Anthrax-Hatfill - Judge's order on disclosure of sources

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STEVEN J. HATFILL, M.D., : : Plaintiff, : : Civil Action No. 03-1793 (RBW) v. : : ALBERTO GONZALES, et al., : : Defendants. : ________________________________

MEMORANDUM OPINION Currently before the Court is the plaintiff’s Motion to Compel Further Testimony from Michael Isikoff, Daniel Klaidman, Allan Lengel, Toni Locy, and James Stewart [D.E. # 157]. Also before the Court are several motions to quash subpoenas by1 various media companies: American Broadcasting Companies, Inc., WP Company LLC d/b/a The Washington Post, and Newsweek, Inc.’s Motion to Quash [D.E. # 152]; Motion by Non-Party CBS Broadcasting, Inc. to Quash Subpoena [D.E. #156]; Motion to Quash Subpoenas by Non-Parties The Associated Press and the Baltimore Sun Company [D.E. #159]; and Motion by Non-Party The New York Times Company to Quash Subpoena [D.E. # 162].

The Court having heard oral argument on the motion2 to compel, in addition to having reviewed the pleadings submitted in connection with the motion, it concludes that the plaintiff’s motion to compel the testimony of the several reporters must be granted and that the media companies’ motions to quash must be granted.

I. Relevant Factual Background On March 30, 2007, this Court issued an Order indicating that at the plaintiff’s discretion, he would be granted an additional period of discovery to attempt to obtain the identity of the yet to be identified source or sources at the Department of Justice (“DOJ”) or the Federal Bureau of Investigation (“FBI”) who the plaintiff contends provided information to news reporters concerning aspects of the criminal investigation of the multiple mailings of anthrax in the Fall of 2001 that focused on the plaintiff as the possible perpetrator. March 30, 2007 Order at 2. The plaintiff then filed a Praecipe Regarding Discovery indicating his desire to conduct additional discovery, and the Court issued an Order on April 20, 2007, allowing an additional period of sixty days for the plaintiff to pursue further discovery. Before requesting this additional discovery period, the plaintiff had sought extensive discovery from the agency defendants and from members of the media. Plaintiff’s Memorandum of Points and Authorities in Support of Motion to Compel Further Testimony from Michael Isikoff, Daniel Klaidman, Allen Lengel, Toni Locy, and James Stewart (“Pl.’s Mem.”). In particular the plaintiff deposed six non-parties, who, while working as reporters for various media entities, were the direct recipients of many of the agency defendants’ alleged disclosures concerning Dr. Hatfill. Id. During those depositions, the reporters identified more than 100 separate disclosures about Dr. Hatfill that they claimed were directly from FBI or DOJ sources. Id. at 3. However, the reporters declined to reveal the identity of their FBI or DOJ -3- sources, or provide any other information about the sources that would aid the plaintiff in identifying them, on the grounds that such information is protected from disclosure by a “reporter’s privilege” under the First Amendment of the United States Constitution and pursuant to federal common law. Id. at 2, 4. The motion to compel currently before the Court is yet another attempt by Dr. Hatfill to obtain the reporters’ DOJ and FBI sources.

As would be expected, the reporters oppose this motion. In addition to seeking further discovery from the reporters, Dr. Hatfill served subpoenas pursuant to Rules 30(b)(6) and 45 of the Federal Rules of Civil Procedure on the media companies that had published information, seemingly in reliance on the unnamed DOJ and FBI sources, seeking testimony and documents that would identify or tend to identify the sources of the leaks. Plaintiff’s Consolidated Opposition to Media Companies’ Motions to Quash (“Pl.’s Opp’n”).

The District of Columbia Circuit in Lee v. DOJ, 413 F.3d 53 (D.C. Cir. 2005), reiterated that it recognized in Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981), in the First Amendment context, a qualified privilege in Privacy Act cases, 5 U.S.C. § 552a (2000), for non-party journalists “where testimony of journalists’ is sought because government officials have been accused of illegally providing the journalists with private information.” Lee, 413 F.3d at 59. “[T]wo guidelines” were established by Zerilli “to determine when a plaintiff may compel a non-party journalist to testify to the identity of his confidential sources.” Id. at 57. The question a court must first address when making this determination is whether “the information sought [goes] to the ‘heart of the -4- matter.’” Id. at 59 (quoting Zerilli, 656 F.2d at 713) (quoting Cary v. Hume, 492 F.2d 631, 636 (D.C. Cir. 1974). If it does not, disclosure may not be compelled. “Second, the litigant must exhaust ‘every reasonable alternative source of information’” before a journalist may be compelled to disclose his or her source of information. Id. (quoting Zerilli, 656 F.2d at 713 (quoting Carey, 492 F.2d at 638)). The Court, however must keep in mind that this privilege is not absolute. Id. at 60. As the Lee Court stated: The Supreme Court has noted in the context of privilege in grand jury cases that it “cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.” Branzburg [v. Hayes, 408 U.S. 665, 692 (1972)] (quoted in In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 970 (D.C. Cir. 2005). The same principle applies here; the protections of the Privacy Act do not disappear when the illegally disclosed information is leaked to a journalist, no matter how newsworthy the government official may feel the information is. Id. However, this does not mean that the journalist is left “without protection.” Id. In addition to “the qualified privilege described in Zerilli, the usual requirements of relevance, need, and limited burdens on the subpoenaed person still apply.” Id. (citations omitted).

As an initial matter, non-party journalists Isikoff, Klaidman, and Lengel challenge whether the disclosures at issue can even be considered violations of the Privacy Act. Isikoff Opp’n at 9-10. They contend that “the fundamental flaw in Dr. Hatfill’s motion to compel is that the specific disclosures that were reported by these journalists are not actionable under the Privacy Act.” Id. at 10. Specifically, they posit that “the information that they reported was not personal to Dr. Hatfill, and the identities of the sources for that information thus cannot be considered ‘essential’ to the issues in this -5- case.” Id. Similarly, non-party Stewart opines that “it is extremely unlikely that [Dr. Hatfill] could obtain testimony from them that would prove an intentional and willful disclosure of a record protected by the Privacy Act.” Stewart Mem. at 35. Stewart further contends that “the statements in [his] broadcasts do not even suggest disclosure of information derived from records protected by the Privacy Act” because his “reports contain no personal information about Dr. Hatfill and no original disclosures of investigative details.” Id. at 35-36. Moreover, because the information about Dr. Hatfill had been publicly disclosed long before his reports, Stewart argues that it is likely that the earlier disclosure removes the reports from the “purview of the Privacy Act in any event.” Id. at 36.

The Privacy Act provides a private right of action against a government agency when records pertaining to an individual have been improperly disclosed by that agency. 5 U.S.C. § 552a; Lee 413 F.3d at 55. Specifically, the Privacy Act prohibits agencies of the executive branch from disclosing “any record which is contained in a system of records” to an unauthorized party. 5 U.S.C. § 552a(b). “When a court finds that an agency made such a disclosure ‘in a manner which was intentional or willful,’ the United States is liable for damages plus attorneys’ fees and costs.” Lee, 43 F.3d at 55 (citing 5 U.S.C. § 552a(g)(4). [T]he term ‘record’ means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph[.] Contrary to this assertion, the Privacy Act does not state that information which qualifies as a record under3 the Act is exclusively limited to items “similar in nature,” id., to those listed in the Act. See 2 U.S.C. 552a(a)(4). -6- 5 U.S.C. § 552a(a)(4). And, Isikoff, Klaidman, and Lengel urge this Court to conclude that the definition of record provided in the Privacy Act “cannot be stretched to include the contents of these reporters’ articles.” Isikoff Opp’n at 11. Furthermore, they contend that a “particular piece of information can only qualify as a ‘record’ if it is about an individual in some greater sense than through its association with that individual’s name or other identifying characteristics.” Id. at 12.

Additionally, they surmise that “the type of information that can qualify as a record under the Privacy Act is limited to items which are similar in nature to information about a person’s ‘education, financial transaction, medical history, and criminal or employment history.’” Id.(citation omitted). 3 The Court cannot accept the narrow definition these journalists seek to give the term record as used in the Privacy Act. This Court recently addressed what constitutes a record under the Privacy Act as related to investigative information in Scarborough v. Harvey, ___ F. Supp. 2d ___, ___, No. 05-1427, 2007 WL 1721962, at *1 (D.D.C. May 22, 2007) (RBW). There, the Army’s Criminal Investigation Division (“CID”) commenced an investigation into the alleged fraudulent issuance of individual surety bonds to the United States government. Id. The plaintiffs in Scarborough had brought an action under the Privacy Act alleging that the agency defendants’ disclosure and dissemination of confidential and sensitive investigative information concerning them intentionally and willfully violated various provisions of the Act. Id. at *4. Similar to the reporters’ arguments in this case, the defendants in Scarborough advanced a technical reading of the term “record,” asserting -7- that the plaintiffs’ claims were not sustainable because the information disclosed was entrepreneurial in nature, as opposed to being personal information, and that the information disclosed was available to the public and therefore did not constitute records, as that term is defined under the Privacy Act. Id. at *5 (footnote and citations omitted). The Scarborough defendants therefore asked this Court “to accept a distinction between ‘personal information’ (information about an individual acting in a personal capacity) and ‘entrepreneurial information’ (information about an individual acting in an entrepreneurial capacity, including actions taken on behalf of a sole proprietorship), and argue[d] that only disclosure of information falling in[to] the former category is intended to be protected by the Privacy Act.” Id. at *8. However, this Court noted that “this distinction is found nowhere within the text of the statute itself.” Id. (citing 5 U.S.C. § 522a(a)) (footnote omitted). Rather, the Court pointed out that “[t]he Act defines ‘record’ in relatively broad fashion,” id. (citing McCready v. Nicholson, 465 F.3d 1, 9 (D.C. Cir. 2006) (citing 5 U.S.C. § 552a(a)(4)), and reiterated that “[i]n order to qualify as a record, information must be ‘about’ an individual[,] . . . [and it] must contain the individual's name or other identifying particular[s],” id. (quoting Tobey v. NLRB, 40 F.3d 469, 471 (D.C. Cir. 1994)). Moreover, the Court noted that “[t]he District of Columbia Circuit has stated that, under the Privacy Act, an item is ‘about an individual’ if it ‘contain[s] information that actually describes the person in some way.’” Id. (quoting McCready, 465 F.3d at 9). And, because the information disclosed contained the names of at least one of the plaintiffs, this Court concluded that its “sole inquiry” was to assess “whether the documents, and the information contained therein, are ‘about’ the plaintiffs.” Id. at *8. In making this assessment, the Court found that the definition of -8- record “is undeniably expansive, and there is nothing in the Privacy Act to indicate an intent to exclude certain classes of information, as long as they ‘actually describe [an individual] in some way.’” Id. (quoting McCready, 465 F.3d at 9) (internal citations omitted). Each of the documents in Scarborough, the Court reasoned, “reference[d] the plaintiffs by name and divulge[d] ‘information that actually describe[d] the [plaintiffs] in some way, thus meeting the requirements of §552a.” Id. (citations omitted). The Court further ruled that “documents identifying the individual plaintiffs by name and describing [their] involvement in allegedly criminal or otherwise unsavory activity [was] ‘about’ the individual plaintiffs, and therefore not excluded from the Privacy Act’s definition of records.”’ Id. Here, the information disclosed is consistent with the definition of record as contained in the Privacy Act, as Dr. Hatfill references multiple instances where DOJ and FBI officials revealed investigative information about him to the reporters. Specifically, with respect to the use of bloodhounds to investigate Dr. Hatfill, Klaidman, of Newsweek, reported that “when the handlers approached the Frederick, Maryland apartment building of Dr. Steven J. Hatfill . . . [,] the dogs immediately became agitated, Newsweek has learned. The dogs went crazy says one law-enforcement source.” Pl.’s Reply at 9 (citing Exhibit (“Ex.”) B (M. Miller & D. Klaidman, The Hunt for the Anthrax Killer, Newsweek, Aug. 12, 2002). Another article written by Klaidman and Isikoff of Newsweek states:

Something else about Dr. Hatfill caught their eye. Agents surveilling his apartment watched him as he pitched loads of his belongings into a dumpster behind his apartment building – getting rid of some of the evidence, some agent wondered. Though the FBI says Hatfill had been Dr. Hatfill identifies multiple additional occasions where all of the reporters made reference to personal information about him. See, e.g., Pl.’s Reply at 12-13. However, because the argument that the disclosures challenged by the plaintiff cannot be considered records under the Privacy Act and therefore their disclosure did not violate the Act was only raised by Isikoff, Klaidman, and Lengel, the Court need not provide examples of any disclosures made by the remaining reporters. -9- cooperative all along, the dogs and dumpster led agents to obtain a criminal search warrant for Hatfill’s apartment – to turn up the heat. Pl.’s Reply at 10 (citing Ex. F (Klaidman and Isikoff, Finally, the FBI Uncovers a Tantalizing Clue, Newsweek, May 26, 2003)). Another article authored by Lengel of the Washington Post reported that “[s]pecifically, investigators are trying to determine whether Hatfill, a former scientist at the U.S. Army’s principal biodefense laboratory at nearby Fort Detrick, disposed of any containers or byproducts that may be linked to the anthrax spores that were sent through the mail, law enforcement sources said.” Pl.’s Reply at 11 (citing Ex. G, (A. Lengel, Hunt for Clues in Anthrax Case Revived, Washington Post, Jan. 25, 2003)). Like the plaintiffs in Scarborough, the information in these news articles and reports “reference[] the plaintiff[] by name and divulges ‘information that actually describes [the plaintiff] in some way.” 2007 WL 1721962 at *8. Moreover, the identification of Dr. Hatfill by name and a description of his suspected involvement in criminal or otherwise suspicious activity are clearly about him and therefore not excluded from the Privacy Act’s definition of records. See id. 4 Arguing in support of his motion to compel the testimony of the reporters, Dr. Hatfill contends that “[t]here can be no serious question that the two-part test is satisfied here just as it was in Lee.” Pl.’s Mem. at 7. First, he opines that it is clear that the information he is seeking goes to the heart of his case, stating that here, as in Zerilli, “the relevant information is the identity of the individuals who may have leaked

“The case was resolved through a plea agreement in which the government dismissed 58 counts of5 mishandling and Lee pleaded guilty to one count.” Id. -10- information in violation of the Privacy Act.” Id. Moreover, Dr. Hatfill posits that “[i]f he cannot show the identities of the leakers, [his] ability to show the other elements of the Privacy Act claim, such as willfulness and intent, will be compromised.” Id. at 7-8 (quoting Lee, 413 F.3d at 60). Dr. Hatfill also contends that he “has satisfied the other element, exhaustion of reasonable alternatives.” Id. at 8. Specifically, he points out that he has taken 35 non-expert depositions, propounded 230 interrogatories, requested 836 admissions, and issued 61 requests for production of documents. Id. at 8-9. In response, the reporters uniformly oppose Hatfill’s motion to compel further testimony, arguing that he has failed to satisfy the requirements of Lee by not demonstrating that the information he is seeking to compel is central to his case and that he has exhausted all reasonable alternatives for obtaining the information. See Locy Mem. at 8, 12; Stewart’s Mem. at 33-37; Isikoff Opp’n at 6.

Lee provides direct and unequivocal guidance and instruction for the Court’s assessment of whether Dr. Hatfill’s motion to compel should be granted. Wen Ho Lee, a scientist, was employed by the Department of Energy (“DOE”) for 21 years. Lee, 413 F.3d at 55. He was investigated by the DOJ and the FBI for suspicion of espionage on behalf of the People’s Republic of China, and was ultimately indicted on 59 counts for the alleged mishandling of classified computer files. Id. After his indictment, Lee filed5 a Privacy Act action against the DOE and the DOJ (hereinafter referred to as “defendant agencies”), alleging that they had improperly disclosed personal information about him and about the investigation of him to members of the media. Id. The -11- investigation of Lee was first disclosed in the Wall Street Journal, followed by the Washington Post, and the New York Times (“Times”). Id. Although the Times article did not mention Lee by name, it did refer to a Chinese-American computer scientist who was in nuclear weapons at Los Alamos and also provided details about the nature and scope of the government’s investigation. Id. Subsequently, several network news stations broadcasted Lee’s name, and the Associated Press identified Lee by name in an article it issued. Id. Additional information was later revealed by the Times and the Los Angeles Times. Id. at 55-56. When the government’s investigation shifted from espionage to mishandling of computer files, this was also reported in the Times, which cited anonymous government sources and included specifics with respect to the alleged mishandling of computer files by Lee. Id. at 56. This was similarly reported by the CNNtelevision network and the Los Angeles Times. Id.

Lee’s Privacy Act claims alleged “unlawful disclosures by employees of the defendant agencies designed to prejudice [his] image and distract from [their] own security breaches.” Id. Lee asserted that the leaked information, all of which was disclosed in the press and should have been part of personnel or classified records, included personal and investigative information, e.g., information about his and his wife’s employment history, their financial information, details of their travel to China and Hong Kong, and details of the investigation and interrogation of Lee, as well as purported results of polygraph tests. Id. Lee commenced discovery, seeking to uncover the source of the leaks, but his efforts were stymied by assertions of the law enforcement privilege by the defendants. Id. Specifically, his discovery efforts included the submission of at least 420 written discovery requests to the defendants. Id. He

These tools included an analysis of the “responses to factual allegations in the answer to the complaint,6 requests for documents under Fed. R. Crim. P. 34, use of interrogatories under Fed. R. Civ. P. 33, requests for admissions under Fed. R. Civ. P. 36, and depositions under Fed. R. Civ. P. 30(b)(1) and (b)(5).” Id. -12- also deposed witnesses identified by the government in their interrogatory responses, which included six DOE employees, six DOJ employees and eight FBI officials, but was likewise unsuccessful in uncovering the source of the leaks. Id. Finally, Lee issued subpoenas to the various journalists seeking their testimony and documents relating to the leaks, “reasoning that his other discovery attempts had produced and would continue to produce no results.” Id. The journalists moved to quash the subpoenas, and the District Court denied the motions and ordered the journalist to “appear for [] depositions and ‘truthfully answer questions as to the identity of any officer or agent of defendants, or any of them, who provided information directly about Wen Ho Lee, and as to the nature of the information so provided.’” Id. The District Court concluded “that Lee had met both of [the Zerilli] guidelines to overcome the journalists’ qualified privilege,” finding “that the information was clearly central to the case” and “that Lee had exhausted all reasonable alternatives.” Id. at 57. The Lee Court found that the second Zerilli guideline had been satisfied because the depositions Lee had already taken “showed a pattern of evasion and stonewalling” and because he had used the main discovery devices prescribed by the Federal Rules of Civil Procedure for obtaining the type of information he sought to acquire from the reporters. Id. As noted already, the journalists were required to “appear for depositions and ‘truthfully answer questions as to the identify of any officer or agent of defendants, or any of them, who provided information directly about [Lee], and as to the nature of the information so provided.” Id. at 56. However, “[a]fter the journalists were -13- deposed and refused to answer certain questions, . . . [they] were held in contempt.” Id. at 57. Upon refusing “to reconsider on the privilege issue,” the District Court “fined each [journalist] $500 per day, [but] stayed the fines pending appeal.” Id. Ultimately, the Circuit Court affirmed the District Court’s ruling with respect to four of the five journalists. Id. at 64. In affirming the District Court, the Circuit Court reasoned:

The Supreme Court has noted in the context of privilege in grand jury cases that it “cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.” Branzburg [v. Hayes, 408 U.S. 665, 692 (1972)], quoted in In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 970 (D.C. Cir. 2005). The same principle applies here; the protections of the Privacy Act do not disappear when the illegally disclosed information is leaked to a journalist, no matter how newsworthy the government official may feel the information is. Id. at 60. In affirming the District Court, the Court of Appeals agreed “that the information he [was] seeking [went] to the heart of his case [because] [a]s in Zerilli, the relevant information [was] the identity of the individuals who . . . ha[d] leaked information in violation of the Privacy Act.” Id. And, the Circuit noted that if Lee could not “show the identities of the leakers, [his] ability to show the other elements of [a] Privacy Act claim, such as willfulness and intent, [would] be compromised.” Id. Thus, while the Circuit acknowledged that “it might be possible” for a plaintiff to prove an element like “malice,” when such proof is necessary to establish a civil claim, without identifying the offender, “success [is] very unlikely under such circumstances.” Id. (citing Carey v. Hume, 492 F.2d 631, 637 (D.C. Cir. 1974)). Likewise, the Circuit found that “Lee ha[d] also met his -14- burden as to exhaustion.” Id. In reaching this conclusion, the Court of Appeals rejected the proposition that both Supreme Court and Circuit precedent require that a minimum number of depositions be taken to satisfy the exhaustion requirement. Id. Rather, the Court concluded that “the number of depositions necessary for exhaustion must be determined on a case-by-case basis,” id. at 61, and left to the discretion of the District Court whether the exhaustion prong of the Zerilli guidelines has been satisfied, id. And, the Court of Appeals noted that not every possible means of discovering information from reporters, regardless of how “onerous,” must be pursued to satisfy Zerilli’s exhaustion requirement. Id. (quoting Carey, 492 F.2d at 639). The present case is strikingly similar to Lee. Like the plaintiff in Lee, Dr. Hatfill has demonstrated that he was the subject of leaks by the DOJ and the FBI pertaining to his personal life and an investigation with overtures that suggested his involvement in extremely serious criminal conduct. The information was allegedly leaked to the reporters by government officials, resulting in the publication of news articles and the broadcasting of news reports concerning Dr. Hatfill and the anthrax investigation. Also like the plaintiff in Lee, Dr. Hatfill sought to obtain the identity of the sources through other means of discovery such as depositions, interrogatories, requests for production of documents and requests for admissions. Specifically, Dr. Hatfill issued “61 requests for production of documents, propounded 230 interrogatories and 836 request[s] for admissions, and took 27 depositions of agency defendant personnel.” Pl.’s Mem. at 2. Further like the plaintiff in Lee, Dr. Hatfill was hindered in his efforts to identify the leakers by assertions of the law enforcement privilege as to a great number of thediscovery requests. See, e.g., Plaintiff’s Motion to Compel Discovery and Overrule -15- Defendants’ Assertion of Law Enforcement Privilege over Information Disclosed to the Press, [D.E. # 121]. Thus far, Dr. Hatfill’s discovery efforts have revealed numerousleaks from government officials to the press regarding personal information about Dr.Hatfill, his status in the anthrax investigation, and the techniques used to investigate his possible involvement in the events related to the anthrax mailings. However, all of hisefforts have failed to reveal the names of the sources who leaked this information. Additionally, through an agreement with the agency defendants and the new agencies, Dr. Hatfill had agreed to withdraw Federal Rule of Civil Procedure 30(b)(6) deposition subpoenas for the testimony of various news agency representatives in exchange for the testimony of the reporters who are the subject of his current motion tocompel. The depositions of these reporters revealed over 100 separate disclosures about Dr. Hatfill that they received directly from either FBI or DOJ sources, purportedly in violation of the Privacy Act. Pl.’s Mem. at 3. However, the reporters have vowed to maintain the confidentiality of their sources, asserting a reporters’s privilege as grounds for their positions. As in Lee, this Court concludes that Dr. Hatfill has satisfied both prongs of the Zerilli guidelines necessary to defeat the journalists’ qualified privilege, because as more fully set out below, the information sought is clearly central to his Privacy Act claims, and he has exhausted all reasonable alternative means of acquiring the sources who leaked the information that is the subject of this litigation. See Lee, 413 F.3d at 56. First, although the reporters have disclosed that their sources were FBI and DOJ officials, it seems clear that the actual identity of the sources will be important, and quite -16- possibly essential, in proving his Privacy Act claims. This is so because for the plaintiff to succeed on his Privacy Act claim and receive an award of damages under § 552a(g)(4), he must prove that the agency acted willfully or intentionally. 5 U.S.C. § 552a(g)(4). An agency acts willfully or intentionally “either by committing the act without grounds for believing it to be lawful, or by flagrantly disregarding others’ rights under the [Privacy] Act.” Albright v. United States, 732 F.2d 181, 189 (D.C. Cir. 1984). Thus, the identity of DOJ and FBI sources will be an integral component of the plaintiff’s attempt to prove the requisite agency mens rea. See McCready v. Principi, 297 F. Supp. 2d 178,197 (D.D.C. 2003) (rejecting Privacy Act claim where no one could identify the identity of the leaking official, stating that “without more evidence of the perpetrator of the alleged ‘leak’ and that the ‘leak’ was intentional or willful, no violation of the Privacy Act can be determined”). Thus, the names of the sources are central to Dr. Hatfill’s case.

Second, Dr. Hatfill has exhausted all reasonable alternatives for acquiring the sources of the leaked information. As discussed above, Dr. Hatfill has sought to obtain the identity of the leakers through other means of discovery, such as depositions, interrogatories, requests for production and requests for admissions. Most telling of his exhaustion of alternative means of acquiring the information are Dr. Hatfill’s attempts to identify the names of the sources from the DOJ and the FBI themselves. Particularly, in 2004, with the Court’s approval, the parties agreed upon comprehensive waivers that would be distributed to DOJ and FBI personnel, offering them the opportunity to waive any promises of confidentiality the press had promised, in exchange for the sought after information. Pl.’s Mot. at 5. Over 100 officials from both agencies voluntarily signed -17- the waivers, but the reporters nevertheless refused to reveal whether any of the employees who had signed the waivers were their sources. Id. at 5-6. On this record, the Court concludes that Dr. Hatfill has exhausted his alternative means for obtaining the information and he is therefore entitled to further testimony from the reporters.

C. Federal Common Law Privilege In addition to the First Amendment protection the reporters are afforded, they also urge the Court to recognize a federal common law privilege for reporters because “reason, experience and precedent support a privilege protecting reporters from the compelled disclosure of confidential sources, regardless of the need of private litigants.” Isikoff Opp’n at 29; Stewart Mem. at 38; Locy Mem. at 13-15. The reporters propose that in addition to the exhaustion and centrality factors discussed above, a common law privilege further requires the Court to weigh the plaintiff’s private interest in obtaining the information against the public’s interest in newsgathering. Locy Mem. at 15. The reporters contend that this additional analysis will lead the Court to conclude that the plaintiff has failed to overcome a federal common law reportorial privilege they urge this Court to recognize. Id. The reporters’ request raises two fundamental questions that have not yet been definitively resolved by the District of Columbia Circuit or the Supreme Court: (1) whether a federal common law reportorial privilege exist and (2) if such a privilege exists, the scope of the privilege and how it may be overcome. See In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 972-73 (D.C. Cir. 2005). Previously unrecognized common law testimonial privileges may be recognized by federal courts pursuant to Rule 501 of the Federal Rules of Evidence, if doing so is -18- prudent “in the light of reason and experience.” Fed. R. Evid. 501; see Jaffee v. Redmond, 518 U.S. 1, 8 (1996). As the Supreme Court has stated, “the common law is not immutable but flexible, and by its own principles adopts itself to varying conditions.” Jaffee, 518 U.S. at 8 (quoting Funk v. United States, 290 U.S. 371, 383 (1933)). Whether a new common law privilege warrants recognition under Rule 501, therefore, “should be determined on a case-by-case basis.” Id. (quoting S. Rep. No. 93-1277, at 13 (1994), reprinted in 1990 U.S.C.C.A.N. 7051, 7059)) (footnote omitted). Rule 501 “did not freeze the law governing the privilege of witnesses in federal trials at a particular point in our history, but rather directed federal courts to ‘continue the evolutionary development of testimonial privileges.’” Id. at 8-9 (quoting Trommel v. United States, 445 U.S. 40, 47 (1980)) (additional citation omitted).

The Supreme Court also stated in Jaffee that “[t]he common law principles underlying the recognition of testimonial privileges” can be characterized as follows: For more than three centuries it has now been recognized as a fundamental maxim that the public has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule. Id. at 9 (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)) (footnote omitted)

To qualify as an “[e]xception[] from the general rule disfavoring testimonial privileges” requires “a ‘public good transcending the normally predominant principle of utilizing all rational means for ascertaining [the] truth.’” Id. (quoting Trammel v. United States, 445 -19- U.S. 40, 50 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting) (internal quotation omitted). It was against this legal backdrop that the Jaffee Court acknowledged “a privilege protecting confidential communications between a psychotherapist and her patient.” Id. Recently, the District of Columbia Circuit succinctly summarized the four factors the Supreme Court identifie in Jaffee for lower courts to consider in determining whether to establish a new privilege under Fed. R. Evid. 501, . . . [, namely,] whether the privilege is [1] ‘rooted in the imperative need for confidence and trust’, . . . [2] whether the privilege would ‘serve public ends,’ . . . [3] what evidentiary benefit would arise from denying the privilege, . . . [4] and the States’ rules on the subject . . . .” In re Subpoena Duces Tecum Issued to Commodity Futures Trading Comm’n, 439 F.3d 740, 750 (D.C. Cir. 2006) (citing Jaffee, 518 U.S. at 10-15) (internal citations omitted). The reporters contend that all four of these factors are satisfied with respect to recognizing a common law reporters’ privilege in this Circuit. Isikoff Opp’n at 30-34. The Court is unpersuaded that the reporters have satisfied these prerequisites.

In Jaffee, the Supreme Court found that psychotherapy “is rooted in the imperative need for confidence and trust,” 518 U.S. at 10 (citation omitted), because it “is completely dependent upon [patients’] willingness and ability to talk freely,” id. (citation omitted). By contrast, a free press is not dependent upon a “right” to keep a reporter’s confidential sources secret, see Lee v. Dep’t of Justice, 401 F. Supp. 2d 123, 141 (D.D.C. 2005), nor are confidential sources a “public good of transcendent importance,” Jaffee, 518 U.S. at 11; Lee, 401 F. Supp. 2d at 141 (“The transcendent importance of a free press is that reporters can report the news and express opinions -20- without fear of Government oppression or interference. That is the true purpose and function of the language in the First Amendment . . . Anonymous sources are not a sine qua non of journalism but only an important and useful tool”) (citation omitted). Unlike the psychotherapist’s privilege recognized in Jaffee, “the likely evidentiary benefit that would result from the denial of the [reporter’s] privilege” is far from “modest.” 518 U.S. at 11. Denying civil litigants access to the identity of government officials who have allegedly illegally leaked information to reporters would effectively leave Privacy Act violations immune from judicial condemnation, while leaving potential leakers virtually undeterred from engaging in such misbehavior when the communications are made to reporters. The present case perfectly illustrates the perverse effect recognition of a reporter’s privilege would have on those individuals to whom the Privacy Act is intended to afford remedial relief, handicapping an aggrieved party’s ability to obtain remedial relief for the alleged destruction of his good name, reputation and ability to earn a living in his chosen profession purportedly caused by illegal leaks perpetrated by government officials. Thus, the reporters’ concern of not “chilling” the free flow of information to the media must be subordinate in the context of an actionable Privacy Act violation claim. This result is called for because affording supremacy to a reporter’s privilege in such situations would erect a potentially insurmountable hurdle for a Privacy Act litigant seeking to hold the government accountable for leaks condemned by the Act. Therefore, even assuming arguendo, that a qualified common law reporter’s privilege is recognizable in this Circuit, extending the privilege to Privacy Act cases where a viable claim has been pled would be inappropriate. To rule otherwise would frustrate the fundamental purpose for the -21- Privacy Act’s adoption. Lee, 401 F. Supp. 2d at 141-42 (holding that protecting reporters from forced disclosure of their confidential sources “would undermine the fundamental purpose of the Privacy Act”). In one of its most recent cases addressing the subject, the Circuit Court noted that its three panel members were “not of one mind on the existence of a common law privilege.” In re Miller, 397 F.3d at 973 (explaining that “Judge Sentelle would hold that there is no such common law privilege . . . [,]Judge Tatel would hold that there is such a common law privilege . . . ,” while Judge Henderson concluded that the Court “need not,and therefore should not, reach that question”). Consequently, the In re Miller Court declined to reach the question but agreed that “if there is any such privilege, it is not absolute and may be overcome by an appropriate showing.” Id. And, all three judges wrote extensive concurrences on the matter. Most Notably, Judge Sentelle argued that Branzburg foreclosed recognition of a federal common law privilege for reporters. Id. at 972-973 (Sentelle, J. concurring) (finding it “indisputable that the High Court rejected a common law privilege in the same breath as its rejection of such a privilege based o the First Amendment”); but see id. at 983 (Henderson, J. concurring) (stating that “I cannot agree with Judge Sentelle’s conclusion that the United States Supreme Court has answered the question we now avoid”). However, Branzburg involved a grand jury investigation, and “[to] date, the [District of Columbia] Circuit has limited the applicability of Branzburg to criminal proceedings.” Lee, 401 F. Supp. 2d at 136 (citation omitted).

Therefore Branzburg “is not dispositive within [this] Circuit in the context of civil litigation.” Id.; see also Zerilli, 656 F.2d at 711 (noting that “this Circuit has previously held that in civil cases . . . [Branzburg] is not controlling”); Carey v. Hume, 492 F.2d -22- 631, 635-36 (D.C. Cir. 1974). In any event, if this Court were to follow Judge Tatel’s lead and recognize a common law reporters’ privilege, Judge Tatel’s formulation in In re Miller would have this Court employ a three-part balancing test, that would require the Court to “consider not only [1] the [plaintiff’s] need for the information and [2] exhaustion of alternative sources; but [to] also . . . [3] weigh the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value.” In re Miller, 397 F.3d at 997-98 (Tatel, J. concurring). While the first and second parts of Judge Tatel’s proposed test,exhaustion and centrality, parallel the First Amendment analysis discussed above and provoke little controversy, his balancing component, as Judge Henderson recognized, is extremely problematic. See id. at 985 (Henderson, J. concurring). Thus, although declining to reach the common law privilege question, Judge Henderson noted that while she endorses the centrality and exhaustion prongs, she had great doubt about the propriety of the judicial branch adopting Judge Tatel’s “public interest” balancing prong, id. at 984-85 (Henderson, J. concurring) (“I am not convinced that a balancing test that requires more than an evaluation of the essentiality of the information to the prosecution and the exhaustion of available alternative sources thereof is either useful or appropriate . . . ‘The task of judges, like other officials outside the legislature branch, is not to make the law but to uphold it in accordance with their oaths’”) (quoting Branzburg, 408 U.S. at 706), in the absence of legislative authorization, id. at 985. But, Judge Tatel opines that the “public interest” balancing prong is necessary because “need and exhaustion will almost always be satisfied” in a leak case, “leaving the As discussed above, Dr. Hatfill’s and Dr. Lee’s cases share many common characteristics. They are both scientists who were investigated by the FBI for extremely serious and well-publicized crimes. Lee, 401 F. Supp. 2d at 126. Both men alleged that government officials leaked information to reporters in violation of the Privacy Act forthe purposes of decreasing the immense pressure the government faced to show that progress had been made in solving the crimes, and the success of their claims under the Privacy Act was in Lee, and is here, largely dependent upon being able to identify the confidential sources, which the reporters refuse to voluntarily disclose. Id.

This Court agrees with Judge Collyer’s assessment that the proposed test – “weigh[ing of] the public8 interest in compelling disclosure . . . against the public interest in newsgathering” – is “inherently unworkable.” Lee, 401 F. Supp. 2d at 138-39. Judge Collyer prudently reasons that “[s]ubmission of a reporter's privilege to a judge’sdetermination of the newsworthiness of his or her story is . . . very troubling [because] [s]uch a practice would create a subjective and elastic standard whose outcome could not be predicted.” Id. (citing Jaffee, 518 U.S. at 17-18, (“Making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.”)) -23- reporter’s source unprotected regardless of the information’s importance to the public.” Id. at 997 (Tatel, J. concurring). Despite this Court’s respect for Judge Tatel’s legal acumen, without controlling precedent from the Circuit that the public interest balancing element is a necessary protection for reporters, the Court must decline to employ it, especially given its rejection by this Circuit in the First Amendment context. See, e.g., Zerilli, 656 F.2d at 712.

On facts strikingly similar to the present dispute, Judge Collyer of this Court7 declined to employ the third prong of Judge Tatel’s concurrence, concluding that to do so would be “inherently unworkable[,]” especially on the facts before her. Lee, 401 F.Supp. 2d at 139. She noted that Judge Tatel’s test that would apply to a federal8 common law privilege is essentially the same test he proposed for First Amendment privilege claims in his dissent from the denial for rehearing en banc in Lee. Id. at 141. As Zerilli, 656 F.2d 705, and Lee, 413 F.3d at 53, are clearly at odds with Judge Tatel’s “public interest” balancing analysis approach in the First Amendment context in cases arising under the Privacy Act, this Court must also reject the reporters’ invitation to bestow life to the “public interest” analysis in the context of a federal common law -24- privilege. See Lee, 401 F. Supp. 2d at 139 (reasoning that “it would circumvent the Court of Appeals’ decisions in In re Miller and Lee to recognize the same test now under the common law”). Judge Collyer further concluded that “[c]ourts are ill-suited to decide the degree to which information is beneficial or unimportant to the common weal.” Id. She noted that the plaintiff’s plight in that case may be characterized in one sense as “advancing an entirely personal quest for monetary damages . . . . [o]r, [on the other hand,] he may be seen as attempting to bring to light a serious abuse of power by senior federal officials who intentionally leaked information about [him] to cover up their own ineptitude.” Id. at 139-40. Furthermore, the Jaffee Court also rejected a balancing assessment component, reasoning that “[m]aking the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.” Jaffee, 518 U.S. at 17-18. In the final analysis, this Court must agree with Judge Collyer that to adopt the public-private balancing test as part of a yet to be recognized common law reporter’s privilege in this Circuit “would circumvent the [District of Columbia Circuit’s] decisions in In re Miller and Lee. Lee, 401 F. Supp. 2d at 139. Refusal to acquiesce to the pleas of the reporters comports with the guidance from both the Supreme Court and District of Columbia Circuit that “new privileges should be created sparingly and with caution.” Id. at 136-37 (citing United States v. Nixon, 418 U.S. 683, 710 (1974) (“Exceptions to the demand for every man’s evidence are not lightly created or expansively construed, for Federal Rule of Civil Procedure 45 governs the circumstances under which a subpoena may be quashed by a court. The rule states, in pertinent part, that (3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance; (ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held; (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iv) subjects a person to undue burden. CBS incorporates by reference the points and authorities set forth in the memorandum of law filed on10 behalf of the Washington Post, Newsweek, and ABC. CBS Mem. at 2. Similarly, the New York Times incorporates by reference the points and authorities advanced by the Associated Press and the Baltimore Sun in support of its motion to quash. NY Times Mem. at 1. -25- they are in derogation of the search for truth.”)); see also Linde Thomson Langworthy Kohn & Vandyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1514 (D.C. Cir. 1993)(noting that “federal courts should not create evidentiary privileges lightly”) (citations omitted). Accordingly, adhering to the historical rejection of a common law reporter’s privilege in this Circuit, this Court also refuses to bring into being such a privilege. III. The Motions to Quash The media companies who were served with Federal Rules of Civil Procedure 30(b)(6) subpoenas uniformly contend that “[t]he subpoenas should be quashed pursuant to Rule 45, on the ground that they are duplicative of other discovery, unlikely to lead to the discovery of admissible evidence, [overbroad,] and unduly burdensome . . . .” ABC Mem. at 5; see also CBS Mem. at 2-3; AP Mem. at 11-15; and NY Times9 Mem. at 6-7. The New York Times, the Associated Press, and the Baltimore Sun10 additionally argue that the Court’s imposed deadline for the completion of discovery having expired, the plaintiff has improperly attempted to avoid the requirement of showing “good cause” to pursue additional fact discovery under Rule 16(b) of the -26- Federal Rules of Civil Procedure. AP Mem. at 9-10; see NY Times Mem. at 1. Alternatively, the media companies argue that the subpoenas should be quashed because Dr. Hatfill “cannot possibly overcome the reporter’s privilege recognized in this Circuit.” AP’s Mem. at 18; see NY Times Mem. at 1. On the other hand, Dr. Hatfill contends that “deposing the reporters (at least these six reporters) has not proved a successful method of obtaining the needed information.” Pl.’s Opp’n at 3. He opines that “[e]ven where none of a media company’s agents other tha[n] its reporter[s] know the sources’ identities, [he] must seek such testimony from the corporate entities in order to have any realistic chance of obtaining that information.” Id. at 7. He further contends that in the event the media companies refuse to answer the questions asked, “the Court will have the ability to assess sanctions of a sufficient magnitude to ensure compliance by the corporate entity that otherwise would simply foot the bill while its employee reporters, with its encouragement and support, withhold that information from the Court.” Id. He also argues that he has overcome the qualified reporter’s privilege with respect to the media companies and incorporates by reference his arguments raised in support of his motion to compel with respect to this position. Id. at 18. This Court cannot agree with Dr. Hatfill’s position that he has defeated the protection provided to the media companies under the First Amendment.

As discussed above, to determine when a court can compel a non-party journalist (as well as a media company) to provide testimony about a confidential source, “the information sought must [not only] go to the ‘heart of the matter,’” Lee, 413 F.3d at 59 In retrospect, the Court’s Order of May 31, 2007 denying the defendants’ motion for clarification, which11 sought to limit the plaintiff’s request for additional discovery, was issued without adequate consideration being given to the distinction between the media companies whose reporters were deposed and those media companies from whom Dr. Hatfill has never sought any discovery. This dichotomy may cause the Court to reach a different conclusion with respect to whether Dr. Hatfill may be allowed to proceed with discovery from the media companies that he chose not to depose. -27- (citing Zerilli, 656 F.2d at 713 (quoting Cary, 492 F.2d at 636), but “the litigant must exhaust ‘every reasonable alternative source of information,’” id. (citations omitted)

Here, this Court has already determined that the names of the sources who leaked information about Dr. Hatfill to the media are central to his Privacy Act claims. However, with respect to the second prong of the analysis — that “the litigant must exhaust ‘every reasonable alternative source of information,’” id. (citing Zerilli, 656 F.2d at 713) – Dr. Hatfill has not fulfilled this obligation with respect to the media companies. This Court has already granted the plaintiff’s motion to compel with respect to the individual reporters, which is directly targeted at obtaining the names of the reporters’ sources. There is no question that the reporters have direct knowledge of the names of the DOJ and FBI personnel who leaked information concerning Dr. Hatfill, as they admitted to having knowledge of this information during their previous deposition testimony. And, these reporters are employees of four of the media companies that Dr. Hatfill has subpoenaed, namely, CBS Broadcasting, American Broadcasting Company, Inc., The Washington Post, and Newsweek. Thus, it is the Court’s view that it is premature to authorize the taking of depositions of corporate representatives of media companies when their specific reporters are already being compelled by this Court to provide testimony on the same subject. 11 The Court is mindful that the reporters have previously invoked protection under -28- the First Amendment. However, they were not previously under court order to reveal their sources. Thus, depending upon the outcome of the reporter’s depositions, it may be necessary for the Court to revisit in the future whether corporate representatives of the media companies who employed the reporters when they disclosed the information concerning Dr. Hatfill to the public should be compelled to provide deposition testimony. However, to allow the depositions of the media companies to go forward at this time would be putting the cart before the horse. Accordingly, because Dr. Hatfill has not exhausted every reasonable alternative means to identify the sources of the leaks before seeking to acquire the information from the media companies themselves, the motions to quash the subpoenas must be granted. As to the media companies (and their reporters), from whom no discovery efforts have been directed – The New York Times, the Associated Press, and the Baltimore Sun – the Court has the same view concerning Dr. Hatfill’s failure to satisfy the exhaustion requirement as prescribed by Zerilli and Lee. Enforcing the Rule 30(b)(6) subpoenas served on these companies would, in and of themselves, not provide Dr. Hatfill with admissible evidence that he would be able to use at trial to prove the elements of his Privacy Act claims. Any information the corporate representatives of these entities provided through their depositions concerning the identities of the government sources would in all likelihood constitute inadmissible hearsay, as their knowledge would presumably be based on what they learned from someone other than “Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or12 hearing, offered in evidence to prove the truth of the matter asserted.” Federal Rule of Evidence 801(c). -29- the sources themselves. Thus, to establish the identity of the sources at trial, Dr. Hatfill12 must do so through the testimony of the individuals (presumably the companies’ reporters) who directly spoke to the sources. So at some point, the individuals who spoke to the sources would have to be identified and Dr. Hatfill would have to seek to obtain the identity of the sources from them. And, it is this Court’s view that this must be accomplished before efforts to obtain the information from the companies’ corporate representatives may occur. To hold otherwise would part with the teachings of Zerilli and Lee. However, should Dr. Hatfill seek to pursue discovery from reporters of The New York Times, the Associated Press, and the Baltimore Sun (and ultimately the companies themselves), the Court may in retrospect have to revisit its May 31, 2007 Order, which because of its breadth, would authorize Dr. Hatfill to pursue the course just described. The Court’s reservation about permitting Dr. Hatfill to proceed as previously authorized stems from his failure to seek any discovery from the reporters who authored the articles for the companies or from the companies themselves during the initial discovery period designated by the Court in its scheduling Order. June 6, 2005 Scheduling Order (Discovery period ordered closed on May 31, 2006). Because Dr. Hatfill opted not to seek discovery from these non-parties as he could have during the discovery period, the Court now has concerns about permitting him to do so at this time since “[a] Scheduling Order is “intended to serve as ‘the unalterable road map (absent good cause) for the remainder of the case.’” Dag Enterprises, Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 104 -30- (D.D.C. 2005) (citation omitted). Rule 16 of the Federal Rules of Civil Procedure makes plain that a scheduling order entered by a district judge “shall not be modified except upon a showing of good cause and by leave of the district judge . . . .” Fed. R. Civ. P. 16(b); see also Local Civil Rule 16.4 (“The court may modify the scheduling order at any time upon a showing of good cause.”); see also Olgyay v. Soc’y for Env. Graphic Design, Inc., 169 F.R.D. 219, 219 (D.D.C. 1996) (discovery after the cutoff date, even upon agreement of the parties, requires a showing of good cause and the modification of the court’s scheduling order). Thus, if Dr. Hatfill chooses to pursue discovery from these media companies (or their reporters), he will be required to seek leave of court to amend the scheduling order upon a showing of good cause as to why discovery should be reopened and why he should now be allowed to depose these media companies or their reporters. But to re-emphasize, taking Rule 30(b)(6) depositions of corporate representatives employed by the media companies from which he never sought discovery would be a final, as opposed to an initial effort, to obtain the identity of persons at the DOJ and FBI who leaked information concerning Dr. Hatfill. Accordingly, the motions to quash with respect to The New York Times, the Associated Press, and the Baltimore Sun are also granted.

V. Conclusion Based on the foregoing analysis, the plaintiff’s Motion to Compel Further Testimony from Michael Isikoff, Daniel Klaidman, Allan Lengel, Toni Locy, and James Consistent with this Memorandum Opinion, the plaintiff’s Motion to Compel Documents from the Media13 Companies, Allen Lengel, James Stewart, Daniel Klaidman, and Michael Isikoff, [D.E. # 166] is granted in part and denied in part. The motion with respect to the individual reporters is granted. The motion with respect to the media companies is denied.

An Order consistent with this Opinion is being issued contemporaneously herewith.14 -31- Stewart [D.E. # 157] is granted. These reporters are therefore ordered to comply with13 the subpoenas issued to them by Dr. Hatfill and to provide full and truthful responses to questions propounded to them by Dr. Hatfill’s attorneys. On the other hand, the motions to quash the subpoenas of ABC, The Washington Post, Newsweek, CBS, The Associated Press, the Baltimore Sun, and The New York Times are granted.

SO ORDERED this 13th day of August, 2007. 14 REGGIE B. WALTON United States District Judge

I think it says the reporters have to reveal their sources.

I only posted it all because it seemed a bit odd to have the defendants report the news to us. :0)

The Sheiks, Bioweaponeers and DARPA

a. Hardball Tactics In An Era Of Threats

A colleague of famed Russian bioweaponeer Ken Alibek and former USAMRIID head Charles Bailey, a prolific Ames strain researcher, has been convicted of sedition and sentenced to life in prison. He worked in a program co-sponsored by the American Type Culture Collection and had access to ATCC facilities, as well as facilities of the DARPA-funded Center for Biodefense at George Mason University then run by Dr. Alibek and Dr. Bailey. The bionformatics grad student once had a high security clearance for mathematical support work for the Navy.

The Washington Post,, in an article “Hardball Tactics in an Era of Threats,” dated September 3, 2006 summarized events relating to George Mason University microbiology graduate student Ali Al-Timimi. Al-Timimi had rock star status in Salafist circles and lectured in July 2001 (in Toronto) and August 2001 (in London) on the coming “end of times” and signs of the coming day of judgment. He spoke alongside officials of a charity, Islamic Assembly of North America (”IANA”) promoting the views of Bin Laden’s sheiks. Another speaker was Ali’s mentor, Bilal Philips, an undicted WTC 1993 conspirator. Bilal Philips worked in the early 1990s to recruit US servicemen according to testimony in that trial and interviews in which Dr. Philips explained the Saudi-funded program.

The Washington Post explained last Fall:

‘In late 2002, the FBI’s Washington field office received two similar tips from local Muslims: Timimi was running ‘an Islamic group known as the Dar al-Arqam’ that had ‘conducted military-style training,’ FBI special agent John Wyman would later write in an affidavit.

Wyman and another agent, Wade Ammerman, pounced on the tips. Searching the Internet, they found a speech by Timimi celebrating the crash of the space shuttle Columbia in 2003, according to the affidavit. The agents also found that Timimi was in contact with Sheikh Safar al-Hawali, a Saudi whose anti-Western speeches in the early 1990s had helped inspire bin Laden.

The agents reached an alarming conclusion: ‘Timimi is an Islamist supporter of Bin Laden’ who was leading a group ‘training for jihad,’ the agent wrote in the affidavit. The FBI even came to speculate that Timimi, a doctoral candidate pursuing cancer gene research, might have been involved in the anthrax attacks.

On a frigid day in February 2003, the FBI searched Timimi’s brick townhouse on Meadow Field Court, a cul-de-sac near Fair Oaks Mall in Fairfax. Among the items they were seeking, according to court testimony: material on weapons of mass destruction.”

The FBI first contacted Timimi shortly after 9/11. He met with FBI agents 7 or 8 times in the months leading up to his arrest. Al-Timimi is a US citizen born in Washington DC His house was searched, his passport taken and his telephone monitored. Ali Al Timimi defended his PhD thesis in computational biology shortly after his indictment for recruiting young men to fight the US.

Some of his communications in 2002 with dissident Saudi sheik Sheik Safar al-Hawali, one of the two fundamentalist sheikhs who were friends and mentors of Bin Laden, were intercepted. The two radical sheiks had been imprisoned from 1994-1999. Al-Hawali’s detention was expressly the subject of Al Qaeda’s claim of responsibility for Bin Laden’s 1996 Declaration of War against the United States and the 1998 embassy bombings.

Upon his indictment, in September 2004, al-Timimi explained he had been offered a plea bargain of 14 years, but he declined. He quoted Sayyid Qutb. He said he remembered “reading his books and loving his teaching” as a child, and that Qutb’s teaching was prevented from signing something that was false by “the finger that bears witness.” He noted that he and his lawyers asked that authorities hold off the indictment until he had received his PhD, but said that unfortunately they did not wait.

The indictment against the paintball defendants alleged that at an Alexandria, Virginia residence, in the presence of a representative of BIF, the defendants watched videos depicting Mujahadeen engaged in Jihad and discussed a training camp in Bosnia. His defense lawyer says that the FBI searched the townhouse of “to connect him to the 9/11 attacks or to schemes to unleash a biological or nuclear attack.” Famed head of the former Russian bioweaponeering program Ken Alibek told me that he would occasionally see him in the hallways at George Mason, where they both were in the microbiology department, and was vaguely aware that he was an islamic hardliner. When what his defense counsel claims was an FBI attempt to link him to a planned biological attack failed, defense counsel says that investigators focused on his connections to the men who attended his lectures at the local Falls Church, Va. In the end, he was indicted just for inciting them to go to Afghanistan to defend the Taliban against the United States. During deliberations, he reportedly was very calm, reading Genome Technology and other scientific journals. He was convicted and sentenced to life imprisonment plus 70 years.

At the same time the FBI was searching the townhouse of PhD candidate Ali Timimi, searches and arrests moved forward elsewhere. In Moscow, Idaho, FBI agents interviewed Nabil Albaloushi. (They apparently searched his apartment at the same time they searched the apartment of IANA webmaster Sami al-Hussayen, who they had woken from bed at 4:00 a.m.) Albaloushi was a PhD candidate expert in drying foodstuffs. His thesis in 2003 was 350 pages filled with charts of drying coefficients. Interceptions showed a very close link between IANA’s Sami al-Hussayen and Sheikh al-Hawali, to include the setting up of web sites, the providing of vehicles for extended communication, and telephone contact with intermediaries of Sheikh al-Hawali. Al-Hussayen had al-Hawali’s phone number upon the search of his belongings upon his arrest. Former Washington State University animal geneticist and nutrition researcher Ismail Diab, who had moved to Syracuse to work for an IANA-spin-off, also was charged in Syracuse and released as a material witness to a financial investigation of the IANA affiliate “Help The Needy.” After the government failed to ask Dr. Diab any questions for nearly 3 months, the magistrate bail restrictions and removed the electronic monitoring and curfew requirements.

In Moscow, Idaho, the activities by IANA webmaster Sami al-Hussayen that drew scrutiny involved these same two radical sheiks. U.S. officials say the two sheiks influenced al Qaeda’s belief that Muslims should wage holy war against the U.S. until it ceases to support Israel and withdraws from the Middle East. Sami Hussayen, who was acquitted, made numerous calls and wrote many e-mails to the two clerics, sometimes giving advice to them about running Arabic-language Web sites on which they espoused their anti-Western views.

At his sentencing, Dr. Al-Timimi spoke in clear and measured tones:

“I will not admit guilt nor seek the Court’s mercy. I do this not out of any disrespect to the Court. I do this simply because I am innocent.

My claim of innocence is not because of any inherent misunderstanding on my part as to the nature of the crimes for which I was convicted nor is it because my Muslim belief recognizes sharia rather than secular law. It is merely because I am innocent. ...

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

I declare the government’s recitation poor as it stripped those words of their meaning.

***

Imprisonment of any term, as this Court well knows, is a crisis for the incarcerated and his or her loved ones. I am no exception to that.

But the real crisis brought on my imprisonment, I sincerely believe is America’s. For if my conviction is to stand, it would mean that two hundred and thirty years of America’s tradition of protecting the individual from the tyrannies and whims of the sovereign will have come to an end. And that which is exploited today to persecute a single member of a minority will most assuredly come back to haunt the majority tomorrow.”

KSM invoked George Washington in his statement to a military tribunal in March 2007. That was far less compelling because he was admitting to many serious crimes. The evidence presented at trial, however, was offered only to show that Dr. Al-Timimi was guilty of nothing other than exhorting some young men to go abroad and defend their faith. It seems that, under the government’s case, his only crime was to put his religion before his nation-state. He was sentenced to life in prison plus 70 years. As one Washington Post reporter said of such cases, the government seems to be engaged in shadow boxing.

As Al-Timimi explained in his eloquent statement upon sentencing, he was convicted out of fear.

The former head of the DARPA Biological Counermeasures Program, Dr. Stephen S. Morse, who oversaw the funding of programs such as at the GMU Center for Biodefense, in an interview airing on Charlie Rose on October 10, 2001, explained that there was no need for the public to fear. He noted that maybe the mailer had a personal reason — no reason to assume the Florida death related to terrorism or a large group. Dr. Morse urged that we put it into perspective and inform the public so as to remove the mystery. He explained we should not allow ourselves to feel fear . As reiterated in other interviews that week, he said mailed anthrax was not a great danger. As those words aired, more letters were en route from that mailbox at 10 Nassau St. in Princeton. The anthrax mailer asked a pointed question in the letter containing a much more highly refined product — product that aerosolized much more readily. The new batch of letters asked: “Are you afraid?”

The answer was clearly yes.

In a November 30, 2004 letter of appeal circulated in sympathetic circles in the US and the UK, Bilal Philips encouraged Muslims to assist Al-Timimi “financially, morally or politically.” The letter urged that “whatever the charges against him [Al-Timimi] may be, from an Islamic perspective they are false and contrived in order to silence the Da’wah to correct Islam.” Dr. Timimi has a substantial pending appeal relating to warrantless wiretapping and the First Amendment. Dr. Timimi’s attorney likely is understandably annoyed that they keep moving Al-Timimi between prisons. George Washington University Professor Turley, his counsel on appeal, explained that last year they were playing a game of “Where’s Waldo?”, preventing him from consulting with his client.

b. The Education of Ali Al-Timimi

Milton Viorst, who knew Ali as a teenager, wrote a fascinating and sympathetic portrait in “The Education of Ali Al-Timimi” that appeared in The Atlantic Monthly, June 2006. In Saudi Arabia, Al-Timimi had been mentored by a Saudi-trained Canadian imam Bilal Philips. Philips was Al-Timimi’s Islamic Studies teacher at Manaret Riyadh High School in the early 1980s. Al-Timimi adopted Philips’ view that “The clash of civilizations is a reality,” and “Western culture led by the United States is an enemy of Islam.” Between 1991 and 1993, Philips relocated to the Mindinao, Philippines, where he taught at an islamic school. In 1993, according to an interview he gave in a London-based Arabic-language magazine interview, Philips ran a program to convert US soldiers to Islam stationed in Saudi Arabia during the first Persian Gulf War. Philips was made a proselytization official by the Saudi Air Force. Philips followed up in the US, with telephone calls and visits intended to recruit the veterans as potential members of Bin Laden’s network. He enlisted assistance from others based in the U.S. and members of Islamic centers all over the US. These conversion specialists financed pilgrimages for US veterans and would later send Muslim clerics in the United States to their homes. Bilal Philips encouraged some converts from this program to fight in Bosnia in the 1990s. He enlisted WTC plotter Clement Rodney Hampton-El to help him with the program. Hampton-El was associated with the Al-Kifah center in Brooklyn. Hampton-El in trial testimony described a meeting at the Saudi embassy in 1992 at which Philips gave him a list of US Army personnel to approach. Bilal Philips was named along with Osama bin Laden and Bin Laden brother-in-law Khalifa as unindicted co-conspirators in the Day of Terror trial that sent the “blind sheik” to prison.

Bilal Philips was a good friend of Adnan El-Shukrijumah’s father. Philips wrote in his guestbook on the family website his son created about learning Arabic: “He was one of my first teachers in Arabic and is a dear friend, though geography and world politics has separated us. Tell him that, as always, I love him for the sake of Allaah. Was salaam, Bilal.” Adnan’s family website also contained a picture of another “unindicted co-conspirator” of the ’93 bombing, Siraj Wahhaj, who would speak as the same Falls Church mosque as Al-Timimi.

After completing his religious education in Saudi Arabia in Medina, Ali Al Timimi had returned to the United States and received a second bachelor’s degree — this time in computer science at the University of Maryland, while also studying software programming at George Washington University. Timimi spoke at IANA conferences in 1993 and 1994. A senior al Qaeda recruiter, Abdelrahman Dosari, also spoke at three IANA conferences in the early 1990s. In December 1993, Al-Dorsari (a.k.a. Shaykh Abu Abdel Aziz “Barbaros”) spoke on ‘Jihad & Revival” and exhorted young men to fight for their faith as Al-Timimi would later be accused of doing privately with young men in Virginia.

At the first annual IANA conference in 1993, other speakers included Bilal Philips, a fellow named Mohammed Abdul-Rahman from Afghanistan, Mohammad Qutb from Cairo, and Gamal Sultan from Cairo.

There was a Mohammad Abdul-Rahman who was the blind sheiik’s son. The blind sheik would soon be sentenced for terrorism relating to WTC 1993 and the “Day of Terror” plot directed at NYC landmarks. ( In 2000, Mohammed Abdel Rahman, a/k/a “Asadallah,” who is a son of Abdel Rahman, was sitting alongside Bin Laden and Zawahiri and was videotaped encouraging others to “avenge your Sheikh” and “go to the spilling of blood.)

And there was a Mohammad Qutb who was Syed Qutb’s brother who taught Bin Laden at university in Saudi Arabia, having emigrated to Saudi Arabia in the 1980s. Qutb, as al-Hawali’s teacher, also strongly influenced al-Hawali. Al-Hawali would be sent to prison in 1994. In the 1970s, bin Laden was taught by Sayyid Qutb’s brother, Dr. Mohammad Qutb, and a Jordanian Muslim Brotherhood member, Dr. Abdullah Azzam, who later would found Al Qaeda. Azzam’s ideas of non-compromise, violent means, and organizing and fighting on a global scale were central to Al Qaeda methods. (A sentencing memo in the US District Court here in Syracuse mentions a videotaped interview made by IANA Vice Chairman Rafil Dhafir of Azzam in Afghanistan in the early 1980s but the local ACLU head assures me there was no enhancement in sentencing for terrorism.)

And there was a Gamal Sultan, the former EIJ member who would seek to start a political party in 1999 with EIJ founder Kamal Habib that sought to chart a nonviolent course (given the practical reality that the movement had been so infiltrated by the security forces), but that the blind sheik declined to endorse. (In 2000, on a trip to Pittsburgh, Gamal Sultan and his colleages thought Pittsburgh reminded them of Kandahar given its rolling hills.)

In a talk online, Bilal Philips (in a talk available on google video) explained that while it was true the Prophet Mohammed was married to a 9 year old, it was okay because back then in Saudi Arabia girls reached puberty at a younger age. Having sex with a 9 year old was okay so long as the local laws permitted it and the girl had reached puberty. He explained that if you wanted to have sex with young girls but your country declared it unlawful, you would have to emigrate to a country where it was permitted. Decadence and perversion, it would seem, is in the eye of the beholder.

In 1995 Ali Al Timimi headed an Islamic Assembly of North America (”IANA”) delegation to China together with IANA President Bassem Khafagi and Syracuse oncologist and IANA Vice Chairman Rhafil Dhafir. The IANA condemned the UN women’s rights conference as “an attack on Islam.” They urged Imams worldwide to tell Muslims about “the hidden agenda of this UN Conference, and how to foil the libertine and Westernization movements in the Islamic world.”

Salafist commentator Umar Lee has explained that during this period “the most dynamic part of the salafi movement in the DC-area were the students Sheikh Ali al-Timimi. In the DC area, who in the 1990’s co-founded a very small with a small office in DC for an organization called the Society for the Adherence to the Sunnah. In 1994, cooperation with Al-Timimi’s Society for the Adherence to the Sunnah, Washington, D.C., IANA held its first annual summer camp in English in early July, close to Baltimore, MD. The theme of the camp is, “Living the Shahadah in America.”

The month before they searched Ali’s townhouse, they questioned Mr. Lee. Police arrested Mr. Lee, an American-born Muslim in St. Louis, in mid-February 2003 on an unrelated charge and questioned him about whether he was planning any attacks against the U.S. government. Bret Darren Lee, whose Muslim name is Umar ben-Livan (and for simplicity he shortens it to “Umar Lee”, said Monday that he was stunned by the questions asked by the FBI agents: “I just looked at them. I didn’t think they’d asked me anything worth responding to.” Mr. Lee said he was sleeping in his apartment about 5 a.m. Sunday when he was woken by loud knocking on his door. But rather than a Muslim neighbor waking him for prayers, it was several police officers with weapons drawn. They put Lee up against a wall and asked whether he had any weapons in the apartment. The National Rifle Association sticker affixed to the apartment’s front door was a cheap version of an alarm system. While he was down at the station house, the FBI agents spent a half-hour questioning his wife about whether he was a terrorist and his thoughts about the Taliban

Author Milton Viorst, the father of a boy who knew Al-Timimi as young teen, wrote: “Dozens of his talks are available on the Internet in text and in audio format. They contain little about Arab concerns with the Arab-Israeli wars, the rivalries between the Arab states, the problems faced by Muslims living in the West, or even the war in Iraq. Rather, they reveal a man who reflects deeply on the Islamic vision of Judgment day, prophecy, the nature of the divine, and fiqh (Islamic jurisprudence) — subjects with which he grappled in Medina and in his private reading.” Al Timimi’s lectures (in English after Arabic opening) include “The Negative Portrayal Of Islam In the Media,” “Signs Before the Day of Judgement,” “Advice to the UK Salafis” and “Crusade Complex: Western Perceptions of Islam.” In one of his taped talks available online, al-Timimi warned Muslims not to become too friendly with non-Muslim “disbelievers” or even work for them if other jobs were available. “A Muslim should never allow the disbeliever to have the upper hand.” He was echoing the sentiments expressed in a lecture available on the internet by the IANA Chairman Rafil Dhafir, who said if a non-muslim mows your lawn, by all means, mow his lawn. But don’t be a friend to a non-musliim.

Al-Timimi’s increasing computer skills got him a job at SRA International where Ali worked as a “bioinformatics software architect” providing information technology to the government. Some of his jobs required that Ali obtain a high-level security clearance. One job resulted in a letter of recommendation from the White House. He then enrolled in a PhD program in computational biology at George Mason University.

By 2000, Ali Al-Timimi was already taking advanced courses at Mason in computational sciences. Timimi once explained his research: “I am currently a research scientist at the Center for Biomedical Genomics and Informatics, George Mason University. I am involved in the analysis of the microarray data generated by the CTRF Cancer Genomics Project. Likewise, I am developing new computational approaches and technologies in support of this project.” The webpage for Timimi’s program at the time explained: “Faculty members and graduate students in the Program in Bioinformatics and Computational Biology participate in numerous collaborative efforts including but not limited to the following Laboratories and Research Centers: Center for Biomedical Genomics and Informatics (GMU) , Laboratory for Microbial and Environmental Biocomplexity (GMU) and Center for Biodefense (GMU). Beginning the Spring of 2002, GMU hired Ali to develop a computer program that coordinated the research at several universities, letting him go only after he came under suspicion by the FBI. In Spring 2002, according to salary information obtained through the Freedom of Information Act, GMU hired him for $70,000 a year. In 2002, the employment was through the School of Computational Sciences and in 2003, it was through Life Sciences Grants & Contracts.

The School of Computational Sciences at George Mason is a joint venture between the American Type Culture Collection (”ATCC”) and George Mason. The joint venture is an effort to maximize research efforts by combining the academic and applied approaches to research. The School’s first activity was to teach an ATCC course in DNA techniques adapted for George Mason students. The ATCC is an internationally renown non-profit organization that houses the world’s largest and most diverse archive of biological materials. The Prince William Campus shares half of Discovery Hall with ATCC. ATCC moved to its current state-of-the-art laboratory at Discovery Hall (Prince Willam II) in 1998. ATCC’s 106,000-square-foot facility has nearly 35,000 square feet of laboratory space with a specialized air handling system and Biosafety Level 2 and 3 containment stations. The ATCC bioinformatics (BIF) program carries out research in various areas of biological information management relevant to its mission. BIF scientists interact with laboratory scientists in microbiology, cell biology, and molecular biology at ATCC and other laboratories throughout the world. ATCC has strong collaborations with a large number of academic institutions, including computational sciences at George Mason University. Through these partnerships, the George Mason Prince William Campus offers George Mason microbiology students an opportunity for students to be involved in current research and gain access to facilities and employment opportunities at ATCC and other partner companies.

While I’ve not yet found any reference directly confirming Timimi’s room number, the person who inherited his old telephone number (3-4294) is Victor Morozov in the Center for Biodefense, who upon joining the faculty and inheriting the phone number was in Rm. 154A, very near Dr. Bailey in Rm 156B. It has been suggested that it instead was Rm. 154B, in the middle of the office suite. GMU Information Services helpfully looked up the listings from 2001 directory. As of October 2001 (when the directory is published according to GMU Information Services), judging from the directory, Al-Timimi was still just a graduate studen

Former USAMRIID head and Ames strain anthrax researcher Charles Bailey, in Rm 156B, was given a Gateway desktop computer in mid-March 2001 (upon his arrival) — serial number 0227315480. Like the one Dr. Alibek apparently would get the next year in 156D. One way to think of proximity analysis — a form of true crime analysis — is the number of feet or inches between 154B and 156B/156D. Another way is to think of it is in terms of the number of feet or inches to the hard drives. You can judge the distance for yourself from this linked First Floor plan, clicking upon 154-156 area to enlarge.

Bilal Philips would remain an influence — speaking alongside Al-Timimi in July and then August 2001 in Toronto and then London. In a talk online, Bilal Philips (in a talk available on google video) explained that while it was true the Prophet Mohammed was married to a 9 year old, it was okay because back then in Saudi Arabia girls reached puberty at a younger age. Having sex with a 9 year old was okay so long as the local laws permitted it and the girl had reached puberty. He explained that if you wanted to have sex with young girls but your country declared it unlawful, you would have to emigrate to a country where it was permitted. Morality, it would seem, is in the eye of the beholder. Some find the dictates of morality in an old book rather than from within.

c. “The Straight Path”: Connecting the Dots

Al-Timimi was on an advisory board member of Assirat al-Mustaqueem (”The Straight Path”), an international Arabic language magazine that published out of Pittsburgh. Assirat, produced in Pittsburgh beginning in 1991, was the creation of a group of North American muslims, many of whom were senior members of IANA. Its Advisory Committee included Bassem Khafagi and Ali Al-Timimi. Two staff members who wrote for Assirat then joined IANA’s staff when it folded in 2000. They had been members of the Egyptian Islamic Jihad and were activists in the movement. One of the former EIJ members, Gamal Sultan, was the editor of the quarterly IANA magazine in 2002. Mr. Sultan’s brother Mahmoud wrote for Assirat also. The most prominent writer was the founder of the Egyptian Islamic Jihad, Kamal Habib. He led the Egyptian Islamic Jihad at the time of Anwar Sadat’s assassination when young doctor Zawahiri’s cell merged with a few other cells to form the EIJ. Two writers for Assirat in Pittsburgh had once shared a Portland, Oregon address with Al Qaeda member Wadih El-Hage who served a Bin Laden’s “personal secretary.”

Kamal Habib had been a founding member of Egyptian Islamic Jihad and had spent 10 years in jail for the assassination of Anwar Sadat. In the late 1970s, the cell run by the young doctor Zawahiri joined with three other groups to become Egyptian Islamic Jihad (EIJ) under Habib’s leadership. After a visit in 2000, Gamal Sultan said Pittsburgh was known as the “American Kandahar,” given its rolling hills. Besides forming the Islah (”’Reform) party wth Gamal Sultan, Mr. Kamal Habib contributed to Al Manar al Jadeed, IANA’s quarterly journal. The pair sought the blind sheik’s endorsement of their political party venture in March 1999. They were not seeking the official participation of organizations like the Egyptian Islamic Jihad or the Egyptian Islamic Group, they were hoping the groups would not oppose it. The pair wanted members of the movement to be free to join in peaceful partisan activity. They were not deterred when the blind sheik responded that the project was pointless, at the same he withdrew his support for the cease-fire initiative that had been backed by the imprisoned leaders of the Egyptian Islamic Group.

In early April 2001, Nawaf Alhazmi and Hani Hanjour rented an apartment in Falls Church, Virginia, for about a month, with the assistance of a man they met at the mosque. Nawaf Al-Hazmi had been at the January 2000 meeting at Yazid Sufaat’s Malaysian condominium in January 2000. Hijackers Nawaf and Hani Hanjour, a fellow pilot who was his friend from Saudi Arabia, attended sermons at the Dar al Hijrah mosque in Falls Church, where Al-Timimi was located until he established the nearby center. The FBI reports that at an imam who had recently also moved from San Diego had closed door meetings with hijackers Nawaf Alhazmi and Khalid Almihdhar in 2000 while all three of them were living in San Diego. Police later found the phone number of the Falls Church mosque when they searched the apartment of 9/11 planner Ramzi bin al-Shibh in Germany. In his 2007 book, Center of the Storm, George Tenet noted that Ramzi bin al-Shibh had a CBRN role.

Yusuf Wells, who was a fundraiser for the Benevolence International Foundation, visited Northern Virginia over the April 14-15, 2001 weekend. The previous month he had been at Iowa State University on a similar visit. On April 15, 2001, he was brought to a paintball game. In the second season, they had become more secretive and an inquiry by an FBI Special Agent was made in 2000 of one of the members about the games. Part of BIF fundraiser Wells’ job involved writing reports about his fund raising trips. In his April 15, 2001 report he writes:

“I was taken on a trip to the woods where a group of twenty brothers get together to play Paintball. It is a very secret and elite group and as I understand it, it is an honor to be invited to come. The brothers are fully geared up in camouflage fatigues, facemasks, and state of the art paintball weaponry. They call it ‘training’ and are very serious about it. I knew at least 4 or 5 of them were ex US military, the rest varied.

Most all of them young men between the ages of 17-35. I was asked by the amir of the group to give a talk after Thuhr prayer. I spoke about seeing the conditions of Muslims overseas while with BIF, and how the fire of Islam is still very much alive in the hearts of the people even in the midst of extreme oppression. I also stressed the idea of being balanced. That we should not just be jihadis and perfect our fighting skills, but we should also work to perfect our character and strengthen our knowledge of Islam. I also said that Muslims are not just book reading cowards either, and that they should be commended for forming such a group.

Many were confused as to why I had been ‘trusted’ to join the group so quickly, but were comforted after my brief talk. Some offered to help me get presentations on their respective localities.”

According to what Umar Lee tells me, Al-Timimi was not friends with the Virginia defendants — at least he did not regularly associate with them outside his classes they attended. But they were awed by Timimi, a man who could both translate 7th-century Koranic Arabic, talk about astrobiology with friends, or joke about the Redskins. The prosecutor argued that the paintball defendants “couldn’t figure out how to tie their shoelaces without asking al-Timimi.” The group looked up to Al-Timimi and sought his advice on all sorts of questions — to include whether it was permissible to pray in a moving car and whether one could cut short his prayers due to an approaching scorpion.

After 9/11, although a dinner that night was cancelled in light of the events of the day, Al-Timimi sought “to organize a plan in case of anti-Muslim backlash and to get the brothers together.” The group got together on September 16. Al-Timimi when he came in told the group to turn of their phones, unplug the answering machine, and pull down the curtains. Al-Timimi told the group that Mullah Omar had called upon Muslims to defend Afghanistan. Al-Timimi read parts of the al-Uqla fatwa to the group gave the fatwa to Khan with the instructions to burn it after he has read it. Al Timimi said the duty to engage in jihad is “fard ayn” — an individual duty of all Muslims. Over a lunch, Al-Timimi with two of the group, Al-Timimi told them not to carry anything suspicious and if they were stopped on the way to Pakistan to ask for their mother and cry like a baby. He told them to carry a magazine. The next day the pair left for Pakistan. The group from the September 16 meeting met again in early October, and a number left for Pakistan immediately after that meeting.

One man, Kwon, who had just become a U.S. citizen in August 2001, went to the mountain training camps of Lashkar-e-Taiba. The U.S. placed on its terrorist list in December 2001. Kwon practiced with a semi-automatic weapons and learned to fire a grenade launcher, but he was not able to join the Taliban. The border between Afghanistan and Pakistan closed as U.S. forces took control of Afghanistan shortly before Kwon completed his training. His trainers suggested that he instead go back to the United States and gather information for the holy warriors. Kwon told jurors at al-Timimi’s trial how he first heard Al-Timimi speak in 1997 at an Islamic Assembly of North America conference in Chicago and then found that he lectured locally near his home in Northern Virginia. “Russian Hell” — a jihad video that featured bloody clips of a Chechen Muslim rebel leader executing a Russian prisoner of war — was a favorite among the videos that the group exchanged and discussed. “They (the videos) motivated us. It was like they gave us inspiration,” Kwon told the jurors.

Kwon recalled driving Al-Timimi home from the mosque Sept. 11, 2001 after the terrorist attacks. He said Al-Timimi and another scholar argued, with Al-Timimi characterizing the attacks as a punishment of America from God, while his fellow scholar decried the attacks. “He told me to gather some brothers, to have a contingency plan in case there were mass hostilities toward Muslims in America.” Kwon said Al-Timimi told the group that the effort to spread Islam in the United States was over and that the only other options open to them were to repent, leave the U.S. and join the mujahadeen — the holy warriors preparing to defend Afghanistan against the coming U.S. invasion. Four days later, Kwon was on the plane to Pakistan. “I made the decision to go, but (Al-Timimi) was a big part of my decision to go.”

In 2001, Al-Timimi kept the personal papers of IANA President Khafagi at his home for safekeeping. His taped audio lecturers were among the most popular at the charity Islamic Assembly of North America in Ann Arbor, Michigan. He knew its President, Khafagi, both through work with CAIR and IANA. Al Timimi was close to his former teacher Safar al Hawali, the dissident Saudi sheik who once close to Osama bin Laden and whose writings hail what he calls the inevitable downfall of the West. Al Hawali has played a public role in mediating between Saudi militants and the government. Al-Timimi sought to represent and explain the views of radical sheik Al-Hawali in a letter he sent to members of Congress. The same nondescript office building at 360 S. Washington St. in Falls Church where Timimi used to lecture at Dar al Arqam housed the Muslim World League.

The Hawali October 6, 2002 letter drafted by Al-Timimi was hand delivered to every member of the US Congress just before their vote authorizing the use of force against Iraq, warning of the disastrous consequences that would follow an invasion of Iraq. Dr. Timimi’s defense committee explained on their website:

“Because Dr. Al-Timimi felt that he did not have enough stature to send a letter in his name on behalf of Muslims, he contacted Dr. Al-Hawali among others to send the letter. Dr. Al-Hawali agreed and sent a revised version which Dr. Al-Timimi then edited and had hand delivered to every member of Congress.”

In addition to the lucidly written October 6, 2002 letter , Hawali had sent a lengthy October 15, 2001 “Open Letter” to President Bush in which he had rejoiced in the 9/11 attacks. One Al-Hawali lecture sought to be introduced in the prosecution of the IANA webmaster, applauded the killing of Jews and called for more killing, praised suicide bombings, and said of Israel that it’s time to “fight and expel this hated country that consists of those unclean, defiled, the cursed.”

Bin Laden had referred to Sheik al-Hawali in his 1996 declaration of war on America. Prior to the 1998 embassy bombings, Ayman’s London cell sent letters to three different media outlets in Europe claiming responsibility for the bombings and referring to Hawali’s imprisonment. In two of the letters, the conditions laid out as to how the violence would stop were (1) release of Sheik Hawali (who along with another had been imprisoned in Saudi Arabia in 1994) and (2) the release of blind sheik Abdel Rahman (who had been imprisoned in connection with WTC 1993). Hawali was released in 1999 after he agreed to stop advocating against the Saudi regime and agreed to limit himself to urging the destruction of the United States and Israel.

The authorities had an interest in a lecture by dissident Saudi Sheik al-Hawali upon a search on February 26, 2003 of an IANA-connected scientist, ar adiological engineer, in Syracuse, New York. A federal magistrate, however, found that we had not reached the point where such reading material would be a reason for denial of bail.

Al-Timimi sent out a February 1, 2003 email in Arabic containing an article that said:

“There is no doubt Muslims were overjoyed because of the adversity that befell their greatest enemy. The Columbia crash made me feel, and God is the only One to know, that this is a strong signal that Western Supremacy (especially that of America) that began 500 years ago is coming to a quick end, God willing, as occurred to the shuttle.”

As Ali later explained to NBC, “To have a space shuttle crash in Palestine, Texas, with a Texas president and an Israeli astronaut, somebody might say there’s a divine hand behind it.”

d. GMU Center for Biodefense: Discovery Hall

Ali Al-Timimi worked at George Mason University’s Discovery Hall throughout 2000 and 2002 period. The Mason Gazette in “Mason to Pursue Advanced Biodefense Research” on November 17, 2000 had announced:”The School of Computational Sciences (SCS) and Advanced Biosystems, Inc., a subsidiary of Hadron, Inc., of Alexandria, are pursuing a collaborative program at the Prince William Campus to enhance research and educational objectives in biodefense research. The article noted that the program was funded primarily by a grant awarded to Advanced Biosystems from the Defense Advanced Research Projects Agency (DARPA).

Instead of starting a center from scratch, GMU chose to join forces with Dr. Alibek and Dr. Bailey’s existing research firm, Hadron Advanced Biosystems Inc., which was already working under contract for the federal government, having received funding from DARPA. Dr. Alibek told the Washington Post that he and Bailey had spent their careers studying an issue that only recently grabbed the country’s attention, after the anthrax mailings the previous fall. Dr. Bailey and Alibek met in 1991, when a delegation of Soviet scientists visited the USAMRIID at Ft. Detrick. Dr. Bailey explained that the purpose of the tour was to show the Soviets that the US was not developing offensive biological weapons. Bailey said he tried to engage Alibek in conversation but Alibek remained aloof. Alibek, for his part, explains that he was suspicious of this American smiling so broadly at him. A year later, Alibek would defect to the US and reveal an illegal biological program in the Soviet Union of a staggering scope. Alibek says that one reason he defected was that he realized that the Soviet intelligence was wrong — that the US research was in fact only defensive.

Former USAMRIID head and Ames researcher Bailey coinvented, with Ken Alibek, the process to treat cell culture with hydrophobic silicon dioxide so as to permit greater concentration upon drying. He was in Room 156B of GMU’s Discovery Hall. at the Center for Biodefense. The patent application was filed March 14, 2001. Rm 154A was Victor Morozov’s room number when he first assumed Timimi’s phone number in 2004 (and before he moved to the newly constructed Bull Run Hall). Morozov was the co-inventor with Dr. Bailey of the related cell culture process under which the silica was removed from the spore surface — but with the silicon still detectable by an EDX by reason of having been absorbed by the exosporium.

One ATCC former employee felt so strongly about lax security there the scientist called me out of the blue and said that the public was overlooking the patent repository as a possible source of the Ames strain. ATCC does not deny they had virulent Ames in their patent repository pre 9/11 (as distinguished from their online catalog). The spokesperson emailed me: “As a matter of policy, ATCC does not disclose information on the contents of its patent depository...”

George Mason University, Department Listings, accessed August 17, 2003, shows that the National Center For Biodefense and Center for Biomedical Genomics had the same mail stop (MS 4ES). The most famed bioweaponeer in the world — the former head of the Russian bioweapons program (to include anthrax) — was not far from this sheik urging violent jihad in an apocalyptic struggle between religions. Dr. Alibek’s office was Rm. 156D in Prince William 2. The groups both shared the same department fax of 993-4288. Dr. Alibek advises me he had seen him several times in the corridors of GMU and was told that he was a religious muslim hard-liner but knew nothing of his activities. At one point, Timimi’s mail drop was MSN 4D7

Charles Bailey at 3-4271 was the former head of USAMRIID and joined the Center in April 2001. He continued to do research with Ames after 9/11. Dr. Alibek reports that shortly after the mailings, he wrote Director Mueller and offered his services but was advised that they already had assembled a large group.

Ali Al Timimi had the same telephone number that Dr. Victor Morozov, of the Center for Biodefense would later have when he joined the faculty and occupied the newly constructed Bull Run Building, which opened in late 2004 (Rm. #362). If only to show the sophisticated cutting edge work they do at the Center, Dr. Morozov focuses on the development of new bioassay methods for express analysis, high-throughput screening and proteomics. He has recently developed a new electrospray-based technology for mass fabrication of protein microarrays. Dr. Morozov is currently supervising a DOE -funded research project directed at the development of ultra-sensitive express methods for detection of pathogens in which slow diffusion of analytes is replaced by their active transport controlled and powered by external forces (electric, magnetic, gravitational or hydrodynamic). His homepage explains that: “A variety of projects are available for students to participate in 1. Develop methods for active capturing of viruses and cells. 2. AFM imaging of macromolecules, viruses and cells. 3. Develop active immunoassay. 4. Analyze forces operating in the active assay of biomolecules and viral particles. 5. Develop immobilization techniques for antibodies and other biospecific molecules. 6. Study crystallization dynamics and morphology of organic and inorganic crystals in the presence of protein impurities. 7. Develop software to analyze motion of beads. 8. Develop software to analyze patterns in drying droplets. 9. Develop an electrostatic collector for airborne particles.”

Al-Timimi obtained a doctorate from George Mason University in 2004 in the field of computational biology — a field related to cancer research involving genome sequencing. He successfully defended his thesis 5 weeks after his indictment. Curt Jamison, Timimi’s thesis advisor, coauthor and loyal friend, was in Prince William II (Discovery Hall) Rm. 181A. The staff of Advanced Biosystems was in Rm. 160, 162, 177, 254E and several others. Computational sciences offices were intermixed among the Hadron personnel on the first floor of Prince William II to include 159, 161, 166A, 167, 181 B and 181C. Rm. 156B was Charles Bailey, former commander of the U.S. Army Medical Research Institute of Infectious Diseases, who was head of the Center for Biodefense. Defense contractor Hadron had announced the appointment Dr. Charles Bailey as Vice-President of Advanced Biosystems in early April 2001. Over 13 years, Dr. Bailey had served as a Research Scientist, Deputy Commander for Research, Deputy Commander and Commander at the U.S. Army Medical Research Instiute. As a USAMRIID scientist, he designed and supervised the construction of BL-3 containment facilities. His hands-on experience with a wide variety of pathogens is chronicled in 70 published articles. During his 4 years with the Defense Intelligence Agency, he published numerous articles assessing foreign capabilities regarding biological weapons.” When I asked Dr. Bailey to confirm Al-Timimi’s room number relative to his own, his only response was to refer me to University counsel. Counsel then never responded to my inquiry regarding their respective room numbers. Dr. Jamison never responded to an emailed query either. GMU understandably is very nervous about losing the $25 million grant for a new BL-3 regional facility to be located very near our country’s capital.

In Fall 2001, the Armed Forces Institute of Pathology (”AFIP”) had detected silicon dioxide (silica) in the attack anthrax — with a characteristic big spike for the silicon. The reason for the silicon dioxide/silica claimed to have been detected by AFIP has never been explained (and it’s been nearly a half decade). No silica was observable on the SEMS images that Dr. Alibek and Dr. Matthew Meselson saw. The Daschle product was “pure spores.” But wasn’t silicon dioxide used as part of a microdroplet cell culture process used prior to drying to permit greater concentration? As explained in a later related patent, the silica could be removed from the surface of the spore through repeated centrifugaton or an air chamber.

Dr. Alibek and the former head of USAMRIID, Ames anthrax research Charles Bailey, had filed a patent application in mid-March 2001 involving a microdroplet cell culture technique that used silicon dioxide in a method for concentrating growth of cells. The patent was granted and the application first publicly disclosed in the Spring of 2002. Weren’t the SEMS images and AFIP EDX finding both consistent with use of this process in growing the culture? It’s been suggested informally to me that perhaps the silicon analytical peak was more likely due to silanol from hydrolysis of a silane, used in siliconizing glassware. But didn’t the AFIP in fact also detect oxygen in ratios characteristic of silicon dioxide? Wasn’t the scientist, now deceased, who performed the EDX highly experienced and expert in detecting silica? Hasn’t the AFIP always stood by its report. In its report, AFIP explained: “AFIP experts utilized an energy dispersive X-ray spectrometer (an instrument used to detect the presence of otherwise-unseen chemicals through characteristic wavelengths of X-ray light) to confirm the previously unidentifiable substance as silica?” The nuance that was lost — or just never publicly explained for very sound reasons — was that silica was used in the cell culture process and then removed from the spores through a process such as centrifugation.

Dr. Morozov is co-inventor along with Dr. Bailey for a patent “Cell Culture” that explains how the silicon dioxide can be removed from the surface. Perhaps it is precisely this AFIP finding of silicon dioxide (without silica on the SEMS) that is why the FBI came to suspect Al-Timimi in 2003 (rightly or wrongly, we don’t know). The FBI would have kept these scientific findings secret to protect the integrity of the confidential criminal/national security investigation. There was still a processor and mailer to catch — still a case to prove. Above all, they needed to protect the due process rights of Al-Timimi while he defended himself on other charges.

e. Ali and The Islamic Ruling On The Peace Process

Establishing a center for Islamic education, al-Timimi contacted Egyptian-born Salafi Abd al-Rahman Abd al-Khaliq and translated his works into English. A London charity, JIMAS, at whose conferences Ali would speak, published the translation of the al-Khaliq’s book. He would give talks such as “Our Need for a Fiqh Suitable to Our Time and Place” at the 1997 conference in London or his “Cure for the Cancer of Globalization” or “The Position of Palestine in Allah’s Revelation” at the JIMAS conference in London August 24-27. (Fiqh relates to the principles of islamic jurisprudence governing warfare). The UK Islamic charity published the book calling on Muslims worldwide to “overthrow” peace treaties between Arab states and Israel.

Sheikh Abdur Rahman Abdul Khaliq’s book published by JIMAS, The Islamic Ruling on The Peace Process, that “the Jews are the enemies of the Islamic ummah (nation).” The US government’s National Commission for investigating the 9/11 attacks listed the book as one of a number of texts “espousing violence and hatred towards the west and reinforcing the victimization of Muslims as the hands of the infidels.” “The Jews have been the enemies of the Islamic ummah since the Messenger of Allah, Muhammad, peace and blessings of Allah be on him, began his call to Allah; and their hostility to this ummah will continue till the Day of Resurrection,” the National Commission’s website quoted from the book. “War or Jihad is an obligatory duty which remains in force till the Day of Resurrection. According to another version of the book made available by a separate jihadist website (currently offline), Muslims are completely prohibited from making peace with non-Muslims “except when the kafir (infidel) is humbled and surrenders.”

Any peace made by Muslim countries with Israel contravenes the Quran and must be reversed, the book argues. “Their (the Jews) hostility to the Muslims continues, so much so that stones and trees call out to the Muslims saying: ‘O Muslim, here is a Jew behind you, so fight him,’” a chapter in the book declared, based on an Islamic hadith (reported saying of Islam’s prophet, Muhammad). The author commands Muslims to “firmly believe in the invalidity” of peace agreements with Israel , and calls on them “to work towards overthrowing these treaties.”

The letters to the news organizations were mailed — coincidentally or not — on September 17 or September 18, either the day the Camp David Accord was signed in 1978 or the next day when it was approved by the Israeli knesset. Abdel-Rahman, the blind sheik, in the early 1980s, said: “We reject Camp David and we regret the normalization of relations with Israel. We also reject all the commitments that were made by the traitor Sadat, who deviated from Islam.” He continued: “As long as the Camp David Agreement stands, this conflict between us and the government will continue.” The letters to the Senators were mailed on the date Sadat was assassinated, October 6, for entering the peace treaty with Israel. Al-Timimi had hand-delivered the letter from Bin Laden’s sheik to every member of Congress on October 6, 2002, the first anniversary of the mailing to Senator Leahy and Senator Daschle.

After 9/11, a sweet young muslim Egyptian woman came to live with my family. She was the daughter of a senior Egyptian official who worked at the UN. Given that peace seems a good thing, as we walked along a local duck pond, we discussed how Sadat seemed a hero of historic proportion. Now I don’t know enough about foreign relations or history to be confident whether that is right or not. But in profiling Amerithrax, and having watched the tv detective Columbo for many years, I know when a motive seems to fit a person of interest and when the facts seem to point to the motive.

When pundits point to the targeting of Senator Leahy as pointing away from militant islamists as responsible for mailing, it may be that they were just unaware that he had the single most important role in appropriations to Egypt and Israel as head of the relevant Senate subcommittee overseeing the appropriations.

The government’s indictment alleged that after the space shuttle disaster in February, Timimi said the United States “was the greatest enemy of Muslims.”

f. The 2006 Arrest Of Falls Church Imam And Fellow Salafist Lecturer Awlaqi

Falls Church imam Awlaqi (Aulaqi), who met with hijacker Nawaf, reportedly was picked up in Yemen by Yemen security forces at the request of the CIA last summer. British and US intelligence had him and others under surveillance. Al-Timimi would speak alongside fellow Falls Church imam Awlaqi (Aulaqi) at conferences such as the August 2001 London JIMAS and the August 2002 London JIMAS conference. They would speak on subjects such as signs before the day of judgment and the like — dozens of their lectuers are available online.

Aulaqi was hired in early 2001 in attempt by the mosque’s leaders, who were criticized as being too conservative, to increase its appeal to younger worshipers. Born in New Mexico and raised in Yemen, he had the total package. He was young, personable, fluent in English, eloquent and knowledgeable about Middle East politics. Hani Hanjour and Nawaf Al Hazmi, worshiped at Aulaqi’s mosque for several weeks in spring 2001. The 9/11 commission noted that the two men apparently showed up because Nawaf Hazmi had developed a close relationship with Aulaqi in San Diego. Aulaqi told the FBI that he did not recall what Nawaf and he had discussed in San Diego and denied having contact with him in Falls Church.

In March 2002, Awlaqi had suddenly left the US and went to Yemen, thus avoiding the inquiry the 9/11 Commission thought so important. (Eventually Aulaqi would be banned from entering both the UK and US because of his speeches on jihad, martyrdom and the like). In 2001, Awlaqi came to Falls Church from San Diego shortly before Nawaf did.

What is Aulaqi, detained in 2006, telling questioners, if anything, about his fellow Falls Church imam and fellow Salafist conference lecturer Ali Al-Timimi?

In 2006, US authorities continued to aggressively prosecute the matter back in Northern Virginia and reindicted a “Virginia Paintball” defendant who had been acquitted previously. This time he was indicted for perjury. In late July 2007, Benkhala, another former GMU student from Falls Church (an acquaintance of the same folks who travelled from London to Pakistan in 1999 to a training camp) was sentenced to 10 years for perjury in connection with a grand jury appearance. Here are excerpts from an email from Sabri Ben Kahla to people whether from GMU or abroad. In his email, Mr. Benkahla summarized his legal matter and mentions an October 2006 search of his father’s medical supplies business.

“Dear Brothers And Sisters: As-Salem Aleikum wa rahmtu Allah

I pray this letter finds you all in good health and high imaan. I haven’t spoken to many of you for a while. But if you are receiving this email, we have met somewhere along this journey of life. Whether it be from GMU, or studies abroad in Syria or Egypt, or the University of Medina, or JHU or Hajj or a masjid, or a conference, or some type of activity; I have met you. I pray that you remember me.

***

To give you an update on recent events of my life: In June of 2003, shortly before I was to graduate from the University of Medina with a degree in Islamic law, I was arrested in Saudi Arabia. I was held in a small concrete cell without charge or explanation and no human contact other than periodic interrogations for a month. At the end of the month I found out this was done at behest of the F.B.I.

***

I was the final defendant in the “Virginia 11” case. Because of lack of evidence those charges were dropped but the prosecution came up with new charges. On March 9, 2004 after 8 months of home confinement and a one day bench trial, U.S. District Judge Leonie Brinkema ruled that I was not guilty on all counts. Instead of being allowed to get on with my life; after the acquittal, I was called for several “debriefings” with the F.B.I. I was compelled to testify before two Grand Juries.

***

Two years later, in February of 2006, I was indicted again in what my lawyers would argue is a case of double jeopardy; this time on charges of making false statements to the Grand Juries and obstruction of justice.

***

In October of 2006, one week before my scheduled trial, the F.B.I. raided my father’s medical supplies business, causing my sister to be rushed to the hospital. They took boxes and boxes of our personal documents and belongings.

***

Finally, on February 5, 2007, my trial has come to an unfavorable conclusion. I was not allowed to mention to the jury that I was acquitted, yet the prosecution brought in all the “evidence” of the previous case which has already been ruled upon to prejudice the jury.”

What questions did they ask Sabri Ben Khala before the grand jury in 2004? At a 2003 court hearing, the Assistant US Attorney said that Mr Sabri Ben Khala had a handwritten phone book that included a contact for Mr Ibrahim Buisir, whom Mr Laufman described as a Libyan-born resident of Ireland who ran Mercy International Relief Agency. One of Mercy International’s Directors, Bin Laden’s spiritual mentor and the express subject of the 1996 Declaration of War against the United States. One of its Dublin operatives, Mr Hamid Aich, is still at large, wanted in Canada for questioning about an attempted car-bombing of millennium celebrations in Seattle, Washington.

g. The Ability of Intelligence To Prevent Domestic Bioterrorism

Last year, FBI microbiologist Dr. Doug Beecher commented in a publication that it undermines biodefense preparations to underestimate the danger of simple spore preparations. He provided me a copy when I wrote him as the designated corresponding author and then I distributed it to reporters. The paper had been reviewed by Professor Meselson at Harvard. Dr. Beecher is right that there is no reason to view it as akin to “militarization” or requiring state sponsorship. The two sentences by Beecher actually did not address the issue at all. They just go to illustrate and confirm Dr. Alibek’s point that a sophisticated product can result from a relatively simple method. Here, the government even allowed the method to be commercialized and be published in the public domain for use in a broad range of possible commercial applications. Perhaps the United States biodefense establishment should not let officials commercialize and disclose such dual use technology, whether the patent is assigned to a DARPA-funded program or not — and whether deemed “biofriendly” or not. (The patent, which is not classified, has been assigned to George Mason University).

Everyone is basically right in substantial part—Richard Ebright, Milton Leitenberg, Gary Matsumoto, Stuart Jacobson, France Boyle, Matthew Meselson, Richard Spertzel, “Dick Destiny,” Cliff Kincaid, Barbara Hatch Rosenberg, Ed Lake, Richard Smith and many others who have long held strong and divergent opinions of what had been published in the media or what they knew. But it turns out that they apparently have just been seeing the elephant in the living room from a different angle. Actually, they’ve just been in a position to see the elephant’s rump from outside the living room door.

In a June 2005 interview in a Swiss (German language) weekly news magazine, Neue Zurcher Zeitung, Ken Alibek addresses the anthrax mailings:

A. “...What if I told you Swiss scientists are paid by Al Qaeda? You could believe it or not. It has become somewhat fashionable to disparage Russian scientists. Americans, Iraqis, or whoever could just as well be involved with Al Qaeda. Why doesn’t anyone speculate about that?”

Q. “But could one of your students build a biological weapon in the garage?”

A. “Let me reply philosophically: Two hundred years ago, it was unthinkable to believe that people would be using mobile telephones, wasn’t it? Everything changes. Our knowledge grows, and technology develops incredibly quickly. These days even high-school kids can breed recombinant microbial strains. I am not saying that a student is in a position to build a biological weapon all by himself. But the knowledge needed to do it is certainly there.”

No one who responded to my inquiries ever knew Al-Timimi to ever have been involved in any biodefense project. For example, former Russian bioweaponeer Sergei Popov did not know of any such work by Al-Timimi, and Anna Popova had only seen him in the hall on a very rare occasion. Dr. Alibek thought of him as a “numbers guy” rather than a hands-on type. Given that the FBI knows what Al-Timimi had for dinner on September 16, 2001, it is very likely that the past years have involved a continued search for the mailer and/or processor. His attorney emphasizes that while they searched for materials related to a planned biological attack when they searched his townhouse in late February 2003, they came up empty.

Peter Leitner at GMU is supervising a 2007 PhD thesis being finalized by a graduate student that explores biosecurity issues at GMU. Other students took a “red cell” approach that have corroborated the findings of the thesis. The thesis points to a pretty big iceberg indeed. Personally, I think the suppression of information relates partly because DARPA doesn’t want to take the hit for allowing a hardline Salafist, who had a high level security clearance relating to bioinformatics work for the Navy, access to a DARPA funded Center for Biodefense and the ATCC facilities.

The key to Amerithrax forensically perhaps was to know that encapsulation was done. That’s typically associated with drug delivery — preventing the good stuff from being destroyed by enzymes before being delivered to the intended organ. An expert in cutting edge work in such functionalized polymers was the guy who arranged for the 7/7 London bombmakers flat. His name is Magdy al-Nashar. The flat relatedly was used to ship stuff to Zawahiri’s chief aide, al-Hadi. Al-Nashar, according to his brother, had been held briefly in connection with Luxor. The biochemist’s lawyer, Mamdouh Ismail, was arrested in March 2007 and alleged to be Ayman’s chief conduit to jihadists in Egypt, Iraq and Yemen. A court in July ordered his release on bail pending trial.

Before they trot out al-Hadi’s confession at Guantanamo — al-Hadi once was Ayman’s chief aide — let me offer up some background on the Leeds [UK] / Falls Church. VA connection. In Northern Virginia, Al-Timimi’s personal assistant, Ali Asad Chandia, also served as the chauffer of London terorrist operative Mohammed Ajmal Khan who visited Falls Church more than once. The USG charged Chandia with arranging for the purchase of an electronic autopilot system and video equipment for use on model airplanes in connection with requests made by Mohammed Ajmal Khan to purchase the equipment .

Mohammed Ajmal Khan was a teaching assistant in Leeds. Chandia met Khan, a senior official and procurement officer for Lashkar-e-Taiba (LET), at an office of that organization in Pakistan in late-2001. Khan traveled to the United States in 2002 and 2003 to acquire equipment for LET, and Chandia assisted him in these efforts both times. Khan is serving a nine-year sentence in the UK on terrorism charges. (The U.S. will seek his extradition at the conclusion of that sentence.) Al-Timimi would tend to speak at annual conferences held in London. Marvin Miller, a lawyer for Chandia, says documents produced at trial evidenced he was under electronic surveillance. Ajmal Khan’s communications across the Atlantic were intercepted by the US National Security Agency and while in the US he was under surveillance pursuant to FISA.

Mohammed Ajmal Khan also was linked during a terrorist trial to Timimi’s acquaintance, Ahmed Omar Abu Ali, a 24-year-old who grew up in Falls Church and was found guilty of terrorist offences in Virginia.

There thus was a strong Falls Church [USA]-Leeds [UK] connection. The question for years now has been: did the fellow working near Ken Alibek and the former USAMRIID head [Ali Timimi], who had a high security clearance for his mathematics support work for the Navy in bioinformatics, know the Leeds biochemist who was expert in functionalized polymers, an assistant professor at Leeds, who provided the 7/7 bombers with the keys to the flat, a flat used to store things shipped to Zawahiri’s chief aide? Ali spoke at London JIMAS conferences, to include the one in August 2001. This London biochemist had studied in North Carolina in 2000.

This biochemist al-Nashar who provided the keys to the bombmaking flat was represented by an attorney who has been arrested in late March, Mamdouh Ismail. Egyptian authorities allege that Ismail has served as Ayman Zawahiri’s chief conduit to jihadists in Egypt, Yemen, and Iraq. Mamdouh Ismail, joined by his former law partner Montasser al-Zayat, had tried to start an islamist party at the same time as IANA writers Kamal Habib and Gamal Sultan in 1999. Between Mamdouh Ismail’s arrest, al-Hadi’s capture — and even the 2006 arrest of former Falls Church Imam Aulaqi — the solution to Amerithrax may indeed be close at hand.

It turns out that Islambouli, the brother of Sadat’s assassin, may be the final key that unlocks the Amerithrax mystery. Islambouli was part of a cell with KSM. KSM took over from the Al Qaeda military head Atef as head of the anthrax weaponization operation. The same Al Qaeda spymaster, Egyptian al-Hakaymah, who wrote about Amerithrax and served as Ayman’s intermediary in contacts with Mamdouh Ismail, announced Islambouli was leading those Egyptian Islamic Group members who have joined Al Qaeda to seek the release of their leader blind sheik abdel-Rahman. Who did Islambouli visit when he came to the US to plan the next attack, as described in the December 4, 1998 Presidential Daily Brief to President Clinton that warned of a planned attack involving airplanes and other means. The 9/11 Commission Report contains a copy of the declassified December 1998 PDB which discusses Islambouli. Everyone focuses on the PDB in the summer of 2001 directed to President Bush while forgetting that there was a PDB with the same substance from December 1998 to President Clinton.

We need to learn from history or we are doomed to repeat it.

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