Posted on 04/13/2008 8:20:52 AM PDT by ZacandPook
On Friday, the government filed this statement of the facts in its memorandum in support of its motion for summary judgment in a civil rights and Privacy Act lawsuit brought by Dr. Steve Hatfill.
“The anthrax attacks occurred in October 2001. Public officials, prominent members of the media, and ordinary citizens were targeted by this first bio-terrorist attack on American soil. Twenty-two persons were infected with anthrax; five died. At least 17 public buildings were contaminated. The attacks wreaked havoc on the U.S. postal system and disrupted government and commerce, resulting in economic losses estimated to exceed one billion dollars. The attacks spread anxiety throughout the nation – already in a heightened state of alert in the wake of the attacks of September 11 – and left behind a lasting sense of vulnerability to future acts of bioterrorism. Given the unprecedented nature of the attacks, the investigation received intense media attention. Journalists from virtually every news organization pursued the story, sometimes conducting their own worldwide investigation to determine the person or persons responsible for the attacks and the motive behind them.
A. Journalistic Interest In Hatfill That Predates Alleged Disclosures
Testimony has revealed that at least certain members of the media began focusing their attention upon Hatfill in early 2002 because of tips they had received from former colleagues of his who found him to be highly suspicious. Articles about Hatfill thus began to appear in the mainstream press and on internet sites as early as January of 2002, and continued until the first search of his apartment on June 25, 2002, which, in turn, led to even more intense press attention.
Barbara Hatch Rosenberg, a Professor at the State University of New York, for example, complained in January and February 2002 on the Federation of American Scientists’ (“FAS”) website of the FBI’s apparent lack of progress on the investigation, and described generally the person she believed was the “anthrax perpetrator.” “Analysis of Anthrax Attacks,” Possible Portrait of the Anthrax Perpetrator (Section IV.6), Defendant’s Appendix , Ex. 1. Rosenberg did not identify Hatfill by name, but described him in sufficient detail: a “Middle-aged American” who “[w]orks for a CIA contractor in Washington, DC area” and [w]orked in USAMRIID laboratory in the past” and “[k]nows Bill Patrick and probably learned a thing or two about weaponization from him informally.” Id. In his amended complaint, Hatfill states that “Professor Rosenberg’s ‘Possible Portrait of the Anthrax Perpetrator’ . . . described [him].”
In addition to her postings on the FAS website, Professor Rosenberg also presented a lecture on February 18, 2002 at Princeton University’s Woodrow Wilson School of Public and International Affairs, entitled “The Anthrax Attacks and the Control of Bioterrorism.” Ex. 2. During the course of her lecture, Rosenberg stated that she had “draw[n] a likely portrait of the perpetrator as a former Fort Detrick scientist who is now working for a contractor in the Washington, D.C, area[.]” Ex. 3. Rosenberg also commented upon Hatfill’s whereabouts on the date of the attacks, stating that “[h]e had reason for travel to Florida, New Jersey and the United Kingdom” – where the attacks had been and from which the letters had been purportedly sent – that “[h]e grew [the anthrax], probably on a solid medium, and weaponised it at a private location where he had accumulated the equipment and the material.” Id. Rosenberg also stated that the investigation had narrowed to a “common suspect[,]” and that “[t]he FBI has questioned that person more than once[.]” Id. Former White House Spokesperson, Ari Fleischer, immediately responded to Rosenberg’s comments, stating that there were several suspects and the FBI had not narrowed that list down to one. Ex. 4. The FBI also issued a press release, stating that it had “interviewed hundreds of persons, in some instances, more than once. It is not accurate, however, that the FBI has identified a prime suspect in this case.” Id. Rosenberg’s comments and writings were subsequently pursued by The New York Times (“The Times”). In a series of Op-Ed articles published from May through July 2002, Nicholas Kristof, a journalist with The Times, accused Hatfill of being responsible for the anthrax attacks. Kristof wrote on May 24, 2002 that the FBI was overlooking the anthrax perpetrator, noting that “experts” (Professor Rosenberg) point “to one middle-aged American who has worked for the United States military bio-defense program and had access to the labs at Fort Detrick, Md. His anthrax vaccinations are up to date, he unquestionably had the ability to make first-rate anthrax, and he was upset at the United States government in the period preceding the anthrax attack.” Ex. 5.
Hatfill first noticed the Kristof columns in May 2002. Hatfill Dep. Tran. in Hatfill v. The New York Times, No. 04-807 (E.D.Va.), Ex. 6, at 13: 3-6. According to Hatfill, “[w]hen Mr. Kristof’s article appeared, it was the first [time] that [he] realized that [his] name [was] in the public domain with connection with an incident of mass murder.” Id. at 16:15-18. Hatfill has charged that The Times began the “entire conflagration and gave every journalist out there reason to drive this thing beyond any sort of sanity. Mr. Kristof lit the fuse to a barn fire and he repeatedly kept stoking the fire.” Id. at 43:19 - 44:1. In July 2004, Hatfill thus filed suit alleging that these articles libeled him by falsely accusing him of being the anthrax mailer. Complaint, Hatfill v. The New York Times, No. 04-807 (E.D.Va.), Ex. 7.
Hatfill alleges in that lawsuit that “Kristof wrote his columns in such a way as to impute guilt for the anthrax letters to [him] in the minds of reasonable readers.” Id. ¶ 12. The articles, Hatfill claimed, which described his “background and work in the field of bio-terrorism, state or imply that [he] was the anthrax mailer.” Id. ¶ 14. Hatfill specifically alleged that statements in Kristof’s articles were false and defamatory, including those that stated that he: (1) “‘unquestionably had the ability to make first-rate anthrax’”; (2) “had the ‘ability’ to send the anthrax”; (3) “had the ‘access’ required to send the anthrax”; (4) “had a ‘motive’ to send the anthrax”; (5) “was one of a ‘handful’ of individuals who had the ‘ability, access and motive to send the anthrax’”; (6) “had access” to an ‘isolated residence’ in the fall of 2001, when the anthrax letters were sent”; (7) “‘gave CIPRO [an antibiotic famously used in the treatment of anthrax infection] to people who visited [the ‘isolated residence’]”; (8) his “anthrax vaccinations were ‘up to date’ as of May 24, 2002”; (9) he “‘failed 3 successive polygraph examinations’ between January 2002 and August 13, 2002”; (10) he “‘was upset at the United States government in the period preceding the attack’”; (11) he “‘was once caught with a girlfriend in a biohazard ‘hot suite’ at Fort Detrick [where Hatfill had concedely worked] surrounded only by blushing germs.’” Id. ¶ 16 (brackets in original). Hatfill alleges in his lawsuit against The Times that “[t]he publication of [Kristof’s] repeated defamation of [him] . . .gave rise to severe notoriety gravely injurious to [him].” Id. ¶ 29. The injury, Hatfill alleged, “was [made] all the more severe given the status and journalistic clout of The Times.” Id. This harm was compounded, Hatfill alleged, by the fact that these articles were “thereafter repeatedly published by a host of print and on-line publications and on the television and radio news” in the following months. Id., ¶ 30.
The case was initially dismissed by the trial court. Hatfill v. The New York Times, No. 04-807, 2004 WL 3023003 (E.D.Va.). That decision was reversed by the United States Court of Appeals, Fourth Circuit, 416 F.3d 320 (4th Cir. 2005). Upon remand, the trial court granted The Times summary judgment, finding that Hatfill was a public figure and public official and had failed to present evidence of malice. Hatfill v. The New York Times, 488 F. Supp. 2d 522 (E.D. Va. 2007). In arriving at that conclusion, the court considered Hatfill’s repeated media interviews before the attacks; the fact that he had “drafted a novel, which he registered with [the] United States Copyright office, describing a scenario in which a terrorist sickens government officials with a biological agent”; and had lectured on the medical effects of chemical and biological agents. Id. at 525.
Although not recited by the district court in The New York Times litigation, Hatfill also talked directly to reporters about his suspected involvement in the attacks. Brian Ross of ABC News, and his producer, Victor Walter, for example, talked separately to Hatfill on two to three occasions as early as January and February 2002, Ross Dep. Tran., Ex. 8, at 263:14 - 270:1, and continued talking to Hatfill until May of that year. Id. Ross also spoke to Hatfill’s friend and mentor, William Patrick, about Hatfill. Id. at 287:9 - 295:12. These meetings were prompted by discussions ABC News had in January 2002 with eight to twelve former colleagues of Hatfill at the United States Army Medical Research Institute of Infectious Diseases (“USAMRIID”). Id. at 242:7 - 246:14. Hatfill’s former colleagues found him to be “highly suspicious because of a number of things he had done when he worked at [USAMRIID], and this behavior was strange "and unusual and they felt that he was a likely candidate.” Id. at 242: 7-17. These meetings were also prompted by ABC News’s own investigative reporting into Hatfill’s background; the more ABC News learned “the more interested [they] became” in Hatfill. Id. at 264: 14-15.
Scott Shane of the Baltimore Sun also spoke to Hatfill in February 2002. Shane also spoke to USAMRIID employees who had worked with Hatfill. Ex. 9. These employees stated that they had been questioned by the FBI and “asked about a former Fort Detrick scientist” – Hatfill – “who returned a few years ago and took discarded biological safety cabinets, used for work with dangerous pathogens.” Id. at 1. These employees claimed that Hatfill “ha[d] expertise on weaponizing anthrax and ha[d] been vaccinated against it[.]” Id. Shane also called one of Hatfill’s former classmates, who was “plagued” by questions from the Baltimore Sun and others within the media regarding Hatfill’s “alleged involvement with the large anthrax outbreak in Zimbabwe[.]” Ex. 10. According to Hatfill, this classmate was told by Shane that Hatfill was purportedly responsible for “mailing the anthrax letters and also starting the [anthrax] outbreak in Zimbabwe/ Rhodesia twenty years before.” Ex. 11, at AGD29SJH00014; see also e-mail to Hatfill fr. DF Andrews, dated Mar. 1, 2002, Ex. 10. Hatfill told Shane in February 2002 that he had been “questioned by the FBI” and that “he considered the questioning to be part of a routine effort to eliminate people with the knowledge to mount [the] attack.” Ex. 9. Hatfill also confirmed for Shane that he had taken an FBI polygraph. Ex. 12, at 2. In March 2002, Hatfill left Shane a frantic telephone message reportedly stating how he had “been [in the bioterrorism] field for a number of years, working until 3 o’clock in the morning, trying to counter this type of weapon of mass destruction” and fearing that his “career [was] over at [that] time.” Ex. 13, at 2. According to Hatfill, Shane later Case 1:03-cv-01793-RBW Document 232-2 Filed 04/11/2008 Page 17 of 73
____ Hatfill did not sue either Shane or Rosenberg, even though Hatfill has stated that Rosenberg “caused” the focus on him. Ex. 14, at 10. Because Hatfill believed that the portrait Rosenberg painted at the February 2002 Princeton conference and in her website postings was so identifying and incriminating, however, Hatfill advised Rosenberg through his lawyers that “before [she] get[s] close to describing him in the future, by name or otherwise, [that she] submit [her] comments for legal vetting before publishing them to anyone.” Ex. 15. There is no evidence that the agency defendants bore any responsibility for the media presence. Information about FBI searches is routinely shared with a variety of state and local law enforcement authorities. Roth Dep. Tran., Ex. 16, at 163:5 -165:21; Garrett Dep. Tran. Ex. 17, at 79: 8-18. ______
compounded Hatfill’s problems by calling his then-employer, Science Applications International Corporation (“SAIC”), and accusing Hatfill of being responsible for the anthrax attacks, Ex. 11, at AGD29SJH00014, which, according to Hatfill, cost him his job as a contractor at SAIC. Id. 1
The media frenzy surrounding Hatfill intensified upon the search of his apartment on June 25, 2002, and the search of a refrigerated mini-storage facility in Ocala, Florida on June 26, 2002. Both were witnessed by the media, and the search of his apartment was carried live on national television. In addition to the television coverage, the searches generated a slew of articles about Hatfill throughout the media, one fueling the next. The Associated Press, for example, detailed in an article, dated June 27, 2002, Hatfill’s (1) work as biodefense researcher, including studies he had conducted at SAIC, and the work he had done at the USAMRIID; (2) his educational background; (3) where he had previously lived; and (4) security clearances he had held and the suspension of those clearances. Ex. 18. The Hartford Courant reported these same details, and additional information regarding Hatfill’s purported service in the Rhodesian army. Ex. 19. The next day -- June 28, 2002 -- the Hartford Courant reported details about Hatfill’s background in biological warfare, his vaccinations against anthrax, questioning that purportedly had occurred among Hatfill’s colleagues, his educational background (including the claim that he had attended medical school in Greendale), and lectures that he had given on the process of turning biological agents into easily inhaled powders. Ex. 20. None of this information is attributed to a government source.
B. Hatfill’s Public Relations Offensive
In July 2002, after these reports and after the first search of Hatfill’s apartment on June 25, 2002, Hatfill retained Victor Glasberg as his attorney. Glasberg Dep. Tran., Ex. 21, at 12: 16-19. Glasberg believed that “any number of people in the media [had] overstepped their bounds. . . . prior to July of 2002 .” Id. at 141:1 - 142:6. To counter this information, Hatfill set out on a “public relations offensive” of his own to “turn [the] tide.” Id. at 138: 20-21, 178: 12-13.
Recognizing that Hatfill “continue[d] [to] get[] killed with bad press, national as well as local[,]” Hatfill drafted a statement and Glasberg forwarded that statement in July 2002 to Hatfill’s then-employer at Louisiana State University (“LSU”). Ex. 11, at 1. The statement detailed Hatfill’s background, including his medical training and employment history, and provided details about Hatfill’s involvement in the anthrax investigation, including how he had been interviewed by the FBI and had taken a polygraph examination. Id. at AGD29SJH00002-13. Hatfill’s statement corroborated the conversations that Hatfill reportedly had with Scott Shane of the Baltimore Sun in February 2002, and how that interaction had purportedly cost Hatfill his job at SAIC in March 2002. Id. at AGD29SJH00014.
In his July statement, Hatfill was careful not to blame DOJ or the FBI for his troubles or for any wrongdoing for the information about him that had made its way into the press. He touted the professionalism of the FBI, noting that “[t]he individual FBI agents with whom [he had come] in contact during this entire process are sons and daughters of which America can be justifiably proud. They are fine men and women doing their best to protect this country.” Id. at AGD29SJH00016. Hatfill’s objection lay with the media, whom he labeled as “irresponsible[,]” for trading in “half-truths, innuendo and speculation, making accusations and slanting real world events . . . to gain viewer recognition, sell newspapers, and increase readership and network ratings.” Id.
As the investigation proceeded, however, Glasberg publicly criticized investigators on the date of the second search of Hatfill’s apartment, August 1, 2002, for obtaining a search warrant rather than accepting the offer Glasberg had allegedly made to cooperate. Ex. 22. So angry was Glasberg with investigators that he wrote a letter, dated the same day as the search, to Assistant United States Attorney Kenneth C. Kohl, denouncing the fact that the search had been conducted “pursuant to a search warrant.” Ex. 23. Glasberg forwarded a copy of this letter to Tom Jackman of the Washington Post, and to the Associated Press, the morning of August 1st. Glasberg, Dep. Tran., Ex. 24, at 265:12 - 266:5; see also Ex. 25 (Glasberg memorandum to file, stating, among other things, that Glasberg showed Jackman Kohl letter on August 1, 2002).
On the day of the search, an FBI spokeswoman at the Bureau’s Washington field office, Debra Weierman, “confirmed that the search was part of the government’s anthrax investigation.” Ex. 25. Weierman added, however, that “she was unable to confirm that [investigators were acting on a search warrant] or to provide any further information about the search.” Id.
The next day – August 2, 2002 – Glasberg faxed the Kohl letter to members of the media. Ex. 26. In the fax transmittal sheet accompanying the Kohl letter, Glasberg also advised the media that: Dr. Hatfill was first contacted by the FBI earlier this year, as part of the Bureau’s survey of several dozen scientists working in fields related to biomedical warfare. He was voluntarily debriefed and polygraphed, and voluntarily agreed to have his home, car and other property subjected to a lengthy and comprehensive search by the FBI. He and his lawyer Tom Carter were told that the results were all favorable and that he was not a suspect in the case. Id. at AGD16SJH03106. Subsequent to the fax transmittal by Glasberg, Weierman confirmed that the search had been conducted pursuant to a search warrant, but only after receiving appropriate authorization from her superiors. Weierman Dep. Tran., Ex. 27, at 93:16 - 94:14.
Hatfill had also accompanied Glasberg for his interview with Jackman the day before to address the “media feeding frenzy.” Ex. 28. Glasberg provided Jackman with the promise of an “[e]xclusive personal statement” from Hatfill and the promise of “[n]o other press contacts pending publication” of the article. Id. Glasberg thus provided Jackman background information about Hatfill, Rosenberg’s statements, and other publications. Ex. 25. Hatfill reportedly complained to the Washington Post in the interview about the media feeding frenzy, and about how his “friends are bombarded” with press inquiries. Ex. 29, at 1. Hatfill also complained about the “[p]hone calls at night. Trespassing. Beating on my door. For the sheer purpose of selling newspapers and television.” Id.
C. Attorney General Ashcroft’s Person of Interest Statements
Following this “media frenzy,” not to mention the two searches of Hatfill’s apartment, former Attorney General John Ashcroft was asked on August 6, 2002 (at an event addressing the subject of missing and exploited children) about Hatfill’s involvement in the investigation. Jane Clayson of CBS News asked General Ashcroft about the searches and whether Hatfill was a “suspect” in the investigation. Ex. 30, at 2. General Ashcroft responded that Hatfill was a “person of interest.” General Ashcroft cautioned, however, that he was “not prepared to say any more at [that] time other than the fact that he is an individual of interest.” Id. At the same media event, Matt Lauer of NBC News also asked General Ashcroft whether Hatfill was a “suspect” in the investigation. Ex. 31. General Ashcroft responded that Hatfill was a “person that – that the FBI’s been interested in.” Id. at 2. General Ashcroft cautioned that he was “not prepared to make a . . . comment about whether a person is officially a . . . suspect or not.” Id.
General Ashcroft made the same comments at a news conference in Newark, New Jersey on August 22, 2002, stating that Hatfill was a “person of interest to the Department of Justice, and we continue the investigation.” Ex. 32, at 1. As in his previous statements, General Ashcroft refused to provide further comment. Id. When asked upon deposition why he referred to Hatfill as a “person of interest” in the anthrax investigation in response to these media inquiries, General Ashcroft testified that he did so in an attempt to correct the record presented by the media that he was a “suspect” in the investigation, which he believed served a necessary law enforcement purpose. Ashcroft Dep. Tran., Ex. 33, at 81: 5-12; 103:18; 108: 9-13; 138: 5-7; 125: 18-21; 134:22 - 136:8. Prior to making these statements, General Ashcroft did not review or otherwise consult any investigative record, id. at 128:14 - 129:12, much less any record pertaining to Hatfill.
General Ashcroft’s initial statements on August 6, 2002 were followed, on August 11, 2002, by the first of Hatfill’s two nationally televised press conferences. Ex. 34. During his press conference, Hatfill lashed out at Rosenberg and other journalists and columnists who he believed wrote a series of “defamatory speculation and innuendo about [him].” Id. at 3. In apparent response to the “person of interest” statements, by contrast, he stated that he did “not object to being considered a ‘subject of interest’ because of [his] knowledge and background in the field of biological warfare.” Id. at 4. This was consistent with Hatfill’s statement to ABC News earlier in 2002 in which he stated that “his background and comments made him a logical subject of the investigation.” Ex. 35. As noted, moreover, Glasberg told the media -- almost a week before the first of General Ashcroft’s statements -- that “Hatfill was first contacted by the FBI [earlier that] year, as part of the Bureau’s survey of several dozen scientists working in fields related to biomedical warfare. He was voluntarily debriefed and polygraphed, and voluntarily agreed to have his home, car and other property subjected to a lengthy and comprehensive search by the FBI.” Ex. 26.
Hatfill’s second press conference was held on August 25, 2002. In the flyer publicizing the conference, Hatfill identified himself to the media -- in bold lettering -- as “the ‘person of interest’ at the center of the federal Government’s [anthrax] investigation.” DA, Exhibit 36.
D. Clawson’s “Sunshine” Policy
Patrick Clawson joined the Hatfill team in early August 2002 as spokesperson and “fielded hundreds of inquiries from members of the press worldwide regarding Dr. Hatfill[.]” Ex. 12, at 13. Clawson believed it best to employ a media strategy that would, in his words, “let it all hang out.” Id. at 50:10. Clawson felt that “permitting maximum sunshine into . . . Hatfill’s existence would do both him and the public the best good.” Clawson Dep. Tran., Ex. 37, at 50:16-18.
“The majority of Clawson’s communications with the press regarding this case have been oral and by telephone and he did not keep a press log or any other regular record of such contacts with the press.” Ex. 12, at 13. Clawson nonetheless admitted upon deposition that he revealed numerous details about Hatfill’s personal and professional background to members of the press (Clawson Dep. Tran., Ex. 37, at 101:9 - 105:21), including Hatfill’s professional expertise (id. at 103:10 - 105:21), use of Cipro (id. at 123:16 - 130:11, 248: 8-13), whereabouts on the days of the attacks (id. at 148:12 - 158:10, 361:15 - 362:3), expertise in working with anthrax (id. at 194:13 - 195:8), former service in the Rhodesian Army (id. at 210:9 - 211:10), and drunk driving arrest (id. at 795: 7-9, 798: 4-6). Clawson also told reporters what had been purportedly removed from Hatfill’s apartment during the two searches of his apartment on June 25, 2002 and August 1, 2002 (including medical books and a jar of bacillus thuringiensis (“BT”)) (id. at 121: 6-12, 131:2 - 131:12, 14:8 - 147:3, 313: 3-10). Clawson also freely relayed to the press that bloodhounds had been presented to Hatfill during the investigation (id. at 200: 15-19); that Hatfill had been the subject of surveillance (id. at 123:12-15, 428: 19-21); that Hatfill had taken polygraphs (id. at 135:16 - 137:17); and that he had submitted to blood tests (id. at 137:18-138:5, 347: 6-10).
In furtherance of Clawson’s “sunshine” policy, Hatfill, Clawson, and Glasberg, together, provided countless on-the-record, on-background (i.e., for use, but not for attribution), and off-the-record (i.e., not for attribution or use) interviews to counter misinformation. Although Hatfill repeatedly claimed upon deposition not to remember what he said during these interviews, he acknowledged in his responses to the Agency Defendants’ interrogatories having such conversations with, in addition to Mr. Jackman, Judith Miller of The New York Times, Jeremy Cherkis of the City Paper, Guy Gugliotta of the Washington Post, David Kestenbaum of National Public Radio, Rick Schmidt of the LA Times, Rob Buchanan of NBC Dateline, Jim Popkin of NBC News, Dee Ann David and Nick Horrock of UPI, Gary Matsumato of Fox TV, Bill Gertz of the Washington Times, and David Tell of the Weekly Standard. Ex. 12, at 3-4. With respect to the Matsumato interview, Glasberg warned Hatfill before the interview that he “should not be quoted, nor should Matsumato say or imply that he spoke with him.” Ex. 38, at 1. Glasberg warned Hatfill that “Matsumato must be willing to go to jail rather than reveal word one of anything [he] says on ‘deep background.’” Id.
All of these disclosures became too much even for Glasberg, who attempted to put a stop to them. In August, when Jackman aired his exclusive interview with Glasberg and Hatfill, Glasberg heralded the success of his public relations strategy noting that “Rosenberg, Shane and Kristof are, [each] of them, in varying stages of sulking, licking their wounds, reacting defensively and changing their tune.” Ex. 39. Slowly Glasberg advised both Hatfill and Glasberg to observe “the rule of COMPLETE SILENCE regarding anything and everything about the case[.]” Ex. 40 (emphasis in original). Ultimately, in September 2002, Glasberg ordered Clawson to stand down, noting “[w]hat you know, you know, and you have put virtually all of that into the public record. Fine. That is where we are, and for good or ill we can and will deal with it. But we must put a full stop to any further conveyance of substantive data about ANYTHING from Steve to anyone [but his attorneys].” Ex. 41 (emphasis in original). To no avail. On October 5, 2002, Hatfill and Clawson appeared together at an Accuracy in Media Conference. Hatfill was asked about the reaction of bloodhounds, and stated, I’m not supposed to answer things against . . . but let me tell you something. They brought this good-looking dog in. I mean, this was the best-fed dog I have seen in a long time. They brought him in and he walked around the room. By the way, I could have left at anytime but I volunteered while they were raiding my apartment the second time, I volunteered to talk with them. The dog came around and I petted him. And the dog walked out. So animals like me (laughter). Ex. 42, at 2.
Disclosures from the Hatfill camp to the media continued. For example, between late 2002 and May 8, 2003, Hatfill’s current attorney, Tom Connolly, and CBS News reporter James Stewart had multiple telephone conversations and two lunch meetings. Ex. 43. According to Stewart, Connolly told Stewart that the investigation was focusing on Hatfill, and detailed at great length the FBI’s surveillance of Hatfill. In virtually every one of these conversations, Connolly encouraged Stewart to report on these subjects. Id. at 96.
E. Louisiana State University’s Decision To Terminate Hatfill
At the time of the second search of his apartment in August 2002, Hatfill was working as a contract employee at the Louisiana State University (“LSU”) on a program to train first responders in the event of a biological attack. This program was funded by the Department of Justice’s Office of Justice Programs (“OJP”) as part of a cooperative agreement. Ex. 44. Under the terms of the cooperative agreement, OJP “maintain[ed] managerial oversight and control” of the program. Id. at 2. Following the second search of Hatfill’s apartment on August 1, 2002, Timothy Beres, Acting Director of OJP’s Office of Domestic Preparedness, directed that LSU “cease and desist from utilizing the subject-matter expert and course instructor duties of Steven J. Hatfill on all Department of Justice funded programs.” Ex. 45. LSU, meanwhile, had independently hired Hatfill to serve as Associate Director of its Academy of Counter-Terrorist Education. Following the second search, LSU placed Hatfill on administrative leave. Ex. 46. LSU then requested a background check of Hatfill. Ex. 47. During the course of that investigation, the University became concerned that Hatfill had forged a diploma for a Ph.D that he claimed to have received from Rhodes University in South Africa. Hatfill explained to Stephen L. Guillott, Jr., who was the Director of the Academy of Counter-Terrorist Education at LSU, that “[h]e assumed the degree had, in fact been awarded since neither his [thesis advisor] nor Rhodes University advised him to the contrary.” Ex. 48. LSU’s Chancellor, Mark A. Emmert, made “an internal decision to terminate [LSU’s] relationship with Dr. Hatfill quite independent of [the DOJ e-mail] communication.” Ex. 51.
Hatfill has now testified that in fact he created a fraudulent diploma with the assistance of someone he met in a bar who boasted that he could make a fraudulent diploma. Hatfill Dep. Tran., Ex. 49 at 19:20 - 20:12. Glasberg, moreover, has stated under oath that Hatfill’s earlier attempted explanation was untrue. Glasberg, Dep. Tran., Ex. 21, at 314:10 - 317:2. In a nationally televised 60 Minutes episode that aired in March 2007, Connolly confirmed that Hatfill forged the diploma for the Ph.D from Rhodes University. Ex. 50, at 3.
F. Hatfill’s Amended Complaint
Hatfill claims lost wages and other emotional damages resulting from General Ashcroft’s “person of interest” statements and other for-attribution statements by DOJ and FBI officials. He also seeks to recover for certain other alleged “leaks” by DOJ and FBI officials. Hatfill additionally asserts that the defendants violated the Act by purportedly failing to (1) maintain an accurate accounting of such disclosures, which he asserts is required by section 552a(c) of the Act; (2) establish appropriate safeguards to insure the security and confidentiality of the records that were purportedly disclosed, which he asserts is required by section 552a(e)(10); (3) correct information that was disseminated about him that was inaccurate or incomplete, which he asserts is required by section 552a(e)(5); and (4) establish adequate rules of conduct, procedures, and penalties for noncompliance, or to train employees in the requirements of the Act, which he asserts is required by section 552a(e)(9). Defendants are entitled to summary judgment.”
I find it very interesting that you not only feel I should believe as you believe, but you also feel I should do things the way you do things. And if I don't, then I'm automatically wrong.
If you are deciphering the letter, why on earth would I waste my time doing it, too?
If there was anything of great value in the email, why would FOX ignore it? They have an unblurred copy. Their article about it shows that the ONLY thing of value they could find in it was that someone mistakenly gave General Parker some bad information. Here's what the article says about the email:
But in an e-mail obtained by FOX News, scientists at Fort Detrick openly discussed how the anthrax powder they were asked to analyze after the attacks was nearly identical to that made by one of their colleagues.
"Then he said he had to look at a lot of samples that the FBI had prepared ... to duplicate the letter material," the e-mail reads. "Then the bombshell. He said that the best duplication of the material was the stuff made by [name redacted]. He said that it was almost exactly the same … his knees got shaky and he sputtered, 'But I told the General we didn't make spore powder!'"
So, some guy at Ft. Detrick made a mistake. Big deal. He saw a powder sample that was "nearly identical" to that made by one of his colleagues. And it was "it was almost exactly the same."
SO WHAT?
That does NOT prove anything. It CERTAINLY does not prove that this other person made the attack anthrax. All it proves is that on top of all the other mistakes being made back then, someone made one more.
You seem to feel I should believe as you believe, work as you work, and get excited when you get excited. Sorry, I don't see things that way.
Ed says
“I’d say it’s between 90 and 95 percent certainty that a child wrote the letters.
“and he says the evidence is that the writer learned how to write “R” sometime between writing the first letter and addressing the envelopes.”
Let me posit a different theory. In his February 2002 “profile” that the one accomplice was a drunk because he read a botched Brian Ross news account suggesting that the FBI suspected someone fellow who was mowing his lawn on 9/18 and got in an argument with his neighbor after drinking. See his profile using google archives (he changed it when I told him it was outrageous to fit his “profile” around the person he suspected).
He separately learned of a scientist in the field who went to the same university (but actually doesn’t know the mower). Ed saw a google item showing a listing for the PTA. (He first thought the scientist lived in NJ and then realized he was in NYC). So Ed developed his First Grader theory and became wedded to it. He passes it off as having been discerned from the “FACTS” when it is no more fact-based than his suggestion of the drinking.
I recently canvassed 30 First Graders at a birthday party. I put up Ed’s theory and supporting evidence on a powerpoint presentation. They are all pretty sure Ed did it. Ed, in contrast, has never even addressed Ken Dillon’s Jdey Theory.
The DOJ has posted a $5 million dollar theory for Jdey.
The FBI, in contrast, has said you never have told them anything useful (that they didn’t already know).
I’m impressed - you didn’t use your usual “early panicky days” highlighted in red. You just highlighted “nearly” and “almost” a few times, to try to downplay the significance of Detrick “accidently forgetting” to tell the General that, well actually, they did make a powder. But it was just a teensy, weensy amount of Ames spore powder - and it was just a teensy bit identical to the powder that was sent to Daschle and Leahy. Hey, no big deal.
2006 could be the “early panicky days” - or does that date really say June 2002? Or maybe even October 2001 if you look at it just right?
You realize, I assume, that you are proving once again that you cannot discuss FACTS. If the FACTS disagree with what you believe, you just ridicule them and joke and pretend they mean nothing.
You also realize, I assume, that by turning the discussion into an ad hominem attack on me, that you are proving in another way that you cannot discuss FACTS.
Meanwhile, the FACTS remain FACTS. And they continue to say what they say.
That's called an assumption. There is absolutely NO reason to believe the powder was made from the Ames strain. They are only talking about how the powder LOOKED. A powder made from the Vollum strain or some other strain would not LOOK any different than a powder made from the Ames strain.
And even if it WAS the Ames strain, there could have been many reasons for creating it. There are news reports that they were making powders from Ames at Battelle and had reasons for doing so. Therefore, IF the attack powder was made at one of those facilities (which is EXTREMELY unlikely), there's no way to know which one made it -- using only publicly available information.
Your assumptions and beliefs may make the Fox article important in your eyes, but to the rest of the world it is clearly a manufactured story of little real significance.
“That’s called an assumption.”
No - that’s an analysis of the FACTS. The email clearly says “Ames spore powder”. That’s what you learn when you ANALYZE the FACTS.
Jeeze, I would HOPE so! I'd hate to think that I'm leading the investigation and that the FBI has to depend upon me to solve the case.
The FBI knows what I know because the FBI and I are on the same page. A significant part of my analysis is trying to figure out what the FBI knows.
Ah, yes. ZacandPook's deciphering produced this:
just believe that I had heard xx had made Ames spore powder just
Someone believes that he heard that someone else had made Ames spore powder. I guess in your eyes that makes it a fact. And it MUST have been the attack anthrax "weaponized" with silica. Right?
The FACTS are the FACTS. The powder being discussed in the email is not Vollum, not a simulant - it is AMES SPORE POWDER.
I realize the Fox email story, the first real piece of news on the anthrax attacks in years, makes you extremely uncomfortable - but try to stick to the FACTS if you can.
Beecher’s paper has been discredited - it could now NEVER stand up in court as a peer reviewed paper (as an analyst in the C&E News article suggested as it’s purpose) - not after the editor of the journal has now publicly stated how uncomfortable he is with the unsupported conclusions. And after the same journal has now published a rebuttal to which Beecher has remained silent.
The FACTS are the FACTS - no matter how much they may crush your dearly held beliefs.
I'll be back again tomorrow.
Someone told me that there would be big news today. To me it looks like another routine day wasted trying to get people to discuss facts when they only want to discuss beliefs.
The FACTS are that the Detrick email discusses AMES SPORE POWDER.
The FACTS are that Beecher’s paper has been officially discredited by the Journal he published it in.
The FACTS are that AFIP announced silica was a key aerosol-enabling component of the Daschle powder.
The FACTS are that multiple people who examined the powder SAW an additive.
The FACTS are that the Whitehouse spokesperson officialy announced silica was found in the senate anthrax.
The FACTS are that the FBI announced they had failed to reproduce the powder after 2 years.
The FACTS are that your precious BW source, defector Ken Alibek, has been ousted from his position at George Mason University, after the Los Angles Times exposed him as a fraud.
The FACTS are that your other precious BW source, Matthew Meselson, was exposed as a fraud years ago.
Looks like I can waste that last 10 minutes, too.
I found the Fox story to be amusing. It didn't make me uncomfortable in any way. Your beliefs to the contrary don't change that.
Beecher’s paper has been discredited
Beecher's paper has been criticized for not including supporting documentation for statements he made. That does not make him wrong. It only means that people who have contrary beliefs won't accept anything until they see all the evidence that exists. And if it cannot be publicly released, to them that just proves a conspiracy.
TTFN
No, Beecher’s paper has been discredited. A paper get’s discredited when the editor states that it should not passed peer review. Sorry, but that’s the way it is. As I said, it would not last 2 seconds in court now.
It was a stupid stunt in the first place.
Ed,
The leading anthrax scientist Ken and former deputy Charles were both consultants to Battelle in 1999.
You have a webpage titled anthraxinvestigation that you extensively advertise (see hyperlinks above) in which you promote your speculative belief that the letters were written by First Grader. Yet, you have not even bothered to disclose to your readers that Al-Timimi’s lawyer has said in federal district court that the FBI has considered Al-Timimi an anthrax weapons suspect.
Is it because you know that William Patrick kept his biochemistry information on his bookshelf in a black binder in his living room? Are you are privately asking yourself: “Damn, if WP kept it in his living room, where did Ken keep it?” “On his Dell?”
Is it because you don’t know why Ali Al-Timimi had a high security clearance for his work for the Navy while at SRA International?
Do you not credit that Mohammed Abdel-Rahman was on AQ 3- member WMD committee and tasked with recruiting scientists? And that he spoke with Ali at IANA charity conferences?
Do you not credit that Ali was not much more than 15 feet from Ken and Charles as a spitwad flies?
To have credibility, you should address alternative arguments and address the underlying evidence. This FoxNews email needs to be corroborated or debunked. If it is authentic, and if the law enforcement source is credited, it is extremely dramatic.
You have done such a great job in demolishing a Hatfill Theory I am trying to encourage you to attempt to do a similar great job at demolishing a Jdey Theory. I find the “shoe bomb” discussion in Ken’s theory superfluous to the logic of his theory as to Amerithrax. His logic as to Amerithrax is powerful, however. At the very least, you have to correct your false claim on your webpage that the hijackers did not have accomplices. Jdey is known to have been part of the “planes operation” until he pulled back.
You shouldn’t leave dramatic factually incorrect statements central to your argument uncorrected on your webpage.
In contrast, the FBI has demanded to know who is helping me because I was telling them things they didn’t know — making connections they hadn’t noticed or known about. The demand was first made 5 or 6 years ago.
I told them that I was recruited at an Arlington, VA high school football game after word got out I had once beaten Steve Novick in chess.
The FBI only relented on their request I take a polygraph when I told them that their strategy of neutralizing the threat by all these various prosecutions was genius.
The day and exact minute Ali’s residence was searched, 100 federal agents fanned out in this town and simultaneously interviewed 150 people. It was two weeks after Mohammed Abdel-Rahman had been captured and harshly interrogated. It was called OPERATION IMMINENT HORIZON.
http://www.anthraxandalqaeda.com
Ed,
See how that capitalization works. OPERATION IMMINENT HORIZON warrants being capitalized. Your use of FACTS does not.
By the way, how does your discussion on your webpage square with the recent discussion of coatings and spore viability in
“Development of an Aerosol System for Uniformly Depositing Bacillus Anthracis Spore Particles on Surfaces.”
As I recall, several of the authors are from Dugway Proving Ground. It was in Aerosol Science and Technology, Volume 42, Issue 3 March 2008 , pages 159 - 172.
I get the sense you are quick to opine on issues that are beyond your expertise. I don’t get the sense you even read the aerosol science literature or for that matter ever go to a library.
In contrast, my brother-in-law just fixed my toilet by properly installing the flapper. My wife hadn’t read the instructions. (I thought they were talking about getting a clapper from the hardware store.)
But the key difference is I rely on the experts.
Well, I would definitely agree with you that the December 1998 PDB and the August 2001 PDB read very similarly. But note that the December 1998 PDB was included in the 911 Commission Report. On the subject of PDBs, there is a still-classified February 2001 PDB that discussed the threatened use of anthrax. Under any true crime theory, that PDB is highly material.
By way of background to the February 2001 PDB, on January 23, 2001, in Canada, Mr. Justice Nadon issued an order holding that the Court did not have jurisdiction to decide the constitutional and Charter issues raised by #2 in the Egyptian Islamic Jihad/Vanguards of Conquest, Mahmoud Mahjoub, and dismissed that part of the motion. A letter was received January 30, 2001 at the Citizenship and Immigration Office threatening to use anthrax. It was sent to Immigration Minister Elinor Caplan who had cosigned the detention certificate. Authorities suspected that the letter was sent by militant islamists in protest over the detention of Mahjoub, who ran Bin Laden’s farm in Sudan. Mahjoub had been sentenced in absentia to 15 years in prison in 1999 by Egyptian authorities for his involvement in Egyptian Islamic Jihad. Now, he was being detained without charges under an order cosigned by Immigration Minister Caplan and threatened with deportation. The postmark has never been publicly identified. Separately, hoax letters were also sent to American businesses and a Walmart in Saanich, British Columbia. Mahjoub had been in regular contact with a man named Marzouk, who had trained the 1998 embassy bombers and was captured in Baku, Azerbaijan in August 1998.
Suspecting Mahjoub of being a shura member of the Vanguards of Conquest and Egyptian Islamic Jihad, the Canadian intelligence officials alleged Mahjoub had significant contacts with persons associated with international Islamic terrorism including Osama Bin Laden, Ahmad Khadr, Essam Marzouk, Vanguards founder Ahmed Agiza, and Osama Bin Laden’s principal procurement agent for weapons of mass destruction Mubarak Al Duri, who also for a time was from British of Columbia. Al Duri, while living in Tucson, Arizona, was acquainted with Wadi al Hage who is in U.S. custody for the bombing of the U.S. embassies in Africa. Al Duri while residing in British Columbia may have been associated with Marzouk, who trained the 1998 embassy bombers.
When the letter was received in January 2001, the letter was sent by Department of National Defence jet to the Canadian Science Center for Human and Animal Health in Winnipeg for examination. Authorities also sent the filters from the Jean Edmonds building’s ventilation system. Authorities said they were treating it as a possible terrorist act against the department and noted that it “was the first time a government department has been targeted in this way.” The Ottawa alert came after one of the employees working in the Minister’s office opened a plain white envelope at 11:15 a.m. The employee discovered powder and a piece of paper in the envelope. Police refused to reveal from where it had been mailed. One source said the letter was unsigned and “mostly gibberish.” (Indeed, the Fall 2001 letters might be described as mostly gibberish, and certainly the “JLo letter” — talking about Jennifer Lopez’ planned wedding — could be.) An internal government memo distributed to staff said “an initial analysis of the envelope revealed some traces of bacteria.”
Bill Patrick, who often worked with George Mason University students in northern Virginia, had written a report in 1999 for a consultant SAIC at the request of Dr. Steve Hatfill. As one bioterrorism expert commented about the report: “Anytime you pick something up like this, and it seems to layout the whole story for you months or years before the fact, your immediate response is to step back and say ‘whoa, something may be going on here. “Our attacker may very well have used this report as something of a — if not a template, then certainly as a rule of thumb.”
After the January 2001 anthrax threat, Canadian defense research team undertook to assess the risk. The report titled “Risk Assessment of Anthrax Threat Letters” issued September 2001. In contrast to the 1998 study by William Patrick that had been requested by Dr. Hatfill’s employer SAIC, the Canadian study found considerable exposure to those in the room resulted when such a letter was opened. Bacillus globigii spores (in dry powder form) were donated by the US Department of Defense (Dugway Proving Ground, Utah). Stock concentration powder was -1 x 10 11 cfu/gm. The anthrax sent to the Senators had a smaller particle size tending toward a uniform 1 micron, subject to clumping that easily broke apart. Bacillus globigii (BG) spores are routinely used as a simulant for Bacillus anthracis (anthrax) spores. “The letter was prepared by putting BG spores in the center of a sheet of paper, folding it over into thirds, placing the folded sheet into the envelope and sealing using the adhesive present on the envelope. The envelope was then shaken to mimic the handling and tumbling that would occur during its passage through the postal system.” The aerosol, produced by opening the BG spore containing envelope, was not confined to the area of the desk but spread throughout the chamber. Values were almost as high at the opposite end of the chamber, shortly after opening the envelopes. 99% of the particles collected were in the 2.5 to 10 mm size range. The report explained: “In addition, the aerosol would quickly spread throughout the room so that other workers, depending on their exact locations and the directional air flow within the office, would likely inhale lethal doses. Envelopes with the open corners not specifically sealed could also pose a threat to individuals in the mail handling system.”
More than 80% of the B anthracis particles collected on stationary monitors were within an alveolar respirable size range of 0.95 to 3.5 µm. Thus, the simulant performed very well. Those who continue to argue that the Daschle product was so advanced beyond what the US could do are mistaken. Indeed, the more notable question is why such a good product was prepared in response to a threat letter sent to an immigration minister. The reason perhaps is that authorities knew that it was Al Qaeda and Egyptian Islamic Jihad that sent the letter. The CIA and CSIS apparently feared that the Vanguards of Conquest would use the good stuff.
The CIA knew EIJ intended to use anthrax — from the proclamations of Jaballah’s friend, the captured military commander Mabruk and Jaballah’s brother-in-law’s former law partner al-Zayat. Authorities knew Al Qaeda was getting technical assistance from scientists — and that many of the senior Egyptian leaders had advanced or technical degrees. The specifications provided by Dugway perhaps involved treated fumed silica and a spraydryer (with a last critical step reserved to be done at Dugway) likely were based on what Al Qaeda might send with a little help from their friends.
Canadian officials explained they e-mailed the study to the CDC soon after reports of the discovery of anthrax at the American Media Inc. headquarters in Florida. The e-mail, however, was never opened, reports the lead CDC anthrax investigator, who regrets that he never read the email. “It is certainly relevant data, but I don’t think it would have altered the decisions that we made.” At one point, about 2,000 CDC employees were working on the anthrax matter. This Canadian report was perhaps the single most important scientific data point for the CDC to take into account. It certainly was one of the most important reports for the FBI to take into account. Bail was denied by decision on October 5, 2001. Then highly potent anthrax was sent the next day just as had been promised. But Ayman had returned to the target of his greatest interest — rather than a Canadian immigration minister, he and Shehata and their colleagues targeted the minister who oversaw the Department of Justice and appropriations to Egypt and Israel, and who gave his name (”the Leahy Law”) to the law that permits continuing appropriations to Egypt in the face of allegations of torture. Zawahiri never makes a threat he doesn’t intend to try to keep.
The Canadian experiments in 2001 showed that if anthrax spores were finely powdered, a letter could release thousands of lethal doses of the bacteria within minutes of being opened. Furthermore, large amounts of material leaked out of sealed envelopes even before they were opened. By then, more than two dozen federal government employees knew of the Canadian studies, which showed that a real anthrax threat letter was a far more dangerous weapon than anyone had believed. Within days, a dozen more people were informed of the now highly relevant experimental findings. One FBI squad was focused on people who may have known of the study — such as William Patrick’s friend, Dr. Steve Hatfill. Another squad would be focused on the usual suspects and their friends. For the next seven years, the investigation would be shrouded in great secrecy.
The question now is: who else is on Jaballah’s or Mahjoub’s Friends and Family Calling Plan? The authorities apparently already know the answer and have just been bashful. They certainly seem to know who was on Ali Al-Timimi’s Friends and Family Calling Plan and Postal employee Sattar, the blind sheik’s liaison with the jihadists.
P.S. While I’ve tried to catch it in editing, I often mistakenly have written that Islambouli planned to visit. When instead Islambouli/KSM plan was to send someone (from Saudi Arabia). I’m fascinated by the prospect that Al-Marri was the guy. He had been in Doha with KSM and Islambouli. Then he and his family moved to Saudi Arabia. Then he came here as a biochem operative. Susan Schmidt of the WP even wrote a tantalizing article that made an IANA connection and talked about how he had his computer mailed “to Washington.” I cannot get her to clarify for me as to whether she meant Washington or Washington, D.C. and find it ambiguous (although I’m sure the Washington Post copyeditor has a settled understanding/rule that governs that eliminates the ambiguity).
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