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.”

Here are some quotes from WILLFUL BLINDNESS (2008) by a key prosecutor of WTC 1993, Andrew McCarthy. They bear on possible lessons learned in WTC 1993 prosecution bearing on the AMERITHRAX investigation.
http://www.amazon.com/s/ref=nb_ss_gw?url=search-alias%3Dstripbooks&field-keywords=WILLFUL+BLINDNESS&x=10&y=20

—”[L]aw enforcement is a very effective propaganda tool in the hands of policy makers who don’t see the need, or who lack the will, to adopt more controversial, preemptive approaches to national security challenges. The criminal justice process presents limitless opportunities to choreograph the ‘illusion of progress.’”

—”To make the case that cried out to be made, to ensure that we were neutralizing the ringleaders, we had to abandon any pretext that time had begun a few minutes after noon on February 26, 1993. We would have to go back. We would have to lay bare the history, the radicals’ ideological bond, and the years of methodical planning... Necessarily, that would mean also laying bare the gory details of government awareness, timidity and incompetence in the face of a gathering threat.”

—”When, moreover, there is any dispute about whether a sensitive piece of information needs to be disclosed, the decision ends up being made by a judge on the basis of what a fair trial requires rather than by the executive branch on the basis of what public safety demands.

—”For agents schooled to regard their very thoughts, never mind their reports, as “top secret” information, it had to be unnerving suddenly to be saddled with prosecutors — attorneys depicted by even the criminal investigators who liked them as defense lawyers in training — entirely too ready, under the rubric of ‘due process,’ to reveal extensive information to the bad guys.”

—”Much of the CIA’s knowledge, particularly that drawn from its covert operations, is top-secret intelligence. When an Agency analyst gives the kind of briefing I needed on Afghanistan, it is certain to be based on at least some classified information, including intelligence from deep-cover operatives, from foreign countries, and from electronic surveillance the CIA was lucky enough to set up on just the right telephone or meeting place. Such intelligence is sometimes confined to a circle so tight its revelation would blow its source.

—”The ‘rule of law’ was our trust. But the very phrase implies that everyone being ruled by the same law. That’s not true outside our country where the CIA operates.”

—”There are — hard as this may be to believe — things more important than legal cases. That kind of information is collected to anticipate the next moves of dangerous actors who mean us harm and can’t be reached by law. It must be accessible only to those who need to know it in order protect the United States.”

—”In Peshawar, both in 1985 and several times thereafter, Abdel Rahman would enjoy the august company of his former student Mohammed Shawky al-Islambouli, a fixture there. A rising jihadist star in his own right, Shawky’s prominence owed much to his mythogenic brother...”

—”Bottom-line: the woeful tale of Abdel-Rahman’s breathtakingly unrestricted travel in and out of the United States, even as he urged Muslim radicals to attack and destroy our country, it is not sinister. It is, instead, a story of inefficiency, political correctness, and incompetence.”

—”[A] consequence of treating the World Trade Center bombing solely as a crime rather than an act of war was the tunnel-vision self-imposed on our intelligence by reliance on the usual process.”

—”[I]n small compass, [Ali Mohammed] is the story of American intelligence and radical islam in the eighties and nineties: the left hand oblivious not only to the right but to its own fingers ... while jihadists played the system from within, with impunity, scheming to kill us all.”

—”There is no way to sugar coat it: Ali Mohamed is a window on breathtaking government incompetence.”

—”In the war against radical Islam, the great calling of our generation, what was true when the enemy declared war fifteen years ago remains true today. If we are too obsessed with law and liability, we are shrinking from our highest duty: to protect lives.”

—”I raised holy hell ... that I strongly suspected Mohamed was a terrorist, that the FBI should be investigating him rather than allowing him to infiltrate as a source ... Because, you know what they say “IMAGINE THE LIABILITY.”

http://www.statesman.com/news/content/news/stories/nation/05/12/0512cornyn.html

“As written, the federal shield law doesn’t provide protection for all bloggers, Goldberg said, nor should it.

‘It favors mainstream journalists — folks who work for papers, TV stations and radio stations,’ Goldberg said. ‘It needs to apply to certain folks who are only operating on the Web. The question is, who?’

***

They say the House and Senate versions of the shield law would encourage leaks of classified information and make it difficult to prosecute bureaucrats and officials who break the law by disclosing top-secret information.”

Is it classified the method used to weaponize the anthrax was “encapsulation”? Is it classified that “siliconized solution” was used? Is it classified that anthrax lab techs Barq and Wahdan were captured? Is it classified that Ibn Khattab was killed by a poison letter from the Russian intelligence service? Is the motive of the looters who killed Bin Laden’s brother-in-law Khalifa in Madagascar classified? Is it classified what Al-Timimi did for the Navy in the late 1990s while at SRA International? Is some of the work Dr Alibek did under the DARPA grants under a contract with USAMRIID involving the Ames strain classified? Should it have been classified that Al-Timimi was suspected of being an “anthrax weapons suspect”? Are the whereabouts and fate of Aafia Siddiqui classified? Mohammed Abdel-Rahman? Is it classified whether the American Type Culture Collection, to which Al-Timimi had access (ATCC jointly sponsored his bioinformatics program), had virulent Ames strain?

I don’t know. But as author Andrew McCarthy urges, “imagine the liability!”

With greater government secrecy, certainly we need to have to have a greater confidence in government.

“Domestic spying far outpaces terrorism prosecutions: As more Americans are watched, fewer cases are made,”
Los Angeles Times, May 12, 2008

http://www.latimes.com/news/nationworld/nation/la-na-justice12-2008may12,0,4309444.story

“’These are the only tracks in the snow left by terrorism investigations, if there are no more counter-terrorism prosecutions,’ Richman said. ‘This is why, more than ever, there is a pressing need for congressional oversight, for accountability at the top of the [Justice] department, and for public confidence in the department.’”

Government in the sunshine has brought us 100 hours of audio recordings of North American Aerospace Defense Command and United States Northern Command (NORAD-USNORTHCOM) on 9/11.

http://www.governmentattic.org/docs/NORAD-USNORTHCOM_9-11_Tapes.pdf

With bloggers like Ed, however, dramatically exposing Dugway’s use of silica in making simulants as “horse and buggy,” we have to concern ourselves with the risk that he undermine national security by revealing the government’s work on gas masks for horses.

http://www.governmentattic.org/docs/Horse_Gas_Mask_reports.pdf

It seems that at some point, though, the public interest favors history being written, precisely so that confidence in government (and especially the DOJ) can be maintained.

Here is an internal FBI memo on the use of pretexts and covers (deception) in interrogation and gaining information.

http://www.governmentattic.org/docs/FBI_Pretexts_and_Cover_Techniques_May-1956.pdf

Deception seems not to have gone out of style.

There is a real risk that in Amerithrax that the deception and secrecy has not been for an appropriate governmental purpose.

Dr. Rebel.

You need to stop needlessly tilting at windmills (especially after you built them).

Corinne M. Verzoni wrote a 2007 PhD thesis titled “An Assessment of Exploitable Weakness in Universities” which discusses Al-Timimi and GMU Center for Biodefense/Discovery Hall at considerable length.

She quotes me on what was found on KSM’s computer. Now aside from not relying on a more citable source like Susan Schmidt or Barton Gellman at the Washington Post on such an issue, she does beautifully. She discusses Al-Timimi, the nature of the research at Discovery Hall, the vulnerability to theft, the consequences to the University if such a theft were discovered and revealed, equipment that has gone missing (examples are from 2006), evidence of covert research being conducted, the failure to inventory equipment costing less than $2,000, and numerous details providing “I am here” flavor” — such as when and how equipment can easily be walked out the loading dock on weekends. She explains that students have access to lab equipment even for their own work or studies — with such work being totally unmonitored. She also talks about computer security (or rather access to computers). For example, she notes that a researcher can and typically will enter research results in a lab computer that then can be accessed by someone else, and the experiments repeated. The most fascinating aspect of the thesis concerns how a strain of anthrax (such as Pasteur), which is not particularly pathogenic, is nonetheless of concern (and listed now as a select agent) because it can be genetically modified. (You’ll recall the issue of the mailed anthrax having an inverted strain). The building is presently BL-2, BL-2+ with a BL-3 contemplated. But note that the Ames strain (in liquid form) was a BL-2 agent. I would have Zack send you the thesis when he gets back but I know how opposed you are to developments in scientific learning. But if the Hartford Courant were to take this thesis — which was supervised by someone whose day job is at the DOD (hint, hint) — and do the thorough job the paper did on the 1992 research at Ft. Detrick — I’d say there is a Pulitzer in the works.

While Ed and TrebleRebel are looking back to yesteryear, Professor Meseson’s wife is looking to the future in Patrick Tucker’s “Germ Warfare Under the Microscope”
Washington:May/Jun 2008 issue of The Futurist.

In an interview, MIT bioweapons expert Jeanne Guillemin talked about biowarfare. She says that technology by itself is not the driving force behind the threat of biological weapons. That force continues to be political. But for the sake of discussion, they can say that the technology for biological weapons is characterized by two levels of threat. One is residual, emanating from the old program, in which the weapons potential of anthrax, tularemia, plague, and other infectious diseases was developed. The other threat concerns innovations in human genetics and neurology. In the last six years, the US has invested some $44 billion in biodefense research and development, but whether this use of resources has deterred bioterrorism is unclear.

“Guillemin: To feel empowered against the threat of biological weapons, individual citizens should insist on two policies: One is an effective, equitable health-care system that guarantees general protection from a range of medical threats. The other is government accountability regarding military or other programs potentially in violation of the 1972 Biological and Toxin Weapons Convention.”

Jeanne Guillemin is a professor of sociology at Boston College and a senior fellow at the MIT Security Studies Program. She is the author of several books on biological warfare, including Biological Weapons: The History of State Sponsored Programs and the Problem of Bioterrorism (Columbia University Press, 2004). Her e-mail address is guillemin@mit. edu.

This interview was conducted by Patrick Tucker, senior editor of THE FUTURIST.

And for legal interpretations on the BWCC combined with characterization of the sophistication of the mailed anthrax, there is American Journal of International Law, April 1, 2007 — containing the article “The shortcomings of indeterminacy in arms control regimes: the case of the Biological Weapons Convention.”

Excerpt:

“Although the BWC purports to out law the development and possession of all biological weapons, deadlier and more sophisticated biological weapons than were imaginable in 1972 can now be and have been produced, as evidenced in October 2001 by two letters sent to the Capitol Hill offices of Senators Tom Daschle and Patrick Leahy. (2) These letters reportedly contained threatening notes and a dangerous and sophisticated form of “weapons-grade” anthrax spores. (3) Even though both the sender of these letters and the source of the anthrax remain unknown, the technical sophistication of the spores led some experts to suggest that the attacker was supported by aU.S. “biodefense” laboratory or an advanced foreign-state-run biological weapons (BW) facility because the spores could not have been produced by an amateur working in his basement. (4)

In addition to the empirical evidence of new “super” biological weapons, the failings of the BWC are further mani-fested by the growing significance that countries like the United States attach to the BW threat, (5) allegations by senior U.S. government officials that terrorists and rogue states possess biological weapons, (6) and contentious review conferences of BWC states parties that have been unable to resolve cheating and compliance concerns.”

The cited authority will be familiar to you both except, perhaps, this one which I can forward if you haven’t seen it:

Reynolds M. Salerno et al., A BW Risk Assessment: Historical and Technical Perspectives, NONPROLIFERATION REV., Fall/Winter 2004, at25, 53 n.50.

The author in the post above cites these publications in his footnotes in support. It would avoid repetition if only the Salerno publication is discussed.

“(3) A diverse group of sixteen biodefense scientists published a paper describing the Senate anthrax powder as an exceptionally deadly “weapons-grade” version of the bacterium with “high spore concentration, uniform particle size, low electrostatic charge, treated to reduce clumping.”ThomasV. Inglesby et al., Anthrax as a Biological Weapon,2002: Updated Recommendations for Management, 287 J. AM.MED. ASS’N 2236, 2237 (2002); see also Dan Eggen & Guy Gugliotta, FBI Secretly Trying to Re-create Anthrax from Mail Attacks, WASH. POST, Nov. 2, 2002, at A9 (describing the particles as “astonishingly pure”); Gary Matsumoto, Anthrax Powder: State of the Art? 302 SCIENCE 1492, 1492-94 (2003); Reynolds M. Salerno et al., A BW Risk Assessment: Historical and Technical Perspectives, NONPROLIFERATION REV., Fall/Winter 2004, at25, 53 n.50.
(4) Although the FBI originally suggested that the anthrax powder could have been produced by a lone amateur working in a basement laboratory, this theory soon came to be regarded as unlikely and was abandoned. Guy Gugliotta & Gary Matsumoto, FBI’s Theory on Anthrax Is Doubted; Attacks Not Likely Work of 1 Person, Experts Say, WASH. POST, Oct. 28, 2002, at A1. The spores were also reportedly identified as belonging to a highly virulent strain of an-thrax used in U.S. biodefense research programs. Eileen Choffnes, Bioweapons: New Labs, More Terror? BULL. ATOM. SCI., Sept./Oct. 2002, at 28. After more than five years without an arrest, however, some FBI officials have reportedly questioned the sophistication of the anthrax powder used in the attacks. Allan Lengel & Joby Warrick, FBI Is Casting a Wider Net in Anthrax Attacks, WASH. POST, Sept. 25, 2006, at A1.”

For background reading on Al Qaeda and anthrax, you might request through interlibrary loan

“The challenge of biological terrorism”
by Cordesman, Anthony H.
Published by CSIS Press, xiii, 208 p.; 2005

TABLE OF CONTENTS:
Preface ix
1. WHEN TO CRY ‘WOLF’, p. 1
1. Problem of Risk Assessments, p. 3
Little Transparency and Uncertain Pattern Analysis, p. 5
Failure of U.S. Department of State Reports, p. 6
Reform of Reporting Needed, p. 9
Threat Analysis Based on History, p. 11
Cases from the Sixth Century B.C. to A.D. 2000, p. 12
2001: Amerithrax Odyssey, p. 17
Incidents after September 11, 2001, p. 22
The Islamist Extremist Threat as a Case Study, p. 24
Words and Actions of Islamic Extremism, p. 24
CIA View of the Al Qaeda Threat, p. 31
Presidential Commission on Intelligence Capabilities of
the United States Regarding Weapons of Mass Destruction, p. 35
Other Views, p. 36
Capability-Based Threat Analysis, p. 38
Key Challenges for Action: Improve Incident and Scenario
Analysis and the Tracking of Terrorists, p. 40
2. WHAT TO CRY, p. 47
2. Problem of Intelligence, p. 49
Critical Problems Even in Superpower Intelligence, p. 49
Key Challenges for Action: Improving Intelligence, p. 52
3. Problem of Low-Level Biological Attack, p. 55
Low-Level Attacks Most Likely, p. 56
Challenges Nonstate Actors Face, p. 57
Prospects for Bioterrorism in Near Future, p. 60
Key Challenges for Action: Improve Response to Low-
Level Attack, p. 62
4. Uncertainties of High-Level Biological Attack, p. 69
Lethality and Medical Impact, p. 70
Anthrax, p. 71
Smallpox, p. 74
Plague, p. 76
Other Human Lethality Issues, p. 78
Beyond Single-Disease Lethality and Medical Effects, p. 81
Impacts Other than Direct Medical Effects, p. 82
Threats to Livestock and Agriculture, p. 83
Manufacture, Weaponization, and Dissemination, p. 85
Soviet Manufacture, Weaponization, and Lethality, p. 86
Dissemination of Necessary Equipment and Technology, p. 89
Dual-Use Technology, p. 91
Dual-Use Research, p. 94
Options for Control of Dual-Use Technology
United States as a Case Study, p. 96
Controlling the Flow of Scientific Expertise, p. 99
Other Issues of Technology and Weaponization, p. 100
Technological Change and the ô12 Monkeyö Problem, p. 102
Key Challenges for Action: Improving the Response to
High-Level Attack, p. 108
3. HOW TO CRY ‘WOLF’, p. 119
5. Resources and Levels of Effort, p. 121
The Prudent Minimum, p. 121
Prudent Minimalism or Inglorious Excess: United States as
a Case Study, p. 124
Estimates of the U.S. Effort, p. 124
Administrative Reorganization, p. 130
Programs of Detection, p. 132
Key Challenges for Action: Finding the Golden Mean, p. 137
6. Threat from Man vs. Threat from Nature, p. 141
Threat from Man, Seen by Scientists, p. 141
Threat from Nature, Seen by the National Intelligence Council 144
Threat from Nature, Seen by the WHO, p. 148
Key Challenges for Action: Integrating Bioterrorism and
Public Health Initiatives, p. 150
4. WHEN TO CRY ‘WOLF,’ WHAT TO CRY, AND HOW TO CRY, p. 153
7. Challenge of International Cooperation, p. 155
Transparency in the Real World, p. 155
Current International Initiatives: Reality or Rhetoric?, p. 156
Key Challenges for Action: Strengthening International
Cooperation, p. 164
Appendix A: Planning Scenarios, p. 173
Scenario 2: Biological Attack - Aerosol Anthrax, p. 173
Scenario 4: Biological Attack - Plague, p. 176
Scenario 13: Biological Attack - Food Contamination, p. 179
Appendix B: Biodefense for the 21st Century, p. 183
Appendix C: Pandemic Influenza, p. 195
Appendix D: Supporting Material Attached to Scientists’ Letter to
Director of NIH, p. 199
About the Author, p. 207

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.