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

* Dr. Kenneth Dillon’s request for mediation services re DOJ’s withholding of Bruce Ivins’ alibi documents from Sept-October 2001

Posted by DXer on August 26, 2016

Office of Government Information Services
National Archives and Records Administration, Room 2510
8601 Adelphi Road
College Park, Maryland 20740-6001
August 26, 2016

Re:  Appeal No. DOJ-AP-2016-003776
FOIA Request No. 1327397-000

Office of Government Information Services:

I am an attorney representing Kenneth J. Dillon of Washington, D.C. in seeking your services in mediating with FBI and DOJ regarding his FOIA request for records on U.S. Army scientist Bruce Ivins in the anthrax mailings case.  Dr. Dillon is a retired academic historian and retired foreign service officer.  He requested records from September and October, 2001 regarding Ivins—specifically, unreleased emails, laboratory notebooks, paper and computer files, information about meetings, and telephone and credit card records, building entry and exit records, and records on Ivins’s animal experiments.  The purpose was to show his activities and whereabouts, a crucial kind of alibi evidence.

The anthrax mailings case was the largest criminal investigation in FBI’s history.  After Ivins committed suicide in 2008, FBI claimed that he had mailed the anthrax letters.  But it only selectively released documents, and there was no trial.  According to former chief investigator Richard Lambert, FBI has not released a “staggering amount of exculpatory evidence” (New York Times, April 8, 2015).  There are good reasons to believe that the mailings were in fact an al Qaeda attack.

Attached are Dr. Dillon’s original request of April 18, 2015; his appeal to DOJ of June 19, 2016; DOJ’s November 24, 2015 remand of his request to FBI for a search for responsive records; his appeal to DOJ of June 6, 2016; and DOJ’s denial of August 23, 2016.

Among the documents requested is Ivins’s laboratory notebook #4282, which includes the days September 14-18, 2001 when Ivins was purportedly preparing and mailing the first anthrax letters. In spite of my request and Dr. Dillon’s request, FBI has never released this notebook.

Sincerely yours,
Ross E. Getman
Member of DC and New York Bars

8 Responses to “* Dr. Kenneth Dillon’s request for mediation services re DOJ’s withholding of Bruce Ivins’ alibi documents from Sept-October 2001”

  1. DXer said

    Senator Leahy and Senator Grassley,

    The Office of Government Information Services mediation service proved woefully ineffective.

  2. DXer said

    Consider the 16 page “Ivins” section in the memorandum written by Richard Lambert. There are passages that would merely chronicle his activities within the window of mailing. Similar 302s were released regarding numerous other individuals. It is a factual, segregable portion of the memorandum. It is releasable just as it was for others (as reflected by the passages in numerous 302s released).

    For example, The courts in Gosen v. U.S. Citizenship and Immigration Services, 118 F. Supp. 3d
    232 (D.D.C. 2015), and Abtew v. U.S. Department of Homeland Security, 47 F.
    Supp. 3d 98 (D.D.C. 2014), aff’d 808 F.3d 895 (D.C. Cir. 2015), which both
    involved the same type of assessment at issue here, ordered the defendant to provide
    the withheld assessments for in camera review and thereafter concluded that some
    portions were reasonably segregable. See Gosen, 118 F. Supp. 3d at 243 (“The
    Court has reviewed the documents in question and finds that there is at least some
    factual material that may not expose the deliberative process. For example, both
    assessments begin with factual introductory information.”); Abtew, 47 F. Supp. 3d
    at 114 (“After reviewing the Assessment in camera, the Court concludes that the
    first six paragraphs simply recite and summarize the facts that [the] plaintiff
    presented to the [asylum officer] during his asylum application interview. Those
    paragraphs do not include any analysis or impressions, and they do not reflect the
    [asylum officer’s] deliberative process: although the document does not purport to
    be a verbatim rendition of the interview, and there may have been some
    streamlining involved, the summary does not involve the sort of culling of facts
    from a large universe that could be characterized as deliberative.” (citing Ancient
    Coin Collectors[ Guild v. U.S. Dep’t of State], 641 F.3d [504,] 513 [(D.C. Cir.
    2011)])). The Court is persuaded by Gosen and Abtew that there may be some
    portion of the assessments at issue in this case that contain factual information that
    may be reasonably segregated from the whole.

  3. DXer said

    To be fair, if you look at the massive amount of good work the DOJ and FBI have done on Amerithrax, and the detailed documents produced, it is clear that the agencies are both busy and good at what they do. It’s not the DOJ FOIA operation’s fault that staffers are relegated to a very outdated indexing system.

    Let’s try to help the DOJ attorney working at DOJ FOIA to find Notebook 4282, which has the notations from September 14, 15 and 18, 2001.

    Putting aside the Central Indices, to which I don’t have access, let’s go to the documents that have already been produced.

    Let’s start at Part 55 of 59 sections from the “Amerithrax” documents.

    The first page refers to the Chemical-Biological Sciences Unit (CSU, at the FBI Laboratory, Quantico, Virginia).

    Now jump ahead to 279A-WF-222936-SCI-18.

    The designation SCI perhaps refers to “science” and may help as a locator.

    The analysis refers to work done in April 2007 for a Federal Grand Jury subpoena number 5429 issued in the District of Columbia on March 20, 2007.

    The purpose was to identify previously unknown transfers of Flask 1029 (i.e., transfers not on the RMR-1029 inventory) and to obtain additional handwriting exemplars from the time of the mailings to compare against the attacks.

    The page provides an inventory of the laboratory notebooks review with notations indicating: date received, date reviewed, date returned, review, comments on the contents of the notebook, and 1B numbers (if applicable). (It was never returned).

    Notebook 4282 is specifically mentioned. The page states “Pages 65 through 70 contain experiments conducted between 08/23/2001 and 09/18/2001, including the growth of Ba Ames.”

    The issue of “growth of Ba Ames”, of course, is highly relevant, given that we know the anthrax used in the attack did NOT come directly out of Flask 1029 but had to have been grown.

    An Excel Spreadsheet is provided “RIID NOTEBOOKS.xls” which states in most pertinent part:(Page 5 of 7 of the spreadsheet and Page 53 of 120 in Part 55 of 59 of the Amerithrax documents:

    “Copied several pages from time of mailings. See 1A GJ 1100”

    Then at page 55 of 120 it provides some additional detail:

    Notebook #4282, Bruce Ivins [redacted] 08/09/2001 to 08/16/2002.

    The name of the other person, I venture, is Fellows. The DOJ shredded her civil deposition. That’s right. The DOJ shredded her civil deposition. I don’t know what we have here but we certainly do not have government in the sunshine.

    The entry states “anthracis strain gelatin studies”, “spore production of different strains of anthracis,” “different colony morphology noted in Kruger A (pg. 11).

    Now as a lay person, I’ve asked what “gelatin studies” concerned. I’ll assume the phrase does not refer to silica gel but the entire point of getting people on the same page is that they do not have to rely on assumptions.

    I also have ventured that the Kruger A was supplied by Dr. Kimothy Smith. Dr. Smith was the fellow testing the Ames samples submitted for the FBI (at NAU) — with that testing proving critical. The FBI based its case on a finding of a negative match of the sample submitted in February 2002 when it should have been positive. If there was a crazy conflict of interest (through no one’s fault) at the heart of the government’s “Ivins Theory”, we are not in a position to judge because someone is playing hide-the-ball with Notebook 4282.

    Dr. Ayman Zawahiri’s former associate had been given permission to use a B3 by Dr. Smith and the fellow had been supplied virulent Ames by Bruce Ivins. He thanked Patricia Fellows (the one whose deposition the DOJ shredded) for technical assistance.

    (I learned of him from my friend “Tawfiq” Hamid, who sometimes consults with the CIA and had once been recruited by Ayman Zawahiri into his jihad organization — “Tawfiq” Hamid withdrew when he was asked to bury a security officer near the mosque.)

    But most of all, Dillon and I seek the notebook for the more mundane reason of showing why Ivins may have been in the lab on September 14, 15 and 18. The FBI reasoned he had no reason to be in the lab.

    To the contrary, the evidence being withheld would seem to suggest yet another experiment that required lab work.

    One purpose of the grand jury subpoena was for additional handwriting exemplars but we already know — and credit the FBI’s handwriting expert — that Ivins probably did not write the anthrax letters, judging from the handwriting.

  4. DXer said

    FBI Releases Mobile App For Finding Bank Robb

    August 22, 20167:44 PM ET

    Richard Gonzales

    Have you ever wanted to keep track of bank robberies in your neighborhood or city? Or maybe you’ve always wanted to help the FBI catch a bad guy? As you’ve no doubt heard before, there’s an app for that.

    The FBI today released a Bank Robbers mobile app designed to help the public, law enforcement, and financial institutions see and share photos and information about robberies all over the country.

    The app allows users to sort bank robberies by date, state, category (armed? disguised? serial offender?), as well as the FBI field station handling the case. You can get surveillance photos, details of the crime, physical descriptions of the suspect as well as the FBI’s wanted poster. And if you want, a push notification will tell you when a bank robbery has occurred near your location and a link to the FBI’s online tips page.

    The Bank Robbers App for iPhones and Android devices is available for free at Apple’s app store or Google Play. It works with the FBI’s website launched four years ago.


    I like this idea. I proposed it once to a computer savvy type — a “hacker” presenting to the local newspaper on how computers might be used in journalism. But he didn’t have the same law and order sentiments.

    I don’t think we need study socioeconomic issues in wanting to catch an armed robber.

  5. DXer said

    As the use of chemical weapons becomes normalized,FN/ the people in charge of keeping Americans safe should hire information processing experts that can put their house in order and keep better track of their documents. The world needs fewer lawyers and more information processing experts. Reliance on a 21-year-old software to search for documents is ridiculous.

    The FBI’s Using Lousy Software to Derail FOIA Requests, Suit Claims
    WIRED-Jul 25, 2016
    The Freedom of Information Act, the federal law that requires the disclosure of information and documents controlled by the US government, …
    Story image for FBI FOIA software from PCWorld

    The FBI is using outdated IT to deliberately foil FOIA requests …
    PCWorld-Jul 18, 2016
    In particular, the FBI typically conducts FOIA searches in the “universal … “Many government agencies deal with software older than the interns …

    White House condemns Syria’s chemical weapons use, August 25, 2016
    By Ryan Browne and Elise Labott, CNN

  6. DXer said

    The FOIA “Five” – After 50 Years, Changes in the Freedom of Information Act That (Might) Matter

    1. Electronic Records
    The law now requires all federal agencies to make disclosable documents and records within their purview available to the public via an electronic format. This will speed up production and reduce costs.

    2. Repeat Requests and “Public Reading Rooms”
    The law now requires agencies to make available for public viewing any disclosable document requested three or more times. Some already have reading rooms, but this requires it of all agencies. The challenge is whether the information will be organized and searchable in a user-friendly way.

    3. The Presumption of Openness
    The law still contains numerous exemptions. But instead of documents being withheld simply because they theoretically fit within an exemption, agencies are now prohibited from denying requests for information under FOIA unless the agency reasonably believes release of the information will lead to harm of an interest protected by the exemption.

    4. Internal Agency Deliberations (Exemption 5)
    Agencies can no longer withhold “intra-or inter-agency communications” that could otherwise be withheld under FOIA Exemption 5 alone if the internal documents are more than 25 years old.

    5. Mediation of Disputes
    Under current law, if an agency denies a request, the requester has few options other than to go to court and challenge it. The internal agency appeals process — because it remained within the agency — seldom provided any relief. The new law requires the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes that arise between the government and FOIA requesters, gives OGIS greater independence from the Department of Justice and Office of Management and Budget, and calls on each agency to designate a Chief FOIA Officer to act as an intermediary within the government and to serve on a Chief FOIA Officers Council.

    In addition to these five changes, there are also some mechanical changes that may provide greater disclosures. Agencies are now prohibited from charging a fee from requesters in cases where the agency itself misses the FOIA compliance deadline, so long as the request can be fulfilled with 5,000 or fewer pages. To enhance the ease with which requests can be made, the FOIA Improvement Act calls for the development of a consolidated online request portal. It also mandates the identification and disclosure of records of general interest to the public.

    Moving Forward

    Nearly all involved in the enactment of the FOIA Improvement Act agreed that in the 50 years since the original FOIA became law, it had succeeded in promoting a culture of government openness and accountability, but revisions were necessary to modernize FOIA for the digital age and to remove the potential for abuse of its discretionary exemption provisions. Despite the view of some that even more reforms could be made in the future, the legislation passed Congress with overwhelming support. As a practical matter, those utilizing FOIA should experience increased ease when making a request, increased access to intra- and inter-agency documents created over 25 years ago, and increased efficiency in seeing their requests fulfilled.

    A redline version showing the specific changes made by the FOIA Improvement Act to the underlying statute is available here.

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