to protecting Americans from biological attacks — the U.S. government has no margin for error. Our security officials and the systems they use to alert the public of attacks must be reliable,” — Zack Roday, a spokesman for the House committee’s Republicans, this past Thursday.

  2. DXer said

    https://www.latimes.com/politics/la-na-pol-congress-bioweapons-detection-system-20190414-story.html

    The letter also noted shortcomings with BioWatch, which was installed in cities nationwide after the 2001 anthrax letter attacks, which killed five people, infected 17 others and caused closures of scores of government buildings and U.S. mail facilities.

  3. DXer said

    Case Name: DILLON v. U.S. DEPARTMENT OF JUSTICE
    Case Number: 1:17-cv-01716-RC
    Filer:
    Document Number: No document attached
    Docket Text:
    MINUTE ORDER: It is hereby ORDERED that the parties shall file renewed
    motions for summary judgment on or before May 6, 2019. SO ORDERED. Signed
    by Judge Rudolph Contreras on April 4, 2019. (lcrc3)

  4. DXer said

    Center for Biological Diversity v. U.S. Environmental Protection Agency, (D.D.C. March 27, 2019 ) (Chief Judge Beryl A. Howell)
    https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2016cv0175-47

    FOIA authorizes federal courts to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether non-disclosure was permissible.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). When the sufficiency of “the release of information under the FOIA” is challenged, “the agency has the burden of showing that requested information comes within a FOIA exemption.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999); see also U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 171 (1993) (noting that “[t]he Government bears the burden of establishing that the exemption applies”). This burden does not shift even when the requester files a cross-motion for summary judgment because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt from disclosure,’” while the “burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.’” Pub. Citizen Health Research Grp., 185 F.3d at 904-05 (quoting Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)) (alterations in original).

    ***

    EPA counters that it has conducted an adequate search consistent with the Court’s prior order and has disclosed all responsive records, including reasonably segregable portions of privileged records. Def.’s Mem. Supp. Renewed Mot. Summ. J. (“Def.’s 2d Mem.”) at 2, ECF No. 37. The adequacy of EPA’s search is considered first before turning to the sufficiency of EPA’s justifications for withholding documents and EPA’s efforts to ensure that segregable portions of any of the withheld documents are released.

    Comment:

    The reason that FBI could not find the variety of types documents from September and October 2001 (computer records, credit card receipts etc) is because it did not look in the 1A Attachments attached to the 302 statements of the interviews of Bruce Ivins. Now that the FBI has learned where it misplaced the documents — that they were where, in its system, you would expect them to be — the FBI should go get them and produce them to FOIA Requestor Dillon, rather than withholding them for another 10 years.

    In other posts, as to each type of record requested by Dillon, I have identified the specific 1A envelope where they can be found.

    • DXer said

      The non-exempt segregable factual information should be disclosed. That’s what FOIA Requestor Kenneth Dillon is requesting: for example, the factual information (such as bearing on Ivins activities and whereabouts on a particular Saturday morning when he was at the fish market or weekend afternoon when he was at a housewarming party. The date and time he bought the gift certificate at Home Depot etc. Whatever our predispositions as to Amerithrax “whodunnit” or politics generally, I think we’ve all had enough of the opinions of particular FBI officials. It’s the segregable factual information — the evidence — that is being sought. There can be no rule of law without transparency. With it increasingly likely that the President’s son will be indicted by the SDNY and/or the President will resign, it is imperative that we shore up the public perception of the rule of law. Amerithrax, so far, stands for the proposition that CYA dominates within the beltway.

      Center for Biological Diversity v. U.S. Environmental Protection Agency, (D.D.C. March 27, 2019 ) (Chief Judge Beryl A. Howell)
      https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2016cv0175-47

      C. SEGREGABILITY FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). Producing segregable information is an essential ingredient for agencies’ FOIA compliance, and “[b]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.” Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007)). For those findings, “[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Id. at 1117.

      Consistent with this well-settled law, EPA was previously directed, with respect to any withheld documents, to “adequately explain why further nonexempt material cannot be segregated from any exempt material,” Ctr. for Biological Diversity, 279 F. Supp. 3d at 153, and to do so with “a particularized explanation of non-segregability for each document,” id. at 152. To this end, EPA has averred that “EPA staff [] conducted a review of each responsive record for segregability of non-exempt material,” Fourth EPA PIRIB Decl. ¶ 12, and “performed redactions where non-exempt material could be reasonably segregated and released non-exempt portions,” id. Moreover, EPA previously averred that it “conducted a line-by-line review of each record responsive to CBD’s two FOIA Requests for segregability of non-exempt material,” First EPA PIRIB Decl. ¶ 38, and “released all reasonably segregable, non-exempt information to CBD,” id. Corroborating this description of the steps EPA took to segregate and release non-exempt information is the fact that of the 80 disputed records, half were released in redacted form. See Fifth Vaughn Index (entries 2, 4, 5, 8, 14, 16, 18, 20, 23, 25, 29, 30, 33, 37, 40, 45, 47, 48, 49, 51, 53, 55, 56, 57, 60, 61, 62, 68, 74, 81, 82, 83, 91, 94, 95, 106, 120, 122, 129, 131). Of the disputed emails, all but two have been released with redactions. Thus, in light of EPA’s declarations, Vaughn index, and demonstrated good-faith effort to release redacted emails, the Court concludes that EPA has satisfied the segregability requirement with respect to the withheld emails. Likewise, with respect to the draft Addenda and “draft response to comments” document, EPA’s declarations state that any potentially non-exempt material is “inextricably intertwined with privileged information,” First EPA EFED Decl. ¶ 21, and “not further segregable in any reasonable or meaningful way in light of the length and complexity of the documents,” id.; see also Fifth EPA PIRIB Decl. ¶ 15 (“Any language used [in] the draft documents that remained in the final versions are interspersed throughout the documents, often with extensive edits, making them inextricably intertwined with privileged information and not further segregable considering the length and scope of these documents.”). Therefore, EPA’s declarations and Vaughn index are sufficient to establish non-segregability of the draft Addenda and “draft response to comments” document. By contrast, with respect to the PowerPoint presentations, the Court heeded the D.C. Circuit’s guidance that “it [is] generally preferable for courts to make at least a preliminary assessment of the feasibility of segregating nonexempt material.” Nat’l Ass’n of Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for U.S. Attorneys, 844 F.3d 246, 257 (D.C. Cir. 2016). In this regard, review of the descriptions of these presentations identify sections of the documents as “provid[ing] background, context and issues faced by staff during the early development of the” Addenda. See Fifth Vaughn Index at 15, 60, 64, 65, 73, 75, 87, 89, 90, 96, 122. These descriptions suggested that these fairly lengthy presentations contain “‘logically divisible sections,’” that may be “amendable to segregation and disclosure.” Nat’l Ass’n of Criminal Def. Lawyers, 844 F.3d at 257 (quoting Mead Data, 566 F.2d at 261 n.54). Upon in camera review, the Court determined that the introductory slides of the PowerPoint presentations generally reflect non-deliberative, factual information that should be disclosed. See Heffernan v. Azar, 317 F. Supp. 3d 94, 125 (D.D.C. 2018) (“[F]actual information which does not bear on the policy formulation is not subject to the deliberative-process privilege.”). Therefore, EPA is directed to segregate and release the following pages from the documents listed in its Fifth Vaughn Index: entry no. 12, pages 1 through 8, and page 18; entry no. 58, pages 1 through 6; entry no. 59, pages 1 through 6; entry no. 66, pages 1 through 5; entry no. 67, pages 1 through 4; entry no. 84, pages 1 through 5; entry no. 89, pages 1 through 5; entry no. 107, page 1, and pages 3 through 6; entry no. 109, page 1, and pages 3 through 6; and entry no. 123, pages 1 through 6.

      • DXer said

        After the requested ICMS portions were submitted for in camera review, I understand that the District Court Judge, in an order today, has asked for briefing on summary judgment. SEGREGABILITY FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). Producing segregable information is an essential ingredient for agencies’ FOIA compliance, and “[b]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.” Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007)).

        Consistent with this well-settled law, EPA was previously directed, with respect to any withheld documents, to “adequately explain why further nonexempt material cannot be segregated from any exempt material,” Ctr. for Biological Diversity, 279 F. Supp. 3d at 153, and to do so with “a particularized explanation of non-segregability for each document,” id. at 152. *** Upon in camera review, the Court determined that the introductory slides of the PowerPoint presentations generally reflect non-deliberative, factual information that should be disclosed. See Heffernan v. Azar, 317 F. Supp. 3d 94, 125 (D.D.C. 2018) (“[F]actual information which does not bear on the policy formulation is not subject to the deliberative-process privilege.”). Therefore, EPA is directed to segregate and release the following pages from the documents listed in its Fifth Vaughn Index: entry no. 12, pages 1 through 8, and page 18; entry no. 58, pages 1 through 6; entry no. 59, pages 1 through 6; entry no. 66, pages 1 through 5; entry no. 67, pages 1 through 4; entry no. 84, pages 1 through 5; entry no. 89, pages 1 through 5; entry no. 107, page 1, and pages 3 through 6; entry no. 109, page 1, and pages 3 through 6; and entry no. 123, pages 1 through 6.

        Reply

  5. DXer said

    At 279A-WF-222936-BEI,(March 1, 2007 interview of someone other than Ivins) it appears that what is included in the envelope 1A are time sheets from 10/18/2001 that purport to show Ivins entering the B3 when he actually was at the Pentagon at a meeting.

    Was someone else using his key card?

    Dillon has requested the computer records as they are central to the FBI’s hotly disputed “Ivins Theory.” The former lead Amerithrax investigator has publicly and in a court filing said that the FBI is withholding a staggering amount of evidence that is exculpatory of Bruce Ivins.

    The FBI’s Dave Hardy should produce the contents of envelope 1A to that 302 containing those requested electronic records — which purported to show Ivins’ presence but in fact apparently did not.

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