Posted on 04/13/2008 8:20:52 AM PDT by ZacandPook
On Friday, the government filed this statement of the facts in its memorandum in support of its motion for summary judgment in a civil rights and Privacy Act lawsuit brought by Dr. Steve Hatfill.
“The anthrax attacks occurred in October 2001. Public officials, prominent members of the media, and ordinary citizens were targeted by this first bio-terrorist attack on American soil. Twenty-two persons were infected with anthrax; five died. At least 17 public buildings were contaminated. The attacks wreaked havoc on the U.S. postal system and disrupted government and commerce, resulting in economic losses estimated to exceed one billion dollars. The attacks spread anxiety throughout the nation – already in a heightened state of alert in the wake of the attacks of September 11 – and left behind a lasting sense of vulnerability to future acts of bioterrorism. Given the unprecedented nature of the attacks, the investigation received intense media attention. Journalists from virtually every news organization pursued the story, sometimes conducting their own worldwide investigation to determine the person or persons responsible for the attacks and the motive behind them.
A. Journalistic Interest In Hatfill That Predates Alleged Disclosures
Testimony has revealed that at least certain members of the media began focusing their attention upon Hatfill in early 2002 because of tips they had received from former colleagues of his who found him to be highly suspicious. Articles about Hatfill thus began to appear in the mainstream press and on internet sites as early as January of 2002, and continued until the first search of his apartment on June 25, 2002, which, in turn, led to even more intense press attention.
Barbara Hatch Rosenberg, a Professor at the State University of New York, for example, complained in January and February 2002 on the Federation of American Scientists’ (“FAS”) website of the FBI’s apparent lack of progress on the investigation, and described generally the person she believed was the “anthrax perpetrator.” “Analysis of Anthrax Attacks,” Possible Portrait of the Anthrax Perpetrator (Section IV.6), Defendant’s Appendix , Ex. 1. Rosenberg did not identify Hatfill by name, but described him in sufficient detail: a “Middle-aged American” who “[w]orks for a CIA contractor in Washington, DC area” and [w]orked in USAMRIID laboratory in the past” and “[k]nows Bill Patrick and probably learned a thing or two about weaponization from him informally.” Id. In his amended complaint, Hatfill states that “Professor Rosenberg’s ‘Possible Portrait of the Anthrax Perpetrator’ . . . described [him].”
In addition to her postings on the FAS website, Professor Rosenberg also presented a lecture on February 18, 2002 at Princeton University’s Woodrow Wilson School of Public and International Affairs, entitled “The Anthrax Attacks and the Control of Bioterrorism.” Ex. 2. During the course of her lecture, Rosenberg stated that she had “draw[n] a likely portrait of the perpetrator as a former Fort Detrick scientist who is now working for a contractor in the Washington, D.C, area[.]” Ex. 3. Rosenberg also commented upon Hatfill’s whereabouts on the date of the attacks, stating that “[h]e had reason for travel to Florida, New Jersey and the United Kingdom” – where the attacks had been and from which the letters had been purportedly sent – that “[h]e grew [the anthrax], probably on a solid medium, and weaponised it at a private location where he had accumulated the equipment and the material.” Id. Rosenberg also stated that the investigation had narrowed to a “common suspect[,]” and that “[t]he FBI has questioned that person more than once[.]” Id. Former White House Spokesperson, Ari Fleischer, immediately responded to Rosenberg’s comments, stating that there were several suspects and the FBI had not narrowed that list down to one. Ex. 4. The FBI also issued a press release, stating that it had “interviewed hundreds of persons, in some instances, more than once. It is not accurate, however, that the FBI has identified a prime suspect in this case.” Id. Rosenberg’s comments and writings were subsequently pursued by The New York Times (“The Times”). In a series of Op-Ed articles published from May through July 2002, Nicholas Kristof, a journalist with The Times, accused Hatfill of being responsible for the anthrax attacks. Kristof wrote on May 24, 2002 that the FBI was overlooking the anthrax perpetrator, noting that “experts” (Professor Rosenberg) point “to one middle-aged American who has worked for the United States military bio-defense program and had access to the labs at Fort Detrick, Md. His anthrax vaccinations are up to date, he unquestionably had the ability to make first-rate anthrax, and he was upset at the United States government in the period preceding the anthrax attack.” Ex. 5.
Hatfill first noticed the Kristof columns in May 2002. Hatfill Dep. Tran. in Hatfill v. The New York Times, No. 04-807 (E.D.Va.), Ex. 6, at 13: 3-6. According to Hatfill, “[w]hen Mr. Kristof’s article appeared, it was the first [time] that [he] realized that [his] name [was] in the public domain with connection with an incident of mass murder.” Id. at 16:15-18. Hatfill has charged that The Times began the “entire conflagration and gave every journalist out there reason to drive this thing beyond any sort of sanity. Mr. Kristof lit the fuse to a barn fire and he repeatedly kept stoking the fire.” Id. at 43:19 - 44:1. In July 2004, Hatfill thus filed suit alleging that these articles libeled him by falsely accusing him of being the anthrax mailer. Complaint, Hatfill v. The New York Times, No. 04-807 (E.D.Va.), Ex. 7.
Hatfill alleges in that lawsuit that “Kristof wrote his columns in such a way as to impute guilt for the anthrax letters to [him] in the minds of reasonable readers.” Id. ¶ 12. The articles, Hatfill claimed, which described his “background and work in the field of bio-terrorism, state or imply that [he] was the anthrax mailer.” Id. ¶ 14. Hatfill specifically alleged that statements in Kristof’s articles were false and defamatory, including those that stated that he: (1) “‘unquestionably had the ability to make first-rate anthrax’”; (2) “had the ‘ability’ to send the anthrax”; (3) “had the ‘access’ required to send the anthrax”; (4) “had a ‘motive’ to send the anthrax”; (5) “was one of a ‘handful’ of individuals who had the ‘ability, access and motive to send the anthrax’”; (6) “had access” to an ‘isolated residence’ in the fall of 2001, when the anthrax letters were sent”; (7) “‘gave CIPRO [an antibiotic famously used in the treatment of anthrax infection] to people who visited [the ‘isolated residence’]”; (8) his “anthrax vaccinations were ‘up to date’ as of May 24, 2002”; (9) he “‘failed 3 successive polygraph examinations’ between January 2002 and August 13, 2002”; (10) he “‘was upset at the United States government in the period preceding the attack’”; (11) he “‘was once caught with a girlfriend in a biohazard ‘hot suite’ at Fort Detrick [where Hatfill had concedely worked] surrounded only by blushing germs.’” Id. ¶ 16 (brackets in original). Hatfill alleges in his lawsuit against The Times that “[t]he publication of [Kristof’s] repeated defamation of [him] . . .gave rise to severe notoriety gravely injurious to [him].” Id. ¶ 29. The injury, Hatfill alleged, “was [made] all the more severe given the status and journalistic clout of The Times.” Id. This harm was compounded, Hatfill alleged, by the fact that these articles were “thereafter repeatedly published by a host of print and on-line publications and on the television and radio news” in the following months. Id., ¶ 30.
The case was initially dismissed by the trial court. Hatfill v. The New York Times, No. 04-807, 2004 WL 3023003 (E.D.Va.). That decision was reversed by the United States Court of Appeals, Fourth Circuit, 416 F.3d 320 (4th Cir. 2005). Upon remand, the trial court granted The Times summary judgment, finding that Hatfill was a public figure and public official and had failed to present evidence of malice. Hatfill v. The New York Times, 488 F. Supp. 2d 522 (E.D. Va. 2007). In arriving at that conclusion, the court considered Hatfill’s repeated media interviews before the attacks; the fact that he had “drafted a novel, which he registered with [the] United States Copyright office, describing a scenario in which a terrorist sickens government officials with a biological agent”; and had lectured on the medical effects of chemical and biological agents. Id. at 525.
Although not recited by the district court in The New York Times litigation, Hatfill also talked directly to reporters about his suspected involvement in the attacks. Brian Ross of ABC News, and his producer, Victor Walter, for example, talked separately to Hatfill on two to three occasions as early as January and February 2002, Ross Dep. Tran., Ex. 8, at 263:14 - 270:1, and continued talking to Hatfill until May of that year. Id. Ross also spoke to Hatfill’s friend and mentor, William Patrick, about Hatfill. Id. at 287:9 - 295:12. These meetings were prompted by discussions ABC News had in January 2002 with eight to twelve former colleagues of Hatfill at the United States Army Medical Research Institute of Infectious Diseases (“USAMRIID”). Id. at 242:7 - 246:14. Hatfill’s former colleagues found him to be “highly suspicious because of a number of things he had done when he worked at [USAMRIID], and this behavior was strange "and unusual and they felt that he was a likely candidate.” Id. at 242: 7-17. These meetings were also prompted by ABC News’s own investigative reporting into Hatfill’s background; the more ABC News learned “the more interested [they] became” in Hatfill. Id. at 264: 14-15.
Scott Shane of the Baltimore Sun also spoke to Hatfill in February 2002. Shane also spoke to USAMRIID employees who had worked with Hatfill. Ex. 9. These employees stated that they had been questioned by the FBI and “asked about a former Fort Detrick scientist” – Hatfill – “who returned a few years ago and took discarded biological safety cabinets, used for work with dangerous pathogens.” Id. at 1. These employees claimed that Hatfill “ha[d] expertise on weaponizing anthrax and ha[d] been vaccinated against it[.]” Id. Shane also called one of Hatfill’s former classmates, who was “plagued” by questions from the Baltimore Sun and others within the media regarding Hatfill’s “alleged involvement with the large anthrax outbreak in Zimbabwe[.]” Ex. 10. According to Hatfill, this classmate was told by Shane that Hatfill was purportedly responsible for “mailing the anthrax letters and also starting the [anthrax] outbreak in Zimbabwe/ Rhodesia twenty years before.” Ex. 11, at AGD29SJH00014; see also e-mail to Hatfill fr. DF Andrews, dated Mar. 1, 2002, Ex. 10. Hatfill told Shane in February 2002 that he had been “questioned by the FBI” and that “he considered the questioning to be part of a routine effort to eliminate people with the knowledge to mount [the] attack.” Ex. 9. Hatfill also confirmed for Shane that he had taken an FBI polygraph. Ex. 12, at 2. In March 2002, Hatfill left Shane a frantic telephone message reportedly stating how he had “been [in the bioterrorism] field for a number of years, working until 3 o’clock in the morning, trying to counter this type of weapon of mass destruction” and fearing that his “career [was] over at [that] time.” Ex. 13, at 2. According to Hatfill, Shane later Case 1:03-cv-01793-RBW Document 232-2 Filed 04/11/2008 Page 17 of 73
____ Hatfill did not sue either Shane or Rosenberg, even though Hatfill has stated that Rosenberg “caused” the focus on him. Ex. 14, at 10. Because Hatfill believed that the portrait Rosenberg painted at the February 2002 Princeton conference and in her website postings was so identifying and incriminating, however, Hatfill advised Rosenberg through his lawyers that “before [she] get[s] close to describing him in the future, by name or otherwise, [that she] submit [her] comments for legal vetting before publishing them to anyone.” Ex. 15. There is no evidence that the agency defendants bore any responsibility for the media presence. Information about FBI searches is routinely shared with a variety of state and local law enforcement authorities. Roth Dep. Tran., Ex. 16, at 163:5 -165:21; Garrett Dep. Tran. Ex. 17, at 79: 8-18. ______
compounded Hatfill’s problems by calling his then-employer, Science Applications International Corporation (“SAIC”), and accusing Hatfill of being responsible for the anthrax attacks, Ex. 11, at AGD29SJH00014, which, according to Hatfill, cost him his job as a contractor at SAIC. Id. 1
The media frenzy surrounding Hatfill intensified upon the search of his apartment on June 25, 2002, and the search of a refrigerated mini-storage facility in Ocala, Florida on June 26, 2002. Both were witnessed by the media, and the search of his apartment was carried live on national television. In addition to the television coverage, the searches generated a slew of articles about Hatfill throughout the media, one fueling the next. The Associated Press, for example, detailed in an article, dated June 27, 2002, Hatfill’s (1) work as biodefense researcher, including studies he had conducted at SAIC, and the work he had done at the USAMRIID; (2) his educational background; (3) where he had previously lived; and (4) security clearances he had held and the suspension of those clearances. Ex. 18. The Hartford Courant reported these same details, and additional information regarding Hatfill’s purported service in the Rhodesian army. Ex. 19. The next day -- June 28, 2002 -- the Hartford Courant reported details about Hatfill’s background in biological warfare, his vaccinations against anthrax, questioning that purportedly had occurred among Hatfill’s colleagues, his educational background (including the claim that he had attended medical school in Greendale), and lectures that he had given on the process of turning biological agents into easily inhaled powders. Ex. 20. None of this information is attributed to a government source.
B. Hatfill’s Public Relations Offensive
In July 2002, after these reports and after the first search of Hatfill’s apartment on June 25, 2002, Hatfill retained Victor Glasberg as his attorney. Glasberg Dep. Tran., Ex. 21, at 12: 16-19. Glasberg believed that “any number of people in the media [had] overstepped their bounds. . . . prior to July of 2002 .” Id. at 141:1 - 142:6. To counter this information, Hatfill set out on a “public relations offensive” of his own to “turn [the] tide.” Id. at 138: 20-21, 178: 12-13.
Recognizing that Hatfill “continue[d] [to] get[] killed with bad press, national as well as local[,]” Hatfill drafted a statement and Glasberg forwarded that statement in July 2002 to Hatfill’s then-employer at Louisiana State University (“LSU”). Ex. 11, at 1. The statement detailed Hatfill’s background, including his medical training and employment history, and provided details about Hatfill’s involvement in the anthrax investigation, including how he had been interviewed by the FBI and had taken a polygraph examination. Id. at AGD29SJH00002-13. Hatfill’s statement corroborated the conversations that Hatfill reportedly had with Scott Shane of the Baltimore Sun in February 2002, and how that interaction had purportedly cost Hatfill his job at SAIC in March 2002. Id. at AGD29SJH00014.
In his July statement, Hatfill was careful not to blame DOJ or the FBI for his troubles or for any wrongdoing for the information about him that had made its way into the press. He touted the professionalism of the FBI, noting that “[t]he individual FBI agents with whom [he had come] in contact during this entire process are sons and daughters of which America can be justifiably proud. They are fine men and women doing their best to protect this country.” Id. at AGD29SJH00016. Hatfill’s objection lay with the media, whom he labeled as “irresponsible[,]” for trading in “half-truths, innuendo and speculation, making accusations and slanting real world events . . . to gain viewer recognition, sell newspapers, and increase readership and network ratings.” Id.
As the investigation proceeded, however, Glasberg publicly criticized investigators on the date of the second search of Hatfill’s apartment, August 1, 2002, for obtaining a search warrant rather than accepting the offer Glasberg had allegedly made to cooperate. Ex. 22. So angry was Glasberg with investigators that he wrote a letter, dated the same day as the search, to Assistant United States Attorney Kenneth C. Kohl, denouncing the fact that the search had been conducted “pursuant to a search warrant.” Ex. 23. Glasberg forwarded a copy of this letter to Tom Jackman of the Washington Post, and to the Associated Press, the morning of August 1st. Glasberg, Dep. Tran., Ex. 24, at 265:12 - 266:5; see also Ex. 25 (Glasberg memorandum to file, stating, among other things, that Glasberg showed Jackman Kohl letter on August 1, 2002).
On the day of the search, an FBI spokeswoman at the Bureau’s Washington field office, Debra Weierman, “confirmed that the search was part of the government’s anthrax investigation.” Ex. 25. Weierman added, however, that “she was unable to confirm that [investigators were acting on a search warrant] or to provide any further information about the search.” Id.
The next day – August 2, 2002 – Glasberg faxed the Kohl letter to members of the media. Ex. 26. In the fax transmittal sheet accompanying the Kohl letter, Glasberg also advised the media that: Dr. Hatfill was first contacted by the FBI earlier this year, as part of the Bureau’s survey of several dozen scientists working in fields related to biomedical warfare. He was voluntarily debriefed and polygraphed, and voluntarily agreed to have his home, car and other property subjected to a lengthy and comprehensive search by the FBI. He and his lawyer Tom Carter were told that the results were all favorable and that he was not a suspect in the case. Id. at AGD16SJH03106. Subsequent to the fax transmittal by Glasberg, Weierman confirmed that the search had been conducted pursuant to a search warrant, but only after receiving appropriate authorization from her superiors. Weierman Dep. Tran., Ex. 27, at 93:16 - 94:14.
Hatfill had also accompanied Glasberg for his interview with Jackman the day before to address the “media feeding frenzy.” Ex. 28. Glasberg provided Jackman with the promise of an “[e]xclusive personal statement” from Hatfill and the promise of “[n]o other press contacts pending publication” of the article. Id. Glasberg thus provided Jackman background information about Hatfill, Rosenberg’s statements, and other publications. Ex. 25. Hatfill reportedly complained to the Washington Post in the interview about the media feeding frenzy, and about how his “friends are bombarded” with press inquiries. Ex. 29, at 1. Hatfill also complained about the “[p]hone calls at night. Trespassing. Beating on my door. For the sheer purpose of selling newspapers and television.” Id.
C. Attorney General Ashcroft’s Person of Interest Statements
Following this “media frenzy,” not to mention the two searches of Hatfill’s apartment, former Attorney General John Ashcroft was asked on August 6, 2002 (at an event addressing the subject of missing and exploited children) about Hatfill’s involvement in the investigation. Jane Clayson of CBS News asked General Ashcroft about the searches and whether Hatfill was a “suspect” in the investigation. Ex. 30, at 2. General Ashcroft responded that Hatfill was a “person of interest.” General Ashcroft cautioned, however, that he was “not prepared to say any more at [that] time other than the fact that he is an individual of interest.” Id. At the same media event, Matt Lauer of NBC News also asked General Ashcroft whether Hatfill was a “suspect” in the investigation. Ex. 31. General Ashcroft responded that Hatfill was a “person that – that the FBI’s been interested in.” Id. at 2. General Ashcroft cautioned that he was “not prepared to make a . . . comment about whether a person is officially a . . . suspect or not.” Id.
General Ashcroft made the same comments at a news conference in Newark, New Jersey on August 22, 2002, stating that Hatfill was a “person of interest to the Department of Justice, and we continue the investigation.” Ex. 32, at 1. As in his previous statements, General Ashcroft refused to provide further comment. Id. When asked upon deposition why he referred to Hatfill as a “person of interest” in the anthrax investigation in response to these media inquiries, General Ashcroft testified that he did so in an attempt to correct the record presented by the media that he was a “suspect” in the investigation, which he believed served a necessary law enforcement purpose. Ashcroft Dep. Tran., Ex. 33, at 81: 5-12; 103:18; 108: 9-13; 138: 5-7; 125: 18-21; 134:22 - 136:8. Prior to making these statements, General Ashcroft did not review or otherwise consult any investigative record, id. at 128:14 - 129:12, much less any record pertaining to Hatfill.
General Ashcroft’s initial statements on August 6, 2002 were followed, on August 11, 2002, by the first of Hatfill’s two nationally televised press conferences. Ex. 34. During his press conference, Hatfill lashed out at Rosenberg and other journalists and columnists who he believed wrote a series of “defamatory speculation and innuendo about [him].” Id. at 3. In apparent response to the “person of interest” statements, by contrast, he stated that he did “not object to being considered a ‘subject of interest’ because of [his] knowledge and background in the field of biological warfare.” Id. at 4. This was consistent with Hatfill’s statement to ABC News earlier in 2002 in which he stated that “his background and comments made him a logical subject of the investigation.” Ex. 35. As noted, moreover, Glasberg told the media -- almost a week before the first of General Ashcroft’s statements -- that “Hatfill was first contacted by the FBI [earlier that] year, as part of the Bureau’s survey of several dozen scientists working in fields related to biomedical warfare. He was voluntarily debriefed and polygraphed, and voluntarily agreed to have his home, car and other property subjected to a lengthy and comprehensive search by the FBI.” Ex. 26.
Hatfill’s second press conference was held on August 25, 2002. In the flyer publicizing the conference, Hatfill identified himself to the media -- in bold lettering -- as “the ‘person of interest’ at the center of the federal Government’s [anthrax] investigation.” DA, Exhibit 36.
D. Clawson’s “Sunshine” Policy
Patrick Clawson joined the Hatfill team in early August 2002 as spokesperson and “fielded hundreds of inquiries from members of the press worldwide regarding Dr. Hatfill[.]” Ex. 12, at 13. Clawson believed it best to employ a media strategy that would, in his words, “let it all hang out.” Id. at 50:10. Clawson felt that “permitting maximum sunshine into . . . Hatfill’s existence would do both him and the public the best good.” Clawson Dep. Tran., Ex. 37, at 50:16-18.
“The majority of Clawson’s communications with the press regarding this case have been oral and by telephone and he did not keep a press log or any other regular record of such contacts with the press.” Ex. 12, at 13. Clawson nonetheless admitted upon deposition that he revealed numerous details about Hatfill’s personal and professional background to members of the press (Clawson Dep. Tran., Ex. 37, at 101:9 - 105:21), including Hatfill’s professional expertise (id. at 103:10 - 105:21), use of Cipro (id. at 123:16 - 130:11, 248: 8-13), whereabouts on the days of the attacks (id. at 148:12 - 158:10, 361:15 - 362:3), expertise in working with anthrax (id. at 194:13 - 195:8), former service in the Rhodesian Army (id. at 210:9 - 211:10), and drunk driving arrest (id. at 795: 7-9, 798: 4-6). Clawson also told reporters what had been purportedly removed from Hatfill’s apartment during the two searches of his apartment on June 25, 2002 and August 1, 2002 (including medical books and a jar of bacillus thuringiensis (“BT”)) (id. at 121: 6-12, 131:2 - 131:12, 14:8 - 147:3, 313: 3-10). Clawson also freely relayed to the press that bloodhounds had been presented to Hatfill during the investigation (id. at 200: 15-19); that Hatfill had been the subject of surveillance (id. at 123:12-15, 428: 19-21); that Hatfill had taken polygraphs (id. at 135:16 - 137:17); and that he had submitted to blood tests (id. at 137:18-138:5, 347: 6-10).
In furtherance of Clawson’s “sunshine” policy, Hatfill, Clawson, and Glasberg, together, provided countless on-the-record, on-background (i.e., for use, but not for attribution), and off-the-record (i.e., not for attribution or use) interviews to counter misinformation. Although Hatfill repeatedly claimed upon deposition not to remember what he said during these interviews, he acknowledged in his responses to the Agency Defendants’ interrogatories having such conversations with, in addition to Mr. Jackman, Judith Miller of The New York Times, Jeremy Cherkis of the City Paper, Guy Gugliotta of the Washington Post, David Kestenbaum of National Public Radio, Rick Schmidt of the LA Times, Rob Buchanan of NBC Dateline, Jim Popkin of NBC News, Dee Ann David and Nick Horrock of UPI, Gary Matsumato of Fox TV, Bill Gertz of the Washington Times, and David Tell of the Weekly Standard. Ex. 12, at 3-4. With respect to the Matsumato interview, Glasberg warned Hatfill before the interview that he “should not be quoted, nor should Matsumato say or imply that he spoke with him.” Ex. 38, at 1. Glasberg warned Hatfill that “Matsumato must be willing to go to jail rather than reveal word one of anything [he] says on ‘deep background.’” Id.
All of these disclosures became too much even for Glasberg, who attempted to put a stop to them. In August, when Jackman aired his exclusive interview with Glasberg and Hatfill, Glasberg heralded the success of his public relations strategy noting that “Rosenberg, Shane and Kristof are, [each] of them, in varying stages of sulking, licking their wounds, reacting defensively and changing their tune.” Ex. 39. Slowly Glasberg advised both Hatfill and Glasberg to observe “the rule of COMPLETE SILENCE regarding anything and everything about the case[.]” Ex. 40 (emphasis in original). Ultimately, in September 2002, Glasberg ordered Clawson to stand down, noting “[w]hat you know, you know, and you have put virtually all of that into the public record. Fine. That is where we are, and for good or ill we can and will deal with it. But we must put a full stop to any further conveyance of substantive data about ANYTHING from Steve to anyone [but his attorneys].” Ex. 41 (emphasis in original). To no avail. On October 5, 2002, Hatfill and Clawson appeared together at an Accuracy in Media Conference. Hatfill was asked about the reaction of bloodhounds, and stated, I’m not supposed to answer things against . . . but let me tell you something. They brought this good-looking dog in. I mean, this was the best-fed dog I have seen in a long time. They brought him in and he walked around the room. By the way, I could have left at anytime but I volunteered while they were raiding my apartment the second time, I volunteered to talk with them. The dog came around and I petted him. And the dog walked out. So animals like me (laughter). Ex. 42, at 2.
Disclosures from the Hatfill camp to the media continued. For example, between late 2002 and May 8, 2003, Hatfill’s current attorney, Tom Connolly, and CBS News reporter James Stewart had multiple telephone conversations and two lunch meetings. Ex. 43. According to Stewart, Connolly told Stewart that the investigation was focusing on Hatfill, and detailed at great length the FBI’s surveillance of Hatfill. In virtually every one of these conversations, Connolly encouraged Stewart to report on these subjects. Id. at 96.
E. Louisiana State University’s Decision To Terminate Hatfill
At the time of the second search of his apartment in August 2002, Hatfill was working as a contract employee at the Louisiana State University (“LSU”) on a program to train first responders in the event of a biological attack. This program was funded by the Department of Justice’s Office of Justice Programs (“OJP”) as part of a cooperative agreement. Ex. 44. Under the terms of the cooperative agreement, OJP “maintain[ed] managerial oversight and control” of the program. Id. at 2. Following the second search of Hatfill’s apartment on August 1, 2002, Timothy Beres, Acting Director of OJP’s Office of Domestic Preparedness, directed that LSU “cease and desist from utilizing the subject-matter expert and course instructor duties of Steven J. Hatfill on all Department of Justice funded programs.” Ex. 45. LSU, meanwhile, had independently hired Hatfill to serve as Associate Director of its Academy of Counter-Terrorist Education. Following the second search, LSU placed Hatfill on administrative leave. Ex. 46. LSU then requested a background check of Hatfill. Ex. 47. During the course of that investigation, the University became concerned that Hatfill had forged a diploma for a Ph.D that he claimed to have received from Rhodes University in South Africa. Hatfill explained to Stephen L. Guillott, Jr., who was the Director of the Academy of Counter-Terrorist Education at LSU, that “[h]e assumed the degree had, in fact been awarded since neither his [thesis advisor] nor Rhodes University advised him to the contrary.” Ex. 48. LSU’s Chancellor, Mark A. Emmert, made “an internal decision to terminate [LSU’s] relationship with Dr. Hatfill quite independent of [the DOJ e-mail] communication.” Ex. 51.
Hatfill has now testified that in fact he created a fraudulent diploma with the assistance of someone he met in a bar who boasted that he could make a fraudulent diploma. Hatfill Dep. Tran., Ex. 49 at 19:20 - 20:12. Glasberg, moreover, has stated under oath that Hatfill’s earlier attempted explanation was untrue. Glasberg, Dep. Tran., Ex. 21, at 314:10 - 317:2. In a nationally televised 60 Minutes episode that aired in March 2007, Connolly confirmed that Hatfill forged the diploma for the Ph.D from Rhodes University. Ex. 50, at 3.
F. Hatfill’s Amended Complaint
Hatfill claims lost wages and other emotional damages resulting from General Ashcroft’s “person of interest” statements and other for-attribution statements by DOJ and FBI officials. He also seeks to recover for certain other alleged “leaks” by DOJ and FBI officials. Hatfill additionally asserts that the defendants violated the Act by purportedly failing to (1) maintain an accurate accounting of such disclosures, which he asserts is required by section 552a(c) of the Act; (2) establish appropriate safeguards to insure the security and confidentiality of the records that were purportedly disclosed, which he asserts is required by section 552a(e)(10); (3) correct information that was disseminated about him that was inaccurate or incomplete, which he asserts is required by section 552a(e)(5); and (4) establish adequate rules of conduct, procedures, and penalties for noncompliance, or to train employees in the requirements of the Act, which he asserts is required by section 552a(e)(9). Defendants are entitled to summary judgment.”
No, Ed is NOT right. Do you think Dugway was the only military lab reverse-engineering the anthrax?
OBVIOUSLY the FBI reverse engineered it - or tried to. That’s the most basic thing that they would ever do. To imagine that they simply said to a few labs - “We’re not telling you details about this powder, but just try to see what you can make and we’ll see it matches” is ridiculous.
There were multiple stories that this was being done - and Mason and Mueller are DIRECTLY quoted confirming it.
http://www.ph.ucla.edu/EPI/bioter/fbisecretlyrecreate.html
Source: Washington Post, November 2, 2002.
FBI Secretly Trying to Re-Create Anthrax From Mail Attacks
By Dan Eggen and Guy Gugliotta, Washington Post Staff Writers
FBI investigators and federal scientists have been secretly working for months to replicate the type of anthrax used in last year’s deadly mail attacks, as part of a previously undisclosed strategy designed to determine precisely how the spores were manufactured, officials said yesterday.
FBI Director Robert S. Mueller III, who revealed the experiments in remarks to reporters here, said that using such “reverse engineering” could help investigators narrow the list of possible suspects.
“We’re replicating the way or ways it might be manufactured, but it is not an easy task,” Mueller said. “We are going into new territory in some areas.”
I repeat: When you have two different "experts" saying two different things, you need to determine which "expert" is making scientific sense. You can't just mindlessly believe the "expert" who says something that you can twist and distort to fit your beliefs.
The FBI obviously contracted someone to truly reverse engineer the powder.
If they did, it wasn't Dugway. And according to Dugway, you have to know exactly how the spores were made if you want to "reverse engineer" them.
The only person who would know that is the person who made the attack anthrax. Do you believe the FBI contracted with him (or her) to "reverse engineer" the anthrax powder?
No Ed, to reverse engineer something you read the lab reports on the analysis of the spores.
Then you use that knowledge to reverse engineer the powder or replicate the powder.
I can understand why you don’t like the fact that Mason admitted it had failed, and even that Mueller said it was being attempted in the first place. Because if the spores don’t contain additives - what exactly is there to “reverse engineer”?
I can also understand why you dislike the leaked Detrick email - how can one sample of “pure spores” be more similar to another sample of “pure spores”? Unless there are additives present to differentiate them?
No, TrebelRebel, that results in ONE way to get something SIMILAR to the object in question.
how can one sample of “pure spores” be more similar to another sample of “pure spores”? Unless there are additives present to differentiate them?
A very good question. (Finally!!!)
If you make "pure spores" using water obtained from the Southwest and more "pure spores" using water obtained from the Northeast, they will both be "pure spores" but they will NOT be identical. There will be water isotope differences.
If you make "pure spores" using one brand of nutrient and if you make more "pure spores" using another brand of nutrient, they will both be "pure spores" but they will NOT be identical. There will be chemical differences.
The objective of making these different types of "pure spores" with all different types of manufacturing methods is two fold: (#1) To see which one is CLOSEST to the attack anthrax. (#2) To see which processes can be ruled out as not producing something similar. That provides EVIDENCE to be used in court.
In court they have to say: "The attack spores were made in the Northeast; the suspect works in the Northeast. The attack spores were made with Brand-X nutrients; the suspect uses Brand-X nutrients. The bacteria for the attack spores were grown in a Brand-Y fermenter; the suspect uses a Brand-Y fermenter. Etc. Etc.
And then the jury is told: The chances of another scientist using all these same processes in the same area are one in ten thousand, which happens to be the number of scientists in that area. So, there is only one scientist in that area who could have made the attack anthrax.
I wonder if that is some kind of record.
You can try to fantasize your way out of this. I can guarantee you that when Mason said they had failed it was not because the isotope ratios of C, O and H didn’t exactly match. The isotope studies are a total waste of time anyway -a conviction could never be made on that basis alone - since a lab in Arizona could easily have used commercial laboratory water that orginated in the Northeast - it proves nothing.
“And then the jury is told: The chances of another scientist using all these same processes in the same area are one in ten thousand, which happens to be the number of scientists in that area. So, there is only one scientist in that area who could have made the attack anthrax.”
That’s about ten thousand times more ridiculous than the “lead in bullets” scandal.
Dwight Adams doesn’t exactly come across too well in this video:
http://www.cbsnews.com/stories/2007/11/16/60minutes/main3512453.shtml
Aside from eyewitness testimony, some of the most believable evidence presented in criminal cases in the United States comes from the FBI crime laboratory in Quantico, Va. Part of its job is to test and analyze everything from ballistics to DNA for state and local prosecutors around the country, introducing scientific credibility to often murky cases.
But a six-month investigation by 60 Minutes and The Washington Post shows that there are hundreds of defendants imprisoned around the country who were convicted with the help of a now discredited forensic tool, and that the FBI never notified them, their lawyers, or the courts, that the their cases may have been affected by faulty testimony.
The science, called bullet lead analysis, was used by the FBI for 40 years in thousands of cases, and some of the people it helped put in jail may be innocent.
As usual, you are not paying attention. I described how they are using MANY tests to differentiate between spore preparations. So, no one is even going to try to do it on one test alone.
You clearly have no comprehension of Rules of Evidence or the way the FBI builds a case.
What is your fantasy explanation for why they used all those different ways to create spores? Do you believe they just did it for fun?
So, what are you saying? Are you saying that no matter what the FBI tries to prove, you will not believe it?
Are you trying to say that because the FBI made a mistake, they can never be trusted ever again?
Or are you just mindlessly venting your hatred for the FBI the same way you vent your hatreds for Meselson and Alibek?
They probably used milling versus spray drying, how the spores were dried would likely leave tell-tale features - damage to the surface etc.
But the most obvious explanation for not being able to reproduce the spores afer 2 years is that the processing of something akin to 1% by weight of fumed aerosil giving total monlayer spore coverage is tricky.
You’ve seen pictues of silica coated spores in Microbial Forensics - every sample looks different - and that’s just a few examples. There is a near infinte number of different looking spore preparations as you vary just 3 parameters - % silica, size of silica primary particles and dispersion, and process conditions. It wouldn’t be hard to believe that after 2 years one couldn’t get a preparation that looked exactly the same.
Of course, if you believe all the work that went into putting these pictures and discussions into Microbial Forensics by the 20 or so authors involved (they called them “weaponized simulants”) was just to prove that it was ridiculous to coat spores with silica (your imagined fantasy) - then it’s not fruitful for you to consider and you should stick to your isotope fantasy.
I’m just demonstrating that even if the FBI didn’t have an atrocious track record with faulty forensic evidence principles, it would still be impossible to use isotope evidence to convict. There are too many variables - at least a dozen different chemicals are used in fermentation - all could be from dozens of sources. The water itself could be from anywhere, used anywhere.
But the point is - the FBI’s credibility barrier for forensics is so high, that they might as well forget it. And, yes, I AM saying that if the FBI made one mistake, it will not take much in court to convince a jury that there is soemthing amiss with their methods. It’s all a matter of record.
It also wouldn't be hard to believe that after six years they didn't get TWENTY preparations that LOOKED exactly the same -- but which had very small differences detectable only by specialized equipment.
You still aren't answering the basic question: If they DID "reverse engineer" the attack anthrax perfectly, of what value would it be?
The basic question to be answered is this - how much effort was required to reverse engineer the powder - how much money and resources? Is it feasible for this to have been done privately?
Of course the other obvious question is - why did the Dugway preparation without silica “fly like a penguin”? The answer is obvious - it contained no silica. But it should trouble you greatly surely - after all you claim silica isn’t needed to make a powder with the same aerosol properites as the attack anthrax.
Again - that seems obvious - since we know Dugway used silica coated anthrax to simulate the behavior of the attack anthrax - in their own study that is - not what they made for the FBI without silica.
I suppose that when you read the Fox News email you imagine that when the Detrick scientist wrote “He said that the best duplication of the material was the stuff made by [name redacted]” that means “the stuff [name redacted] made had the same isotope ratios as the attack anthrax”.
I’m being flip - of course you cannot possibly truly imagine that to be the case - although you may use that argument to hide behind what it really means.
What is really means, of course, is that the powder made by[name redacted] looked and acted the closest to the attack powder. Which means it would form an aerosol and that it’s laboratory analysis report matched the attack spores. And, yes, that means additives - it means it matched the same additive composition. That is the only reasonable explanation.
If you have to distort the facts to make an argument, it just proves that you don't have a valid argument.
Isotope evidence would just be ONE type of evidence. They'd use MANY other types of evidence to prove that the anthrax came from a specific person in a specific lab.
Beyond the evidence from microbial forensics, they'd also use evidence that the suspect was in New Jersey at the time of the attacks, that he had access to a lab at the time of the attacks, that he had no alibi for the times of the attacks, that he had the technical knowhow to make the anthrax, that he had access to the Ames strain, and that he had a motive for sending the letters, etc.
To suggest that the FBI is going to build their entire case on one piece of circumstantial evidence is just mindless arguing for the sake of arguing.
And, yes, I AM saying that if the FBI made one mistake, it will not take much in court to convince a jury that there is soemthing amiss with their methods. It’s all a matter of record.
So, what is it you want them to do? To give up so that you can continue to argue that they are worthless?
You hunt for one situation which shows they didn't do things correctly. How many SUCCESSFUL cases have the had? Or don't you want to acknowledge that they EVER had a successful case because in your mind people are either infallable or they're "baffoons"?
I've got news for you: People on juries do not typically believe that humans are either infallable or they're "baffoons." And the judge will tell them that it is their job to view the FACTS of the case. The fact that the FBI labs made some error on some other kind of evidence in some other kind of case probably wouldn't even be admissible. If it is admissible, the judge will tell the jury that it does NOT mean that the evidence in the current case is invalid in any way.
It’s way too late for all of that. Imagine the Fox News story is correct - what if they really have narrowed it down to 4 suspects connected with Detrick? What if they have evidence that Detrick’s Mr Redacted really did make an absolutely identical powder at Detrick a year before the attacks? What is they cannot find a single spore at his home or any other place he had ever been outside Detrick? Does anyone remember where Mr Redacted was one night 6 1/2 years ago when the letters were posted?
I have news for you - they can’t convict him - there’s no way they can prove beyond a reasonable doubt he sent the stuff - unless they have video of him taking it out the classified safe and not putting it back - which I doubt because they would have arrested him by now.
No spores - no conviction.
NO! The BASIC question comes BEFORE those questions. The BASIC question is: WHY should they try to reverse engineer it in the first place?
Of course the other obvious question is - why did the Dugway preparation without silica “fly like a penguin”?
The answer is also obvious: It was made in a way that any scientist would KNOW before even making it that would "fly like a penguin" because it was just one method of making anthrax powders from MANY that they would perform to get samples for testing.
I'd say the better question is: Why does that ONE preparation mean so much to you when you KNOW they made MANY MANY MANY types of preparations? Is it because you can take the quote out of context and make a mindless argument with it?
you claim silica isn’t needed to make a powder with the same aerosol properites as the attack anthrax.
I don't just claim it, that's what the FACTS say. The attack anthrax was neither coated with silica nor mixed with silica in any way visible under a TEM or SEM.
You may fantasize that some kind of invisible silica coating was applied, but that would be just an absurd fantasy.
we know Dugway used silica coated anthrax to simulate the behavior of the attack anthrax
FALSE! The CDC used silica coated anthrax from Dugway to simulate the behavior of what they believed the attack anthrax looked like based upon newspaper stories they'd read.
No, Duway/CDC used silica coated anthrax to simulate the attack anthrax. They reference Beecher’s paper - but they ignore his famous paragraph. If they believed Beecher they would have used anthrax without additives - instead they used COATED anthrax. Of course, they’re experiences making “penguin spores” without silica for the FBI’s failed experiment may also have helped them with that one.
It says it clearly in their paper:
In the anthrax attack of 2001, some of the material was believed to be in a “fluidized” form (defined here as having fumed silica added). In order to simulate the aerosol-deposited nature of the anthrax biowarfare agent on surfaces, a two part study was initiated. The present work was part of a larger study to investigate surface sampling techniques and analytical techniques. The focus of the work presented here was to develop a system to prepare multiple samples in a chamber, which allowed predictable concentrations of aerosolized spores (closely simulating the type of spores used in the actual attack) to settle on at least two types of surfaces and at concentrations that tested the limits of detection of the sampling and analytical methods.
Imagine the Fox News story is a bunch of crap. Instead, consider that the FBI identified the culprit in December of 2001, they collected scientific evidence back then, but they didn't have enough of the right kind of scientific evidence to make an arrest -- particularly after the idiotic conspiracy theorists began pointing at Dr. Hatfill. So, the FBI arranged for the formation of a Working Group to formalize the new science of Microbial Forensics. And they arranged for scientists from any areas to help develop statistical and scientific evidence that they can use in court to validate the scientific evidence they've had for six years and which they need for a conviction. And consider that they also need a moot court to weigh all the legal factors before they make an arrest. And consider, too, that they need a DOJ prosecutor who is willing to take the case to court even though he or she may not be absolutely certain of a conviction.
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