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 Lew Weinstein on July 16, 2016

Screen shot 2015-04-09 at 8.58.30 AM

“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


77 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

    Is this going to be hacked? (See Marc Goodman’s, FUTURE CRIMES, 2015). Hasn’t it already been?

    Is this the Post Office going to be sued for not also requiring a signature obtained by the mail carrier from the customer?

    Helpful or harmful: Is USPS’ Informed Delivery feature a new target for security threats?

    • CJ Lovelace
    • Nov 25, 2017 Updated 11 hrs ago

    This screenshot shows a digital photograph of a piece of mail. Users who sign up for the U.S. Postal Service’s free notification service called “Informed Delivery” receive daily email updates showing up to 10 pieces of mail, like this one, en route to their mailbox that day.

    By C.J. Lovelace

    The holiday season means a significant increase in mail as millions upon millions of letters and packages move through the U.S. Postal Service system en route to their destinations.

    For years, the postal service has taken digital photographs of mail as it moves through sorting facilities, helping make the process operate smoothly.

    But with the independent federal agency rolling out a new service nationally earlier this year that uses those photographs to let the public get a peek at what could be waiting in their mailboxes, some security experts have questioned the program’s safety and the safeguards in place to protect user privacy.

    The new free service, called “Informed Delivery,” provides daily email updates with scanned images of a user’s mail expected to arrive that day.

    “With Informed Delivery, you can see your mail before it’s delivered to your door,” said Freda Sauter, a USPS spokeswoman with the Maryland field office. “This adds a layer of transparency to the mail delivery process.”

    The postal service has reported favorable reviews among the nearly 7 million people who have signed up so far, but does it give hackers another way to dig up and potentially use your personal information?

    “The short and easy is, yeah,” said Diana Bartlett, an assistant professor in cybersecurity at Hagerstown Community College.

    After researching the topic, Bartlett said her biggest concern with Informed Delivery is how USPS authenticates users when they sign up for the service.

    To sign up, users create a username and password, then enter their home address, email address and other personal information.

    The service uses a “knowledge-based authentication” system that asks several multiple choice questions, such as a town in which a user previously lived or a school they attended.

    Bartlett said most of the answers to the personal questions are things that hackers could easily find through social media or other websites.

    “Basically, you can find those answers,” she said, adding that user feedback has shown that the system is difficult to unsubscribe from once enrolled, also a questionable issue from a security standpoint.

    “(Hackers) basically have yet another way of getting your information,” Bartlett said.

    Once in the system, a would-be hacker could gather further personal information about a user by reviewing their incoming mail, such as where the person banks or shops, as well as spot potential targets for theft from unsecured mailboxes, she said.

    Asked about security concerns, Sauter said the postal service takes privacy “very seriously” and protects the personal information of its customers.

    “The scanned images are of the external markings, showing only the exterior, address side of letter-sized mail,” she said. “Informed Delivery is in full compliance with federal privacy laws. The mail is protected by the U.S. Postal Inspection Service, whose sole mandate is to safeguard the entire Postal Service system, including the employees who deliver and process the mail and millions of customers who use it.”

    The service, which the USPS has called “an innovative experience in today’s highly digital environment,” was first rolled out in Northern Virginia in 2014 then expanded to New York City in 2015. It was launched nationally in April.

    Registered users receive an email with up to 10 black-and-white images of the outside of their mail each morning. Images can be can be viewed as email notifications or accessed through the USPS online dashboard.

    The postal service has been scanning all mail as standard protocol since the deadly anthrax attacks in 2001, so the digital service does not cost anything extra for customers.

    The system allows only one user account per mailing address, which makes enrolling in the service the easiest way to safeguard yourself from possible nefarious activities regarding your mail, Bartlett said.

    “I think it’s something that personally, even looking at the research … I wouldn’t say, ‘Oh, well OK, this is really bad,'” she said. “But this raises a lot of questions.”

  2. DXer said

    Remind me: why did the public make fun of Tom Ridge’s suggestion of keeping some duct tape handy? Seems a fine idea. When the stuff hits the fan — whether a natural or man-made disaster — it seems we all need to expect to be a little more self-reliant than usual. – Duct tape sales rise amid terror fears – Feb. 11, 2003

    Feb 11, 2003 – Source: Homeland Security Secretary Tom Ridge and U.S. Fire Administrator … for terror attacks, emptying hardware store shelves of duct tape. – Ridge launches terror preparedness campaign – Feb. 20 …

    Homeland Security Clarifies Objective Of Chemical Testing Near Newkirk
    Posted: Nov 17, 2017 7:27 PM EST Updated: Nov 17, 2017 7:29 PM EST

    This was the time they were conducting a manhunt for anthrax weapons suspect Adnan El-Shukrijumah.

    In February 2003, the FBI announced that “Jafar the Pilot” (aka Adnan El-Shukrijumah) had entered the country sometime after September 1, 2001

    By Tiffany Liou, News 9

    He said their goal is to protect the country and its citizens from terrorist attacks. In this experiment, they will create an aerosol spray made of three different materials. This is preparation for a biological attack.

    The three materials include titanium dioxide, urea mixed with fluorescent brightener, and bacillus thuringiensis kurstaki.

    “They’re non-toxic and non-hazardous,” said Hough. He described all these materials as being found in everyday commercial items.

    According to Hough, the reason they are being used for testing is because the three particles work well with the detection systems that Homeland Security will be using. It will allow scientists to see how the aerosols penetrate into buildings.

  3. DXer said

    I’m rooting for the FBI to get a break in Isabella Gardner — and then maybe even clarity in Amerithrax that will put the FBI’s approach and decisions in a good light. History needs its heroes.

    Gardner Heist Gangster Robert Gentile Decries “Cruel and Unusual Punishment”

    The weapons offenses against Gentile — among them, an accusation that Gentile sold a gun and ammunition to a triple murderer — are the most recent in a succession of charges brought by FBI agents since he came to the attention of the investigative team searching for the art.

    Gentile has been judged to be a danger to the public and has been held without bail since 2010, either after conviction or while awaiting disposition of charges.


    McGuigan asked in his motion Friday for the judge to allow Gentile post bail and order him confined to his home in Manchester with an electronic monitoring device.


    It’s not unreasonable to suppose that Bobby Gentile had one or more stored in the tupperware container buried under his garage. His son said he had never seen his father so upset as when he discovered that water from a flood had gotten into the container.

    I had forgotten that Gentile has been held without bail on the grounds of dangerousness. (I worked on the decision of the constitutionality of the Bail Reform Act of 1984 when the issue was first heard before the Second Circuit Court of Appeals.) It seems that is the issue that is debatable — not whether being taken from Bridgeport to Brooklyn is cruel and unusual.

    Notwithstanding his foolish attempt to sell a gun (to an informant planted by the FBI) when he should have known he was under scrutiny by the FBI, it seems that perhaps he is not so dangerous that bail cannot be named. (I suspect some Hollywood producer or gangland lawyer might step up and make it just to gain rights to the story about how he left a $250 million painting out in the rain and mud to be ruined).

    But counsel’s mental competency argument was not persuasive. Maybe bail should be granted and then he should be tried on the pending charges. On the other hand, maybe if it is denied, he’ll be motivated to move past the bogus mental competency argument.

    If granted bail, and if experience is any guide, maybe he’ll let slip what happened to the paintings — and forget that his house plant will be bugged. For example, maybe he’ll chew his son out for blabbing about how upset he was after the flooding.

    As one Putlizer Prize-winning reporter left a lengthy interview, Gentile asked to go off the record and have the recorder turned off. As to return of the paintings, he whispered something like “What’s in it for me?”

    Now I may be misremembering (or speaking out of school), but I never cared much about the paintings anyway — and cretinous nitwit thugs like this are most easily forgotten in jail. He should at least tell his story so that he is not altogether forgotten by history.

    I assume that David Turner’s cellmates have been contacted — maybe even recruited — directly or indirectly, by the FBI. But David is too smart to fall for the FBI’s undercover operations.

    Bobby Gentile is probably, for all his bluster, scared of David, who is a very lethal kind of guy. Same with everyone else with knowledge.

    • DXer said

      Man linked to Gardner art heist seeks prison release in weapons case

      1:08 PM
      HARTFORD, Conn. (AP) — A reputed Connecticut mobster who authorities say is the last surviving person of interest in the largest art heist in U.S. history wants to await sentencing in an unrelated weapons case at his home.

      The motion filed Friday by Robert Gentile’s attorney in federal court called Gentile’s multiple transfers to prisons “cruel and unusual punishment.”

      The 81-year-old Gentile was to be sentenced in September. But a judge postponed it after Gentile’s lawyer raised concerns about his client’s mental health, saying he couldn’t remember pleading guilty.

      Prosecutors have said they believe Gentile has information about the still-unsolved 1990 heist at Isabella Stewart Gardner Museum in Boston. Thieves stole an estimated $500 million worth of artwork.

      The U.S. attorney’s office in Connecticut declined to comment Saturday on the motion.


      Ah, I remember now. (I appear to have greater memory problems than Mr. Gentile claims to have.) He has already been convicted on the latest gun charge and is just awaiting sentencing. His counsel’s contrived motion about his mental competency is what caused the delay. If he was competent to help with this motion on bail, then he is competent to hear his sentence.

      The court should not be put in the position of being manipulated like this. I have also previously pointed out that I don’t approve of defense counsel’s father having a one-third contingency on return of the paintings. In my opinion, that creates an interest in the subject matter — which creates a possible conflict of interest for criminal defense counsel. But the reporters who want to curry defense counsel as a source are too timid to point that out. It would burn McGuigan as their source. For starters, it creates the perception that counsel believes there is a monetary value associated with the suggestion that his client knows about the paintings. If Gentile had been represented by appointed counsel, he could have more credibly been able to say “I don’t know anything about the paintings — I was just attempting a con when I said I could sell them.” The various players all have an eye on Hollywood over some moldy canvases. This man’s tragic life is just one of many similar back stories. Donati, Houghton, and many more.

      But forget Isabella Gardner heist altogether. He is not charged with that art heist. The judge should just sentence him straight up on the gun sale charge etc. Who knows— maybe he’ll get time served.

      The taped conversations between him and his wife, in my opinion, demonstrate that he is fully capable of assisting counsel in connection with his sentencing. So let’s get on with it and cut out the nonsense.

  4. DXer said

    R. Scott Decker, former FBI Agent and now book author, was not privy to what Richard Lambert was. He was in a highly compartmentalized squad. Let’s look at the big picture.

    John Ezzell, who made the dried powder out of Flask 1029 while in the Federal Hazardous Materials Response Unit with former FBI Agent and now book author, R. Scott Decker, is on the far left.

    Lew Weinstein, our blog host, is next.

    Ken Dillon, former CIA, with his back turned, is sitting in front of Lew.

    Then I am to the right of Lew, asking a question of John Ezzell (who I like and admire).

    Then there is a skeptical Meryl Nass, who has seen James Bannan in his swim trunks.

    Then Bruce Ivins’ attorney whose name I am blanking on.

    And then there is the dispassionate intelligence analyst James Vandevelde on the far right who once taught an intelligence analysis seminar at Yale.

    In his presentation, James said that Al Qaeda’s bio program was much more closely held than its chem program. He worked for CIA’s CTC, I infer, and his prepared remarks were vetted.

    By ginning some fake science involving itself with CT’s use of a hypnotist in the 19-year-old Jovin murder investigation, the FBI effectively (whether it is intended or not) is attempting to gain leverage over my key witness to history.

    James knows lots that never crossed R. Scott Decker’s desk. Things were compartmentalized and closely held in Amerithrax, just like in Ayman Zawahiri’s anthrax program.

    Only Richard Lambert saw everything — and he says the FBI is withholding a staggering amount of evidence that is exculpatory of Bruce Ivins. He blames the FBI Laboratory and politics for Amerithrax’s missteps. And now Scott Decker is stepping out of the shadows to claim responsibility for the decisions about what forensic methods were used.

    Some of that is currently being withheld in the form of a memo authored by Richard Lambert that is now being vetted by the CIA.

    The FBI should up its forensics game.

    I can’t even identify the 10 people that passed my public scrabble game last night — and I certainly couldn’t identify them 19 years down the road after being hypnotized.

    • DXer said

      A true crime buff shared with me years of research on the Suzanne Jovin case, involving the 1998 murder of a Yale coed. I now see how many alternative possible suspects the police have had reason to consider over the years. Now that I know what fueled the Vandevelde Theory for years, I see that it was wholly unreliable evidence and there was never any “there there.” Indeed, there are lots of theories just as good as the alternative Kohn Theory. Hopefully the authorities will catch a break on the hardcore forensics and be able to recover from past missteps. Like the Amerithrax case, the Jovin case was/is difficult and we shouldn’t confuse the conclusion that it is unsolved with the assumption that we could have done any better in real-time.

      The former investigator now overseeing the review for the State Police should overcome any past fixations and open up his mind, following the science — relying on validated and appropriately applied scientific techniques. He should leave the hypnotist and BS “repressed memories” at home.

  5. DXer said

    In the choice of investigative method, consider Connecticut State Police’s apparent determination to either indict James Vandevelde or permanently shelve the matter by the end of this year — even though they have no forensic evidence against him (and I understand that he fully cooperated with the investigation). Disclaimer: I don’t recall having any contact with JV since 2010.
    The last contact I remember (though I would have to check the date) is that he once sent a news article years ago reporting that Yazid Sufaat, upon his release from prison, promptly went off to Pakistan. That’s when I posted the milk carton graphic (done by an undercover) asking where Yazid Sufaat was.

    The plan, with FBI consulting, is to bring in a witness to shape and explore witness recollection from 19 years ago.

    Why is the FBI participating in such an effort? Is it to discredit someone who, in connection with analysis in Amerithrax, wasn’t relying on anthrax smelling bloodhounds?

    Or is it just continuing a past legacy of unrelying on unreliable and unvalidated forensic techniques?

    Psychol Sci. 2014 Feb;25(2):519-30. doi: 10.1177/0956797613510718. Epub 2013 Dec 13.

    Are the “memory wars” over? A scientist-practitioner gap in beliefs about repressed memory.

    Patihis L1, Ho LY, Tingen IW, Lilienfeld SO, Loftus EF.
    Author information

    Erratum in

    • Erratum: are the “memory wars” over? A scientist-practitioner gap in beliefs about repressed memory. [Psychol Sci. 2014]

    The “memory wars” of the 1990s refers to the controversy between some clinicians and memory scientists about the reliability of repressed memories. To investigate whether such disagreement persists, we compared various groups’ beliefs about memory and compared their current beliefs with beliefs expressed in past studies. In Study 1, we found high rates of belief in repressed memory among undergraduates. We also found that greater critical-thinking ability was associated with more skepticism about repressed memories. In Study 2, we found less belief in repressed memory among mainstream clinicians today compared with the 1990s. Groups that contained research-oriented psychologists and memory experts expressed more skepticism about the validity of repressed memories relative to other groups. Thus, a substantial gap between the memory beliefs of clinical-psychology researchers and those of practitioners persists today. These results hold implications for the potential resolution of the science-practice gap and for the dissemination of memory research in the training of mental-health professionals.

  6. DXer said

    Mobster suspected in Isabella Gardner Museum case may not be mentally competent

    But Assistant US Attorney John H Durham suggested Gentile was faking it and revealed that authorities had recorded a telephone call he made to his wife from jail last month in which he said he needed to talk to his lawyer “because he knows where one of the paintings is.”


    I personally think that Elene [Guarente’s wife], Jeanine [daughter] and Early Berghman [contemporary] tried to return the paintings in late 2004 and/or early 2005 with the help of lawyer Bernie G., who had represented Earle’s son for biting off an officer’s ear. Jeanine was recruited by Bernie who had been involved by a different Berghman son from Providence.

    Earle last was known to be in the Utica, NY homeless shelter or in Mohawk, NY. Jeanine is the one who I think knows (or having been her father’s confidante has info sufficient to lead to) where the paintings are. In any event, this old hapless fellow Gentile should have had better sense and appreciated that he was under the FBI’s microscope. He should have been on his very best behavior. The wiretapped claim by him in a phone conversation with his wife that he needed to speak to his lawyer “because he knows where one of the paintings is” is certainly fascinating. These reporters have great jobs. I do, think, though, that it is unsettling that his lawyer’s father has a one-third contingency on any painting recovered. That creates, in my opinion, a conflict of interest because the lawyer would have a financial incentive (through the family) to not succeed in convincing the FBI that Gentile didn’t know anything. It would create an incentive to have the FBI succeed in gaining leverage over Gentile.

    But this does seem possibly to represent a possible breakthrough. Good luck to the museum and FBI.

    In Madison, Maine, I’ve always wanted to find the white house that is up the hill past the quonset hut past the house with all the garden gnomes up on the hill at the curve. To get to the white house, you would then out on the road (on which you take a right). [But I was unsuccessful in trying to find it and was very short on time during my brief visit.] I’m told that there was a coke bust that was hushed up in 1992 or so.

    Also in Madison, ME, I’ve pointed to the concrete slab at the abandoned Guarente homestead. I have never heard that the FBI used ground penetrating radar or dug.

    I do think the FBI could have been more active in its use of claw diggers — and not just sledge hammers. To include Gentile’s old used car lot (he was also in the concrete laying biz in 1992) in South Windsor, CT. The site is on the main drag. The site definitely evidence digging and the eagle was once seen on the premises, as I recall. The small building there was razed the same time Elene discussed Gentile before the grand jury (according to the receptionist at the construction company across the interchange).

  7. DXer said

    Fallen forensics: Judges routinely allow disavowed science, June 20, 2017

  8. DXer said

    Sessions’ New Forensic Science Adviser Has a History of Opposing Pro-Science Reforms

    Many types of forensic evidence have been discredited, but the attorney general has resisted higher standards.

    Pema LevyAug. 10, 2017 8:38 AM

    Forensic science is an embattled field. As DNA testing has overturned hundreds of convictions based on flawed forensic evidence, scientists and lawyers are increasingly skeptical that culprits can be accurately identified by matching fingerprints, hair samples, bite marks, bullets, and tread marks to suspects. In a landmark 2009 report, the National Academy of Sciences found that nuclear DNA testing was the only reliable forensic discipline; those based on expert analysis, as opposed to laboratory testing, weren’t really science at all. The report found that crime labs nationwide lacked uniform standards, practices, accreditation, and oversight. In 2015, the FBI found that its own microscopic hair analysts made errors at least 90 percent of the time in testimony and lab reports.

    But Attorney General Jeff Sessions has resisted efforts to rein in forensic science and hold it to higher standards. And this week, he appointed a senior adviser on forensics who has a history of opposing reforms that would bring more accountability and scientific rigor to forensic crime labs and expert testimony.

    The appointment of Ted Hunt, a Missouri prosecutor, came amid a broader announcement of Justice Department initiatives to improve forensic science. As the new senior forensic adviser, Hunt will oversee a “forensic science working group” to create guidelines for forensic examiners to follow in court testimony.

  9. DXer said

    Column: Sixteen years after 9/11, the American public deserves answers, not secrecy

    • By Bob Graham and Dan Christensen, special to the Tampa Bay Times
    Monday, July 10, 2017 3:34pm

    Sixteen years is a long time to expect the American public to wait to know who was behind 9/11, the most significant act of terror in modern U.S. history. Unfortunately, the wait continues because of the resistance of federal agencies to openness, the over-classification of information and the weakness of the Freedom of Information Act.

    Vast numbers of investigative and intelligence documents related to 9/11 remain classified. The FBI alone has acknowledged it has tens of thousands of pages of 9/11 reports that it refuses to make public. To make matters worse, agencies withholding information tell what are essentially lies to make their actions seem as acceptable as possible.

    Bob Graham was chairman of the Senate Intelligence Committee and co-chairman of Congress’s Joint Inquiry into the terrorist attacks. He served as Florida’s governor from 1979-87. Dan Christensen is an award-winning investigative reporter and the founder and editor of Florida Bulldog, a nonprofit news organization. They wrote this exclusively for the Tampa Bay Times.

  10. DXer said

    Tech & Science
    AI Vs. Bioterrorism: Artificial Intelligence Trained to Detect Anthrax by Scientists

    By Jack Moore On 8/8/17 at 11:08 AM

    South Korean scientists have been able to train artificial intelligence to detect anthrax at fast speeds, potentially dealing a blow to bioterrorism.

    Hidden in letters, the biological agent killed five Americans and infected 17 more in the year following the 9/11 attacks, and the threat of a biological attack remains a top concern of Western security services as radicals such as the Islamic State militant group (ISIS) seek new ways to attack the West.

    Researchers from the Korea Advanced Institute of Science and Technology have now created an algorithm that is able to study bacterial spores and quickly identify the biological agent, according to a paper published last week for the Science Advances journal.

  11. DXer said

    A federal whistleblower complained that two key microbiologists were sent to Israel for a long period, making them unavailable to work on Amerithrax, and prejudicing the investigation.

    Who sent them?

    In 2000, the year before the anthrax mailings, Randall Murch, the fellow who headed the Amerithrax investigation (the polygraphs, the anthrax smelling bloodhounds etc) worked for the Defense Threat Reduction Agency as head of the Advanced Systems and Concepts Office.

    (He worked for DTRA between two stints at the FBI’s Laboratory.)

    Stupid question: Did John Ezzell make the dried powder out of Ivins’ Ames strain for this scientist who headed the science investigation for Amerithrax?

    Dartmouth Institute hosts public discussion on threat of bioterrorism July 7

    Posted 06/30/00

    “Ken Alibek, Chief Scientist at Hadron Inc. and President of its Advanced Biosystems Inc. subsidiary, will head a panel of visiting experts at Dartmouth College examining the threat of biological terrorism in the United States on Friday July 7. The discussion is free and open to the public and begins at 7:30 p.m. in Room 100 of the Thayer School of Engineering.

    Alibek, author of the new book Biohazard and former Deputy Director of the Soviet Union’s biological warfare program, will open the discussion with an overview titled “Is the American Public Safe From Bio-Terrorism?” His talk will be followed by a discussion with a panel of experts including George Baer, Chairman of Strategy and Planning at the U.S. Naval War College; David Franz, Vice President of the Chemical and Biological Defense Division of the Southern Research Institute; Milton Leitenberg, Senior Fellow, Center for International and Security Studies in the School of Public Affairs, University of Maryland; Randall Murch, Director of the Advanced Systems and Concepts Office, Defense Threat Reduction Agency, Department of Defense; and Raymond Zilinskas, Senior Scientist at the Center for Nonproliferation Studies, Monterey Institute of International Studies.

    The public session is part of a three-day conference and workshop sponsored by Dartmouth’s Institute for Security Technology Studies (ISTS) where experts from around the country will assess the threat posed by bioterrorism. Attendance at the rest of the workshop is by invitation only.”

    One of those robots taking over the world — and sending spam — mistakenly asked me to join Dr. Murch on his Linked-In Network yesterday. I took the occasion to confirm that Dr. Murch was unwilling to address this question of conflict of interest.

    What does David Franz, who headed Southern Research Institute at Frederick, MD, the contractor for Hadron who did the B3 work with the Ames strain, say about his and Alibek’s association with Randy Murch, the fellow who came to head the FBI’s science investigation?

    What does Ken Alibek and Charles Bailey (then the top DTRA biothreat assessment person) — the pair who shared a suite with convicted seditionist, Ali Al-Timimi — say?

    Gotta love those robots.

    I recall Charles Bailey in 2001 saying that he wasn’t going to talk about the detection of silica because he didn’t want to give terrorists any ideas. Oops. Too late.

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

  12. DXer said

    World anger at suspected Syria gas attack
    4:17am EDT – 01:47
    (▶ View Transcript

    Assad must pay a price over gas attack that killed dozens in Syria, says Boris Johnson
    • NIcholas Cecil
    • 4 hours ago


    Russia and Syria should provide flight logs and allow for immediate access to bases to permit investigation of the facts — so as to gather evidence relating to the conflicting claims.
    (The same access should be allowed at the sites bombed).

    It is not good to leave an investigation unsolved.

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

    • DXer said

      In a NYT interview of former lead Amerithrax investigator Richard Lambert, he explained that “a staggering amount of exculpatory evidence” regarding Dr. Ivins remains secret.

      Even though no FOIA exemption applies, it’s my understanding that the FBI is not going to provide Dr. Ivins’ Notebook 4282 showing the notes made on the dates of mailing (and the week prior to that Fall 2001 mailing).

      Further, the FBI has refused to expedite the request, deeming the issue not of public interest. (The request was made many, many months ago).

      People making the FOIA decisions and setting priorities should take to heart that resolution of such conflicting WMD attribution claims — and the claim made by the former lead Amerithrax investigator — are of keen public interest.

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

  13. DXer said

    Immigration hardliners Jeff Sessions and Kris Kobach are both being considered for Attorney General. Ted Cruz may be also.

    I don’t know the view of either of the three on whether Amerithrax should be reassessed.

    But I suspect that both would favor enforcement of and compliance with FOIA on the subject.

    • DXer said

      Florida State Attorney General Pam Bondi has also been floated in headlines as a possible pick for Attorney General.

      Will Trump ask FBI Director Comey to resign? I doubt it. But if he did, who would be his resplacement? Kallstrom?

  14. DXer said

    Richard L. Lambert, the former lead Amerithrax investigator, has filed an amended Complaint on October 18, 2016 relating to the fingering and railroading of Bruce Ivins in face of daunting undisclosed exculpatory evidence. Shame on FBI Director Comey’s continuing game of hide-the-ball.

    • DXer said

      Page 27 of Richard L. Lambert’s amended Complaint filed October 18, 2016 states:

      “This 60 Minutes segment was critical of FBI executive management’s handling of the AMERITHRAX investigation, resulting in the agency’s embarrassment and the introduction of legislative bills calling for the establishment of congressional inquiries and special commissions to examine these issues – a level of scrutiny the FBI’s Ivins attribution could not withstand.

    • DXer said

      Today’s news:

      Ex-prosecutor: Cayuga County DA secretly withheld key evidence in 15 cases


      The difference between the case described at the link above and Amerithrax is that it is no secret that the FBI is withholding exculpatory evidence in Amerithrax. It is no secret that selective presented material in support of an Ivins Theory was spun because some investigators and prosecutors wanted to further their careers.

  15. DXer said

    I was researching Thomas Dewey’s papers from his days as a prosecutor yesterday. He went to Yale Law School like Clinton and was a hard worker. It seems that if the FBI ever produces the documents on Amerithrax that exist under FOIA, she would be far better to process the info than Mr. Trump. The former lead investigator Amerithrax, Richard L. Lambert, has urged that the FBI is withholding a staggering amount of information that is exculpatory of Bruce Ivins. And so it would take a hard worker who believes in preparation to process the information.

    Newspaper editorial boards around the country recognize her superior qualification — not a single major newspaper has endorsed Mr. Trump.

    The New York Times: “Our endorsement is rooted in respect for her intellect, experience, toughness and courage over a career of almost continuous public service, often as the first or only woman in the arena.”

    Los Angeles Times: “Perhaps her greatest strength is her pragmatism — her ability to build consensus and solve problems. As president, she would be flexible enough and experienced enough to cut across party lines and work productively with her political opponents.”

    The Baltimore Sun: “One candidate stands in the broad tradition of American leadership that has made this the greatest, most powerful and most prosperous nation in history. The other would have us trade that legacy for a cult of personality. The choice is clear.”

    Houston Chronicle: “These are unsettling times that require a steady hand: That’s Hillary Clinton.”

    New York Daily News: “Heaven help America were, unthinkably, Clinton to fail. She is all that stands between the United States of America and never-before-seen proof that the Founding Fathers weren’t all that they’ve been cracked up to be.”

    San Diego Union-Tribune: “This paper has not endorsed a Democrat for president in its 148-year history. But we endorse Clinton. She’s the safe choice for the US and for the world, for Democrats and Republicans alike.”

    Corpus Christi Caller-Times: “She is not, as has been sold, a mere lesser of two evils. Her experience and intellect would make her a standout in any group of candidates.”

    The Dallas Morning News: “We don’t come to this decision easily. This newspaper has not recommended a Democrat for the nation’s highest office since before World War II — if you’re counting, that’s more than 75 years and nearly 20 elections.”

    The Cincinnati Enquirer: “The Enquirer has supported Republicans for president for almost a century … But this is not a traditional race, and these are not traditional times. … We need a leader who will bring out the best in all Americans, not the worst.”

    The Arizona Republic: “This year is different. The 2016 Republican candidate is not conservative and he is not qualified. That’s why, for the first time in our history, The Arizona Republic will support a Democrat for president.

    San Francisco Chronicle: “[This election] is a test of whether American voters have the wisdom to identify and dispel a demagogue with authoritarian instincts who is treating a run for the presidency as if it were a reality TV show where outlandishness is the coin of the realm.”

    The Berkshire Eagle: “Clinton actually offers policies, which don’t get the attention they should in an election campaign too often dominated by the latest Trump folly.”

    Portland Press Herald: “Electing the first woman president would open millions of doors to millions of women and girls – not just a symbolic victory, but also an actual step forward in the centuries-long struggle for equal rights.”

    Falls Church News-Press: “We are eager to see how the Clinton-Kaine team will continue the process of moving equality, justice and compassion forward as the cornerstones of our national interest and identity.”

    Dallas Voice: “We still have battles to fight in the name of equality, from employment nondiscrimination to transgender rights. Hillary was a co-sponsor of the Employment Non-Discrimination Act and she celebrates diversity. We stand with Hillary.”

    Akron Beacon Journal: “Hillary Clinton is the change. … She knows her way around the partisan battles. The country doesn’t need a revolution. It isn’t a wreck. It requires the right brand of change.”

    The Desert Sun: “Her efforts to help women, children and all Americans in a public life that ultimately took her on the global circuit as America’s spokeswoman make her the right choice to become our first female president.”

    Sacramento Bee: “It isn’t mere partisan hyperbole to say she is one of the most prepared candidates ever for the presidency. She can step in as commander in chief on Day One, which in this dangerous, complicated world is no small matter.”

    The Charlotte Observer: “The sum of Clinton’s flaws adds up to far less than the danger of Donald Trump. The Republican nominee is a man unfit for the presidency, and one who would steer our country toward peril.”

    Sun Sentinel: “Hillary’s toughness and clear-headedness are reasons some of America’s adversaries – Vladimir Putin, to name one – seem so eager to see Donald Trump in the White House. Hillary will look Putin in the eye and not blink.”

    Chicago Sun-Times: “Allow us, as well, a special shout-out to those who understand what a danger Trump represents but are cool to Clinton: A vote for Libertarian candidate Gary Johnson, a man who could not even pass a basic world geography test, is not a principled protest gesture. It is a retreat to the sidelines.”

    The Spokesman-Review: “The breadth of experience – from White House, to US Senate, to secretary of state – is unrivaled. Her grasp of the issues is impressive. She is not a charismatic leader, but she is tough, focused and cool under pressure.”

    The Tampa Bay Times: “Hillary Clinton is the only candidate for president with the values, experience and knowledge to meet the challenges at home and abroad.”

    Birmingham News: “We’ve watched Clinton weather every challenge — public and personal — that’s faced her over the last 30 years and, unlike Donald Trump’s late night Twitter meltdowns, Clinton has consistently remained presidential in her response and demeanor.”

    • DXer said

      It will be interesting to see what documents relating to Amerithrax — still withheld — make it to public archives. Historians need the exculpatory documents discussed by the former lead Amerithrax investigator so that they can write a solid account of what happened rather than having to rely on selective production by zealous prosecutors. Even when a wealth of documents are made available, people will make basic mistakes. For example, above, I misrembered that Dewey went to Yale Law School, when he went to Columbia. (I was thinking of some on his staff and recommendations from Yale Law School professors).

  16. DXer said

    The Anthrax Letters That Terrorized a Nation Are Now Decontaminated and on Public View

    Carriers of the deadly anthrax bacteria, these letters—on loan from the FBI—can be seen at the National Postal Museum,

    By Jackson Landers
    September 12, 2016 2:48PM

    “Never forget,” read the bumper stickers and T-shirts after September 11, 2001. But there was another terrorist attack against the United States that began later that month, the anthrax attacks that spread through the U.S. Mail, fueled such a complex FBI investigation and resulted in such a confusing outcome that many Americans have lost track of the details.

    The first five contaminated letters were dropped in a mailbox in Trenton, New Jersey, on September 18, 2001. Those envelopes with their payloads of granular brown anthrax would take days to arrive at the addresses of the major news outlets.

    NBC, CBS, ABC, The New York Post and The National Enquirer all seem to have initially ignored the strange deliveries. It wasn’t until early October that the first victim, Robert Stevens, a photo editor from the company that owned the Enquirer, was hospitalized and diagnosed with anthrax.

    At first, nobody connected the strange contents of the envelopes with illness. Government officials played down the possibility that this was the work of a terrorist. “It is an isolated case and it is not contagious,” said Tommy G. Thompson, then Secretary of Health and Human Services, at a White House briefing on October 4. “There’s no evidence of terrorism.”

    “Anthrax happens,” said a spokeswoman for the North Carolina Department of Health and Human Services.

    Government officials stuck to this position even as anthrax panic swept a nation that was (and perhaps still is) waiting for a second shoe to drop after 9/11. People began stockpiling Cipro, an antibiotic that is typically recommended for the treatment of anthrax. Talk swirled about the possibility of a large-scale anthrax attack. What if it was scattered over a city? Blown into the ventilation system of a skyscraper?

    Surprisingly, the original anthrax letters were not destroyed. After a thorough decontamination process, several of the letters have been loaned to the Smithsonian’s National Postal Museum in Washington, D.C. and are on view in the exhibition, “Behind the Badge: The U.S. Postal Inspection Service.”

    “We have letters to Senators Patrick Leahy and Tom Daschle and Tom Brokaw (envelopes & letters) on loan from the FBI,” says Nancy Pope, head curator of the museum’s history department. “Because of their extremely fragile condition we have them in a special case that only lights up when a visitor activates it and are only displaying one at a time.”

    The museum also displays the mail collection box that the terrorist placed the letters in as well as an American flag which had hung in a mail processing and distribution center where two postal workers, Joseph Curseen, Jr. and Thomas Morris, Jr., were fatally infected.

    The question of terrorism was settled beyond a doubt when a second mailing of anthrax envelopes was addressed to the pair of senators, including then-majority-leader Tom Daschle (D-S.D.) with a terse, hand-written letter that famously included the line, “we have this anthrax.”

    The letter to Daschle was opened on October 15 by intern Grant Leslie, who is now the managing director of a lobbying firm.

    “It looked like baby powder,” Leslie said in an interview on the PBS program, “Frontline.” “I was wearing a dark gray skirt and black shoes, and you could see it, just vividly, on the dark colors.”

    Leslie was the first victim to see a more highly refined version of the powdered anthrax that could easily be inhaled. She was treated with antibiotics and did not become sick. But a total of 22 people did get sick with anthrax and five died.

    Now that it was undeniable that terroristic anthrax attacks were underway, a mild panic set in. Large volumes of mail were quarantined by the United States Postal Service as some postal employees became infected. Checks, bills, letters and packages simply stopped arriving. For many people and businesses that had resisted the cultural shift to email, this was the moment that pushed them online.

    Even once the mail started moving again, many Americans were too afraid to open an envelope with a return address they didn’t recognize. Businesses and government agencies purchased glove boxes to allow employees to open mail without contacting the contents. Smithsonian magazine’s then-editor Carey Winfrey had to reassure readers: “Fear not,” he wrote in 2002, “the magazine itself is mailed to subscribers directly from our printing plant in Effingham, Illinois.”

    With a mid-term election only weeks away, officials in the Bush White House pressured FBI director Robert Mueller to publicly blame Osama bin Laden. That theory fell flat. Weaponized anthrax capable of causing infections through the lungs is a sophisticated substance requiring advanced laboratories and highly specialized scientific skills. It couldn’t have been made in a cave in Afghanistan.

    Other investigators and politicians tried to pin the blame on Saddam Hussein’s government in Iraq. Some people imagined a lone, unibomber-type culprit.

    Meanwhile, the thrash metal band, “Anthrax,” found themselves in an awkward position. They had been using the name without controversy since 1981 but were being attacked in the media for appearing insensitive. The band issued a press release suggesting that they change their name to “Basket Full Of Puppies.”

    Before the tragedy of September 11th the only thing scary about Anthrax was our bad hair in the 80’s and the “Fistful Of Metal” album cover. Most people associated the name Anthrax with the band, not the germ. Now in the wake of those events, our name symbolizes fear, paranoia and death. Suddenly our name is not so cool.

    Hoping to help anyone searching the internet for medical advice about anthrax, they also temporarily changed the band’s website ( to contain information about the spread and treatment of anthrax.

    Copycat hoax letters were sent, but the letters sent to the Senate were the last of the real anthrax mailings. Nobody knew this at the time. Years of public paranoia about the mail would follow, gradually tapering off as new cases failed to materialize and a war in Iraq gave Americans new problems to worry about.

    During the course of a seven-year investigation, a prime suspect eventually emerged. Bruce Edwards Ivins, a government biodefence researcher who worked with anthrax. He committed suicide in July of 2008. Soon after, the Justice Department explained the convincing case that they had intended to bring against him.

    Curiously, the government archive of anthrax samples that could have quickly demonstrated a genetic link to the anthrax used in the attacks had been destroyed immediately after the first infection was detected.

    Many of the victims of the anthrax attacks were postal employees who were exposed to the powdered anthrax as the envelopes moved through sorting machines. More than any other group in America, postal employees were terrorized by Ivins’ attacks. The rest of us could choose not to handle mail. Postal workers had to spend eight hours a day surrounded by it.

    While the attacks of 9/11 are explained to new generations of Americans, the story of the anthrax attacks isn’t taught in school and probably never will be. Certainly far fewer people died from anthrax than by hijacked airplanes, but the anthrax letters caused a national panic which was felt by everyone in America for over a year. It was a major part of the post 9/11 atmosphere of foreboding and paranoia which, in all honesty, perhaps most of us wanted to forget.

    Read more:
    Give the gift of Smithsonian magazine for only $12!

  17. DXer said

    Attorney Lambert this week reiterated to me that any and all civil discovery obtained in his litigation would be shared. This would be hugely in the public interest. I hope the federal district court judge is able to include the public interest in his calculations as to whether to allow Attorney Lambert to have his day in court on the merits of Count V of his Complaint .


    Use of Attribution and Forensic Science in Addressing Biological Weapon Threats: A Multi-Faceted Study

    A good attribution capability is as valuable as a BW deterrence tool.  A good attribution capability requires well developed science that not only meets scientific scrutiny but also legal scrutiny.  Legal constructs act as a good lens to look at BW attribution evidence not just in the courtroom, but in the court of public opinion and in the minds of policy leaders.  Forensic determinations, while based on science principles, require collaboration with other disciplines and communities, such as legal, law enforcement, public policy, public health, and communications.  In order to be policy relevant, the science behind microbial forensics must be well accepted by the international science community, but more importantly, the non-science community.  With regards to BW, microbial forensics is a useful policy tool, but must overcome general suspicions and unrealistic expectations towards forensic science in general.


    The story of the Federal Bureau of Investigation (FBI) enquiry of the 2001 Anthrax attack (often called the “Amerithrax Attacks”) is illustrative. As
    part of the study , the FBI spent seven years and 600,000 investigator hours while consulting with 29 universities for scientific and technical support. Several accounts, including a 2011 PBS Frontline
    report, peg the FBI anthrax investigation as the United States’ most expensive and complex investigation to date, costing $100 million over 10 years.

    Still, a review of the evidence by the National Research Council concluded that it was “not possible to reach a definitive conclusion about the origins of the B. anthracis in the mailings based on the available scientific evidence alone.”13


    Of course, the former lead Amerithrax investigator reports that the FBI is withholding a staggering amount of information exculpatory of Dr. Bruce Ivins.

    Did the Ivins Theory pass the all-important giggle test? US Attorney’s reliance on a two-person rule –and the claim that Dr. Ivins had no reason to be in the lab — was specious and highly uninformed.

  18. DXer said

    Evan McMullin’s motton on twitter is “Standing up to run for president because it’s ever too late to do the right thing.”

    Evan McMullin

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

  19. DXer said

    Why Evan McMullin Says Donald Trump Is More Dangerous Than ISIS

    Aug 11, 2016

    As a former CIA operative, independent presidential candidate Evan McMullin believes Donald Trump is a major threat to America’s national security, even saying in a speech earlier this year that he poses “a larger threat to our national security than ISIS itself.”

  20. DXer said

    50 G.O.P. Officials Warn Donald Trump Would Put Nation’s Security ‘at Risk’

  21. DXer said

    The Guantánamo Trials: No End in Sight

    Buchalter Nemer

    USA July 28 2016

    “The way litigation has unfolded,” he said, “there’s virtually no getting together and working it out.” According to one defense team member, the trial is not likely to begin before the end of 2019. Another predicted a start date “between 5 and 10 years from now.”

    The military commission hearings were intended to provide a fair trial within a legitimate judicial framework. The painful delays and seemingly endless pretrial procedures threaten to erode perceptions of legitimacy and fairness, and they must be addressed if the United States hopes to restore its standing in the international community as a champion of human rights.


    Judicial temperament. Judge Pohl is doubtless a capable jurist in many respects. He clearly is intelligent, has a firm grasp of the pleadings, and understands the issues. His reluctance to rule on motions in a timely manner, acceptance of prosecution recalcitrance in turning over documents, and possibly over-cautious navigation of admittedly uncharted legal waters, however, all add to the perception that this trial may never end.

    The Pacific Council has recommended several means by which to re-establish legitimacy of the military commission process and, beyond that, our nation’s credibility on the world stage by expediting and bringing transparency to these proceedings, most notably by appointing a federal district court judge to preside over the military commission trials. This recommendation should receive more attention.

  22. DXer said

    Russian officials blame thawed reindeer carcass in anthrax outbreak

    By Susan Scutti, CNN

    Updated 6:35 PM ET, Thu July 28, 2016

    The hospitalizations came after up to 1,200 reindeer died over the past month, which officials originally blamed on a heat wave in the region. Unusually high temperatures of up to 35 degrees Celsius (95 degrees Fahrenheit) recorded over the past month might have weakened the reindeer.
    Now, laboratory tests have confirmed that the reindeer died of anthrax, Gov. Dmitry Kobylkin’s office reported.

    However, Moscow laboratories have not confirmed that the patients’ illnesses were caused by anthrax. But in the meantime, the patients are being treated as though they have the illness, including treatment with antibiotics.

    Scientists speculated that the deer, weakened from the heat, ate the thawed remains of an infected reindeer carcass that had been frozen for many years. From there, the infection was passed to nomad herders.
    An alternate theory proposed by some experts is that the deer picked up the infection from an abandoned cemetery in Halmer, where, in following an ancient tradition, the deceased have been placed in wooden boxes and set on the ground rather than buried. Soil samples in the area do not contain the pathogen.

  23. DXer said

    Anthrax sickens 13 in western Siberia, and a thawed-out reindeer corpse may be to blame
    By Ben Guarino July 28


    Mobster turned minister opens up about stolen Gardner Museum paintings
    by: Bob Ward Updated: Jul 28, 2016 – 4:15 AM

    • DXer said

      I discussed the possible Florida connection — now raised in Isabella Gardner — on this blog in 2013.

      “2. a. For the $500 million in Gardner paintings ($5 million award), trace the storage unit where Carl and Sylvia Benjamin stored their things in Florida. It’s air-conditioned. Go to Florida and await instruction. See article in Hartford Courant yesterday. The journalist does not explain the Florida connection but it was Carl Benjamin that Robert Guarente would have been going to see.

      b. Alternatively, if FBI or acting with consent of landowner, move this concrete slap pictured in the upper right up in Maine.

      c. Finally, or bring ground penetrating radar to the lot across the interchange from the Hartford Truck Rental in South Windsor, CT down from Stardust restaurant. They bulldozed it last year. (Given the trail of bodies, the mob knows the paintings are best forgotten).”

      • DXer said

        “I’m not looking for someone necessarily to call me and say, ‘Go to Locker 3 in this storage facility,’” he said. “It’s like you put this puzzle together, you start with the borders, and people are giving you pieces.

        “If you do puzzles, most of the time, there’s this one piece that’s just like—hoo, okay!—now you hit this arc, now it’s falling together. So I’m not necessarily looking for the big aha! moment. I’m looking for the small aha! moments that I can piece together.”
        Mobster Says He Heard Gardner Heist Paintings Are in Florida
        Robert ‘Bobby’ Luisi, Jr. broke his silence in witness protection and shared yet another clue.
        By Spencer Buell | Boston Daily | July 27, 2016, 2:07 p.m.

        Comment: Tony, consider that Bobby Guarente’s friend from Maine, who stayed for a brief while with his daughter in Herkimer NY a couple years ago next to my favorite Chinese restaurant, once bought a shiny, new (very) expensive car in Florida. When he was interviewed a couple years ago, he said the FBI had never interviewed him. He was the one who worked with Mrs. Guarente and her daughter (using a lawyer) to return the paintings. (This was before your time and you reportedly were never told of it).

        So if I were him, I would be down in Florida looking for the paintings.

      • DXer said

        Monday said his partner paid Guarente $10,000 when Guarente said he needed the money to travel to Florida to obtain whatever art was involved. Monday said he suspects Guarente never went to Florida.

  24. DXer said

    In Amerithrax, the key to buried truth is document analysis (which requires overcoming self-interested withholding).

    Today’s news confirms that in Isabella Gardner, I think the key is that Robert Gentile (Guarente’s friend) was in the concrete slab laying business in the early 1990s.

  25. DXer said

    Michele Obama and Bill Clinton both gave excellent speeches at the Democratic National Convention.

  26. DXer said

    Forrmer FBI Agent Richard L. Lambert led the FBI investigation into the contacts involving the 2 hijackers. What does Mr. Lambert have to say about the 28 pages, now that he can talk about the content? Prince Bandar, what do you have to say?

    A Saudi Imam, 2 Hijackers and Lingering 9/11 Mystery – The New York ……/saudi-arabia-sept11-classified-2…The New York Times
    Jun 17, 2016 – … Richard L. Lambert, who oversaw the investigation into the hijackers’ contacts as the assistant agent in charge of the F.B.I.’s San Diego office …

  27. DXer said

    Mike Pence was definitely mistaken in suggesting, in a phrase, that the mailed anthrax was genetically modified. Either he or the staffer who wrote the June 2002 letter should have checked the fact made in passing (a simple google would have sufficed) before writing to Attorney General asking for more information.
    But I’m sure he would be quick to correct his mistake if it was pointed out.

    To be fair, though, Mr. Willman has failed to correct his central error in Amerithrax relating to his reliance on a key witness in his book that established the narrative about Bruce Ivins.

    Bad science when mistakes are not corrected and information is withheld — as has been the case in Amerithrax.

    Excerpts from David Willman’s key witness (from her book ASCENSION JOURNEY)
    Posted on June 18, 2011

    the material on the CASE CLOSED blog about Judith McLean (see prior posts linked below) is relevant to an evaluation of the validity of David Willman’s conclusions in his recently published “The Mirage Man” … because Willman himself, in his publicity blurb (see below), shows just how much he relied on the psychic who says … she was granted her abilities by an extraterrestrial being … got sick in 2001 from doing astral recovery work at Ground Zero and in Afghanistan after 9/11 … and was pursued by nasty Taliban entities
    Posted on June 12, 2011

    In addition to helping the FBI with Amerithrax, the psychic relied upon by David Willman helped with 911 by her astral travelling and retrieval of etheric body parts at Ground Zero … She reports she was granted her psychic abilities by a being claiming to be an extraterrestial
    Posted on June 11, 2011

    bad science
    July 14, 2016 2:00 p.m.
    Why It Took Social Science Years to Correct a Simple Error About ‘Psychoticism’

    By Jesse Singal

  28. DXer said

    Donald Trump reportedly is considering Chris Christie as Vice President running mate.

    Chris Christie’s office was involved in the anthrax investigation. He, too, would be an interesting choice from the perspective of assessment of Amerithrax.

    As a prosecutor, he would be well-situated to consider the claims made by the former lead Amerithrax investigator Richard L. Lambert.

    Chris Christie – Anthrax Investigation (2002)

    • DXer said

      The last interview I posted was a 9 minute interview of Chris Christie. This full version is 26 minutes. He is described as the lead prosecutor in the case at the time.

      I went to the location where the letters were mailed a couple weeks ago upon touring Princeton University. (Anyone who had ever visited Princeton would know the central location.)

    • DXer said

      The former DIA head is not listed in this round-up of potential VP picks by Donald Trump.

      Here are the top vice president picks for Donald Trump and Hillary Clinton

      From the admittedly narrow standpoint of document discovery under FOIA, I would tend to favor the former DIA head. He favors greater transparency so that the American public can better assess the threat the country faces. As a leader of a major intelligence agency, he is in a position to to balance the opposing considerations.

      I vaguely recall there was some recent Commission that advised that biodefense be headed by the Vice-President.

  29. DXer said

    Another leading possibility reportedly being considered by Donald Trump for Vice Presidential running mate. It seems that he is smart, hardworking a quick study and takes the issue seriously.

    What if the former DIA head Michael Flynn, former Governor and Congressman Mike Pence, or former Congressman Newt Gingrich?

    Wouldn’t they agree that the Army and FBI should prioritize providing a copy of the contemporaneous lab notebooks that Dr. Ivins used to record observations on the date of mailing and weeks prior?

    DIA head Michael Flynn, in particular, favors transparency on such an issue. But all three, if they were to consider the issue as Vice President, likely would recognize the potential value of such notes in Lab Notebook 4282. They like would tend to corroborate or debunk AUSA Rachel Lieber’s claim that Ivins had no reason to be in the B3.

    (Notebook 4282 involved a virulence study in the B3 involving small animals that required Ivins to do the night and weekend checks on which the FBI built its cotton candy Ivins theory).

    Sept. 11 — critics of national missile defense said that this proved that we were pursuing the wrong policy. Why would you need a missile defense if you’ve got a terrorist who hijacks an airplane or can get a suitcase bomb or send anthrax through the mail? So what’s the argument for missile defense post-Sept. 11?

    I think the sad answer is, you need it all. The sad answer is, you live in a dangerous world where you have active opponents who hate you and want to kill you. You had better be prepared to stop the local terrorist, you better be prepared to stop the cruise missile, you better be prepared to stop the ship-launched relatively short-range missile. And you better be prepared to stop the ICBM, because whichever one you can’t stop may be the one they use.

    You have to do all of them. That’s why I’m for a strong intelligence system and a strong defense system and a strong homeland security agency.

    We live in a much more dangerous world than people believe. We have opponents who are much more determined and much smarter than we tend to give them credit for. We live in a world where weapons of mass destruction are getting easier and easier to get and cheaper and cheaper to build, and I find that very frightening. We ought to be very serious about thinking through, if you hated Americans and you wanted to get your way, what would you do? And then we better block every single avenue, because you can’t pick and choose; your enemies won’t let you.

  30. DXer said

    Detrick’s Anthrax vaccine research

    • Barry Kissin, Frederick
    • 3 hrs ago

    Today’s (June 30) front page article “Anthrax vaccine research hopeful” contains the following: “The late Dr. Bruce Ivins, a researcher at USAMRIID, was the FBI’s main suspect in the anthrax mailings [of 2001] … [Dr. Arthur M.] Friedlander said the knowledge of those mailings still motivates his work. ‘There’s still a threat, and we’re trying to optimize the protection,’ he said.”

    Ivins worked in the same department as does Friedlander; that is, Ivins also worked on developing an anthrax vaccine. Thus, according to the official account, the anthrax attack that motivates Friedlander came out of his own program. In other words, what we have in this program at Fort Detrick is one that addresses a threat whose only manifestation came out of that same program.

    The anthrax mailings all contained letters that read “Death to America, Death to Israel, Allah is Great.” Thus, this particular “inside job” masqueraded as the work of Muslim terrorists.

    Barry Kissin


  31. DXer said

    There’s an article (behind a paywall) in today’s Wall Street Journal titled “FBI—for Burying Information.”

    (I believe you can sign up for a 30 day free trial subscription. 30 days of free WSJ delivered to your mailbox or door is a tremendous value.)

    As a case study, consider what you would do if you were FBI’s David Hardy and the FBI were determined to bury the exculpatory information that the former lead investigator in Amerithrax says is being suppressed. Mr. Hardy has referred the issue to other agencies but has failed to name the agencies — that is the ultimate in a lack of transparency. It allows the FBI to blame the game of hide-the-ball on other unnamed agencies.

    Look for an unrelated WSJ article by Jennifer Smith on Tuesday.

  32. DXer said

    Richard L. Lambert, who reports there is a staggering amount of information being withheld in Amerithrax, is quoted about the “28 pages” expected to be released in the near future. He oversaw that investigation before being chosen by FBI DIrector Mueller to oversee Amerithrax.

    A Saudi Imam, 2 Hijackers and Lingering 9/11 Mystery


    It’s one of those cases where there are an awful lot of very troubling coincidences,” said Richard L. Lambert, who oversaw the investigation into the hijackers’ contacts as the assistant agent in charge of the F.B.I.’s San Diego office in the year after the attacks.


    Whether out of charitable instincts or at someone’s direction, Mr. Bayoumi, then 42, helped the two future hijackers settle in San Diego, in the apartment building where he himself lived. He co-signed the lease and paid the security deposit and first month’s rent, though they reimbursed him

    Mr. Lambert, the former F.B.I. official in San Diego, said he was skeptical that the assistance was given by chance. With the 9/11 plot riding on the hijackers’ ability to manage daily life, he said, Qaeda leaders would most likely have made arrangements to get them help.

    “I have to believe something was planned for the care and nurturing of these guys after they arrived,” he said. “They weren’t too sophisticated, and they didn’t speak English. They needed help getting settled and making preparations.”

  33. DXer said

    The FBI has listed the pages relating to Bruce Ivins that it has refused to produce under FOIA with the designation “Referral/Direct”

    The FBI indicates that they have deleted Page 39 Page 57, 58, 79, 80, 81, 82, 83, 94, 85, 101 with the reference “Referral/DIrect”.

    What does “Referral/Direct” mean?

    Does that means there Ivins 302s that were not produced?

    Numerous other pages are suppressed due to exemption b3. Yet b3 requires that they specify the statute requiring nondisclosure.

    So it seems that they should identify that statute.

  34. DXer said

    ISIS In Kenya: Police Foil Alleged Anthrax Attack By Islamic State Group-Linked Medics

    By Morgan Winsor @MorganWinsor On 05/03/16 AT 3:39 PMBy Morgan Winsor @MorganWinsor On 05/03/16 AT 3:39 PM

  35. DXer said

    The FBI’s Theory in Amerithrax about why there is no forensic evidence implicating Dr. Ivins is that he was diabolically clever and destroyed all the evidence. Well, okay, FBI. Then stop shredding things — like Patricia Fellows’ civil deposition — and disclose the traditional forensic work done relevant to an “Ivins Theory.” Produce the 16 pages on an Ivins Theory and the Table of Contents from the “Interim Case Management Summary” authored by Lambert so we can consider the traditional evidence that exists. Reporters can then request — 50 pages at a time, please — the particular traditional forensic reports of their interest. All the traditional forensic reports have been exculpatory of Ivins including some that were majorly exculpatory. The finely spun “Ivins Theory”, according to Lambert, was highly selective and its material omissions were very misleading.

    It seems in Isabella Gardner that the narrative they are developing is that Gentile burned all the evidence in his furnace. Okay. I guess if it makes them easier to declare the case solved so they can close the case. (I never cared about some moldy,heavily damaged paintings anyway).

  36. DXer said

    Facing Down the World’s Deadliest Pathogens in a BSL4 Lab

    Researchers reach a crucial milestone despite the challenges of working under astronaut-like conditions

    • By Bob Roehr on April 5, 2016

    The continued emergence of deadly infections such as Ebola, MERS and SARS, as well as the terrorist use of anthrax in 2001—when spore-laced letters sent to elected officials in Washington and the news media killed five people and sickened 17 others—made government leaders aware of the need for more and better BSL capacity, and they have since provided substantial, sustained funding to support such facilities. Still, only a few dozen labs in the world are certified as BSL4 facilities; some are very small and only work on diagnostics, or cell cultures, or a single species of animals.

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

  37. DXer said

    Kevin Cullen has an column about Agent Lambert’s succesor in Amerithrax, Vincent Lisi. Agent Lisi was a key architect of an Ivins Theory.

    Retiring FBI chief in Boston shares, yet keeps quiet
    By Kevin Cullen GLOBE COLUMNIST AUGUST 09, 2015

    On Agent Lisi’s retirement from the Boston Field Office the article addresses why this tape was not previously disclosed over the past 25 years. i don’t really understand Vincent’s comment that his face is not shown. The videotape seems as good as many of the bank robbery photos that we are regularly shown and asked to identify. I also don’t understand why the guard, Richard Abath, was not asked about the video 25 years ago (if he wasn’t).

    But moving forward, the priority is that the paintings be recovered and that Amerithrax be solved. Given the difficulty of the job and the good job the FBI does, we should not waste time finding fault rather than finding bad guys.

    In August 2008, the claim that virulent Ames was only in Building 1425 was known to be a crock — anyone involved in the investigation should have known that it was also in Building 1412 and the claims made in announcing Ivins could be determined to be the mailer based on a process of exclusion of hundreds of others was nonsense. Similarly, anyone steeped in the documents should have known that Ivins’ time in the lab in fact was explained by the experiment with the 52 rabbits.

    Retiring FBI chief in Boston shares, yet keeps quiet
    By Kevin Cullen GLOBE COLUMNIST AUGUST 09, 2015

    Vince Lisi, the special agent in charge of the FBI in Boston who is retiring this month, arrived here a couple of years ago, fiercely defending the bureau against claims it didn’t share information with its law enforcement partners and the public.

    Looks like he’ll depart doing the same.


    But the past is never far removed in Boston. On Thursday, federal authorities released a surveillance video showing a security guard letting a man into the Gardner Museum the night before it was robbed of 13 priceless paintings in 1990. US Attorney Carmen Ortiz said officials hoped someone in the public might recognize the mystery man.

    How could this crucial piece of evidence just be coming out, 25 years after the city’s most infamous unsolved crime? It seemed like either a breathtaking bit of incompetence by the FBI, or more evidence of the bureau’s reluctance to share information with law enforcement partners and the public.

    When I called Lisi, he downplayed the significance of the video, and said the FBI was aware of its existence throughout the investigation.

    “This is not an aha moment,” he said. “We hope it generates something, but the focus is on recovering the paintings.”

    He said FBI agents who investigated the case had been aware of the video for years but had judged releasing it to the public of limited value, primarily because at no time is the man’s face shown on camera.

    He said the idea for publicizing the video came up as part of a standard review of an unresolved case, a process which began around the time he took over the Boston field office.

    “We know who did it. We know who went in and stole it,” Lisi said, repeating what his predecessor said two years ago, when the FBI said it believed it knew the identities of the two men who carried out the heist.

    Both of those men are dead, but the FBI has not publicly identified them. The statute of limitations for the robbery expired years ago.

    Lisi said the focus of federal authorities is on finding the paintings. “This is a recovery operation,” he said.

    Lisi said the video was sent to the FBI laboratory in Quantico for enhancement last year, again, part of what he described as a normal review process.

    Lisi is the most candid FBI leader in Boston, ever. His candor has forged better relationships with other law enforcement agencies.

    But that doesn’t mean he’s right about everything.

  38. DXer said

    Here are lengthy excerpts from US memorandum of law in further support of the defendant’s motion to dismiss the Complaint by Attorney Lambert.

    Any confusion or formatting errors were introduced by me upon a hasty cut-and-paste job — and may be related by the uncertainty of where footnotes begin and end upon being reformatted in plaintext.

    Case 3:15-cv-00147-PLR-HBG Document 23 Filed 07/24/15 Page 1 of 33 PageID #: 760


    RICHARD L. LAMBERT, Plaintiff,

    No. 3:15–cv–147 v. (Reeves/Guyton)

    UNITED STATES OF AMERICA, et al., Defendants.


    Attorneys for Defendants United States of America; Eric Holder; Robert S. Mueller III; Patrick W. Kelley (in his official capacity only); the U.S. Department of Justice; and the Federal Bureau of Investigation


    INTRODUCTION ……………………………………………………………………………………………………………1


    • Plaintiff Does Not Dispute that Sovereign Immunity Bars All
    Claims Against the Named Defendants in Their Official Capacities ………………….2

    • Plaintiff’s FTCA Claims Are Barred by § 2680(h) ………………………………………….2

    • Plaintiff’s FTCA Claims Are Barred
    Because They Arise out of Defamation ……………………………………………….4

    • Plaintiff’s FTCA Claims Are Barred
    Because They Arise out of Misrepresentation………………………………………6

    • Plaintiff’s FTCA Claims Are Barred Because
    They Arise out of Interference with His Employment……………………………8

    • The Discretionary-Function Exception Bars Plaintiff’s Claims …………………………9

    • Interpreting and Enforcing Standards of
    Conduct Constitutes a Protected Discretionary Activity ………………………..9

    • Agency Supervisory and Hiring Decisions
    Constitute Protected Discretionary Activity ……………………………………….11

    FAIL AS A MATTER OF LAW PER RULE 12(b)(6)…………………………………………….12

    • Plaintiff’s Legal Malpractice Claim Fails as a Matter of Law………………………….12

    • Plaintiff’s Negligent Hiring, Supervision,
    and Training Claims Fail as a Matter of Law ………………………………………………..16

    • Plaintiff’s Privacy Act Claim Fails as a Matter of Law…………………………………..17

    • Plaintiff Fails to Identify a Record in a “System of Records”……………….17

    • Plaintiff Fails to Allege an Actual
    Unauthorized Disclosure of His Agency Records ……………………………….19

    • Plaintiff Fails to Allege Facts Showing FBI
    and DOJ Intentionally and Willfully Violated the
    Privacy Act by Disclosing His Records Without Authorization ……………22

    • Plaintiff Fails to Allege that He Sustained “Actual Damages”
    as a Result of an Unauthorized Disclosure of a Privacy Act Record………23



    [table of cases omitted]


    As explained in the United States’1 opening memorandum of law (Dkt. 15, “Mem.”), and demonstrated further below, Plaintiff has failed to: (i) carry his burden of establishing subject matter jurisdiction over his Federal Tort Claims Act (“FTCA”) claims; and (ii) state any claim upon which relief can be granted. Accordingly, Counts I, II, III, and IV should be dismissed.2



    Sovereign immunity may dress in a petticoat (see Opp. at 5), but she is a harsh mistress. See Smith ex rel. Richardson v. United States, 509 F. App’x 436, 440 (6th Cir. 2012) (waiver of sovereign immunity “must be construed strictly in favor of the sovereign”). Rhetoric is no surrogate for legal analysis. Plaintiff’s FTCA claims must be dismissed for lack of subject matter jurisdiction per Federal Rule of Civil Procedure 12(b)(1).

    A. Plaintiff Does Not Dispute that Sovereign Immunity Bars All Claims Against the Named Defendants in Their Official Capacities

    Plaintiff does not dispute that: (i) the FTCA allows jurisdiction only for claims of money damages; (ii) sovereign immunity bars suits for money damages against officials in their official capacity, absent a specific waiver; and (iii) no such waiver exists here. (See Mem. at 5–6 & n.9.) Accordingly, the claims against Eric Holder, Robert S. Mueller III, and Patrick W. Kelley in their official capacities should be dismissed for lack of subject matter jurisdiction. See Blakely v. United States, 276 F.3d 853, 870 (6th Cir. 2002).5

    B. Plaintiff’s FTCA Claims Are Barred by § 2680(h)

    As a threshold matter, Plaintiff argues that 28 U.S.C. § 2680(h) does not apply to this lawsuit based on the exception in 10 U.S.C. § 1054, which states that § 2680(h) does “not apply to a cause of action arising out of a negligent or wrongful act or omission in the provision of legal assistance” committed by the “legal staff within the Department of Defense . . . or within the Coast Guard.” § 1054(a) & (e). Plaintiff concedes that § 1054(e) “is expressly applicable to claims brought by employees of the Department of Defense and Coast Guard,” but argues that “Defendants field no argument that this directive is inapplicable to the other agencies of the federal government.” (Opp. at 6.) Plaintiff is wrong.

    As the United States explained in the opening memorandum, “Congress did not include the FBI in this exception to § 2680(h).” (Mem. at 9 n.12.) Indeed, Congress could have made § 1054(e) applicable “to the other agencies of the federal government.” (Opp. at 6.) Yet it chose to restrict § 1054(e) to the Department of Defense and the Coast Guard. “Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied.” Gillie v. Law Office of Eric A. Jones, LLC, 785 F.3d 1091, 1109 (6th Cir. 2015).6 Section 1054(e) only proves that § 2680(h) applies to Plaintiff’s FTCA claims.

    Plaintiff’s remaining arguments fare no better. His attempt to escape § 2680(h) through artful pleading explains some of the tortured language in his opposition.7 But it is undisputed that Plaintiff “may not use semantics to recast the substance of the claim so as to avoid [an FTCA] statutory exception.” Milligan v. United States, 670 F.3d 686, 695 (6th Cir. 2012). As in Satterfield v. United States, 788 F.2d 395 (6th Cir. 1986)—a controlling case discussed by the United States (Mem. at 7) but ignored by Plaintiff8—“[b]ecause plaintiff’s complaint set[s]


    1. Plaintiff’s FTCA Claims Are Barred Because They Arise out of Defamation

    Plaintiff represents that he “was ‘de-famed,’” but argues that the FTCA’s defamation exception does not bar this action because his alleged defamation was simply “consequent damage[]” resulting from the alleged legal malpractice, which he deems to be the “cause-in-fact” of his injuries. (Opp. at 9–10 (emphasis omitted).) Plaintiff is wrong.

    As a threshold matter, Plaintiff does not cite a single case to support his “cause-in-fact versus consequent-damages” dichotomy. And were Plaintiff’s theory correct, Satterfield would have been decided differently. In Satterfield, the plaintiff “alleged that the death of her son . . . was the direct and proximate result of the Army’s negligence in accepting his enlistment and its negligence in failing to supervise his conduct and activities and the conduct and activities of his associates.” 788 F.2d at 396. In Plaintiff’s parlance, the Satterfield plaintiff was alleging that government negligence was the “cause-in-fact,” and the battery of her son was the “consequent damage.” The Satterfield court deemed this ploy “obfuscat[ion].” Id. at 399. And in recounting the Satterfield holding, the Milligan court explained that the Satterfield court rejected this “attempt[] to sidestep the § 2680(h) jurisdictional bar” and “refused to permit the plaintiff’s mischaracterization to dictate the boundaries of sovereign immunity.” Milligan, 670 F.3d at 695 (citing Satterfield, 788 F.2d at 399–400). The same analysis applies here.

    Moreover, Plaintiff does not claim that he suffered any damages directly from the legal opinion itself. Plaintiff does not allege, for example, that Mr. Kelley’s e-mail induced him to resign from his position at UT-Battelle. Indeed, Plaintiff freely admits that he “makes no claim whatsoever of detrimental reliance on Defendants’ [allegedly] erroneous legal opinion.” (Opp. at

    Case 3:15-cv-00147-PLR-HBG Document 23

    Filed 07/24/15 Page 12 of 33 PageID #: 771


    8.)9 Had Mr. Kelley simply delivered the advice to Plaintiff and then dropped the matter, Plaintiff—by his own admission (id.)—would have suffered no damage. Assuming that his intended-beneficiary argument held any water (and it does not, see infra Part III.A), Plaintiff would not even have a viable claim under D.C. law in these circumstances because a plaintiff asserting legal malpractice must allege and prove, inter alia, “actual loss or damage resulting from the attorney’s malpractice.” Perez v. Goldin, 360 F. Supp. 2d 12, 16 (D.D.C. 2003).

    Rather, as Plaintiff explains in his Complaint, it was the “publication, dissemination, and proclamation of this [supposedly] erroneous legal opinion” that “decimated Plaintiff’s professional reputation, disparaged Plaintiff’s integrity, and falsely branded Plaintiff as a federal criminal, rendering Plaintiff unemployable and unable to provide for his family.” (Compl. ¶ 4.) In his attempt to disavow defamation claims, Plaintiff doubled down and made plain that “[t]he bedrock of [his] complaint is the professional and legal malpractice of Defendant Kelley . . . in issuing and publicizing a grossly negligent and erroneous legal opinion . . . [and] in . . . disseminat[ing] . . . that opinion to others.” (Id. ¶ 94 (emphasis added).) And even in his opposition, Plaintiff contends that it was Mr. Kelley’s “convey[ance]” of the legal opinion that “result[ed] in the termination of Plaintiff’s employment and the branding of Plaintiff as a federal felon.” (Opp. at 15 (emphasis added); see id. at 24 (arguing that the United States retaliated against him “by widely and deliberately disseminating [the allegedly] erroneous legal opinion”).)

    Just as in Hartwig v. United States, 80 F. Supp. 2d 765 (N.D. Ohio 1999)—a case the

    United States analyzed in the opening memorandum (Mem. at 8–9), but ignored by Plaintiff—

    Plaintiff’s “claim relies upon an allegedly false communication to a third party which harmed

    [his] reputation,” and thus “resounds in the heartland of defamation.” Id. at 771, 779; see also


    This admission only further proves that Plaintiff’s claim is not one for legal malpractice.

    Case 3:15-cv-00147-PLR-HBG Document 23

    Filed 07/24/15 Page 13 of 33 PageID #: 772


    Kugel v. United States, 947 F.2d 1504, 1507 (D.C. Cir. 1991) (“It appears to us that the cause of Kugel’s injury was not the FBI’s execution of the investigation but its dissemination of information associated with the investigation.”). Plaintiff’s claims “aris[e] out of . . . libel [and] slander” and must be dismissed. § 2680(h).

    2. Plaintiff’s FTCA Claims Are Barred Because They Arise out of Misrepresentation

    Primarily relying on two cases from the 1970s, Plaintiff argues that this action cannot be dismissed under the FTCA’s misrepresentation exception because his primary cause of action is one “for an independent tort (i.e., legal malpractice).” (Opp. at 7; see id. at 9 (arguing that he has “establish[ed] each element” of his legal malpractice claim”).) There is a reason why Plaintiff supports his “independent tort” theory with cases that are decades old: to the extent that his theory was once plausible, it is no longer viable in light of Block v. Neal, 460 U.S. 289 (1983).

    In Neal, the Supreme Court explained that “the essence of an action for misrepresentation, whether negligent or intentional, is the communication of misinformation on which the recipient relies.” Id. at 296. “Section 2680(h) thus relieves the Government of tort liability for pecuniary injuries which are wholly attributable to reliance on the Government’s negligent misstatements.” Neal, 460 U.S. at 297. Though the misrepresentation exception does not bar claims that “focus . . . on the Government’s breach of a different duty,” the test is not whether a plaintiff can simply plead an independent tort; it is whether “the Government’s [alleged] misstatements are . . . essential to plaintiff’s negligence claim.” Id.

    This is why, as explained in Dragoiu v. United States, No. 10–11896, 2013 WL 119995 (E.D. Mich. Jan. 9, 2013)—yet another case the United States analyzed but which Plaintiff ignored—“[f]ollowing Neustadt and Neal, circuit courts have held that section 2680(h) bars any claim in which the government’s misstatements, either negligently or intentionally made, were

    Case 3:15-cv-00147-PLR-HBG Document 23

    Filed 07/24/15 Page 14 of 33 PageID #: 773


    ‘essential’ to the plaintiff’s claims.” Dragoiu, 2013 WL 119995, at *7 (citing cases). And it is why the Seventh Circuit in Janowsky v. United States, 913 F.2d 393 (7th Cir. 1990), found that “[i]t is immediately apparent that the claims that allege the FBI agents provided them with incorrect legal advice . . . are barred by the misrepresentation exception.” Id. at 397.10

    Plaintiff cannot plausibly argue that an alleged government misstatement is not “essential” to his claims. The phrase “erroneous legal opinion” appears on—literally—ten separate pages of his 25-page brief. (Opp. at 3, 5, 8, 10, 14, 15, 18, 21, 23, 24.) If the legal opinion were not erroneous (and it was not erroneous), Plaintiff would have no claim for legal malpractice.11 In sum, Plaintiff’s alleged “pecuniary injuries …are wholly attributable to reliance on the Government’s [alleged] misstatements.” Neal, 460 U.S. at 297. (See, e.g., Compl. ¶ 8 (“Due to the notoriety and stigma surrounding Defendants’ erroneous legal opinion and its plain implication that he is a federal felon, Mr. Lambert is currently unemployed and



    That being said, Plaintiff’s contention that government contractor employees are exempt from § 207(c) (see Opp. at 4), falls flat. Generally speaking, 5 C.F.R. § 2641.301 exempts just those former employees who serve “[a]s a representative of the United States pursuant to a specific agreement with the United States to provide representational services to the United States.” § 2641.301(a)(2)(ii)(A)(1) (emphasis added). This is why the lawyer hired “to represent the Postal Service” in Example 3 to § 2641.301(a) may be exempt from § 207(c) in certain circumstances (see Opp. at 4), but the FFRDC contractor employee (like Plaintiff) in Example 6 is not. § 2641.301(a), Examples 3 & 6 (emphasis added).

    Janowsky hardly “defeats [the United States’] misrepresentation argument.” (Opp. at 8.) Indeed, in recounting Neal, the Janowsky court explained—as quoted in Plaintiff’s opposition— that “[t]he misstatements by the FmHA employees [in Neal] were not essential to the plaintiff’s claims.” Janowsky, 913 F.2d at 396 (emphasis added) (quoted in Opp. at 8). Janowsky only further demonstrates that Plaintiff’s “independent tort” theory has no vitality in light of Neal.

    The Court does not have subject-matter jurisdiction over Plaintiff’s FTCA claims, and even if such jurisdiction existed, Plaintiff has no standing to sue Mr. Kelley for legal malpractice as a matter of D.C. law (see infra, Part III.A). Accordingly, the accuracy of Mr. Kelley’s legal opinion is not currently before the Court. Should the Court permit Plaintiff’s case to proceed (and the Court should not), the merits of Mr. Kelley’s opinion will be discussed at the appropriate time.

    Case 3:15-cv-00147-PLR-HBG Document 23

    Filed 07/24/15 Page 15 of 33 PageID #: 774


    unemployable.”).)12 Accordingly, this action “aris[es] out of . . . misrepresentation” and must be dismissed. § 2680(h).13

    3. Plaintiff’s FTCA Claims Are Barred Because
    They Arise out of Interference with His Employment

    Plaintiff does not dispute that: (i) claims for alleged interference with both existing and prospective employment are barred by the § 2680(h) exception for interference with contract rights; and (ii) his employer-employee relationship with UT-Battelle was contractual in nature. (Mem. at 9–10.) Further, Plaintiff represents that his “contractual employment rights were certainly interfered with.” (Opp. at 9–10.) In fact, Plaintiff’s alleged FTCA damages comprise his supposed back pay, lost future earnings, and lost pension benefits. (Compare Compl. ¶ 96(D)


    Plaintiff suggests that the misrepresentation exception does not apply because he did not rely on Mr. Kelley’s legal opinion. (See Opp. at 7–8.) But reliance by Plaintiff, and only Plaintiff, is not necessary for the misrepresentation exception to apply. Neal does not speak of reliance by “the plaintiff”; rather, it frames the issue as reliance by a “recipient.” 460 U.S. at 296. “It would make little sense to find that plaintiff’s claim is barred if plaintiff relied upon misinformation, but is not barred if, by a fortuity, the reliance were by some third party with whom the plaintiff dealt.” Rich Prods. Corp. v. United States, 804 F. Supp. 1270, 1274 (E.D. Cal. 1992) (Levi, J.). “Congress’ purpose in providing for the misrepresentation exception evidently was to limit the Government’s exposure to suit based on the giving of inaccurate information. This purpose would be defeated by such a narrow reading of the reliance requirement.” Id.


    Plaintiff implies that the misrepresentation exception applies only to “business decision[s].” (Opp. at 7.) The Sixth Circuit, however, has imposed no such limitation. In Fitch v. United States, 513 F.2d 1013 (6th Cir. 1975), the plaintiffs prevailed at trial on the theory that one of the plaintiffs was wrongfully inducted into the armed forces. See id. at 1014–15. The Sixth Circuit reversed: “Appellees’ complaint ‘arose out of’ a negligent misrepresentation. It occurred when Government agents misrepresented Clyde Fitch’s obligation to enter the Army, telling him that he was required to serve when, in fact, he was free from that duty.” Id. at 1016. See also, e.g., Najbar v. United States, 723 F. Supp. 2d 1132, 1136 (D. Minn. 2010) (“The FTCA’s misrepresentation exception certainly reaches commercial claims, but there is little reason to think that it reaches only commercial claims.”), aff’d on other grounds, 649 F.3d 868 (8th Cir. 2011). That said, even if the misrepresentation exception applies only to business decisions, the termination of an employee easily falls within that category.

    Case 3:15-cv-00147-PLR-HBG Document 23

    Filed 07/24/15 Page 16 of 33 PageID #: 775


    (demanding $2,496,211 in FTCA damages) with Ex. E, Claimant Exhibit B to Plaintiff’s Administrative Claim (calculating $2,496,211 in alleged employment-related damages).)14

    Plaintiff’s no-contractual-interference argument is the same as his no-defamation argument, and fails for the same reasons. (See supra, Part II.B.1.) Courts have not adopted Plaintiff’s cause-in-fact versus consequent-damages theory in contractual interference cases, and for good reason: in any such case, a plaintiff could argue that some general negligence constituted the “cause-in-fact” and that contractual damages were simply consequential. This would write the contractual interference exception out of the FTCA.15 In sum, this action “aris[es] out of . . . interference with contract rights” and is thus barred by § 2680(h).

    C. The Discretionary-Function Exception Bars Plaintiff’s Claims

    1. Interpreting and Enforcing Standards of
    Conduct Constitutes a Protected Discretionary Activity

    In the opening memorandum, the United States explained that the “governing administrative policy at issue in Plaintiff’s legal malpractice claim is the government’s



    “Because Plaintiff referred to [his administrative claim] in his [Second] Amended Complaint . . . it is incorporated by reference and may be considered without converting this motion into one for summary judgment.” Guthrie v. U.S. Fed. Bureau of Prisons, No. 09 Civ. 990(LAP), 2010 WL 2836155, at *4 n.4 (S.D.N.Y. July 7, 2010), aff’d, 421 F. App’x 120 (2d Cir. 2011). (See Compl. ¶ 15 (referring to Plaintiff’s administrative claim).)

    In Peter B. v. United States, 579 F. Supp. 2d 78 (D.D.C. 2008), for example, the court held that a contractor plaintiff’s claims—including negligent false light invasion of privacy and negligent infliction of emotional distress—were “essentially contractual in nature despite the negligence labels he employs as he alleges that he was ‘terminated . . . for unspecified reasons.’” Id. at 80, 83 (quoting complaint); see also id. at 83 n.3 (“Where the alleged damage is entirely due to and measured in reference to plaintiffs’ performance of a contract . . . plaintiffs’ claim that the wrong originated in some statutory violation does not strip the case of its contractual character.”); Cadman v. United States, 541 F. App’x 911, 915 (11th Cir. 2013) (“[T]he portion of the negligence claim alleging a ‘failure to investigate,’ which purportedly led to Mr. Cadman’s termination from Booz–Allen–Hamilton, fails because the harm—interference with contract rights—is another tort expressly barred by § 2680(h).”).

    Case 3:15-cv-00147-PLR-HBG Document 23

    Filed 07/24/15 Page 17 of 33 PageID #: 776


    interpretation and enforcement of its standards of conduct, such as 18 U.S.C. § 207(c).” (Mem. at 11–13.) Plaintiff does not dispute that this administrative policy, set out in 5 C.F.R. § 2638.203, is discretionary and susceptible to policy analysis. Rather, Plaintiff urges that the discretionary-function exception does not apply because Mr. Kelley allegedly did not “‘exercise that degree of reasonable care and skill expected of lawyers acting under similar circumstances.’” (Opp. at 11 (quoting Morrison v. MacNamara, 407 A.2d 555, 561 (D.C. 1979)).) In other words, Plaintiff contends that Mr. Kelley did not have discretion to act negligently.

    As anticipated by the United States (see Mem. at 12 n.13), Plaintiff does precisely what the Sixth Circuit has forbidden: he “‘collapses the discretionary function inquiry into a question of whether the government was negligent.’” Kohl v. United States, 699 F.3d 935, 941 (6th Cir. 2012) (quoting Rosebush v. United States, 119 F.3d 438, 442 (6th Cir. 1997)). “Negligence, however, is irrelevant to our inquiry at this point.” Rosebush, 119 F.3d at 442. See Kohl, 699 F.3d at 942 (“To characterize the issue as whether the ATF employees had discretion to operate the winch in an unsafe manner is to ask whether the employees had discretion to be negligent. As we stated in Rosebush, negligence is irrelevant at this stage of the inquiry.”). Plaintiff ignores Kohl and Rosebush in favor of appeals to “congressional oversight committees.” (Opp. at 11 & 13.) Perhaps Plaintiff can seek a remedy from the legislative branch; he can obtain no relief here.

    Yet even if this Court were to disregard binding Sixth Circuit precedent and the actual governing administrative policy in favor of Plaintiff’s impermissible negligence-based approach, Plaintiff still has not identified “a mandatory regulation or policy” that directs that the government apply § 207(c) “in [a] specific manner” and “allow[s] no judgment or choice.” Rosebush, 119 F.3d at 441–42. Nor can he. The interpretation of law is necessarily an exercise of professional judgment, as recognized in the very authority that Plaintiff cites. See, e.g., D.C.


    Case 3:15-cv-00147-PLR-HBG Document 23 Filed 07/24/15 Page 18 of 33 PageID #: 777

    R. Prof’l Conduct 2.1 (“a lawyer shall exercise independent professional judgment”); see also Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662, 668 (D.C. 2009) (“no claim of legal malpractice will be actionable for an attorney’s reasoned exercise of informed judgment on an unsettled proposition of law”).

    Further, Designated Agency Ethics Officials (“DAEOs”) are not just charged with remedying actual violations of § 207(c). They are empowered to remedy “potential violations” and even “appearances thereof.” 5 C.F.R. § 2638.203(b)(9)(i). Even assuming arguendo that Plaintiff was not in actual violation of § 207(c), his communication with FBI officials within his one-year restrictive window qualifies as a “potential violation” or an “appearance thereof” § 2638.203(b)(9)(i), and an agency ethics official would have discretion to take “[p]rompt and effective [remedial] action,” § 2638.203(b)(9), to avoid “even the appearance of public office being used for personal or private gain.” S. Rep. No. 95–170, at 32 (1977), reprinted in 1978 U.S.C.C.A.N. 4216, 4248. Plaintiff fails to identify a “specific regulation[] that would constrain the judgment exercised” Snyder v. United States, 590 F. App’x 505, 510 (6th Cir. 2014), and makes no effort to overcome the “strong presumption” that this discretion is susceptible to policy analysis, A.O. Smith Corp. v. United States, 774 F.3d 359, 365 (6th Cir. 2014); see also S. Rep. No. 95–170, at 32 (post-employment restrictions are “a statement of federal policy on this aspect of conflict of interest”). Accordingly, this action is barred. 28 U.S.C. § 2680(a).

    2. Agency Supervisory and Hiring Decisions Constitute Protected Discretionary Activity

    As the United States explained in the opening memorandum, the Sixth Circuit “has consistently held that agency supervisory and hiring decisions fall within the discretionary function exception.” Snyder, 590 F. App’x at 510 (collecting cases). (See Mem. at 13–14.) Plaintiff does not address Snyder (or any other cited authorities), nor does he identify any federal


    Case 3:15-cv-00147-PLR-HBG Document 23 Filed 07/24/15 Page 19 of 33 PageID #: 778

    statute or regulation that would constrain Mr. Holder’s supposed supervisory responsibilities. As to Mr. Mueller’s supposed hiring duties, Plaintiff points to two broad provisions, neither of which directs him to act “in [a] specific manner,” “allow[ing] no judgment or choice.” Rosebush, 119 F.3d at 441–42; see also id. at 442 (similarly broad provisions “vest complete discretion” in the Forest Service). Plaintiff even concedes that hiring duties implicate judgment. (Opp. at 13.)

    Plaintiff’s only (and unsupported) argument is that these discretionary supervisory and hiring duties “were wholly skirted rather than actually performed.” (Id.) But “[t]he discretionary function exception applies to all acts and omissions that are susceptible to policy analysis, whether or not that analysis has been performed on a given occasion.” Fothergill v. United States, 566 F.3d 248, 253 (1st Cir. 2009); see A.O. Smith Corp. v. United States, No. 3:12–0429, 2013 WL 771919, at *4 (M.D. Tenn. Feb. 28, 2013) (“For the government to fall within the discretionary function exception, the deciding agent need not have actually considered any policy implications; instead, the decision must only be susceptible to policy analysis.”), aff’d, 774 F.3d 359 (6th Cir. 2014).

    In sum, “FBI hiring, supervision, training, and retention require policy judgments—the

    type that Congress intended to shield from tort liability.” Snyder, 590 F. App’x at 510.


    A. Plaintiff’s Legal Malpractice Claim Fails as a Matter of Law

    Plaintiff wisely abandons the argument that he was Mr. Kelley’s client. (Compare Compl. ¶ 61 (arguing that Mr. Kelley “fomented an attorney-client relationship with Plaintiff”) with Opp. at 13–18 (making no such argument).) Nevertheless, Plaintiff insists that he can bring a legal malpractice suit under the “intended beneficiary” exception to what he now concedes is “the general rule that ‘the obligation of the attorney is to his client, and not to a third party.’”


    Case 3:15-cv-00147-PLR-HBG Document 23 Filed 07/24/15 Page 20 of 33 PageID #: 779

    (Opp. at 13 (quoting Needham v. Hamilton, 459 A.2d 1060, 1061 (D.C. 1983)).) Plaintiff implores that this exception “is not so rare” (id.); the District of Columbia’s highest court disagrees. See Taylor v. Akin, Gump, Strauss, Hauer & Feld, 859 A.2d 142, 147 (D.C. 2004) (“With rare exceptions, a legal malpractice claim against an attorney [requires] the existence of an attorney-client relationship.”) (footnote omitted). And Plaintiff does not cite a single case, outside of the wills context, where the exception was successfully applied. See also Clark v. Feder Semo & Bard, P.C., 634 F.Supp.2d 99, 107 (D.D.C. 2009) (noting that “few cases . . . apply the intended beneficiary exception in other [i.e., non-wills] contexts”).16

    Plaintiff’s argument hinges on the notion that he “was the direct and intended beneficiary of [the allegedly] erroneous legal counsel because counseling Plaintiff was the end aim of the transaction.” (Opp. at 17.) Plaintiff’s vigorous attempt to jam his tortured legal malpractice claim into the “rare” intended-beneficiary exception must be rejected.

    As the United States explained in the opening memorandum, the purpose of § 207(c) and its regulations is to ensure government efficiency, eliminate official corruption, promote even- handed exercise of administrative discretion, and avoid even the appearance of public office being used for private gain. (See Mem. at 15–16 (quoting S. Rep. No. 95–170, at 31–32).) Plaintiff does not argue otherwise. Thus, to the extent that Mr. Kelley “counsel[ed] Plaintiff,” (Opp. at 17), the “end aim of the transaction” was to enforce § 207(c) and thus benefit the FBI.


    Reviewing a summary judgment in favor of defendants, the court in Williams v. Mordkofsky, 901 F.2d 158 (D.C. Cir. 1990), noted that the defendant-attorney “may well have reached an understanding” with the common owner of two companies that one of the companies “was an intended beneficiary of [his] representation of” the second company. Id. at 163–64 (emphasis added). Ultimately, this factual question was irrelevant; the court affirmed the summary judgment order because there was no evidence of proximate cause. See id. at 164.


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    This conclusion is borne out by the regulations. The DAEO’s duties are enumerated in 5 C.F.R. § 2638.203, entitled “Duties of the designated agency ethics official.” Section 2638.203 tasks the DAEO with “coordinat[ing] and manag[ing] the agency’s ethics program.” § 2638.203(a) (emphasis added). And “[i]n carrying out this program on behalf of the head of the agency, the designated agency ethics official shall ensure that . . . [p]rompt and effective action . . . is undertaken to remedy . . . [v]iolations or potential violations, or appearances thereof, of the agency’s standards of conduct including post employment regulations.” § 2638.203(b), (b)(9) & (b)(9)(i) (emphasis added). Plaintiff effectively concedes that his legal malpractice claim fails if the regulations “required DAEOs to counsel the agency on the applicability of post- employment conflict of interest statutes to former agency employees.” (Opp. at 17 (emphasis in original).) But that is what § 2638.203 authorizes the DAEO to do, in furtherance of “the agency’s ethics program” and “on behalf of the head of the agency.” § 2638.203(a) & (b).

    To be sure, DAEOs may speak with former employees about their post-employment obligations—but as part and parcel of the DAEO’s responsibility to “coordinate and manage the agency’s ethics program.” § 2638.203(a). Nothing in the regulations suggests that DAEOs serve as former employees’ personal criminal defense counsel. (See also Mem. at 15 n.17 (explaining that there is no attorney-client relationship between DAEOs and former employees).)

    In an effort to convince this Court otherwise, Plaintiff references another section, § 2638.202, which is entitled “Responsibilities of agency head.” Section 2638.202 tasks an agency head with selecting a DAEO whose experience demonstrates the ability to, inter alia, “[c]ounsel departing and former agency officials on post-employment conflict of interest standards” and “[c]ounsel agency personnel concerning ethics standards and programs. § 2638.202(b), (b)(3) & (b)(4) (emphasis added). Even assuming arguendo that § 2638.202


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    prescribes duties to DAEOs, protecting the government’s integrity—not keeping former employees employed in the private sector and out of jail—is still the “end aim” of the DAEO’s work.

    Plaintiff’s legal malpractice claim fails for two additional reasons. First, Plaintiff does not dispute that his interests and those of the FBI diverge significantly. (See Mem. at 15–16.) But D.C.’s highest court recently emphasized that the rare intended-beneficiary exception applies only where the interests of the client and the supposed intended beneficiary are identical. See Scott v. Burgin, 97 A.3d 564, 567–68 (D.C. 2014). Plaintiff tries to avoid the Scott holding, yet what he derides as dicta (Opp. at 16), the D.C. Court of Appeals deems a “‘concern underlying the privity concept’”— “‘that attorney and client be able to control . . . their own agreement.’” Scott, 97 A.3d at 567 (quoting Hopkins v. Akins, 637 A.2d 424, 429 (D.C. 1993)). In any event, “[w]hen the state’s highest court has not decided the applicable law, the federal court must ascertain the state law from all relevant data, including . . . supreme court dicta.” Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d 445, 449 n.3 (6th Cir. 2000).

    Second, as the United States explained in the opening memorandum, “it is difficult to

    conceive of how the relationship between Plaintiff and the FBI, as alleged in the Second

    Amended Complaint, could be described as anything other than adversarial.” (Mem. at 16.)

    Plaintiff does not dispute this characterization (see Opp. at 15),17 and instead suggests that an

    entity’s adversary can assert a legal malpractice claim against the entity under D.C. law. (See


    Plaintiff mischaracterizes the United States’ argument as stating that Mr. Kelley’s “relationship became ‘adversarial’ with Plaintiff after [Mr.] Kelley conveyed his [allegedly] erroneous legal opinion.” (Opp. at 15 (emphasis in original).) The United States’ position is that Plaintiff’s plausible factual allegations generally must be accepted as true at this stage of litigation, and according to Plaintiff, he has long been at odds with the FBI. (See, e.g., Compl. ¶ 49 (alleging that Plaintiff is “the target of a discrete, insular and longstanding vendetta by Defendants”) (emphasis added); see generally Mem. at 16.)


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    Opp. at 15–17.) But “[t]he third party beneficiary test simply does not apply in an adversary context.” Hopkins, 637 A.2d at 429. Plaintiff offers no substantive response.

    In sum, Plaintiff does not proffer a single case standing for the proposition that he can sue Mr. Kelley for legal malpractice. Multiple controlling opinions demonstrate that he cannot. But even assuming arguendo that D.C. law is ambiguous on this point, “federal courts must be cautious when making pronouncements about state law.” In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 756 F.3d 917, 937 (6th Cir. 2014). “[W]hen given a choice between an interpretation of state law which reasonably restricts liability, and one which greatly expands liability, we should choose the narrower and more reasonable path.” Id. So, too, here.

    B. Plaintiff’s Negligent Hiring, Supervision, and Training Claims Fail as a Matter of Law

    Plaintiff does not dispute that his inability to establish an underlying tort precludes his ability to bring claims for negligent hiring, supervision, and training. (Mem. at 17.) Nor does he dispute that he does not “plausibly plead: (i) that Mr. Holder failed to adequately supervise and train Mr. Kelley; (ii) that Mr. Mueller failed to vet Mr. Kelley . . . ; or (iii) that any such alleged negligence was a substantial factor in causing his injury.” (Id.) Accordingly, Plaintiff’s claims for negligent hiring, supervision, and training fail as a matter of law.

    In an effort to save these barely-pled claims from dismissal, Plaintiff argues that Messrs. Holder and Mueller knew or should have known about a supposedly erroneous opinion concerning OSHA regulations, issued by Mr. Kelley over six years before Mr. Kelley sent the e-mail at issue in this case. (See Opp. at 18–19; Compl. ¶ 53(i).) But Plaintiff pleads no details about this alleged OSHA opinion, nor does he plausibly allege that Messrs. Holder or Mueller had actual or constructive knowledge of this supposed opinion. (See Compl. ¶¶ 81–85.) For these reasons, Plaintiff’s Counts II and III should be dismissed as a matter of law.


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    C. Plaintiff’s Privacy Act Claim Fails as a Matter of Law

    Plaintiff’s tag-along claim under the disclosure provision of the Privacy Act, 5 U.S.C. § 552a(b), should be dismissed for failure to state a claim. (See Mem. at 18–25.) Even though Plaintiff bears the burden of pleading facts in support of all elements of a Privacy Act disclosure claim, Doe v. U.S. Dep’t of Justice, 660 F. Supp. 2d 31, 44–45 (D.D.C. 2009), Plaintiff has failed to allege sufficient facts for every essential element.

    1. Plaintiff Fails to Identify a Record in a “System of Records”

    The Privacy Act prohibits disclosure of “any record which is contained in a system of records by any means of communication.” § 552a(b). To qualify as a “system of records” under the Privacy Act, the record must be “both retrievable by personal identifier and actually retrieved by personal identifier.” Paige v. DEA, 665 F.3d 1355, 1359 (D.C. Cir. 2012) (quoting Maydak v. United States, 630 F.3d 166, 178 (D.C. Cir. 2010)) (emphasis in original). Accordingly, to allege a violation of § 552a(b), a plaintiff must allege facts showing that an unauthorized disclosure resulted “from an individual’s having ‘actually retrieved’ the information from the system of records in which it is contained.” Id. (citing Armstrong v. Geithner, 608 F.3d 854, 857 (D.C. Cir.2010)). (See also Mem. at 19–20.)

    Plaintiff argues that the Complaint identifies “two sets of records” in the United States’ system of records: Mr. Kelley’s e-mail message containing his allegedly “erroneous legal opinion” and the “allegations and investigative results” of DOJ and FBI’s inquiry into whether § 207(c) limited Plaintiff’s post-federal employment. (Opp. at 21.) Both contentions are without merit.

    First, as the United States previously explained, an agency e-mail discussing a particular individual is not a record in a system of records absent factual allegations that the e-mail was formally indexed and retrieved by plaintiff’s name or personal identifier, and Plaintiff fails to


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    allege any such facts with respect to the Kelley e-mail. (Mem. at 20.) In response, Plaintiff merely speculates, based on regulations requiring DAEOs to keep records on advice rendered, when appropriate, that the Kelley e-mail was maintained in a Privacy Act records system. (Opp. at 22 (citing 5 C.F.R. § 2638.203(b)(8)).) But the general requirement to keep records on advice rendered does not mean, or even suggest, that the Kelley e-mail was kept in a system of records that was retrievable by Plaintiff’s name or personal identifier. Indeed, Mr. Kelley could have met this requirement by merely archiving the e-mail. Nor does this requirement have anything to do with whether the e-mail was actually retrieved. See Krieger v. U.S. Dep’t of Justice, 529 F. Supp. 2d 29, 47 (D.D.C. 2008) (“[A]pplication of the rule of retrieval means, in practical effect, that even if an agency official discloses information that exists in the agency’s records, the disclosure is rarely actionable unless the official physically retrieved the information from those records.”).

    Second, Plaintiff cannot satisfy the system of records requirement by generally stating that FBI and DOJ maintain a system of records with respect to the investigation of Plaintiff’s alleged violation of § 207(c). Plaintiff argues, in essence, that a record system must exist because the DOJ and FBI conducted an investigation into whether post-employment conflict of interest statutes limited Plaintiff’s post-federal employment, and the DOJ and FBI, as a general matter, keep investigative records and provide notice of such records in the Federal Register. (Opp. at 21–22 (citing 63 Fed. Reg. 8659–02 (Feb. 20, 1998) and 72 Fed. Reg. 36,725 (July 5, 2007)).) Plaintiff’s citation to the Privacy Act notices in the Federal Register and his guess that his personal records might exist in the world of government records do not plausibly show that the FBI maintains a specific agency record, the disclosure of which would violate the Privacy Act. See New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1050–51 (6th Cir.


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    2011) (“[C]ourts may no longer accept conclusory legal allegations that do not include specific facts necessary to establish the cause of action.”) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Harris v. Holder, 885 F. Supp. 2d 390, 400–01 (D.D.C. 2012) (plaintiff failed to state a claim where allegations were so vague that the court could not determine whether the information alleged to be disclosed constituted a “record” or whether the information was “maintained in systems of records” as required for claim under the Privacy Act); accord Voinche v. Obama, 428 F. App’x 2, 4 (D.C. Cir. 2011); Del Fuoco v. O’Neill, No. 8:09–CV–1262–T– 27MAP, 2011 WL 601645, at *9 (M.D. Fla. Feb. 11, 2011); Young v. Tryon, No. 12–CV–6251– CJS–MWP, 2013 WL 2471543, at *6 (W.D.N.Y. June 7, 2013). Indeed, if a plaintiff could simply cite the Federal Register and surmise that his records are contained in one of the noticed systems, then the systems of records requirement would be no requirement at all.

    Moreover, Plaintiff fails entirely to address the fact he has not pleaded any factual allegations that records of the investigation, even if maintained in a Privacy Act records system, were actually retrieved. Rather, he claims that discovery will develop such facts, implicitly acknowledging his failure to plead them. (Opp. at 22.)18

    2. Plaintiff Fails to Allege an Actual
    Unauthorized Disclosure of His Agency Records

    Even if Plaintiff could identify a specific record in a system of records, to state a claim under the Privacy Act, Plaintiff must allege facts showing that DOJ and FBI improperly disclosed the protected information. Plaintiff failed to allege that records of the investigation of


    In addition, and as discussed more fully below, Plaintiff’s failure to identify a record in a system of records means he cannot plausibly allege the other essential elements of a Privacy Act disclosure claim. Without alleging facts showing what federal records are at issue, Plaintiff cannot allege that the FBI or the DOJ intentionally and willfully disclosed a specific federal record without authorization in a manner that caused Plaintiff financial loss.


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    his alleged violation of §207(c) were disclosed, let alone without authorization, despite complaining at length about the fact and conduct of the investigation. (See Compl. ¶ 40.) And, as demonstrated in the United States’ opening memorandum, the disclosure of the Kelley e-mail containing his ethics opinion was authorized under the “need to know” exemption of the Privacy Act. See 5 U.S.C. § 552a(b)(1). (Mem. at 20–22.)

    The individuals and offices to which Plaintiff alleges the FBI and DOJ improperly

    disclosed the ethics opinion—executive managers in the FBI Counterintelligence Division, the

    Knoxville FBI Special Agent in Charge, Plaintiff’s employer UT-Battelle, and the Department of

    Justice Office of the Inspector General—all had a need for the opinion in the performance of

    their duties.19 Under regulations governing executive agency ethics programs, the DAEO is

    responsible for coordinating and managing FBI’s ethics program. See generally 5 C.F.R.

    §2638.203. Official duties include taking “[p]rompt and effective action including

    administrative action” to remedy “[v]iolations or potential violations, or appearances thereof, of

    the agency’s standards of conduct including post employment regulations.” § 2638.203(b)(9)(i).

    The DAEO also is required to ensure that the services of the Office of Inspector General “are

    utilized when appropriate, including the referral of matters to and acceptance of matters from

    that Office concerning all ethics and standards of conduct matters including post employment

    matters.” § 2638.203(b)(12).


    Plaintiff’s Second Amended Complaint also alleges that Defendants disclosed the legal opinion to “unknown, unnamed” individuals within and outside of FBI and DOJ. (See Compl. ¶¶ 11, 12, 37.) Plaintiff, however, does not allege any facts at all regarding the circumstances of these alleged disclosures to these anonymous individuals: he does not allege who disclosed the legal opinion to these anonymous people; when the opinion was disclosed; how the opinion was disclosed; why such disclosure was unauthorized; why these disclosures were willful or intentional; or how these disclosures caused financial loss. Plaintiff accordingly has not stated a plausible claim for relief under the Privacy Act with respect to the alleged anonymous recipients of the legal opinion.


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    In light of these regulatory provisions, Mr. Kelley, as an FBI ethics official, was authorized to disclose his ethics opinion to FBI Headquarters personnel and FBI Knoxville personnel, who would need to know whether a federal criminal statute restricted Plaintiff’s communications with FBI agents. The Privacy Act’s “need to know” exemption is not limited to “officers and employees within a certain office within an agency” and instead can extend to “officers and employees of the entire agency.” Hanna v. Herman, 121 F. Supp. 2d 113, 123–24 (D.D.C. 2000); see also, e.g., Sussman v. U.S. Marshals Serv., 808 F. Supp. 2d 192, 203–04 (D.D.C. 2011) (explaining that disclosures from an agency component to another agency component can qualify as intra-agency disclosures made on a need-to-know basis under § 552a(b)(1)) (collecting cases).

    The FBI also was authorized to disclose the ethics opinion to UT-Battelle, a private government contractor that qualifies under the Privacy Act as an agency “employee” with a need to know the record. (See Mem. at 21–22 (citing, among other cases, Mount v. U.S. Postal Serv., 79 F.3d 531, 532 (6th Cir. 1996)).) As Plaintiff’s employer, UT-Battelle would need to know whether a federal criminal statute limited Plaintiff’s communications with the FBI while he was working at UT-Battelle. Finally, FBI was authorized to refer its legal opinion to the Department of Justice Office of Inspector General for investigation. Section 2638.203 specifically permits ethics officials to refer post-employment ethical matters to the OIG for investigation, §2638.203(b)(12), and the OIG has the authority to “investigate allegations of criminal wrongdoing or administrative misconduct by an employee of the Department of Justice.” 5 U.S.C. app. 3 § 8E(b)(2). See also Roberts v. U.S. Dep’t of Justice, 366 F. Supp. 2d 13, 24–25 (D.D.C. 2005) (granting DOJ’s motion to dismiss Privacy Act claim because allegations that


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    DOJ OIG provided FBI investigative reports “fall far short of stating a claim under the Privacy Act”).

    Plaintiff fails to address this “need to know” argument—clearly set forth in the United States’ opening memorandum—in any way in his opposition. (See Opp. at 22–23.) His Privacy Act claim should be dismissed for failure to allege an unauthorized disclosure.

    3. Plaintiff Fails to Allege Facts Showing FBI
    and DOJ Intentionally and Willfully Violated the
    Privacy Act by Disclosing His Records Without Authorization

    As set forth in the United States’ opening memorandum, Plaintiff’s Privacy Act claim also should be dismissed because he does not allege facts showing Defendants intentionally and willfully violated the Act’s disclosure provision, 5 U.S.C. § 552a(g)(4). (See Mem. at 22–23.) To show intent or willfulness under the Act, a plaintiff must allege facts showing that a federal agency engaged in behavior “so patently egregious that anyone undertaking the conduct should have known it was unlawful.” Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). Put another way, a plaintiff must show that the offending agency acted “without grounds for believing [its actions] to be lawful” or “flagrantly disregarded plaintiff’s rights under the Privacy Act.” Mount, 79 F.3d at 533.

    Plaintiff’s opposition fails to demonstrate that any purported unauthorized disclosure was flagrantly improper or egregious. Plaintiff argues that the ethics opinion was “grossly negligent and erroneous,” (Opp. at 24), but gross negligence does not satisfy the intentional or willful standard. See Mount, 79 F.3d at 533 (noting that Privacy Act sets forth a standard “somewhat greater than gross negligence”) (citing White v. Office of Personnel Mgmt., 840 F.2d 85, 87 (D.C. Cir. 1988) (per curiam)) (emphasis added). Plaintiff also claims that FBI issued the opinion in 2012 to retaliate against Plaintiff for his alleged whistleblower activity during FBI’s anthrax investigation in 2006. (See Compl. ¶¶ 49–56; Opp. at 24.) Speculation about a motive, however,


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    is not the same thing as plausibly alleging that the FBI knew or should have known that the conduct was unlawful. As demonstrated above, the FBI had every reason to believe the disclosure of the ethics opinion was indeed authorized and lawful under the “need to know” exemption of the Privacy Act. And Plaintiff certainly has not provided any allegations showing that the disclosure of a specific agency record was so egregious or flagrant that anyone making the disclosure would know that such conduct was unlawful. Mount, 79 F.3d at 533.

    4. Plaintiff Fails to Allege that He Sustained “Actual Damages”
    as a Result of an Unauthorized Disclosure of a Privacy Act Record

    Plaintiff does not dispute that, under Supreme Court precedent, the Privacy Act does not allow recovery for non-pecuniary harms, such as loss of reputation and mental and emotional distress. See F.A.A. v. Cooper, 132 S. Ct. 1441, 1451 (2012); (Mem. at 23.) Thus, to the extent Plaintiff seeks to recover for non-monetary harms under the Privacy Act, he has failed to state a claim upon which relief can be granted.

    Plaintiff argues that “as the result of . . . Defendant’s Privacy Act violations Plaintiff suffered the termination of his employment and the resulting loss of future earnings valued at $2,496,211.” (Opp. at 24.) Plaintiff cannot satisfy the causal connection required by the Privacy Act between these alleged pecuniary damages and the alleged unauthorized disclosure, however. (Mem. at 23–24.) In particular, Plaintiff has not plausibly alleged facts showing that the legal opinion in the Kelley e-mail is causally connected to third-party UT-Battelle’s decision to terminate his employment. (Mem. at 24–25.) As noted in the United States’ opening memorandum, Plaintiff’s allegations in his 2013 action—that it was his whistleblowing activities while employed at UT-Battelle that caused his termination—cast serious doubt on his causation argument here. (Mem. at 1.) The fact that UT-Battelle terminated Plaintiff’s employment three


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    months after the one-year period restricting Plaintiff’s communications expired further undermines Plaintiff’s causation argument. (Id. at 24.)

    Plaintiff fails to respond to these arguments, hanging his hat instead on his conclusory claim that he “was fired because of Defendant Kelley’s erroneous legal opinion,” asserting that this is “a statement of fact, not a conclusion of law.” (Opp. at 24 (emphasis in original).) Contrary to Plaintiff’s argument, this is precisely the type of “conclusory legal allegation[] that do[es] not include specific facts necessary to establish the cause of action.” New Albany Tractor, 650 F.3d at 1050. Plaintiff has failed to plead facts necessary to establish causation, and his Privacy Act claim should be dismissed for failure to adequately allege actual damages, along with the other reasons set forth above.


    For all of the foregoing reasons, and for the reasons in the United States’ opening memorandum, Plaintiff’s Counts I through IV should be dismissed.

    Dated: July 24, 2015

    /s/ Matthew A. Josephson (by consent) MATTHEW A. JOSEPHSON
    (Ga. Bar No. 367216)
    Trial Attorney

    United States Department of Justice Civil Division, Federal Programs Branch Post Office Box 883
    Washington, D.C. 20044
    Telephone: (202) 514-9237

    Respectfully submitted,

    /s/ Elliott M. Davis ELLIOTT M. DAVIS (N.Y. Reg. No. 4596755) Trial Attorney

    United States Department of Justice Civil Division, Torts Branch
    Post Office Box 888
    Washington, D.C. 20044
    Telephone: (202) 616-4206 Facsimile: (202) 616-5200

    Facsimile: E-mail:

    (202) 616-8470

    Attorneys for Defendants United States of America; Eric Holder; Robert S. Mueller III; Patrick W. Kelley (in his official capacity only); the U.S. Department of Justice; and the Federal Bureau of Investigation (Additional counsel listed on front cover.)


    Case 3:15-cv-00147-PLR-HBG Document 23 Filed 07/24/15 Page 32 of 33 PageID #: 791


    I hereby certify that on July 24, 2015, I electronically filed the foregoing with the Clerk of Court via the Court’s Electronic Filing System, which will provide electronic notification to all Filing Users. Any parties who are not Filing Users will be served with a paper copy of the foregoing by first-class mail, postage pre-paid.

    Dated: July 24, 2015 /s/ Elliott M. Davis Elliott M. Davis

    Case 3:15-cv-00147-PLR-HBG Document 23 Filed 07/24/15 Page 33 of 33 PageID #: 792

  39. DXer said

    The families of the Fall 2001 anthrax victims deserve the peace of knowing that the murder of their loved ones was in fact solved.

    Today a dead body was found here. One of two kayakers. I am typically at the island picture just to the right of where the body was found. I’m always there all by myself, with no one else on the island, except me and Dutch Schultz’ buried treasure. The second body, in my estimation — taking into account when a body floats based on the temperature of the water — is due to hit my lounge chair early this evening. I’m going to patrol the north and western shore tonight before it gets dark. Hopefully, the family will be able to hold a proper funeral without this continuing ordeal of looking for the body.

  40. DXer said

    NBC Anthrax Flashback

  41. DXer said

    I respectfully disagree with the famous former wrestler and Minnesota Governor Jesse Ventura — and all those who share the theory he states — for the reasons I’ve set forth. (I set out my theory, for example, as to the processor and the mailer in the past 6 graphics).

    But I agree generally with all those who recognize that the FBI has not released evidence or made argument that is persuasive of its “Ivins Theory.”

    Additional graphics explaining why the evidence put forth as supporting an Ivins theory is uploaded here.

    Jesse points to the claim that they had started to take Cipro and asks:

    “When did they come up that anthrax would be used?”


    Judith Miller addresses her anthrax reporting in “The Story: A Reporter’s Journey” (April, 2015) ; she reports that both Bush and Cheney were vaccinated against smallpox and anthrax
    Posted on April 20, 2015

    That’s easy — see February 6, 2001 PDB. The IC knew that Dr. Ayman Zawahiri planned to attack the US with anthrax.

    DXer … if we knew what President Bush knew in February 2001, Amerithrax would be seen with entirely different eyes
    Posted by Lew Weinstein on March 2, 2010

    The lawyer for the blind sheik Abdel-Rahman had announced his intent — and also the motive (to retaliate for the rendering of senior EIJ leaders, to include the Blind Sheik). (I knew of the threat from reading the CIA’s open source database World News Connection.
    (containing translated foreign articles)

    DXer: The Blind Sheik’s Lawyer Montasser Al-Zayat Announced In 1999 That Ayman Zawahiri Would Use Anthrax Against US Targets To Retaliate For Imprisonment Of Senior EIJ Leaders, Most Notably Blind Sheik Abdel-Rahman
    Posted on June 3, 2013

    Below is Jesse’s video. In any future coverage, they should correct the spelling of Bruce’s last name. It is Ivins.

  42. DXer said

    USA: Neue Wende im Anthrax-Fall
    Andreas von Westphalen 23.04.2015
    Der FBI-Chefermittler Lambert erhebt Anklage und weist auf entlastende Beweise, schlampige Untersuchungen und Behinderungen in der “wichtigsten Untersuchung des FBI” hin
    Zur Erinnerung: Den Anthrax-Anschlägen fielen 5 Menschen zum Opfer und 17 Menschen erkrankten zum Teil schwer. Die landesweite Dekontaminierung kostete mehr als 1 Milliarde US-Dollar. Was folgte war “die wichtigste Untersuchung in der Geschichte des FBI”, die insgesamt neun Jahre dauern sollte.

    Anthrax-Brief an Senator Daschle. Bild: FBI
    Nachdem im Sommer 2002 das FBI den Mikrobiologen Stephen Hatfill als Hauptverdächtigen benannte und offen überwachte, ohne aber eine Anklage gegen ihn zu erheben, schwenkte ab 2004 der Verdacht auf den Mikrobiologen Bruce Ivins. Ivins wurde von dem FBI ebenfalls offen beschattet, seine Familie unter Druck gesetzt, sein Haus zweimal durchsucht. Er verfiel zunehmend dem Alkohol. Am 29. Juli 2008 beging Ivins Selbstmord. Wenige Tage später bezeichnete das FBI Ivins als Person, die alleine für die Anthrax-Anschläge verantwortlich war, und präsentierte Beweise. Der Staatsanwalt erklärte, dass man anhand der existierenden Beweise die Schuld von Bruce Ivins ohne jeden Zweifel belegen könnte.
    Der jahrelang öffentlich gebrandmarkte Stephen Hatfill erhielt rund 5,6 Millionen US-Dollar Schadensersatz (Das Anthrax kam vom Militär). Im Februar 2010 stellte das FBI und das US-Justizministerium die Untersuchung zu den Anthrax-Morden endgültig ein und bestätigte, dass Bruce Ivins der alleinige Täter gewesen sei (FBI schließt endgültig Anthrax-Fall).
    Anklage des Chefermittlers
    Niemand anderes als Richard Lambert, der von 2002 bis 2006 die FBI-Untersuchung der Anthrax-Morde leitete, erklärt nun, dass das FBI eine “gigantische Menge (für Ivins) entlastender Beweise” gefunden hatte, die aber bis heute geheim gehalten wurden. Es könne theoretisch möglich sein, dass Ivins tatsächlich der Täter gewesen ist, glaubt Lambert. Aber er ist überzeugt, dass es dem FBI niemals gelungen wäre, Ivins Schuld zweifelsfrei zu beweisen, wäre es tatsächlich zu einer Gerichtsverhandlung gekommen.
    Vor wenigen Tagen reichte Lambert eine Klage gegen einige Mitarbeiter des US-Justizministeriums und des FBI ein. Er wirft den Beschuldigten Amtsmissbrauch und grobe Fahrlässigkeit vor. Während Lambert die Untersuchung leitete, stieß er auf Unnachgiebigkeit seiner Vorgesetzten, Teilnahmslosigkeit und Fehler des FBI-Labors und politisch motivierte Kommunikations-Embargos seitens der FBI-Zentrale. Dies alles habe die Untersuchung in sehr hohem Masse behindert und erschwert.
    Bereits 2006 hatte Lambert intern einen Whistleblower-Bericht an den Stellvertretenden Direktor des FBI geleitet, in dem er das Missmanagement der Untersuchung anprangerte. Die dort aufgeführten Kritikpunkte finden sich auch in der Klageschrift. So kritisierte er in dem Whistleblower-Bericht die permanente Unterbesetzung. Zudem bestand das Untersuchungsteam hauptsächlich aus Agenten, die gerade die Ausbildung beendet hatten. Die Mitarbeiter blieben durchschnittlich nur 18 Monate. 12 von 20 Agenten hätten überhaupt keine Ermittlungserfahrung gehabt. Für die “wichtigste Untersuchung in der Geschichte des FBI” kaum optimale Voraussetzungen, um den Mörder in diesem hochkomplexen Fall zu finden.
    Ein weiterer Punkt des Whistleblower-Berichts und der Klageschrift ist die absichtliche Geheimhaltung des FBI-Labors vor dem Untersuchungsteam, dass menschliche DNA auf dem mit Anthrax gefüllten Briefumschlag an Senator Patrick Leahy gefunden worden war. Ebenso die Weigerung des Labors, zügige und angemessene wissenschaftliche Analysen und forensische Untersuchungen durchzuführen.
    2008 verbot das FBI Richard Lambert mit dem Fernsehsender CBS zu sprechen, die einen Dokumentarfilm über die Anthrax-Untersuchung planten. Ein Teil von Lamberts Whistleblower-Bericht wurde jedoch in dem ausgestrahlten Bericht angeführt, der das FBI in ein sehr kritisches Licht rückte.
    Lambert schied 2012 beim FBI aus dem Dienst aus. Sein Versuch im Energieministerium eine Stelle anzutreten,scheiterte an einer Intervention des FBI. Insgesamt gelang es Lambert nicht, einen neuen Beruf zu finden, obwohl er sich auf 70 Stellen beworben hat. Daher beinhaltet seine Klageschrift auch, dass dies das Resultat einer Vergeltungsmaßnahme des FBI wegen seiner kritischen Haltung sei.


    Anthrax-Sporen. Bild: Pentagon
    Viele Gründe für Zweifel
    Seit Jahren gab es massive Zweifel an der Behauptung des FBI, Bruce Ivins sei für die Anthrax-Morde verantwortlich. Immer wieder hatten Mikrobiologen darauf hingewiesen, dass Ivins gar nicht die Möglichkeit gehabt hätte, das in den Mordfällen benutzte Anthrax selber herzustellen. Ebenso konnte das FBI nie nachweisen, wie Ivins den entsprechenden Briefkasten, in dem die Anthrax-Briefe eingeworfen wurden, auch nur theoretisch zur Tatzeit hätte erreichen können, um die Mordwaffe auf den Postweg zu bringen (Das Anthrax kam vom Militär).
    Bereits einen Tag, nachdem das FBI den toten Ivins als Einzeltäter präsentiert hatte, forderten die New York Times,die Washington Post und das Wall Street Journal eine unabhängige Untersuchung. Am selben Tag verlangten auch Senator Charles Grassley und der Abgeordnete Rush Holt eine Untersuchung der FBI-Untersuchung. Doch die US-Regierung lehnte dieses Ansinnen zuletzt im August 2010 ab.
    Geschicktes Ausnutzen politischer Möglichkeiten
    Die US-Regierung erwies ein erstaunliches Geschick, um die akute Panik, in der sich die USA nach den Anschlägen des 11. Septembers befand, für die eigene politische Agenda auszunutzen. Nur acht Tage nach den Anschlägen wurde dem Kongress die erste Fassung des US-Patriot-Act zur Abstimmung vorgelegt. Das 342 Seiten lange Gesetz, das die bürgerlichen Freiheiten massiv einschränken würde, sollte im Eiltempo durchgewunken werden. Tom Daschle, der demokratische Mehrheitsführer im Senat, war damit ebenso wenig einverstanden wie der demokratische Senator Patrick Leahy. Sie drohten, dass sie am 3. Oktober 2001 dem Gesetz die Zustimmung verweigern würden. Beide erhielten am 15. Oktober einen mit Anthrax gefüllten Brief (Poststempel: 7. Oktober). Bei der Annahme des US-Patriot-Act am 24. Oktober, auf dem Höhepunkt der landesweiten Anthrax-Angst, befürworteten die beiden Senatoren dann die neue Gesetzesvorlage.
    Es gab auch weitere Versuche, politisches Kapital aus den Anthrax-Morden zu schlagen. In den Wochen der Anschläge machte das Weiße Haus Druck auf das FBI, um Al-Qaida für die Anthrax-Fälle verantwortlich zu machen. Aber auch der Irak sollte als Schuldiger identifiziert werden. Während der damalige US-Präsidenten George W. Bush eine mögliche Verbindung zwischen Al-Qaida und Anthrax erwähnte, bemühten sich andere Falken aktiv, unter anderem der ehemaligen CIA-Direktor Jim Woolesy, Beweise für die Verantwortung Saddam Husseins zu finden.
    Das Bemühen hat einen gewissen Erfolg. Ende Oktober 2001 befürwortete eine breite Mehrheit der Bevölkerung eine Erweiterung des “Kriegs gegen den Terror” auf den Irak. Wenig später vermehrten sich aber die eindeutigen Beweise, dass das in den Mordanschlägen verwendete Anthrax aus dem militärischen Geheimlabor USAMRIID in Fort Detrick, Maryland, USA stammte. So geschickt und zum großen Teil erfolgreich das Ausnutzen der Anthrax-Morde war, so verblüffend war gleichzeitig die Behinderung und Verhinderung der Aufklärung der Morde.
    Neben den von Lambert genannten Punkten, gibt es weitere Verhaltensweisen des FBI, die Unglauben auslösen. Nur wenige Tage nach den Anthrax-Morden erlaubte das FBI die Zerstörung der Orginal-Zuchtlinie der Anthrax-Bakterien, die bei den Mordbriefen verwendet wurde. Die sogenannten Ames-Sporen befanden sich in der Universität von Iowa. Deren Zerstörung sollte jedoch, kaum überraschend, die Rückverfolgung der verwendeten Bakterien und damit die Entdeckung des Ursprungsortes deutlich erschweren.
    Manchmal zeigte das FBI ein geradezu erstaunliches Desinteresse. Ganze sieben Monate benötigte das FBI zur Überprüfung nur einiger hundert Briefkästen, um schließlich den Briefkasten zu finden, in den die tödliche Post ursprünglich geworfen worden war. Den Agenten, die Bruce Ivins rund um die Uhr überwachen sollten, entging wohl, dass er sich eine Überdosis eines Schmerzmittels besorgt hatte. Nach seinem Tod verzichtete das FBI auf eine Autopsie. Der damalige Vize-Präsident Dick Cheney war etwas aufmerksamer. Seine Angestellten wurden am Abend des 11. Septembers angewiesen, Cipro einzunehmen, ein Anthrax-Antidot.
    Eine unabhängige Untersuchung
    Ein nachgewiesener Fall von Terror, der aus den USA stammt. 5 Tote und große politische Auswirkungen, ein offenkundiges Desinteresse des FBI sowie aktive Behinderung der Untersuchung und eine Reihe von Merkwürdigkeiten. Lamberts Klage ist der letzte und größte Grund zu unterstreichen, dass die Anthrax-Morde nach wie vor nicht in einer Art und Weise geklärt worden sind, die den Ansprüchen eines Gerichtsverfahrens genügen.
    Die These, Ivins sei der Täter, ist mehr denn je nur eine unbewiesene Behauptung. Eine neue unabhängige Untersuchung, die den Ansprüchen eines Rechtsstaats Genüge tut, wäre zwingend erforderlich. Die Mordopfer und nicht zuletzt auch die Familie von Bruce Ivins verdienen eine vollständige Aufklärung, aber auch die Nation und die Weltöffentlichkeit.

  43. DXer said

    Rick, has the FBI Director Comey asked to meet with you while making the rounds to Knoxville?

    The Director was Vahid Majidi’s supervisor. In Vahid’s e-book marketed to his Linked-In contacts, he said he was confident that Mr. Comey had his back — and his spin continued unabated even after a lot of documents had been uploaded (for example, about Ivins’ experiment with the 52 rabbits explaining Ivins’ time in the lab).

    While I respect the integrity of FBI officials and agents, I think they have the same CYA instincts as most anyone does.

    FBI, local law enforcement fight terrorism

    (WBIR- West Knoxville) Director of the FBI James Comey visited Knoxville on Tuesday afternoon, speaking about the importance of the relationship between the FBI and local law enforcement to counter local terrorism efforts.

    “The terrorism threat we’ve faced has become much more dispersed,” Comey said. “Not so much focused on the complex multi-prong national landmark-directed attacks, but increasingly, especially at the hands of this group that calls itself the Islamic State, it is a dispersed spider web of efforts to reach into our country and motivate people to harm people.”

    Comey said the FBI has homegrown violent extremist investigations in all 50 states, but they also rely on local law enforcement agencies to report radical behavior since terrorism has become more widespread, not just focused in New York or Washington.

    “It is highly unlikely to be an FBI agent who first hears about somebody who’s radicalizing in their basement online or someone who’s causing a problem at an educational institution by spouting off radical rhetoric,” Comey said. “It’s going to be a deputy sheriff. It’s going to be a police officer on patrol.”


    “We need to be paying attention, and we need to – those things that we notice – we need to bring to the table so that everyone can vet it,” Rausch said.

    The FBI also encourages citizens to report any suspicious terrorist activities to the closest Joint Terrorist Task Force, located in an FBI field office.

    “Whether it’s our counter-terrorism responsibilities, our counter-intelligence work, or all of our different kinds of criminal work, it depends upon the relationships that are represented here today,” Comey said.

    • DXer said

      It would just take a wave of the hand for FBI Director Comey to have FOIA Officer Dave Hardy (who supervises 60) to produce additional traditional supplemental forensic reports under FOIA.

      No privacy act issues are implicated. There wouldn’t be names names, but it would help get people on the same page. Or would the Director prefer legislation and a Congressional probe?

      I see some advantages of Dillon’s framing of the request.

      But I think there are many traditional forensic tests that are not exempt from production and would be produced, to include those relating to:

      (a) ink, including all documents showing that there was no match with any of Dr. Ivins’ writing;

      (b) paper composition, including all documents showing that there was no match with any paper ever used by Dr. Ivins;

      (c) photocopy toner, including all documents showing that there was no match with any photocopes ever made by Dr. Ivins and that the USAMRIID photocopiers could be excluded;

      (d) fiber, including all documents showing that there was no match with any fiber used by Dr. Ivins;

      (e) all handwriting examinations of Bruce Ivins’ handwriting, and all handwriting examinations of the late Mohammed Atta and Adnan El-Shukrijumah;

      (f) CIA finding of Ames strain of b. anthracis in Kandahar that the FBI didn’t credit,

      (g) the bloodhound alert relating to Dr. Ivins (negative as to Ivins),

      (h) Ivins’ polygraphs, including all documents interpreting those polygraphs,

      (i) meglumine and diazotroate,

      (j) all documents relating to which letters were asserted to be double-lined in developing a theory of a code based on which letters were doublelined.

      The request is intended to avoid privacy exemption — so as to not seek information about other individuals who are still living. For example, I would request all handwriting examinations of Atta and Shukrijumah. Both are dead and the case is closed. So a privacy exemption and law enforcement exemption should not apply.

  44. DXer said

    DOJ, FBI acknowledge flawed testimony from hair unit over 20-year period: report
    THE ASSOCIATED PRESS Sunday, April 19, 2015

    In a statement released to the Post, the FBI and Justice Department vowed to continue to devote resources to address all cases and said they “are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The department and the FBI are also committed to ensuring the accuracy of future hair analysis, as well as the application of all disciplines of forensic science.”

  45. DXer said

    Was this former United States Attorney Chris Christie’s biggest unsolved case? Here is former NJ US Attorney Chris Christie address anthrax investigation in 2002. A FOIA should be submitted for documents at the US Attorney’s Office in New Jersey.

  46. DXer said

    “Former FBI Agent Claims Bureau Hid Anthrax Evidence, Accused Wrong Man”–accused-wrong-man-518761614


    I don’t know if Agent Lambert is really whistleblowing or just singing for his supper. But the show “Forensic Files” does great work — and if I were one of the producers there, Rick Lambert would be the person around whom I would build a show. The fact that the case is closed and yet unsolved makes it all the more interesting.

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

  47. DXer said

    Mr. Willman notes:

    “[I]t was obvious to his subordinates that Richard Lambert, with the backing of Director Mueller, was driving the investigation in one direction, toward Hatfill’s indictment.” (p. 212)

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

  48. DXer said

    There is also “a staggering amount of exculpatory evidence” regarding Dr. Ivins that has been produced under FOIA and simply not reported by the overworked and mult-tasking reporters.

    DXer summarizes the documentary evidence relating to Dr. Ivins work with rabbits (nowhere mentioned by the DOJ) which demolishes the FBI’s claim that Dr. Ivins had no reason to be in the lab
    Posted by Lew Weinstein on July 3, 2012

    Among numerous additional documents were produced after July 2012 summary. The word “rabbits” will turn them up. see, e.g.,

    The Research Progress Report Form attached to a September 20, 2001 email explains that rabbits (immunized at Covance) will be challenged with anthrax spores in October [2001]; the challenge was done in Ivins B3 after the rabbits were shipped on or about September 24, 2001
    Posted on May 13, 2014

    The “Animal Manipulations” done in connection with the rabbit / formaldehyde experiment are explained in B01-11 first produced in November 2013
    Posted by Lew Weinstein on December 5, 2013

    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 Lew Weinstein on November 28, 2013

  49. DXer said

    For years, the head of the investigation was Assistant FBI Director Michael Mason who was head of the Amerithrax investigation as head of the DC Field Office. Agent Mason explained that he regretted that Dr. Hatfill’s name had ever surfaced and noted that they could not replicate the powder — that is, they could not replicate the Silicon Signature.

    Joining the bureau in 1985, Special Agent Mason handled narcotics violations, violent crimes, white-collar crimes and public corruption. He was especially relieved the time he did not have to shoot the suicidal Elvis impersonator in a Sears parking lot. After the Sept. 11 terrorist attacks, he served as special assistant to FBI Director Robert Mueller. He assumed responsibility for Amerithrax as assistant director in charge of the Washington, D.C., field office. He oversaw the office’s massive counterintelligence efforts against foreign intelligence agents based in Washington, D.C.

    While in Buffalo, harking back to his days watching Efrem Zimbalist, Jr. on television, he addressed the portrayal of the FBI in “X-Files”, suggesting that reality was just as interesting.

    Mason was in the Syracuse office, when 2:15 a.m. one night, a 115,000-volt transmission tower came crashing down not far down the street from me. Mason investigated when the tower on the nearby Onondaga Indian reservation came 50 feet from crashing on a cigarette shop, near where the local residents buy their smokes.

    “This is a serious felony. It is more than just criminal mischief,” Mason said. The Niagara Mohawk spokesperson declined to comment on what caused the tower to fall. But a local Onondaga businessman Oliver Hill said he knew. The tower missed crushing his cigarette shop, which had been opened without the permission of the local Onondaga tribal leaders. “There has been sabotage on that tower because on each leg there are 20 to 30 bolts,” said Hill. “All the bolts were taken out on all four legs. So when the bolts are taken out, there’s nothing to hold it up so it fell over. Yes, it was sabotage.”

    I didn’t call the local FBI office about the tower incident. After all, smoking kills 400,000 people a year.

    Instead, I called the FBI office (I’m told instead that I went to the office) to tell them that a Ronald Reagan mask had been found along with a bank bag where the man lay in wait with a semi-automatic — first for my brother, and then the next week my father. The FBI agent in the small local office, who did not identify himself, said something to the effect: “We killed the Closing Time Bandit who used a Ronald Reagan mask in robbing banks. So this guy can’t be responsible for those robberies.”

    Ronald Petersen had been killed Aug. 15, 1996 by FBI agents in the Rochester suburb of Henrietta while plotting another heist. The rightist, who had been tracked by a miniature television camera on a telephone pole outside his home, died in a hail of bullets. When police searched his house in Liverpool, a Syracuse suburb, they recovered 20 guns, including two Uzis, 20,000 rounds of ammunition and a cache of explosives.

    “I know. “ I said, “This guy’s parole officer says his apartment in Watertown is covered with newspaper articles glorifying famous New York State criminals. He’s trying to make you fellows look foolish. By being a copycat and making it look like you killed the wrong guy..”

    As I best remember, the ex-convict and three-time loser who tried to take my Dad away at gunpoint that night before Christmas got something like 20 years to life, with no possibility of parole. Robbery was the apparent motive. That night, the police siren had come on in within seconds of the 911 call coming in. The gunman spent the night holed up in a nearby garage and was captured after a psychiatrist/hostage negotiator came from Syracuse and talked him out of the garage. He asked that they kneel and pray together. (I never said the gunman was very bright).

    So why have I always been such a booster of the FBI and local law enforcement (that is, until US Attorney Jeff Taylor’s performance at the August 2008 press conference and Daniel Seikaly’s calculated leaks about Hatfill before that). (Attorney Seikaly of Taylor’s same office pled the Fifth Amendment in connection with such leaks; his daughter then came to represent Ali Al-Timimi, the “anthrax weapons suspect” of the other investigative squad). Why have I always been such a fan of Director Mueller and Agent Michael Mason in particular? Because it is their job to protect our loved ones.

    Sam Stanton of the Sacramento Bee provides relevant background on Mason:

    “He has a friend in Syracuse, N.Y., who’s a felon, and when he talks about his favorite case — the successful recovery of a 2-year-old girl kidnapped at Christmas — tears come to his eyes.

    The son of a truck driver whose mother died when he was a baby, Mason knew he wanted to be in law enforcement early in childhood. As an African American growing up in Chicago, he said, he knew that many minorities said they had trouble with Chicago cops. But he said he never had a negative law enforcement experience.

    He shifted his goal from joining the Chicago police force to the FBI after seeing the old Efrem Zimbalist Jr. series “The FBI” on television.

    Mason knew many FBI agents came to the bureau with law degrees, but that wasn’t realistic given his family’s finances. So he ended up with an accounting degree from Illinois Wesleyan University in Bloomington.

    After graduation, he went into the Marine Corps, serving at Camp Pendleton and ending up a captain. But he still dreamed of joining the FBI, and when his tour of duty was up with the Corps he decided the time was right.

    “I remember when I called I didn’t have any idea how one becomes an FBI agent,” Mason said. “I called and said, ‘Can I have an application?’ And the lady, an old-timer there, said, ‘Sure, honey, we’ll send you one right out.’ “ ***

    People who have worked with him before say Mason’s nice-guy image is genuine, and a sign of that is his friendship with community activist Kathleen Rumpf in Syracuse.

    Rumpf, who calls herself a “felon for peace” (and who I adore) spent several months in prison for trespassing during a demonstration against the School for the Americas at Fort Benning, Ga. She has spent years in Syracuse fighting for prisoner rights and other issues, and when Mason showed up there one of the first things he did was meet with her.

    “I’ve been treated very badly in the past by the FBI because I’m an activist,” Rumpf said.

    But Mason was different.

    “He’s quite wonderful,” Rumpf said in an interview from the Syracuse offices of the American Civil Liberties Union. “He was incredibly responsible and treated me with great respect.

    “He said to me if he ever had to arrest me he would do it, and I said, ‘Be my guest.’ But I knew I could trust this man to be professional.”

    Local law enforcement officials echo that sentiment.

    ‘He is an outstanding individual,’ said Gary Miguel, chief deputy of investigations for the Syracuse Police Department. ‘You’re fortunate to have him.’

    In Syracuse, Miguel said, Mason worked hard to get to know the community and to cooperate with local authorities.” *** [Mason said,] “I’m not complicated enough to be political. It’s too hard.”

    Once told there was CIA involvement, he responded that his superiors might not like to hear that. Attorney Seikaly, to whom the head of the investigation and Mason reported the status of the investigation, came over from the CIA to the DC US Attorney’s Office on September 29, 2001. But a student of history likely would conclude that any suppression of information is for old-fashioned reasons: CYA. At the very least, when in doubt, follow the goddamn money.

    The question of the hour is how did Ali Al-Timimi come to have the mail drop at the Center for Biodefense that for example received issuance of the patent for concentrating anthrax using silicon dioxide in the culture medium? …the one my military lab head calls a “Wow!” microencapsulation patent. That is the best explanation I’ve seen that the FBI WMD head Majidi offers for the silicon signature. Ali Al-Timimi worked for 2 months for the former White House Chief of Staff. Did he list Mr. Card on his resume? He worked with the former deputy USAMRIID Charles Bailey at SRA in 1999. Ali did mathematical support work for the Navy and had a high security clearance. What was his security clearance for? Ali then came to work 15 feet from the leading anthrax scientist in the world, Ken Alibek, and the former deputy USAMRIID, Charles Bailey. They co-invented the method using silica in the culture medium to concentrate anthrax. The silica can then be removed through repeated centrifugation or an air chamber (according to a related patent). When you focus on Pasechnik’s work with a jet mill, on which NAS panel member D.A. Henderson was briefed, it is time for some probing questions to be asked.

    I’ve always argued that the key to achieve the best balancing of interests was to have an informed debate. I’ve always argued that with people like Michael Mason advising Director Mueller, I felt both secure and confident that authorities would always continue to strive to strike an appropriate balance. I still think that: I just think that he and Director Mueller were faced with a very difficult mystery, which remains unsolved.

    For his part, Director Mueller said, in a vintage comment, that it would be mistaken to suggest that the FBI has made a mistake. Well, respectfully, I disagree. Director Mueller likely was just too busy and multi-tasking to get down to the details such as the 12 dead rabbits on October 3, 4 and 5 discussed above. He depended on briefing of subordinates such as the author of the hide-the-ball Amerithrax Investigative Summary. Jeff Taylor’s comments were demonstrably inaccurate in central respects. untrue. More broadly, during the Bush Adminsitration, the US DOJ made a mistake in allowing itself to be politicized. Men like Mason and Mueller and Comey should be among the first to agree — and to do something about it. Bring back the US DOJ that stands for the rule of law.

    Bring back Michael Mason. Better yet, bring back Frederic Whitehurst.

    We are better than the US DOJ during the 2001-2008 period insofar as Amerithrax represents their work.

    • DXer said

      When crimes go unsolved, there is greater risk that history is allowed to repeat itself. For example, did former Amerithrax head Michael Mason ever solve the case of the falling power line tower?

      A fugitive is hiding out behind my local duck pond, causing power lines to fall and schools to close.1/ (He is reportedly armed according to police; having fired shots at firemen responding to a fire — but based on a new report I expect to be peacefully resolved and expect he will be turned over to authortiies by the Onondaga Nation..

      Former Amerithrax head FBI Agent Mason was in the Syracuse office, when 2:15 a.m. one night, a 115,000-volt transmission tower came crashing down. Mason investigated when the tower on the Onondaga Indian reservation came 50 feet from crashing on a cigarette shop, near where the local residents buy their smokes.

      “This is a serious felony. It is more than just criminal mischief,” Mason said. The Niagara Mohawk spokesperson declined to comment on what caused the tower to fall. But a local Onondaga businessman Oliver Hill said he knew. The tower missed crushing his cigarette shop, which had been opened without the permission of the local Onondaga tribal leaders. “There has been sabotage on that tower because on each leg there are 20 to 30 bolts,” said Hill. “All the bolts were taken out on all four legs. So when the bolts are taken out, there’s nothing to hold it up so it fell over. Yes, it was sabotage.”

      Police: Wanted Onondaga Nation man should be considered ‘armed and dangerous’

      Onondaga Nation leader: Fugitive is unarmed, receiving ‘spiritual healing’

  50. DXer said

    Here is a Knoxville blogger:

    “But Lambert goes a bit further in the section of his lawsuit in which he seeks to argue the law. Typically that section of any lawsuit is boring, lots of citations to other cases and bunches of legalese.

    Lambert, though, is not only a lawyer. He’s a wordsmith. His lawsuit reads like a Grisham novel.”

  51. DXer said

    Meryl Nass blogs about the new development here:

    Tuesday, April 7, 2015

    FBI’s AMERITHRAX Case just unravelled. Ex-FBI agent who directed investigation suing FBI, turns whistleblower!!!

  52. DXer said

    I think the key is to get someone’s help in framing FOIA requests — either Attorney Lambert or Dr. Majidi or Dr. Bannan or someone else. Effective FOIA production requires effectively identifying reports so that they can be located by the agency personnel and their disclosure considered under the statutory FOIPA framework.

    Amerithrax is a difficult mystery to be sure. Reasonable people can and will continue to disagree. But the public interest favors getting people on the same page to a much greater extent. (And more people should correct past missteps and mistakes.)

    Being proactive by making a supplemental disclosure under FOIA of traditional forensic reports is the best way for the FBI to dampen what may prove a developing firestorm.

    I think a Hatfill Theory is just as reasonable (or unreasonable, if you like) as an Ivins Theory. But we still don’t know the identity of the processor and mailer. Congress and the public still needs more information.

    I think that if Al Qaeda attacks with anthrax and there has not yet been such a supplemental production, there will be some people in a lot of trouble — to include both present and former DOJ and FBI and Postal Service and CIA employees.

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

    • DXer said
      Updated: 04/07/2015 6:13 PM
      Created: 04/07/2015 5:58 PM
      By: Steve Flamisch

      SARATOGA SPRINGS – Eileen Lawson and her son, William, stood in line at Maple Avenue Middle School on Tuesday to pick up a regimen of fake antibiotics for a simulated anthrax outbreak.
      The Lawsons, of Charlton, took part in a Point of Dispensing (POD) drill to test Saratoga County Public Health’s capacity to respond to a biochemical exposure or a large-scale disease outbreak.
      “They have all of the information on file, and they’re verifying everything as quickly as possible,” Eileen Lawson said. “They seem to be moving us right along. Their assembly-line-style seems very efficient.”
      Fruit snacks and M&M’s candy took the place of real antibiotics. Active and retired nurses, as well as volunteers, dispensed them to hundreds of people during the two-hour drill in the school’s gym.
      “They’re pretty organized around here,” said William Lawson, 13. “They’re very efficient. They’re very fast. They hand out ‘medicine’ very fast… It’s a lot faster than the doctor’s (office).”
      Efficiency is one goal of the drill. Cathi Duncan, the director of Saratoga County Public Health, said she wants to be able to get out 1,500 doses per hour in the event of a real exposure or outbreak.
      “This is really teaching us how to run it efficiently,” Duncan told NewsChannel 13. “Any problems that we have today are things that we’ll address, and then we’ll be able to be better the next time.”
      Duncan stressed that she has no knowledge of a coming attack or outbreak; the drill was an exercise in emergency preparedness. Representatives from the CDC and state Department of Health observed

      Comment: I’ve forgotten what happened to the idea of having the mailman drop it in your mailbox.

    • DXer said

      There was a drill in Ithaca this week. I’ve never understood why people wouldn’t be expected to get in the car and drive.

      Health Dept Preps for Possible Threats

      At the end of last month, Tompkins County Health Department tested its ability to handle a public health emergency by holding a Point of Dispensing exercise at BOCES on Warren Road. During the 1.25 hour exercise, the Health Department practiced giving out prophylactic antibiotics in response to a simulated anthrax threat.


      In a real emergency, Lyczko said that there would be multiple dispensing points around the county, including locations at Cornell and Ithaca College.


      If I didn’t know of a distribution point up and running within the first hour or two, I would just head out the door and trust that a phone call to a doctor would result in a prescription being sent to some pharmacy several hours away

      In terms of outreach to the community about “resilience,” one preparedness measure would be to get your cat used to dry food rather than wet.

  53. DXer said

    The Socio-Behavioral Component Of Biosecurity Gaps In US Labs: Pathogenic Agents Being Misapplied For Terrorism Is A Grave Concern
    By: Robert E. Smith
    04/08/2015 ( 1:24pm)

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

    Congressman Holt again seeks to establish a commission to investigate the 2001 anthrax attacks
    Posted by Lew Weinstein on April 17, 2009

    Why did FBI Agent Darin Steele think that the “T” in NEXT was double-lined in concocting his interpretation of a code?
    Posted by Lew Weinstein on June 17, 2011

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