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.”

Ed and jpl,

How do supporters assess the forged PhD issue as it bears on damages?

In Defendant’s Exhibit 49, Dr. Hatfill admitted that he did not receive his PhD and submitted a forged diploma in connection with getting his job at NIH.

Question: Would Louisiana State University have grounds for reversing its decision to hire upon discovery of this fraud? Answer: Yes. University Presidents are forced to resign upon plagiarizing a speech. Academia lives and breathes credentials. Forging a diploma is not puffery. It is fraud. Employers should check credentials upon hiring. Here, Dr. Hatfill was working at Detrick, as I vaguely recall, on ebola. The reason to avoid fraud in life is precisely so that when false accusations fly people will give you the benefit of the doubt. Similarly, if in fact a silencer was found (was it?), did he have a BATF permit? Is a silencer lawful in Maryland? One reason not to possess a silencer, if unlawful in the particular state and not the subject of a BATF permit, is so that people won’t think of you as a dangerous character.

Of course, this is not relevant to narrow issues of whether a Privacy Act claim survives summary judgment. But it is relevant to damages — because Dr. Hatfill is claiming the loss of the LSU job as proximately caused by the leaks rather than the forgery of the diploma. Do you think, if the government is found to have violated the Privacy Act, the loss of the LSU job is fairly included in damages? What if LSU claims that they made their decision for independent reasons, such as discovery he had falsely claimed to have a PhD and submitted a forged diploma?

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEVEN J. HATFILL, M.D.,
Plaintiff,
v.
JOHN ASHCROFT et al.,
Defendants.
No. CIV-A-03-1793(RBW)
(Judge Walton)
Washington, D.C.
Friday, May 5, 2006
Videotaped deposition of
STEVEN J. HATFILL

were not awarded a Ph.D.?
A Somewhere around 1998.
approximate there.
***
Q What did you learn in 1998?
A I’m not 98 or 99, I’m not
Possibly — anyway, I learned that I
did not receive it.
Q And how did you come to that
understanding?
A An exchange of e-mails with Rhodes
University.
Q And what did those e-mails say?
A I don’t recall the specifics.
Q In any job applications that you’ve
submitted, have you ever attached a copy of a
diploma?
A Yes, on one.
Q Which one?
A Nationa! Institutes of Health.
Q And that dip!oma states that you
have a Ph.D.?
A Yes. Don’t know what was going
through my head.
Q Is that document a forgery?
A Yes.
Q Take me through the steps in which
you created that forged dip!oma.
A I don’t recall, it’s a decade ago.
I was talking to one of the guys in the pub
and he said he was a computer guy. He said
I’!l whip one up for you.
Q When did you have the discussion
with the guy in the pub?
A While I was at Oxford.
Q So the diploma was created in 1997
A I don’t recall a specific time.
Q Other than the NIH job application,
did you ever submit that forged dip!oma in
your job applications for any other position?
A Not to my recollection.

Fishtalk, what is your authority he is known to have been in NJ when the attacks occurred when to the contrary it is not known — all indications are that he has never been to Princeton, NJ in his life. As for Florida, the anthrax was mailed from NJ, not Florida.

As for bloodhounds, when used in the sniper case, they alerted to a dog grooming parlor.

As for whether the FBI has been on the right track, they are charged with leaving no stone unturned. If they had not had vigorously investigated Dr. Hatfill, it would seem negligent.

I do think the forged diploma does bear on the equities. When seeking justice, do justice.

Of course, if the FoxNews report is right that the closest match to the powder was dry powder made at Ft. Detrick, it shows that the FBI was anchored to Ft. Detrick for reasons that went way beyond the mere fact that Ft. Detrick was the key origin for distribution of the Ames strain.

Like Dr. Hatfill’s attorney Glasberg said, when scaffolding was around the Washington Monument, you didn’t know whether there was masonry behind it. So we can tear down the scaffolding and poke fun at the Greendale school story, and the cabin in the woods, etc. but we don’t know what the FBI knows.

Personally, I don’t think there is any evidence at all Dr. Hatfill is guilty. I think the pond and bloodhound leaks were an outrage (given that they were so insubstantial). I have no idea how the lawsuit will turn out. As for the Privacy Act claim, it is pretty technical. I have not included the legal discussion.

According to the FoxNews report which relied upon an unnamed law enforcement source, the FBI no longer suspects Hatfill. I credit that.

On the forged diploma business, I think it is far more serious for a professional that recognized by Attorney Connolly or Ed Lake. It is a really, really big deal for an M.D. to have done that.

http://www.anthraxandalqaeda.com

We agree that if the investigators did not check into him they would have been lax indeed. There were three squads — one science/forensics, the other two investigating the two principal theories. We will call the investigative squads Squad A and B and the science squad C. Interesting Youtube video below. Chief investigator Lambert states that the FBI people examining the scientific forensic evidence were NOT ALLOWED to exchange information with the team examining the person of interest evidence. The news all came from work of Squad A. For example, see the deposition excerpt by Arthur Eberhart who retired in August 2002. The work of the other squad likely is classified — such as the NSA wiretaps reportedly use to snare the communications between Al-Timimi and Bin Laden’s sheik. He hand-delivered a threat in al-Hawali’s name warning of dire consequences if Iraq was invaded to every member of Congress on the first anniversary of the anthrax to the Senators. Bin Uthman, who met with AQ military commander Atef and Ayman Zawahiri in the summer of 2000 in Kandahar to discuss WMD, has said in an open letter to Zawahiri that the reason WMD was going to be used/threatened was to deter invasion. He argues that Zawahiri miscalculated. For example, the use of anthrax actually led to invasion rather than deterred it.

I agree that his prospects in the lawsuit are highly problematic. His experience in the libel suits have shown that. But there is no evidence he was in New Jersey. In his deposition, Pat Clawson provided no alibi for him beyond the long days he was spending at SAIC as reflected by his timesheets.

He had a prescription for Cipro reportedly due to dental work or a nasal infection — I forget which. Antiobiotics before oral surgery avoids endocarditis. 20,000-30,000 people each year die from infections affecting a heart valve. Let’s hope when we take penicillin — such as I was prescribed for I can’t remember what this past year — we are not accused of serial murder.

http://www.youtube.com/watch?v=wrNSZ66zvrc

I think BHR has said she had five sources working in the field, but I may be mistaken. One former FAS colleague of hers, a distinguished law professor, was actually the first to raise a “bioevangelist” theory. A smart guy, he is on all five terror lists, he reports. He has been a legal advisor to the PLO and counsel for Bosnia-Herzegovina. He tells me that (1) he was the first in the MSM to urge the “bioevangelist” theory, and (2) but he has never named Hatfill. Indeed, the chief prosecutor who leaked the sensationalist bloodhound and pond draining stories was born in 1948 in Haifa. His sister and brother-in-law were lecturing in 2002 (and his sister-in-law published in 2001) about how after 911 it was important not to jump to the conclusion that Arabs were behind the terrorism. His sister-in-law told the Washington Post in 1982 that to be born Palestine, as she was, is by definition to be political. She nonetheless said that the leading institute on contemporary Arab affairs with which she had started working then — and now heads — required that she maintain her objectivity at her day job. So I do not question the good faith of any of these individuals — but think that they had strong bias in their private life. In the case of the law professor, he is a lawyer advocating a position on behalf of clients and has worked closely with the lawyer for the blind sheik Abdel-Rahman.

I emailed BHR in December 2001 and she responded “They know who the suspects are.” I sensed cognitive rigidity then as I still do now among the same people. People tend to adhere to their original beliefs — formed shortly after considering an issue — and do not process factual information.

But if we don’t credit the good faith of all the intelligent people who were urging a close look at USAMRIID and Dr. Hatfill — and then get over the fact that the theory did not pan out and was based on a lot of faulty information
— then we will never be able to move on and digest the dramatic evidence offered by the recent FoxNews report (if we credit it as reliable).

The documentary evidence shows that Zawahiri planned on using the cover of universities and charities in weaponizing anthrax. The DIA gave me letters between Ayman and the Pakistan scientist helping him infiltrate UK biodefense. The letters expressly said this was the plan and the correspondence is corroborated by earlier memo Ayman wrote to Atef. So when we find the man taught by Bin Laden’s sheik — who is supervising the founder of the Egyptian Islamic Jihad who is writing for his charity’s publication — we should be glad for the expertise people like BHR brought to the table. Because it turns out Al-Timimi’s desk was not much more than 15 feet from the leading anthrax scientist in the world who was working with Delta Ames under a contract with USAMRIID — and the former deputy commander of USAMRIID, a prolific Ames researcher. On March 14, 2001, the leading anthrax scientist and former deputy USAMRIID commander filed a patent on how to concentrate anthrax using silica. The patent was confidential until after 9/11. As Director Mueller has said, universities must guard against the risk of theft of pre-patent, pre-classification biochemistry information.

The leaking prosecutor’s daughter then has worked for Al-Timimi pro bono in the sedition case in which he was convicted and sentenced to life plus 70 years. His conviction was reversed by of alleged NSA wiretapping. The proseccutor has not been able to find discoverable evidence of such wiretapping and in mid-March was given 60 days to try to do so.

Here’s a thought question. Another doctor’s home was searched under similar fanfare. An MD, he had a similar background to Dr. Hatfill under a “sound the alarm” bioevangelist theory and had done something to tarnish his good name involving a friend’s will. Most people wouldn’t remember his name. Does everyone know Hatfill’s name because of his legal team’s approach to the press? Press shuts down after a while when then no one is commenting. Reporters need the access to the POI or they don’t feel comfortable writing about the subject. Relatedly, was the forgery of the PhD the real basis for the damage? Could he have received a CIA security clearance having done that just three years earlier? Would he be entrusted to work with dangerous pathogens after 9/11 having been known to have done that? While I admire his counsel’s good work and the firm’s perseverance over many years in vindicating his rights, in terms of avoiding damage, a different approach might have been to act like a turtle until it passed over. His hand perhaps was forced by the series of NK/NYT columns. NK should have contacted Dr. Hatfill before writing the columns — especially the one in early July that imo crossed the line (under an on-point “Pilot B” legal decision).

Someone raising these issues should always contact the person or his representatives and offer them the opportunity to correct mistakes or provide input (and report the information provided by that person). I have always sought the input of Al-Timimi’s counsel, for example, in correcting any mistakes and would promptly make any corrections needed.

If proponents of the stupid “jewish scientist Zack theory” took a similar approach, they might have learned that his two girls were going to a private Catholic school and he and his wife attended the Catholic church downtown. Washington Report, Jihad Unspun, Arab News have not corrected their stories even though put on formal notice that the assumption made as to the person’s religion was wrong.

Analogously, I wrote the lead prosecutor (who is not muslim although born in Palestine) and sought his input months ago — as I did his sister-in-law, head of the Arab contemporary institute and his daughter, who represents Al-Timimi pro bono). The information provided by the individual is bound to be more interesting than the person just providing an outsider’s commentary.

As to Hatfill’s press strategy, let’s consider Defendant’s Exhibit 25 concerning the meeting arranged with Washington Post reporter Tom Jackman and an article he then wrote. The memo is on the day of the search of Dr. Hatfill’s apartment I believe.

The memo reads:

To: Hatfill File
From Vic
Re
Date: August 1, 2002

[REDACTED]

We agreed that I would proceed with the meeting with Tom Jackman today.

[REDACTED]

I met with Tom Jackman and gave him background information, the letters of reference for Hatfill, the article about Rosenberg’s statements, and the first page of the “Nazi swine” web page. *** I explained that the FBI wanted to repolygraph him, and that he had asked to submit the first (satisfactory) polygraph to a disinterested expert as a precondition. [Comment: polygraphs are inadmissible because they are not reliable — thus it was wrong for someone to leak to USA Today’s Locy that his polygraph showed evasion.]

Jackman is disinclined to run a story on a suspect short of his being charged, but his editor may think otherwise, particularly if the press are present at today’s search. He will call me later today to advise. [Comment: as i recall, Mr. Jackman did a feature on Dr. Hatfill].

Let’s also consider Defendant’s Exhibit 26.

Fax Transmittal Sheet
From: August 2, 2002
Media interested in FBI inquiry of Steven Hatfill
Vic Glasberg, Counsel for Dr. Hatfill

I am responding to your recent inquiry for information regarding Steven
Hatfill and the.investigation of him bythe FBI. I am a civil lawyer who for a few
weeks has been working with Dr. HatfilI on how to address a flurry of defamatory publicity about him which has appeared in the press, on TV, and on the intemet.

Dr. Hatfill was first contacted by the FBI early 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 Iengthy 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.

[Comment: it is not fruitful to engage in extended debate about “suspect”, “POI.” They clearly had keen investigative interest in Dr. Hatfill. See Arthur Eberhart depo. By August 2002, they had narrowed a list of 20 POIs to about 5 by August 2002, as I recall Special Agent Eberhart’s deposition.
Arthur Ebart had a key role in what we’ll call Squad A.]

Several days ago, Bob Roth of the FBI called Dr. Hatfill to advise that the
FBI wished to interview him again — Dr. Hatfill expressed his complete willingness to an unrestricted further debriefing, and asked Mr. Roth to calI me. When Mr. Roth did not do so promptly, I called him, so as to set the interview up in the immediate future. What happened thereafter appears on my letter to Assistant U.S. Attorney Kenneth Kohl, copy remitted herewith.

***
Pending clarification of the government’s intentions regarding his status, on
advice of counsel Dr. HatfilI will not be speaking with the press.”

You’ll recall Agent Lambert’s memo posted above from January 2003 after Brian Ross’s January 9, 2003 “exclusive” about the FBI focusing on Hatfill that there would be another media leak investigation that would be pursued with “extreme zeal.” To set the tone of candor and cooperation, he waived any Fifth Amendment privilege and agreed to take a polygraph. The prosecutor who was head of the criminal division at the DC US Attorney’s Office, in contrast, invoked the Fifth Amendment in response to every substantive question re leaking posed by Dr. Hatfill’s attorney.

After quoting so much from the government’s 82 exhibits, let quote from a key exhibit from among the 202 submitted by Dr. Hatfill.

“Q. calls this article, quote ‘An exclusive look at the search for the perpetrator of America’s worst bioterror attack.” Did you tell Mr. Klaidman [of Newsweek] that you were giving him an exclusive on this information?

[deponent invokes Fifth Amendment]

Q. Did you tell Mr. Klaidman that the FBI was acting on a tip when it searched the pond in Frederick?

Q. Did you tell Mr. Klaidman that FBI agents had interviewed the acquaintance of Dr. Hatfill’s that was supposedly the tipster?

[deponent invokes Fifth Amendment]

Q. Did you tell Mr. Klaidman that the acquaintance had told the FBI that Dr. Hatfill said toxic bacteria could be made in the woods and the evidence could be tossed in the lake?

[deponent invokes Fifth Amendment]

Q. Did you tell Mr. Klaidman that the FBI might drain the entire pond the month after this report?

[deponent invokes Fifth Amendment]

[Lawyer defending deposition] Mark, let me say something on the record so we all understand the assertion because the manner in which — or the type of questions you’re asking here. My client has been instructed to assert the Fifth Amendment privilege regardless of whether or not the answer to the question would be yes or no, because even if the answer were to be no, if he answered no to certain questions, I think an inference could be drawn from that as to what he does or doesn’t know.

So I just want to make sure you understand in terms of our Fifth Amendment assertion here is that he’s asserting the Fifth Amendment privilege to questions that may have a yes or no answer, and it’s not fair to assume that the answer to every one of these questions would be yes or no if he were to answer the questions. Does that make sense?

Q. It makes sense, but we will be seeking an adverse inference as to all questions where the fifth amendment is taken.

***

Q. Mr. Seikaly, do you deny any of the statements attributed to you by Mr. Klaidman with respect to the [Newsweek bloodhound story]

[deponent invokes Fifth Amendment]

Q Is it actually even true whether the search of the pond was prompted by a tip?

Q. Are you aware of any information that might have been used as a predicate for the pond search having been obtained as the fruits of electronic surveillance?

[deponent invokes Fifth Amendment]

Q Did you tell Mr. Klaidman that agents might be looking for a wet suit that could have been used to dispose of — that could have been used and disposed of by the anthrax attacker?

[deponent invokes Fifth Amendment]

***

Q. Did you give Allan Lengel of The Washington Post any information reflected in this article?

[deponent invokes Fifth Amendment]

Q. Mr. Lengel has testified that you told him the FBI search of the pond in Frederick was tied to Steven Hatfill and that it was triggered by a hypothetical statement Dr. Hatfill has made about anthrax; is that correct?

A. That Mr. Lengel testified about that?

Q. Is it correct that you told Mr. Lengel about those things?

[deponent invokes Fifth Amendment]

Q. How did you know that the FBI’s search of the pond in Frederick was tied to Steven Hatfill?

[deponent invokes Fifth Amendment]

***

Q. Why did you decide to disclose information to Mr. Lengel about the pond search?

[deponent invokes Fifth Amendment]

***

Q Did you tell Mr. Lengel that the items recovered from the pond up to that point included a clear box with holes that could accommodate gloves?

[deponent invokes Fifth Amendment]

***

Q Did you tell Mr. Lengel that the items recovered from the pond up that point included vials wrapped in plastic?

[deponent invokes Fifth Amendment]

Q. Do you specifically deny making any statement that Mr. Lengel has attributed to you?

[deponent invokes Fifth Amendment]

***

Q. How did you know that tests for the presence of anthrax bacteria on the equipment were continuing after two rounds of tests produced conflicting results?

[deponent invokes Fifth Amendment]

Q. Why did you disclose that information to Mr. Lengel?

[deponent invokes Fifth Amendment]

***

Q Did you tell Mr. Lengel that the search of the pond in Frederick netted nothing but a hodgepodge of items that did not appear to be linked to the case?

[deponent invokes Fifth Amendment]

***

Q If we take the dates from Exhibits É, it appears that you disclosed investigative information to Mr. Lengel for articles that appeared in January 2003, May 2003, June 2003 and August 2003. Is that right?

[deponent invokes Fifth Amendment]

***

Q. É Do you know whether you ever saw this e-mail before?

A. I don’t believe I have.

Q. Okay. Let’s look at the partially redacted paragraph. It says, quote, “WFO [Washington Field Office] has opened a leak investigation in an attempt to find out who spoke to Newsweek Magazine over the weekend about the bureau’s use of bloodhounds in the anthrax investigation,” closed quote. Do you see that?

A. I do.

Q. And the date of the email is August 5th, 2002.

A. That’s correct.

Q. The investigation that’s referenced here is about the story that you gave Mr. Klaidman, is it not?

A. Assert my Fifth Amendment Privilege in response.

***

Q. Okay. In the bottom e-mail, when Blier begins, “here is a summary of my conversation with Glen about the anthrax leak investigation.” Now, Bill Blier worked for you, did he not?

A. Yes.

Q. Did you know what Mr. Blier was referring to when he referred to, quote, the anthrax leak investigation?

A. I believe that it was an investigation involving the possible compromise of classified information is my understanding. I did know about an investigation in that.

***

Q And do you know whether that had anything to do with bloodhounds or Newsweek?

A I don’t believe it did but I don’t know.

***

Q You were aware of an anthrax investigation, yes?

A. I was — I was aware that there was a discussion of an investigation involving the compromise of classified information arising from the anthrax investigation, the Amerithrax investigation. I do recall knowing that we were — we and the U.S. Attorney’s Office and the Justice Department were concerned about this and were seeking to find out who compromised the classified information.

***

Q. Did you think it remarkable in any way that bloodhounds could track a scent from anthrax letters that were ten months old to a Denny’s in Louisiana where someone had eaten the day before?

[deponent invokes Fifth Amendment]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.