* Lawsuit Letter Demands That FBI Release Wrongly Withheld Anthrax Case Documents.
Posted by DXer on February 8, 2018
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Posted by DXer on February 8, 2018
This entry was posted on February 8, 2018 at 3:50 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.
CASE CLOSED ... what really happened in the 2001 anthrax attacks?
DXer said
I explain some leads to Dutch Schultz’s missing millions in this Travel Channel show at 10 p.m.
TV show hunts for gangster’s treasure in Adirondacks
‘Code of the Wild’ investigates the mystery of Dutch Schultz’s missing millions
Sep. 4, 2019
https://www.timesunion.com/entertainment/article/TV-show-hunts-for-gangster-s-treasure-in-14379896.php
TV show shot in Stony Creek to air Tuesday
• Don Lehman
• 42 min ago
https://poststar.com/news/local/tv-show-shot-in-stony-creek-to-air-tuesday/article_e6a69ebb-a0a1-566a-994d-9c070d6ca800.html
DXer said
For a summary of the analysis, see
Ongoing Search For Dutch Schultz’s Missing Millions
https://www.treasuretracer.com/dutch-shultz/ongoing-search-for-dutch-schultzs-missing-millions/
The documentary evidence collected up until 2010 is uploaded and freely viewable here:
https://www.blurb.com/b/1475537-dutch-schultz-in-fairfield-county-connecticut-in-1
DXer said
Hey, James Comey. Your grandfather — a law enforcement contemporary and nemesis of Dutch Schultz in Yonkers — would want you or a friend to advance the story by getting a better copy of the Dutch Schultz file from the FBI reading room. The copies online are mostly unreadable because the originals are onion paper. But a digital image would serve to reveal additional insights. The better copies could be uploaded to The FBI’s (FOIA) Vault as a public service. I have studied federal prosecutor Thomas Dewey’s personal files — but now we need to obtain J. Edgar’s files to the extent they have been made available under FOIA.
Or Ken, if you could do it, that would be much appreciated.
I believe Adnan El-Shukrijumah was the Fall 2001 anthrax mailer rather than your candidate Jdey. But I’m still willing to give you Mr. Comey’s share of Dutch’s loot.
HEY YONKERS, HAVE A BEER ON DUTCH THIS SUMMER
September 5, 2019
https://yonkerstimes.com/hey-yonkers-have-a-beer-on-dutch-this-summer/
“Another twist to the Dutch Schultz story comes from former FBI Director James Comey, who grew up in Yonkers and whose family members served in the Yonkers Police Department. Comey, in an interview last year with Irish Times, said that his family told a story about his grandfather William Comey rose to Yonkers police commissioner and his battle with bootleggers funneling contraband beer in fire hoses between Yonkers and the Bronx.
“Even though my grandfather liked beer, he ordered his men to cut the fire hoses with axes and let the beer run into the sewers” – a move that prompted death threats and an armed guard on the family home, said Comey. The moral of the story is, the rule of law and integrity matter more than friendship, your love of beer or anything else. “My grandfather is as an early hero of mine because of a commitment to higher values,” said Comey.
This is a story that needs to be told, and written in its entirety.”
DXer said
FBI looking for Civil War-era gold at Pennsylvania dig site
Updated 6:41 AM; Today 6:41 AM
https://www.syracuse.com/us-news/2021/03/fbi-looking-for-civil-war-era-gold-at-pennsylvania-dig-site.html
Comment:
Thomas Dewey and J. Edgar Hoover looked for Dutch Schultz’s missing millions. FBI Director Chris Wray has more important things to do than look for buried gold. But maybe after he retires years from now, he could find Dutch Schultz’s hidden cache. Director Wray knows the Adirondacks region well.
See
Ongoing Search For Dutch Schultz’s Missing Millions
https://www.treasuretracer.com/dutch-shultz/ongoing-search-for-dutch-schultzs-missing-millions/
DXer said
House requests investigation of Interior political appointees’ review of public records
BY REBECCA BEITSCH AND MIRANDA GREEN – 09/06/19 02:27 PM EDT
“Public service is a public trust, which is why the improved processes the Department has implemented to accurately respond to FIOA requests is publicly posted on our website for all to see. The department’s FOIA review process allows the Department’s leadership and Solicitors Office to efficiently respond to queries and legal ramifications arising from FOIA responses.” the spokesperson said in a statement
The letter sites numerous emails between top-level Interior political staff that the committee says indicates they gave verbal instructions on whether to withhold sensitive documents — something they believe may go beyond the pale of the agency’s publicly available policy.
Grijalva said there is evidence that the review process resulted in inappropriate delays and the removal of entire documents from being released.
https://thehill.com/policy/energy-environment/460272-house-requests-investigation-of-interior-politicals-review-of
DXer said
New decision:
Ninth Circuit: Courts Can Force Feds to Put Records Online
August 30, 2019
https://www.courthousenews.com/ninth-circuit-courts-can-force-feds-to-put-records-online/
ALDF and three other groups sued the USDA in 2017 after it abruptly pulled animal welfare compliance data offline, a move the plaintiffs say frustrates their missions to fight animal cruelty and monitor government enforcement.
U.S. District Judge William Orrick III dismissed the suit in August 2017, finding courts lack power to force government agencies to make documents available to the public at large, as opposed to individual requesters, under the Freedom of Information Act.
A three-judge Ninth Circuit panel overruled Orrick’s decision Thursday, finding the law authorizes courts to make agencies stop holding back records which they have a duty to make available in “virtual reading rooms” online.
Comment:
USAMRMC should put its FOIA website back online. It took me many years to cause the documents to be uploaded. By taking it down, the federal court judge reviewing the issue of Bruce Ivins’ emails is not in a position to see exactly what the DOJ/FBI had USAMRMC cull from the production (by emailed instruction to FOIA official John Peterson during the pendency of the now-closed investigation).
DXer said
Major Jason R. Cross, USAMRIID’s part-time FOIA officer, is searching for scanned copies of printouts made of Ivins’s emails. Shalli L. Keller, USMRDC’s FOIA officer, is looking into restoring the wonderful Amerithrax FOIA Website.
Hopefully, John Peterson will give Major Cross a copy of his folder of emails that the DOJ and FBI directed that he cull from production.
At the time, it was perfectly appropriate to cull them — and John was very forthright with me in explaining the general process whereby the DOJ/FBI committee reviewed each batch of emails indicating which should be withheld. Indeed, from the Army’s point of view, culling them at the time was required. The DOJ and FBI had a pending investigation and wide discretion needed to be paided for so long as the investigation remained open. But now the investigation has long since closed, the emails should be restored and uploaded.
DXer said
Maryland Senator Pens Letter to Army over Fort Detrick Lab Shutdown
“I know that they’re doing their best over there to ensure safety,” she said. “But something went wrong here, and I still don’t know what went wrong. But something did because CDC closed the labs. Something went wrong. So I think there needs to be more transparency, and I think whenever we are dealing with the public, the more information, the better.”
https://www.military.com/daily-news/2019/08/11/maryland-senator-pens-letter-army-over-fort-detrick-lab-shutdown.html
DXer said
Judge signals interest in removing Mueller report redactions
‘That’s what open government is all about,’ Judge Reggie Walton said during court arguments over a FOIA lawsuit against the Justice Department.
By DARREN SAMUELSOHN 08/05/2019 02:51 PM EDT
https://www.politico.com/story/2019/08/05/judge-signals-interest-in-removing-mueller-report-redactions-1448331
During more than two hours of oral arguments in Washington, District Judge Reggie Walton appeared on several occasions to side with attorneys for BuzzFeed and the nonprofit Electronic Privacy Information Center, which are seeking to remove the black bars covering nearly 1,000 items in former special counsel Robert Mueller’s final 448-page final report.
“That’s what open government is about,” Walton said during one exchange, citing the resolution of a 2008 sex crimes case against financier Jeffrey Epstein as an example of how obfuscating the reasons behind not prosecuting high-profile people generates public distrust in the country’s criminal justice system.
Indeed, EPIC and BuzzFeed filed their lawsuit in order to uncover such information — the redacted explanation of why the special counsel didn’t bring charges against the likes of Donald Trump Jr. and Jared Kushner. And in court Monday, their attorneys argued that disclosing these details would help resolve whether the president is right to claim the investigation into Russian interference in the 2016 presidential election was a “witch hunt.”
While Walton has the power to issue an opinion that goes directly to the BuzzFeed and EPIC lawsuit, he’s also weighing another incremental step the two organizations have requested. Essentially, they asked Walton to review the unredacted Mueller report to see if the exemptions the Justice Department is citing to block release of the full document actually line up with what’s allowed under the law.
***
For example, Walton said he had “some concerns” about trying to reconcile public statements Trump and Attorney General William Barr have made about the report with the content of the report itself.
The judge pointed to Trump’s claims that Mueller found “no collusion” between his campaign and Russia and the president’s insistence that he had been exonerated from a possible obstruction of justice charge. These comments, Walton said, appeared bolstered by Barr’s description of Mueller’s findings during a DOJ news conference — before the public and media could read the document for themselves.
“It’d seem to be inconsistent with what the report itself said,” Walton said. The judge also cited a letter Mueller’s office sent to Barr questioning the attorney general’s decision to release a four-page summary of the investigation’s conclusions that “did not fully capture the context, nature and substance” of the report.
Separately on Monday, Walton raised questions about a DOJ submission defending the agency’s decision to black out large portions of the Mueller report.
“I also worked for the department,” Walton said. “Sometimes the body does what the head wants.”
***
“I’ll try to get this done as quickly as I can, so we can have this matter resolved one way or another,” he said.
DXer said
Interior took notes from FBI while developing controversial FOIA policy
BY MIRANDA GREEN – 08/06/19 01:02 PM EDT
https://thehill.com/policy/energy-environment/456377-interior-took-notes-from-fbi-while-developing-controversial-foia
The “500-page per month policy” did not become a part of Interior’s new FOIA process, but critics say the discussions show the lengths to which the department went to try to find ways to not have to respond quickly to requests.
“I can’t imagine any reason for adopting the FBI’s approach other than it seems like a slow enough rate for them to be happy with processing records,” said Jeffrey Light, a FOIA specialist attorney.
Comment: Jeffrey Light, the FOIA attorney quoted, represents Ken Dillon in his FOIA lawsuit against the FBI. The FBI used this policy to require Dillon narrow his request.
DXer said
After Dillon’s earlier victory, the government hired away Kenneth Dillon’s former counsel.
Fortunately, Dillon got a top-flight FOIA litigator, Attorney Jeffrey L. Light, as his new counsel.
I believe Dillon’s filing is due today.
Dillon gets all the credit for finding such expert and experienced counsel.
DXer said
Deadly poison suspected at Facebook facility
Jefferson Graham, USA TODAYPublished 4:18 p.m. ET July 1, 2019 | Updated 6:41 p.m. ET July 1, 2019
https://www.usatoday.com/story/tech/talkingtech/2019/07/01/facebook-facility-closed-fear-poison-sarin/1621743001/
DXer said
Facebook campus cleared following sarin toxin exposure fears
By Reuters
July 2, 2019
https://nypost.com/2019/07/02/facebook-campus-cleared-following-sarin-toxin-exposure-fears/
DXer said
In its brief this week, the DOJ states:
“First, the FBI acknowledges that, after reviewing the IMCS excerpts in camera, the Court
disagrees with the FBI’s categorical application of Exemption 5 to the IMCS. Seidel Decl. ¶ 75; see
Mem. Op. (ECF No. 27) at 19-20.”
Indeed, the requestor is not particularly interested in the opinions contained in the memorandum. We have all had our fill with alternative theories and opinions.
For example, the requestor Dillon is seeking the evidence in the 16 pages of the Ivins section that is being concealed. Specifically, it will contain factual recounting of his whereabouts and activities during the windows of mailing. It may point to documents that still have not been produced.
The requestor is also, for example, seeking the summary (in the Table of Contents) of forensic tests — all of which have been withheld, because NONE of them are supportive of Bruce Ivins being the Fall 2001 anthrax mailer.
Now what reason do we have to think the FBI is withholding exculpatory information? Because the author of those 16 pages in the memorandum to Robert Mueller says so.
Are we going to credit the statements of the former lead Amerithrax investigator Richard Lambert who has made these claims or some brief writer unfamiliar with the case (who often spells the USAMRIID scientist’s name Ivans)?
Ex-FBI Investigator Claims Bureau Hid Evidence in 2001 Anthrax Case
http://ticklethewire.com/2015/04/16/ex-fbi-investigator-claims-bureau-hid-evidence-in-2001-anthrax-case/
DXer said
The DOJ brief spends a lot of time on (b)(6) and (b)(7) without ever noting that Dr. Bruce Ivins has passed — and the Amerithrax investigation is closed. If DOJ wants to delete the names of his colleagues and assistants — as USAMRMC did in making its production, that would be fine and should be expected.
The important substance discussing forensic tests does not relate to particular individuals. And I do not understand the requestor to be interested in “POIs”. He is interested in the forensic findings and the documentary evidence relating to how Bruce Ivins spent September and October 2001.
The fact that the Ames strain was discovered in Afghanistan — and yet the FBI has concealed that fact — implicates neither (b)(6) nor (b)(7).
DXer said
On this issue of the FBI’s refusal to provide all of Bruce Ivins notebooks, I should explain that the USAMRIID librarian created a CD containing all of the notebooks. The FBI took the CD and has refused repeated requests to return it.
I have found USAMRMC FOIA officer Rogers both helpful and forthright. She uploaded a couple dozen or so notebooks — all that she had that I requested she uploaded.
If the FBI would simply return the CD to the Army, then FOIA officer Roger or some other FOIA officer could upload notebooks not uploaded. It was highly unfortunate that the USAMRMC took down its website showing what notebooks and emails had been uploaded. Whatever the intention, the effect has been to prevent the US District Court from seeing what has been withheld.
Notebook 4010 — relating to the so-called “murder weapon” that contained Ames anthrax said to be genetically identical in material respects — was never uploaded.
The only redactions ever made were the proper names of other researchers were redacted under (b)(6).
DXer said
In his Affidavit in support of DOJ’s renewed motion of summary judgment, Matt Seidel (acting in David Hardy’s absence) explains the chronology of events relating to FOIA requestor Dillon’s 2015 request. He explains that Dillon asked for the ICMS (the summary of the investigation written by Robert Mueller’s right-hand man). Attorney Seidel explains that the FBI responded that it had already been uploaded to the vault. Dillon appealed — saying that was not true. It hadn’t been uploaded.
Well, that’s all we need to know — 4 years later — as to the question whether Dillon is entitled to an award of attorneys fees. The FBI was hugely incompetent to claim a 2000 page document had been uploaded when the most cursory of checks in the FBI’s online vault would have shown that it wasn’t. The FBI has wasted years of Dillon’s time and many thousands of his dollars.
The FOIA statute provides for an award of attorneys fees. Attorney Seidel supervises 244 employees — and mistakes will be made. But the FOIA statutory scheme provides that a FOIA requestor given this half decade run-around is entitled to an award of attorneys fees.
DXer said
Attorney Matt Seidel, who supervises the numerous FBI FOIA personnel, states in his Affidavit:
“Plaintiff indicated the FBI needs to release the following records: Ivan’s emails to or from various named individuals,
Notebook 4010 as well as relevant pages from Notebooks 3655, 3945 and 4251 , paper and
computer files including files from Ivan ‘s computer, information from meetings Ivan attended, as
well as his telephone and credit card records.”
Now, I’ve pointed out that the FBI should produce Notebook 4010 to Dillon, relating to the so-called “murder weapon.” The FBI has also failed to produce his credit card and telephone records for September and October 2001, the time of the anthrax mailings. But given that the FBI’s management of documents depends on the correct spelling of words in searching the relevant databases, Matt Seidel needs to take this to heart: The man who committed suicide under the pressure of the FBI’s investigation was named IVINS, not IVAN. It does not inspire confidence of the FBI’s management of its records to have Dr. Ivins’ name so regularly spelled wrong. The name needs to be spelled correctly in searching for FBI records.
Now I appreciate that like David Hardy, Matt Seidel has immense responsibilities. Attorney Seidel’s experience and qualifications are impressive. His expertise is beyond dispute. Affidavits submitted by Hardy and Seidel in this matter are articulate. But spelling proper names is where the rubber hits the road in a FOIA matter. When the FBI has failed to provide Ken Dillon with Notebook 4010 or any of Dr. Ivins telephone or credit card records from September 2001 and October 2001, then the FBI should go back and find and produce the requested documents known to exist. They are central to this issue of whether the man who died in fact had an alibi on the date and time that the FBI wildly speculates Dr. Ivins mailed the anthrax letters.
DXer said
In its Memorandum in support of its Motion for Summary Judgment, the first pages are a cut-and-paste summary of the legal standards applies.
It is unclear why the brief writer describes a request from an individual “seeking information on themselves” when in his request about Amerithrax, the biggest criminal investigation in history, requestor Dillon was not seeking information about himself.
“1. The FBI Central Records System In processing requests from individuals seeking information on themselves, the FBI begins by searching its Central Records System (“CRS”). The CRS consists of a numerical sequence of files, called FBI “classifications,” which are organized according to designated subject categories. Seidel Decl. ¶ 39. The broad array of CRS file classification categories.”
Such is a peril of a cut-and-paste approach to analysis.
DXer said
The brief explains:
“The general indices to the CRS are the index or “key” to locating records within the
enormous amount of information contained in the CRS. Id. ¶ 40. The CRS is indexed in a
manner which meets the FBI’s investigative needs and priorities, and allows FBI personnel to
reasonably and adequately locate pertinent files in the performance of their law enforcement
duties. Id. The general indices are arranged in alphabetical order and comprise an index on a
variety of subject matters to include individuals, organizations, events, or other subjects of
investigative interest that are indexed for future retrieval. Id. The entries in the general indices
fall into two category types:
(a) Main entry. This entry pertains to records indexed to the main subject(s) of a file,
known as “main file” records. The “main” entry carries the name of an
individual, organization, or other subject matter that is the designated subject of
the file.
(b) Reference entry. This entry, or a “cross-reference,” pertains to records that
merely mention or reference an individual, organization, or other subject matter
that is contained in a “main” file record about a different subject matter.
Id. FBI Special Agents (“SA”) and/or designated support personnel may index information in
the CRS by individual (persons), by organization (organizational entities, places, and things), and
by event (e.g., a terrorist attack or bank robbery). Id. ¶ 41.”
DXer said
https://www.rcfp.org/foia-trial-offers-rare-look-how-fbi-searches-records-responds-reques/
David Hardy, the chief of the FBI’s Records Information Dissemination Section (RIDS) that manages FOIA requests, and other RIDS personnel testified publicly about how the FBI manages its records. In 2011, the FBI had been sanctioned after a judge determined Hardy had misrepresented the availability of FOIA records to the court.
In that case, the FBI had contended it could not find any records; later it admitted that it found documents, but could not disclose their existence to the court for national security reasons, although the court noted that the FBI could have requested in camera review.
“Simply put, the Government lied to the court,” Judge Cormac Carney wrote.
The latest testimony from the Trentadue case shows that reporters and members of the public who send FOIA requests to the FBI might not know that there are a myriad of different records “systems” that they need to specify in order for a comprehensive search to take place. They might not know that the FBI typically only searches for the location of the main file related to an investigation as reported to headquarters, so reporters should also request cross-references, which are mentions of the subject of their request in investigations outside of the main file. While field offices have FOIA-trained personnel to assist RIDS, reporters should also send FOIA requests directly to individual field offices they think are relevant to the investigation, because RIDS may only request documents from the field office associated with the main file.
The FBI’s Central Records System (CRS) contains the “universe of records” the FBI has acquired in its law enforcement operations. According to trial testimony in the Trentadue case, the Automated Case Support system (“ACS”) searches the CRS, and the ACS is split into three components: the Investigative Case Management system (“ICM”), the Electronic Case File (“ECF”), and the Universal Index (“UNI”).
The ICM is a case management tool for documents involved in an ongoing investigation. The ECF is broader and contains all FBI law enforcement documents uploaded to the CRS except for some aged documents, or documents not uploaded for unknown reasons. Importantly, the ECF searches the text of the documents themselves.
The testimony showed that the FBI did not conduct an ECF search to find records responsive to Trentadue’s request, even though Hardy had testified that all of the records related to the Oklahoma City bombing had been uploaded into the ACS system. Instead, testimony revealed that it is the FBI’s policy to conduct UNI searches in response to FOIA requests. FOIA requesters need to state specifically which databases they want searched if they want a search beyond UNI to be conducted, testimony showed.
UNI searches differ from ECF searches in that UNI does not search the text of the documents themselves. Instead, UNI searches for keywords, which are entered by agents working on the investigations.
UNI can indicate in which field office physical evidence is located if an entire investigation is encompassed by a keyword. However, an ECF search can help to reveal whether or not a given record exists at all with more specificity than UNI, because physical evidence is often referred to within the text of documents and UNI would typically only identify where the entirety of the evidence for an investigation is located, not whether a particular record exists.
Testimony revealed that the one search of the CRS was made using the generic UNI keyword “OKBOMB,” even though there was a wide range of keywords that could have been used in a text-based ECF search.
Shawn Musgrave, projects editor at MuckRock, said that while the FBI is good about providing status updates to FOIA requests and responding to correspondence, the process is often surprisingly lengthy for the number of documents received.
“Sometimes they will just shoot me back a ‘Didn’t find anything in the CRS’ answer, and then I’ll have to go back and say, ‘I didn’t ask from the CRS,’ ” Musgrave said. ” ‘This is not a keyword search. I’m looking for a particular document that I know you have, that one of your own emails referred to. That’s the document that I’m after.’ ”
The FBI sometimes appears to wait for requesters to sue before conducting a full search, Musgrave added.
“There should not be a disparity in tools” between what exists and what are used in FOIA requests, Musgrave said. “That really undercuts their argument that it’s unreasonable to search [in some situations].”
Even in the rare case where a requester has known to ask for an ECF search, the FBI has occasionally refused to conduct it.
Testimony also revealed that Linda Vernon, a forensic accountant with the FBI in Oklahoma City who had no training in FOIA practices, conducted the search for records responsive to Trentadue’s request. Vernon had previously helped to assemble the FBI’s discovery evidence while the bombing was being investigated.
Trentadue has alleged in court filings that the FBI “created a situation of tactical ignorance whereby Ms. Vernon could reasonably be expected to fail in terms of locating and/or producing videotapes and documents responsive to Plaintiff’s FOIA request.”
In addition, testimony suggested that Vernon had conducted a search of records on what was essentially a personal database for the Oklahoma City bombing instead of on the wider universe of records held by the FBI. The statements made at trial had also shown that some requests for information are flagged for Hardy’s attention at the beginning of the request process due to their potential for litigation.
Hearings before the House Oversight and Government Reform Committee last week took aim at political flagging of FOIA requests across the federal government, among other issues related to FOIA, specifically including political vetting of documents related to Hillary Clinton.
Journalists and attorneys have also expressed concern in the past that the FBI has withheld evidence from the discovery process by placing records outside the CRS.
John Solomon of the Associated Press in 2004 documented the existence of so-called “I-Drives” used by the FBI, which were file-sharing drives used in the course of case management but which defense lawyers said could be used to withhold evidence. Testimony showed that the I-Drives have been replaced by “S-Drives,” which serve essentially the same function. Trentadue alleges the FBI failed to search S-Drives for records responsive to his FOIA request.
A database of electronic surveillance information outside the CRS, ELSUR, was also discussed at trial.
Notably, judgment in the trial — which is a bench trial — is being withheld after U.S. District Judge Clark Waddoups appointed U.S. Magistrate Judge Dustin Pead to investigate witness tampering claims that the FBI instructed a former FBI agent not to testify in this trial.
Christopher Allen, an FBI spokesman, declined to comment, citing ongoing litigation.
In the District of Utah, the case number is 2:08-cv-00788-CW-DBP.
Transcripts of testimony:
DXer said
In its Memorandum, the DOJ explains:
“In response to FOIA Number 1329350, the FBI conducted a CRS search using the term
“Interim Major Case Summary” and located no records. Seidel Decl. ¶ 52. The FBI then
conducted an index search using the term “Amerithrax” which resulted in one investigative file.
Id. The FBI electronically reviewed the investigative file and was unable to locate the IMCS.
Id. Next, the FBI contacted the subject matter experts at the Washington Field Office and
requested their assistance. Id. The Washington Field Office reviewed the physical investigative
file and was unable to locate the IMCS. Id. The Washington Field Office reached out to the
FBI’s Laboratory Services in Quantico, Virginia, who located the IMCS and sent it to IMD for
processing. Id”
It is my second-hand info that the author of the IMCS, Special Agent Lambert, had in fact uploaded it to the general investigative file. Why, then, was it not then found? Had it been uploaded but deleted?
DXer said
Special Agent Richard Lambert — who led the Amerithrax investigation and is the author of the 16 pages on Ivins that FOIA requestor Dillon seeks — says that the agency is hiding evidence.
So, no — while I have just started reading the DOJ’s briefing and am making these notes as I go — I don’t think the FBI should be allowed to avoid answering the hard questions.
See, e.g., Ex-FBI official: Agency is hiding evidence in anthrax case, Chicage Tribune, April 15, 2015
https://www.chicagotribune.com/nation-world/chi-fbi-hiding-evidence-anthrax-case-20150415-story.html
DXer said
The DOJ brief continues:
“By letter dated June 19, 2015, Plaintiff filed an appeal with DOJ OIP stating the FBI “has
never released any records responsive to my request. . .” Id. ¶ 22. Plaintiff indicated the FBI
needs to release the following records: Ivan’s emails to or from various named individuals,
Notebook 4010 as well as relevant pages from Notebooks 3655, 3945 and 4251, paper and
computer files including files from Ivan’s computer, information from meetings Ivan attended, as
well as his telephone and credit card records. Id.
By letter dated November 24, 2015, DOJ OIP remanded Plaintiff’s request to the FBI for
a search for responsive records. Id. ¶ 24. In a letter dated April 15, 2016, the FBI notified
Plaintiff records responsive to his request were previously processed under the FOIA, and
enclosed for Plaintiff a CD containing six pages of previously processed documents and a copy
of an Explanation of Exemptions sheet. Id. ¶ 25. The FBI also stated “[a]dditional records
potentially responsive to your subject may exist” and to “submit a new FOIA request if
[Plaintiff] would like the FBI to conduct a search of the indices to our Central Records System.”
Id.”
The USAMRIID scientist that the DOJ accused of being a murderer at a press conference — on evidence set forth in the press conference that was demolished in numerous respects — is named Ivins, not Ivans.
We can disagree about whether we know who dropped an envelope into a mailbox 18 years ago. But let’s take care to spell the man’s name right out of respect.
Posters often called Hatfill Hatfield. The DOJ also was mistaken, by most all accounts, about Dr. Hatfill.
The DOJ continues in its brief:
“In a letter dated December 22, 2016, Plaintiff further described the desired records and
asked for two specific pieces of evidence – “Ivan’s emails to or from Patricia Fellows and Mara
Linscott.”
Again, the man’s name is Ivins, not Ivan. Spelling a person’s name wrong is a sure way for a search for documents known to exist not to be found.
DXer said
The DOJ notes:
“Proof of these emails’ existence was based on information within the final Amerithrax Major Case summary and information Dillon gleaned from the Affidavit in Support of Search Warrant signed by Postal Inspector Thomas F. Dellafera of the United States Postal Inspection Service (“USPIS”) on October 31, 2007. Ivins’ home, three vehicles, and safety deposit box were searched based on this warrant. Within Postal Inspector Dellafera’s supporting affidavit, there were mentions of potentially responsive emails that the FBI’s search did not uncover.”
Maybe they were not discovered because his name was spelled wrong. Just sayin…
DXer said
DOJ continues:
“In light of Dillon’s evidence, the FBI contacted its Subject Matter Experts at the
Washington Field Office (“WFO”) to perform a supplemental search of any locations where
responsive email records were likely to be located within the Amerithrax investigative file.
Seidel Decl. ¶ 57. WFO conducted an additional search of the file attachments (commonly
referred to in the FBI as 1A attachments) for responsive emails. Id. In WFO’s assessment, this
was the only location where records of this type (emails ingested by the FBI from an outside
source) would likely be located. Id. Through this search, WFO successfully located binders of
email records that were apparently overlooked in the FBI’s original search through this file. Id.
The email records included the emails specifically pointed to by Dillon. Id. “
DXer said
DOJ’s chronicling of events supports an award of attorneys fees to FOIA requestor DIllon. DOJ’s failure to look in the “only location where records of this type” would be — before requiring that DIllon incur attorneys fees and years of delay and effort — warrants an award of attorneys fees provided for under the statute. Such an award provides an agency an incentive to look in the “only location where records of this type” when they first receive the request.
DXer said
The DOJ wastes a lot of time justifying deleting the names of FBI and non-FBI personnel under Exemptions (b)(6) and (b)(7)(C). That’s not in dispute.
DXer said
Here is a copy and paste of the text of Ken Dillon’s FOIA request to USAMRIID.
xxxxxxxxxxxxxxxxxxxxxx
Washington, D.C. 20016
May 24, 2019
FOIA Officer
CDR, USAMRIID
ATTN: MCMR-UIX-J 1425 Porter Street Fort Detrick, MD 21702-5011
Dear Sir/Madam:
This is a request filed under the Freedom of Information Act.
I request: (1) all records on the anthrax mailings of 2001 that were on the USAMRMC Website before they were taken down in late 2018; and (2) all emails to and from Bruce E. Ivins, including those that were withheld in whole or in part on account of the ongoing anthrax mailings investigation. FBI has since declared the Amerithrax investigation closed. The production was supervised by FOIA officer John Peterson.
I request that the records be provided in electronic format and that they be released in tranches as they become available.
I request a full waiver of fees. A waiver is appropriate because the subject of the request concerns the operations or activities of the federal government, specifically law enforcement actions connected with the Amerithrax investigation. The information requested will be meaningfully informative of the issue because it will likely reveal details about the investigation that are currently unavailable to the public. Indeed, USAMRMC implicitly recognized the value of many of these documents when it previously placed them on its website. The records are also not being sought for their commercial value. As a scholar, I serve the public’s need for information about this important, controversial case. I have worked on it pro bono for years and expect to continue doing so.
I am a professional historian and retired foreign service officer with a publishing business, Scientia Press. I have a Ph.D in history from Cornell University and am the author of seven books. I currently teach as an adjunct at Marymount University.
If my request for a full waiver of fees is denied, I request that I be classified as an educational requester for fee purposes.
I have done research on the Amerithrax case, have written articles at http://www.scientiapress.com about it, have organized a seminar on it, and have one of the main theories of the case. I will continue to publish online articles and eventually may publish in print media on the case as well. In view of the need of the American people for information about this case, I would place these records on the Scientia Press Website as soon as I receive them so that researchers and the public can readily access them.
I also request expedited processing. A compelling need to inform the public concerning actual or alleged federal government activity, with the goal of improving government operations, warrants expedited processing. The American people have an urgent need to know the information regarding Ivins in order to determine whether FBI failed to stop al Qaeda from carrying out the anthrax attacks, then claimed that an innocent Ivins was the mailer of the anthrax letters of 2001.
Thank you for your consideration of my request.
Sincerely,
Kenneth J. Dillon
CERTIFICATION OF COMPELLING NEED
I hereby certify that my statement of compelling need is true and correct to the best of my knowledge.
Kenneth J. Dillon
DXer said
Factoid: The FBI did not have a separate database for Amerithrax. All of the information in the case is part of the FBI’s Central System of Records.
DXer said
“Go public.” — Khomyuk
DXer said
President has a great CASE CLOSED image on his twitter feed today. It has him waving and Robert Mueller in the background.
I doubt my attempt to embed it below will be successful.
Attorney General Barr, if he had the power to declassify as he pleases — could bring to light what the public has not been able to see about Mueller’s largest criminal investigation, Amerithrax.
USAMRMC should provide Ken Dillon the emails that DOJ and FBI had John Peterson pull (on the basis of the pending law enforcement investigation). The investigation is now closed and so the exemption no longer applies.
I promised Sandra I would never bring suit. But Dr. Dillon will.
</s
DXer said
To show that the FBI is still withholding some of Ivins emails, the Plaintiff Dillon should depose John Peterson of the USAMRMC who provably was subject to the direction by DOJ and FBI personnel to pull emails from production during the pendency of the investigation. (The emails have yet to be produced even though that exemption no longer applies.) And now the USAMRMC has taken down its website with the Ivins emails it produced so that the federal district court judge, who has a copy of the 16 pages summarizing the FBI’s “Ivins Theory” (as it existed in 2016), cannnot compare what USAMRMC produced and what it withheld.
Dillon should simultaneously request the emails from USAMRMC and then bring suit against USAMRMC for the wrongful withholding. (Withholding was proper at the time it was done but it then was improper not to produce them in response to follow-up requests after the investigation was closed.
Willis v. Fed. Bureau of Investigation
No. 17-cv-1959 (KBJ) (D.D.C. May. 16, 2019)
The FOIA “was enacted to facilitate public access to Government documents” in order to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (internal quotation marks and citation omitted). The FOIA requires that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). The Court may enjoin a government agency from improperly withholding records in its possession or under its control at the time it receives a FOIA request. See 5 U.S.C. § 552(a)(4)(B). However, if “an agency does not possess or control the records a requester seeks, the agency’s non-disclosure does not violate FOIA because it has not ‘withheld’ anything.” DiBacco v. U.S. Army, 795 F.3d 178, 192 (D.C. Cir. 2015) (citing Kissinger, 445 U.S. at 150).
DXer said
By way of some background, NYT reporter Scott Shane had submitted the request for Ivins emails in September 2008. I then did also and continued to press them for additional email batches. I would upload them to a website called cryptome.
John Peterson explained to me that that each batch of emails was subject to review by a large committee of DOJ and FBI personnel. They insisted on doing it sequentially so it took a while even to get to September 2001 emails (having started in 1999). He would send each batch out and then it would take weeks — even months — before the next smallish batch would be produced. I would lambast him with headlines on this blog of Lew’s over the delay. Finally, after this repeatedly occurred, John relented and finally established a 2 week turnaround.
Now pretty much the only redactions ever made from emails that were produced were some proper noun redactions of people’s names. When I turned to the issues withheld entirely, they made the concession of producing 300 emails that had been pulled because they were personal jokes etc. (They were produced in the last batch).
But then when I pressed for additional emails that had been culled,and turned (at the Army’s suggestion to the FBI) — like one September 17, 2001 email — the FBI would only produce such an email if I specifically named it. And the key substantive culling had been done above the pay grade above the wonderful FOIA officer Sandra at USAMRMC.
Now at the time of the production, there was a pending law enforcement action. The FBI had a right to withhold whatever they wanted under a well-established exception. And given that I wasn’t suing, I did not have a right to a Vaughn index indicating what had been culled from production by USAMRMC. That resulted in the FBI and DOJ instructing that some emails be culled because of the pending law enforcement action — emails that raised issues relating to the crime. And those emails remaining forever buried by AUSA Rachel.
At the end of the day, in an ideal world, what should have happened was that all of the emails pulled from production (legitimately) on the grounds of the pending law enforcement action, should have later been restored. But in the real world, they just were left in a file at the government agency and not uploaded. John’s sister lives up in Oswego, NY and he would visit for Thanksgiving. He’s a nice guy and I’m not looking to cause him aggravation. And I especially regret having apparently worn out the patience of the FOIA officer Sandra, who (it appears to me) always acted in good faith.
I am not suggesting that they did anything wrong by pulling them during the production — given that it occurred during the pendency of a criminal investigation. And it was the DOJ and FBI call to make. There was an express exemption that authorized their withholding. But now that the FBI has CLOSED the case, the grounds for not producing no longer applies. And the obligation to produce was long ago triggered by numerous follow-up requests after the closing of the case.
If they don’t produce them and they then leak — and they are in a nice, tidy folder (just ask John at civil deposition), the people unlawfully withholding should be disciplined pursuant to the express terms of the FOIA statute. The Army will need to be sued.
DXer said
Note that FOIA requestor DIllon evidences his good faith when he gets very specific and concrete in his descriptive information so as to permit a search.
Reporters Comm. for Freedom of the Press v. Fed. Bureau of Investigation
Civil Action No.: 17-1701 (RC) (D.D.C. Mar. 1, 2019)
In its initial response, the FBI split RCFP’s request into four distinct groups. Compl. ¶ 23; see FBI FOIA Responses, Compl. Ex. B., ECF No. 1-2. The FBI assigned Request No. 1372347-000 to items 2, 3, and 5, and gave a Glomar response to the request pursuant to FOIA Exemption 7(E). Defs.’ SMF ¶ 2; Declaration of David M. Hardy (“Hardy Decl.”) ¶ 12, ECF No. 19-3. The FBI assigned Request No. 1372342-000 to items 1 and 4, and asserted that FOIA Exemption 7(A) prevented the disclosure of any records in response to the request. Compl. ¶ 26; FBI FOIA Responses 15. Item 8 was assigned Request No. 1372351, with the FBI stating that processing of the request would be delayed due to unusual circumstances. Compl. ¶ 27. And items 6 and 7 were assigned Request No. NFP-71761, for which the FBI stated that RCFP’s request did not contain enough descriptive information to permit a search. Defs.’ SMF ¶ 7. On June 5, 2017, RCFP appealed the FBI’s responses to the entire request. Compl. ¶ 28; June 5, 2017 FOIA Appeal, Compl. Ex. C, ECF No. 1-3. The appeal of Request No. 1372351-000 was dismissed on July 5, 2017 because the request was still pending. Compl. ¶ 33; July 5, 2017 Denial, Compl. Ex. D, ECF No. 1-4.
DXer said
I enjoyed Travel Channel’s current episode on Dutch Schultz’s missing treasure in the show “Mission: Declassified.” They brought digging equipment to the house I identified to them many months ago across from site of The Brook casino in Saratoga Springs. They found a body below the safe room — some bones. The host called the police on camera.
Background:
Getman and Getman, “Ongoing Search for Dutch Schultz’s Missing Millions”
https://www.treasuretracer.com/dutch-shultz/ongoing-search-for-dutch-schultzs-missing-millions/
Once the FBI undercover that did this blog’s graphicsFN/ and I went to check out the house — like my nephew and I did on an earlier occasion. The graphic artist and I had raced to Saratoga Springs after the owner emailed us photos of the safe and safe room.
I’m glad they did the digging but glad I opted out of the enterprise — ending up instead pursuing the search for Schultz’s millions through a different Travel Channel vehicle (a future series tentatively called “The Call of the Wild”) with some great folks.
TV show hunts for gangster Dutch Schultz’s lost fortune in Stony Creek
https://poststar.com/news/local/tv-show-hunts-for-gangster-dutch-schultz-s-lost-fortune/article_68379905-7072-561d-8a1d-2996769fbd4d.html
But my entire point of identifying the Saratoga Springs house to the one production company was to get the digging done — to advance the search.
If only it was that easy in connection with the Isabella Gardner paintings to get the FBI to bring ground penetrating radar to Robert Gentile’s old car lot in S. Windsor (where the cement slab that served as the foundation of a building that was razed when Mrs. Guarante testified before the grand jury). Or to get the FBI to bring ground penetrating radar and a back hoe to dig under the cement slab I identified a half decade ago at Guarente’s farm house in Maine. (The FBI and security director Tony Amore had been to the farmhouse but had not brought digging equipment, content instead to look at an empty hiding place in the house).
I thought my friend Steve Kurkjian’s recent Boston Globe/WBUR 8-part podcast on the Isabella Gardner heist — “Last Seen” — was masterful. I highly recommend it. Without spoiling the plot, it ended with a shit lead like the recent Dutch Schultz treasure episode did. But that was part of the great fun — and even mistakes and dead ends often advance the continuing mystery.
I walked the “In Praise of Painting” exhibit on the Dutch Masters at the Met museum in New York this week — and I can say that Steve Kurkjian may have the same passion for a good mystery and the missing paintings, but we have radically different views of the moral importance of the recovery of some old images. I’ll take an IPhone picture of a turtle sunning himself on a log any day — preferably personally taken.
I’m in negotiations to buy a used backhoe so I can depend less on the kindness of strangers — or the uncorroborated tales told by criminals.
For a discount on price, I gave the owner of the backhoe (who we gave permission to metal detect on our island) 100% of the “Dutchman’s Lost Mine” near Mesa, Arizona. As a sweetener I gave him a book I found last week about the legendary mine.
These film makers and radio people and reporters seem to have a fun job. I am regularly impressed by their work product .
Background:
Dutch Schultz in Fairfield County, Connecticut in 1935 : his horses, his hiding places, and his missing millions | Ross Getman and Grace Getman
July 16, 2010
http://www.blurb.com/b/1475537-dutch-schultz-in-fairfield-county-connecticut-in-1
FN/
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
https://www.amerithrax.wordpress.com
DXer said
In the Isabella Gardner matter, as to Robert Gentile’s used car lot in CT, I am recommending the FBI bring ground penetrating radar and a backhoe to 395 John Fitch Blvd, South Windsor, CT 06074. At the very least, the current owner (who bought it for $300,000 a few years ago) should check it with ground penetrating radar. He worked the lot at the same time Guarente needed to hide the paintings, and Gentile had a sideline laying concrete. The building was razed just as Guarente’s widow was appearing before the grand jury pointing the finger to Gentile. (My source as to timing was the receptionist at the construction place diagonally across the major interchange) who would pass it each day coming to work.
DXer said
Plaintiff’s new counsel seems very sharp.
To celebrate, here is a free graphic novel —
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
https://www.amerithrax.wordpress.com
The Author of World War Z Is Worried About Germ Warfare
Max Brooks on writing a graphic novel about the threat of bioterrorism.
By MAX BROOKS
MAY 14, 2019
https://SLATE.COM/TECHNOLOGY/2019/05/MAX-BROOKS-GERM-WARFARE-BIOTERRORISM-GRAPHIC-NOVEL.HTML
DXer said
BAD EVIDENCE
Ten Years After a Landmark Study Blew the Whistle on Junk Science, the Fight Over Forensics Rages On
DXer said
The government hired the Plaintiff’s lawyer out from under him.
MINUTE ORDER granting [35] Joint Motion for Extension of Time. It is hereby ORDERED that the following briefing schedule shall govern further proceedings: Defendant shall file a motion for summary judgment on or before June 14, 2019; Plaintiff shall file an opposition and cross-motion for summary judgment on or before July 16, 2019; Defendant shall file a reply and cross-opposition on or before July 30, 2019; and Plaintiff shall file a reply on or before August 13, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on May 3, 2019. (lcrc3)
DXer said
Maryland Gov. Hogan says he’s seriously mulling presidential run, criticizes Trump’s ‘very disturbing’ behavior
“I really am disgusted that people aren’t speaking out,” Hogan said. “Yes, I’m going to get criticized. Yes, people aren’t going to like it. I think it’s important to say what you think. I think it’s important for somebody to say the truth.”
https://www.baltimoresun.com/news/maryland/politics/bs-md-hogan-presidential-potential-20190423-story.html
Comment: President Trump should announce that he is not running for reelection. Then he can retire to a life of golf. Trump sets a very poor example for children.
With it increasingly likely that Donald Jr. will be indicted, prompting the President to resign, an announcement he is not pursuing a second term is a very appealing option.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
https://www.amerithrax.wordpress.com
DXer said
Judge: Barr sowing public mistrust with Mueller report handling
‘The attorney general has created an environment that has caused a significant part of the public … to be concerned,’ a district court judge said Tuesday.
By JOSH GERSTEIN 04/16/2019 04:29 PM EDT
https://www.politico.com/story/2019/04/16/judge-barr-mistrust-mueller-1278030
Comment: That certainly exists in the case of the report to Mueller in Amerithrax — given its author has told NYTimes and Fox News (and stated in a court filing) that the FBI is withholding a “staggering amount” of evidence exculpatory of Bruce Ivins.
The 16 page of the Ivins section will contain facts that will assist in establishing his alibi.
Judge in FOIA case says he may want to review DOJ redactions of Mueller report after release
By Katelyn Polantz, CNN
Updated 4:03 PM ET, Tue April 16, 2019
https://www.cnn.com/2019/04/16/politics/judge-foia-doj-redactions-mueller-report/index.html
Comment: In the case of the report to Mueller on Amerithrax being withheld by the FBI, the fact that Ames was detected in Afghanistan has already been stated in a PhD thesis by a key CIA and FBI scientist. A blatant conflict of interest would be shown if the facts relating to the FBI’s dismissal of the CIA’s finding is shown. The same is true as to the FBI’s dismissal of the “Silicon Signal.”
But I am most concerned with the concealment of the facts relating to Bruce Ivins activities and whereabouts during September and October 2001.
I am not interested in the FBI’s “deliberations” or “opinions.” We’ve heard quite enough of opinions — it’s the facts that the requestor seeks to establish.
DXer said
Press group files FOIA request for Mueller grand jury materials
BY ZACK BUDRYK – 04/01/19 12:14 PM EDT
https://thehill.com/homenews/administration/436727-press-freedom-group-files-foia-request-for-mueller-grand-jury
Comment: In the FOIA lawsuit involving the report to Mueller re Amerithrax, the requestor’s counsel is going to work for the government. He should be sure to avoid any prejudice to his client. Most any large firm or nonprofit focused on FOIA would take on the matter and briefing on summary judgment pro bono.
DXer said
Journalists need to stop enabling junk forensics
https://www.washingtonpost.com/opinions/2019/04/02/journalists-need-stop-enabling-junk-forensics/?noredirect=on&utm_term=.fe45e719a8ae
The lesson here is when a self-proclaimed expert starts claiming he or she can solve crimes by using some new method of analysis, we journalists ought to be skeptical. We ought to ask if this new method is subjective or objective, if it has a rate of error, and if the proponent of this new field would be willing to be subjected to blind testing (or if such testing is even possible). We tend to be suckers for new technology and niche expertise, and that enthusiasm can cloud our natural skepticism. Flattering profiles of people peddling pseudoscience give those peddlers legitimacy, both with courts and with juries, and that false legitimacy has contributed to wrongful convictions. Whether it’s a bite-mark analyst, a guy who claims he can identify a specific pair of blue jeans in a grainy security video, or someone who, say, claims he can solve crimes by analyzing knots, some dubiety is in order.
Comment: In Amerithrax, it has been difficult for journalists to critically assess the forensic evidence — there was NONE that implicated Bruce Ivins — because none of the reports, which are factual or supposed to be, have been produced.
DXer said
Reporters Committee secures FOIA win in case to uncover details on FBI impersonation of documentary filmmakers
https://www.rcfp.org/reporters-committee-secures-foia-win-in-case-to-uncover-details-on-fbi-impersonation-of-documentary-filmmakers/
Comment: I had a text this past week that asked: “Who dunnit?” Not recognizing the number I ignored it, partly because I didn’t know to what it was referring. As to most unresolved mysteries, I only know what I perceive to be the range of possibilities.
Then when a picture of an empty picture frame at the Isabella Gardner museum in Boston was added, I confidently responded: “Carmello Merlino’s crew” — even though I still didn’t know who was writing.
I think impersonating documentary filmmakers would be a very cool way for the FBI to make an approach — very flexible. I’m very impressed with movie making. I would only ever get to wondering if I saw the filmmaker had papered over FBI missteps in a case in order to gain access. (Like missing the “blue van clue” in the Pizza Hut bomber case in Erie). But filmmakers and reporters take the same liberties in gaining access to any story.
The only thing cooler and more fun (I expect) than being an FBI Agent is being a documentary filmmaker. To be both would be doubly cool.
DXer said
The media company pitching a multi-part series on Amerithrax would greatly benefit from the 16-page section on Ivins and the factual narrative about forensic findings.
The FBI worries about the public being confused by the transparency. God forbid that their conclusions be tested by the exculpatory evidence that the former lead Amerithrax investigator says is being withheld by the FBI. (The information is contained in a very lengthy memorandum written to Robert Mueller.)
Other tv shows would also. There is a new series “Mission Declassified”. I don’t follow DB Cooper media but if you do, the new series has an episode on DB Cooper.
https://watch.travelchannel.com/tv-shows/mission-declassified/full-episodes/the-hunt-for-d-b-cooper
I backed out of filming for the series last month when the Dutch Schultz episode was going to include an interview of the grandson of the 1930’s gangster’s lawyer. The father and son have been repeatedly indicted for fraud. The (reportedly) mafia-related frauds have involved planned violence caught on FBI wire. The film production company was going to bring ground penetrating radar to a particular home — and I have to admit the whole jack hammer scene in the basement where there was a safe and blocked off safe room would have been fun.
Lesson: Never trust a hit man named Oscar or be associated with someone who hangs out with someone working for the FBI who pretends to be one.
As an alternative, on April 18, for a Travel Channel series tentatively called “Code of The Wild”, a different film company is going to film my daughter and I climbing a Hadley Mountain from which Dutch’s hideout could be seen. Is the mountain cabin 3-4 miles northwest of Corinth, NY? It wouldn’t be an interesting unsolved mystery if I knew.
DXer said
The 102 pages of Sept-Oct 2001 emails to and from Bruce Ivins to Mara Linscott — wrongfully withheld for 10 years by the FBI — are now uploaded here.
http://www.scientiapress.com/anthrax-mailings-documents
DXer said
The FBI has not produced the credit card receipts and telephone records for September and October 2001.
For example, he was at the fish market, he says, on the critical Saturday morning — where he says he cut his index finger requiring that he bandage his three fingers together. Is there a purchase that he made at the fish market evidence by his credit card?
He says he went to a housewarming part on a critical Saturday afternoon. Is there a credit card receipt evidence the Home Depot gift certificate that he gave as a gift at the party?
The night of that critical Saturday, he says he made a peanut butter cake because someone (presumably in the family) had a party to attend. Is there a grocery receipt evidence a purchase of materials for the cake?
On the days the FBI wildly (and without any factual basis) speculated that he was weaponizing a powderized anthrax, he was visiting restaurants with co-workers — and going to the greek festival. Are there corresponding receipts?
FBI’s Dave Hardy incorrectly claimed that the credit card receipts had already been uploaded to the FBI’s Vault.
Then he claimed that the FBI had produced all that it could find.
Well, given that time has demonstrated that 102 pages of emails between Bruce and Mara had been contained in an attachment to a 302, and thus apparently out of reach of the FBI’s search capability, we should help the FBI out again by identifying where the additional key documents it has misplaced are located.
We can presume the FBI’s good faith. But they have to take a more forthright approach intended to find the documents from September and October 2001 that it has failed to produce to the FOIA requestor.
At the same time it has failed to conduct an appropriate search, it has refused to provide the 16 page factual summary in the Ivins section that provides the factual chronology of his whereabouts.
DXer said
Over the years, Bruce Ivins used 4 credit cards, to include a Visa card from Farmers and Mechanics Bank, a Visa card issued by TJX Bank and a government issued card.
The purchases he made during September 2001 and October 2001 would help pinpoint and confirm his whereabouts on particular dates and times.
The FBI should produce the records without another 10 years of delay — or even 10 days.
Alternatively, absent such production by the FBI, if within the Ivins 16 pages, the FBI includes a factual narrative of purchases purposes, it should be disclosed after the District Court’s in camera review.
On the dates critical to the FBI’s bald speculation on critical dates, there can be expected to be a Home Depot gift card, some brownie mix, a purchase at a fish market and more.
DXer said
This was Robert Mueller’s biggest criminal investigation. Many, if not most, people think it is still unsolved.
Richard Lambert’s memo (at least the Table of Contents) and Ivins section, has been submitted to a US District Court sitting in the District of Columbia.
The public deserves the greatest transparency possible consistent with the applicable statutes.
To show that the FBI has been “hiding the ball” in spinning its “Ivins Theory,” let’s consider an inventory of emails written by Bruce Ivins in 2010 — appearing below in lower case font. And compare the list below to the additional emails (in CAPITALS) that the FBI finally provided — 10 years after they were first requested. Plaintiff Dillon incurred thousands in legal fees in pressing the FBI to comply with FOIA.
All of the additional emails that were wrongfully withheld are emails, often lengthy and newsy, that Bruce wrote to Mara Linscott. Some were written from within the B3 at a time when the FBI speculated — without any basis — that Ivins was making a deadly anthrax to send in the mail.
Other emails are still being provably withheld by the FB (as a single example, a September 2001 email to Nancy Haigwood relied upon by the government in support of its finely spun Ivins Theory).
Some of his emails discussed the small animal experiments that took up his time — and a large cleaning project he and others were tasked with doing.
The emails discuss meals at restaurants, prank involving a flatulator, a housewarming party, church, a finger injury that prevented his fingers from moving at the time of the second mailing, a trip to a local fish market the Saturday morning before the second mailing, the planned trip to Covance, PA, and much more.
FBI FOIA Dave Hardy should now provide the requested credit card records from September 2001 and October 2001 showing the purchases that will indicate Ivins whereabouts. If he has no embarrassment over the fact that it took him four Affidavits to tell the truth, then there is no accountability in government.
There is absolutely no evidence whatsoever indicating that Ivins travelled to mail any letters.
Wed, Sept 5, 2t001 8:07 AM
Wed. Sept 5, 2001 8:20 AM
Wed, Sept 5, 2001 9:13 AM
Wed, Sept 5, 2001 9:26 AM
Wed, Sept 5, 2001 9:49 AM
Wed, Sept 5, 2001 4:15 PM
Thurs, Sept 6, 2001 7:42 AM
Thurs, Sept 6, 2001 9:42 AM
Thurs, Sept 6, 2001 10:28 AM
*FRI, SEPT 7, 2001 11:38 PM*
*SAT, SEPT 8, 2001 9:13 PM*
Mon, Sept 10, 2001 10:00 AM
Mon, Sept 10, 2001 12:43 PM
Mon, Sept 10, 2001 1:23 PM
Mon, Sept 10, 2001 2:28 PM
Tues, Sept 11, 2001 7:49 AM
Tues, Sept 11, 2001 8:37 AM
Tues, Sept 11, 2001 8:42 AM
Tues, Sept 11, 2001 1:29 PM
Tues, Sept 11, 2001 2:07 PM
Tues, Sept 11, 2001 3:32 PM
*WED, SEPT 12 2001 7:26 AM*
*WED, SEPT 12 2001 8:37 AM*
Wed, Sept 12, 2001 9:47 AM
Wed, Sept 12, 2001 1:26 PM
Fri, Sept 14, 2001 10:32 AM
*FRI SEPT 14, 2001 3:54 PM*
*FRI, SEPT 14, 2001 9:34 PM*
SAT, SEPT 15, 2001 8:26 PM
MON SEPT 17 10:20 AM
WED SEPT 19. 2001 7:15 AM
Wed, Sept 19, 2001 8:13 AM
Wed, Sept 19, 2001 8:40 AM
*WED SEPT 19, 2001 7:16 AM*
*WED SEPT 19 2001 3:42 PM*
Thurs, Sept 20, 2001 9:41 AM
Thurs Sept 20, 2001 9:52 AM
Thurs, Sept 20, 2001 10:12 AM
Thurs, Sept 20, 2001 10:20 AM
Thurs, Sept 20, 2001 2:41 PM
*FRI SEPT 21 2001 10:31 AM*
*SAT SEPT 22 7:38 PM*
Tues, Sept 25, 2001 9:13 AM
Tues, Sept 25, 2001 11:22 AM
Tues, Sept 25, 2001 4:07 PM
Tues, Sept 25, 2001 11:22 AM
*WED, SEPT 26 6:12 PM*
*WED SEPT 26 8:02 PM*
*WED SEPT 26 9:46 PM*
*THURS SEPT 27 4:24 PM*
*THURS SEPT 27 8:24 PM*
Mon, Oct 1, 2001 2:41 PM
*TUES Oct 2, 2001 3:56 PM*
*WED Oct 3, 2001 7:57 AM*
Thurs, Oct 4, 2001 9:57 PM
*FRI OCT 5, 2001 7:37 AM*
Fri, Oct 5, 2001 10:52 AM
Fri Oct 5, 2001 10:53 AM
Fri, Oct 5, 2001 11:04 AM
Fri, Oct 5, 2001 11:05 AM
Fri, Oct 5, 2001 11:07 AM
Fri, Oct 5, 2001 11:10 AM
Fri, Oct 5, 2001 11:21 AM
Fri, Oct 5, 2001 11:22 AM
Fri, Oct 5, 2001 11:31 AM
*FRI OCT 5, 2001 11:37 AM*
Fri, Oct 5, 2001 2:29 PM
Mon, Oct 8, 2001 2:02 PM
*MON OCT 8 2001 3:24 PM*
Thurs, Oct 11, 2001 11:17 AM
Thurs, Oct 11, 2001 11:30 AM
Thurs, Oct 11, 2001 11:31 AM
Thurs, Oct 11, 2001 12:30 PM
Thurs, Oct 11, 2001 12:40 PM
Fri, Oct 12, 2001 5:50 AM
Fri, Oct 12, 2001 7:50 AM
Fri, Oct 12, 2001 1:00 PM
Sat, Oct 13, 2001 10:34 PM
Sat, Oct 13, 2001 9:29 PM
Mon, Oct 15, 2001 7:39 AM
Mon, Oct 15, 2001 8:05 AM
Tues, Oct 16, 2001 9:41 PM
*TUES OCT 16, 2001 10:17 PM*
*WED OCT 17, 2001 7:13 AM*
Wed, Oct 17, 2001 9:28 AM
Thurs, Oct 18, 8:21 PM
Fri, Oct 19, 2001 2:35 PM
Mon, Oct 22, 2001 8:34 AM
Mon, Oct 22, 2001 2:51 PM
Mon, Oct 22, 2001 2:52 PM
Mon, Oct 22, 2001 2:54 PM
Mon, Oct 22, 2001 2:56 PM
Mon, Oct 22, 2001 3:01 PM
Mon, Oct 22, 2001 3:31 PM
Mon, Oct 22, 2001 3:33 PM
Tues, Oct 23, 2001 9:39 AM
Tues, Oct 23, 2001 12:23 AM
Tues, Oct 23, 2001 12:24 AM
Tues, Oct 23, 2001 12:43 AM
Tues, Oct 23, 2001 12:44 AM
Wed, Oct 24, 2001 8:30 AM
Wed, Oct 24, 2001 10:12 AM
Wed, Oct 24, 2001 11:19 AM
Wed, Oct 24, 2001 11:30 AM
*WED OCT 24 2001 12:01 PM*
Thurs, Oct 25, 2001 12:49 PM
Thurs, Oct 25, 2001 3:20 PM
Fri, Oct 26, 2001 12:52 PM
Sat, Oct 27, 2001 3:22 PM
Mon, Oct 29, 2001 9:12 PM
Mon, Oct 29, 2001 3:24 PM
Mon, Oct 29, 2001 4:57 PM
Tues, Oct 30, 2001 9:17 AM
Tues, Oct 30, 2001 1:43 PM
Tues, Oct 30, 2001 1:53 PM
Tues, Oct 30, 2001 2:32 PM
Tues, Oct 30, 2001 4:59 PM
*WED OCT 31 2001 5:31 PM*
DXer said
He often wrote emails when he was in the B3.
They say there are lies, damn lies and statistics.
Consider the FBI’s and internet poster Ed’s reliance on how much time he spent doing animal experiments in Fall 2001, after his vaccinations resumed.
Ed shows a spike on October 5 — shortly before the second mailing — from 9:07-11:55.
Wherever he was, what was he doing? He was writing emails.
Fri, Oct 5, 2001 10:52 AM
Fri Oct 5, 2001 10:53 AM
Fri, Oct 5, 2001 11:04 AM
Fri, Oct 5, 2001 11:05 AM
Fri, Oct 5, 2001 11:07 AM
Fri, Oct 5, 2001 11:10 AM
Fri, Oct 5, 2001 11:21 AM
Fri, Oct 5, 2001 11:22 AM
Fri, Oct 5, 2001 11:31 AM
A previously withheld email he wrote on 11:37 was first produced this past week.
*FRI OCT 5, 2001 11:37 AM*
What was he doing in the B3 that first week of October? His lab notebooks and correspondence shows he was conducting an animal challenge at the start of the month and then tending to the animals as they died.
DXer said
Let’s consider an inventory of Ivins’ emails written by Bruce Ivins that were produced in 2010:
Wed, Sept 5, 2t001 8:07 AM
Wed. Sept 5, 2001 8:20 AM
Wed, Sept 5, 2001 9:13 AM
Wed, Sept 5, 2001 9:26 AM
Wed, Sept 5, 2001 9:49 AM
Wed, Sept 5, 2001 4:15 PM
Thurs, Sept 6, 2001 7:42 AM
Thurs, Sept 6, 2001 9:42 AM
Thurs, Sept 6, 2001 10:28 AM
Mon, Sept 10, 2001 10:00 AM
Mon, Sept 10, 2001 12:43 PM
Mon, Sept 10, 2001 1:23 PM
Mon, Sept 10, 2001 2:28 PM
Tues, Sept 11, 2001 7:49 AM
Tues, Sept 11, 2001 8:37 AM
Tues, Sept 11, 2001 8:42 AM
Tues, Sept 11, 2001 1:29 PM
Tues, Sept 11, 2001 2:07 PM
Tues, Sept 11, 2001 3:32 PM
Wed, Sept 12, 2001 9:47 AM
Wed, Sept 12, 2001 1:26 PM
Fri, Sept 14, 2001 10:32 AM
Wed, Sept 19, 2001 8:13 AM
Wed, Sept 19, 2001 8:40 AM
Thurs, Sept 20, 2001 9:41 AM
Thurs Sept 20, 2001 9:52 AM
Thurs, Sept 20, 2001 10:12 AM
Thurs, Sept 20, 2001 10:20 AM
Thurs, Sept 20, 2001 2:41 PM
Tues, Sept 25, 2001 9:13 AM
Tues, Sept 25, 2001 11:22 AM
Tues, Sept 25, 2001 4:07 PM
Tues, Sept 25, 2001 11:22 AM
Mon, Oct 1, 2001 2:41 PM
Thurs, Oct 4, 2001 9:57 PM
Fri, Oct 5, 2001 10:52 AM
Fri Oct 5, 2001 10:53 AM
Fri, Oct 5, 2001 11:04 AM
Fri, Oct 5, 2001 11:05 AM
Fri, Oct 5, 2001 11:07 AM
Fri, Oct 5, 2001 11:10 AM
Fri, Oct 5, 2001 11:21 AM
Fri, Oct 5, 2001 11:22 AM
Fri, Oct 5, 2001 11:31 AM
Fri, Oct 5, 2001 2:29 PM
Mon, Oct 8, 2001 2:02 PM
Thurs, Oct 11, 2001 11:17 AM
Thurs, Oct 11, 2001 11:30 AM
Thurs, Oct 11, 2001 11:31 AM
Thurs, Oct 11, 2001 12:30 PM
Thurs, Oct 11, 2001 12:40 PM
Fri, Oct 12, 2001 5:50 AM
Fri, Oct 12, 2001 7:50 AM
Fri, Oct 12, 2001 1:00 PM
Sat, Oct 13, 2001 10:34 PM
Sat, Oct 13, 2001 9:29 PM
Mon, Oct 15, 2001 7:39 AM
Mon, Oct 15, 2001 8:05 AM
Tues, Oct 16, 2001 9:41 PM
Wed, Oct 17, 2001 9:28 AM
Thurs, Oct 18, 8:21 PM
Fri, Oct 19, 2001 2:35 PM
Mon, Oct 22, 2001 8:34 AM
Mon, Oct 22, 2001 2:51 PM
Mon, Oct 22, 2001 2:52 PM
Mon, Oct 22, 2001 2:54 PM
Mon, Oct 22, 2001 2:56 PM
Mon, Oct 22, 2001 3:01 PM
Mon, Oct 22, 2001 3:31 PM
Mon, Oct 22, 2001 3:33 PM
Tues, Oct 23, 2001 9:39 AM
Tues, Oct 23, 2001 12:23 AM
Tues, Oct 23, 2001 12:24 AM
Tues, Oct 23, 2001 12:43 AM
Tues, Oct 23, 2001 12:44 AM
Wed, Oct 24, 2001 8:30 AM
Wed, Oct 24, 2001 10:12 AM
Wed, Oct 24, 2001 11:19 AM
Wed, Oct 24, 2001 11:30 AM
Thurs, Oct 25, 2001 12:49 PM
Thurs, Oct 25, 2001 3:20 PM
Fri, Oct 26, 2001 12:52 PM
Sat, Oct 27, 2001 3:22 PM
Mon, Oct 29, 2001 9:12 PM
Mon, Oct 29, 2001 3:24 PM
Mon, Oct 29, 2001 4:57 PM
Tues, Oct 30, 2001 9:17 AM
Tues, Oct 30, 2001 1:43 PM
Tues, Oct 30, 2001 1:53 PM
Tues, Oct 30, 2001 2:32 PM
Tues, Oct 30, 2001 4:59 PM
Source:
https://projects.propublica.org/docdiver/documents/89416-g3-usamriid-2001-ivins-emails17100-17823.html
DXer said
For 10 years after Ivins’ emails were requested by NYT’s Scott Shane and me, the FBI neglected to say that on September 12, Ivins wrote to say that USAMRIID personnel had been told by September 12 to prepare for possible biological events. That would have gone against their finely spun Ivins Theory.
Nor did they mention that everything was being checked after 9/11.
Why did the DOJ/FBI reviewing the emails being produced to me by USAMRMC’s John Peterson instruct him to cull it?
Was it because it did not support their theory?
On Wednesday, September 12, 2001, at 7:26 a.m., Ivins writes:
“Hi ________
It’s not very good today here. BIG security (highest level) at the gate and at USAMRIID. Everyone and everything gets checked. Soldiers were here in all the divisions the entire night. The pictures the television and the news reports were very saddening. There are may soldiers here who know people at the Pentagon, and there may be hundreds of fatalities there alone, not counting the people on the plane. Tonight we have to go through a “ThreatCon” call roster,” in which everyone at USAMRIID and in turn calls someone else. I don’t know if there will be any further events, but we’ve been told to prepare for possible biological events.”
“Have a good day. Enjoy the fall weather _______…
– Bruce
DXer said
On Wednesday, September 12, at 8:37 a.m., Bruce wrote Mara:
“I’m really sorry to hear about your friend ___. I honestly hope __ alive and OK. Most of the people in the WTC, especially on the floors below the airstrikes had time to get out of the buildings. ____ was very worried that Fort Detract was going to be hit and that I would be killed. [Note: the FBI redacted the name of his daughter]. We’ve heard from different sources that the plane that crashed in Pennsylvania was headed for Fort Detrick, not USAMRIID, but the telecommunications center (to knock out communications). The plot may have simply shut the plane down rather than turned it over to hijackers. The other possibility I’ve heard is that the plane may have been heading to Camp David or the Capitol. At any rate, it’s all very sad, very tragic. Please take care of yourself. When you get a chance, please write a line or two – love hearing from you. ___ seems as if — has been feeling better lately. Hope so. It hurts me to see ___ in pain.
Again, take care.
— Bruce”
DXer said
In a September 14 email that the FBI knowingly withheld from production, Bruce Ivins reveal his efforts to turn to getting fit. And a poem you never heard about.
He wrote:
“I thought you’d appreciate the following email I sent to ___. I’m getting ready to finally start working out again at the fitness center next week, and my gym bag, which hadn’t been touched in months, lay in the corner of the room. I picked it up and started ‘checking’ the items in it to see whether they had been worn. They hadn’t, but the whole thing really grossed out __________. I told them that the aroma of clothes was how I told if they were fresh (unworn) or not. ____ was still grossed out, so I wrote the following and sent it to ___ Hope it gives you a smile. I think it gave ___ one.”
An FBI Agent had the reaction (as evidenced by a handwritten note) “Sep 14 and he is writing poems?” Exactly.
He is going to the gym and writing poems. it would have been nice if the FBI had shared that information as part of your Ivins theory — so we could judge its unsupported claim that Ivins was making deadly powdered anthrax to mail.
Who instructed John Peterson at USAMRMC to cull this email from production? FBI Dave Hardy, if you don’t know, you should have made inquiry. It’s your name on the four sworn Affidavits.
Ivins September 14 poem was to the tune of SANTA CLAUS IS COMING TO TOWN
“He’s checking his briefs. Sniffing them twice.
Gonna find out if they’re nasty or nice.
Bruce the Badger’s gonna work out.
You’d better watch out. He’s starting to sweat.
His body’s making the floor really wet.
Bruce the Badger’s gonna work out.
He sees you when you’re biking, when he’s about to faint.
He says his heart is Oh so bad but you know that it ain’t.
So there at the gym when ou see him turn pink,
Star far away ‘cause you know that he’ll stink.
Bruce the Badger’s gonna work out.”
DXer said
Now look at the FBI’s theory. The FBI’s Ivins Theory is premised on the time he spent in the B3 at the time he was sending this email.
Their theory:
Friday, September 14 – Ivins works alone in lab B-3 from 8:54 p.m. to 12:22 a.m., 2 hours and 15 minutes.
Yet, in the email that the FBI culled from production, the FBI had documentary evidence of the emails that Ivins was writing — and the poem he was sending. The time of the email was 21:34 — or 9:34 PM.
We can’t undo the past — but Kenneth Dillon certainly can be awarded his attorneys fees.
DXer said
Now consider the next day, when Ivins again is tending to animals in the B3 (as scheduled to do under the protocol).
Rather than making a deadly powdered anthrax, he is writing Mara.
Saturday, September 15 – Ivins works alone in lab B-3 from 8:05 p.m. to 11:59 p.m., 2 hours and 15 minutes.
At 8:26 PM — from the B3 — he writes Mara:
“Thanks for the picture. It made me smile in an otherwise dismal week. I am incredibly sad and angry at what happened, now that it has sunk in. Sad for all of the victims, their families, their friends. And angry. Very angry. Angry at those who did this, who support them, who coddle them, and who excuse them. On top of that, this week seems to have been a very trying week for [the name Pat is redacted]. I don’t ask [the name Pat is redacted] what the problem is or problems are, but if you ever get a chance to email [her] to give your support, please do. I’m sure [she] would appreciate it, although I wish there were more I could do. Guess not.
Have a good weekend, I’m going to forward the picture.
– Bruce
Okay, FBI FOIA head Dave Hardy. This email was withheld. It turns out that now that it has been produced, we see that it was written at the precise time that the FBI in an affidavit in support of a search and in its Amerithrax Investigative Summary, the FBI theorizes that Ivins was making the deadly anthrax.
Um. There’s a problem. You should not spin a dead guy’s responsibility for murder like that. It’s just really rude and unfair. Immoral even. The FBI should have disclosed that it had documentary evidence that Ivins was writing emails from within the B3 when it speculated he was weaponizing anthracis.
Ooh. Look above. The FBI did not produce any emails from September 15 in response to Scott Shane’s 2001 FOIA. I guess it would have made it hard to spin its Ivins Theory. Because Scott would have noticed.
DXer said
On Wednesday, September 19, 2001, at 3:42 PM, Bruce Ivins wrote another very long email to Mara Linscott. He writes “I worked out today at the fitness center fro the first time in months. Felt good. Hope I can keep it up. I really need to put on some muscle and get some endurance…”
***
That’s about all. If you ever get a chance to come down to Frederick, let us know. It would be fun to go to lunch.”
DXer said
The FBI claimed that it had not confirmed that Ivins went to his addictions counseling section on Tuesday, September 18, the date of mailing.
Yet it had a very long copy of his September 21, 2001 10:30 AM email to Mara Linscott stating: “Things are still on edge here. I thought that it was just me that was really down after the events of last week, but when I went to my group session, it turns out that they ALL were severely affected even more than me.”
Note: The Bacteriology Division picnic that had been planned the week after 9/11 was cancelled.
DXer said
Mara wrote him a very long email on September 26, 2001, discussing the difficulty he was having with Pat. (He was soliciting her advice). Ah, to be an older man apparently sweet on, while just friends with, a younger woman.
DXer said
:On Wed, September 26, 2001 at 9:46 PM, in another very long email to Mara, he talks about having to clean the B4:
“Then we learned that B-4 is going to be deconned. Many of the people who worked there aren’t doing anything, or have done a miserable job, so B-3 people are going to have to go over and clean it. It is an absolutely filthy mess.” [inappropriate redaction of sentence] The fermentor room looks as if an earthquake hit it. I don’t look forward to it at all. Plus, a lot of animal experiments are upon us, as well as continuing reports, official requests for information, etc.”
Um, it really is extremely outrageous that the FBI withheld this email for 10 years. Working late — and allegedly having no reason to be in the lab — was the cornerstone of the FBI’s Ivins Theory.
AUSA Lieber should be called to testify in a hearing why such emails were withheld.
DXer said
On Tuesday, October 2, 2001, at 3:56 p.m., Bruce Ivins wrote a very long, news email to someone (I assume Mara):
***
“Most of the week was spent on cleaning B4, getting ready for the Decon coming up, hopefully this week. Some of us pitched in and worked hard, some people waited until the last minute, then walked in and said, “OK, what do I have to do?” For the past 7 days I’ve been more janitor than scientist but the work had to be done. It actually looks good now.” [sentence inappropriately redacted] I went out and bought a box of Spic and Span to help clean the floors. I also had to use some hydrochloric acid ________ to get some of the rust stains from a leaky ice machine. Yesterday during cleaning, [inappropriate redaction] hit a valve in the fermentor room and filled it up with steam. It was exciting while everyone was running around trying to figure out where the steam shutoff was located. They finally found it in the next room. I’m basically done with my custodial duties as of today, but there are still a lot of things going on.” [inappropriate redaction of things going on] Rabbits that were immunized 6 weeks ago with rPA vaccine with or without formaldehyde will be challenged sub with spores today. I get a bleed for my yellow fever titer at SIP this morning. I have a meeting to go to on “Alternative Vaccine Delivery” and inoculate some flasks of L&D medium with spores. Tonight [long, outrageous redaction given the importance of how Ivins spent his time]
Friday a few of us walked up to the Greek festival at the corner of 7th and Fairview. They were serving platters with various combinations of dishes. The food was quite tasty, the beer good, but the win (red but sweet) was dreadful. After I got it, ___________warned me that it would be awful, and it was. Oh, well, the rest was good. I had a vegetarian wrap on pita bread, some orzo (sp?), green beans and tomatoes, and a small Greek salad. I wish we had a Greek buffet here in Frederick.
Saturday I had a bunch of errands to run. There is a housewarming party coming up this Saturday ______________ about half-way between Frederick __________. I bought _______________ a gift certificate from Home Depot – I know it’s a drab gift; I also considered one from Bed, Bath and Beyond. I also bought food to make the chocolate cake with peanut butter icing, Saturday night, and ___ went to a party [grossly inappropriate redaction]
Sunday we had mass [grossly inappropriate redaction given the importance of what Ivins was doing, not doing.] We had a great meal there, with roast turkey, mashed potatoes, stuffing, gravy, green beans corn, bread and butter, broccoli, mint tea and and peanut butter pie and pumpkin pie for dessert. Then [inappropriate redaction] I went out and cut some wood. [inappropriate redaction] *** [discussion of chain saws]
Any way, it was enjoyable work. The three of us worked for about 3 hours with 2 saws and cut up quite a bit. Then we took it back to his house to be stacked.
[long passage inappropriately redacted]
“Speaking of Red Cross Disaster training, I’m more and more looking forward to it. I think one of the reasons will be that I’ll get to meet a lot of people, work with them for a long time, and hopefully make some friends that will last for several years. When I leave here I’ll miss a lot of people, just as I’ve missed a lot of people who have gone on to other things.”
“I watched the new ER on Thursday. it was wsort of weird, looking at the events of the day through the experiences of 4 different people. I don’t know if I’m going to get hooked on Survivor or not — depends on who’s on it. For sure I’ll get into the baseball playoffs, With the Redskins 0 for 3, I don’t think it’s going to be a very promising year for Pro football in the area.
The Yankees won more than 90 games this season, so I guess I owe you a dessert!
Time to get back to work. Have a great rest of the week.
— Bruce
DXer said
Wednesday, on October 3, 2001 at 7:57 AM, Bruce writes another long email to Mara. Much of the usual but notably he says “people in high places talking about BW terrorism as being likely.” “I’m hoping such an attack doesn’t happen, of course. On a more humorous note, if a BW “crop duster” ever does buzz through your city, you can just look up in the sky [redaction] … and give him the finger.”
There is the not uncommon sports reference. But I believe that’s how sports people are, eh?
DXer said
Okay. Now we are getting into withholding the day before the postmark that, in my opinion, warrants an investigation by the US Department of Justice Inspector General.
On Monday, October 8, 2001, at 3:24 p.m., Bruce writes:
“It’s a bit hard to type this email. – On Saturday I sliced a finger on a case while reaching for some fish at County Market – not very cool to bleed all over food. The woman who worked in the fish department gave me a paper towel for my finger. I thought it was going to be OK, but by Sunday morning it was infected and really hurting a lot. I had to clean it and wrap it a lot. I probably should have gone in for stitches, but I think it will be all right. It’s my left index finger. I’m doing all my typing with my right hand and my left thumb. The offending finger has been taped to the third finger to keep from moving it — the slice is on the knuckle. It still hurts a lot. Trying to play the piano at church on Sunday was a real chore.
On Saturday we went to a housewarming party. __________ A lot of people were there. ____________brought up “the question.” fortunately, so no problems there. ________didn’t look very happy there. ______________ There was some very good food and some very interesting conversation.
Guess I don’t have a lot to write today – sorry. My desk is a mess and needs to get cleaned up, as do my files. Oh yeah… [inappropriate redaction]
***
I’m going to clean up a bit, then be off to go to my group. Have a good week.”
– Bruce
DXer said
On Tuesday, October 16, 2001, Ivins writes:
“The finger that I cut at County Market over a week ago has become infected and it really hurts. I should probably go see someone and start taking antibiotics. Last Saturday _________ I played at a wedding at St. Johns. The night before we went to at the rehearsal dinner at Venutti’s italian Restaurant on Patrick Street. It was very good.
***
Today _________ I went to Covance with some rPA vaccine to immunize rabbits. We stopped for breakfast at the Silk City Diner. They gave us huge portions, and it was quite reasonable.
***
DXer said
I have uploaded some 1999 and 2000 emails here so you can compare it to the 102 pages from Sept-Oct 2001 that Dave Hardy has now finally agreed to release.
https://cryptome.wikileaks.org/ivins/ivins-email.htm
DXer said
Senator Leahy or Senator Grassley should have their staff call over to FBI’s Dave Hardy and ask that he provide the 241 pages he is withholding on the grounds that it is “duplicative.”
The FBI may have overlooked something — as when it “overlooked” producing the 102 pages of Sept-October 2001 emails that it is 10 years late in producing.
It was NYT’s star reporter Scott Shane who made the original request for Ivins’ emails in September 2008.
DXer said
In the filing today, David Hardy writes in his fourth sworn affidavit on this subject:
“WFO conducted an additional search of the file attachments
(commonly referred to in the FBI as IA attachments) for responsive emails. In WFO’ s
assessment, this was the location where records would most likely be located. Through this
search, WFO was able to locate binders of email records that, due to the massive size of the
investigative file ,2 were apparently overlooked in the FBI’s original search through this file. The
WFO personnel combed this material for emails responsive to Plaintiffs request and sent all
responsive emails located through their search to RIDS. Amidst this material were the emails
specifically pointed to by Plaintiff.”
DXer said
Upon receiving this material from WFO, RIDS processed a total of 343 pages of
additional email records responsive to Plaintiffs request. Of these pages, 102 were released in
part with portions being withheld pursuant to FOIA Exemptions (b)(6) and (b)(7)(C), and 241
pages were withheld in full because they were duplicative of other documents accounted for in
the FBI’ s production. Simultaneous to filing this declaration, the FBI provided processed copies
of these additional email records to Plaintiff.
DXer said
Today’s update: The FBI is giving us 102 emails.
DXer said
Trump: Mueller report ‘ridiculous’ but should be released
https://www.wbay.com/content/news/Trump-Mueller-report-ridiculous-but-should-be-released-507416151.html
Comment: If public interest weighs in favor of the public seeing the Mueller report, then the public can put on their grown-up pants and digest the memo by Richard Lambert to Robert Mueller that reveals that:
(1) the CIA detected the Ames strain in Afghanistan at an Al Qaeda anthrax lab.
(2) the FBI disregarded the evidence of Ivins’ alibi and selectively quoted the emails that they then proceeded to misplace.
(3) the DOJ and FBI representatives falsely represented to the American public that Ivins had no reason to be in the biolevel 3 those nights and weekends when the FBI and DOJ knew that he did. (He was tending to the animals in a small animal experiment. It was a one-person, two hour job on nights and weekends. And he was formally assigned to do it under the protocol.
We already know that Patricia Fellows wore a wire on Bruce at the coffee house. There is nothing in the Ivins section that should be withheld — except for a couple proper names can be redacted under b6 and b7.
DXer said
In his Affidavit filed today, FBI FOIA head writes:
“(5) Within the additional email records, the FBI asserted Exemptions (b)(6) and
(b)(7)(C) to withhold the names and/or identifying information of third parties merely
mentioned, the names and/or identifying information of FBI employees, as well as the names
and/or identifying information of non-FBI federal government personnel. For further
explanation as to the FBI’s reasoning for withholding this information, please see the First Hardy
Declaration at iii! 55-62. The FBI carefully reviewed this material and found no additional
segregable information. The release of any additional information would result in unwarranted
and clearly unwarranted invasions of individuals’ personal privacy. The FBI could not see how
disclosure of these individuals’ names/identifying information would benefit public
understanding enough to justify such violations of personal privacy.”
As I mentioned earlier today, in my opinion, it would be perfectly appropriate to redact the names of Patricia Fellows, Mara Linscott, Arthur Friedlander etc. under b6 and b7. At least it was commonly done by the wonderful USAMRIID FOIA Officer Rogers. The redaction is to be a simple one — first name, last name (and email) blacked out. But I will leave it to Plaintiff Kenneth DIllon and his legal counsel to address legal issues as they see fit.
DXer said
Today the FBI turns over — for an in chambers inspection by the federal district court judge — the Table of Contents from the memo written by the former lead Amerithrax Investigator Richard Lambert summarizing the status of the Amerithrax matter. Attorney Lambert has told the New York Times and Fox News that a staggering amount of evidence exculpatory of Bruce Ivins is being withheld by the FBI. Most of the memo recounts, in a factual manner, the evidence gathered. Given the numerous FOIA exemptions available to avoid unwarranted privacy intrusions, it would be possible, IMO, for the District Court to help people get on the same page.
Much of the factual narrative relating to the forensic tests, for example, should be disclosed — to include the fact that the CIA detected Ames in Afghanistan. If the lead CIA scientist could publish it in his GMU PhD thesis (as he did), I think that national security will survive the disclosure by the FBI under FOIA. (The same scientist also worked for the FBI).
Similarly, pretty much all of the Ivins 16 pages should be disclosed — allowing for the occasional b(6) or b(7) redaction of several proper names in the section.
As for the material about other POIs, most of the Hatfill material has been disclosed pursuant to the release of the affidavits in support of those searches.
As for Adnan El-Shukrijumah, who I have suggested was the mailer (he became AQ #3 in time), he passed away and the privacy exemption would not justify continued withholding. As for Abderraouf Jdey, who Ken Dillon thinks is the anthrax mailer, the FBI is not willing to concede that he is deceased.
As for Yazid Sufaat, who I have suggested was the processor, if you don’t know where he is — and whether he was recently released as was planned — then maybe ignorance of such things poses a danger to the country.
DXer said
If after Mueller’s report, Trump is left in office — given all that we know — then it would seem that Mueller sucks as an investigator. He should have insisted on an interview.
DXer said
Washington Post: How To Ensure We Have A More Open Accountable Government, March 14, 2019
https://www.washingtonpost.com/outlook/2019/03/13/how-ensure-we-have-more-open-accountable-government/?utm_term=.60c5627817c0
Congress must strengthen the Freedom of Information Act.
This week is Sunshine Week, an annual celebration of the right of historians, journalists and all Americans to access government information.
Perhaps the most important tool enabling Americans to ensure that their government is open and, therefore, accountable, is the Freedom of Information Act, a 52-year-old law that requires the federal government to release nonexempt information when it is requested
DXer said
Releasing the Mueller Report
Disclosure should include the FBI and FISA documents too.
https://www.wsj.com/articles/releasing-the-mueller-report-11552864477
By The Editorial Board
March 17, 2019 7:14 p.m. ET
The better course is for Mr. Barr to release the report and everything else that is relevant to the Russia probe. That includes investigative materials that accompany the report, and all documents related to the FBI counterintelligence investigation that began in 2016.
This means applications to the Foreign Intelligence Surveillance Court for warrants to eavesdrop on Trump advisers such as Carter Page; documents showing the extent to which the FBI verified (or didn’t) the Steele dossier and other evidence it presented to the FISA court; the FBI’s 302 summaries of interviews it conducted during its probe; and the FBI’s 1023 debriefs of informants and sources.
In September President Trump ordered Justice to declassify these documents, only to back down for reasons he has never explained. Once the Mueller probe is over, there is no excuse for not giving the public a full accounting of the Trump-Russia collusion story well before the 2020 campaign is at full speed.
Mr. Barr should release as much as possible, with the fewest redactions necessary to protect the innocent and intelligence sources and methods. After two years of selective leaking and speculation, it’s time to see the entire story.
Comment: The same applies (under FOIA) in Amerithrax to the FBI’s forensic factual findings, its factual finding relating to Al Qaeda’s anthrax program in Afghanistan (e.g., whether Ames was detected etc.) and its 16 page section on Ivins insofar as the section recounts factual material. For example, if his wife and two teenage kids say that he was home asleep each night that they were in town (and they were in town those nights), then that should be disclosed.
DXer said
If President Trump resigns, who would Mike Pence name as Vice President?
DXer said
How to Ensure We Have More Open Accountable Government, Washington Post, opinion
https://www.washingtonpost.com/outlook/2019/03/13/how-ensure-we-have-more-open-accountable-government/
DXer said
Live: House Oversight Committee hearing on Trump administration transparency
by Sinclair Broadcast GroupWednesday, March 13th 2019
https://siouxlandnews.com/news/nation-world/live-house-oversight-committee-hearing-on-transparency-of-trump-administration
DXer said
With it increasingly likely (strictly IMO) that President Trump will either resign or choose not to run for reelection, it seems that the GOP should cultivate a Plan B. There were many statesmen in the Senate, for example, who spoke out elegantly against a too broad approach to a President’s emergency powers.
President Trump simply is not suited to the office. His recent reference to the police and military etc. is just beyond the pale. He needs to go. It seems that once he leaves office, prosecutors may not be as motivated to see the various criminal prosecutions to fruition.
DXer said
2019-02-19
MINUTE ORDER granting 29 Motion for Extension of Time: It is hereby ORDERED that the motion is GRANTED. Defendant will have until March 20, 2019 to (1) produce the documents for in camera review and (2) file its notice explaining why Defendant did not release the three emails purportedly sent to Mara Linscott that Plaintiff identified in his February 2018 letter to government counsel. Plaintiff may then file a response to Defendant’s notice by April 10, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on February 19, 2019. (lcrc2) (Entered: 02/19/2019)
DXer said
GSA ordered to release FBI HQ details previously redacted in FOIA request
By Jory Heckman @jheckmanWFED
March 6, 2019 7:15 am
https://federalnewsnetwork.com/agency-oversight/2019/03/gsa-ordered-to-release-fbi-hq-details-previously-redacted-in-foia-request/
A district court judge has ordered the General Services Administration to release appraisal information about the FBI’s J. Edgar Hoover Building, as well as offers GSA received for the property.
GSA had previously redacted that information in response to a Freedom of Information Act request filed by Citizens for Responsibility and Ethics in Washington (CREW).
Tuesday’s ruling from D.C. District Court Judge Christopher Cooper followed a ruling he made last December, ordering GSA to do a “more comprehensive search” for FBI headquarters records.
***
However, Cooper found “this document was not ‘prepared to aid a decision-maker in arriving at his decision,’ but instead was intended ‘to support a past decision.’”
***
Last May, another district court judge ordered GSA to widen its search for documents related to a FOIA request on the Trump Hotel across the street from the current FBI headquarters building.
DXer said
I will just note the filing and I am not going to characterize it. (I have the utmost confidence in Plaintiff’s counsel; I just don’t need to follow the details).
PLAINTIFF’S OPPOSITION TO DEFENDANT’S CONSENT MOTION FOR
EXTENSION OF TIME TO SUBMIT DOCUMENTS FOR IN CAMERA REVIEW
Broadly, though, I don’t understand why the FBI could not simply send over the Table of Contents and the Ivins section — if necessary, both a classified version and an unclassified version.
I don’t know why Plaintiff’s counsel was moved to consent to a delay in the sending over a copy. Perhaps I am misunderstanding something. The more involved process of actually invoking different exemptions or not is not reached until the judge first considers whether it is deliberative or not.
On this issue of destruction of some of Ivins emails, I recommend the DOJ IG — with the approval of the new Attorney General and the blessing of Senator Grassley — contact the people on the group email from USAMRMC John Peterson. There is written record of what documents were culled and not produced. Anyone not calling on John Peterson to demand that he identify the same is part of the problem. He should identify the DOJ and FBI personnel on the group reviewing the FOIA production and culling the documents that would have been responsive to the request for Ivins emails by me and Scott Shane of the NYT and at least one other requestor.
John Peterson is a good guy. He culled the documents as instructed — and the DOJ and FBI had every right to pull them at the time pursuant to the exemption applicable to a pending law enforcement matter. But once the Amerithrax investigation was closed, that exemption no longer applied. And if the DOJ, FBI and Army wants to suggest that was some dog controlled by the other agency that ate the emails, then they should know that there are no secrets. Especially not at John’s Thanksgiving dinner table. Best come clean now while it can be done with a little grace
— pursuant to the rule of law.
Again, the were correctly pulled (at the DOJ/FBI’s discretion) during the pendency of the criminal investigation under the relevant exemption for a pending matter. Once the matter closed, though, they needed to be — still need to be — produced.
Given that Amerithrax was Robert Mueller’s biggest “whodunnit” — and, mind you, I’m his biggest fan — Mueller would want to know the emails that the FBI and the DOJ AUSA Lieber felt they could not produce are being treated in accordance with FOIA. The emails, I venture, may demolish the Ivins Theory by explaining why he was in the lab those nights and weekend. (iI was for a small animal experiment for which he was tasked with checking the animals).
The investigators, remember, were really mad at Robert Mueller for never thanking or congratulating them on the conclusion of the case.
I venture that Mueller’s upset at the investigators and prosecutors may be shown to relate to the balls that the DOJ and FBI are hiding.
Love him or hate him, we may be able to agree that Robert Mueller would want us to press for the facts and follow the evidence where it leads.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
https://www.amerithrax.wordpress.com
DXer said
GSA must do ‘more comprehensive search’ for FBI HQ records under FOIA lawsuit
By Jory Heckman @jheckmanWFED
December 19, 2018 6:16 pm
https://federalnewsnetwork.com/agency-oversight/2018/12/gsa-must-do-more-comprehensive-search-for-fbi-hq-records-under-foia-lawsuit/
The General Services Administration must conduct “a more comprehensive” search of records it has on the FBI headquarters in Washington, a District Court judge ruled Monday, after a watchdog group filed a Freedom of Information Act lawsuit.
More specifically, D.C. District Court Judge Christopher Cooper ordered GSA to broaden its search for documents beyond the agency’s Office of the Chief Information Officer and conduct a search of nonelectronic records.
***
In May, another District Court judge ordered GSA to widen its search for documents related to a FOIA request on the Trump Hotel across the street from the current FBI headquarters building.
DXer said
A Justice Department Coup?
https://www.realclearpolitics.com/articles/2018/12/16/a_justice_department_coup.html
COMMENTARY
.
By Carl M. Cannon –
As former FBI director, Mueller is the guy who personally botched the federal investigation into the 2001 anthrax attacks. Buckling to political pressure from Capitol Hill, Mueller focused on an innocent suspect. The Justice Department leaked his name, too, which added to the amount ($6.8 million) U.S. taxpayers shelled out when his name was finally cleared. Mueller’s comrade in that ill-fated caper was James Comey, the fired FBI director whose leaking and other sly machinations led to the appointment of a special counsel in the first place.
Comment: Was it $6.8 million or was it just $5.8 million? To err is human.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
This 2-page document was released by the FBI Friday in response to a Freedom of Information Act lawsuit brought by a POLITICO reporter and the James Madison Project, a pro-transparency group.
https://www.politico.com/f/?id=00000167-aff0-df35-adef-fff5758a0001
FBI releases part of Russia dossier summary used to brief Trump, Obama
By JOSH GERSTEIN and KYLE CHENEY
12/14/2018
https://www.politico.com/story/2018/12/14/russia-dossier-fbi-trump-obama-1066643
“It remains no longer logical nor plausible for the FBI to maintain that it cannot confirm nor deny the existence of documents” related to attempts to verify information in the dossier, Mehta wrote.
The FBI withheld the remainder of the two-page synopsis on a variety of grounds, including that the material remains classified either Secret or Top Secret. The law enforcement agency also indicated the information is exempt from release because it pertains to ongoing investigations or court proceedings, originated with a confidential source or describes confidential investigative techniques or procedures.
“The FBI said it couldn’t find records that would satisfy Politico and the James Madison Project’s other freedom of information requests in the lawsuit; they had also asked the government to turn over investigative files and final determinations regarding the FBI’s vetting of the dossier.”
DXer said
Work by requestor Patricia Schifferle demonstrates the value of federal and state public records statutes — and the importance of investigative reporting.
Trump nominee kept working with client after pledge to stop lobbying
By Lance Williams and Matt Smith / July 18, 2017
https://www.revealnews.org/blog/trump-nominee-kept-working-with-client-after-pledge-to-stop-lobbying/
Inside the secret lobbying of Trump’s nominee for a top Interior spot
By Lance Williams and Matt Smith / July 22, 2017
https://www.revealnews.org/blog/inside-the-secret-lobbying-of-trumps-nominee-for-a-top-interior-spot/
Deputy nominee still advising Calif. water district
Greenwire: Tuesday, July 18, 2017
https://www.eenews.net/stories/1060057527
Trump picked this ex-lobbyist for key Interior position
By Michael Doyle
May 18, 2017 01:30 PM
https://www.fresnobee.com/news/politics-government/article151347047.html
DXer said
Whether at the FBI or any agency, it commonly is the appointment of a political layer over career staff that leads to documents not being kept — or documents being wrongfully withheld as in the case of the September and October 2001 Bruce Ivins emails relied upon in closing Amerithrax.
To stand up for the rule of law and ensure government in the sunshine, Courts must ensure the rigorous and dispassionate enforcement of our country’s FOI statutes.
Former Koch adviser to oversee Interior Department’s FOIA requests/
https://thehill.com/policy/energy-environment/420632-former-koch-adviser-to-take-over-interiors-foia-requests
“Interior Secretary Ryan Zinke last month quietly issued a secretarial order giving Daniel Jorjani the authority to oversee all FOIA requests at the agency, according to a document obtained by the Center for Biological Diversity (CBD).”
***
Jorjani is a fierce advocate for Zinke. In a FOIA document released in March he told another staffer, “At the end of the day, our job is to protect the Secretary.”
DXer said
The emails from September and October 2001 were selectively quoted in the Affidavit in support of the search of Ivins’ residence. The FBI says it did not bother to keep the emails and so the claim by its former lead investigator Richard Lambert that the FBI is withholding a staggering amount of evidence exculpatory of Bruce Ivins cannot be tested.
Faced with the claims made — which Ivins to his death strenuously denied — Bruce Ivins committed suicide. He protested his innocence in his poignant note to his wife.
The new Attorney General should order the FBI to produce the September and October 2001 emails that it quoted in its Affidavit in support of a search and in the public Amerithrax Investigation Summary. Those emails, I submit, prove that the FBI knew that Ivins DID have a reason to be in the B3 lab on those nights and weekends.
The evidence, reflected in the withheld emails, is being wrongfully concealed by the FBI which claims to have destroyed the emails.
In re Application of New York Times Co.
Not overruled or negatively treated on appeal
United States District Court, D. ColumbiaNov 17, 2008
585 F. Supp. 2d 83 (D.D.C. 2008)
MEMORANDUM OPINION
ROYCE C. LAMBERTH, Chief Judge.
I. INTRODUCTION
Now before the Court is the New York Times Company and Los Angeles Times Communications LLC’s (collectively “the Times”) motion [1] for public access to sealed court records. The Times seek access to search warrants, warrant applications, supporting affidavits, court orders, and returns for all warrants requested by the government relating to searches of property owned by Dr. Steven J. Hatfill and/or Ms. Peck Chegne during the “Amerithrax investigation.” The Times have withdrawn their motion to unseal the warrant materials relating to Dr. Bruce Ivins because the Court unsealed those materials in a September 24, 2008 order. ( See.) Upon consideration of the motion [1], the government’s opposition [10], the Times’ reply [13], and the entire record herein, it is hereby ORDERED that the motion will be GRANTED. The warrant materials will be unsealed with limited portions that would “tend to reveal the identity of a [confidential] informer” redacted.
The Times concede that, as was the case with the Ivins warrant materials, it is proper to redact personal identifiers that would tend to reveal the identity of confidential informants. Roviaro v. United States, 353 U.S. 53, 60 (1957).
II. FACTUAL BACKGROUND
The court records sought by the Times relate to the investigation of the mailing of anthrax to members of Congress and the media in September and October 2001. At least 22 victims contracted anthrax as a result of the mailing (Gov’t Opp’n 2) and five individuals died as a result ( Id. at 2-3). Following the anthrax attacks, the government began a “seven-year endeavor that relied upon hundreds of thousands of agent-hours and spanned six continents” in an effort to bring the attacker(s) to justice. (Gov’t Opp’n 3.) One of the investigative techniques employed was search warrants of property, including the property of Dr. Hatfill. ( Id. at 3.)
Dr. Hatfill, a researcher at the United States Army Military Research Institute of Infectious Diseases (“USAMRIID”), had been named a “person of interest” by the government in 2002 (Times’ Mot. 2) and had also become the subject of significant media attention (Gov’t Opp’n 4). For example, the August 1, 2002 search warrant of Dr. Hatfill’s residence was covered as a live media event with helicopter footage of the search in progress. (Id.) In part because some information about the investigation of Dr. Hatfill trickled out from the government to the media (Gov’t Opp’n 4 at n. 4), Dr. Hatfill filed suit against the United States Department of Justice (“DOJ”), the FBI, and other individuals, claiming a violation of the Privacy Act. Ultimately, the Department of Justice definitively ruled out Dr. Hatfill as the anthrax mailer ( Id. at 5) and settled Dr. Hatfill’s lawsuit, for substantial monetary damages, with no admission of liability ( Id. 4 at n. 4).
Following the suicide of another researcher at USAMRIID, Dr. Bruce E. Ivins, on July 29, 2008, the government held a press conference in which it stated that Dr. Ivins was the “sole suspect in the case.” (Times’ Mot. at 3.) As the government has noted, “there was enormous media and public interest in the details of the anthrax investigation in general” after Ivins’ death. (Gov’t Opp’n at 6.) Despite the government’s press conference and statement that Ivins was the sole suspect in the attacks, the public continues to be fascinated by the details and length of the investigation. As a result, the Times ask the Court to unseal additional documents related to the investigation; specifically, the warrant materials related to Dr. Hatfill that were never disclosed. The government, however, objects to the release of information related to Dr. Hatfill, purportedly on the basis of his privacy interests. (Gov’t Opp’n 7.)
III. ANALYSIS
A. First Amendment Right of Access to Warrant Materials
The government concedes that there is a common law right of access to search warrant materials. (Gov’t Opp’n 9.) Whether there is also a First Amendment qualified right is an important question because different legal standards apply. The common law right of access test is a multi-factor balancing test, see infra. If the First Amendment qualified right of access applies, however, the government has the burden of demonstrating that a compelling interest is advanced by denying access to the documents and that the denial of access is narrowly tailored to serve that interest. Washington Post v. Robinson, 935 F.2d 282, 288 n. 7 (D.C. Cir. 1991).
The Court recognizes that reaching the constitutional question when the case can be resolved on common law grounds is unusual. However, this is how the D.C. Circuit has indicated a court should proceed when a party claims that there is both a common law right of access and a constitutional right of access under the First Amendment. In Washington Post, the D.C. Circuit was presented with the question of whether or not the public should have access to plea agreements. 935 F.2d at 288. The Washington Post argued that there was both a common law right of access and a qualified First Amendment right of access. The D.C. Circuit stated that despite the presence of overlapping common law and constitutional issues, it would reach the constitutional issue, and not resolve the case on common law grounds, “because of the different and heightened protections of access that the first amendment provides over common law rights.” Id. at 288, n. 7.
The right of access to criminal trials and proceedings is a right grounded in the First Amendment. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605 (1982). The difficulty, of course, is in determining whether or not the qualified right of access applies to a particular type of proceeding or document. The Supreme Court has held that in determining whether the public has a qualified right of access to criminal proceedings, courts must analyze two factors: (1) whether the place and process have historically been open to the press and general public, and (2) whether “public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”). The D.C. Circuit has held that this test applies to both court proceedings and court documents. See Washington Post v. Robinson, 935 F.2d 282, 287-288 (D.C. Cir. 1991) (using the two-part test to analyze and conclude that there is a qualified First Amendment right of access to plea agreements). Indeed, the parties in this case are in accord that the two-pronged test applies in this case. (Times’ Mot. 9; Gov’t Opp’n 10.)
The Supreme Court and circuit courts have thus far taken a piecemeal approach to recognizing First Amendment qualified rights of access. The courts have thus far recognized a First Amendment qualified right of access in, for example, Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) (criminal trials generally); Press-Enterprise I, 464 U.S. at 510 (voir dire proceedings); Press-Enterprise II, 478 U.S. 1 (1986) (preliminary hearing transcript); Waller v. Georgia, 467 U.S. 39, 46 (1984) (suppression hearings (under the First and Sixth Amendments)); Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991) (plea agreements); In re the Matter of the New York Times Co., 828 F.2d 110, 114 (2d Cir. 1987) (documents filed in conjunction with suppression hearings).
This test is often referred to as the “experience” and “logic” test.
This Circuit has not entertained the question presented in this case — whether or not there is a First Amendment qualified right of access to warrant materials after an investigation has concluded. The Eighth Circuit has held that there is a First Amendment qualified right of access to warrant materials while an investigation is still ongoing; a fortiori, that Circuit would conclude that there is a qualified right of access to warrant materials after an investigation has concluded. The Fourth and Ninth Circuits have held that there is no First Amendment qualified right of access to warrant materials while an investigation is still ongoing; however, those courts have not decided the question presented in this case. Times Mirror Company v. United States, 873 F.2d 1210, 1221 (9th Cir. 1989) (expressly reserving the question of whether there is a First Amendment right of access after the investigation has concluded or indictments have been returned); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 62 (4th Cir. 1989) (stating that the question presented was whether the First Amendment confers a qualified right of access to warrant materials in the interval between execution of the warrants and the indictment) (emphasis added).
In In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569 (8th Cir. 1988), a newspaper filed a motion to unseal search warrants, attached affidavits, and other materials related to the search of a McDonnell Douglas employee who was under investigation for alleged fraud and bribery in the defense industry. Id. at 570-71. A splintered Eighth Circuit panel concluded that a First Amendment qualified right of public access extends to search warrant materials. ( See opinion of McMillian, J., for the court, 570-576; Heaney, J., concurring in part and dissenting in part, 576-77). The third member of the panel concluded that the First Amendment issue need not be reached because there is a common law right to access judicial records and the determination of when that right applies is left to the sound discretion of the trial court. Id. at 576 (Bowman, J., concurring). The Eighth Circuit ultimately concluded that although a First Amendment qualified right of access attaches to warrant materials, they should not have been unsealed in that case because the right is not absolute and the government had overcome the right by demonstrating a compelling interest in keeping the records sealed — the fact that unsealing the records would compromise their investigation. Id. 574.
The government states that it has not “formally close[d] the case.” (Gov’t Opp’n at 7.) However, it has stated that it believes that Dr. Ivins, acting alone, committed the anthrax mailings. (Times’ Mot. Ex. C. (letter to Dr. Hatfill on August 8, 2008)). Dr. Ivins died on July 29, 2008. (Gov’t Opp’n 6.) Apparently, no other suspects are being investigated. As a result, the government does not argue that release of the materials would interfere with an ongoing investigation.
Applying the “experience” and “logic” test in the first instance to the question of post-investigation warrant materials, this Court concludes that there is a qualified First Amendment right of access.
1. Warrant Materials Have Traditionally Been Accessible
The post-investigation warrant materials sought in this case have historically been available to the public, and therefore meet the first prong of the Supreme Court’s First Amendment qualified right of access test. First, routine historical practice countenances in favor of a qualified First Amendment right of access to warrant materials; warrant applications and receipts are routinely filed with the clerk of court without seal. Fed.R.Crim.P. 41(i) (warrant materials should be delivered to the clerk in the district where the property was seized); Gunn, 855 F.2d at 573. See also Times Mirror Co., 873 F.2d at 1214 (“[M]ost search warrant materials routinely become public. . . .”); Baltimore Sun Co., 886 F.2d at 64 (“Frequently — probably most frequently — the warrant papers including supporting affidavits are open for inspection by the press and public in the clerk’s office after the warrant has been executed.”); 3A Charles Alan Wright, Federal Practice and Procedure, § 672 (2008) (stating that warrant materials are filed with the clerk of court and that sealing the materials is an “extraordinary action”).
The Court has been advised by the clerk’s office in the United States District Court for the District of Columbia that the routine practice is to make warrant materials publicly available after a search has been executed and a return is available. Of course, in a particular case a party may file a motion to seal the warrant materials even after a search is executed.
Of course, the courts in Times Mirror and Baltimore Sun ultimately concluded that there was no First Amendment qualified right of access to warrant materials during an ongoing investigation. The court in Baltimore Sun held that the first prong of the First Amendment test did not weigh in favor of releasing warrant materials during an ongoing investigation because warrant proceedings are necessarily ex parte since the subject of a search cannot be tipped off as to the application of a warrant. 886 F.2d at 64. Of course, this rationale is inapplicable in this case because the investigation has already concluded. The Court in Times Mirror ruled on the history prong with a caveat, stating that history does not imply accessibility to warrant materials “at least while a pre-indictment investigation is still ongoing . . .” 873 F.2d at 1214.
Second, there is an historic common law right of access to judicial records and documents that has been recognized in United States courts for well over a century. See Nixon v. Warner Communications, 435 U.S. 589, 597, n. 7, n. 8 (1978) (citing case law and stating that the common law right of access to judicial records and documents has been recognized in courts in the District of Columbia since at least 1894). Indeed, the government acknowledges that there is a common law right of access to warrant materials ( See Gov’t Opp’n 9 (“urg[ing] the Court to adopt . . . a common law right of access, but no constitutional right of access, to sealed search warrant materials”)). The fact that there is a common law tradition of right of access is an appropriate consideration to take into account when examining the scope of the First Amendment. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 92 (2d Cir. 2004) (stating that courts generally invoke the common law right of access to judicial documents in support of a finding of a history of openness under the “experience” prong of the First Amendment test). Therefore, the fact that there is a common law tradition of access to warrant materials — which is acknowledged by the government in this case — weighs strongly in favor of a First Amendment qualified right of access to warrant materials.
2. Access to Post-investigation Warrant Materials Plays a Significant Positive Role in the Functioning of the Process in Question
The second factor in the Supreme Court’s First Amendment right of access test — whether public access plays a significant positive role in the functioning of the process — also weighs strongly in favor of a qualified First Amendment right. The Court starts with the general proposition that “the First Amendment guarantees the press and the public a general right of access to court proceedings and court documents unless there are compelling reasons demonstrating why it cannot be observed.” Washington Post Company v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991). The rationale for this proposition is that openness of judicial processes and documents “gives assurance that established procedures are being followed and that deviations will become known” and corrected. Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. 819. In addition to ensuring actual fairness, the openness of judicial proceedings helps ensure the appearance of fairness. Id. The fact that proceedings are open demonstrates to the public that judicial processes are fair and that there is nothing to hide. As noted by the Supreme Court, “[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980).
Specifically, with respect to warrants, openness plays a significant positive role in the functioning of the criminal justice system, at least at the post-investigation stage. As noted by the Times, warrant materials are often used to adjudicate important constitutional rights such as the Fourth Amendment protection against unreasonable searches and seizures. Public access to warrant materials serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp for the police. See United States v. Leon, 468 U.S. 897, 917 n. 18 (1984) (stating that closer supervision is a way to control magistrates merely serving as a “rubber stamp for police” when approving search warrants); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th Cir. 1989) (stating that warrant materials are “important to the public’s understanding of the function and operation of the judicial process and the criminal justice system and may operate as a curb on prosecutorial or judicial misconduct”).
3. A Qualified First Amendment Right of Access Exists and the Government has No Compelling Interest in Keeping the Materials Secret
Since both prongs of the Supreme Court’s “experience” and “logic” test weigh in favor of a qualified First Amendment right of access to warrant materials after an investigation has been completed, the Court concludes that the First Amendment standard applies in this case. Of course, the First Amendment right of access is “qualified” and is not absolute. In other words, although the government has the burden of showing that it has a compelling interest in keeping the materials secret, if it can do so the warrant materials will remain under seal. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). The government does not present a compelling interest in keeping the materials secret in this case.
This Court’s holding is a narrow one. This is a case of first impression, and as such, the Court only decides the narrow issue in front of it; whether there is a qualified First Amendment right of access to warrant materials after an investigation has concluded. This Court does not at this time recognize a First Amendment right as robust as the one the Eighth Circuit recognized in Gunn, which included a First Amendment right of access to warrant materials even during ongoing investigations. This Court’s holding is also not contrary to the Fourth and Ninth Circuit decisions in Times Mirror and Baltimore Sun, cases which limited their holdings to the situation in which access was sought during ongoing investigations.
The government asserts that Dr. Hatfill’s “right to get on with his life” outweighs the public’s right to access the warrant materials. (Gov’t Opp’n 14.) While the government is correct that Dr. Hatfill’s privacy rights must be considered, its assertion that a generalized privacy right to “get on with [one’s] life” outweighs the public’s right to access in this case is unpersuasive. First, the fact that Dr. Hatfill was under investigation and that he has been cleared in the anthrax attacks is already known by the public; disclosure of the warrant materials in this case does not present the risk that the identity of an innocent third person will be newly disclosed to the media. Moreover, Dr. Hatfill himself filed a lawsuit against the Department of Justice and placed some details regarding the searches in the public eye.
Hatfill filed a Complaint in Hatfill v. Mukasey, No. 1:03-cv-01793 (RBW) (D.D.C.) that stated: the government conducted a consensual search of Dr. Hatfill’s apartment on June 25, 2002; that the government searched Dr. Hatfill’s storage shed in Florida pursuant to a search warrant; that the government searched Dr. Hatfill’s apartment on August 1, 2002; that the searches of Dr. Hatfill’s apartment were either witnessed by the media or broadcast live on national television, and that the home of Ms. Chegne was also searched on August 1, 2002. (Times Mot. Ex. D, Bead Decl. ¶ 8; Times Mot. Ex. 5 (excerpts from the amended complaint in Hatfill v. Mukasey)). Hatfill’s lawsuit and the subsequent settlement has already been documented by the media. See, e.g., David Willman, Anthrax Subject Receives Payout, Los Angeles Times, June 28, 2008 at A1.
The government also asserts that the identity of informants that provided information to the government during the investigation may be disclosed to the public if the warrant materials are made public. The government is correct that protecting the identity of informants is a compelling interest, as was discussed by the Supreme Court in Roviaro v. United States:
What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of the law. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
353 U.S. 53, 59 (1957).
However, the goal of protecting the confidentiality of informants can be accomplished by means less restrictive than prohibiting access to the warrant materials altogether. Under the First Amendment qualified right of access test, the government must demonstrate that total restriction of the right of access is narrowly tailored to accomplish its compelling interests. In this case, the Court agrees that the government has demonstrated a compelling interest — promoting effective law enforcement — in keeping the identity of informants secret. However, that interest can be accomplished by simply redacting the identity and personal identifiers of the informants, which the Court will direct the government to do in this case.
Finally, this case presents the question of whether or not the warrant materials regarding the searches of Peck Chegne’s apartment and car should be released. Ms. Chegne was the girlfriend of Dr. Hatfill at the time of the searches. On the one hand, Ms. Chegne is an innocent party and has not put any of the details regarding the searches in the public eye. On the other hand, however, the media is already aware of her identity and the fact that her apartment was searched — Dr. Hatfill disclosed these details in his complaint against the government. Moreover, as previously stated, the Court starts with the presumption that judicial records should be open. Washington Post Company, 935 F.2d at 297. The government has not asserted the privacy rights of Ms. Chegne as a basis for withholding the materials, and therefore the Court will not rely on an interest that has not even been raised. Finally, the Court has conducted its own independent review of the warrant materials relating to Ms. Chegne and has found that there are no highly intimate or personal details of the kind that would present a compelling interest in not releasing the materials. See infra, note 14. As a result, the government will also be instructed to release the warrant materials related to Ms. Chegne.
B. Common Law Right of Access to Warrant Materials
The Court believes that the First Amendment right of access standard applies and that the Times prevail under that standard; therefore, whether or not there is a common law right of access to the warrant materials is ultimately not dispositive. However, because (1) the existence of a common law right of access to warrant materials was relied upon as historical evidence in finding a First Amendment right of access; and (2) the Court believes that in the event that there is no First Amendment qualified right of access to warrant materials the Times would still prevail under the common law legal standard, the Court will briefly analyze this case under the common law right of access standard.
First, the Court notes that the existence of a common law right of access to warrant materials is not in dispute. See supra at n. 3. In order to analyze whether or not a common law right of access should be granted to particular documents, the government has proposed using the test articulated in United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1981). The Hubbard test states that in deciding whether or to make documents public a court should consider: (1) the need for public access to the documents at issue; (2) the public use of the documents; (3) the fact of objection and the identity of those objecting to disclosure; (4) the strength of the generalized property and privacy interests asserted; (5) the possibility of prejudice; and (6) the purposes for which the documents were introduced. When making a decision whether or not the public has the right to inspect judicial documents under the common law test, the trial court has substantial discretion to make a decision in light of the relevant facts and circumstances of the particular case. Id. at 316-17.
Hubbard is not entirely analogous to this case. In Hubbard, the D.C. Circuit considered whether an owner of property seized during a search could intervene in an ancillary proceeding to assert its privacy interests and prevent disclosure of documents seized. 650 F.2d at 310-11. Hubbard was decided before many of the decisions extending the First Amendment qualified right of access, see supra n. 4, and examined the right of access to documents seized during a search, not the right of access to warrant returns and affidavits. Id. at 316. Nevertheless, because the Hubbard test provides a useful framework for analyzing the common law right of access to judicial records and the parties in this case refer to it, the Court will use it in this case.
The sixth factor does not apply to the present case because that factor was specific to the facts in Hubbard in which a private party sought to prevent disclosure of documents recovered during a search.
1. The Need for Public Access to the Documents at Issue
In this case, the public has a strong need for access to the documents at issue. As conceded by the government, the anthrax investigation was one of the most complex, time-consuming, and expensive investigations in recent history. As a result, the American citizens have a legitimate interest in observing and understanding how and why the investigation progressed in the way that it did.
2. The Public use of the Documents
In Hubbard, the D.C. Circuit used this prong to analyze the extent to which the information sought was already in the public forum. 650 F.2d at 318. The government concedes that much of the critical information is already in the public forum and that this factor weighs in favor of unsealing the warrant materials. (Gov’t Opp’n 19.)
3. The Fact of Objection and the Identity of Those Objecting to Disclosure
In this case, the government, without providing evidence, states that Dr. Hatfill objects to public disclosure of the search warrant materials. This fact weighs in favor of not disclosing this materials.
4. Strength of Property and Privacy Interests Asserted
Certainly Dr. Hatfill’s privacy interests are implicated to a certain extent by the warrant materials. However, the government does not provide any specifics as to why Dr. Hatfill objects to disclosure of the materials, other than to state that he wants “to get on with his life.” The government also does not cite any decisions that have recognized the right to “get on with one’s life” as a legally cognizable privacy interest. Moreover, the fact that Dr. Hatfill objects to the disclosure of the warrant materials is mitigated because Dr. Hatfill introduced or re-introduced some of the details regarding the search warrants into the public forum himself by suing the United States in federal court.
As noted by the Times, courts that have identified legally cognizable privacy interests have done so with more specificity than a blanket statement that one has a right to get on with his life. See, e.g., Hubbard, 650 F.2d 293 (stating that intimate details of individual lives, sexual or otherwise is an assertable privacy interest); In re Application of Newsday, Inc., 895 F.2d 74, 79 (2d Cir. 1990) (stating that the common law right of access may be qualified by the privacy rights of persons whose “intimate relations may thereby be disclosed”). The government’s assertion of a general privacy right on behalf of Dr. Hatfill is not a sufficient privacy interest to overcome the right of access. Cf. In re McClatchy Newspapers, Inc., 288 F.3d 369, 374 (9th Cir. 2002) (stating in a common law right of access case that “injury to official reputation is an insufficient reason for repressing speech that would otherwise be free”).
5. The Possibility of Prejudice
The government concedes that there is no possibility of prejudice in releasing the documents. (See Gov’t Opp’n 16 n. 12 (stating that the fifth factor is “not implicated” in this case)). In other words, the investigation is complete and therefore is not in danger of being thwarted if the Court releases the documents. This factor too favors disclosure.
In short, even if the Court were to analyze this case under the common law standard, using its substantial discretion, the common law factors favor disclosure. The public has made a strong showing of need for the materials, much of the information is already in the public forum, and there is no possibility of prejudice to an investigation or a future defendant. These considerations, weighed against the government’s generalized assertion that Dr. Hatfill has a privacy right to “get on with his life,” mean that the Times would prevail even under a common law standard.
IV. CONCLUSION
For the reasons set forth in this opinion, the Court finds that the public has a qualified First Amendment right to access warrant materials after an investigation has concluded. Although the government has a compelling interest in keeping the identity of informants secret, it has failed to show that it is necessary to seal all of the warrant materials to accomplish that objective. As a result, the Times’ motion will be GRANTED. The United States will be required to release the warrant materials, redacting limited portions that would tend to reveal the identity of a confidential informer. The United States shall promptly provide the Court with the proposed redactions of their records.
A separate order shall issue this date.
SO ORDERED.
DXer said
U.S. v. Stevens
Not overruled or negatively treated on appeal
Supreme Court of FloridaOct 30, 2008
994 So. 2d 1062 (Fla. 2008)
ANSTEAD, J.
The United States Court of Appeals for the Eleventh Circuit has certified the following question of Florida law that is determinative of a cause pending in that court and for which there appears to be no controlling precedent:
Under Florida law, does a laboratory that manufactures, grows, tests or handles ultra-hazardous materials owe a duty of reasonable care to members of the general public to avoid an unauthorized interception and dissemination of the materials, and, if not, is a duty created where a reasonable response is not made where there is a history of such dangerous materials going missing or being stolen?
Stevens v. Battelle Mem’l Inst, 488 F.3d 896, 904 (11th Cir. 2007). We have jurisdiction. See art. V, § 3(b)( 6), Fla. Const. For the reasons that follow, we answer the first part of the certified question in the affirmative, and therefore, we need not address the second part.
Comment:
Imagine the liability.
DXer said
But what would the Army’s motive be, you ask, in joining with the FBI’s culling and permanent withholding of certain emails?
Let’s read further on the Court of Appeals’ decision:
“Given the nature of the parties’ assertions in the district court, it is not surprising that the defendants seek to focus on what they perceive to be the unforeseeable criminal agency of a third party in causing harm to the decedent, while the claimant seeks to focus on the magnitude of the risk of harm created by the defendants’ decision to deal with such a dangerous substance. Nevertheless, in determining whether certain conduct creates a “foreseeable zone of risk,” it is appropriate to acknowledge that we have looked for guidance in sections 302, 302A, and 302B of the Restatement (Second) of Torts (1965), because these sections largely mirror our “foreseeable zone of risk” analysis in McCain. These sections provide:
§ 302. Risk of Direct or Indirect Harm.
A negligent act or omission may be one which involves an unreasonable risk of harm to another through either
(a) the continuous operation of a force started or continued by the act or omission, or
(b) the foreseeable action of the other, a third person, an animal, or a force of nature. § 302A. Risk of Negligence or Recklessness of Others.
An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person. § 302B. Risk of Intentional or Criminal Conduct.
An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.
Restatement (Second) of Torts §§ 302-302B (1965). Comment “e” to section 302B further provides that there are two situations where an actor “is required to anticipate and guard against the intentional, or even criminal, misconduct of others”: (1) “where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account,” or (2) where the actor is under a special responsibility to the victim. Restatement (Second) of Torts § 302B cmt. e (1965).
In the instant case, we conclude that the district court appropriately turned to sections 302, 302A, and 302B of the Restatement for guidance in determining whether a duty exists under Florida law. While we could “reinvent the wheel” and set out our own analysis as to the application of the principles of these sections to the circumstances alleged here, we acknowledge that we could not improve upon the district court’s analysis. Because we agree with Judge Hurley’s analysis, we adopt the portion of his order regarding the application of these sections to the certified question:
We do not address the district court’s application of the special relationship requirement embodied in section 315 of the Restatement because McCain’s “foreseeable zone of risk” test is dispositive.
The duties described [in sections 302, 302A, and 302B of the Restatement] attach to acts of commission, which historically generate a broader umbrella of tort liability than acts of omission, which are the subject of §§ 315 and 314A. This distinction is expressed in Comment a, Section 302 of the Restatement of Torts (Second):
This section is concerned only with the negligent character of the actor’s conduct, and not with his [or her] duty to avoid the unreasonable risk. In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable [person] to protect them against an unreasonable risk of harm to them arising out of the act. The duties of one who merely omits to act are more restricted, and in general are confined to situation[s] where there is a special relation between the actor and the other which gives rise to the duty.
In this case, plaintiff alleges that the government generated, tested and handled deadly laboratory organisms, but failed to employ adequate security procedures during the commission of these acts. Thus, plaintiff contends, the government exposed the public to an unreasonable risk of contamination as a result of unauthorized interception and disbursement of lethal materials. In other words, the complaint effectively alleges the commission of affirmative acts (ownership and handling of biohazards), which, under Section 302b, give rise to a corresponding duty to protect all others exposed to any “unreasonable risk of harm” arising out of that activity.
Considered in conjunction with the further allegations of the complaint regarding the facility’s history of missing samples of anthrax bacterium, hanta virus and ebola virus dating back to 1992, which the court must accept as true at this juncture, the court concludes that plaintiffs complaint states a potential claim under Section 302B of the Restatement (Second) of Torts (1965) against the government and will accordingly uphold the sufficiency of the complaint on this basis.
***
Similarly, taking the facts alleged in the complaint as true and reading them in the light most favorable to plaintiff here, the plaintiffs complaint may fairly be read to allege: (1) defendant knew or should have known of the risk of bioterrorism associated with lethal laboratory organisms under its ownership and control, particularly in light of its history of missing laboratory specimens dating back to 1992; (2) a reasonable medical research and testing laboratory operator in possession of those facts would understand that the public would be exposed to an unreasonable risk of harm unless it implemented adequate security procedures to guard against the risk of unauthorized interception of toxic materials from its laboratory; (3) the death of Mr. Stevens was a foreseeable consequence of the defendant’s failure to use reasonable care in adopting and implementing security measures reasonably necessary to protect against the possibility of unauthorized interception and release of the biohazards under its control.
In the court’s view, these allegations are sufficient to establish a duty of care under Section 302B of the Restatement (Second) of Torts (1965). See e.g. Suchomajcz v. Hummel Chemical Co., Newark, New Jersey, 524 F.2d 19 (3d Cir. 1975); Touchette v. Ganal, [ 82 Hawaii 293,] 922 P.2d 347 (Haw. 1996).
Stevens v. United States, No. 03-81110, at 9-12 (S.D.Fla. Apr. 15, 2005) (footnotes omitted).
***
CONCLUSION
We hold, therefore, consistent with the analysis set out above, that a laboratory that manufactures, grows, tests or handles ultrahazardous materials does owe a duty of reasonable care to members of the general public to avoid an unauthorized interception and dissemination of the materials. We answer the certified question in the affirmative and return this case to the Eleventh Circuit.
It is so ordered.
DXer said
All the FBI’s Documents
Trump rages about Comey but he still won’t release FBI records.
By The Editorial Board
Dec. 9, 2018 6:34 p.m. ET
https://www.wsj.com/articles/all-the-fbis-documents-1544398491
DXer said
This “scathing opinion” issued yesterday by U.S. District Court Judge Royce Lamberth said the Plaintiff should be allowed to demand documents and additional testimony about the practice relating to emails that served to thwart FOIA. The judge noted the FBI’s atttempt to wrap up the FOIA suit was unacceptable given what the FBI knew about the emails. The agency’s “attempts to pass-off its deficient search as legally adequate” “was negligence born out of incompetence.” “At worst, career employees in the State and Justice Departments colluded to scuttle public policy.. skirt FOIA and hoodwink this court.”
Doesn’t this new decision control the result in the suit brought by Kenneth DIllon for the emails that the FBI says it can’t find — even though they were the key — only — documents on which it closed the largest FBI “whodunnit” in its history? Heck, destroying them very nearly constitutes the spoliation of evidence.
The background is that a large committee of DOJ officials vetted the Army’s production of emails to me. The FOIA request had first been made by the famous journalist Scott Shane of the New York Times in September 2001. Over the months and years, I would complain to the FOIA officer about the long delay in producing batches. USAMRMC FOIA official John Peterson (very reasonably) told me that a large committee of DOJ and FBI employees needed to vet the production — given that at the time the case had not been officially closed. In time, he (very reasonably) put a two-week deadline for them. If they didn’t object to particular emails being produced, he would send them on to me and they would be uploaded to the USAMRMC FOIA reading room (which was taken down when this lawsuit was brought).
The DOJ and FBI would cull emails they did not want me to see — to include the September 2001 and October 2001 on which it based its Amerithrax Investigation Summary. (Those emails, I understand, in portions not quoted, show that Bruce Ivins did in fact have reason to be in the B3 lab those nights and weekends; he was assigned to check the animals — it was a one person job that took about 2 hours). The FBI’s Ivins Theory rested on the premise he had no reason to be in the lab. The FBI reasoned that it was suspicious and somehow illegal for him to be working alone, when nothing could be further from the truth.
The former lead Amerithrax investigator Richard Lambert says that the FBI is withholding a staggering amount of evidence that is exculpatory of the late Bruce Ivins.
Pray tell, when are the people who believe in the importance of the rule of law going to stand up and be heard? The fate of the Republic is at stake.
After Amerithrax was closed, the culled emails should have been restored.
FOIA Officer Sandra Rogers and I tried to get them restored — along with key notebooks that had been taken and still have not been returned. The FBI claimed not to be able to find the records that they had taken.
Ultimately, Ken Dillon brought suit after numerous requests and attempts to mediate, that I helped with, failed.
The US District Court judge has good reason to firmly rebuke the FBI’s failure to comply with FOIA. Transparency and compliance with FOIA is very important to the rule of law.
Let’s roll.
https://www.politico.com/story/2018/12/06/hillary-clinton-emails-lawsuit-judicial-watch-1048196
Judge orders more fact-finding in Clinton email case
By JOSH GERSTEIN
12/06/2018 10:28 PM EST
The email controversy that dogged Hillary Clinton through much of the 2016 presidential race could well be kicking around through the 2020 contest after a federal judge ordered additional fact-finding into whether Clinton’s use of the private email system was a deliberate effort to thwart the Freedom of Information Act.
In a scathing opinion issued Thursday, U.S. District Court Judge Royce Lamberth said that despite FBI, inspector general and congressional investigations into Clinton’s use of a private account for all her email traffic during her four years as secretary of state, the conservative group Judicial Watch should be permitted to demand documents and additional testimony about the practice.
Lamberth, who has clashed with Clinton and her aides in cases dating back to her husband’s administration, was unsparing in his assessment of the former secretary’s actions. He blasted Clinton’s email practices as “one of the gravest modern offenses to government transparency.”
Lamberth also again expressed concerns that lawyers at the Justice Department and the State Department misled the court when they tried at the end of 2014 to wrap up Judicial Watch’s FOIA suit about Benghazi talking points even though some officials were aware months earlier that Clinton had tens of thousands of emails on a private system and had agreed to turn many of them over to State at its request.
“State played this card close to its chest,” the judge complained. “At best, State’s attempts to pass-off its deficient search as legally adequate during settlement negotiations was negligence born out of incompetence. At worst, career employees in the State and Justice Departments colluded to scuttle public scrutiny of Clinton, skirt FOIA and hoodwink this court.”
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Lamberth, an appointee of President Ronald Reagan, also faulted the Trump administration for failing to clear up the mess and instead pressing on with a nothing-to-see-here approach.
“The current Justice Department made things worse,” the judge said, referring to an October hearing in which he initially flatly accused Justice lawyers of lying, then retreated a bit.
In the 11-page order issued on Thursday, Lamberth stopped short of alleging outright dishonesty, but he came close.
“Counsel’s responses strain credulity,” he wrote. “To preserve the Department’s integrity, and to reassure the American people their government remains committed to transparency and the rule of law, this suspicion cannot be allowed to fester.”
The judge suggested that some State Department and Justice Department employees friendly to Clinton might have been trying to keep the emails from the public. He noted that messages eventually released by the State Department showed Clinton telling her daughter, Chelsea, that the assault in Benghazi, Libya, was a terrorist attack, even though the Obama administration long maintained that it was not.
Justice Department lawyers have argued that they had no legal duty to search records not in the State Department’s possession at the time a FOIA request was made, and that lawyers actually working on the suit before Lamberth didn’t have as much information about what Clinton turned over as did more senior officials.
However, Lamberth disputed State’s narrow view of its legal duties.
“Legally, it is wrong,” he wrote, noting precedents (one of them his own) saying that records wrongfully removed from an agency may have to be searched wherever they are.
Justice Department attorneys argued that further discovery into the Clinton private server would be pointless in light of the extensive FBI investigation and information that Judicial Watch gathered in court-ordered discovery in another suit before another judge. That resulted in written questions being submitted to Clinton and in some of her top aides being forced to sit for depositions in another Judicial Watch suit before the 2016 election.
But Lamberth disagreed. He said there was still little clarity about private email accounts used by several of Clinton’s senior aides. He also said the public record is bare about why State tried to settle the talking-points FOIA case in late 2014 and early 2015 despite the fact that at least some officials knew that a huge trove of Clinton’s emails had not been searched.
The judge did not authorize any specific depositions or subpoenas on Thursday. Instead, he ordered both sides to confer on a discovery plan and report back to him within 10 days.
A Justice Department spokeswoman declined immediate comment on the ruling. An attorney for Clinton did not immediately respond to a request for comment.
The president of Judicial Watch, Tom Fitton, said he hoped that Lamberth’s ruling would make President Donald Trump’s appointees at the Justice Department change course in the litigation and take a more cooperative approach.
“The historic court ruling raises concerns about the Hillary Clinton email scandal and government corruption that millions of Americans share,” Fitton said in a statement. “Judicial Watch looks forward to conducting careful discovery into the Clinton email issue and we hope the Justice Department and State Department recognize Judge Lamberth’s criticism and help, rather than obstruct, this court-ordered discovery.”
DXer said
Former Bush Sr. Attorney General William Barr Is Trump’s AG Pick: Report
http://www.fortune.com/2018/12/06/trump-william-barr-attorney-general/
Comment:
William Barr, a former CIA analyst, should direct the DOJ to provide the September and October 2001 emails that the DOJ/FBI quoted and relied upon in closing Amerithrax. See the public Amerithrax Investigation Summary. The DOJ’s claim that it destroyed — did not preserve the emails — is unacceptable.
William Barr seems a very credible nominee who stands for the rule of law. This is an issue that cries out for application of the rule of law.
DXer said
Fearless Fosdick in hot pursuit of Trump
By Dave Neese For The Trentonian davidneese@verizon.net
Dec 2, 2018
https://www.trentonian.com/opinion/fearless-fosdick-in-hot-pursuit-of-trump-dave-neese-provocations/article_4bb0de06-f675-11e8-b3e6-d7fc6edbef73.html
Let us not forget that Mueller was the vaunted G-Man who bungled one of the biggest cases in FBI history: the probe of the post 9/11 anthrax mail attacks. The attacks killed five and infected 17, including victims nearby.
Mueller, then FBI director, went at the case chin thrust outward pugnaciously, just as he has in his quest to tie Trump to Russian shenanigans in the Boris Badenov/Natasha Fatale case. But in the anthrax matter, Mueller proved to be more of a Fearless Fosdick than a Dick Tracy.
In that probe, he was teamed up with another familiar name, James Comey, then a top-level Justice Dept. bureaucrat. Based on little more than vague suspicion and the dubious sniffing of a couple of dogs, Mueller locked on a military scientist named Steven Hatfill as his one and only suspect and refused to consider any alternatives.
Leak-blessed media outlets, meanwhile, led a torches-and-pitchforks mob, hollering for Hatfill to be treated to a necktie party.
In an Inspector Clouseau comedic interlude, Mueller ordered a pond near Hatfill’s residence drained bone dry, at a cost of $250,000. Nothing. After months of taunting and harassing the hapless Hatfill with media leaks, still nothing.
But nevertheless Comey pronounced it “absolutely certain” his buddy Mueller had the real culprit by the scruff of the neck.
Mueller’s time-wasting, tax-dollar-squandering, fumbling investigation went on and on. And on and on and on.
Mueller finally, belatedly relented, conceding he’d been in hot pursuit of the wrong guy all along. The FBI settled a Hatfill lawsuit by paying him $5.8 million of damages out of the public till. Mueller, however, remained un-humbled. “I do not apologize for any aspect of the investigation,” he declared, his trademark square jaw thrust forward in defiance.
Ultimately, another, entirely unrelated military scientist, Bruce E. Ivins, was fastened upon on as the new anthrax-attack suspect. Receiving word he was the next in line to be hounded mercilessly by an all-powerful Justice Dept., Ivins committed suicide in 2008. Hey, close enough for government work! The Feds declared the deceased suspect, posthumously, the real, official anthrax culprit.
Cue TV’s old “Law and Order” clang-clang music theme. Case closed.
Comment:
Although I think Dr. Ayman Zawahiri and the late Adnan El-Shukrijumah were responsible for the Fall 2001 anthrax mailings, the same uncertain evidence that leads me to the conclusion that the FBI has not proved its case against Ivins, leaves me not knowing what Robert Mueller might have done differently. For example, Adnan El-Shukrijumah was always in the wind throughout 2001 and 2002.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
I do, however, think, that the Army’s and FBI’s failure to produce the September 2001 and October 2001 emails selectively quoted in the Amerithrax Investigation Summary — and failure to claim an applicable exemption — violates the rule of law.
And I do think that Robert Mueller stands for the rule of law.
If presented with the legal issue, I think that (unlike the FBI FOIA’s Dave Hardy) he would direct that they be located and produced.
There was a reason that he never congratulated the FBI investigators and DOJ prosecutors.
DXer said
I see that casetext is offering a 14 day free trial — no credit card required. So if you have legal issues you would like to search, I recommend the trial offer. It is very user friendly. Even the offered annual paid rate seems very reasonable.
Paisley v. C.I.A
712 F.2d 686 (D.C. Cir. 1983) Cited 105 times
Holding that under the privilege, communications must contain “opinions, recommendations, or advice about agency policies”
Since we find that the 58 disputed documents withheld by the FBI and the CIA are agency records whose release is not barred by the Speech or Debate Clause, they must be released to appellant absent a showing that the documents or portions thereof come within specific FOIA exemptions. On remand, therefore, the District Court shall afford the Government an opportunity to justify adequately its withholding of these documents pursuant to Exemptions 1, 3, and 5. It may be necessary for the District Court to order submission of further affidavits or to conduct an in camera inspection of the documents. *******The District Court should order the immediate release of any purely factual material not falling within the ambit of Exemptions 1, 3, and 5. *******Finally, the District Court shall permit the FBI to provide an updated justification for withholding all or any part of the five documents previously dismissed from the case and shall order release of any material found to be improperly withheld.
DXer said
Basic boolean searches turn up cases where a Court in a FOIA case turned to an in camera review:
Cable News Network, Inc. v. Fed. Bureau of Investigation
Not overruled or negatively treated on appeal
United States District Court, District of Columbia.Feb 2, 2018
293 F. Supp. 3d 59 (D.D.C. 2018)
“Summary judgment may not be appropriate without in camera review,” however, “when agency affidavits in support of a claim of exemption are insufficiently detailed.” Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996). In such a circumstance, “district court judges [have] broad discretion in determining whether in camera review is appropriate.” Id. at 577–78.
***
“[W]here, as here, an agency indicates that no additional information concerning an investigation may be publicly disclosed without revealing precisely the information that the agency seeks to withhold,” the Court can properly resolve the issue by in camera review. See Barnard v. Dep’t of Homeland Sec’y, 598 F.Supp.2d 1, 16 (D.D.C. 2009). Indeed, Daily Caller alternatively asks this “Court [to] review the Comey Memos in camera to determine whether all responsive records have been located.” DCNF Reply at 3 n.3.
DXer said
In re Application of New York Times Co.
585 F. Supp. 2d 83 (D.D.C. 2008) Cited 20 times
Holding that the public has a qualified First Amendment right of access to warrant materials after an investigation has been completed
Now before the Court is the New York Times Company and Los Angeles Times Communications LLC’s (collectively “the Times”) motion [1] for public access to sealed court records. The Times seek access to search warrants, warrant applications, supporting affidavits, court orders, and returns for all warrants requested by the government relating to searches of property owned by Dr. Steven J. Hatfill and/or Ms. Peck Chegne during the “Amerithrax investigation.” The Times have withdrawn their motion to unseal the warrant materials relating to Dr. Bruce Ivins because the Court unsealed those materials in a September 24, 2008 order. ( See.) Upon consideration of the motion [1], the government’s opposition [10], the Times’ reply [13], and the entire record herein, it is hereby ORDERED that the motion will be GRANTED. The warrant materials will be unsealed with limited portions that would “tend to reveal the identity of a [confidential] informer” redacted.
DXer said
The Plaintiff, I see, has a proposed response to FBI’s Surreply. I did not read the FBI’s Surreply and have not read this response.
I guess my view of things is simpler. If the FBI did not think it important enough to keep a copy of the only documents it quoted in its Amerithrax Investigation Summary accusing Bruce Ivins of murder — if it thought they could destroy them — then why is it that its agent R. Scott Decker feels it is okay to take money to make a movie accusing the deceased man of murder? …Taking money to claim that Ivins had no reason to be in the lab those nights and weekends when the documents withheld by the FBI — and the FBI implies it destroyed — would show otherwise?
Perhaps the FBI should ask their former agent for the emails — because presumably he wouldn’t accuse a man of murder without knowing of the location of an existing copy of the documentary evidence that he relied upon.
The former lead Amerithrax investigator, Richard Lambert, has publicly told the New York Times and Fox News that the FBI is withholding a staggering amount of evidence that is exculpatory of Bruce Ivins. I am just asking that the FBI produce the emails from September and October 2001 that they took from the Army and then REFUSED TO RETURN TO THE ARMY.
That’s what burns me the most. They claim that the emails are the Army’s documents and yet like Ivins’ notebooks, they took them from the Army and refused to return a copy so that there could be a production that complied with FOIA.
DXer said
FBI delaying release of file on Bulger
The Lowell Sun
Updated: 11/21/2018 11:23:19 PM EST
By Joe Dwinnell
Boston Herald
The FBI is saying “unusual circumstances” are jeopardizing the release of James “Whitey” Bulger’s potentially damning agency file, with the Herald being told it’s not a high priority.
In one excuse to not release the file expeditiously, the FBI said “the matter” did not rise to the level of “exceptional media interest” that raised “questions about the government’s integrity.”
***
Bulger’s corrupt FBI handler in Boston, John Connolly, is serving a 40-year prison sentence for his part in protecting the notorious killer. The 78-year-old has exhausted his appeals and remains locked up in Florida.
Read more: http://www.lowellsun.com/breakingnews/ci_32286546/fbi-delaying-release-file-bulger#ixzz5XaESqlSd
DXer said
DOJ//FBI now has filed a surreply.
DXer said
What did the US DOJ say in this withdrawn memorandum in opposition?
2018-09-26 22 ENTERED IN ERROR….Memorandum in opposition re 14 MOTION for Summary Judgment filed by KENNETH J. DILLON. (See Docket Entry 21 to view document) (tth) Modified on 10/1/2018 (znmw). (Entered: 10/01/2018)
2018-10-01
NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 22 Memorandum in Opposition was entered in error and will not be refiled. (znmw) (Entered: 10/01/2018)
DXer said
The RECAP PROJECT
https://free.law/recap/
The Archives and APIs
Thanks to our users and our data consulting projects, the RECAP Archive contains tens of millions of PACER documents, including every free opinion in PACER. Everything in the archive is fully searchable, including millions of pages that were originally scanned PDFs.
Everything that is in the RECAP Archive is also regularly uploaded to the Internet Archive, where it has a lasting home. This amounts to thousands of liberated documents daily.
DXer said
FBI has asked for a chance to submit a sur-reply, Dr. Dillon, through counsel, has consented.
With the Democrats expected to gain a majority in the House in the upcoming election, I recommend that the new “powers that be” explore through a hearing why the FBI destroyed or did not preserve the September and October 2001 emails that it selectively quoted in its Amerithrax Investigative Summary — and on the basis of which the FBI closed the case.
Everyone agrees that there was no direct evidence of Ivins guilt and that, at best, there was an argument based on the circumstantial evidence. I have suggested that the evidence relied upon was misleadingly quoted by the FBI. My source o that is the public statements by the former lead Amerithrax investigator in filed court filings. The FBI reports that it DESTROYED OR DID NOT PRESERVE the evidence on the basis of which it was closing the case. That was really wrong and outrageous — and I submit that it was all because the investigators and prosecutors did not want to be blamed for Dr. Ivins suicide. Anyone paying attention knew that he was committing suicide for an entirely different reason.
I’m the biggest fan of the FBI. But I am also a big fan of an agency’s compliance with FOIA. The FBI is only worthy of our high regard when it continues to embody the rule of law.
In this day and age, the FBI simply has no way of knowing who already knows what. i recommend that in order to be on the right side of history, the FBI comply with FOIA and find the emails it has failed to produce.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
DOJ did not seek leave to file a surreply.
DXer said
FBI’s own guide to searching for records requested through FOIA confirms why you should always appeal FBI FOIA searches
https://www.muckrock.com/news/archives/2018/oct/24/fbi-process/
Comment:
Although I have never had any contact with him, I was impressed by the intelligent reasoning by Scott Hodes, Ken Dillon’s FOIA counsel, in his last brief. As I recall, Attorney Hodes formerly worked for DOJ in the FOIA unit.
DXer said
In the pending litigation before the US District Court, the FBI should provide a copy of the Table of Contents of the memo written by former lead Amerithrax investigator Richard Lambert and the 16-page section on Ivins — both of which were withheld in their entirety.
In his most recent filing, Dr. Dillon explains:
“Defendant has readily agreed that it will provide the copies of documents for this in camera review. 2nd Hardy Decl., ¶16.
This case is more than appropriate for in camera review as the documents at issue “are few in number and of short length” and where “the dispute over the applicability of the particular exemption centers on the actual contents of the document.” E.g., Allen v. CIA, 636 F.2d 1287, 1298 (D.C. Cir. 1980), overruled on other grounds by Founding Church of Scientology of
Washington D.C., Inc. v. Smith, 721 F.2d 828 (D.C.Cir.1983). This is especially true in this case where defendant has invoked a number of exemptions without fully justifying them or apparently following the protocols for raising the exemptions. See Plaintiff’s Memo. at 6-7. Thus, plaintiff respectfully asks this Court for an in camera review of the documents withheld in full.
DXer said
Fox, Steve Zaillian Developing ‘Mirage Man’ Movie About 2001 …
Collider.com-10 hours ago
Letters containing anthrax spores were mailed to several news media offices and two U.S. Senators (Tom Daschle of South Dakota and Patrick …
Fox, Steve Zaillian Developing ‘The Mirage Man’ On Anthrax Attacker …
Deadline-10 hours ago
DXer said
At DOJ’s request, the DOJ’s cross-motion has been delayed until Sept. 12, and Plaintiff’s Reply until Sept. 26.
DXer said
The following transaction was entered by Hodes, Scott on 7/16/2018 at 11:15 AM and filed on 7/16/2018
Case Name: DILLON v. U.S. DEPARTMENT OF JUSTICE
Case Number: 1:17-cv-01716-RC
Filer: KENNETH J. DILLON
Document Number: 15
Docket Text:
Memorandum in opposition to re [14] MOTION for Summary Judgment filed by KENNETH J. DILLON. (Attachments: # (1) Memorandum in Support, # (2) Statement of Facts, # (3) Declaration, # (4) Exhibit, # (5) Text of Proposed Order)(Hodes, Scott)
DXer said
The judge has given the FBI until September 12 to respond to the briefing on why it refuses to provide copies of the September/October 2001 emails that it quoted and relied upon in closing Amerithrax.
It is going to be embarrassing to the FBI if it continues to withhold them and then for them to be finally produced by a third party — permitting everyone to see that the only reason they were with withheld was “CYA”.
AUSA Lieber wanted to make a silk purse out of a sow’s ear. The emails were selectively quoted. According to the former lead Amerithrax investigator Richard Lambert, the evidence in support of the FBI’s “Ivins Theory” was misleadingly cast. (And it was Lambert who interviewed Ivins).
Pretending not to be able to find the emails doesn’t square with the rule of law.
If they were spoliated, then the Inspector General needs to conduct an investigation.
DXer said
Here is Bruce Ivins Email Batch 1. THE ENTERPRISE REPORT –
TheEnterpriseReport.com is an online investigative news site founded and published by award -winning
Producer/Investigative Journalist Eric Longabardi. The site was named Best Online Website by the LA Press Club in 2008.
Thanks to Eric Longbardi’s work, the Army’s taking down its Electronic Reading Room and the Bruce Ivins’ email is less prejudicial to researchers who want to probe the claim by the former lead Amerithrax investigator Richard Lambert that the FBI is withholding a staggering amount of information that is exculpatory of the late Bruce Ivins.
Click to access DrBruceIvinsEmail_One.pdf
The Release letter:
DrBruceIvinsEmail_ReleaseLetter 30 KB
Email Batch Two: DrBruceIvinsEmail 70 KB
Email Batch Three: DrBruceIvinsEmail_Three 264 KB
Email Batch Four: DrBruceIvinsEmail_Four 176 KB
Email Batch Five: DrBruceIvinsEmail_Five 124 KB
Email Batch Six: DrBruceIvinsEmail_Six 130 KB
Email Batch Seven: DrBruceIvinsEmail_Seven 145 KB
Email Batch Eight: DrBruceIvinsEmail_Eight 221 KB
Email Batch Nine: DrBruceIvinsEmail_Nine
Eric has consolidated the above batches are all in one folder at:
Click to access DrBruceIvinsEmail_All.pdf
The limited date ranges of the emails he has uploaded are 14-June -1999 – 04-May -2000.
The FBI culled from the later productions all of the emails that it quoted and relied upon in closing the Amerithrax litigation.
And now refuses to even specify the applicable exemption on a proper Vaughn Index.
The former lead Amerithrax investigator Richard Lambert, who is the one who conducted the key interviews of Ivins, says that the FBI has misleadingly cast Ivins as the perpetrator of the anthrax 2001 mailings by selectively presenting the evidence it relies upon.
We still don’t know who was responsible for the Fall 2001 anthrax mailings because of the game of hide-the-ball that the FBI officials (some of whom have moved over to the Army i.e., Hassell and Majidi) — all for CYA reasons. The FBI officials did not want to be blamed for driving Bruce Ivins to commit suicide and so have withheld documents to avoid a civil suit such as the Hatfill suit that led to a $5.8 million award.
DXer said
Justice and FBI Officials Reject House Criticism Over Document Requests
Rosenstein clashes with GOP lawmakers in testy exchange; House votes to demand the records
https://www.wsj.com/articles/justice-and-fbi-officials-reject-house-criticism-over-document-requests-1530213117
Mr. Rosenstein became testy at times in answering sharp questions from House Republicans, particularly those closely allied with President Donald Trump, who has called the special counsel’s Russia investigation overseen by the deputy attorney general “a witch hunt.”
At one point, Mr. Rosenstein engaged in a fiery exchange with Rep. Jim Jordan (R., Ohio), when the lawmaker pressed him on why he was “keeping information from Congress” and asserting that lawmakers had caught him “hiding information.”
“I am not keeping any information from Congress,” Mr. Rosenstein said, adding that the House would be “mistaken” to vote on the resolution that accused him of not complying with subpoenas and other demands for records.
“Your use of this to attack me personally is deeply wrong,” Mr. Rosenstein said.
“It’s not personal,” Mr. Jordan replied.
Comment:
Now go to the DOJ’s briefing of the withholding of the September -October 2001 emails from FOIA requestor Ken Dillon. Can you figure out whether DOJ has even found the documents? And if they have found them, what exemption they are claiming? That sort of cut-and-paste, shotgun briefing obfuscates the issue (as it perhaps is intended to do) — and finesses the reality that no exemption warrants the withholding of the September-October 2001 emails.
The withholding is outrageous when the former lead Amerithrax investigator is publicly (and in a court filing) arguing that the FBI is withholding a staggering amount of information that is exculpatory of Bruce Ivins.
If the September-October 2001 emails are subject to withholding pursuant to a FOIA exemption, by all means, specify the exemption that is applicable.
The exemption applicable due to the pendency of a criminal investigation stopped applying in February 2011 when the FBI formally closed the investigation.
Note also that the FBI refuses to produce an outline that summarizes the findings of the forensic tests. On what basis? Did the forensic findings change based on the individual the FBI wanted to accuse in a press conference so that the individuals would not be blamed for his suicide?
We already know that none of the forensic findings implicated Bruce Ivins. But absent an applicable FOIA exemption, those portions of the outline need to be disclosed.
In contrast, the identification of other POIs should not, IMO, be disclosable under FOIA. Nor should anything required by statute to be redacted (e.g., FISA, pen registers). But the summary of the forensic findings is not exempt from disclosure.
The Table of Contents and the Ivins section sought by Ivins should be provided to the District Court for an in camera review so that FOIA can be applied. It is a total of 38 pages. Any federal court judge is very busy — but this was the biggest criminal investigation in history and is worthy of the less than an hour of time that might be needed. The lead investigator has publicly advocated that the FBI is withholding a staggering amount of information that is exculpatory of Bruce Ivins. Dillon has targeted a small amount of the withheld information that he ventures might be sufficient to get people on the same page as to the viability of the FBI’s cotton candy “Ivins Theory.”
Bruce Ivins was in the lab in late September and early October on those nights and weekends because of mandatory night and weekend animal checks relating to the challenge of 52 rabbits.
If you look at the Amerithrax Investigation Summary, AUSA Lieber nowhere even mentions the word “rabbits.”
It may be that the investigators and prosecutors were just simply really confused.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
June 27, 2018
FBI’s High Visibility Memoranda document FOIA’s greatest hits
Memos identify some of the most significant of the Bureau’s files that requesters can make public
Written by Emma Best
Edited by JPat Brown
When the Federal Bureau of Investigation’s FOIA office in the Records Management Division prepares to release a file that it deems significant, newsworthy or controversial, it issues what’s known as a High Visibility Memoranda. These memos, circulated to different parts of the Bureau and often to the Director’s Office as well as outside agencies, outline the proposed releases and their possible fallout. A recent release of over 500 pages of these memos serves as a list of files for FOIA requesters to file new requests for so the files can be published online, as well as showing government reactions to the requests themselves.
Although often short, the memos are likely to be exceptionally useful to FOIA requesters. The memos typically include an explanation of why the request is important, or the most significant disclosures within them.
***
Overall, the memos detail hundreds of FOIA requests that are of significant interest to the public. While all of these files have been released, many are worth requesting again as they aren’t available online. As many FOIA requesters know, requesting preprocessed files is an excellent way to reduce or avoid search and duplication fees. In some instances, files can be re-reviewed and re-released with fewer redactions. Readers are encouraged to use the memos as inspiration for their FOIA requests.
Comment: With respect to the USAMRMC Electronic FOIA Room that (I believe) was taken down, requesting those preprocessed files for the purpose of uploading would serve the purpose now abandoned by the agency.
DXer said
In a filing filed last Friday, the United States Attorney for the District of Columbia Jessica Liu announced that the FBI had lost — could not find — the key documents on which it had closed the Amerithrax case.
The documents were the Sep-Oct 2001 emails quoted and relied upon in the search of Bruce Ivins residence — with those emails also quoted and centrally relied upon in the Amerithrax Investigative Summary that outlined the FBI’s “Ivins Theory.”
Joining United States Attorney Jessica Liu in throwing up her hands that they cannot lay their hands on the documents is Daniel F. Van Horn, Civil Chief. Writing the brief is Peter Benton. The filing of the motion was the first time in all these months that the FBI or Benton had claimed that they had lost or could not locate the documents.
They offer no Vaughn Index specifying any exemption that applies to the September-October 2001 emails — any exemption that would allow them to only selectively and misleadingly quote from those emails but not provide a copy. The emails were to and from Bruce Ivins in September and October 2001. They were at a time when Bruce Ivins was working night and weekends for scheduled animal checks. By not producing them, the FBI wants to perpetuate its “cotton candy” Ivins Theory and avoiding producing the documents that the FBI relied upon in closing Amerithrax when the documents are actually exculpatory of Bruce Ivins.
FOX NEWS interview with RICHARD LAMBERT … Former agent claims FBI concealing evidence in anthrax case
Posted by Lew Weinstein on April 22, 2015
NYT interview of former lead Amerithrax investigator Richard Lambert: “a staggering amount of exculpatory evidence” regarding Dr. Ivins remains secret
Posted on July 16, 2016
There is not even any indication that the FBI searched for the word “email” in its databases or “Amerithrax Investigative Summary” (which misleadingly quotes from the emails).
There should be an IG probe to learn why US Attorney Jessica Liu (who ironically was personally vetted by President Trump in a rare interview) thinks it is okay to lose the emails that would test whether Robert Mueller botched Amerithrax.
If instead the DOJ actually found the emails — and are obfuscating that fact and simply want to withhold them without specifying the applicable exemption under FOIA — then the IG or Congress in a probe should find that improper.
Hiding the ball is wrong even short of spoliation or destruction of the documents.
I certainly do not think the emails were destroyed. That would be foolhardy. USAMRMC Official John Peterson emailed copies of them to numerous DOJ/FBI officials in allowing the DOJ/FBI to decide which ones to cull during the pendency of the criminal investigation.
But then the Amerithrax investigation was closed and the emails should have been restored to the production.
If the DOJ IG does not open a probe, then the Army IG should.
October 18, 2016 filing of amended complaint by former lead Amerithrax investigator Richard Lambert, relating to fingering and railroading of Bruce Ivins in face of daunting undisclosed exculpatory evidence
Posted by Lew Weinstein on November 18, 2016
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
Dave Hardy recounts in his Afffidavit that when WFO was contacted, they did not have a copy of the 2000 page Interim Case Management Summary — but that the science people at Quantico did.
Let’s try to read the tea leaves — and give the hard-working DOJ and FBI officials the benefit of the doubt. Let’s try to figure out how their position in Friday’s filing is in good faith — rather than a game of unprincipled hide-the-ball or incompetence.
(I am speaking only of the Sep-October 2001 emails now that they incredibly suggest that they cannot find).
Consider the possibility that WFO has a FISA investigation.
Tarek Hamouda had contacts in jihad, according to his childhood friend “Tawfiq” Hamid. Indeed, Ayman Zawahiri came to the medical school each Friday to recruit.
So did Ali Al-Timimi. He was in contact with Bin Laden’s sheiks, for example. He was convicted of sedition and shared a suite with the leading Ames researcher, Russian bioweaponeer Ken Alibek, and the former USAMRIID Commander Charles Bailey. The researchers were funded by DARPA and had been supplied virulent Ames. The work was done by Southern Research Institute, where Ivins’ assistant Patricia Fellows went to head their B3 lab.
The noncitizen, Dr. Hamouda had access to virulent Ames that was genetically matching. He worked alongside Patricia Fellows and Bruce Ivins in the B3.
But Ali Al-Timimi very likely had access to Ames provided DARPA also. (A whistleblower that was let go by ATCC said he had unfettered access to the bacteriological repository managed by Jason Bannan, the scientist who then led the FBI’s science investigation).
Let’s support that the FBI doesn’t know who was guilty of the Amerithrax crimes — let’s credit the claim by Richard Lambert, the former lead Amerithrax investigator, that the FBI is withholding a staggering amount of information exculpatory of Bruce Ivins.
But the FBI closed the criminal investigation — some motivated by CYA (not wanting to be sued like happened with Hatfill and some genuinely mistaken. The investigation was highly compartmentalized and so there were a lot of participants who simply did not know a lot of the evidence. Richard Lambert has said he is the only one who saw all the evidence. Information was stovepiped.
But let’s consider that they may not have closed a FISA investigation. Senator Leahy has said “The case is not closed.” Now this is surprising given that the FBI so publicly and famously did in fact close Amerithrax.
So what is the case that is not closed? If not Amerithrax, is it a secret FISA investigation? (I don’t know).
Heck, do you even know the status of the Ali Al-Timimi criminal prosecution — after the remand? (Gordon Kromberg or Jonathan Turley would know.)
****But would that justify withholding of the emails from a FOIA requestor? No. The emails are still subject to FOIA.*****
If it ends up that they show the FBI’s Ivins Theory was a bunch of hooey, that’s just what happens when you get up to the podium as US Attorney Taylor did and spew nonsense.
Producing the emails would not reveal the existence of any FISA investigation.
In that event, doing an end run and getting the documents from the Army is the best bet.
I suspect my dear friend, the graphic artist, may work for Battelle as a contractor doing counterintelligence work domestically for the CIA.
He wrote out of the blue Friday with his usual lame cover discussion.
But yesterday (I believe) agreed to help in doing a graphic. I have been waiting until I read the documents and thought of the most salient issue.
I think the two most fruitful subjects are the T of C relating to the 195 pages of forensic tests and the Sep-Oct 2001 emails.
Why does the FBI refuse — on what grounds — to produce the table of contents summarizing the 195 pages of text describing the forensic studies?
The portion of T of C may only be a page or two long. We already know that none of the forensic findings implicated Bruce Ivins.
Dr. Dillon totally understands that the names of other suspects will need to be redacted, that references to sealed pen registers should be redacted etc.
He is interested in the factual discussion in the text of the Ivins section because what it says about Ivins alibi demolishes the claim made by US Attorney Taylor, FBI Agent R. Scott Decker, Vahid Majidi and others about Bruce ivins.
The public has a need to know that they have been bamboozled. Bruce Ivins had a reason to be in the lab due to the scheduled late night and weekend animal checks.
The FBI is lying and FOIA is supposed to permit transparency.
None of us may know who was responsible for Amerithrax but the public has a right to the contemporary documents from September-October 2001 that show what Bruce Ivins was doing at the time of the Fall 2001 anthrax mailings. The emails were centrally relied upon by the FBI in closing Amerithrax for gosh sake.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
In his sworn Affidavit filed in federal court this past week, FBI FOIA head has mischaracterized Dillon’s request.
Dave Hardy writes: “I am familiar with the FBI’s handling of Plaintiff’s Freedom of Information (“FOIA”) request dated April 18, 2001 seeking all emails, laboratory notebooks, paper and computer files regarding the 2001 anthrax mailing investigation.”
Actually, Plaintiff sought those records only from the period September and October 2001 — and only the emails to or from Bruce Ivins from that September-October 2001 email. (AFB. 24). There is a huge difference.
Ken Dillon wrote:
“I request, in regard to the 2001 anthrax mailings, all email messages, laboratory notebooks, paper and computer files, and information about meetings and telephone conversations IN SEPTEMBER AND OCTOBER, 2001 OF DR. BRUCE IVINS, USAMRIID.
Dillon already has access to thousands of Ivins’ emails — he just lacks access that the FBI had culled from the Army’s John Peterson upon the direction of some DOJ and FBI officials who shall remained unnamed absent an IG report. (But we all know who you were, right? Would you rather it leak or would you like to abide by the rule of law and produce the culled emails pursuant to FOIA).
The September and October 2001 emails sought were all the emails that the FBI selectively and misleadingly quoted and relied upon in closing the case. Lots of emails have been produced and uploaded — just not the quoted and relied upon by the DOJ. Those instead were culled from production so that critics of the FBI’s cotton candy “Ivins Theory” would be slowed in proving that the evidence was being falsely and misleadingly spun.
So while Hardy makes it seem Dillon — in his inaccurate characterization — is being overbroad and burdensome (in para. 2 of his Affidavit), Dillon instead is seeking to overcome the DOJ/FBI’s culling and spoliation of evidence. Dillon is seeking to overcome the loss or destruction of all the emails that the DOJ and FBI quoted and relied upon in its Amerithrax Summary (and also in the Dellefera Affidavit in support of its search of Ivins’ residence).
Dillon explained his reason for requesting the culled emails:
“In Para 53 of Richard L. Lambert v. Attorney General Eric Holder et al. in the US District Court for the Eastern District of Tennessee, filed April 2, 2015, Lambert, former head of the Amerithrax Task Force, refers to FBI’s “efforts to railroad the prosecution of Ivins in the face of daunting exculpatory evidence” and states that FBI’s public presentations of its case against Ivins were “replete with material omissions.”
Now the DOJ, FBI and Hardy argue that the withholding of these culled emails does not bear on the government’s conduct of its business.
The DOJ officials argue that how the DOJ and FBI present its evidence is not of public interest.
The DOJ officials reason that the threat of an attack using a biological weapon on the United States by Al Qaeda is not of public interest.
The public should expect more from the DOJ’s FOIA operation. Indeed, the FBI’s botching of Amerithrax has been regularly discussed this past year — merely search “Mueller” and “anthrax” — and add “botch” or “bungled” or “unsolved.” How many more FBI officials need to be fired before the rule of law is more than just a mantra paid lip service?
Finally, on a minor note, Dave Hardy, note that Ivins’ name is spelled “Ivins”, not Ivans. Maybe the reason your staff could not find the emails quoted and relied in AUSA Lieber’s Amerithrax Summary is that the wrong spelling was used.
Please have your staff go find the documents that the FBI quoted and relied upon in closing Amerithrax. You might first look in the exhibits in the attached 2000 page IMCS Summary that you found but also refuse to produce.
If the Federal Court Judge is given a copy of the IMCS memo and its exhibits, he will find many of the wrongfully withheld Ivins’ documents from Sept-October 2001 there as attachments, including documents that further establish his alibi.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
There is a boilerplate, often copied and pasted into such motions, about the FBI’s record keeping system. The Affidavit is authored by David Hardy, who oversees many employees.
What is conspicuously missing is an Affidavit of Rebecca Bronson who could say whether the Ivins emails quoted and relied upon by the FBI in its Amerithrax Summary — the emails to and from Ivins and his assistant Fellows (and former assistant Linscott) in September and October 2001 — were attached as exhibits to the memo.
David Hardy has no personal knowledge of whether the emails were attached — or locatable — because he did not participate in the search. Nor apparently did he even review the ICMS and its exhibits. Where is the allegation that he reviewed the attachments of the ICMS and the emails were not attached?!
Hardy’s Affidavit, drafted by the DOJ attorney briefing the issue, merely cuts and pastes sections on the Central Records System (“CRS”) and on Automated Case Support (“ACS”) and Sentinel, (paras. 41-48).
But why bother? Before swearing out his affidavits, what David Hardy or the briefing DOJ attorney needed to do was to take the ICMS document in his hands and turn to the list of exhibits. There he would find the documents relied upon by the FBI in (not) considering Bruce Ivins as a suspect.
The cut and paste of the usual boilerplate serves no purpose. What needs addressing is why the FBI thinks it can withhold those emails while selectively and misleadingly quoting from them in its summary of its resolution of the biggest case in the history of the FBI! These are factual documents and the fact that they are attached to an “interim” memo summarizing facts does not suddenly mean that Dave Hardy can say that the dog ate them!
Not only was the search was inadequate — but the failure to submit an affidavit by Rebecca Bronson, who had the personal knowledge, evidences that inadequacy.
All Attorney Hardy needed to do was to contact, or have someone on his staff contact (given he is busy with many responsibilities) either (1) Agent Dellefera who quoted the emails in his affidavit for a search warrant — or (2) AUSA Lieber who quoted them in her Amerithrax Summary.
The FBI did not find the emails that it selectively quoted in closing Amerithrax because it has already been called out on its misleading presentation of evidence by the former Amerithrax lead investigator. That former Amerithrax lead investigation, Richard Lambert, is the one who conducted the key interviews of Bruce Ivins. He probed Ivins on this issue of alibi.
The evidence is all of a factual nature — with many of those documents wrongfully withheld by an agency that purports to stand for the rule of law and for fairness.
DXer said
The reason FBI FOIA head Dave Hardy simultaneously plays hide-the-ball with the emails between Patricia Fellows and Bruce Ivins from September – October 2001 — even though they were the basis for an Ivins Theory and were quoted and centrally relied upon in the Amerithrax Summary — is that the FBI selectively and misleadingly quoted the emails in closing Amerithrax and declaring the case solved.
If provided, they will show that the FBI’s claim that Bruce Ivins had no reason to be in the B3 lab was a lie — and AUSA Lieber’s failure to so much as mention the word “rabbits” in her Amerithrax Summary was a travesty at justice.
See, e.g.,
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
DXer said
In a filing this week, in connection with Kenneth Dillon’s request for the Interim Case Management Summary, the Department of Justice responds that it has located the Interim Major Case Summary:
“In response to FOIA Number 1329350, the FBI conducted a CRS search using the term
“Interim Major Case Summary” and located no records. Hardy Decl. ¶ 47. The FBI then
conducted an index search using the term “Amerithrax” which resulted in one investigative file.
Id. The FBI electronically reviewed the investigative file and was unable to locate the IMCS.
Id. Next, the FBI contacted the subject matter experts at the Washington Field Office and
requested their assistance. Id. The Washington Field Office reviewed the physical investigative
file and was unable to locate the IMCS. Id. The Washington Field Office reached out to the
FBI’s Laboratory Services in Quantico, Virginia, who located the IMCS and sent it to RMD for
processing. Id.”
DXer said
“By letter dated April 18, 2015, Plaintiff submitted a FOIA request seeking records on the
2001 anthrax mailings. SOF ¶ 20. More specifically, Plaintiff sought “all email messages,
laboratory notebooks, paper and computer files, and information about meetings and telephone
conversations in September and October, 2001 of Dr. Bruce Ivins.” Id. In a letter dated April
27, 2015, the FBI acknowledged receipt of the FOIA request and assigned FOIA Request
Number 1327397. Id. ¶ 21. The FBI informed Plaintiff records responsive to his request were
previously processed for another requester and were available on the FBI’s public website,
http://vault.fbi.fov. Id.
By letter dated June 19, 2015, Plaintiff filed an appeal with DOJ OIP stating the FBI “has
never released any records responsive to my request. . .” Id. ¶ 22. Plaintiff indicated the FBI
needs to release the following records: Ivan’s emails to or from various named individuals,
Notebook 4010 as well as relevant pages from Notebooks 3655, 3945 and 4251, paper and
computer files including files from Ivan’s computer, information from meetings Ivan attended, as
well as his telephone and credit card records. Id.”
Comment:
I find it disturbing that for years Ken DIllon’s experience has been that Dave Hardy has repeatedly
said that the requested documents were uploaded to the Vault when in fact they were not.
It is incompetent to say that a document is uploaded when a simple google would show that it
wasn’t. Moreover, it is the United States Department of Justice (not Ken Dillon) that is spelling Bruce Ivins name “Ivans”
rather than Ivins, in briefing this matter to the federal court. Misspelling such as that would make successful
electronic searches less likely. Why is anyone surprised that Amerithrax was botched if the FBI incorrectly
claimed — repeatedly –that the requested documents were uploaded when they weren’t?
DXer said
See, e.g.,
In describing the visit by the non-citizen Egyptian male to work with the virulent Ames in the B3 with Ivins, Fellows and Linscott, Ivins reports that the scientist’s name was spelled wrong on the electronic USAMRIID foreign visiting scientist record
Posted by Lew Weinstein on May 14, 2014
How had the name of the Egyptian visiting Dr. Bruce Ivins been spelled on the log of foreign scientists visiting USAMRIID? The log should be obtained under FOIA.
Posted by Lew Weinstein on December 12, 2011
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
Ken Dillon has sought copies of the emails from September and October 2001 that the DOJ and FBI quoted and relied upon in closing Amerithrax.
Many thousands of emails were produced by USAMRIID. But the DOJ and FBI vetted/culled emails from the production made by USAMRC official John Peterson. And now the FBI refuses to produce them. There needs to be an IG investigation.
The claim that “all reasonably segregable material has been released to Plaintiff” is a lie. All the FBI needs to do is produce the emails that it culled from John Peterson’s production. Many thousands of other emails were produced. The IG should obtain the emails where he was directed to cull specific emails and then those officials should be fired. #bastards The only redaction that needs to be made is a (b)(6) redaction for the name of individuals (to which Dillon, I assume, would have no objection).
Those emails will show, I venture, that Bruce Ivins was in the B3 working on the scheduled small animal experiments –in her memo, AUSA Lieber shamefully failed to even mention the challenge of the 52 rabbits that required that he be in the lab those nights and weekends.
“C. ALL REASONABLY SEGREGABLE MATERIAL HAS BEEN RELEASED TO
PLAINTIFF.
Under the FOIA, if a record contains information exempt from disclosure, any “reasonably
segregable,” non-exempt information must be disclosed after redaction of the exempt information.
5 U.S.C. § 552(b). Non-exempt portions of records need not be disclosed if they are “inextricably
intertwined with exempt portions.” Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242,
260 (D.C. Cir. 1977); Fischer, 596 F.Supp.2d at 44. To establish that all reasonably segregable,
non-exempt information has been disclosed, an agency need only show “with ‘reasonable
specificity’” that the information it has withheld cannot be further segregated. Armstrong v.
Executive Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996); Canning v. Dep’t of
Justice, 567 F. Supp. 2d 104, 110 (D.D.C. 2008). “Agencies are entitled to a presumption that
they complied with the obligation to disclose reasonably segregable material,” which must be
overcome by some “quantum of evidence” by the requester. Sussman v. U.S. Marshals Serv., 494
F.3d 1106, 1117 (D.C. Cir. 2007). Moreover, the agency is not required to “commit significant
time and resources to the separation of disjointed words, phrases, or even sentences which taken
separately or together have minimal or no information content.” Mead Data, 566 F.2d at 261,
n.55.
DXer said
Question: Was the email from the DOJ/FBI official to USAMRMC Official to pull the Sep-Oct 2001 emails to and from Ivins’ assistants made by the official from his/her official email — or a personal email.
The use of personal email tends to thwart compliance with FOIA and is not appropriate.
Until the IG probes the culling of the emails quoted and relied upon by the FBI in its Amerithrax Summary, we won’t know how the instruction was given to John Peterson of USAMRMC, who described the procedure to me by which the DOJ/FBI reviewed the Army’s production of emails.
IG: Comey used personal email account for FBI business – CNNPolitics
https://www.cnn.com/2018/06/14/politics/comey-emails-ig-report/index.html
IG Horowitz could conduct the inquiry or alternatively the Army IG could.
Destroying evidence is wrong.
DXer said
Pat,
DOJ has filed its motion for summary judgment and supporting documents today.
DXer said
Fired FBI Official Discovers Former Employer Sucks at Transparency
https://gizmodo.com/fired-fbi-official-discovers-former-employer-sucks-at-t-1826798925
Dell Cameron
Yesterday 5:55pm
After being fired by the attorney general in March, a former top FBI official requested records from the bureau citing the federal freedom of information law. However, he was quick to discover that the agency he led for a brief period last year isn’t really that into transparency or the rule of law after all.
Andrew McCabe, who was the acting FBI director following the firing of James Comey last year, filed a lawsuit against the bureau on Tuesday after it failed to produce a slew of records requested under the Freedom of Information Act (FOIA). The FBI and the Justice Department proved less than cooperative.
In a complaint filed Tuesday with the D.C. District Court, McCabe criticized the FBI over its “continuing pattern and practice of violating the proactive disclosure requirements of FOIA and applicable regulations.” McCabe has sought access to several documents that may be relevant to his own firing, such as internal policies for FBI-media interaction, and argued that some should have been made automatically public years ago.
In regards to FOIA, the FBI is notoriously noncompliant. Often it takes absurd amounts of time to gain access to FBI records, even when their disclosure is clearly of public interest. Several years to process legitimate, non-exempt requests is not uncommon.
That a career FBI official of some 22 years had the occasion to gripe about the bureau’s lack of transparency and disregard for FOIA regulations is priceless—at least, to virtually anyone who’s battled the bureau for access to public records at any point over the past several decades.
DXer said
http://www.uticaod.com/opinion/20180524/your-views-letters-to-editor
FBI isn’t a fourth branch of government
In 2001, five American citizens were killed by anthrax spores sent through the mail.
The director of the FBI and a Department of Justice officer charged two different scientists with being guilty of this heinous act. Both were found innocent and the federal officials were reprimanded for “wrongful prosecution.”
The FBI director was Robert Mueller, and the DOJ official was James Comey. Their behavior should have disqualified them from further duties, but no, instead, Mueller was appointed special counsel, and Comey was appointed FBI director.
Now, we know from the the May 11 column by Kimberley A. Strassel on page A17 of the “Wall Street Journal” that the FBI planted a spy in the campaign staff of Donald Trump! Possibly that spy is a foreign national and not even a U.S. citizen! Mueller, Comey, and Rod Rosenstein of the Department of Justice need to be reminded that the FBI is not the fourth branch of our government!
Mitch Pezdek, Jr., Clinton
Comment: I don’t know of any federal officials that were reprimanded for “wrongful prosecution.” (In fact, I don’t even believe that they charged anyone at all for the crime). They tended to make their claims in press conferences.
Taxpayers did pay $5.8 million to Steve Hatfill, however, even though he had forged his PhD certificate, drawing suspicion on himself.
The writer, though, can be congratulated for his town’s winning a large sum for renovation of their hockey arena in a recent contest. Every vote counts (and I voted).
DXer said
Roger Stone Opens Up About Russia, Mueller, Trump and What’s Next
A wide-ranging conversation with the longtime Trump associate and Republican operative
https://www.rollingstone.com/politics/features/roger-stone-russia-trump-w520597
You said Mueller might try to indict you for something pertaining to your businesses. What do you mean by that?
We know that a federal prosecutor can indict a ham sandwich. They have an amazing ability to take nothing and say it is something. I have a clear conscience regarding my businesses, my taxes, the conduct of my personal affairs. But I understand a runaway federal prosecutor with unlimited powers and no checks or balances can bring any indictment they want. Uh, you know, they could fabricate some offense by me. Three people were arrested wrongly in the anthrax scandal by Mr. Mueller several years ago. It happens.
Ross Getman
ross_getman@verizon.net
DXer said
Warner: It’s ‘potentially illegal’ to identify FBI source in effort to undercut Russia probe
By Clare Foran, CNN
Updated 1:19 AM ET, Sat May 19, 2018
https://www.cnn.com/2018/05/18/politics/intelligence-sources-fbi-congress-russia/index.html
Comment:
This point by Senator Warner does raise an interesting legal question. It would be illegal, maybe, if he worked abroad for the CIA. But if he is just a citizen doing his civic duty for the FBI — as some suggest — I cannot see that someone cannot point that fact out, so that the information and sourcing can be assessed.
Though reasonable people can disagree, I would call the so-called “informant” a “federal undercover” (working as a paid independent contractor). (The professor working in England had previously done work for the CIA, according to the New York Times, which does not name him.)
The guy offered money to George P. to write a pretextual report and come to London (with expenses paid) in order to ply him for info. That’s not what informants do. That’s what federal undercover spies do. So I think of him as an FBI independent contractor.
Relating the issue to Amerithrax, the only subject of this blog, in August 2008, the FBI sent a federal undercover to Syracuse and for years he worked on graphics.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.anthraxandalqaeda.com
The graphics relate to a different Mueller investigation that has not yet been resolved, even though the FBI claims it is “closed.” I am solely responsible for the content — the graphic artist, although a confidence-inspiring brilliant analyst in his own right, was merely executing what I directed. Our rule of thumb and guiding principle was always to have direct cited documentary source for any factual assertion. Any errors are mine.
I asked him if he was a federal undercover the second time I met him. He didn’t respond and instead asked me if I had ever heard of “Pegasus” (Pegasus was a DC investment fund that was being considered as maybe, possibly, having a role in the anthrax mailings or suppression of the investigation given its connection to a former Zawahiri associate who had been supplied virulent Ames by the late Bruce Ivins).
The FBI was very confused, partly due to the compartmentalization of the investigation and partly because it was a difficult investigation. But eventually I turned the inconvenient lemons handed me into lemonade by getting years of free graphic arts done for me. (I really like free stuff).
This undercover spy who came to Syracuse later apologized for the bad scripts his handler was writing him that first year. But we then worked closely together on a daily basis for at least a couple of years and after that first year presented at a mysteriously funded conference in DC.
Right now, my friend, a former CIA intelligence analyst, is suing the FBI under FOIA for documents that will expose Amerithrax to have been wrongly concluded. Having it unsolved leaves the country at peril. I post on the subject at this blog under screen name “DXer” which means one who communicates wirelessly. (I got my ham license just so I could tease the FBI for never having found my secret ham radio shack).
I knew this nice undercover who came to Syracuse — who I consider a good friend — to be an undercover from the first day I met him. I have a pretty good source of intelligence working on Amerithrax, Mueller’s other national security matter that is unresolved.
Sometimes the FBI screws up and then just engages in CYA.
Sometimes it is a difficult mystery and the FBI should not be faulted for failing to solve it.
Sometimes both aspects are at play.
My friend, the former lead Amerithrax investigator Richard Lambert, says that the FBI is withholding a staggering amount of information exculpatory of the late USAMRIID scientist Bruce Ivins. He believes, absent a Congressional probe, it is exempt from production for national security and privacy reasons. In contrast, I think that enough information is available under the Freedom of Information Act that at least Bruce Ivins (who committed suicide) can be exonerated.
p.s. Now who’s with me?! Who is willing to go into Nine Mile Swamp looking for some hidden Loomis gang gold?
And who is going to help me find Dutch Schultz’s missing loot?
Ongoing Search For Dutch Schultz’s Missing Millions
https://www.treasuretracer.com/dutch-shultz/ongoing-search-for-dutch-schultzs-missing-millions/
DXer said
Was there really a spy inside the Trump campaign, as the president says?
The president’s claim of a “spy” inside his campaign has been dismissed as absurd, but the FBI has been known to send informants to speak to suspects.
by Ken Dilanian / May.18.2018 / 3:58 PM ET
https://www.nbcnews.com/politics/justice-department/was-there-really-spy-inside-trump-campaign-president-says-n875516
“The professor who met with both Page and Papadopoulos is Stefan Halper, a former official in the Nixon, Ford and Reagan administrations who has been a paid consultant to an internal Pentagon think tank known as the Office of Net Assessment, consulting on Russia and China issues, according to public records.
Two sources familiar with Papadopoulos’s account told NBC News he has described being summoned to England in September 2016 by Halper, who was offering to pay him to discuss energy issues involving Turkey, Israel and Cyprus, which was his area of expertise.
Papadopoulos told associates that Halper attended the meetings with his assistant, a young Turkish woman. Papadopoulos said he found Halper’s demeanor odd, and in retrospect believes Halper was working on behalf of an intelligence or law enforcement agency, the sources said.”
In an email to NBC News, Page said he didn’t find his encounters with Halper concerning. Page told the Daily Caller he met several times with Halper, including on Halper’s farm in Virginia. Halper’s father-in-law, Ray Cline, was the chief CIA analyst during the Cuban missile crisis.
“At the time, I never found his actions suspicious,” Page told NBC News. “He never offered me one cent. Just 2 foreign policy scholars having some discussions. That’s about all that I took it as.”
Papadopoulos also told associates he was approached over LinkedIn in July 2016 by Sergei Millian, a Belorussian-American businessman who has claimed business ties to Trump, and who also has been named by The Wall Street Journal and The Washington Post as a source for the notorious Christopher Steele dossier.
After Trump won the election, Papadopoulos said, Millian called him and said he assumed Papadopoulos would be working in the White House.
Millian wanted to pay Papadopoulos as a consultant at the same time, according to Papadopoulos, hunting for business opportunities for wealthy Russian clients. Papadopoulos told associates he felt such a relationship would have been illegal, and turned it down.
Comment:
Has NBC violated the law by naming the fellow? I don’t know.
Does it violate the law to name someone working for the Defense Clandestine Service as distinguished from the CIA? Without having looked, I don’t know.
I think such types are doing important work — we don’t want to make their job harder. Most people are just getting at the truth of a matter.
Politics should have no role in true crime or counterintelligence analysis.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
So: when a NYS Trooper offers to meet a school board member, as a 12 year old girl? When a police officer walks the street as a potential prostitute? When informants buy drugs?
When they offer political bribes (undercover)?
That is legitimate law enforcement.
Here, one issue relates to implanting in a political campaign. But I don’t see that even as an issue — Stefan Halper was NOT working for the campaign. He was plying a couple of low-level contacts, with Russian connections, with drinks. So he wasn’t “embedded”, or “implanted.” And even if he had been, there would be the issue of probable cause or reasonable suspicion. In short, he was just asking questions.
The Russia connection I find fascinating is the one at Trump Organization, Michael Caputo, the Upstate NY fellow who had lived 20 years in Russia and wrote the talking points for the Russia meeting. It was Moscow that released Halper’s name. Michael Cohen’s work with Putin oligarch’s over a Trump Tower in Moscow, without more, perhaps would have sounded alarm bells if known.
But there is a second issue relating to the Steele Dossier. There is an incongruity relating the Clinton campaign paying millions for the opposition research given that Steele (according to Moscow) was relying on operatives like Halper. Moscow would even say that Skripal (poisoned by nerve gas) was a Steele source and only was killed when he wrote Putin to say he wanted to come home.
So I think it is best that we not give ourselves over fully to any point of view given the uncertainties. As to Amerithrax, the best view is that Amerithrax in resolved and we don’t know who prepared or mailed the Fall 2001 anthrax. I’ve ventured that Yazid Sufaat made it and Adnan El-Shukrijumah mailed it.
As to Avenatti — which foolishly has come to dominate the Russia investigation — we should require that attorneys cut their expenses, buy fewer expensive watches, if the alternative is to leave in his wake such a troubled financial history.
As for Mueller, people can criticize him if they like but I don’t know anyone else who is better suited to the challenge. Maybe the key to go his good reputation is that he keeps his mouth shut.
One thing seems sure: We are entering a phase of Class IV rapids (rather than merely Class III). Some people will be falling out of the boat.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
Daniels’ lawyer: Cohen got $500K from Russian oligarch Viktor Vekselberg
Michael Avenatti provided no documentation for his claims, which he posted on Twitter
by Sarah Fitzpatrick, Tracy Connor, Tom Winter and Robert Windrem / May.08.2018
https://www.nbcnews.com/news/us-news/daniels-lawyer-cohen-got-500k-russian-oligarch-viktor-vekselberg-n872481
Comment:
Putting aside the issue of the Russian oligarch and whether it proves out — it is hotly disputed — what is one to make of the legal implication of these other payments?
In the event that President Trump is forced to resign in the light of these various revelations about the First Republic account for “Essential Consultants, LLC”, perhaps Vice-President Pence (if and when he assumes the Presidency) can force the production of the emails from Sept-October 2001 that the FBI relied upon in closing Amerithrax.
The President really missed the boat in not making the shrewd move of testing former FBI Director Mueller’s conclusion in Amerithrax. Giuliani in particular missed the boat given his familiarity with the matter.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
“Former agent claims FBI concealing evidence in anthrax case”
Apr. 20, 2015 – 5:37 – Richard Lambert spent years heading up the FBI’s anthrax investigation and is now suing the agency
http://video.foxnews.com/v/4184909385001/?#sp=show-clips
Does former lead Amerithrax investigator Richard Lambert grossly underestimate (what should be) the power of FOIA?
For example, take the issue of bloodhounds. Former FBI Agent Decker submitted a FOIA request for the documents on bloodhounds — work that he was centrally involved in and knows was done. Yet the FBI denied being able to find any records. Decker appealed. Then again the FBI reported they could not locate any documents. The bloodhound documents are not classified and not exempt from production.
Now the FBI claims it cannot locate any of the Sept 2001 and October 2001 emails to and from Ivins that it quoted and extensively relied upon in closing the investigation. That’s bullcrap. If the people tasked with finding the documents cannot find the documents, then new people should take over for them and do the work.
The emails should have been located and produced. If FBI cannot even find the documents relating to its extensive use of bloodhounds in Amerithrax, as an example, then how it can expect to locate someone who dropped an envelope into a mailbox years ago?
DXer said
When Ivins wrote these emails to Mara in September and October 2001, Ivins would regularly use his work computer for the emails.
They were specifically culled by Decker, Stanley and their colleagues at the DOJ and FBI from the production made by John Peterson at the USAMRMC and they need to be restored.
The FBI has no right to hide evidence exculpatory of Bruce Ivins. It is morally wrong.
Click to access Friend%20Deposition_Redacted.pdf
Q. Were you aware prior to reading the FBI
report that he was using his work computer to send
personal emails to Mara Lindscott and Pat Fellows?
A. Yes.
Q. How did you become aware of that over time?
A. He would tell us. After Mara left, he would
show us emails that he would send to Mara.
As far as Pat went, I mean, when she was
still working there in our office, they would go back
and forth kind of joking around via email, so it was
pretty obvious that he was emailing them personally.
Q. There have been some emails that have been
produced and reference in the FBI report that were
fairly lengthy, and in your observation while you were
working with him in fairly close quarters, did you see
him spending a lot of time sending emails?
A. Yes.
Q. And how much time, if you can quantify it,
would you estimate that he would spend on this type of
activity?
A. Well, specifically e-mailing Mara?
Q. Yes.
A. Several times a day.
Q. Okay.
DXer said
Exclusive: Guilt of ‘anthrax killer’ Dr. Bruce Ivins questioned on Deadly Intelligence
21st April 2018 April Neale
https://www.monstersandcritics.com/smallscreen/exclusive-guilt-of-anthrax-killer-dr-bruce-ivins-questioned-on-deadliest-intelligence/
Science Channel series Deadly Intelligence tonight looks at the case against Dr Bruce Ivins, the key suspect in the 2001 anthrax attacks — and whether he was framed in an FBI cover-up.
Ivins was an Army scientist and was believed to have been the so-called “Anthrax Killer”, but the series looks at new evidence and has interviews with medical peers who suggest something may have been amiss in the initial FBI investigation.
The anthrax letters, sent just after the September 11, 2001, terrorist attacks, killed five people and left more than a dozen ill. Ivins was the key suspect but, at age 62, he committed suicide.
His death on July 29, 2008, from a Tylenol overdose, came as federal prosecutors were just about to present their damning report to a grand jury.
The letters were filled with refined bacterial spores and mailed to Senate Democratic leaders and various news organizations.
Two Washington postal workers, a New York hospital worker, a supermarket tabloid photo editor in Florida, and a 94-year-old woman in Connecticut all were killed by the perpetrator’s actions.
Why Ivins? He had spent 30 years as a microbiologist at the Army’s biological research laboratory at Fort Detrick, Maryland. His job? He was trying to develop a better vaccine against anthrax.
But tonight you will hear from many experts who dispute his guilt, believing that Ivins was framed in an FBI cover-up.
Scientists like Dr. Paul Keim and Dr. Henry Heine on the episode speak up for Ivins, saying the contents of a tell-tale RMR 1029 flask that the FBI traced back to Ivins was actually shared with 20 labs.
There was reasonable doubt and a chance that Ivins was the victim of circumstantial evidence. But who was sophisticated enough to cultivate the deadly anthrax spores? Watch tonight to learn more.
Deadly Intelligence airs Sundays at 10 pm ET/PT on Science Channel
DXer said
Re: Former Attorney General Michael Mukasey in WSJ on Cohen, Mueller, Comey and Amerithrax. (By way of background, Leahy says is not really closed — and he doesn’t believe an Ivins Theory for a minute; former Amerithrax head Richard Lambert says FBI is concealing docs exculpatory of the late USAMRIID scientist, Bruce Ivins.)
The FBI should produce the documents sought in pending FOIA litigation.
Trump, Cohen and Attorney-Client Privilege
The protection has limits, but is it worth testing them over a possible campaign-finance offense?
https://www.wsj.com/articles/trump-cohen-and-attorney-client-privilege-1524005565
By Michael B. Mukasey
April 17, 2018 6:52 p.m. ET
After anthrax spores killed five people, infected 17 others, and showed up in envelopes mailed to U.S. senators and media organizations in 2001, the current special counsel, then director of the Federal Bureau of Investigation, spent years chasing and destroying the reputation of a microbiologist named Steven Hatfill, zealous in the belief that Mr. Hatfill was the guilty party. Another zealot, James Comey, then deputy attorney general, said he was “absolutely certain” no mistake had been made.
After Mr. Hatfill was exonerated—he received more than $5.5 million in damages from the government—Mr. Mueller then decided that another microbiologist, Bruce Ivins, was the culprit. When Ivins committed suicide, Mr. Mueller pronounced the case closed. A subsequent investigation by the National Academy of Sciences suggests Ivins too was innocent.
Mr. Mukasey served as U.S. attorney general (2007-09) and a U.S. district judge (1988-2006).
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
PostEverything
Perspective
How the FBI uses the Freedom of Information Act to track down whistleblowers
Laws designed to make information public shouldn’t be used to punish news sources.
https://www.washingtonpost.com/news/posteverything/wp/2018/04/09/how-the-fbi-uses-the-freedom-of-information-act-to-track-down-whistleblowers/?utm_term=.7e377a6db8cf
by Zack Kopplin April 9 at 6:00 AM
Zack Kopplin is an investigator at the Government Accountability Project, a whistleblower support nonprofit.
The FBI used a Freedom of Information Act request to track down a news organization’s source. (AP)
Late last month, the FBI arrested Terry James Albury, a longtime agent in its Minneapolis field office, for allegedly providing classified documents to the Intercept.
***
(Making a FOIA request to obtain documents with advice from a source is generally better for source protection than just releasing classified documents.) However, this strategy of disguising sources can’t work in some cases because agencies, including the FBI, regularly claim to be unable to find documents without having the exact name of the document, under the rationale that the request is overly broad.
***
The FBI probably considers this useful for counterintelligence.
“Counterintelligence officials at national security agencies are more or less obliged to investigate the unexplained appearance of classified information (such as classified document titles in a FOIA request) in the public domain,” said Steven Aftergood, who directs the Federation of American Scientists project on government secrecy. If a news organization sends a FOIA request to the government — especially to a security agency like the FBI — based on nonpublic information from a whistleblower, there is a chance that FOIA request could spark a hunt for their source.
The FBI should end any policy of using FOIA requests in counterintelligence investigations. “It is quite disturbing that [the FBI] are scrutinizing FOIA requests in an attempt to root out whistleblowers,” said Trevor Timm, executive director of the Freedom of the Press Foundation.
FOIA requests provide a government-approved channel to access information. Requesting documents through a FOIA request or through a Mandatory Declassification Review allows the government to redact information that could legitimately endanger national security. When a news organization makes a FOIA request for a document it already possess, it is acting appropriately, and allowing the government a chance to redact information that should legitimately remain private. Instead, the government is taking advantage of the fact that news organizations attempt to follow the rules by using the FOIA requests to go after their sources, while still withholding information that could legitimately be released.
Agencies, especially the FBI — which is one of the least transparent — stall requesters for years, even over trivial information, and only release redacted copies of documents without key information, even when they don’t have a legal right to withhold that information.
Albury’s arrest shows the need for the FBI to reevaluate its policy of myopic secrecy and the tools it uses in counterintelligence investigations. While tracking him down, the bureau crossed a red line that will sour relationships with journalists and whistleblowers, with negative consequences for everyone.
The classified documents in question, on their own, should concern anyone who cares about civil liberties. A set of policies and procedures, the documents outline how the FBI can access journalists’ phone records without search warrants or subpoenas approved by a judge. This is despite a 2013 promise by then-Attorney General Eric Holder to reform rules about spying on reporters after the Department of Justice secretly obtained phone records from over 100 Associated Press journalists. Holder’s reforms only applied to subpoenas in criminal investigations.
The documents also identify loopholes in FBI rules allowing undercover agents and informants to infiltrate and spy on members of churches, political organizations and universities — something, the Intercept said, that even the FBI acknowledged was a “risk to civil liberties.” Additionally, they reveal the FBI was targeting surveillance based on race and religion.
But worse than the material Albury turned over was the tool the FBI used to go after him for it: the Freedom of Information Act.
[ The federal government no longer cares about disclosing public information ]
The FBI used as evidence against Albany FOIA requests made by the Intercept. According to an affidavit for a warrant obtained by Minnesota Public Radio, “on or about March 29 and 30, 2016, a presumed U.S. Person representing an online media outlet … made two separate requests for copies of specific documents from the FBI pursuant to the Freedom of Information Act.” The FBI is able to tell who accesses documents on its network. After the Intercept published the documents, the timing of the earlier FOIA request allowed the FBI to pinpoint Albury as a likely source. “Albury accessed the document on February 19, 2016, approximately one month and ten days prior to the FOIA request” and made images, the affidavit said.
The Government Accountability Project, the whistleblower-protection nonprofit where I work, suggests news organizations protect sources when making FOIA requests by disguising insider knowledge as part of broader requests for data and documents that aren’t specifically tied to the source’s work or job responsibilities. (Making a FOIA request to obtain documents with advice from a source is generally better for source protection than just releasing classified documents.) However, this strategy of disguising sources can’t work in some cases because agencies, including the FBI, regularly claim to be unable to find documents without having the exact name of the document, under the rationale that the request is overly broad.
In this case, the Intercept wasn’t able to avoid revealing it had an inside source. “The [Intercept’s] requests contained specific information identifying the names of the particular documents that had not been released to the public,” the affidavit said.
The FBI probably considers this useful for counterintelligence.
“Counterintelligence officials at national security agencies are more or less obliged to investigate the unexplained appearance of classified information (such as classified document titles in a FOIA request) in the public domain,” said Steven Aftergood, who directs the Federation of American Scientists project on government secrecy. If a news organization sends a FOIA request to the government — especially to a security agency like the FBI — based on nonpublic information from a whistleblower, there is a chance that FOIA request could spark a hunt for their source.
The FBI should end any policy of using FOIA requests in counterintelligence investigations. “It is quite disturbing that [the FBI] are scrutinizing FOIA requests in an attempt to root out whistleblowers,” said Trevor Timm, executive director of the Freedom of the Press Foundation.
FOIA requests provide a government-approved channel to access information. Requesting documents through a FOIA request or through a Mandatory Declassification Review allows the government to redact information that could legitimately endanger national security. When a news organization makes a FOIA request for a document it already possess, it is acting appropriately, and allowing the government a chance to redact information that should legitimately remain private. Instead, the government is taking advantage of the fact that news organizations attempt to follow the rules by using the FOIA requests to go after their sources, while still withholding information that could legitimately be released.
Agencies, especially the FBI — which is one of the least transparent — stall requesters for years, even over trivial information, and only release redacted copies of documents without key information, even when they don’t have a legal right to withhold that information. That’s what appears to have happened with the Intercept’s requests.
The Intercept, which already possessed the full version of the documents, decided they were newsworthy and could be made public safely, something other transparency advocates agreed with. “Nothing could even remotely be construed as ‘damaging’ to national security if it were public,” Timm said about the document showing rules for spying on journalists.
Still, publishing documents obtained through FOIA requests is a better option.
In this case, if the FOIA request hadn’t prompted an investigation into who the Intercept’s source was, publication of the documents launched it immediately anyway. The FBI could have controlled the release of information. Instead, it tracked the Intercept’s source, in part because the Intercept had tried to work through the system. Instead of covering up embarrassing documents and using FOIA requests for counterintelligence investigations, the FBI should work to be transparent and only redact actual national security information.
If news organizations have to worry about the federal government prosecuting, firing and harming their sources because of a FOIA request they sent, they will obviously start publishing them without giving the government the opportunity to protect valid national security secrets.
Comment:
Although this raises an interesting issue, and I certainly respect the good work the GAO does, I can’t say I agree.
Everyone should just play by the rules.
For example, if you are a former FBI agent selling a book for $38, and the Amazon rules for review prohibit your proofreader from reviewing it, then tell your proofreader to remove his review. It otherwise greatly reduces your credibility. You no longer represent the rule of law.
From the point of view of an outside blogger, it commonly is impossible to know what is classified. For example, the FBI and R. Scott Decker evidenced massive confusion by claiming that virulent Ames was only stored in Building 1425 — when it was common knowledge among USAMRIID scientists and FBI that it was also stored in 1412 — to include in the lab ( Ezzell/Abshire) of the FBI’s own scientist collecting the samples.
So should I allow the FBI to mislead the public? Or, for example, do I obtain a copy of the inventory of Flask 1029 (from GA) showing it was stored in 1412. I commonly would only know if it had been stamped classified when the document comes under the transom.
I don’t know of any document or info I’ve ever received that was classified. For example, the DIA arranged to have the correspondence between Rauf Ahmad and Ayman Zawahiri declassified and then there was a brilliant “Science” article (by JB Petro and a co-author) that went so far as drafting a FOIA request for it. (They have reason to be proud of that article).
As for interviewing Rauf Ahmad and Yazid Sufaat, that was my right as a citizen under the First Amendment.
Unfortunately, when the government might be embarrassed the documents never get declassified.
Is the gossip around the water cooler but what really happened classified? Beats me.
As for Dillon’s federal lawsuit under FOIA, the FBI should produce the emaills that it quoted and relied upon. They are highly relevant under the FBI’s own theory of the case. They are not classified.
The fact that some federal undercover did my graphics is way beyond my paygrade to understand under the applicable rules.
I only know that any mistakes are my own.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
The FBI should comply with FOIA in connection with Robert Mueller’s earlier Amerithrax investigation.
Special Counsel Robert Mueller previously oversaw the largest “whodunnit” in history: the Amerithrax case, involving deadly letters mailed in September and October 2001 to two Senators and several newspapers. In light of the past and possibly future indictments in the Russia investigation, the public deserves to be better able to assess former FBI Director Mueller’s resolution of the Amerithrax investigation.
The former head investigator, Richard Lambert, has publicly said that the FBI is concealing a wealth of evidence in the case that is exculpatory of the late USAMRIID scientist Bruce Ivins. After his suicide, the FBI claimed that Ivins had been the anthrax mailer. A federal lawsuit has been filed by a researcher, Kenneth Dillon, seeking the emails that the FBI quoted and relied in its Amerithrax Summary that the FBI released in closing the case. The FBI has failed over the course of years to produce the emails being withheld. The FBI has never claimed that the emails were exempt from production. The FBI should produce the emails it quoted and relied upon — particularly the emails from September and October 2001 — so that the public can better assess whether the Amerithrax investigation was correctly resolved.
The emails sought were quoted and central to both the FBI’s Amerithrax Summary released in closing the case, and in an Affidavit in support of the search of Bruce Ivins’ residence. The emails provably existed and were central to the FBI’s cotton-candy and still widely disputed Ivins Theory. It should be presumed that the FBI did not destroy the emails as that would constitute spoliation of evidence.
According to documents produced to the National Academy of Sciences, both the FBI and the CIA, in testing, detected the Ames strain at an Al Qaeda lab in Afghanistan. The Ames strain was the genetic strain used in the mailings. After seeing that he was on Facebook, I contacted Al Qaeda’s anthrax lab director, Yazid Sufaat, after his unexpected release from a Malaysian prison in December 2008. I asked him what strain of anthrax he had been using in developing an anthrax weapon for Al Qaeda. Although otherwise amiable, he pled the Fifth Amendment. (In a separate matter, he later was thrown back in jail for concealing evidence of terrorism). We should have greater clarity in the Amerithrax investigation given that it has turned out that virulent Ames anthrax was sent around the world willy-nilly. Researchers were sending out Ames anthrax that they thought was effectively irradiated but actually remained virulent.
The FBI should comply with the Freedom of Information Act and state the exemption by which they are withholding the documents. If no exemption applies, and the investigation is in fact closed, the documents should be produced so that the American public can judge whether the FBI fairly characterized the emails that it treated as so central to its theory.
Bruce Ivins’ defenders report that he had an alibi for the days leading up to the mailing and the dates of mailing. The FBI’s theory is that Bruce Ivins pulled an all-nighter and that on the occasion of each mailing, instead of sleeping, he left his family of three in the small home to take the 7 hour round-trip from Frederick, MD to Princeton, NJ. It is not disputed that Ivins reported back to work early each of the next mornings. Ivins’ time in the bio-level 3 lab has been explained — by documents withheld by the FBI but obtained from the Army over the course of years. The documents corroborate Ivins’ claim that he was tending to small animals who had been challenged by injected anthrax. Checking the animals was a one-person job and the associated tasks took the couple of hours reflected by his time records on those days.
To borrow the phrase of President Trump’s defenders in the unrelated Russia investigation, the FBI’s Ivins Theory, by many learned accounts, was a big “nothing burger.” Whatever your view of the Russia investigation — and emotions run high — we should determine whether the FBI’s “Ivins Theory” was based on highly selective presentation of evidence as former lead Amerithrax investigator Richard Lambert claims. Did the prosecutors make a silk purse out of a sow’s ear? The rule of law requires that the emails be produced so that observers may “get on the same page.” Any necessary redactions required by the Freedom of Information Act still may be made.
DXer said
Former lead Amerithrax investigator Richard Lambert quoted today: “The only avenue for remedying the government’s wealth of material omissions in this case would be through a congressional inquiry.”
Posted on February 27, 2017
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
October 18, 2016 filing of amended complaint by former lead Amerithrax investigator Richard Lambert, relating to fingering and railroading of Bruce Ivins in face of daunting undisclosed exculpatory evidence
Posted on November 18, 2016
Sen. Patrick Leahy (D-Vt.): “If you screw up in government, just mark it top secret.”
Posted on March 17, 2014
DXer said
Another conservative publication is writing today about the Amerithrax investigation.
It is important to keep in mind that reasonable people can disagree about the resolution of a difficult whodunnit.
Just because people disagree about a difficult true crime mystery does not mean that the person has done anything wrong.
It’s just that the rule of law requires that under FOIA the emails quoted and relied upon in the Amerithrax Summary be produced under FOIA.
Certainly, putting aside the partisan emotions associated with the Russia investigation, we can all agree that the FBI should produce the emails from Sept-October 2001 that it quotes and relies upon in its Amerithrax Summary.
And if the FBI persists in saying that they cannot find them, they should try harder. Let me help: The DOJ/FBI officials had them culled from my friend John Peterson’s production (at USAMRMC) so it is as simple as contacting John and asking for them.
The article discusses Hannity’s view of Amerithrax.
Exposing Robert Mueller: Investigating the Investigator
Posted by: Jim Clayton in Opinion, Trending Commentary March 22, 2018
https://www.conservativedailynews.com/2018/03/exposing-robert-mueller-investigating-the-investigator/
“We can see how he works if we look at how Mueller ran his second-most important investigation as FBI Director. In September of 2001, an entity began mailing anthrax through the US Postal system, hitting such prominent targets as NBC and Senator Daschle’s office. The terrorist attacks killed five and left others hospitalized. The world panicked.
Under Mueller’s management, the FBI launched an investigation lasting ten years. They now brag about spending “hundreds of thousands of investigator hours on this case.” Let’s take a closer look at Mueller’s response to understand the context of the investigation — who his people investigated, targeted, and found guilty.
The investigators hypothesized that the attacker was a lonely American who had wanted to kill people with anthrax for some undefined time period, but then became “mission-oriented” following 9/11 and immediately prepared and mailed the deadly spores while pretending to be a Muslim.
Mueller’s FBI honed in on Steven Hatfill as the culprit — a “flag-waving” American, who had served in the Army, then dedicated himself to protecting America from bioterrorist threats by working in the United States Army Medical Research Institute of Infectious Diseases.
There was no direct link from Hatfill to the attacks, by the FBI’s own admission, and the bureau never charged Hatfill. The FBI did, however, spy on, follow, and harass him non-stop for years. The Department of Justice also publicly outed Hatfill as the possible terrorist.
While Hatfill’s dignity and life was being trampled on by America’s secret police, Mueller took a stand. But on a different topic. He made front-page news for threatening President Bush he would resign over NSA policy. All while his own team was trampling on the rights of an American in the FBI’s largest-ever investigation.
Hatfill successfully sued the government for its unlawful actions. He won almost $6 million dollars.
The investigation was an unmitigated disaster for America. Mueller targeted an American citizen without showing a direct link. He was guilty of doing this with other Americans as well. …
Now he’s running the Trump-Russia investigation.”
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
The Vault has 123 pages of interviews with Ivins at Amerithrax Part 29 of 59 (attached). Pages 71-72 are an FD-302 interview of March 18, 2004 that contains a passage identifying some key emails for Sept. 17-18, Oct. 5 etc. Page 72 has at the top: 279A-WF-222936-USAMRIID, 279A-BA-C101392, 279A-WF-222936-POI. So if the FBI truly — because of inadequate management control — cannot find the emails from September and October 2001, it should start by going to the evidence folder associated with that 302.
DXer said
This February 8, 2018 Federalist article was linked today by Drudge.
Robert Mueller Has Been Botching Investigations Since The Anthrax Attacks
Special counsel Robert Mueller’s investigation into the anthrax attacks following 9/11 — one of the most important of his career — did not go well, to say the least.
http://thefederalist.com/2018/02/08/robert-mueller-botching-investigations-since-anthrax-attacks/
The window is closing on President Trump’s ability to order the FBI to comply with FOIA. FBI Assistant General Counsel Andrew Sand, I believe, is the one overseeing the withholding (with no exemption cited) the withholding of the emails. AUSA Peterson reports (as I am told third-hand) that he is deferring to FBI counsel Sand.
If President Trump resigns upon an indictment of his son and/or son-in-law, Vice-President could at least encourage the FBI’s compliance with FOIA in light of his previous familiarity with the investigation.
DXer said
Drudge today is linking a May 2017 article on the anthrax case.
When Comey and Mueller Bungled the Anthrax Case
By Carl M. Cannon
RCP Staff
May 21, 2017
https://www.realclearpolitics.com/articles/2017/05/21/when_comey_and_mueller_bungled_the_anthrax_case_133953.html
DXer said
Upon clarification, it turns out (or is reported) that AUSA Benton sent FBI Counsel Anthony Sand shortly after receiving the early February 2018 letter.
And judging from his top credentials and experience — to include his many years of distinguished service in the US Navy — they don’t come more stand-up than Attorney Sand.
But my intelligence source advises me that FBI Counsel Anthony Sand has never contacted USAMRMC official John Peterson to obtain a copy of the emails that were culled by DOJ and FBI officials from the production.
John Peterson would provide them by email to a large group of officials who would take forever vetting each batch — after I repeatedly complained, the DOJ and FBI officials finally were put on a two-week turnaround.
But then when the case was closed, the culled emails should have been restored to production — so that USAMRMC could upload them to the database.
The buck stops with Anthony Sand and Dillon needs to do all he can to help Attorney Sand with location information to provide to FBI personnel actually having hands-on access to the documents.
The location information for the emails has previously been provided over the course of months and years of the pendency of this request — but it needs to be gathered up and shared with FBI Counsel so he is able to provide guidance to personnel still withholding them from production.
For example, the FBI Vault refers to “five hard copies of emails sent and received on September 17 and 19, 2001 and October 5, 2001.”
“These original documents are maintained in 1A section of the file.”
Note the significance of the September 17, 2001 email that was culled from production and produced only when I specifically identified and complained of its withholding.
The federal court judge will be able to see the location and number of emails being withheld by having them produced in this sequentially numbered format.
Throughout my childhood, I had a plaque from the USS Accoceek hanging over my head — “NOT IMPOSSIBLE, JUST DIFFICULT.”
We should all try to be less difficult. Even Gibbs.
DXer said
errata – “Upon clarification, it turns out (or is reported) that AUSA Benton sent FBI Counsel Anthony Sand shortly after receiving the early February 2018 letter.”
Andrew Sand, not Anthony.
DXer said
Andrew Sand is so smart — and especially in light of his experience in the US Attorneys Office and in the National Security Division — that he can understand the gaps in evidence relating to the FBI’s Ivins Theory.
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
Here is an example of an email that was pulled from production — when the emails were produced (upon vetting by the DOJ and FBI officials).
It was then later produced only upon a requested physical search of hard copy documents of Ivins office.
It relates specifically to a time when the FBI theorized that the reason for Ivins’ late hours was to make a weaponized anthrax — when it actually shows he had been directed to clean up. (The request to clean up the place had been made by none other than the distinguished scientist who later served as the FBI’s lead consulting genetics expert on the 4 morphs). The expert presented the findings before the NAS on the morphs. (That expert, by the way, PW, has explained that she thinks Ivins is innocent). The Queen of the Universe was a playful reference — and as I recall she had a T-shirt made up with the phrase that she showed at Bruce’s funeral. (Internet poster’s Lake’s interpretation that this was an angry e-mail was very uninformed).
“Ex-FBI official: Agency is hiding evidence in anthrax case,” Chicago Tribune, April 15, 2015
http://www.chicagotribune.com/news/nationworld/chi-fbi-hiding-evidence-anthrax-case-20150415-story.html
FoxNews, “Former agent claims FBI concealing evidence in anthrax case,” April 20, 2015
http://video.foxnews.com/v/4184909385001/?#sp=show-clips
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
DXer said
Off-topic:
FBI, treasure hunters digging in Elk County, Pa.
by Bridget McClure
https://mail.aol.com/webmail-std/en-us/basic
Agents from the Federal Bureau of Investigation (FBI), Department of Conservation and Natural Resources (DCNR) and local treasure hunters were digging in Elk County Tuesday. (WJAC)
DENTS RUN – Agents from the Federal Bureau of Investigation (FBI), Department of Conservation and Natural Resources (DCNR) and local treasure hunters were digging in Elk County Tuesday.
The agencies were set up off Route 555 in the community of Dents Run in Benezette Township.
Public Affairs Specialist for the FBI Carrie Adamowski could only confirm that FBI agents were conducting court-authorized law enforcement activity.
6 News cameras also caught Dennis and Kem Parada on site, owners of Finders Keepers.
Finders Keepers is a lost treasure locate and recovery service.
In 2008, Finders Keepers told 6 News the gold in Dents Run is from the Civil War era.
Parada said Abraham Lincoln ordered a gold shipment to help pay union soldiers. He said the wagon left West Virginia with 50 pounds of gold, and came right through Elk County.
In 2012, Finders Keepers claimed they found the gold, but federal law prevented them from digging it up.
The FBI did not allow Finders Keepers to speak with 6 News Tuesday, but residents who live in the area said they believe officials are searching for the lost gold.
Comment:
History, clue-solving, buried treasure, nature, FBI … now these are the elements of a rousing good tale. The only thing that it is missing — gangsters, terrorists or thieves and a dramatic ending.
Good luck to the FBI! (It may not seem it given that I disagree with the agency’s resolution of Amerithrax, but I’m a big fan of the FBI and always have been). I hope they someday do more digging and less head-scratching in Isabella Gardner art heist and in the case of Dutch Schultz’s missing millions. (Hoover was on the hunt for Dutch’s missing millions in that income tax evasion case).
Success in such a case would be great for recruitment and inspiring childhood dreams. It certainly would be more fun than constantly being subject to second-guessing by amateur true crime buffs. The attraction of treasure hunting is that until you actually dig up the the gold (or whatever), there is no basis for claiming that your theory is valid.
It also is good training for intelligence analysis — and a good way of testing that the sharing of open source intelligence is the best way to arrive at a successful solve of a difficult mystery.
Transparency and disclosure of documentary evidence is the principled way to go — not the usual CYA bureaucratic BS spin.
Unfortunately, in this neck of the woods, cold weather and snow thwarts getting out and looking for the gold for much of the year.
Dutch Schultz in Fairfield County, Connecticut in 1935 : his horses, his hiding places, and his missing millions | Ross Getman and Grace Getman
http://www.blurb.com/search/site_search?search=Dutch+Schultz+missing+millions
DXer said
Reason not to poke fun of the FBI in this sort of search is that it would deter active searching/digging for better documented caches.
… so long as they replace all divots.
Union gold legend lives on
Treasure hunters say Civil War bullion lies buried in Elk County
http://www.post-gazette.com/frontpage/2008/04/06/Union-gold-legend-lives-on/stories/200804060265
Mr. Borawski wrote there was “no credible evidence … to support any conclusions that a lost Federal gold bullion shipment from the Civil War was ever located on state forest lands in the vicinity of Dents Run, Pa., or the location Mr. Parada insists is the resting place of the lost gold cache.”
***
Mr. Parada contends the state is blocking his exploration because it wants to unearth the gold itself. But DCNR press secretary Chris Novak denies that allegation, noting that DCNR officials don’t even believe the legend.
***
“There’s no documentation, description, letter, official report, no paper trail,” the historian noted. Indeed, he said, Union Army records have no listing for a Lt. Castleton.
But Helen Hughes, of the Elk County Historical Society, said she believes the legend of lost gold. Still, she noted that country residents scoff when someone claims, as folks periodically do, that he knows the location of the treasure.
“What happened to the gold is a mystery,” she said. “People in the county are not out with shovels looking for it. Nobody’s ever going to find it.”
DXer said
FBI at site where Civil War gold rumored to be buried
Mar 16, 2018 Updated 7 min ago
Dozens of FBI agents, along with state officials and members of a treasure-hunting group, trekked this week to a site in remote northwestern Pennsylvania, where local lore has it that a Civil War gold shipment was lost or hidden during the 1863 Battle of Gettysburg.
***
A department spokesman said Friday that the group previously asked to excavate the site but elected not to pay a required $15,000 bond.
Comment: The searchers should have been required to pay the $15,000 bond and it shouldn’t take the presence of more than one or two FBI — at most, a small handful of — agents.
It would be interesting to know if forensic work led to any sort of corroboration of the searcher’s theory. The skeletons, without more, were hardly dramatic evidence.
DXer said
The emails were identified by date a month ago to AUSA BENTON G. PETERSON. If he didn’t bother to provide the letter to FBI (as reported third-hand to me) in some sort of “law office failure”, then he is the individual responsible for the FBI not producing them.
If he DID provide the letter to the FBI, the person who received it and did not have the emails pulled is responsible.
DXer said
The 302 interview of Bruce Ivins on March 18, 2004 (279A-WF-222936-USAMRIID) contains the copies of music lists for the church where he performed on September 16, 2001 and October 7, 2001 and an email detailing some of IVINS’ Red Cross activities during the fall of 2001.
279A-WF-222936-USAMRIID, 279A-BA-C101392, 279A-WF-222936 POI
03/18/2004, Page –2-
Click to access 847443.pdf
DXer said
FBI FOIA head Dave Hardy has always refused to expedite Amerithrax FOIA requests on the claimed basis of a lack of public interest in whether or not Amerithrax was correctly decided.
Mr. Hardy has misapplied the standard — in fact, Scott Shane of the New York Times long ago requested the same documents being withheld (to include Ivins emails and Lab Notebook 4010).
On information and belief, the DOJ and FBI officials culled the key emails being relied upon by the FBI in its controversial “Ivins Theory” from production — in written instructions by email to USAMRMC official John Peterson. Given that the emails have been knowingly withheld from production for the past half decade of continued pressing for the emails, there should be an investigation by the Postal Service and DOJ Inspector General about the continued wrongful withholding of these documents.
The DOJ had justification for shredding the civil depositions of Patricia Fellows or Mara Linscott. [Or at least we know the DOJ shredded the depositions and they are not available to be produced]. But it has no justification for the continued withholding of all the emails it quoted and relied upon in its Amerithrax Summary, the lengthy document in which it spun its controversial and disputed Ivins Theory. It was on the basis of that memo that the FBI closed the Amerithrax case. Those emails have not been shredded like the depositions — that would be criminal. No FBI or DOJ official would have done that.
Robert Mueller Has Been Botching Investigations Since The Anthrax Attacks
Special counsel Robert Mueller’s investigation into the anthrax attacks following 9/11 — one of the most important of his career — did not go well, to say the least.
http://thefederalist.com/2018/02/08/robert-mueller-botching-investigations-since-anthrax-attacks/
October 18, 2016 filing of amended complaint by former lead Amerithrax investigator Richard Lambert, relating to fingering and railroading of Bruce Ivins in face of daunting undisclosed exculpatory evidence
Posted by Lew Weinstein on November 18, 2016
Former lead Amerithrax investigator Richard Lambert quoted today: “The only avenue for remedying the government’s wealth of material omissions in this case would be through a congressional inquiry.”
Posted by Lew Weinstein on February 27, 2017
Tom Ridge, former Homeland Secretary (from ’03-’05), this week said that “al-Qaida did experiments on anthrax in animals” — did AQ use the “Ames strain” like Dr. Garvey reports the CIA detected at the Afghan lab?
Posted on November 15, 2015
DXer said
Cornstarch in Letter to Donald Trump Jr. Causes Scare
By BENJAMIN MUELLER
FEB. 12, 2018
investigators later determined was cornstarch
The investigation into the letter on Monday was being led by the New York Joint Terrorism Task Force — not because investigators believed it was an act of terrorism, but because the task force tends to take the lead on white powder threats.
Comment: It is a pretty stupid and pointless crime — odds are that the perpetrator will be caught.
There have been advances in technology involving paper, copy machines, ink, touch DNA, postal processing, and more — you know, all the forensics that pointed away from Bruce Ivins.
The FBI Lab didn’t even tell the lead investigator, Lambert, that there DNA was found on one of the 2001 envelopes. Lambert was pretty pissed.
Given that it was a scientist working in R. Scott Decker’s FBI unit who made a dried powder out of Ivins’ Flask 1029 (and the FBI incredibly has never acknowledged this fact in all these years), the DNA that was found was not the sort of thing that should have been concealed, even it were to turn out to have been the DNA of an undisclosed person who was working for the FBI.
PHOTOCOPIER TONER: In the hundreds of pages of photocopied exemplars taken from Dr. Bruce Ivins’ home and office, FBI Laboratory Experts determined that there was not a single piece of paper photocopied by him in which the same photocopy toner was used as in the letters containing the mailed anthrax. FBI should produce the laboratory reports to GAO on the photocopy toner used by the machine used to copy the letters without further delay.
Posted by Lew Weinstein on March 9, 2012
the DOJ knows Dr. Bruce Ivins did not use the copier they accuse him of using … to not say so is an injustice perpetrated by those officials, for which all associated should be held accountable … President Obama must support a full review of the FBI’s failed anthrax investigation
Posted by Lew Weinstein on March 17, 2010
GAO: Doesn’t the FBI’s photocopy toner report EXCLUDE the make and model of photocopier used at USAMRIID but INCLUDE the make and model used in the Maryland KINKOS so often used by the hijackers in August and September 2001?
Posted by Lew Weinstein on January 24, 2012
DXer said
“This story has been corrected to show the envelope was sent to Vanessa Trump’s mother’s apartment, not hers.”
THE ASSOCIATED PRESS (JAKE PEARSON)
https://www.bloomberg.com/news/articles/2018-02-12/urgent-police-donald-trump-jr-s-wife-exposed-to-white-powder
Hoax attacks using white powder play on fears that date to 2001, when letters containing deadly anthrax were mailed to news organizations and the offices of two U.S. senators. Those letters killed five people.
DXer said
Suspicious Package Scare Hospitalizes Trump Jr.’s Wife: Police
Feb. 12, 2018, at 1:34 p.m.
https://www.usnews.com/news/top-news/articles/2018-02-12/wife-of-donald-trump-jr-exposed-to-white-powder-hospitalized-nypd
U.S. authorities have been on alert for mail with white powder in it since 2001, when envelopes laced with anthrax were sent to media outlets and U.S. lawmakers, killing five people.
***
Donald Trump Jr., the president’s eldest son, has been in the public eye for his role in 2016 meetings with a Russian attorney and others where the Trump campaign was offered potentially damaging information about Democratic rival Hillary Clinton.
Congress has held probes into those meetings and whether they were part of a Russian campaign to influence the 2016 U.S. presidential election.
Russia denies trying to influence the election. Trump dismisses any talk of collusion.
In 2016, white powder, which also proved harmless, was sent to the home of Eric Trump, Trump Jr.’s brother.
Robert Mueller Has Been Botching Investigations Since The Anthrax Attacks
Special counsel Robert Mueller’s investigation into the anthrax attacks following 9/11 — one of the most important of his career — did not go well, to say the least.
http://thefederalist.com/2018/02/08/robert-mueller-botching-investigations-since-anthrax-attacks/
DXer said
Note that the author, Richard Lambert, has said that the FBI is withholding a staggering amount of factual information that is exculpatory of the late Bruce Ivins. Thus, the public interest in favor of that factual information is very compelling. It will not deter future deliberative process — it will merely deter withholding exculpatory information in the future.
For example, was the Ames strain of anthrax detected in Afghanistan by both the FBI and CIA? (Yes.) That concerns a factual matter.
As to Ivins, what did the September 21, 2001 to Nancy Haigwood email being withheld say? That concerns a factual matter and is addressed in the Ivins section. it is not a deliberative matter.
Same with the September 26, 2001 and October 3, 2001 email to Mara Linscott being wrongfully withheld. That concerns a factual matter and should be disclosed. It is not a deliberative matter.
The FBI should submit the outline and Ivins section to the District Court and the court can simply take a magic marker and cross out the material that is predicisional and deliberative rather than factual.
On the question of exhibits, that material is factual, not predecisional and deliberative. For example, all of the forensics were exculpatory of Bruce Ivins but those factual reports are being withheld.
So the approach is pretty straightforward — a judge’s clerk and a Sharpie magic marker would serve the public interest well. Dillon is interested in “Just the facts, ma’am.”
For predecisional stuff, we have the books written by Vahid Majidi and R. Scott Decker, which lay out their predecisional thinking in depth. Decker is charging $38 for his selective, self-serving spin — god forbid that the FBI would comply with FOIA so that the American success can have access to the factual information that is being wrongfully withheld.
We are not interested Richard Lambert’s predecisional recommendations — we are interested only in interested in the facts that Vahid Majidi and R. Scott Decker have hid from the public and refuse to disclose in their selective presentation of the factual evidence.
__________________
FN/
ii. Are the Records Deliberative?
https://www.rcfp.org/federal-foia-appeals-guide/exemption-5/ii-privileges-incorporated-exemption-5/deliberative-process-1
A document is deliberative only when it “makes recommendations or expresses opinions on legal or policy matters.”69 It must be part of the “give-and-take” of the agency’s decision-making process.70 For that reason, records are “deliberative” only when they “reflect the personal opinions of the writer rather than the policy of the agency.”71 One relevant consideration is “whether the document is recommendatory in nature or is a draft of what will become a final document.”72
Where possible, you should argue that the material being withheld is purely factual, as courts have held that “[f]actual material that does not reveal the deliberative process is not protected by this exemption.”73
For example, a court rejected as “tenuous” an agency’s claim of privilege for the raw data underlying a study of goshawk nests on the basis that its release “might result in humans disturbing nesting goshawks which might affect or even invalidate [the] study which mightultimately affect the management decisions of the Forest Service.”74 The court held that since the requested data was not “a recommendation,” “subject to alteration on further review,” or “selective” facts, it did not “expose the deliberative process.”75 Similarly, another court held that documents containing “no more than summaries or graphical representations of purely statistical data” were not “deliberative” for Exemption 5 purposes.
However, in appealing on the ground that the material sought is purely factual — and therefore unprotected — material, you should note that the factual material must appear in the document “in a form that is severable without compromising the private remainder of the documents.”77 ***
in another case, a court ordered an agency to release the “statements of fact” contained in a report that were severable from “conclusions, recommendations, or opinions.”80 In arguing that facts are severable from a document, you should explain how releasing those facts would not reveal agency judgment calls or deliberations.
Some other factors courts assess in the context of the deliberative process privilege include “whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency” and “whether the document is deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another.”81 You should argue that the document does not contain information of a “candid,” “personal,” and/or “deliberative” nature, and that its release would not stifle agency decision making under any circumstances.
69 Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975).
70 Id.
71 Morley, 508 F.3d at 1127 (quoting Coastal States Gas Corp., 617 F.2d at 866) (internal quotation marks omitted).
72 Coastal States Gas Corp., 617 F.2d at 866.
73 Morley, 508 F.3d at 1127 (quoting Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983),vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) (internal quotation marks omitted)).
74 SW Ctr. for Biological Diversity v. U.S. Dep’t of Ag., 170 F.Supp.2d 931, 940 (D. Ariz. 2000).
75 Id. at 941.
76 See Ethyl Corp., 25 F.3d at 1249.
77 EPA v. Mink, 410 U.S. 73, 91 (1973), superseded by statute, Freedom of Information Act, Pub. L. 93-502, 88 Stat. 1651 (1974).
DXer said
Too close for comfort
Nancy Haigwood, director of the Oregon National Primate Research Center, describes her encounters with anthrax suspect Bruce Ivins.
https://www.nature.com/news/2008/080821/full/4541039a.html
“Why did you link Ivins to the anthrax attacks?”
“I had been getting regular e-mail updates from him. In November 2001, two months after the attacks, he sent out e-mails and photos of himself working with anthrax at the Fort Detrick lab.”
“Did the FBI ask you to meet with Ivins and wear a hidden recording device?”
“Yes. I came close to setting a meeting up. I was going to have lunch with him when visiting Washington DC.”
“Do you have any doubts that Ivins was behind the anthrax mailings?”
“I have not seen all the evidence. But I have read the October 2007 affidavit to search his house. It tied the mailed anthrax spores to Ivins’s flask. I don’t think he intended to kill people, but to scare them. Now I know he stood to gain from business from his work.”
“What is the most significant evidence?”
“The genetic evidence. ..”
“All this piles up. But the mailings from a box near the KKG house in Princeton, New Jersey, that was the icing on the cake — a diabolical little twist that is so Ivins.”
“What should happen next?”
“I would like to see a scientific paper published on this. I have no reason to doubt the FBI; I met a half-dozen agents, I got to know two very well. But the scientific community needs to see all the data. * [One of the agents was Dellefera who quoted and relied upon the September 21, 2001 email wrongfully being withheld by the FBI].
Comment: This is tantamount to linking him with murdering kittens because he sent out pictures of cute kittens. The genetic evidence doesn’t link Ivins to the crime any more than the hundreds of others who had access to the genetically identical Ames. She should have known that.
Compare her opinion to the opinion of the genetic experts who were relying on the science rather than angling for a muli-million dollar reward.
See all the data? Heck, the FBI won’t even let us see the September 21, 2001 email to her. We’ve seen the November 14, 2001 email and it doesn’t support his guilt in the slightest. Instead it reveals her spin and assumptions to evidence a serious hostility and bias toward Ivins dating to over-the-top pranks he had pulled on her in the past.
Dr. Haigwood’s eagerness to spin Ivins’ guilt based on the September 21, 2001 and November 14, 2001 emails in light of the FBI’s decades-old unwillingness to provide the September 21, 2001 email is outrageous. The FBI were using her to spin Ivins guilt — and he wasn’t around to defend himself. So the least the FBI could do is make the document itself available.
DXer said
The evidence relied upon by Thomas Dellafera in concluding that Sacramento State alumt Yazid Sufaat work with the anthrax at the Afghanistan lab was not responsible for the anthrax mailings?
It dates to a behavioral profile filed in early Fall 2001.
He says he was under a lot of pressure to solve the case.
Okay, then why didn’t the Amerithrax task force interview Yazid Sufaat when he was captured in December 2001? Why did they wait until November 2002? Is it because maybe a Postal Inspector isn’t well-suited to the mission?
Was it because you were operating on some preconceptions based on a behavioral profile — rather than forensic evidence such as the fact that both the FBI and CIA detected Ames anthrax at Yazid Sufaat’s lab?
Was the pressure Dellafera felt to pressure the case why he relied so heavily on the September 21, 2001 email and then has avoided its production for the past 10 years?
https://www.pbs.org/wgbh/frontline/film/anthrax-files/transcript/
THOMAS DELLAFERA, Postal Inspector: There was a behavioral profile put together that suggested that it wasn’t a foreign al Qaeda-ist actor, it was more of a domestic type threat, a— you know, a dysfunctional adult in the United States who did this.
***
THOMAS DELLAFERA, Postal Inspector: We read the newspapers, we hear the news, we know what’s going on out there. That asserted a lot of pressure on us, a pressure to, “Look, guys, we’ve got to get this done.”
THOMAS DELLAFERA: It was a very busy street corner opposite Princeton University. We then started doing searches around the street location and came up with a KKG reference. It’s about 30 to 60 feet from our box.
NARRATOR: The KKG administrative offices were actually 175 feet from the mailbox, on the fourth floor of an office building. But to the FBI, it was more than a coincidence.
NARRATOR: But there were no anthrax spores to be found— not in his car and not in his house.
To the FBI’s own science consultant, it raises serious doubts.
CLAIRE FRASER-LIGGETT: The fact that no spores were found, the smoking guns that you would have expected to see if he had been the perpetrator, weren’t there. That’s an aspect of the investigation that I think represents a big hole and really gives me pause to think about, you know, how strong was this case against Dr. Ivins?
NARRATOR: Without spores or other physical evidence, the FBI was left with a circumstantial case— odd hours in the lab, a history of mental problems, his peculiar interest in a sorority, and a belief he had tried to mislead them.
Now the FBI wanted a confession. And they had leverage. They knew his history of mental problems, and in his basement they had discovered his darkest personal secrets.
NOAH SHACHTMAN: There’s women’s underwear found. There’s guns found. There’s all kinds of strange stuff. There’s lyrics dedicated to Christa McAuliffe, the astronaut who died on the space shuttle. So all kinds of strange little stuff.
THOMAS DELLAFERA: It became apparent to us, and we became concerned of it, that he was devolving, or starting to lose composure and control.
***
NARRATOR: The [NAS] report concluded the FBI overstated much of the scientific evidence against Ivins.
CLAIRE FRASER-LIGGETT, Ph.D., Genetics consultant, FBI: This was not an airtight case, by any means. For an awful lot of people, there is a desire to really want to say that, “Yes, Ivins was the perpetrator. This case can reasonably be closed.” But I think— I think part of what’s driving that is the fact that if he wasn’t the perpetrator, then it means that person is still out there.
Comment:
So what did they choose to do in the summer of 2008 when they knew he was so emotionally fragile after the dozens of FBI interviews? Swab him for his DNA — although they already had it — to test against the semen-stained panties found in his basement. They had asked him in front of the grand jury whether he had any intimate personal contact — and threatened to call his family in front of the grand jury. (See “The Vault” containing “King Badger” emails) As early as 2007 when the threats were made to call his family, he explained that he felt he had no reason to keep living. See “The Vault” containing “King Badger” emails; “King Badger” was the nickname his supervisor had given him based on the name of an anthrax project another agency had worked on.) And meanwhile the FBI encouraged Nancy Haigwood to keep up correspondence (lest he send any more incriminating pictures of cute kittens).
Just as the claim that the sorority furniture storage was 30-60 feet from the mailbox was subject to verification and debunking, the FBI and Postal Inspection service should allow us to measure and take stock of the September 21, 2001 email to Nancy Haigwood that mentioned the sorority (according to Haigwood) be assessed. The FBI expressly relied upon this emai in its Ivins Theory.
Dellefera should allow us to check his work — because his former boss, the former lead Amerithrax investigator, says that the FBI is withholding a staggering amount of information exculpatory of Bruce Ivins.
If it is not produced, the Inspector General of both the Postal Service and the FBI should investigate who is responsible for the wrongful withholding of the email.
This was Robert Mueller’s biggest “whodunnit.” The American public deserves compliance with FOIA.
DXer said
An agent’s googling of “Kappa Kappa Gamma” is chronicled in a report found in the FBI’s “Vault.”
A search of “Kappa Kappa Gamma” results in 493,000 results.
Wikipedia has a list of active and inactive chapters.
https://en.wikipedia.org/wiki/List_of_Kappa_Kappa_Gamma_chapters
Delta Gamma (ΔΓ) is one of the oldest and largest women’s sororities in the United States and Canada, with over 230,000 members worldwide. It has 150 collegiate chapters in the United States and Canada and 131 alumnae chapters. This, of course, does get into how many storage units there might also be.
In New York, there is Adelphi, Barnard, Binghamton, Colgate, Cornell, Maris, New York University, St. Lawrence, and Syracuse University.
In Pennsylvania, Allegheny, Bucknell, Carnegie Mellon, Dickinson, Lafayette, Pennsylvania State, University of Pennsylvania, University of Pittsburgh, Swarthmore, Villanova, and Washington and Jefferson.
In California, Polytechnic at San Luis Obispo, Califonria State, Fresno, Northridge, Berkeley, Davis, Irvine, Los Angeles, Merced, Riverside, San Diego, Sant Barabara, Santa Cruz, Chapman, Pepperdine, San Diego, San Jose, Santa Clara, USC, and Stanford.
At Princeton, there is no house at all. Greek-letter organizations do not have houses. The chapter obtained space a short distance from campus to store archives and other chapter possessions.
I’ve been to Princeton a couple times the past two years and I can assure you that there is that one main street near campus — so pretty much any organization needing convenient, off-campus commercial space was going to be on that street.
Bottom-line: When the Agent went to google to search among the 493,000 results, he was going to find a connection. It was not at all probative of murder. In fact, the theory doesn’t even make sense. The Senators and media outlets targeted had never rushed the sorority and had no connection to it.
Did any one ever stop to ask AUSA Lieber her sorority or whether she had other relevant life experiences?
You want coincidences? Then produce those emails and texts and let’s start brainstorming possible connections and developing theories of psychological motivation to persecute Ivins and withhold documents exculpatory of him.
Maybe the Inspector General someday will get those emails and texts if the FBI does not voluntarily produce the September 21, 2001 email under FOIA.
DXer said
It’s been 7 years that the FBI has failed to produce the August 28, 2001 email it turns out that it was pulled from the Army production by DOJ/FBI reviewing the production of Ivins’ emails.
And yet the FBI bases its theory, in part, on the time that Ivins spent in late August 2001. The FBI should not be culling Ivins’ emails. Period. Full stop.
The Inspector General needs to investigate.
Click to access 20010821_batch33(redacted).pdf
I posted this in March 2010 on Dr. Nass’ blog.
“The following information is taken from the affidavit filed by postal inspector Thomas F Dellafera here:
Click to access 07-527-M-01%20search%20warrant%20affidavit.pdf
From the Dellafera affidavit:
“In the weeks immediately prior to the attacks, Ivins became aware that an investigative journalist who worked for NBC news had submitted a freedom of information act (FOIA) requests on USAMRIID seeking detailed information from Dr. Ivins Laboratory notebooks as they relate to the AVA vaccine and the use of adjuvants. On August 28, 2001 Ivins appeared angry about the request providing the following resonse in an email” “Tell Matsumoto to kiss my ass. We’ve got better things to do than shine his shoes and pee on command. He’s gotten everything from me he will get.”
Gary Matsumoto is quoted in Newsweek:
http://www.newsweek.com/id/151784
“Information Act requests from Gary Matsumoto, identified as “an investigative journalist who worked for NBC News” who was looking into Ivins’s work on an anthrax vaccine. “Tell Matsumoto to kiss my ass,” the affidavit says Ivins wrote in an Aug. 28, 2001, e-mail, noting that was “weeks” before the Sept. 18, 2001, anthrax mailing addressed to Brokaw. But Matsumoto told NEWSWEEK the FBI never interviewed him as part of its investigation. If it had, he says, he could have told them he’d actually left NBC News five years earlier. At the time he was bombarding Ivins’s lab with FOIA requests, he was employed by ABC. “They’re trying to connect dots that don’t connect,” he said.”
Where did the DOJ provide a copy of the email correspondence relating to the Gary Matsumoto FOIA request? Why wasn’t it provided along with the other work emails from late August 2001? I often tell Gary the same thing (or words to that effect) and so it seems I would have remembered it.”
DXer said
The former lead Amerithrax investigator has told the New York Times and Fox News that a staggering amount of documents exculpatory of Bruce Ivins is being withheld and that the FBI’s presentation of evidence is highly selective.
Let’s consider why the DOJ/FBI is wrongfully withholding the email from Bruce Ivins to Nancy Haigwood dated September 21, 2001 and consider whether that, without more, justifies imposition of attorneys fees and investigation by the DOJ Inspector General.
Amerithrax Investigative Summary – Page 48 – Google Books Result
Barry Leonard – 2011
According to Dr. Ivins, some time after the anthrax attacks he sent Graduate Colleague an e-mail and they became reacquainted. [The former Graduate Colleague did not like Ivins and thought it suspicious that he would keep in contact]. In fact, he sent her an e-mail on September 21, 2001 – after the first anthrax letters were mailed, but before they were discovered – describing the increased security measures at USAMRIID in the …
Comment: How can the FBI claim that the September 21, 2001 email to Nancy Haigwood does not exist when it was so important to its “Ivins Theory”?
Dr. Haigwood had never liked Ivins and reported him to the FBI the email, she thinks, was so suspicious. So let’s see the email so that the public can judge what the FBI concluded was so suspicious about the email.
The FBI’s theory was that it was suspicious because it asked if she was still active in her college sorority. Earlier that year he had been editing a Wikipedia entry on the sorority using his email account jimmyflathead@yahoo.com. And the sorority had a storage unit located at Princeton University near where the anthrax letters were mailed.
With the email in hand, we’ll able to see when it was written — where he was when he wrote it etc. We will be able to better judge whether it is reliable evidence of murder that a national sorority would have a facility on a college campus that stored furniture. Maybe Ivins had a grudge against a sorority coffee table that has not yet been made clear to us.
For those of us who lived through such stories about Steve Hatfill, we tend to yearn simultaneously for probativeness and transparency given that we have seen how a narrative can be spun — and how it can be debunked upon compliance with FOIA.
Any and all of the emails from Friday, September 21, 2001 were pulled from the production that was overseen by the group of DOJ and FBI officials who received batches for review.
Click to access 20010912_batch35(redacted).pdf
Any and all of the culled emails should be restored to the production.
Is DOJ going to make it necessary to depose USAMRMC John Peterson whose culling (he told me) was at the direction of the DOJ and FBI officials, who I presume gave written emailed instructions rather than merely oral instructions?
On September 21, Ivins spent 28 minutes in Building 1425. He was there from 6:10 – 6:38. Look for the withheld email to be dated within that timeframe. And then ask yourself: if what he was really doing was writing the email to someone he knew well, why did the FBI rely on his presence in the lab as evidence that he was growing and drying a deadly anthrax?
And look to the contents of the email — to the extent it describes what he had been doing that day and previous week. Does Bruce mention to the primate researcher involved in anthrax experiments the 52 rabbits that were due to arrive at his B3? Does it describe how he was preparing the space for the arrival of the 52 bunnies? If so, that would explain why AUSA Lieber would be motivated to pull the email — because nowhere in her Amerithrax Summary does she mention the rabbits. She instead bases her entire Ivins Theory on the claim he had no reason to be in the B3 those nights and weekends.
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
DXer said
Like the FBI Agent R. Scott Decker, Nancy Haigwood relied on her “gut feeling” rather than evidence. She reported Ivins to the FBI in early 2002 after misremembering the date of a key email that was sent her. She mistakenly recalled the group email forwaring a photo as having been sent before the anthrax mailings rather than in early November 2001.
Government investigators are allowed to have gut feelings so long as they comply with the law revealing that that email that served as the basis for their gut feeling be produced.
So long as we can check the correctness of their underlying factual claims.
Nancy Haigwood: “I Had a Gut Feeling It Was Bruce,” October 10, 2011, by Sarah Moughty
https://www.pbs.org/wgbh/frontline/article/nancy-haigwood-i-had-a-gut-feeling-it-was-bruce/
“What was he like?”
“He was a high-energy guy, very interested in engaging with other people. Seemed quite interested in the science. And a serious scientist, but with a fun streak to him.”
***
“He was a little bit of an odd duck, though. That showed up in a few more months, in that he was persistently friendly in a way that scientists typically are not. We tend to be pretty contained with our own little scientific issue and typically within our own laboratories.”
“Can you tell me how he was annoying?”
“I think that one word that comes to mind is obsequious. He tended to be just wanting to garner praise and wanting to overdo conversations in a way that just — people just eventually were turned off by that….”
***
“He seemed to maintain regular contact. By that I mean the yearly sort of Christmas card-level-type of contact over the years.”
“When had been the last time you talked to him? How long had it been since you’d had correspondence?”
“But again, this is about a once-a-year type of discussion that I may have had with I’m, or exchanged family letters and things like that.”
[She then discusses a very creepy incident when Ivins wrote a letter to the editor impersonating Dr. Haigwood to the Frederick News-Post that defended hazing by her sorority.]
[Admittedly, this is very creepy. Not as creepy as when engineers at my undergrad had urine in the cups at the tavern and offered me a drink, but still creepy and reason for her to strongly dislike him. Or not as creepy as the engineers poured a liquid under my door and lit it on fire, but still creepy. Pranks often get out of hand.]
But given that things that other POIs did creepy things too, we always want to remain fixed on probative evidence — such as whether Ivins had reason to be in the B3 on those nights and weekends in late September and early October 2001. For that, we want production under FOIA of the relevant documents, including emails from the period.
[And she also hated him because she learned he had stolen a lab notebook from her and then returned it.]
“It seems like the antics of a lovelorn individual who just maybe thinks it’s almost funny.”
“It wasn’t the least bit funny. It was intended to be frightening, and it was. And there was no love situation whatsoever.” [Actually, women often would not know when a fellow has a crush].
“His e-mails that he wrote you over this period of years, what would he talk about? Do you now look back at them [and see] red flags embedded in them?”
Wow. That September 21, 2001 email but be really interesting if it was so suspicious that it prompted her to report Ivins to the FBI for murder.
But there was another email that Fall that really made her suspicious: because scientists just don’t send out pictures of themselves.
“Not until shortly after 9/11, when I and a group… of maybe 20 people received an e-mail from Bruce showing him working in the lab. He sent us photographs of himself working with what he claimed to be the Ames strain.
What was remarkable to me about this e-mail was, first of all, it is very odd for scientists to send pictures of themselves at anytime to anyone, of themselves especially.”
Nancy Haigwood says: “So it must have been before the attacks, but it was certainly around that time.”
Huh? Oops. No, Dr. Haigwood. That email was in early November 2001, wasn’t it? The September 21, 2001 was not the group email, was it? Or did the Amerithrax Summary that confused the dates. Or am I wrong on what the respective emails said and when.
See how helpful it is to have the actual email so that we can get our facts right?
She says: “There were subsequent e-mails about how Bruce was involved in the investigation, that he was contacted, etc., etc. It was clear he was interested in the outcome.”
Hm. The anthrax researcher who worked with Ames was interested in the outcome in an investigation in which he was interviewed dozens of times. Go figure.
It was in early 2002 that Dr. Haigwood realized: “oh, my God, that’s what Bruce was doing. He’s involved. He could have even been the guy. I actually thought that at that moment. This is very early 2002.”
Well, Dr. Haigwood, have you misremembered the date he sent you (and a score of others) that picture of him working with Ames. It was in early November 2001, not before the mailings as you recalled, wasn’t it?
And the reason he would have sent it is because it was the subject of national news — and it was your field — so he thought it might be of interest. Are you sure the photo wasn’t one that appeared in the press? People commonly share press photos.
I bet Dr. Ivins came to regret he ever sent you Christmas cards or sent you the occasional family news.
DXer said
Didn’t Nancy Haigwood incorrectly remember — in the NPR interview she chose to give in spinning Ivins’ guilt — this photo as having been sent BEFORE the mailings rather than on November 14, 2001.
Let’s see the September 21, 2001 email that is wrongfully being withheld so we can check the facts used in spinning Ivins guilt.
History Commons:
Bruce Ivins handling the Ames strain of anthrax. The timing of the photo is unknown, but he sent this picture to a friend in an e-mail on November 14, 2001. [Source: Associated Press]
http://www.historycommons.org/timeline.jsp?timeline=anthraxattacks
DXer said
Ivinss expected to receive 52 rabbits on September 24.
Do you think he mentioned that in the September 21 email to his fellow animal research Nancy Haigwood in the September 21 email that is wrongfully being withheld and that has been grossly mischaracterized in the national media?
And wasn’t the photo that was sent Nancy Haigwood actually sent on November 14 rather than before the mailings as she alleges?
And didn’t the email simply read:
“Here are some pictures of B. anthracis on blood agar that _______ took. They show growth at 12, 18 and 24 hours, as well as the tenacity of the colony material on agar.”
Did AP take the photo? Have you ever known media to ask for posed or manipulated photos?
For example, the article about R. Scott Decker’s consultant — the one who thinks a first grader wrote the letters — has a picture of anthrax on the computer screen behind him.
He could tell you that was just photoshopped in for dramatic effect. And if AP asked for a photo, do you think it might have made more sense not to expose the photographer to a virulent pathogen?
There were about 20 recipients on the November 14, 2001 email, it seems. With Nancy Haigwood just being one of many.
It seems about 7 photos were sent. Is there really anything suspicious at all about this email, Dr. Haigwood?
Wasn’t it sent when there was national media and attention focused on anthrax? And the origin of the Ames specifically? Wasn’t national media contacting USAMRIID scientists for background on the strain?
And the email doesn’t even mention, Ames, does it?
And rather than somehow involving creepiness, isn’t it just a routine sharing of items of interest?
FOIA officer Sandra Rogers in the past has been glad to provide attachments at anyone’s request so you can see the photos for yourself, if you like.
It really is quite remarkable that you reported Ivins to the FBI based on transmittal of the photo and then the FBI joined you in spinning a false narrative around this photo in order to make ti all fit together into a coherent theory. She obviously had a grudge against Ivins and didn’t like him because he was obsequious and needy.
People are entitled to like whoever they want — but they are not entitled to make up facts. Produce the September 21, 2001 email from Bruce ivins to Nancy Haigwood so I can show that the FBI has mischaracterized it just like this one was mischaracterized in the interview she gave NPR.
DXer said
CNN, to its credit, then gets the date of the photograph right. Though it goes off the rails on some other aspects.
Tuesday, November 14 – Ivins sends out an email to “former colleagues and family members” that includes at pictures he took of himself in his lab. Source. CNN, October 1, 2011
On November 14, 2001, Ivins e-mailed photos of himself to Nancy Haigwood, as well as former colleagues and family members, that showed him working with what he called “the now infamous” strain of anthrax used in the attacks. Actually, by far, most of them, almost of all of them, showed anthrax growing on agar.
The e-mail was striking, says Haigwood, because “we publish our work. We talk about it at conferences. [But] we don’t e-mail photos with anthrax.”
“One picture stood out: a photo of Ivins without gloves supposedly handling a sample of anthrax. Haigwood interpreted this lack of the most rudimentary protection as a bragging message from Ivins, “a sign [that] ‘I’m immune.'”
“It was more an ‘Oh, no!’ than an ‘Aha!’ moment,” she says.
That’s what triggered her call to the FBI in February 2002.”
“We didn’t know [then] how it related to the crime,” says Thomas Dellafera, the U.S. Postal Inspection Service team leader on the anthrax investigation. [Um, that’s because it doesn’t]. “So, at that time, it sort of was tabled, if you will.”
He says her information “was put in … the Bruce Ivins file” and she was asked to stay in touch with Ivins and keep everyone posted.
Meanwhile, federal investigators began focusing on former USAMRIID researcher Steven Hatfill.”
Comment:
CNN, where does the email identify the strain as Ames? It doesn’t. Why do you assume it was Ames rather than Sterne (which is not harmful to humans). And why does Dr. Haigwood assume it was virulent rather than avirulent, with the virulence plasmids removed?
She says scientists don’t send out pictures of themselves. Really? They don’t send out pictures of themselves to their friends and family? When the subject is in the national press and of worldwide attention? Facebook has quite a successful business model, even with scientists. Besides, he was sending it out to family and friends, remember? (He didn’t realize you disliked him).
But that’s nice. The FBI asked her to keep in touch with him — and so she was betraying his confidence for years based on the mailing of these photographs of some petri dishes. Nice. In doing so at their Dellafera’s request, she was acting on behalf of the FBI. In withholding the September 21, 2001 email from the public — while mischaracterizing it, both the FBI and Dr. Haigwood are morally culpable for mischaracterizing the facts. He made the decision to kill himself when they went to test the stained panties — after he had been betrayed by the two women on the cruise, Nancy and even Pat Fellows. That’s not the FBI’s fault or Dr. Haigwood’s fault. But it’s the FBI’s fault that it is withholding the September 21, 2001 and other emails that are required under by law to be produced under FOIA.
DXer said
Ivins sent Haigwood lots of emails. “For Animal Lovers,” “To brighten your day,” “Happy Monday Morning!!,” “Beware of infant terrorists!!!!,” “Happy Wednesday,” “Smiles for the weekend!,” “Cute Kittens and puppies????,” including twenty-seven attached photographs. Another, “Happy Friday!!,” attached sixteen photos of various, most of them kittens.”
I had to shame Army JAG — which had culled these emails among 300 similar emails — into producing them here:
Click to access 20000307_batch88(redacted).pdf
So was it at all unusual for Ivins to send 7 photos on November 14, 2001? No. Hardly. He was a photo-attaching kind of guy.
But the take-home is that the emails are in no way of a crime. And in no way is the still wrongfully withheld September 21, 2001 email either.
Dr. Haigwood’s betrayal at the suggestion of Agent Dellefera — over the years post 9/11 — would have naturally contributed to Ivins sense of despair — and conclusion by 2007, known to investigators, that he felt that he had no reason to live. His life had been robbed of joy. The female agents on the cruise. Pat, his former prized technician. Nancy, the apple of his eye from his school days. Too much.
Agent Dellefera might have more fruitfully spent his time getting his facts right Ivins whether or not Ivins was in the lab nights and weekends to work on the small animal experiments — Mara Linscott had explained to the FBI that it was a 1 person, 2 hour job. He might have better spent his time reconstituting the clinic’s records that proved he had attended the group therapy sessions on the nights he would have had to travel. He might have better spent his time drafting an Amerithrax Summary that disclosed the extensive time-suck of a project with the challenged rabbits. The Amerithrax Summary nowhere mentions the work and challenge of the rabbits — and THAT is what needs to be investigated by both the Inspector General of the FBI and the Postal Service.
DXer said
DXer said
August 28, 2014 at 5:36 am
One scientific method used was computer forensics of his computers. The FBI’s computer forensic reports have not been disclosed and should be reviewed by the GAO. I think it was the most important method — for example, if AUSA Lieber had focused on Dr. Ivins’ email she would have learned and known about Dr. Ivins’ experiment with the 52 rabbits in the first week of October 2001.
The document analysis that would have been useful would be a chronology showing Dr. ivies’ location from September 11 – October 9, 2001.
That could have been compiled from
1) purchases made by his credit cards,
1B4345 described as photocopies of ID cards & credit cards. This document had a copy of BRUCE IVINS’ drivers license; a government issued credit card; a Visa card from Farmers and Mechanics Bank, card number~I__~~______________~I~a~n~d~a Visa card issued by TJX Bank, card numberI I,
2) the dates and times of his use of computers, including particular websites. For example, would AOL, Amazon, Washington Post, Ebay and other websites have the dates that he signed in? His AOL screen name was KingBadger7 and his password was Datsun. His Baltimore Sun screen name was KingBadger7. His password was docsivi54. There is a long list of his screen names and passwords listed here.
Click to access 847545.pdf
“1B4346 described as piece of paper with usernames. This document listed the usernames and passwords for the following web sites: ASM, ABC, AOL, Amazon, Army Knowledge, Crossnet, ABC News, Real Player, MCRDP, ASM Journals, USUHS Library (this line was difficult to read), Washington Post, Anti-terrorism training, Baltimore Sun, Blue Cross, F&M, Distance Learning, voicemail, MSN, Roxio, Yahoo, AIMS, Ebay, and PayPal.”
The FBI did not even disclose his personal emails to his lab assistants written on his computers, even though they are producible under FOIA.
If on a particular day, you find an individual watching viral cat videos, you know he was not somewhere else making deadly letters to send in the mail.
Instead of concrete document analysis of how he spent his time, the FBI marketed a lengthy report by psychiatrists that relied on a woman who says she was receiving her instructions from an alien each night. Jennifer Smith (former FBI, CIA agent scientist) says that the FBI does not rely on psychics but that is not true. That is exactly what the investigators and prosecutors did in Amerithrax without realizing it.
DOJ has successfully avoided deposition of Amerithrax consultant Gregory Saathoff who extensively and uncritically relied on the Ivins’ accuser who claims she was granted her psychic abilities by an alien from another planet
Posted by Lew Weinstein on July 13, 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 by Lew Weinstein on June 11, 2011
DXer said
The FBI is withholding numerous other emails from Bruce Ivins other email accounts, such as “jimmyflathead@yahoo.com.”
For example, the FBI has produced none of the emails obtained from this search warrant.
Document Type:
Magistrate
Case Number: 08-494M
Case Title: SW ELECTRONIC MAIL STORED IN ACCOUNT JIMMYFLATHEAD@YAHOO.COM
Posting Date: Thursday, August 8, 2013
Bruce also used the email to post on the internet.
See, e.g., his 2007 internet post:
“Unspamming” somebody’s email address?
I received an email from somebody and accidentally called the email address “spam.” Now I can’t get email from them. How can I change this?
– jimmyflathead@yahoo.com
DXer said
The FBI also has not produced any of the emails from Bruce’s email account
bruceiv@yahoo.com
or
Kathrynpricefan@hotmail.com
The alleged probable cause?
“These accounts are further described in the following paragraphs and in
Attachment A. As set forth herein, there is probable cause to believe that a search of
the aforementioned accounts may result in the collection of evidence relevant to an
ongoing criminal investigation into the dissemination of a Weapon of Mass Destruction
(anthrax) through the U.S. mail system in September 2001 and October 2001 in
violation of Title 18, United States Code, Sections 2332(a) and 1114, which killed five
people and infected at least 17 others, and into potential additional threats to witnesses
in connection with that ongoing domestic terrorism investigation, in violation of Title 18,
United States Code Section 1512(a)(2)”
In its search warrant, the FBI noted that Bruce had made postings to YouTube using bruceivi:
“In addition, the investigation has revealed Ivins’s use of the name “bruceivi.” An
internet search of “bruceivi” revealed postings on You Tube with the screen name,
“bruceivi.”
Click to access 08-489-m-01.pdf
DXer said
Similarly, the FBI has not produced his emails obtained from Ivins’ account KingBadger7@aol.com or GoldenPhoenix111@aol.com or StanfordHawker@Yahoo.com.
http://www.dcd.uscourts.gov/unsealed-documents-in-sealed-cases/Magistrate/2013?order=field_posting_date&sort=desc
DXer said
Correction. That is not accurate. The FBI has produced some emails from King Badger’s account, although they are heavily redacted.
From: KingBadger7@aoLcom
Date: Mon, 14
May 2007 15:28:18 EDT
I had to go and testify before the anthrax grand jury … twice. I’m not allowed to say anymore than it was a dreadful experience. Basically I can talk about the ride on the metro, and that’s about it. I have no enthusiasm for science at all anymore. I could be equally satisfied if I worked the graveyard shift at WalMart. Probably more so.1 1 III I can see why and how some people just reach a stage in their lives that they just don’t give a **** anymore, and I’m pretty much there. Thanks for your email. -bruce
From: KingBadger7@aol.com Date: Thu, 7 Jun 2007 23:13:59 EDT
Subject: Hi,1 IPlease don’t immediately delete ~~~ ~Phoenixlll@hotmaiLcom, jimmyflathead@yahoo.com
Dear …. 1 __ —I Things are very stressed here allover with work issues, family issues and the investigation, which somehow seems to periodically (and nauseatingly) get pointed in my direction. Other than chemicals, there’s nothing much to turn to. You asked recently if there were anything you could do, and actually there is – be a kind, wise heart with a listenting ear, be someone who reads my emails and see how my life is going or not going. I told you I don’t get much support here I J The DOJ actually introduced in front of the jury an email from me ***
From: KingBadger7@aol.com
Date: Sun, 10 Jun 2007
In an email to [you-know-who, right], Ivins wrote:
They accused me of diluting, altering or adulterating an important preparation of anthrax material. The grand jury was also very accusatory. I’m fortunately taking a lot of. medication for depression, but that’s only helping some. I also have to use a lot of caffeine in the morning, and then alcohol and sleeping pills at night. Do you realize that if anybody gets indicted for even the most remote reason with respect to the anthrax letters – something as simple as not locking up spore preps to restrict them from only people in our lab – they face the death penalty? Playing any part, even a minor part such as providing information about how to make spores, or how to make them in broth, how to harvest and purify that could wind up putting one or more hapless persons on death row. Not pleasant to think about. In one of your recent emails you said that it would all be over soon. If they indict someone, that means that innocent people are going to get dragged through the mud by both the defense and the prosecution as the pre-trial and trial procedures move forward. The FBI knows about my psychiatric woes and my family situation.
***
The FBI can take the most innocent moment or incident and turn it into somethina that looks as if it comes from the devil himself. …
Anthrax, Al Qaeda and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
The FBI also has not produced a copy of Ivins’ Instant Messages, such as those maintained in a 1A envelope. 79A-WF-222936-BEI-280.
DXer said
One email from King Badger evidences that Bruce Ivins was being driven to commit suicide by the FBI’s failure to provide him the contemporaneous documents and emails that he needed to reconstruct his time, years after the fact.
“Thu, May 24, 2007 at 7:45 AM
—
From: KingBadger7@aol.com
Date:Wed, 16 May 2007 17:39:07 EDT
Subject· Last week was a rough week.
CC: goldenohoenix111@hotmail.com
***
Who knows. I’m just so beat. I was at the grand jury for five hours, 3 hours on one day and 2 hours on the next. The questions were very accusatory, on so many fronts. There’s so much information that I’ve forgotten or can’t find or can’t look up, I’m just miserable.
***
I’m not planning on jumping off a bridge or ~—-~~——–~~ something, so don’t think I’m going suicidal or something. I honestly don’t know what anybody can do.
***
I’m going to drink lots of wine for dinner.
***
***************
*************** I’ve been thinking more and more about retirement. As for the other matter, it’s just made life absolutely miserable. A couple of years ago they suggested that because I was having mental/emotional/psychiatric problems that I could have been knowingly involved. Very depressing. Did you ever notice how people talk about the “Funny Farm” and the “Loony Bin,” but they don’t talk about the “epilepsy farm” or the “arthritis bin?” My psychiatrist – I met with him today – described the whole thing as “Kafka-esque.” That’s so appropriate. ***
I don’t think there’s much anybody can do. I search emails and documents, trying to find things, trying to help, and look what it gets me.”
DXer said
KingBadger7@aol.com wrote:
From:
KingBadger7@aoLcom
Date: Wed, 23 May 2007 23:30:39 EDT
Sub: Grand Jury
To:
Hi. I’m recovering from my twin experiences before the amerithrax grand jury. The metro rides were the only enjoyable part. They asked “gotcha!” type questions and very personal questions related to email conversations between people. They __ ~ know everything about the personal and professional lives~ *** I Eventually a trial will come, and we’ll be dragged up to the witness chair to testify, and that’s when the other side will start dragging us through the dirt. It’s a lawyer’s job to sully the personal and professional reputations of witnesses on the other side. For me it means people finding out that I’m a slob, keep poor records, am lousy at math, and see a psychiatrist. There are things that others would prefer not be spread around. I’m planning on leaving at the end of September of 2008.
DXer said
The Vaughn Index should include, but not be limited to, all the emails that the FBI and DOJ officials instructed USAMRMC official John Peterson to cull from the production of emails from ivins work computer.
DXer said
Off-topic (but in good-faith attempt to pay some bills):
As I recall, the $10 million dollar reward for the Isabella Gardner paintings has been renewed. While we await filming of Pulitzer prize-winning investigative reporter Kurkjian’s movie, it’s worth tuning in to this podcast in the hopes in time they unearth new insights and score interesting interviews.
This Podcast Is Trying to Solve One of the Greatest Art Crimes in History
By Margaret Carrigan • 02/08/18 6:00am
Comment:
The videotape of their focus in this first show turned out to be nothing.
I recommend that in a future show they bear down on the attempt to return the paintings by Guarente’s daughter, wife and pal Earle Berghman in late 2004/ early 2005.
It was Bobby Guarente’s biological daughter, J., who was his closest confidante. Bernie G., the attorney, is authorized to share what he knows.
It was Berghman’s son from Providence that hooked the three up with Bernie G.
The FBI testing of the paint chip submitted turned out to be ordinary house paint.
Notwithstanding the forensic testing, is there more to the story? Might the daughter just have pulled the paint chip from where her father, Bobby, had kept the paintings temporarily?
(He died in 2004). With the paintings now not available to her? And maybe even one or two of the major ones destroyed in the flooding after being given to Bobby Gentile in CT?
As a possible scenario, if most of the items were buried at the hold Madison, ME homestead, J. could not dig them up without revealing that she has known where they are —
and knew that when the FBI searched the farmhouse and grounds in 2009. That would put her in a legally precarious situation.
Note that when the Boston attorney Bernie G. contacted the museum director, there was no indication who he was representing. So the FBI was not in a position to know that Bobby Guarante — now known to have had the paintings — appears to have shared info about the paintings with his daughter before his passing.
I have uploaded the photos of the property here:
http://photos.syracuse.com/yourphotos/2013/03/isabella_gardner_art_heist.html
Earle was splitting his time between Mohawk and the homeless shelter in Utica last I knew. An affable chap, he perhaps would be willing to give an interview for the show.
Guarantee’s wife, Elene, liked Earle and enlisted his help. He then moved to my hometown, which has explained my continued earnestness.
I gave Tony the security director Earle’s name when I went to the Maine property many years ago but have never made any headway in suggesting that the FBI bring ground penetrating radar and a claw digger to this or that property. I’ve also recommended the location of Gentile’s used parking lot in Windsor, CT where a small building was razed about the time Elene was pointing to Gentile before the grand jury.
The property evidences digging — but there is no indication that the digging was done by the FBI. I would upload photos but basically it is asphalt, and in addition to where there had been digging, there is the outline of the razed building that had been at Gentile’s used car lot.
DXer said
Dillon’s counsel refers to specific emails relied upon by the FBI in its Ivins Theory — and solid evidence that the emails exist and are being withheld.
But let’s turn more broadly to additional — this time, the date unknown to me — emails just before September 2001 mailings relied upon by the FBI in concocting its Ivins Theory.
AUSA Lieber and FBI Agent R. Scott Decker apparently think that it is evidence of murder for Ivins to have told Gary Matsumoto to “kiss my ass” in September 2001.
Now, having told Gary that myself (in so many words) in one long, late-night conversation, I don’t credit AUSA Lieber’s or Scott’s reasoning.
To know Gary is to have sometimes wanted to express such emotions.
The lucid-writing Gary is a touchy-feely, self-aware guy and might be the first to say that about himself.
The Amerithrax Summary states:
For example, just before the letter attacks, in August and September 2001, Dr. Ivins sent e-mails to a co-worker
and a supervisor, a sample of which included, “Tell Matsumoto to kiss my ass. We’ve got better
things to do than shine his shoes and pee on command. He’s gotten everything from me he will
get.” The prosecution team learned more about the depth of Dr. Ivins’s animosity towards
Matsumoto in a February 13, 2008 interview, in which Dr. Ivins stated that had actually gone to a
Matsumoto website in recent years under the anonymous name “Guest,” and made sarcastic,
provocative postings – one of many examples of Dr. Ivins’s ability to harbor grudges and, in his
own words, “stir the pot.”
God forbid I ever make anonymous sarcastic provocative postings to “stir the pot” or carried a grudge about documents being withheld under FOIA.
Telling Gary to have kissed my ass is simply is not very persuasive evidence of murder. In fact, in Amerithrax commentary circles, among those who didn’t think Iraq was responsible,
there once a Gary-Kiss-My-Ass-Fan-Club, which included even Ari F., the White House spokesperson (see his book).
(I read the first chapter of Gary’s Vaccine A and have always admired the combination of his lucid writing style combined with his self-awareness at the personal level).
R. Scott Decker, an FBI Agent who has a new book on the subject, relies on the “Kiss my ass” email in his book at page 185.
Judging from Decker’s account, the former colleague with who Ivins apparently corresponded was Anna Johnson-WInegar, a Pentagon official.
Now, have these all-important “kiss my ass” emails — that the FBI Agents and prosectors think so important to its Ivins Theory — been produced?
Searching the database of emails for “kiss my ass” doesn’t turn them up. I’ve read all of Ivins thousands of emails produced and don’t recall them. You can see the gaps from September 2001 where the DOJ and FBI officials instructed USAMRMC John Peterson to cull emails.
The FBI should produce all of the “Gary can kiss my ass emails” so that fans can frame them.
The erudite Matsumoto won’t mind. He has co-authored important pieces on the subject by ProPublica and is a big fan of FOIA as a tool for discovering Ivins emails and laboratory notes.
Was the FBI’s Science Good Enough to ID the Anthrax Killer?
New testing methods could prove the FBI’s case against Bruce Ivins–or lead to other suspects
By Stephen Engelberg, Gary Matsumoto, Greg Gordon, Jim Gilmore, Mike Wiser, ProPublica on October 11, 2011
https://www.scientificamerican.com/article/fbi-science-good-enough-id-anthrax-killer/
DXer said
In its Amerithrax Summary in support of its “Ivins Theory,” the FBI also relies upon emails that it claims Ivins wrote about Meryl Nass that it has never produced.
“Similarly, over the years, Dr. Ivins continued to speak disparagingly of Meryl Nass,
another prominent critic, in much the same vein. Those who worked for him knew that Nass was
one of those topics to avoid discussing around Dr. Ivins. They also noted that Dr. Ivins took
criticism, especially of his work, very personally.”
Now, Meryl would be one of the first to encourage that the FBI stop withholding the emails that it purports to characterize and use in support of its Ivins Theory.
She considered Bruce to be helpful, and a friendly professional acquaintance that she respected — among dozens of others who knew him, she has been one of his staunchest defenders.
She was invited to attend the USG invitation-only Florida workshop where the FBI raised its Ivins Theory up the flagpole — and has been one of the most prolific debunkers of its Ivins Theory.
Meryl Nass, M.D. … The FBI botched its investigation, never had even the shred of a case against Ivins
Posted by Lew Weinstein on December 20, 2014
Dr. Meryl Nass’ characterization of the report of the Amerithrax Expert Behavioral Analysis Panel as “psychobabble” is right on target
Posted by Lew Weinstein on March 25, 2011
selected extracts from the presentation of Dr. Meryl Nass at the Nov 29, 2010 anthrax seminar
Posted by Lew Weinstein on December 2, 2010
Dr. Meryl Nass … unresolved issues in the FBI’s case against Dr. Bruce Ivins … means, motive, opportunity
Posted on March 7, 2010
DXer said
The Ivins emails being withheld about Matsumoto are central to its Ivins Theory. But as Matsumoto noted, the FBI seemed to be connecting dots that don’t connect.
Anthrax Case Against Ivins Wasn’t a Slam Dunk – Newsweek
http://www.newsweek.com/anthrax-case-against-ivins-wasnt-slam-dunk-87793
“When the FBI publicly branded the late Dr. Bruce Ivins as the anthrax killer, it unsealed court affidavits suggesting a possible motive for the mailing to one target: NBC anchor Tom Brokaw. According to the affidavits, Ivins was angry about repeated Freedom of Information Act requests from Gary Matsumoto, identified as “an investigative journalist who worked for NBC News” who was looking into Ivins’s work on an anthrax vaccine. “Tell Matsumoto to kiss my ass,” the affidavit says Ivins wrote in an Aug. 28, 2001, e-mail, noting that was “weeks” before the Sept. 18, 2001, anthrax mailing addressed to Brokaw. But Matsumoto told NEWSWEEK the FBI never interviewed him as part of its investigation. If it had, he says, he could have told them he’d actually left NBC News five years earlier. At the time he was bombarding Ivins’s lab with FOIA requests, he was employed by ABC. “They’re trying to connect dots that don’t connect,” he said.”
The DOJ and FBI officials reviewing the production by USAMRMC John Peterson appear to have instructed him to pull all the emails that the FBI relied upon its in Affidavits and in its Amerithrax Investigation Summary. That way there was no way to show that it had mischaracterized the emails or connected the dots incorrectly.
August 28, 2001 emails should have been produced here:
Click to access 20010821_batch33(redacted).pdf