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

* The FBI should return a copy of Notebook 4010, relating to Flask 1029, the so-called “murder weapon”, to USAMRIID so that it may be uploaded as required by FOIA

Posted by Lew Weinstein on December 12, 2017

DXer emailed a request (12-11-17) to FBI’s Kris Weart, an FBI FOIA analyst, asking:

Isn’t it about time that the FBI return Lab Notebook 4010 to USAMRIID — a complete copy — to USAMRIID for uploading along with Ivins’ other notebooks?  It relates to Flask 1029, the so-called “murder weapon”.  No exemptions apply except for the occasional (b)(6) redaction of a proper name.  USAMRIID is the originating agency and so it is the USAMRMC FOIA officer who is charged with making any necessary redactions.  USAMRMC made a formal request that all Ivins notebooks be returned long ago.  The notebooks are all contained on a CD that was obtained by the FBI.   The notebooks had been scanned by a contractor.

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26 Responses to “* The FBI should return a copy of Notebook 4010, relating to Flask 1029, the so-called “murder weapon”, to USAMRIID so that it may be uploaded as required by FOIA”

  1. DXer said

    J.Edgar Hoover accepted Richard Nixon’s application to the FBI in 1937. Then his acceptance was cancelled as “not qualified.” Why?

    For an amazing piece of history using the threaded historical documents, see

    Why was Richard Nixon’s FBI application rejected?
    According to the Bureau’s own files, not even J. Edgar Hoover knew for sure
    Written by JPat Brown
    https://www.muckrock.com/news/archives/2018/jan/08/fbi-nixon-application/

    If FBI had not released the documents, we would never know the story.

    #TomHanksForPresident

  2. DXer said

    “We have a sworn declaration from David Hardy who is the chief FOIA officer of the FBI that we obtained just in the last few days, and in that sworn declaration, Mr. Hardy says that all of Comey’s memos ‒ all of them ‒ were classified at the time they were written, and they remain classified,” –Chris Farrell, director of investigations for the conservative group Judicial Watch

    That’s awkward. The FBI Director will release his own (reportedly classified) notes but not the unclassified notes of Bruce Ivins, who needed his notes to defend against the FBI’s theory that he had was a murderer. Does former FBI Director Comey now agree that his notes were classified? (i haven’t been following the issue). Does he have a legal theory excusing their release?

  3. DXer said

    Politics and these comments by Bannon to be published is off-topic … except that in the event that either Kushner or Don, Jr. are indicted — as seems increasingly likely — President Trump will go after
    former FBI Director Mueller.

    Amerithrax was Mueller’s biggest “whodunnit.” Many critics, me included, think the case was botched. So the President would have done well to direct FBI Director Wray to ensure that the FBI complied with FOIA in regard to Amerithrax.

    Mueller was the first to admit that Amerithrax was riddled with conflict of interest — it was the nature of the small field of anthrax researchers at the time. (As an example, the FBI’s chief scientist JE is the one who made a dried powder out of Flask 1029 and this was kept from the public until I drew JE out and we got him on film setting the record straight.

    I think Mueller’s solution of compartmentalization was in good faith (and certainly he is highly experienced in complex criminal prosecutions). At the same time, I agree with former lead Amerithrax investigator Richard Lambert’ criticism that it likely would prevent Amerithrax from being solved if people only saw pieces of the puzzle. I think in the end that is what happened — but what, in fact, happened, under any theory, has still not been persuasively established.

    I personally advocate only for the rule of law on both Amerithrax the hot button issue of Donald Trump’s campaign and Presidency — though like Tribe, not Dershowitz.

    My own view is that the FBI reached a mistaken conclusion but I haven’t seen that any outside critic could have done better in real time; people often will disagree about a whodunnit or mystery. Then Ivins’ suicide threw a monkey wrench in the course of the investigation and any prosecution.

    _____________

    Trump Tower meeting with Russians ‘treasonous’, Bannon says in explosive book

    https://www.theguardian.com/us-news/2018/jan/03/donald-trump-russia-steve-bannon-michael-wolff

    Bannon remarked mockingly: “The three senior guys in the campaign thought it was a good idea to meet with a foreign government inside Trump Tower in the conference room on the 25th floor – with no lawyers. They didn’t have any lawyers.

    “Even if you thought that this was not treasonous, or unpatriotic, or bad shit, and I happen to think it’s all of that, you should have called the FBI immediately.”

    Bannon went on, Wolff writes, to say that if any such meeting had to take place, it should have been set up “in a Holiday Inn in Manchester, New Hampshire, with your lawyers who meet with these people”. Any information, he said, could then be “dump[ed] … down to Breitbart or something like that, or maybe some other more legitimate publication”.

    Bannon added: “You never see it, you never know it, because you don’t need to … But that’s the brain trust that they had.”

    ***

    “You realise where this is going,” he is quoted as saying. “This is all about money laundering. Mueller chose [senior prosecutor Andrew] Weissmann first and he is a money-laundering guy. Their path to fucking Trump goes right through Paul Manafort, Don Jr and Jared Kushner … It’s as plain as a hair on your face.”

    Last month it was reported that federal prosecutors had subpoenaed records from Deutsche Bank, the German financial institution that has lent hundreds of millions of dollars to the Kushner property empire.

    ***

    Trump is not spared. Wolff writes that Thomas Barrack Jr, a billionaire who is one of the president’s oldest associates, allegedly told a friend: “He’s not only crazy, he’s stupid.”

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

  4. DXer said

    In a June 16, 2015 FOIA Appeal, Dillon argued: “FBI needs to release Notebook 4010 regarding Ivins’s Flask 1029 …”

    Ken Dillon’s June 19, 2015 FOIA Appeal relating to Amerithrax documents from September-October 2001
    Posted by Lew Weinstein on July 1, 2015

    https://caseclosedbylewweinstein.wordpress.com/2015/07/01/ken-dillons-june-19-2015-foia-appeal-relating-to-amerithrax-documents-from-september-october-2001/

  5. DXer said

    In his Freedom of Information Act Appeal dated June 6, 2016, Ken Dillon sought, among other things:

    “Laboratory Notebooks: FBI needs to release the remaining pages of Notebook 4010 regarding Ivins’s Flask 1029 …”

    Posted by Lew Weinstein on June 6, 2016
    https://caseclosedbylewweinstein.wordpress.com/2016/06/06/dr-ken-dillon-appeals-fbis-wrongful-stonewalling-of-documents-from-the-september-october-2001-time-period-of-the-anthrax-mailings/

  6. DXer said

    The title of the Notebook that the FBI has so steadfastly failed to produce is titled “Anthrax Spores.” It was first created 5-12-97. Ivins’ handwriting appears on the cover and throughout. I’ve previously (mistakenly) reported that the notebook is 88 pages. But I now understand it to be at least 98 pages. (The last page on the excerpt I snagged is light and I mistook a “9” for an “8”.)

    You will be SHOCKED to know why the FBI employees are withholding it. As the former lead Amerithrax investigator Richard Lambert told the New York Times and Fox News, the FBI is withholding a staggering amount of information exculpatory of Bruce Ivins. And this was FBI Director Mueller’s biggest case. If the FBI is to be understood to stand for the rule of law, this notebook should be produced without further delay.

    • DXer said

      In an entry in Notebook 4010 dated 3-17-98, Ivins reports that:

      “I am going to run some tests on the RMR 1029 Ames spores. I have less than 1 ml of RMR 1030 Ames spores (used in the F97-08 rabbit challenge” for use as a control.”

      This is significant. Flask 1030 was genetically similar to the anthrax used in the mailings — but from this entry, we see that it had been used up in the animal challenge prior to March 17, 1998.

      .

    • DXer said

      In this 3-17-98 entry in Notebook 4010 — one of the few that has escaped to see the light of day — Ivins writes:

      “The RMR 1029 spores have been stored … in the B3 cold room (walk in).
      The 2 tubes of spores will be irradiated to kill the spores.”

    • DXer said

      In an entry 3/18/98, in another one of the few entries has escaped to see the light of day — Ivins writes:

      “Aliquots of a …. dilution of RMR 1029 spores were spread onto 10 plates of 5% sheep blood agar (in Difco blood agar base) and 8 plates of capsule agar. The plates were inoculated overnight at 37 [degrees] in B304.”

      Of course, where Ames was — and when — is of key relevance to analysis of the distribution of the Ames. Thus, the FBI’s withholding of the vast majority of Notebook 4010 is not just unreasonable, it is outrageous.

    • DXer said

      At page 82 of Notebook 4010, in an entry in early April 1998 — in another rare entry that has escaped to see the light of day — Ivins included a copy of an email he had written April 2, 1998:

      “Remember the many shipments of Ames spores from Dugway that ____ and I purified in Renografin? These are “GLP” Ames spores (30 trillion total, 1000 ml at 30 billion per ml). They are (presumably) to be used in experiments for support of the AVA relicensure effort. We have tested them in several ways, and they look very good…”

      At page 84, he identifies the name of the person at the Michigan Biologic Product Institute who asked him to make some B. anthracis Vollum 1B spores for him on agar media.

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

    • DXer said

      In a June 1, 2000 entry, he identifies the individual at Bioport Corporation to which he shipped the Vollum 1B spores. And then at 96-97 he includes documents from the RUSSIAN FEDERATION, Ministry of Health, State Research Center of Applied Microbiology.

      The FBI was in serious violation of FOIA when it did not return a copy of the CD with Ivins’ notebooks to the USAMRMC, when USAMRMC FOIPA Sandra Rogers first requested it.

      As the originating agency, it is the USAMRMC/USAMRIID has the expertise to redact it pursuant to the statute.

      Moving forward, with DOJ counsel involved that understands FOIA, things should be set on the proper course moving forward.

    • DXer said

      The mailed anthrax was NOT grown on New Sporulation Media (NSM). One advantage of obtaining Ivins notebooks detailing the culture medium used was to exclude particular anthrax.

      Moreover, Dr. James Buran had directed the culturing of BA on various types of growth media. The purpose of the initiative was to determine whether or not the nutrient medium contributed to the finding of the tin, silica and iron in the spore coat of the mailed anthrax.

      The notebooks are exculpatory of Bruce Ivins. The FBI cultivated its “Ivins Theory” out of thin air.

      • DXer said

        Typo: That’s Burans, not Buran.

        If you study the updates on the work by the FBI’s Science Squad, you can see an exclusive focus on Hatfill in 2003 — with reference to the flask of BT taken from Hatfill’s refrigerator, the famous “minnow trap” seized from the pond in Maryland pond etc. Scott Decker went from investigating a Hatfill Theory to developing the science that would support a Hatfill Theory. The blinders — the truncation of analysis — only allowed wiggle room sufficient to shift to an “Ivins Theory.”

    • DXer said

      Seeing the notebooks also is instructive as to the number of plates needed to grow the anthrax. An FBI Special Agent attempted to replicate the culture, harvest and drying methods potentially used by the suspect. [Even the word “suspect” in the forensic update perhaps, to some, is revealing; the author’s use of “suspect” perhaps refers to Hatfill when read in context]. Gram quantities of anthrax spores were used. (Each letter contained 1-2 grams). The FBI Special Agent’s study found that approximately forty (4) 150 mm plates would be required to produce EACH gram of dry processed spores. (You can refer to the National Academies finding to see if in total 450 plates were needed; I don’t have it in front of me).

      I am not a scientist. My goal is to obtain the notebooks and then permit the scientific experts to have the benefit of them in their consideration of the FBI’s “Ivins Theory.”

    • DXer said

      The Science Squad forensics updates in 2004 would regularly note:

      “The evidentiary material showed a spore coat with high Silicon content … To date, no other submitted samples have shown this characteristic.”

      This avenue of inquiry — this important forensic “Silicon Signature” of the mailed anthrax — makes a review of Bruce Ivins’ notebooks all the more important. He and his technicians were NOT using silica in the growth medium.

      Instead, that was done at the DARPA Center for Biodefense where Ali Al-TImimi shared a suite and computers and fax machine with the Ames anthrax researchers Ken Alibek and Charles Bailey. (See their patent filed Spring 2001). (Bailey was former acting commander of USAMRIID). Famed Russian bioweaponeer Ken Alibek’s company, Advanced BIosystems, had the biolevel 3 work done at Southern Research Institute in Frederick. (Former SRI officials Voss and Franz decline to say when SRI first obtained virulent Ames, but it provably had supposedly avirulent Ames long before the mailings. (see unclassified contract documents).

      Dr. Bailey in 2001 once told the press that he was not going to mention the use of silica in making a bioweapon because he didn’t want to give terrorists any ideas. (Forget floatability; it serves a different purpose; “if I told you I’d have to kill you”). The trouble was that the office of a supporter of the jihadis was only about 10 feet away from Dr. Bailey when he said the words to the reporter.

      Dr. Al-Timimi was sentenced to two life sentences — plus 70 years — for discussing the plans of some young men who wanted to go abroad and defend their religion. About all Ali did, for all I know, is tell them that if they were stopped at the airport to ask for their mom and cry like a baby. So it seems that his sentence was awfully harsh — perhaps some analysts were concerned that he had access to DARPA bioweapons technology. His appeal — 12 years later — is being heard this year, I believe, on the grounds that the FBI withheld information about his fellow Falls Church imam, Anwar Awlaki, the now dead guy who has urged that Al Qaeda attack in a massive anthrax attack.

      John Ezzell, the FBI’s scientist at USAMRIID — and the longtime friend and colleague of the science squad scientists — consulted with DARPA and was the one who made a dried powder out of the Ames in Ivins’ Flask 1029. (But he did not use silica and there seems no reason to think the powder he made would have shown such a signature). (John gets credit for coming forward and answering quite a few questions on film at a conference organized by Dillon and moderated by Lew; Dr. Ezzell deserves major props).

      Given all the extreme conflicts of interest that riddled the FBI’s forensic investigation, the FBI should comply with FOIA. It’s not too much to ask given US cities still face a mass anthrax attack.

      As another example (just one of many) of potential bias or interest in the matter constituting a potential conflict, the DNA work was being done by Les Baillie, who had innocently hosted infiltrator Rauf Ahmad, Ayman Zawahir’s spy sent from Pakistan. Rauf Ahmad helped design Al Qaeda’s lab and was protected by ISI; the interrogating FBI and CIA agents were served tea and cookies by a servant at the ISI safehouse under Rauf Ahmad’s direction.

      Ha! Another example was that the lead criminal prosecutor, Seikaly, had a daughter who represented Ali Al-Timimi pro bono. The prosecutor’s sister-in-law and brother argued that Bin Laden was not responsible for 9/11.

      As another example of potential bias or interest in the subject matter, Jason B. had been the bacteriology collection scientist at ATCC (which shared the GMU facilities with Alibek and Bailey). So while we can credit everyone’s good intentions, and I blame only Ayman Zawahiri (planner), Yazid Sufaat (processor), and Adnan El-Shukrijuah (mailer), we should not be blind to how bias may have guided the investigators and the scientific inquiry. It is analogous to the Trump Russia investigation. Maybe the fact that the lead investigator thought Trump is an idiot and the country needs to be protected from him, influenced his judgment. The best cure is greater transparency. Above all, regardless of one’s biases, there needs to be compliance with the rule of law — compliance with FOIA.

      Absent compliance with FOIA and the rule of law — absent return of Ivins’ notebooks to USAMRIID — there needs to be sanctions against the FBI employee primarily responsible for the withholding.

      • DXer said

        An August 4, 2004 “AMX Weekly Science Update” states: “4 samples supplied by Ivins lab at USAMRIID, indicate a lack of silica in the spore coat.”

      • DXer said

        The September 16, 2004 “AMX Weekly Science Update” noted that “Analysis of the __________ and [Flask] 1029 samples indicated that they are negative for the silica in the spore coat.”

      • DXer said

        In September 2004: “CTFSRU has explored three electron microscopy techniques which may be suitable for use as a first screen to indicate the presence of spore preparations. This week CTFSRU was able to recognize the presence of silica in either spore preparations or single spores. This SEM method will be used to quickly screen batches of that material for the incorporation of silicon.”

      • DXer said

        In Fall 2001, the Armed Forces Institute of Pathology (”AFIP”) had detected silicon dioxide (silica) and silicon in the attack anthrax — with a characteristic big spike for the silicon.

        Dr. Alibek and Dr. Bailey at the DARPA-funded Center for Biodefense had filed a patent application in mid-March 2001 involving a microdroplet cell culture technique that used silicon dioxide in a method for concentrating growth of cells. The patent was granted and the application first publicly disclosed in the Spring of 2002. Weren’t the SEMS images and AFIP EDX finding both consistent with use of this process in growing the culture? In its report, AFIP explained: “AFIP experts utilized an energy dispersive X-ray spectrometer (an instrument used to detect the presence of otherwise-unseen chemicals through characteristic wavelengths of X-ray light) to confirm the previously unidentifiable substance as silica.” Perhaps the nuance that was lost — or just never publicly explained for very sound reasons — was that silica was used in the cell culture process and then removed from the spores through a process such as centrifugation. The applicants in March 2001 for an international patent relating to vaccines were a leading aerosol expert, Herman R. Shepherd, and a longstanding anthrax biodefense expert, Philip Russell.

        Dr. Morozov is co-inventor along with Dr. Bailey for a patent “Cell Culture” that explains how the silicon dioxide can be removed from the surface. Perhaps it is precisely this AFIP finding of silicon dioxide that is why the FBI came to suspect Al-Timimi in 2003 (rightly or wrongly, we don’t know). The FBI would have kept these scientific findings secret to protect the integrity of the confidential criminal/national security investigation. There was still a processor and mailer to catch — still a case to prove. After 9/11, intelligence collection takes precedence over arrests. As Ron Kessler explains in the new book, Terrorist Watch, many FBI officials feel that they are damned if they do, and damned if they don’t. Outside observers are constantly second-guessing them about how to proceed rather than trusting that they are in the best position to balance the competing considerations of national security, intelligence gathering, the pursuit of justice, and the safeguarding of civil liberties. Above all, in disclosing the theory of access to know-how, the FBI has needed to protect the due process rights of Al-Timimi while he defended himself on other charges.

        An example from October 2006 of equipment that went missing from GMU’s Discovery Hall was a rotissery hybridization oven belonging to the Center for Biomedical Genomics. “This equipment can be used to manufacture biological agents and genetically modified agents, which could potentially be used as biological weapons,” Corinne Verzoni explained in her PhD 2007 thesis. “Upon hearing about instances or missing equipment in Discovery Hall, the author contacted campus security who was unaware of instances of missing equipment. Missing equipment should be reported to the equipment liaison. Missing equipment may not be reported to campus security because labs tend to share equipment. Equipment also goes missing because it is not inventoried if it is under $2,000.”

        One of her other examples was equally dramatic:

        “A DI system is a de-ionized water system, which removes the ions that are found in normal tap water. The assistant director for operations noticed the DI system in Discovery Hall was using the entire 100 gallons in two days, which is an enormous amount of water for the four DI taps in the whole building. According to the assistant director for operations, it is difficult to calculate the reason for that much water since no leak was found. A large amount of water used over a short period of time for unknown reasons could indicate that the research is being conducted covertly.”

        “A student with legitimate access to Discovery Hall,” she explained, “has easy accessibility to equipment. A student with access to the loading dock could steal equipment on the weekend when campus security is not present in Discovery Hall. A student could also walk out of the entrance with equipment on the weekend without security present.” She concluded: “The events at GMU demonstrate opportunity to create a clandestine lab, the ability to sell items illegally, or the ability to exploit school equipment.” In a late September 2001 interview on NPR on the anthrax threat, Dr. Alibek said: “When we talk and deal with, for example, nuclear weapons, it’s not really difficult to count how much of one or another substance we’ve got in the hands. When you talk about biological agents, in this case it’s absolutely impossible to say whether or not something has been stolen.”

        Al-Timimi’s prosecution was remanded — in what I believe is an on-going proceeding — so that the defense could be given an opportunity to discover any documents that existed prior to 9/11 about al-Timimi and to address an issue relating to NSA intercepts after 9/11. Ali’s defense counsel explained to the federal district court, upon a remand by the appeals court, that Mr. Timimi was interviewed by an FBI agent and a Secret Service agent as early as February 1994 in connection with the first World Trade Center attack. The agents left their business cards which the family kept. Defense counsel Johnathan Turley further explained that “We have people that were contacted by the FBI and told soon after 9/11 that they believed that Dr. Al-Timimi was either connected to 9/11 or certainly had information about Al Qaeda.”

        Al-Timimi worked for SRA in 1999 where he had a high security clearance for work for the Navy. (Did he work, per chance, for James Burans? It is a small world, after all).

        At a conference on countering biological terrorism in 1999 sponsored by the Potomac Institute for Policy Studies. Dr. Alibek was introduced by a former colleague of Dr. Bailey:

        “Dr. Llewellyn: This is rather strange because I just met Dr. Alibek today. He was introduced to me by Dr. Charlie Bailey, who now works for SRA. But Charlie and I were associated with the Army Medical Research and Development Command Defense Program for over 20 years.”

        When I emailed Dr. Bailey in December 2007 to confirm Ali had the room right near his at Discovery Hall and whether he had worked with Al-Timimi at SRA he politely referred me to counsel and took no questions. Dr. Alibek and Dr. Popov have told me that Ali is not known to have worked on any biodefense project. Dr. Popova told me I should direct any such questions to Dr. Bailey. Dr. Bailey told me I should direct any questions to University counsel. University counsel declined to answer any questions.

        Dr. Bailey and Dr. Alibek had the work with virulent Ames subcontracted out to Southern Research Institute (“SRI”) in Frederick, Maryland. See press releases at time using Wayback machine; 2003 telephone interview of Ken Alibek. Its President at the time, Tom Voss, and Vice-President, the influential and personable David Franz, refuse to tell me when SRI first acquired virulent Ames. True to an earlier warning, DF stopped responding to inquiries when I pressed the point.

        The foundation of the genetic inquiry into the 4 morphs was built on quicksand — depending as it did on self-reporting and correct assessment of the distribution of virulent Ames. Dr. Relman pointed this out in his SCIENCE piece titled “Have We Met The Enemy?” Science can be hugely misleading if the validation focuses only on statistics and implications are drawn without understanding the true crime context in which the question is framed. Until we know the distribution of Ames and what happened to the large amount of virulent Ames made by Dr. Ivins’ assistants, for example, the genetics inquiry is especially meaningless.

        We can’t know from where virulent Ames might have been stolen without having confidence as to where it was. All that was needed was a single door left open.

        People should show the same courage and forthrightness that Dr. Ezzell showed in explaining that he made dried powder out of Ames from Flask 1029 for the DARPA researchers after it had been irradiated. Most of all, the US FBI should embody the rule of law through its actions — and comply with FOIA without further delay.

    • DXer said

      Although USAMRIID, the USAMRMC FOIA Officer and I first sought Notebook 4010 years ago, Ken Dillon first featured Notebook 4010 — being wrongfully withheld by the FBI — prominently in his June 19, 2015 Freedom of Information Appeal.

      The FBI took what I’ll call the AUSA Lieber-crafted view: Requesters have received all they are ever going to get. (Commonly, in boilerplate they bizarrely claim it has already been provided.)

      This has remained FBI’s position even while the former FBI lead Amerithrax investigator has claimed in a lawsuit that the FBI has intentionally concealed information exculpatory of Bruce Ivins.

    • DXer said

      Former FBI Agent Scott Decker notes the background of Flask 1029: “In 1997, Ivins calculated they would need ten trillion spores to complete the increase in vaccine challenges that were planned. It would take him two years to produce that amount, so Ivins contracted production to a laboratory noted for its past chemical and biological weapons testing. (Recounting the Anthrax Attacks, p. 128).

      • DXer said

        Former FBI Agent Scott Decker explained in his recent book that Woods Hole scientists had determined that the anthrax that was mailed in the attacks was grown most likely between 1998 and 2001. (Recounting the Anthrax Attacks, p. 119)

  7. DXer said

    The Washington Post editorial board refers to Joby Warrick’s article in its editorial.

    There’s a deadly new threat from North Korea
    By Editorial Board December 12 at 7:39 PM
    https://www.washingtonpost.com/opinions/theres-a-deadly-new-threat-from-north-korea/2017/12/12/c5a75656-dea5-11e7-8679-a9728984779c_story.html?utm_term=.db67744e58a2

    I have no idea why journalists have not obtained a copy of the 1999 testimony by the senior members of the Egyptian Islamic Jihad about Al Qaeda purchasing anthrax from North Korea. (Indeed, in excellent but overlooked reporting, Lance Williams already reported the same in 2001)

    It would be hard for me — I don’t have the resources, experience or network of contacts of a major newspaper to obtain a transcript of the testimony and translate it. Such a report would not compel any particular connecting of dots; but if we face a possible biological attack by North Korea, it is a relevant background fact worth reporting. FBI Director Mueller reports that the FBI could not identify the strain of anthrax possessed by North Korea — could not turn over certain rocks abroad.

    In the meantime, I appreciate that Attorney Richard Lambert, in saying that the FBI is withholding a staggering amount of information that is potentially exculpatory of Bruce Ivins, thinks that there are privacy and national security constraints on disclosure, But the application of the FOIA exemptions, as a matter of law, is up to the originating agency. No exemption applies except some minor pro forma (b)(6) redactions of a proper name or two.

    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
    https://caseclosedbylewweinstein.wordpress.com/2016/07/16/nyt-interview-of-former-lead-amerithrax-investigator-richard-lambert-a-staggering-amount-of-exculpatory-evidence-regarding-dr-ivins-remains-secret/

    The case Amerithrax is closed. And the FBI is not the owner of the documents that Dillon, I — and the USAMRMC FOIA officer — have been requesting for years. The Army is free to invoke a national security or other exemption with respect to the contents of any notebook, if one is applicable. But there isn’t. The notebook pages simply are potentially exculpatory of the late Bruce Ivins. And FBI is engaged in a knee-jerk CYA reaction.

    The US District Court should require that the FBI return a copy of Bruce Ivins’ notebook to the USAMRMC for processing under FOIA without further delay. It’s been over a half decade and the FBI’s delay is unreasonable. The FBI should pay Dillon’s attorneys fees and the individual primiarlly responsible for its withholding identified and sanctioned if there is continued withholding.

    At the same time, the White House should order the FBI to comply with FOIA so that the rule of law is vindicated. Who knows, maybe disclosure of the facts would remove the sheen on former FBI Director Mueller’s white knight armor. It seems that the Russia investigation is about to get ugly absent some creative “out-of-the-box” thinking on Mr. Trump’s part.

    As for the distinguished FBI Director Wray (who sets the same high standard as his recent predecessors), he pays lips service to the “rule of law” but then has allowed the FBI to bury Bruce Ivins lab notebook relating to Flask 1029, the so-called “murder weapon” in Amerithrax. The FBI’s concealment of the 88 page notebook violates the rule of law. I realize he has many responsibilities, and this narrow issue in a FOIA matter may have escaped his attention, but he should direct the FBI employees to return the requested notebooks to USAMRMC (USAMRIID).

    At the end of the day, we’re all on the same team.

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

  8. DXer said

    Who is the employee “primarily responsible for the withholding” of Notebook 4010 when I asked for it some years ago — and USAMRMC FOIA officer Sandra Rogers asked US DOJ that copies of all of the notebooks be returned to USAMRIID?

    Who is the “officer or employee primarily responsible for the withholding” of the other notebooks she requested be returned? (For example, the notebooks copied at the USAMRIID Library and put on a CD (or seized and not returned in 2007), would have included Notebook 4010).

    Who is the “officer or employee primarily responsible for the withholding” of Notebook 4010 when Ken Dillon initially asked for it — before he had to avail himself of the services of OGIS?

    Who is the “officer or employee primarily responsible for the withholding” of Notebook 4010 in recent months?

    What about the recent days and weeks after I pointed out that USAMRIID was the originating agency and long ago had asked that it be returned to USAMRIID for processing?

    5 U.S.C. § 552(a)(4)(F) provides:

    (i)
    Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.

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