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.”

No, my argument makes perfect sense. BG spores clump when they are not coated. If they came through the sieve as single uncoated spores (becoming single spores for a short time due to collisions with the ball mill bearings) then these uncoated spores would be the very spores to find each other and clump up. It’s exactly as it should be - all the uncoated spores are in clumps at the end of the day.

You're not addressing the question. You're just rationalzing.

First, the spores were stuck together in a pellet before they went into the sieve. There's no reason to believe they ALL got unstuck and then some of them got restuck on the other side of the sieve. The clumps are small enough to get through the sieve AS clumps.

But second, and most importantly, the tiny clumps are not coated with silica. Why not?

Yes, I know that if there was silica between the spores, the spores would not stick together. But only PARTS of the spores are touching one another. Why aren't the spores totally coated with silica where they are NOT touching one another?

If you have two spores stuck together, are van der Waals forces different than for just one spore alone? On one spore alone, silica sticks to ALL SIDES. Why wouldn't silica stick to all EXPOSED sides of a 2-spore particle?

Ed at www.anthraxinvestigation.com

I think there has been a real investigation. I think they charged alternative crimes in neutralizing the threat. For example, in the case of Al-Timimi, who they suspected of accessing biochemistry information, they charged sedition.

It makes sense from a national security point of view (avoiding an attack). But they perhaps don’t appreciate that Zawahiri has won the media game which to him was always fully half the game. Allowing truther / French / BHR / Boyle/ TrebleRebel / Velis / EdLake / computerbytesman / Horowitz etc. type theories to proliferate has hurt America’s prestige and respect in the world. That greatly undermines “national security.”

One small thing they might have done different — and perhaps this rested solely with a personal judgment FBI DC Field Office Head Van Harp made — is that he should have fully cooperated with the leak investigation even after retired. His loyalty to US Attorney Roscoe Howard and his colleague, head of criminal prosecutions Daniel Seikaly, was understandable — but those under scrutiny will often have loyalty to others. If he believes in the FBI’s mission, he should, first, furthered that mission by voluntarily providing the waiver as to confidentiality such as Lambert did. (And he should have submitted to a polygraph even though polygraphs are unreliable).

For the US Attorney to talk about wanting to do a creditable job was total BS if he in fact did not tell Van Harp of his and his colleague’s contact with Newsweek.

I’m not concerned with whether there was any punishment for the 2002 leaks (even discipline). My point is that if a proper investigation had been done in August 2002 or immediately in January 2003, the leaks (Seikaly’s misdirection) would have stopped. Instead, if I am remembering correctly, leaks continued into June 2003. If the FBI couldn’t identify and be forthright about the leaks, what chance is there they can identify the anthrax mailer? It’s from the same Administration which brought you Condi’s “Who could ever have imagined that they would fly planes into buildings” when no imagination was necessary — just reading the intelligence about past plans and plots.

In an earlier draft of one of Locy’s article, she referred to a source as a senior FBI official. See Hatfill’s opposition to motion to stay pending appeal. So if ordered to name an additional source, I’m not sure who she’ll name.

Given that I think a Hatfill theory was plausible — and just mistaken — I have less difficulty in crediting the good faith of the investigation. It’s only that Mr. Seikaly’s leak and his daughter’s representation of Al-Timimi — the “POI” of the other squad — that could only occur in the inside-the-beltway culture. The media’s silence on the issue is deafening. Inside the beltway (or perhaps in government generally), the civil servants don’t need to care about the governmental mission so long as they land as head of corporate security of a major credit card company or partner at a DC law firm. Director Mueller’s legacy will be judged in part by Amerithrax and its final resolution. I have total faith but I see that the faith is blind. A blind man recently bowled a 300 game, so here’s hoping.

That depends on the relative Hamaker’s constants.

Ah, yes. Your old favorite: Hamaker's constant. The experts I've talked with say there is no way to calculate Hamaker's constant for an organic, living object like a spore. And I certainly couldn't do it. So, any argument that ends up at Hamaker's constant is a dead end argument.

Yes, I know you fantasize that Hamaker's contant would be the same for a spore as for a particle of lactose (or was it corn starch?) but fantasies don't solve scientific questions.

What I'm trying to do it define our exact point of disagreement. Look at it this way:

If you claim you can see city hall from the corner of 6th and main, and I claim you cannot, we could then go to the corner of 6th and main to see who is right.

If we get there and we cannot see city hall, then I am right.

If you then say, well, you can see it from the top of the Blake Building which is on the corner of 6th and main, we can climb up to the top and see. If we can see city hall from there, you would be right AFTER we clarified that you could not really see it from the CORNER of 6th and main but ONLY from the top of a building at that corner.

The argument would be resolved.

The dispute we have over van der Waals forces is similar.

You claim van der Waals forces act between molecules AND particles.

I claim that van der Waals forces act between molecules and between atoms of noble gasses. The interaction between particles is not really between particles, it's between the molecules IN the particles WHEN and at the point WHERE the particles are touching one another.

You claim that van der Waals forces are "universal." My understanding is that they are NOT universal. Since van der Waals forces act only between molecules and atoms of noble gasses, that leaves out such ordinary things as rocks, salts, and metals, which, according to Wikipedia, are composed of atoms or ions, and are not made of molecules.

Particles of gold or aluminum get bound together by metallic bonding, NOT by van der Waals forces.

So, what I'm trying to do is discuss our points of disagreement without getting into a Hamaker's constant dead end. And I'm also trying to do it without you just posting some link where there's something which YOU INTERPRET as proof of your argument, and if anyone disagrees, then you claim they just don't understand science as well as you. That's another dead end.

I'm trying to avoid the dead ends that we've been running into for the years we've been debating.

Comprendo?

Ed at www.anthraxinvestigation.com

On appeal, Hatfill theme is that the investigators came under tremendous public pressure to demonstrate progress toward solving the crimes, and that when genuine progress was not achieved, government officials sought to relieve that pressure by gradually making over one hundred leaks of investigative information to the media all suggesting that Hatfill was a murderer. Counsel claims that it made him “a pariah in the field that he chose to go into.” Appellee emphasizes that this case has nothing to do with shining an investigative light on government misdeeds — that was not the nature of the leaks. “The case involves government manipulation of journalists to disseminate “life-shattering” information about an innocent citizen in violation of federal law. Instead of disclosing government wrongdoing, counsel argues, the media ended up concealing governmental wrongdoing.

Now I’ve already overly belabored, perhaps, the point that Hatfill has not yet faced squarely the fact that he was made a pariah first by forging a PhD certificate and repeatedly falsely claiming he had a PhD in gaining access to the ebola virus and obtaining work in a governmental biolevel-4 lab (you know, the kind where you wear a space suit such as described in Preston’s HOT ZONE). Moreover, lying about having a PhD may also have implications for a standing as an MD if he were to seek to become licensed in some state. Any argument that does not address that difficult issue runs the risk that the decision-maker will place undo importance on the information not being disclosed.

I can’t say that the brief convinces on the issue whether Locy did anything wrong. She was just doing her job and had every reason to rely on the solid sources she was relying on. Of course, whether now she should be forced to disclose those sources is a separate and complicated policy question. People can disagree. But I don’t see how anyone can fault her reporting which was very balanced.

Now her performance at deposition was a little more problematic. Counsel argues: “She refused to disclose anything about where the fourth person worked and,in particular, whether that person was affiliated with DOJ. She invoked work product and refused to say whether she had sought waivers. At her second deposition she had just begun to reach out to people — when by then she should have had a firm response, yes or no, to a request for a waiver.

“Locy’s position seems to be that, because her financial means are modest, Hatfill should pay the price though loss of evidence. But why should a party already injured by her sources’ illegal disclosures have to do without relevant evidence so that she can enjoy the luxury of clinging to a legal position the court has rejected? The reality is that it actually is enormously costly to get evidence from reporters, because the reporters typically fight at every step of the process without any intention of complying with any contrary rulings.”

As counsel notes “Locy has it within her power to pay nothing.”

If the busy, timepressed, and underfunded media better understood what was going on in Amerithrax, and had not been misled by years of leaks by people in authoritative position, they would digest that their profession requires that they now expose the wrongdoing that occurred, which is entirely different from initial appearances. Their understanding of a matter should not have to rely solely on the spinning by an agenda-driven government official. That hardly is fulfilling the highest ideals of the Fourth Estate. They should now explore the motivation of the leaker and consider whether it was “personal” such as alleged by Van Harp at deposition.

Locy on appeal argues that the District Court’s opinion did not address her lack of memory. From the bench, however, the Court did say that, while crediting her good faith, if “I don’t remember” certainly would prove a convenient response by a reporter. Does anyone truly believe she does not know the fourth individual she declined to name? She reports that she had no schedule for throwing notes away but would discard them when her desk came to be cluttered. Those notes, she explains, if they existed at all, would have been discarded before Dr. Hatfill first raised these issues in his Amended Complaint. She was not required to reveal the identity of her confidential sources to her editors. (Since 2004, policies at USA Today have changed.) Now reporters are required to do so. She relied on a wide range of sources, and her sources were undifferentiated — that is, the same sources that might advise her on the subject of terrorism generally might comment on the Hatfill matter. She always contacted Hatfill’s representatives before writing a story — this is a lesson NYT’s NK should have followed before writing his early July 2002 column, if not before. She notes that Hatfill’s counsel complimented the balance of her coverage and lamented the lack of balance of some other coverage by others. She emphasizes that at her second deposition, counsel never asked her who gave her info about Hatfill specifically but was asking about who gave her information about anthrax generally.

She says the balance between the public’s need to know about terrorism and Hatfill’s rights, the balance tips against compelled disclosure.

I’m not sure I see why. I don’t see why prosecutors could not have provided information about leads they were pursuing, reasons for searches, etc., without having to do it on the condition of anonymity. We expect them to pursue leads. We assume a search, such as the search of several dozen scientists, is part of the investigation.
It is only when you have anonymous hyped stories that the investigation becomes less transparent, not more transparent. More things should be said in front of a podium, and less spun by anonymous senior officials obfuscating the source. Then, for example, when it turns out that gloves (see WP story) were not in fact found — or traces of anthrax were not in fact found — we know who to fault. We will know who to poke fun of when the “glove box” turns out to be a minnow trap. A minnow trap is a lot like being named a “person of interest”. The person can swim in but can’t swim out.

It will be very anticlimactic if and when Ms. Locy is ordered to name the source (with no further stay). We likely will learn a name. It will not at all surprise us. Nothing much will have been advanced either in the Hatfill suit or in the public’s understanding of Amerthrax. Like Ed’s discussion of the Hamaker constant, the Hatfill civil litigation and these First Amendment issues shed no light on the solution of Amerithrax.

Van der Waals forces exist not only between atoms and molecules but also between particles.

So, instead of discussing this subject, you are doing as I figured you would: You post a link to an article which YOU INTERPRET as confirming your beliefs, and you consider anyone who does not INTERPRET that article the same way as having no scientific understanding. Is that about it?

I showed how that phrase in that article is misleading. Van der Waals forces act between molecules, and ONLY act between particles when the particles touch and the molecules can interact.

Finding a phrase in a paper that you can INTERPRET to mean otherwise, doesn't change anything. I can find a hundred articles where it says that van der Waals forces act between molecules and atoms of noble gasses.

You have this misconception about van der Waals forces. You have this conspiracy theory about the attack anthrax being coated. The basis for your conspiracy theory is your misconception about van der Waals forces. And you confirm your misconception by claiming that anyone who does not believe as you believe doesn't understand science.

What about van der Waals forces and particles of gold and aluminum? Are you going to just ignore that question?

Ed at www.anthraxinvestigation.com

“You’ve got enough to go to trial. You think you can win,” Judge Douglas H. Ginsburg told Hatfill’s lawyer. “Why is more evidence critical to the case? That seems to be a contradiction.”

***

“I think you have an argument that the court didn’t do the necessary balance,” Judge Judith W. Rogers said.

Judge Brett M. Kavanaugh, the third member on the panel, expressed skepticism that Locy had a constitutional right not to identify her sources. But he said she had a very strong case under a more general legal principle, known as common law.

http://www.usatoday.com/news/washington/judicial/2008-05-09-locy-appeal_N.htm

Comment: Nothing would prevent the appellate court from narrowing the District Court’s ruling and ordering Locy to compel the name of the fourth source. Courts on Appeal commonly engage in balancing and line-drawing when faced with an overbroad ruling by a court below.

http://www.rcfp.org/newsitems/index.php?i=6743

“[Court of Appeals judge] Kavanaugh contended that leaving the existence of the privilege up to the “vagaries of a balancing test” applied by a “random district court judge” would do little to encourage and protect the communications between sources and journalists.

He added that there has been a material change from the time the Supreme Court rejected an absolute common law privilege in the early 1970s: 49 states have established either legislative or judicial rules protecting reporters from subpoenas. Given that the court looks to the states for guidance when establishing common law evidentiary privileges, that change could indicate that the current landscape demands an absolute privilege.

Leaving the courthouse, Locy said that she was “encouraged” by the morning’s hearing.

“I just wanted to get my day in court,” Locy ... said, adding that she thought the judges asked good questions during the oral argument.

In contrast to Ed’s candidate who he imagined to be a right-winger, but who along with his wife, was a staunch Gore supporter and focused on green issues, the documentary evidence shows that Ayman Zawahiri, as part of his weaponization of anthrax for use against US targets, sought to infiltrate US and UK biodefense establishment.

Among the supporters of these militant islamists were people like US scientist Ali Al-Timimi and Pakistan scientist Rauf Ahmad who blended into society and were available to act when another part of the network requested it. Two letters — one typed and an earlier handwritten one — written by a scientist named Rauf Ahmad detailed his efforts to obtain a pathogenic strain of anthrax. He attended conferences on anthrax and dangerous pathogens such as one in September 2000 at the University of Plymouth cosponsored by DERA, the UK Defense Evaluation and Research Agency. A handwritten letter from 1999 is written on the letterhead of the oldest microbiology society in Great Britain. The 1999 documents seized in Afghanistan by US forces by Rauf describe the author’s visit to the special confidential room at the BL-3 facility where 1000s of pathogenic cultures were kept; his consultation with other scientists on some of technical problems associated with weaponizing anthrax; the bioreactor and laminar flows to be used in Al Qaeda’s anthrax lab; a conference he attended on dangerous pathogens cosponsored by UK’s Porton Down and Society for Applied Microbiology , and the need for vaccination and containment. Rauf had arranged to take a lengthy post-doc leave from his employer and was grousing that what the employer would be paying during that 12-month period was inadequate. Malaysian Yazid Sufaat, who told his wife he was working for a Taliban medical brigade, got the job instead of Rauf.

I have uploaded a scanned copy of a typed memo reporting on a lab visit, which included tour of a BioLevel 3 facility, where there were 1000s of pathogenic samples. The memo mentioned the pending paperwork relating to export of the pathogens. The documents were provided to me by the Defense Intelligence Agency (”DIA”) under the Freedom of Information Act. I also have uploaded a copy of earlier correspondence between Rauf Ahmad and Dr. Zawahiri from before the lab visit described in the typed memo. The handwritten letter was reporting on a different, earlier visit where the anthrax had been nonpathogenic. Finally, on the same linked page, there are handwritten notes about the plan to use non-governmental-organizations (NGOs), technical institutes and medical labs as cover for aspects of the work, and training requirements for the various personnel at the lab in Afghanistan.

Ali Al-Timimi was a celebrated speaker with the Islamic Assembly of North America (”IANA”). I drove by the charity’s spin-off, Help The Needy, each day — it was about a mile away from me in Syracuse. Al-Timimi was a graduate student in the same building where famed Russian bioweapon Ken Alibek and former USAMRIID head Charles Bailey worked at George Mason University. The three worked at the secure facility at Discovery Hall at the Prince William 2 campus. Dr. Alibek and Dr. Bailey headed a biodefense program funded by Defense Advanced Research Projects Agency (”DARPA”). Al-Timimi had a top security clearance and had worked for SRA International doing mathematical support work for the Navy. In 2000 and 2001, Timimi was a graduate student in computational sciences. His field was bioinformatics. Al-Timimi tended to travel to give speeches on interpretation of the koran only during semester breaks. Al-Timimi spoke in very moderate, measured tones in the UK, Canada, and Australia — once even in China. He spoke against feminism, about the unfavorable treatment of islam in the secular media, about signs of the coming day of judgment, the correct interpretation of the koran and hadiths, and the destruction of the Buddha statutes by the Taliban. Locally, he spoke regularly at the Falls Church center that also housed offices of the charity, the Muslim World League. Timimi was associated with the charity Islamic Assembly of North America (”IANA”), based in Ann Arbor, Michigan. The group had a spin-off in Syracuse focused on Iraq, called Help The Needy. Ali’s colleague from the small DC-based Society for Adherence to the Sunnah, Idris Palmer, served as Vice-President. Al-Timimi’s speeches are widely distributed on the internet and tend to focus on religious rather than political issues.

A district court judge would say that his later speeches tended to favor violent jihad. After 9/11, they were removed from the website of the Center he had founded. The night of 9/11, he got in a heated debate with some colleagues. He said while islamically impermissible, the targeting of civilians was not impermissible where they were used as a shield. Others thought that it was reckless to say that so soon after the 9/11 attack when emotions were so inflamed. Years earlier, the blind sheik’s son, Mohammed Abdel-Rahman was scheduled to come from Afghanistan to speak at the IANA 1993 conference alongside Ali Al-Timimi and former EIJ member Gamal Sultan. He spoke alongside the blind sheik’s son again in 1996, the year Bin Laden issued his Declaration of War against the United States. In July and August 2001, Al-Timimi spoke in Toronto and London alongside “911 imam” Awlaki and WTC 1993 “unindicted co-conspirator” Bilal Philips.

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