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.”

A key fact is that of the exosporium, which is a loose-fitting protein envelope surrounding about 7-10 spore coats that overlay the cortex, had traces of silica. Calling on two of the same key cast members in his New York Times best-seller Hot Zone, the scientists who first identified the virus Ebola Reston, Richard Preston in 2002 provided a riveting account of Ft. Detrick’s initial microscopic examination of the mailed anthrax in Demon in the Freezer. The account was excerpted in The Sunday Times.

The exosporium is the spore’s outermost layer. The silica was not dispersed inside of the B. anthracis spore coats and cortex under the exosporium. Ari Fleischer discusses the silica in the anthrax in his book Taking Heat. He reports that he had argued at length with ABC News over its story that the additive was bentonite (which arguably was characteristic of the Iraq program). He explained that from the start he had told ABC that it was silica, not bentonite, that had been detected. The suggestion that AFIP experts did not know the difference between silica and silcon is not well founded, and the scientist who performed the EDX specifically told the journalist that oxygen was also detected in ratios consistent with silicon dioxide. In a broadcast to be aired in October 2008 produced by a producer from New York City, Professor Meselson after making his claim about silicon, is shown the EDX provided by the AFIP for silica. Professor Meselson’s response is his standard perfectly reasonable suggestion that the AFIP should produce all their findings. Their unpublished reports include those relating to the detection of silica in the media sample (as well as the Senate sample).

A PhD student supervised by Matthias Frank, a big star at Livermore in developing the biosensor, addressed these issues in 2004. Lawrence Livermore lab was tasked with combating the Bin Laden anthrax threat in 1998 and is steeped in biodetection, the subject of the PhD thesis. LLNL researchers have developed advanced technologies to rapidly detect the airborne release of biological threat agents. The student cites Gary Matsumoto’s Science article and says:

“In the case of anthrax, it is known that Van der Waals forces cause unprocessed spores to clump together. Large particles are not deposited efficiently in human lungs and also settle rapidly from the air. Both are undesirable properties if maximal lethality is desired. Silica powers and nanoparticles have long been used to prevent agent particles from coming close enough together for Van der Waals forces to become significant.” *** Military scientists have stated that the ‘weaponized’ anthrax letters sent to Senator Daschle’s office contained silica. In the Senate anthrax letter, there is also evidence that the bond between the silica nanoparticles and spores was further enhanced by the use of sol-gel or polymerized glass. Richard Spertzel last year said this information about the polyglass binder came from the FBI. Some believe that the spores may have even been electrostatically charged to aid their dispersal. Dr. Spertzel says that some inside the investigation say that a light charge was added. At any rate, the end result of the processing was a powder far more potent than a simple combination of anthrax spores, cells and residual growth medium.

Former Russian bioweaponeer Ken Alibek and Harvard biologist Matthew Meselson, have opined that there was no special silica coating observable in the Scanning Electron Microscope (”SEM”) images they saw. The presence of any silica, Drs. Meselson and Alibek say, may have come from the environment because of the special tendency of anthrax spore coats to attract silicon. (The lead FBI scientist Dwight Adams relied on the study provided the FBI by Meselson in briefing the Congress in November 2002.) Indeed, the silica may have been in the culture medium and then removed as described by a mid-March 2001 and related patent filed by researchers at Dr. Alibek’s Center for Biodefense at GMU. Dr. Alibek reports that, like Dr. William Patrick, he was also given a polygraph.

A scientist from the FBI Laboratory, Dr. Doug Beecher, in a July 2006 issue of “Applied and Environmental Microbiology” provided me a copy of his article that reports that:

“a widely circulated misconception is that the spores were produced using additives and sophisticated engineering supposedly akin to military weapon production. The issue is usually the basis for implying that the powders were inordinately dangerous compared to spores alone. The persistent credence given to this impression fosters erroneous preconceptions, which may misguide research and preparedness efforts and generally detract from the magnitude of hazards posed by simple spore preparations.”

The generally worded passage mere confirms Dr. Alibek’s point that a sophisticated product can result from a relatively simple method.

Harvard University Matthew Meselson reviewed the language in the FBI scientist’s article before publication. “The statement should have had a reference,” editor-in-chief of the microbiology journal told a trade periodical. “An unsupported sentence being cited as fact is uncomfortable to me. Any statement in a scientific article should be supported by a reference or by documentation.” The two passages, footnoted or not, essentially said what Dr. Alibek had been saying: “’[J]ust because you have a sophisticated product doesn’t mean the technique has to be sophisticated.’ “ Silica in the culture medium would not be a sophisticated “additive” but would permit the agent to be concentrated.

In a Letter to the Editor in Applied and Environmental Microbiology, Aug. 2007, p. 5074, titled “Unsupported Conclusions on the Bacillus anthracis Spores,” Kay A. Mereish, at the United Nations, reports:

“In a meeting I attended in September 2006, a presentation was made by a scientist who had worked on samples of anthrax collected from letters involved in the [anthrax letters] incident in October 2001; that scientist described the anthrax spore as uncoated but said it contained an additive that affected the spore’s electrical charges. (D. Small, CBRN Counter-Proliferation and Response, Paris, France, 18-20 September 2006; organized by SMi [www.smi-online.co.uk)”

Dr. Mereish tells me that her letter to the editor was not intended to agree or disagree with the FBI scientist. She merely notes that his two sentences that related to this issue of additive were not supported by the scientific experiment and data that he published. She relies on Dr. Small who made her statement based on her scientific research finding in connection with her work on the anthrax samples. Dr. Mereish’s letter, however, is another example where the use of “electrical charges” scientists as Dr. Patrick and Dr. Alibek are failing to distinguish between electrostatic charges and Van der Waals forces, thus resulting in some of the confusion in the press reports.

Kathryn Crockett, Ken Alibek’s assistant — was just a couple doors down from Ali Al-Timimi — addressed these issues in her 2006 thesis, “A historical analysis of Bacillus anthracis as a biological weapon and its application to the development of nonproliferation and defense strategies.” She expressed her special thanks to Dr. Ken Alibek and Dr. Bill Patrick. Dr. Patrick consulted with the FBI and so the FBI credits his expertise. “I don’t want to appear arrogant. I don’t think anyone knows more about anthrax powder in this country,” William Patrick told an interviewer. Dr. Alibek’s access to know-how, regarding anthrax weaponization, similarly, seems beyond reasonable dispute. Dr. Crockett successfully defended the thesis before a panel that included USAMRIID head and Ames strain researcher Charles Bailey, Ali Al-Timimi’s other Department colleague. She says that scientists who analyzed the powder through viewing micrographs or actual contact are divided over the quality of the powder. She cites Gary Matsumoto’s “Science” article in summarizing the debate. She says the FBI has vacillated on silica. “Regarding the specific issue of weaponization,” Dr. Alibek’s assistant concluded in her PhD thesis, “according to several scientists at USAMRIID who examined the material, the powder created a significant cloud when agitated meaning that the adhesion of the particles had been reduced. Reducing the adhesion of the particles meant that the powder would fly better.” She explains that “The most common way to reduce electrostatic charge is to add a substance to the mixture, usually a silica based substance.”

On the issue of encapsulation, she reports that “many experts who examined the powder stated the spores were encapsulated. Encapsulation involves coating bacteria with a polymer which is usually done to protect fragile bacteria from harsh conditions such as extreme heat and pressure that occurs at the time of detonation (if in a bomb), as well as from moisture and ultraviolet light. The process was not originally developed for biological weapons purposes but rather to improve the delivery of various drugs to target organs or systems before they were destroyed by enzymes in the circulatory system” (citing Alibek and Crockett, 2005). “The US and Soviet Union, however, “ she explains, “used this technique in their biological weapons programs for pathogens that were not stable in aerosol form... Since spores have hardy shells that provide the same protection as encapsulation would, there is no need to cover them with a polymer.“ She explains that one “possible explanation is that the spore was in fact encapsulated but not for protective purpose. Encapsulation also reduces the need for milling when producing a dry formulation.” By reducing the need for milling, she means permits greater concentration of the biological agent. If the perpetrator was knowledgeable of the use of encapsulation for this purpose, then he or she may have employed it because sophisticated equipment was not at his disposal.”

One military scientist who has made anthrax simulants described the GMU patents to me as relating to an encapsulation technique which serves to increase the viability of a wide range of pathogens. More broadly, a DIA analyst once commented to me that the internal debate seemed relatively inconsequential given the circumstantial evidence — overlooked by so many people — that US-based supporters of Al Qaeda are responsible for the mailings.

In the Al-Timimi case, did they delete references to anthrax?

White House Chief of Staff, Andrew Card, Al-Timimi’s old boss at the DOT, met on July 5, 2001 to meet with Dick Clarke and Condi Rice to discuss the threat reported in the July 2, 2001 NLETS. Andy didn’t mention to Condi and Richard “Golly, a microbiologist I know now is working in the building with the famous Russian defector Alibek and former deputy commander of USAMRIID. Given the intel reporting about the anthrax threat, maybe we should drop a wiretap on him.”

Or did he?

We may never know because of redactions. How often is CYA addressed within the beltway under the name “national security”? How long are we going to let the Administration get away with it even 7 years after the fact? If I were the Administration, I would want to address various sensitive issues before the November election so that they can be put in context.

UNCLASSIFIED REVISED ORDER GRANTING THE GOVERNMENT’S
MOTION FOR A PROTECTIVE ORDER PURSUANT TO CIPA

This matter having come before the Court upon an ex parte, in camera motion by the United States for a protective order pursuant to the Classified Information Procedures Act 18 U.S.C. App. 3, § 4, which was filed under seal, and based upon the pleadings filed in connection therewith, and for good cause shown,

IT IS HEREBY ORDERED that the motion by the United States for a Protective Order is GRANTED. In lieu of disclosure to defense counsel of the status report that was filed by the government ex parte and in camera on May 14, 2008, the United States may substitute the attachment to the Government’s Motion for a Protective Order, captioned “GOVERNMENT’S REVISED CLASSIFIED STATUS REPORT REGARDING COMPLETION OF SEARCH FOR DISCOVERABLE MATERIALS,” for the Court Security Officer to provide to cleared defense counsel.

The status report that was filed by the government on May 14, 2008 contained no information not contained in the “GOVERNMENT’S REVISED CLASSIFIED STATUS REPORT REGARDING COMPLETION OF SEARCH FOR DISCOVERABLE MATERIALS” that was either relevant and helpful to the defendant, or essential to a fair determination of this case, or that need be disclosed to defense counsel by the United States.

IT IS FURTHER ORDERED, in accordance with 18 U.S.C. App. 3, § 4, that the entire text of the motion of the United States for this Order shall remain sealed, shall not be disclosed to the defendant or his counsel, and shall be preserved in the records of the Court under seal to be made available to higher courts in the event of an appeal.

SO ENTERED, this 28th day of May, 2008.

“Ethical and Philosophical Consideration of the Dual-use
Dilemma in the Biological Sciences”

1 December 2007

***
What is the Dual-use Dilemma?
The so-called “dual-use dilemma” arises in the context of research in the biological and other sciences as a consequence of the fact that one and the same piece of scientific research sometimes has the potential to be used for harm as well as for good.

***
[T]he dilemma arises for the researcher because of the potential
actions of others. Malevolent non-researchers might steal dangerous biological agents produced by the researcher; alternatively, other researchers or at least their governments or leadership might use the results of the original researcher’s work for malevolent purposes. The malevolent purposes in question include bioterrorism, biowarfare and blackmail for financial gain.

***
Further, there have been a number of acts, or attempted acts, of bioterrorism,
notably by the Aum Shinrikyo in Japan (they attempted to acquire and use anthrax and botulinum toxin), Al-Qaeda (they attempted to acquire and use anthrax) and the so-called Amerithrax attacks (involving the actual use of anthrax).

In the aftermath of the 11th September 2001 attacks in the US, bioterrorism is widely considered to be a real threat, especially to populations in western countries. Moreover, it is seen as a greater threat from non-state terrorist groups than, say, nuclear WMDs, given the availability of the materials and technical knowledge necessary to produce the relevant biological agents and the feasibility of weaponisation. This is not to say that there are not obstacles for would-be bioterrorists, including the dangers to themselves in handling pathogens. But it is to say that there is a non-negligible bioterrorist threat, and it is likely to increase rather than decrease.

***
Experiments of Concern
***

Enable the Evasion of Diagnosis and/or Detection by Established Methods

***

Examples

Microencapsulation of pathogen particles would be one way of avoiding
antibody-based detection, although this technique has no analogue in nature. As such, microencapsulation would only be carried out for an offensive BW purpose (such as delivery of a pathogen to the lower intestine) or to investigate the requirements for protection against such a threat.

***
Project Jefferson. In September 2001 the New York Times revealed the existence of a classified US biodefence project (Project Jefferson) which, in early 2001, involved the production of a vaccine-resistant strain of anthrax bacteria [152]. The purpose was to reproduce results of Russian research published by Vaccine in 1997.

The researchers inserted genes from B cereus into B anthracis and showed that the engineered bacteria were highly lethal against hamsters, even when they had been inoculated with Russia’s standard anthrax vaccine [44, 142]. The US officials involved in Project Jefferson were reportedly mindful of the BWC and the need for protective intent. Accordingly, the project was to produce only small quantities — one gram or less — of the modified anthrax [85, p. 309]. Though the Soviets allegedly had the capacity to produce 4,500 metric tons of anthrax yearly [85, p.
254], strictly speaking even one gram of anthrax is a large quantity, capable of infecting thousands of people if a suitable dried spore preparation is made.

When Project Jefferson produced a vaccine-resistant, genetically modified
biological agent, it was only verifying something that had already turned up in the scientific literature. It is a different matter to produce modified pathogens that no one, potential adversary or otherwise, has ever created.

Enable the Weaponization of a Biological Agent or Toxin

Experiments of this kind test the bounds of permissibility most severely.
Weaponized agents do not exist in nature, and so (absent the threat of biological weapons attack) there is no ongoing public health imperative for protective mechanisms as there is against a naturally occurring infectious disease threat.

The Dual-use Dilemma Understanding weaponization processes may facilitate the development of protections against a potential BW perpetrator (including a nationstate contemplating a terrorist attack on civilians). Our focus here will be on the weaponisation of biological agents by nation-states, as opposed to the processes for delivery of biological agents that might be used by non-state actors contemplating a terrorist attack. (We do not thereby mean to imply that the threat assessment in relation to the latter is not important; clearly it is of enormous importance.)

Weaponization for “threat assessment” purposes is likely to be interpreted by
outsiders as simply the production of BW, thus endangering the norm against their production, driving a biological arms race, and making biological attacks more likely.

Examples Project Clear Vision. In September 2001, the New York Times revealed the existence of a classified US biodefence project (Project Clear Vision) which, from 1997 to 2000, involved building and testing a Soviet-model bomblet for dispersing bacteria [152]. This involved tests of bacteria bomblets, built according to a Soviet design, and conducted by Battelle, a military contractor in Columbus, Ohio. The bomblets were reportedly filled with simulant pathogens and tested for their dissemination characteristics and performance under different atmospheric conditions. Experiments in a wind tunnel revealed how the bomblets, after being released from a warhead, would fall on targets [85, p. 295]. Before the testing took place, some US government legal experts had argued the experiments were not a
breach of the BWC provided they were not intended for offensive purposes. Other officials argued that a weapon was, by definition, meant to inflict harm and therefore crossed the boundary into offensive work: “A bomb was a bomb was a bomb”.2

***

Aerosolization. Small-scale aerosolization technology may be useful for administering individual doses of inhaled vaccine or antiviral therapy (such as ribavirin) to humans, and larger-scale aerosolization could be used for mass-vaccination of animals —for example, in the poultry industry. It is hard to imagine large-scale aerosolization being therapeutically useful for humans, although such technology would certainly have enormous value for the purpose of delivering BW agents. Such technology might also be developed and tested for protective purposes. One of the principal aims of the NIAID Biodefense Research Agenda, for example, is to ensure adequate numbers of BSL-3 [Biosafety Level Three] facilities with aerosol challenge capacity. [161, p. 8].

NBACC. The National Biodefense Analysis and Countermeasures Center
(NBACC), due to be completed in 2008, is intended to provide the United States with high-containment laboratory space for biological threat characterization and bioforensic research. According to the US Department of Homeland Security, NBACC will form part of the National Interagency Biodefense Campus at Fort Detrick, Maryland. Its programs will investigate the infectious properties of biological agents, the effectiveness of countermeasures, decontamination procedures, and forensic analysis. Part of NBACC is the Biological Threat Characterization Center, which will conduct laboratory experiments aimed at investigating current and future biological threats. The Center will also assess vulnerabilities, conduct risk assessments, and determine potential impacts in order to guide the development of countermeasures such as detectors, vaccines, drugs, and decontamination technologies [135].

Many of the activities to be undertaken by NBACC could readily be interpreted
by outsiders as the development of BW under the guise of threat assessment. In particular, weaponization projects and the construction of novel (not previously existing) pathogens arguably constitute impermissible research. In a February 2004 presentation, George Korch, Deputy Director of NBACC, revealed that one of its research units intended to pursue a range of topics including “aerosol dynamics”, “novel packaging”, “novel delivery of threat”, “genetic engineering”, and “red teaming.” At one point in his presentation, Korch summarized the threat assessment task areas as: Acquire, Grow, Modify, Store, Stabilize, Package, Disperse [38, 115, 117]. Such language is identical to that which would describe the functions of an offensive BW program.

***

Most of what I’ve read about the threat of biological attack by Al Qaeda seems to have increased the threat, rather than diminish it, by giving Al Qaeda ideas it would not otherwise have had. From today’s news:

“The WMD Notebook: Staphylococcal Enterotoxin B: A lesser known inhalation or ingestion agent,” June 8, 2008
http://cms.firehouse.com/web/online/Hazardous-Materials/The-WMD-Notebook—Staphylococcal-Enterotoxin-B-/18$59778

Ayman became determined to weaponize anthrax, he told Atef, because the US folks kept telling him how easy it was. A picture of Cohen holding up the 5 lb. bag of sugar was found in Afghanistan in Fall 2001 at a seminar on how anthrax might be used.

At the same time, short-sighted pork-fueled profit-making priorities have caused governments, industry and academia to proliferate the opportunities to infiltrate or gain access to know-how. Ayman’s supporters clipped an article in which Dr. Alibek sounded the alarm.

Consider “an episode of Get Smart, the late-1960s sitcom about bumbling secret agent Maxwell Smart. The plotline concerned a plague sweeping the nation’s potato crop— potatoes look fine on the outside but .... are empty inside their jackets. Smart discovers that Siegfried, head of the evil enemy agency Kaos, is using a bioengineered bacterium to attack our potatoes [see “Biological Warfare against Crops,” by Paul Rogers, Simon Whitby and Malcolm Dando; Scientific American, June 1999]. Siegfried explains that the bacterium enters the potato, eats the insides, burps and dies, leaving no trace. Now for the really frightening part— Siegfried is spreading the potato-destroying bacteria using crop dusters.”

http://www.parapundit.com/archives/000255.html

The Scientific American article might have usefully quoted the religious proscription against attacking crops. There are at least a dozen books on jihad and the islamic jurisprudence on the principles of warfare at many good university libraries — but none of the books discuss the express prohibition on attacking livestock or crops. Future such books or articles should.

Intellectuals should help the young hotheads find the wisdom of the companions of the prophet hidden from them by their anger and hurt. Ayman and his friends from Cairo should follow the lead of Dr. Fadl.
http://www.jumpcut.com/view/?id=8243F6BE317411DD9656000423CF385C

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