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.”

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As-Sahab Media:: Dr. Ayman al-Zawahiri - On the Anniversary of the Gaza Blockade June 4, 2008
http://revolution.muslimpad.com/2008/06/04/as-sahab-media-dr-ayman-al-zawahiri-on-the-anniversary-of-the-gaza-blockade/

The FBI Counterterrorism Division sent out a warning to law enforcement in August 2001 that Al Qaeda or related groups might attack on an anniversary date.

NLETS MESSAGE (ALL REGIONS)

8/1/01

A MESSAGE FROM FBI COUNTERTERRORISM DIVISION, WASHINGTON, D.C.

***

AT THIS TIME, THE FBI DOES NOT POSSESS ANY SPECIFIC INFORMATION INDICATING THAT INDIVIDUALS SYMPATHETIC TO THE EAST AFRICA BOMBERS OR USAMA BIN LADEN ARE PLANNING AN ATTACK TO COINCIDE WITH THE THIRD ANNIVERSARY OF THE BOMBINGS. HOWEVER, IN RECENT WEEKS, THE U.S. INTELLIGENCE COMMUNITY HAS BEEN TRACKING AN INCREASED VOLUME OF THREAT REPORTING EMANATING FROM GROUPS ALIGNED WITH OR SYMPATHETIC TO USAMA BIN LADEN. THE MAJORITY OF THIS REPORTING INDICATES A POTENTIAL FOR ATTACKS AGAINST U.S. TARGETS ABROAD; HOWEVER, THE POSSIBILITY OF AN ATTACK IN THE UNITED STATES CANNOT BE DISCOUNTED.

CONCLUSION: RECIPIENTS ARE BEING NOTIFIED AT THIS TIME BECAUSE THE U.S. INTELLIGENCE COMMUNITY CONSIDERS ANNIVERSARY DATES AS A KEY THREAT INDICATOR. ALTHOUGH LAW ENFORCEMENT AND SECURITY PERSONNEL ARE CAUTIONED NOT TO EXCLUSIVELY RELY ON SUCH DATES TO ‘PREDICT’ ACTS OF TERRORISM, ANNIVERSARY DATES CERTAINLY WARRANT INCREASED ATTENTION IN ROUTINE SECURITY PLANNING.

RECIPIENTS WHO RECEIVE OR DEVELOP ANY INFORMATION CONCERNING THIS MATTER SHOULD CONTACT THEIR LOCAL FBI OFFICE OR FBI HEADQUARTERS IMMEDIATELY.

Anthrax was sent on the date of the Camp David Accord and the related Sadat assassination (Armed Forces Day).Expert Michael Scheuer, formerly with the CIA, has said that Al Qaeda does not plan attacks around important dates, so far as the CIA can glean. But take Ayman at his word when he says he at least plans some of his messages around anniversaries, as he and Islambouli did by sending Zawahiri issued messages in 2004 on the third anniversary of 9/11 and then in 2005 on the third anniversary of the transfer of prisoners to Guantanamo. He said: “These days we are marking three years since the transportation of the first group of Muslim prisoners was sent to the Guantanamo prison. “ The Vanguards of Conquest did the same thing in the late 1990s. Just as Zawahiri’s thinking on weaponizing anthrax was gaining traction in emails to Atef in the Spring of 1999, the Vanguards invoked an anniversary relating to the signing of the Egyptian-Israeli peace treaty and issued a statement marking its 20th anniversary. The group said at the time it was reiterating its enmity toward the US and Israel to mark the 20th anniversary of the signing of the treaty in March 1979. Signed on March 26, 1979, the Egypt-Israel peace treaty was a direct result of the Camp David Peace Accords, signed in September 1978.

The first round of letters was sent to ABC, CBS, NBC, the New York Post, and the publisher of the National Enquirer and Sun. Letters were sent to Senators Daschle and Leahy in a second batch, using a much more highly refined product. The mailing dates were of special importance to the man in its December 4, 1998 PDB that the CIA told President Clinton was planning the attack the US using aircraft and other means — Mohammed Islambouli, the brother of Sadat’s assassin. The letters to the news organizations were mailed — coincidentally or not — on September 17 or September 18, either the day the Camp David Accord was signed in 1978 or the next day when it was approved by the Israeli knesset. Abdel-Rahman, the blind sheik, in the early 1980s, said: “We reject Camp David and we regret the normalization of relations with Israel. We also reject all the commitments that were made by the traitor Sadat, who deviated from Islam.” He continued: “As long as the Camp David Agreement stands, this conflict between us and the government will continue.”

At the time of the anthrax mailings, Sadat’s assassination and the Camp David Accord still dominated Zawahiri’s thinking. In Knights Under the Banner of the Prophet, Al-Zawahiri argued in the Fall of 2001 that the Camp David Accord sought to turn Sinai into a disarmed area to serve as a buffer zone between Egypt and Israel. He cites the peace treaty between the two countries, particularly issues related to the armament of the Egyptian Army inside Sinai. He claims that Egypt has restored Sinai formally but it remains in the hands of Israel militarily. Al-Zawahiri cites many examples about the US flagrant support for Israel, including the US pressure on Egypt to sign the Nuclear Nonproliferation Treaty at a time when Israel publicly declares that it will not sign the treaty because of its special circumstances.

Despite this, Zawahiri says, the United States sympathizes with Israel and overlooks its actions. This means that the United States has deliberately left the nuclear weapons in the hands of Israel to threaten its Arab neighbors. Al-Zawahiri argues in his book that the western states have considered Israel’s presence in the region a basic guarantee for serving the Western interests.

The Wall Street Journal explained in August 2002: “Oct. 8 last year was Columbus Day, a public holiday on which mail wasn’t collected from letter boxes. That may mean the letters could have been posted as early as the Saturday before.” Taking into account the fact that there was no mail postmarked with a Trenton postmark on Columbus Day, October 8, the letter to Senator Tom Daschle postmarked October 9 may actually have been mailed October 6. (The FBI, of course, may know the date it was mailed based on information that has not been disclosed.) (Some press reports, however, suggest that they are considering that the mailing may have been at anytime during the October 6-October 9 period). October 6 was the day Anwar Sadat was assassinated for his role in the Camp David Accord. President Sadat was assassinated on the national holiday called “Armed Forces Day.” He was killed during an annual holiday parade which marks the day, October 6, 1973, that Egypt made a critical successful surprise attack on Israel during the 1973 war.

”Death to Pharaoh!” the young Army officer shouted. He and his confederates jumped off the truck shot into the reviewing stand where Sadat had been watching the annual parade. “I killed the Pharaoh, and I do not fear death.” Sadat’s detention of Muhammad Shawqi al-Islambouli had spurred his brother, Khalid, to seize an opportunity presented on short notice to assassinate Anwar Sadat. Kamal Habib, founder of Egyptian Islamic Jihad and writer for the IANA quarterly magazine, who spent 10 years in prison in connection with the assassination, told academic Fawaz Gerges: “It was not a well-coordinated operation, and it succeeded by a miracle.” A street was named after Khalid Islambouli in Iran, with Iran having been upset at Egypt for granting the Shah safe haven. After leaving Egypt in the mid-1980s, Muhammad Islambouli operated in Pakistan recruiting Egyptian fighters for the war in Afghanistan, and headed a branch of Bin Laden’s Maktab al-Khidmat (‘Bureau of Services’) in Peshawar. Muhammad Islambouli was the subject of the December 4, 1998 Presidential Daily Brief — numerous motorcycles and related vehicles, complete with helicopter hovering overhead — titled “Bin Ladin Preparing to Hijack US Aircraft and Other Attacks” explaining that Bin Laden planned an attack on the US involving airplanes and that the motivation was to free the blind sheik Abdel-Rahman and a dissident Saudi sheik.

US Postal employee Ahmed Sattar, in a 1999 interview, said of Sadat’s assassination: “ I felt good. It was a shock to me at first because I never expected the pharaoh to be assassinated in front of his army. Sure, the pharaoh, yes. And but really, after absorbing the shock, I said, “Well, that was well done.”

The aide to blind sheik Abdel-Rahman explained: “What the Western mentality does not understand that your measurement is different — your measurement of good and bad. Yes, President Sadat was a media star as what you said. Civilized, smoking a pipe, always referred to Barbara Walters as “my friend Barbara,” and “my friend Carter” — they were all his friends. But what did he do to the normal man in the slums of Cairo or in upper Egypt? He deceived them. When he signed the peace treaty with Israel, he promised, “This will be the end of suffering. Things will change dramatically for the Egyptian people.” He promised democracy, freedom, and people believed him.”

In his Fall 2001 Knights Under the Banner of the Prophet, Zawahiri explained that the US support for Israel (at Egypt’s expense) was well-illustrated by the historic 33-day airlift to Israel after this October 6 attack. He argues that the US support for Israel made the difference between success or failure for Egypt. Al-Zawahiri describes how the United States shipped weapons, ammunition, and tanks to Israel for 33 days, with the goal being to compensate Israel for its war losses and to swiftly upgrade the combat capabilities.

He explained in his Fall 2001 book: “The animosity to Israel and America in the hearts of islamists is indivisible. It is an animosity that has provided the ‘al-Qa’dia’ and the epic of jihad in Afghanistan with a continuous flow of ‘Arab Afghans.’” Regarding the Egyptian-Israeli peace treaty, Zawahiri adds: “Whoever examines the Egyptian-Israeli peace treaty will realize that it was intended to be a permanent treaty from which Egypt could not break loose. It was concluded in an attempt to establish on the ground, by force and coercion, a situation whereby it would be difficult to change by any government hostile to Israel that comes after Al-Sadat.” The militants were especially angry that Sadat had not fully implemented shariah law.

Complicating consideration of the issue somewhere, on October 5, 2001, the shura member of EIJ and former head of Bin Laden’s farm in the Sudan, Mahjoub, had his bail denied on October 5. Mahmoud Mahjoub was second in command of the Vanguards of Conquest. A letter containing nonpathogenic bacteria had been sent in late January 2001 threatening use of mailed anthrax to the immigration minister signing his security certificate. Mahjoub was bin Laden’s farm manager in Sudan — al-Hawsawi, KSM’s assistant with the anthrax spraydrying documents on his laptop, kept the books.

The CIA and FBI analysts should have pored over translations of the journal Al-Manar Jadeed published by the Ann Arbor-based Islamic Assembly of North America from 1998 - 2002 by writers based in Cairo. It mainly concerned Egyptian politics and planned the strategy based on all that had ever gone on before. There was a change in tone between the first piece by Gamal Sultan and the second installment. The first (before his letter to Abdel-Rahman) urged a pluralistic tolerant approach to differing views while the second issue (after his letter to Abdel-Rahman) contained his piece that seems to have resorted to the familiar intransigent neo-Salafist view. Analysts should pay special heed to the terms dar al-harb (abode of war), dar al-salam (bode of peace) and dar al-’ahd (abode of the treaty). The religious doctrines were applied to the relationships between Islamic and non-Islamic countries. What the liberal and leftist antiwar activists who have rallied to support IANA defendants do not realize is that the central belief of these Salafists is that Israel must be destroyed and there can be no peace with Israel. The Camp David Accords are central to the beef they have with the US. The neo-Salafists are not at all peace-loving. It’s just that the public relations debacle of the reckless invasion of Iraq played right into Bin Laden’s hands.

The 2005 bombing in Egypt at a Sinai resort was on July 23, which is Revolution Day, a national holiday in Egypt celebrating the Egyptian revolution. It commemorates the 1952 overthrow of King Farouk’s monarchy, led by Gamal Abdel Nassar. Perhaps a holiday weekend was chosen in order to maximize the number of casualties. The bombing last year at Taba resort in Egypt was on October 7.

In a September 2006 video, upon the 5 year anniversary of 9/11, Zawahiri explained:

“Among the most prominent of these conspirators are the rulers of Egypt, the Arabian Peninsula and Jordan and the traitors in Iraq who shade themselves with the cross of America, the Great Satan. [For these regimes, the “slogan ‘ death to America, death to Israel’ has gone to be replaced by ‘rule from America and peace with Israel.’ “

Al Al-Timimi arranged to have a letter from Bin Laden’s sheik hand-delivered to every member of Congress on the first anniversary of the anthrax letters to the Senators. The message he really was sending was a reminder: “We have this anthrax.”

Below is an interview of his lawyers in the Albany imam case. The defense lawyer explains that you have to look at the broader ranger of prosecutions to see the pattern.
http://216.240.133.177/archives32/Chossudovsky/2008/06/Chossudovsky_060208_120000.mp3

Al-Timimi’s friend, the Syracuse doctor, gave money each year to the group renamed Ansar. This Albany imam was connected to Ansar. Mullah Krekar, according to the diary excerpts in the sentencing memo (if I am recallling correctly) wanted the Syracuse doctor to set up a center here. The diary indicates the Albany imam in 1999 wanted to bring the fight here.

So when you hear that Al-Timimi is the celebrated speaker of IANA and that the Syracuse mosque president was asked to set up a center for Mullah Krekar in the US, you can see the possible reason for the government’s aggressive stance. Ansar al-Islam was set up by four senior EIJ leaders in the Fall of 2001 out of an amalgamation of Salafi groups. One of the four was Taha, the blind sheik’s successor. Ayman Zawahiri had sent Taha and the others.

In the Yassin Aref case in Albany, prosecutors relied on classified evidence. As in Al-Timimi’s case until recently, even though the defense counsel had the relevant security clearance, he was not allowed to see it. That case involved a sting operation involving money laundering relating to the purchase of a stinger missile.

Questioning from the bench on appeal suggests there is a possibility that it will be reversed as to one defendant pizza parlor owner on the grounds of entrapment, possibly requiring a new trial. In the event of a new trial, it is worth considering whether the federal district court in the Northern District of New York would now be persuaded by Judge Brinkema’s ruling in the Al-Timimi case.

I thought the Aref case was sympathetic in that imam Aref did not understand english well and was just serving in the role of a notary under islamic law. Even the other defendant, a pizza store owner, was focused on making $5,000 to renovate his business. But in the government’s sentencing memo, as I recall it, there were some pretty stark things from the Albany imam’s diary about his support for bringing the jihad to America. Separately a letter was seized that sought the Syracuse doctor’s help in establishing a center here for Mullah Krekar in association with Al-Timimi’s friend Dhafir in Syracuse.

The Albany imam has a book. The book is about his life as a Kurd and his struggle for justice. Here is an article giving the view of supporters.
http://atlanticfreepress.com/content/view/4016/32/

While it is easy to fault the Administration, they did not have an easy job of sorting things out. Ansar al Islam allegedly was penetrated at the senior level by Iraqi intelligene by a fellow named Wael. Michael Scheuer has claimed in a television interview that it is a certainty that Ansar was experimenting with both ricin and anthrax. Al-Timimi’s father worked for the Iraqi embassy. It will be interesting to see what more we learn from the prosecutions and appeals moving forward this year.

I admire the work that the supporters of the defendants in these prosecutions do. But I would be more likely to be swayed if someone addressed the entries in the diary. I am not up to speed on the details of the case and don’t have the URL handy for the sentencing memo which was uploaded. But from the linked article and interview, I don’t see that the supporters have addressed this issue. That issue, which might not go to the legal errors raised, bears on the equities.

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