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.”

October 17, 2007 Deposition of [former US Attorney] Roscoe Howard.

A*** Keep in mind, Isikoff called a lot.

***

A Well, I mean, the dogs were brought in to — I mean, that was the center of our
investigation at the time, was Dr. Hatfill. We had some other individuals we were
looking at, and the dogs were — I mean, Dr. Hatfill was certainly part of a group that
we were either trying to eliminate or include.

Q Did you discuss the other individuals with Mike Isikoff?

A No.

Q But you did discuss Dr. Hatfill with —

A I didn’t discuss it. He certainly knew Dr. Hatfill, yes.

***

Q Did you ever discuss with Mr. Isikoff whether bloodhounds had reacted at a
Denny’s in Louisiana where Dr. Hatfill he supposedly eaten?

A Did I discuss it with him?

Q Yeah.

A [ I don’t remember]

***

A. People who thought we were about to indict or on a verge of a breakthrough
really hurts the investigation.

Q How is that?

A Well, because, one, it wasn’t true

Two, we had lots of other individuals that were looking at. This was a case that I
thought needed a break ***

***

Q Okay. Did you ever discuss with Mr. Isikoff the items found in a search of
Dr. Hatfill’s apartment?

A No.

Q That would be improper?

A Absolutely.

Q And what about — what about just disclosing that the dogs were used
to investigate Dr. Hatfill? Was that improper?

A No.

Q That was not improper.

A Oh, I’m sorry. That the dogs were used?

Q Yeah.

A. No, I mean, no. Investigative tools, what they’re doing. People find out. It’s learned.

***
Q Did you ever discuss with Mr. Isikoff whether there was a college friend of Dr. Hatfill’s named Smith that figured into the investigation somehow?

***
A No.

***
Q What about conversations that you had with Ms. Locy?

A Again, Ms. Locy, the only conversation I remember was an in-office —

Q Did you tell Van Harp that you had talked to Mr. Isikoff about bloodhounds?

A No.

Of course, Smith is a common name. But this guy featured in the article below is a POI worth considering for the Hatfill classmate. He seems to have been interested in Amerithrax dating back to at least 2001 when he was quoted with BHR, seems to be a preeminent authority on alternative theories and mastered the material while exploring alternative hypotheses. He is quoted with BHR and Ed in an early article about a “bioevangelist theory.” He seems to have created a webpage on anthrax theories that serves as a honey trap, capturing IP addresses. (Don’t go there or you’ll be ensnared in his dastardly web! Oops. Too late.) Privately, I believe he doesn’t credit an Al Qaeda theory — which for someone who is up-to-date on the material is surprising. (The Al-Timimi information is off the charts). And my sense is that he knows a lot of journalists given how often he is quoted as an expert authority on this or that relating to privacy, computer security or the internet.

“If the Internet is like the Old West—wild and untamed—then Richard Smith is the closest thing we have to a town sheriff.”
“In Web We Trust?: The Eyes of Richard Smith”
Monday, April 24, 2000 12:00 AM PDT
http://www.pcworld.com/article/id,16444-page,11-c,privacy/article.html

http://web.archive.org/web/20011212151547/computerbytesman.com/anthrax/index.htm

On November 30, 2001, this “Mr. Smith”, if that in fact is his real name, wrote:

Is a “Deep Insider” behind the Anthrax Letters?
http://web.archive.org/web/20011225115636/computerbytesman.com/anthrax/deepinsider.htm

In November 2001, the guy is writing with uncommon acumen about the Ames strain. Who is helping him?

University of New Mexico Health Sciences Center
http://hsc.unm.edu/research/commons.shtml

Battelle Memorial Institute
http://www.battelle.org/

Defence Research Establishment Suffield
http://www.dres.dnd.ca/Welcome/

U.S. Army Dugway Proving Ground
http://www.acq.osd.mil/te/mrtfb/commercial/dpg/

Chemical Defence Establishment at Porton Down
http://news.bbc.co.uk/hi/english/health/newsid_1441000/1441902.stm

“Mr. Smith” posts up until the time of the second search.

The Princeton crime scene? [12/20/2002]
The Anthrax Conspiracy Theories Page [Updated 6/9/2002]
How a Zip code was designed to misdirect investigators [7/16/02]
How the anthrax attacker slipped up [7/16/02]
The Mohammed Atta in Prague FAQ [6/16/2002]
Why did the anthrax attacks stop? [4/20/2002]
An analysis of the Daschle and Leahy anthrax mailing addresses [12/14/2001]
Deconstructing the return addresses of the Leahy and Daschle anthrax letters [11/27/2001]
Analysis of the New York Post envelope [5/15/2002]
Is a “Deep Insider” behind the Anthrax Letters? [11/30/2001]
The FBI letter to American Society for Microbiology members [1/29/2002]
His lucid and seemingly dispassionate “Anthrax Conspiracies” page is framed in a way to support a Hatfill Theory —
http://www.computerbytesman.com/anthrax/conspiracy.htm

He doesn’t get to ask whether AQ and “its cronies” were responsible until the 10th item.

More on media leaks-

Deposition of Special Agent Bradley Garrett -

Q So when you saw the Attorney General use the term “person of interest” regarding Dr. Hatfill at the time, did you take it that, in essence, was calling Dr. Hatfill a suspect?
A By my definition, yes.

“Someone told them we were going to conduct a search.”

***

Q If any FBI official tipped off the press as to the June 25 search or August 1st search in advance, what is your view of their conduct?

THE WITNESS: That it’s absolutely wrong.
***

Q Could a higher-up, in your view, supervisor or —
A It’s still the wrong thing to do.
***

Q *** “ ‘ I think we are not going to characterize this guy in any way, shape or form,’ said a senior FBI official Thursday evening, adding that the Bureau was actively investigating several dozen people without classifying any of them as formal suspects. Many of them are scientists who work at Fort Detrick and other government laboratories. and universities where anthrax is studied, authorities said.”

Was it appropriate for the senior FBI official to say that?
***
A. No.
Q Why not?
A. Because he’s talking about an ongoing investigation and who possibly are suspects or people of interest, so to speak, which would be absolutely wrong. Again, you are telling people in advance what you are doing.”
***
Q. Now, going to the next page, it says: “FBI officials say there’s a tremendous amount of secrecy in the ongoing investigation.”
***
“Officials who attended the task force summit say the government is attempting to build a circumstantial evidence case against Hatfill, although one official acknowledged, ‘We may have enough right now to get indictment but we don’t have anywhere near enough to get a conviction.’”
***
MR. CONNOLLY: Would you agree it’s an outrage?
THE WITNESS: Yes.

Q Last two shaded paragraphs:
“Officials attending the meeting,” referring to the counterterrorism meeting, “also told ABC News that FBI agents plan another round of interviews with other persons of interest, including some current and former government scientists. ‘It’s an attempt to rule out anybody else who has come across our radar,’ said one investigator. ‘Then, we can focus entirely on Hatfill.’”

Do you see that?
A I do.
Q What is your view of that disclosure?
***
THE WITNESS. That it’s wrong.

***
Q Special Agent Garrett, do you remember an occasion in either late 2002 or early 2003 where I placed a phone call to you and volunteered Dr. Hatfill wearing a portable GPS at all times?
A Yes.
Q In that conversation, did I also offer to surrender his passport?
A Yes.
Q Did I also offer to have an FBI agent ride with him at all times wherever he went?
A Yes.
***
Q Did you pass it on to your supervisors?
A I passed it on to Special Agent Roth.
Q It was decided that my offer was rejected; is that correct?
A That’s my understanding.

“An FBI analysis suggested he was ‘evasive’ when asked a question about the attacks, a fifth source close to the investigation says.’”

A. Well, I will just tell you that it’s been my experience that the vast majority of all leaks come from upper management, they don’t come from people investigating the case. So my focus would probably be at the upper management levels of the field office and headquarters and the Department of Justice.”
***
Q Would you engage in polygraphs of select individuals?
***
A Yes

From Deposition of the retired head of the Washington Field Office Van Harp -

BY MR. CONNOLLY:

“Q Are you familiar with my rules regarding the release of information about uncharged individuals?
A Yes.
Q What is your understanding of that?
A You don’t disclose information about an individual that’s being investigated.”

***
THE WITNESS: Any information about Mr. Hatfill, and even his name, I think was improper.
***
Q What did you personally do to see whether these disclosures of information were coming from within the FBI?

A I mentioned at a staff meeting if anyone has any ideas, make sure it doesn’t occur; stop it. At one point, after a — the newspaper - actually after a phone call a Newsweek article, I made a referral for an internal OPR investigation. Then subsequently, there was another one that initiated by the fellow that was actually leading the case, and sent that over as well.

***

THE WITNESS: I trusted everybody in that [FBI Washington Field Office], particularly those three squads that were working that case. I’ve seen what’s the results of a leak and how it damages a case. And with the effort and the sacrifice that was going on at the time, and then, in the setting — don’t forget that was in connection with — not connection with, but right in the aftermath of 9/11, and several other things that we had ongoing, and my - what I knew for the most part about those agents that were working that case, I did not believe it was coming from them, and I still don’t.

***

Q Now, the 45 or so articles that you read in advance of today’s deposition, the complaint we filed in this case describes the leaks as a campaign directed to Hatfill. Do you take any issue with that?

THE WITNESS: Well, it appears that way. I don’t know what the motivation is or was, a campaign of leaks directed at him. I think it’s a very personal —”

Q Has anyone else been described as a suspect in the anthrax investigation?

A *** We went — some very extensive work on several other individuals, and their names were not disclose. I don’t know why Mr. Hatfill’s was and there weren’t, or why theirs weren’t and his was.

***
THE WITNESS: But number two, he was not a subject or a suspect, so it shouldn’t have been sent out.

***
Q Do you believe that failure to waive is consistent with what you said in your stated purpose of doing the OPR investigation, which is to get to the bottom of the leaks?”

A Well, it’s probably not consistent in one respect, but, except for Dwight Adams, at least the other — at least those other two are no longer in the Bureau, you know. I mean, I just — I mean, there’s a little bit of concern.

Now, I know what you said before the break about, well, what can the Bureau do? The bureau can’t do anything to you. You’re no longer part of it and there’s more concern, I would think, about, you know, the consequences now that you’re on the outside rather than on the inside, that simple.

***

THE WITNESS: Well, the culture — until I got to WFO, I mean, talking to the media like I did there, I probably in a moth’s time in WFO probably talked more — had more contact than I had in my prior 30 years.

***
Q Well, let me ask you this: Once his name came out there, was it enough just to simply say I will not talk about him, or was there an obligation on the part of the FBI to say, on background or otherwise, whoa, you guy, the enthusiasm you all have in the press for Dr. Hatfill as the anthrax killer is not shared here with the FBI, or some words to that effect?
***
A I don’t think so. I don’t think so.

BY MR. CONNOLLY:
Q If you were as careful as you’ve suggested in your testimony here in terms of speaking to reporters, why do you have a concern about waiving any promises of confidentiality with them?
***
THE WITNESS: I don’t have any concern about it. Like I said, if all the others do, I will. I do not recall; I don’t believe I said anything about Hatfill personally, specifically about him in connection with that investigation.
***
Q That none of them, none of the disclosures about Dr. Hatfill served a legitimate law enforcement purpose; is that correct?
A I’d have to agree with that.
Q Were any of these leaks about Dr. Hatfill done to sweat him, you know, to put pressure on him, to have him act in a certain way for an investigative technique? ***
A No, no, I would think that if there was a proposed effort or action to do something like that, it would have been discussed with me, and I wouldn’t have — I’d have said no, number one, all right.

Note that “PART 3” of this 11/29/2001 memo giving guidance on how reporting is to be done is titled “Amerithrax Pending Persons of Interest.”

To: All Field Offices Date: 11/29/2001
Counterterrorism
Investigative Services

Title: AMERITHRAX
MAJOR CASE 184
OO: WF

Synopsis: The purpose of this EC is to emphasize the importance of captioned investigation; to insure that it receive the highest priority; and to insure coordination in the reporting of investigative information.

Details: - As you know five (5) individuals have died of Anthrax inhalation. Because the FBI’s investigative efforts may prevent a prospective death, all investigative leads, no matter how material must be exhaustively, aggressively, and immediately addressed. The public safety depends on the FBI’s response and leadership.

For this reason alone, as well as the extraordinary scrutiny that both the Amerithrax and the Pentbomb investigations are receiving, inside and outside of the government and the criminal justice community, it is imperative that investigative efforts and commitment of resources receive your personal attention, personal direction and highest priority.

One of the hallmarks of the FBI, over the years, has been quality and timeliness efforts throughout the country. This has never been as important, and necessary as now.

Each office, if not already done is to designate an agent of point (POC). Preferably, the Agent should be Weapons of Mass Destructi[on] (WMD) trained or science trained agent. “Please contact WTO Case Agent Dave ______ at 202-XXX-XXXX, Bob Roth at XXX-XXX_XXX or SSA John Kerr XXX-XXX-XXXX with the POC and direct contact numbers, i.e., office, pager and cellular.

Secondly, as many offices are aware daily updates are furnished to IIC Tom Carey at SIOC and the Director is personally briefed two times daily for subsequent briefings by the Director with the Administration, i.e., the Attorney General and the President. In this respect, a daily report has been formatted showing investigative results by those offices with active investigation. This report, not only focuses with active investigation. This report, not only focuses investigative efforts, but also is beneficial in overall coordination, and is the primary vehicle for the above briefings.

The reporting format is as follows:

1. Amerithrax Summary of Incidents

This is a summary of victims, their condition, and status by Divsion. It is self explanatory and relatively static.

2. Ameritharx Investigative Update

REDACTED

PART 3 Amerithrax Pending Persons of Interest

This section must be detailed similar to a prospective presentation to an AUSA, i.e., bio/background, how developed as person of interest, on-going investigation [REDACTED ] and daily investigative results. A brief statement that investigation is “pending” is simply inadequate.

The investigation update must be submitted to WFO, daily no later than 1:00 p.m, attention SA Michael Carroll and by E-Mail only.

Each SAC is advised to insure that, as long as there is investigation outstanding in their respective Division, this report is submitted as requested. Secondly, each SAC is advised to insure that, as long as there investigation outstanding in their respective Division, this report is submitted as requested. Secondly, each SAC is requested to personally insure that all investigation (that requested by lead, and all logical follow-on investigation) is aggressively and immediately conducted and reported. Experienced, aggressive, creative Agents should be assigned this investigation in order to insure all logical investigation is conducted, and not just that requested as defined in a lead.

Amerithrax and Pentbomb are the two (2) most important investigations existing and must be handled as such.

Note that the information was sought from LSU from the DC United States Attorney Office, not the FBI or DOJ HQ.

From: Tracy Henke
To: Daniels, Deborah [Assistant Attorney General]
Date: 9/9/02
Subject: ODP issue

“***

However, on August 1, the FBI had a “formal” warrant to search Mr. Hatfill’s home. In addition, Mary Lou Leary called from the DC USA’s office to ODP and requested copies of all LSU grant applications and award documents. She requested that the information be provided to Bill Blier of the DC USA’s office. ODP complied and provided all the same documentation to OGC.

To our knowledge, Mr. Hatfill was the only individual associated with ODP training to have a “warrant” issued and the only documentation requested by the USA’s office was from LSU where Mr. Hatfill was the subject matter expert. With this information, it was determined that it was inappropriate for Mr. Hatfill to be representing the Department of Justice in training for first responders.

As additional information, it has since been documented that Mr. Hatfill provided false information on his resume and his security clearance had been revoked.

***
[handwritten notations]

7/12/02 Ex. article; sec. clrc. suspended by Dept. of Def. - Hatfill never denied, so no one thought to check

pre-Aug 1 - resume issues reported as well; again never denied [did have press conferences then]
***

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