Hatfill v. US - DOJ and FBI Statement of Facts (filed Friday)

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.

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.

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.

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.

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.

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.

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.”

TrebleRebel writes:

He believes everything Alibek says like the word of a divine entity.

ZacandPook writes (in message #258):

To clarify Ken’s theory, he theorizes that Jdey mailed the anthrax letters after making the martyrdom video.

TrebelRebel says I accept every word Ken Alibek says as if it were gospel. And ZacandPook says I'm not listening to Ken Alibek and should pay attention to what Alibek says.

You guys need to get your acts together. Together you might make one good clown act.

The reality is: I don't accept anyone's beliefs as gospel. I only talked with Ken Alibek because I wanted to confirm certain aspects of the SCIENCE involved in working with anthrax spores. He did that. He also told me -- even though I didn't ask -- he believed the anthrax was sent by Muslims. Am I supposed to believe that's true because he's some kind of "expert?" Or am I supposed to believe that everything he says is a lie because TrebelRebel seems to mindlessly hate him?

Ken Alibek told me that there is no principle for coating anthrax.

You guys have found an article which you claim shows that Dugway did coat anthrax with silica spores many years ago. Does that mean there's a "principle" for it?

The images show the whole thing is NUTS. The images in the book "Microbial Forensics" show the same thing --- the idea is NUTS.

The first of these new images show what appears to be a spore coated with a kazillion tiny particles of silica. And ZacandPook says I'm wrong in believing that that would make the spore less effective as a bioweapon. How can it not? What possible purpose can it serve to coat a spore that way? It makes the spore heavier, it reduces the ability of the spore to germinate, and there is NO OFFSETTING BENEFIT.

The second image you're showing us appears to be a CLUMP of spores fused together by some process of coating spores with silica. Is creating CLUMPS of spores suppose to be some kind of technological breakthrough? The scale indicates the CLUMP is less than 5 microns across, but the scale also indicates that the spores are somewhat smaller than typical anthrax spores.

You show these images and pick sentences out of context in an attempt to prove something. All you are proving is that you have to take things out of context to make anything fit your screwball beliefs.

Ed at www.anthraxinvestigation.com

“One minute you’re telling us the coated spores were created fifty years ago. The next minute you’re telling us the coated spores were created to simulate what was used in the attacks of 2001? Which is it?”

It’s both. They looked at BG spores coated with silica that were made 40 years ago. Then they made Bacillus Anthracis dry spore powder (Sterne strain) and worked it up with silica - COATING the spores. It was the silica COATED Sterne anthrax spores that simulated the ACTUAL attack powder.

They referenced Beecher’s paper but apparently they weren;t impressed with his unsupported conclusion that the attack anthrax had no additives. Guess they have better sources than Beecher - which is not surprising since it was the ARMY that analyzed the anthrax for the FBI.

But it is hilarious watching your house of cards collapsing round about you.

Weaponized spores are COATED, COATED, COATED.

These are the FACTS.

Then why do NONE of the pictures of coated spores we've found in the past few years look anything like what Tom Geisbert says the attack spores looked like? Here's an image that Geisbert says shows spores "similar in character" to what was in the Daschle letter:

How come ALL the pictures of coated spores we've seen show that it would be STUPID, STUPID, STUPID to coat spores the way shown in the pictures?

Is that new picture of a fused clump of spores supposed to show that coating spores with silica prevents clumping?

Is that new picture of a spore coated with silica until it looks like a snowball supposed to show that such a coating won't add to the weight of the spore or reduced its ability to germinate?

A copy of the Aerosol Science article showed up in my inbox overnight. I'll be reading it after I do some chores. I'll be back then.

Ed at www.anthraxinvestigation.com

Okay. I've done my first reading of the article. I'm going to have to study it some more, but it does seem to confirm that completely coated spores will not germinate.

At the bottom of page 169 it says,

This means that if the spore particle is completely coated with silica, it may not have sufficient contact with the growth medium to grow and be detected as a CFU [Colony Forming Unit].

There's so much else in the article that seems totally bizarre for any attempt to simulate the attack anthrax of 2001 that I can't comment further until I've really had the chance to study the article in detail and to (hopefully) talk with at least one of the authors -- or some other expert on the subject. (Not to find someone to believe, but to find someone to clarify some things.)

Ed at www.anthraxinvestigation.com

This means that if the spore particle is completely coated with silica, it may not have sufficient contact with the growth medium to grow and be detected as a CFU. However, when the spore does grow, only a single CFU is detected for a particle even when the particle contains more than one spore. With the misting technique, the deposited particles are coated with a liquid layer that either washes off the coating from the spore or provides better contact between the spore and the growth medium.

As I suspected you take one sentence out of context to pervert the message of the entire article. What might happen on a settled agar plate is completely different to what happens inside a moist lung. The spores are ALL COATED - ALL WEAPONIZED spores ARE COATED with silica. That’s because only COATED spores can form effective aerosols.

Oops. In message #321 I wrote:

TrebleRebel writes:

He believes everything Alibek says like the word of a divine entity.

ZacandPook writes (in message #258):

To clarify Ken’s theory, he theorizes that Jdey mailed the anthrax letters after making the martyrdom video.

Going through ZacandPook's endlessly long and numerous postings is so totally tedious for me that I failed to notice which "Ken" he was talking about in that particular quote. He was evidently referring to Ken Dillon, not Ken Alibek.

But, no matter. It's just a simple switch to go back to message #169 where ZacandPook wrote:

Ken is very responsive and straight-forward. You should email him and ask them to clarify any of the scientific matters.

That "Ken" is definitely Ken Alibek, since we were discussing Ken Alibek's patent, and ZacandPook suggests I contact him for scientific answers.

Meanwhile, of course, TrebelRebel claims I believe "everything Alibek says like the word of a divine entity" and evidently wants me to disbelieve Alibek because TrebelRebel hates him so much.

So, the clown act might still work. And it might be even funnier if it involved multiple people named "Ken."

Ed at www.anthraxinvestigation.com

What might happen on a settled agar plate is completely different to what happens inside a moist lung.

My point exactly. An agar plate is designed to allow anthrax spores to germinate easily. A lung is not. Therefore, the test doesn't seem to reflect the real world.

The spores are ALL COATED - ALL WEAPONIZED spores ARE COATED with silica. That’s because only COATED spores can form effective aerosols.

Yes, we understand that is your fantasy. Yet the picture provided by Tom Geisbert shows spores which are NOT coated. And that is what he says the attack spores looked like.

And you have NEVER been able to find ANY pictures of coated spores that look anything like the UNCOATED spores in Geisbert's photo.

And every picture you have found shows coatings that no one could possibly interpret as being "pure spores."

The FACTS say beyond any doubt that the attack anthrax spores were NOT coated. The spores DID however contain the elements silicon and oxygen in some form that could NOT BE SEEN under a scanning electron microscope. So, whatever form the silicon and oxygen was in in the attack anthrax, it has NOTHING to do with the process used in the tests done by these folks from the CDC and Dugway.

Ed at www.anthraxinvestigation.com

Ed,

I didn’t give you the article so you could sally forth and mangle more science. For years, you’ve been arguing that silica is not used to weaponize anthrax. When, in fact, for years, as Gary Matsumoto explained, that is how Dugway has been creating their anthrax simulants. Your argument that it was absurd that silica would be used to coat (fluidize) spores was mistaken. Now we’ve heard your strident, capitalized and red-lettered insistence on the point for over 5 years now. Gary Matsumoto wrote his article in SCIENCE after speaking with military scientists. If you had taken the time to do the same, by so much as an email, or just credited the written accounts that Dr. Rebel regularly provided you, you would not have been so confused about the use of silica in this regard. Now whether the weight silica was 10%, 20%, or some figure such as the 2% proposed by TrebleRebel - who is an expert in working with silica (and has done work for the military in this connection) — doesn’t need to be considered by lay people in a public forum. Nor need the particulars of such a process be speculated about. But the fact you need to understand is that AFIP detected silica. The fact that TrebleRebel needs to understand is that Ken and Professor M. did not see it on the particular SEMS they were shown. (And given that the expert government scientists could just as easily read the same SEMS, Alibek and Meselson would have just been reporting what they saw). The two data points are entirely consistent with the work being done by the Dugway authors, their analysis and their conclusions.

As another example of how you don’t correct mistakes, above you suggested that I had said that Ken Alibek had the theory that Jdey was the mailer. (Jdey was part of the planes operation and was trained in biology — he disappeared in October 2001) In one post, I just referred to Dr. Dillon as “Ken”, but in a series of closely preceding posts I had referred to him by his full name. He is a former history PhD who is a former State Department analyst. He has served abroad. He is as cautious in his reasoning as he is unfailingly polite. Now for you to err is human and unimportant. I’m not faulting you for making the mistake in rushing through posts. But I’m faulting you for not correcting the error. Moreover, if you don’t even know Ken’s last name, then for sure you are not in a position to rebut his cautious analysis (available at Amazon) or online.

Post your scientific analysis if you like. But why should anyone pay attention to you if you didn’t even know this most basic proposition about silica’s use?

Dr. Rebel, could you post a picture of the BG spores without a coating? Ed has a good question pending to you — why does the picture of “pure spores” (suggested to be a close approximation of the anthrax attack look unlike the images coated with silica)? The answer is found in the means used to increase the spore concentration. The snow ball effect is caused by Vander Waals forces. But a silica coating allows greater concentration and leads to the picture posted by Ed. Think of the biochemistry info available to be accessed by Ali as a way of smushing a bunch of snow balls together leading to product as pure as fluffy snow. Separately, in 2001, you had a radical reduction in particle size in the commercial silica powders available.

Mr. Lake, I’m glad I could be of service to you in providing this study and explaining how it bears. I have lots more from the authoritative literature that I’ll pass on as time permits. Moreover, it was my honor and pleasure to provide you with the 202 Hatfill exhibits. At your service, Pook

For years, you’ve been arguing that silica is not used to weaponize anthrax. When, in fact, for years, as Gary Matsumoto explained, that is how Dugway has been creating their anthrax simulants.

Actually, I've been arguing that silica was not used to COAT anthrax. I've repeated said it was MIXED with anthrax to create bioweapons. Ken Alibek explained to me the exact process the Russians used. And Bill Patrick has described how they used silica when MILLING anthrax spores back during the Cold War. Plus, there is plenty of literature which shows that they MIX spores with silica to keep them from absorbing moisture.

This new report says that they used BG spores that were forty years old. It also suggests that they used fumed silica that was equally old. You can't tell from the way it's written if the coated spores were created 40 years ago or if they used 40 year old ingredients to create the samples used for the tests.

So, we're talking about some process developed over 40 years ago, NOT some new super-sophisticated process like what Gary Matsumoto wrote about.

But the main point here is: This process has nothing to do with what was in the anthrax letters of 2001. The picture from Tom Geisbert above shows what those spores looked like. They looked NOTHING like what would come from the process described in the article.

As another example of how you don’t correct mistakes, above you suggested that I had said that Ken Alibek had the theory that Jdey was the mailer.

I DID correct that mistake. I just waited until after I read the article to do it. Check back a few messages.

Mr. Lake, I’m glad I could be of service to you in providing this study

Thanks for providing it. You can interpret it to fit your beliefs, but the FACT is that that process does NOT produce spores which looked the way the attack anthrax spores looked. So, the main question is: Of what value is that report to any argument about the attack anthrax of 2001?

Ed at www.anthraxinvestigation.com

The answer is found in the means used to increase the spore concentration. The snow ball effect is caused by Vander Waals forces. But a silica coating allows greater concentration and leads to the picture posted by Ed.

So, you coat spores to increase concentration? You better explain that, since coating the spores makes the BIGGER particles and would therefore REDUCE concentration.

Are you saying van der Waals forces cause the silica to bind to the spores? Hmm. In Gary Matsumoto's article he said the silica particles were glued into place by "polymerized glass." (That stuff that AFIP never detected.)

Mastumoto wrote:

... a technique used to anchor silica nano-particles to the surface of spores. About a year and a half ago, a laboratory analyzing the Senate anthrax spores for the FBI reported the discovery of what appeared to be a chemical additive that improved the bond between the silica and the spores. U. S. intelligence officers informed foreign biodefense officials that this additive was "polymerized glass."

But you raise a good question. What causes the silica to bind to the spores? Presumably, based upon the description of the coating process, it was static electricity. But I imagine that presumption would get a lot of arguments.

Ed at www.anthraxinvestigation.com

Ed,

That’s fascinating if the Dugway authors were using 40 year old fumed silica. Do you have a sentence in support? If true, that seems to suggest that authorities suspect that the perp used 40 year old fumed silica.

TrebleRebel,

Can you post the picture where the old BG are gathered in groups, snuggling together in a big snowball? Overcoming the VanderWaals forces is what allows them to assume the look of the Geisbert picture. I’ve uploaded it to my table of contents page but I don’t know how to post it from there to here.

Note that the second phase involves testing the anthrax they made to duplicate the anthrax attack by multiple labs. If there is testing at multiple labs and they are attempting to duplicate the attack anthrax, then the second phase is going to be very significant indeed.

Gentlemen, sometimes I oftentimes think that the difference between the two of you is semantical. Folks are too hung up on the word “coating.” One man’s coat is another man’s residue. When you take a chicken breast and put it in breaded crumbs, if you have dipped the chicken breast in milk beforehand, a residue of crumbs will remain on the chicken breast. Or if you like, it will be coated.

In connection with the Canadian experiment done after the anthrax threat relating to the Vanguards of Conquest #2 detained in Canada (and after the February 2001 PDB on that anthrax threat), Gary and TrebleRebel always admitted that the “coating” could not have been done AFTER the mixing the silica at the dairy processor in Wisconsin. And so no special coating was put on at Dugway after processing. A key “trick” in processing occurred prior to mixing. (see, e.g., Rauf Ahmad correspondence to Ayman about his consulting with [redacted] on some tricks relating to weaponization.

In the Canadian experiment, the simulant used was made at Dugway, but it was made at the Wisconsin dairy processor. It was tweaked at Dugway but that might have just been either sequential filtering (or possibly a unipolar charge being added). The performance parameters of the simulant used in the Canada experiment (reported 9/10) was the same as the Daschle product.

Ali had access to all this info. He shared a fax with the two men consulting with Battelle. Charles was the #1 guy for Defense Threat Reduction Agency/DIA advising on biological threats. Both Ali and Ayman followed the rule that the koran/hadiths required that you use the weapon of your enemy. That’s what they did.

But I’m skeptical Jdey was the mailer although Dr. Dillon’s logic is compelling. Given Ed’s spectacular performance in demolishing a Hatfill Theory, I need Ed’s help showing Jdey was not a mailer (without the polemics and empty “belief/conspiracy theory etc. rhetoric) .

(It would be nice if he also made sure the Zack Theory was put to rest by emailing them the news he remained a practicing Catholic). They likely are not keeping up-to-date and so will need to be emailed.

Well - now you know it IS used to COAT anthrax.

I had to run some errands, and while doing that I thought a lot about what this article says about the way they made anthrax bioweapons back during the Cold War.

The article CERTAINLY has NOTHING to do with the attack anthrax of 2001, but it might answer some other questions -- including one I never bothered to ask.

Somewhere there's an article which says that back during the Cold War the U.S. used silica to eliminate or reduce the static charge that would build up in spores as they were MILLED. I never really dug into HOW that was accomplished. This article seems to answer that.

Bill Patrick always refused to discuss the subject of silica. This article might explain why. What Patrick WOULD discuss was the fact that the processes from the Cold War didn't match what was in the anthrax letters. He said repeatedly what was in the anthrax letters wasn't from a MANUFACTURING process. It was small quantity lab stuff.

Ken Alibek said there was no principle for coating anthrax. I don't know if he was aware of this kind of detail about how AMERICA made anthrax bioweapons. It certainly doesn't seem to have anything to do with the way RUSSIA did things.

I'm more than willing to go back and modify my web site as soon as I can figure out exactly how this information changes what.

Ed at www.anthraxinvestigation.com

That’s fascinating if the Dugway authors were using 40 year old fumed silica. Do you have a sentence in support?

Near the bottom of page 167:

The coating apparently solidified from exposure to water in the air over the years of sample storage and use.

If true, that seems to suggest that authorities suspect that the perp used 40 year old fumed silica.

No, it doesn't suggest that at all. Dugway used 40 year old spores AND, evidently, 40 year old fumed silica. (It MAY have been 40 year old spores already coated with 40 year old silica. The sentence isn't clear.) That information says absolutely NOTHING about what the anthrax mailer did.

We know from numerous news reports that the spores in the letters were no more that 2 years old. And we also know that there was no fumed silica in the attack anthrax, because experts said they couldn't see any.

Ed at www.anthraxinvestigation.com

I need Ed’s help showing Jdey was not a mailer

Sorry, that's all yours. I have nothing to do with it and want nothing to do with it. Since you say he was not a mailer, why should I even bring it up? No one but YOU has ever mentioned it to me.

That's also your baby. I haven't been putting information on my web site about Zack for two reasons: (1) I didn't want to help the Neo-Nazis point the finger at him by making more people aware of what they were saying. (2) Dealing with Neo-Nazis is a distasteful business. If you disagree with them they attack you with a hundred times the ferocity that you and TrebelRebel attack me. I don't want to have ANY contact with them at all. So, I'm not about to start emailing them with stuff they will not like.

Notice that I do not even mention Zack's name in my comment about him. That's because I do not want Google or Yahoo! to come to my site for information about Zack. The way I wrote the comment ONLY informs the readers of my web site -- a few of whom might be Neo-Nazis, since they occasionally to write me if I say something Neo-Nazis do not like.

Ed at www.anthraxinvestigation.com

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