August 30, 2011
Anthrax investigation - DOJ case even weaker now.
"President Obama... actually threatened to veto the entire intelligence authorization bill if it included a proposed bipartisan amendment (passed by the House) that would have mandated an independent inquiry into the FBI's anthrax investigation."
On July 15, however, Justice Department lawyers acknowledged in court papers  that the sealed area in Ivins' lab--the so-called hot suite--did not contain the equipment needed to turn liquid anthrax into the refined powder that floated through congressional buildings and post offices in the fall of 2001.
The government said it continues to believe that Ivins was "more likely than not" the killer. But the filing in a Florida court did not explain where or how Ivins could have made the powder, saying only that the lab "did not have the specialized equipment '' in Ivins' secure lab "that would be required to prepare the dried spore preparations that were used in the letters."
The government's statements deepen the questions about the case against Ivins, who killed himself before he was charged with a crime. Searches of his car and home in 2007 found no anthrax spores, and the FBI's eight-year, $100 million investigation never proved he mailed the letters or identified another location where he might have secretly dried the anthrax into an easily inhaled powder.
Paul Kemp, Ivins' lead defense attorney, said Monday that the department's concession that the equipment wasn't available "is at direct variance to the assertions of the government on July 29, 2008," the day Ivins died, thus "invalidating one of the chief theories of their prosecution case."
Kemp said that government officials told him and a colleague, Tom DeGonia, that the FBI could "prove that Dr. Ivins manufactured the dried spores used in the anthrax attacks, and would prove this by the records of his presence in the hot suites in August and September."
And then.... DOJ says OOOPPPS! Retraction....
The department's legal dance stems from its two seemingly conflicting roles: backing up the FBI's finding that Ivins, who committed suicide in July 2008, was the killer; and defending an Army bio-weapons lab at Fort Detrick, Md., against allegations of negligence.
The department's Civil Division is attempting to limit federal liability over the death of the first anthrax victim, a Boca Raton, Fla., man whose family is seeking $50 million in damages for alleged negligence by the lab at the U.S. Army Medical Research Institute of Infectious Diseases (USAMRIID), where Ivins worked on anthrax vaccines.
In trying to minimize USAMRIID's liability, government lawyers have had to walk a fine line, because the FBI says Ivins produced the anthrax powder at the facility while the civil lawyers seemed to suggest it could have been prepared elsewhere.
Tuesday's retraction came a day after a collaborative report  by McClatchy, the Public Broadcasting System's Frontline news magazine and ProPublica, disclosing what appeared to be an explosive Justice Department revelation.
In a legal filing last week , department lawyers in the civil case said that the lab lacked the "specialized equipment in a containment suite" needed for Ivins to have dried the deadly powder.
That and other statements raised hackles at the FBI and among prosecutors in the criminal case, leading to hurried huddles at the Justice Department.
In a statement Tuesday, department spokesman Dean Boyd said that Civil Division lawyers had submitted "inaccurate information" and that "the Justice Department and FBI stand behind their findings that Dr. Ivins had the necessary equipment in the containment suite" to produce the spores.
They noted that Ivins had ordered his own machine, known as a lyophilizer, that could be used for drying anthrax spores. The machine was labeled "property of Bruce Ivins" and was located in a nearby biocontainment suite.
Although it amended the filing, the Justice Department could not take back what government scientists had said in sworn depositions.
Stephen Little, a technician at the Army lab, was asked whether the equipment could have been used to make the dried spore preparation used in the letters.
"Not any equipment I have seen," Little replied .
Little said that there was "no way" Ivins could have moved the lyophilizer to the into the biocontainment suite, where Ivins' lab space was located.
"The thing is as big as a refrigerator," Little said.
Another scientist, Susan Welkos, said , "We don't have any way to produce the massive amount of (anthrax) material that would have been necessary to grow up and dry in a way that wouldn't have killed everybody in the institute."
Ever since the FBI claimed (for a second time) that it had discovered in 2008 the identity of the anthrax attacker -- the recently-deceased-by-suicide Army researcher Bruce Ivins -- it was glaringly obvious, as I documented many times, that the case against him was exceedingly weak, unpersuasive and full of gaping logical, scientific, and evidentiary holes. So dubious are the FBI's claims that serious doubt has been raised and independent investigations demanded not by marginalized websites devoted to questioning all government claims, but rather, by the nation's most mainstream, establishment venues, ones that instinctively believe and defend such claims -- including the editorial pages of the nation's largest newspapers, leading scientific journals, the nation's preeminent science officials, and key politicians from both parties (led by those whose districts, or offices, were most affected by the attacks). To get a sense for the breadth and depth of the establishment skepticism about Ivins' guilt, just click on some of those links.
Since that initial wave of doubt, the FBI's case against Ivins has continuously deteriorated even further. In February of this year, a panel of the National Academy of Sciences released its findings solely regarding the bureau's alleged scientific evidence (independent investigations of the full case against Ivins have been successfully blocked by the Obama administration), and found -- as The New York Times put it -- that "the bureau overstated the strength of genetic analysis linking the mailed anthrax to a supply kept by" Ivins; the Washington Post headline summarized the impact of those findings: "Anthrax report casts doubt on scientific evidence in FBI case against Bruce Ivins."
But the biggest blow yet to the FBI's case has just occurred as the result of an amazing discovery by PBS' Frontline, which is working on a documentary about the case with McClatchy and ProPublica:
The Justice Department has called into question a key pillar of the FBI's case against Bruce Ivins. . . . On July 15 , Justice Department lawyers acknowledged in court papers that the sealed area in Ivins' lab -- the so-called hot suite -- did not contain the equipment needed to turn liquid anthrax into the refined powder that floated through congressional buildings and post offices in the fall of 2001.
The government said it continues to believe that Ivins was "more likely than not" the killer. But the filing in a Florida court did not explain where or how Ivins could have made the powder, saying only that the lab "did not have the specialized equipment'" in Ivins' secure lab "that would be required to prepare the dried spore preparations that were used in the letters."
The government's statements deepen the questions about the case against Ivins, who killed himself before he was charged with a crime. Searches of his car and home in 2007 found no anthrax spores, and the FBI's eight-year, $100 million investigation never proved he mailed the letters or identified another location where he might have secretly dried the anthrax into an easily inhaled powder. . . .
In excerpts from one of more than a dozen depositions made public in the case last week, the current chief of of the Bacteriology Division at the Army laboratory, Patricia Worsham, said it lacked the facilities in 2001 to make the kind of spores in the letters.
Two of the five letters, those sent to Democratic U.S. Sens. Patrick Leahy of Vermont and Thomas Daschle of South Dakota, were especially deadly, because they were so buoyant as to float with the slightest wisp of air.
Worsham said that the lab's equipment for drying the spores, a machine the size of a refrigerator, was not in containment.
"If someone had used that to dry down that preparation, I would have expected that area to be very, very contaminated, and we had non-immunized personnel in that area, and I would have expected some of them to become ill," she said.
In its statement of facts, the government lawyers also said that producing the volume of anthrax in the letters would have required 2.8 to 53 liters of the solution used to grow the spores or 463 to 1,250 Petri dishes. Colleagues of Ivins at the lab have asserted that he couldn't have grown all that anthrax without their noticing it.
That Ivins lacked the means, ability and equipment to produce the sophisticated strain of anthrax used in the attacks -- especially to do so without detection and leaving ample traces -- has long been one of the many arguments as to why it is so unlikely that he was the culprit (or at least the sole culprit). That the DOJ itself -- in order to defend against a lawsuit brought by an anthrax victim alleging that Fort Detrick was negligent -- would admit that Ivins lacked the means to commit this crime in his lab, particularly without detection, is extraordinary. Just like the NAS findings that cast doubt on the FBI's genetic analysis (once deemed to be the strongest part of the case even by skeptics), this admission further guts the government's claim to have solved this case.
It should be unnecessary to explain why the anthrax attack was so significant, and why discovering the perpetrators with confidence is so vital. As I've argued before, the anthrax attack was at least as important as (if not more important than) the 9/11 attack in creating a climate of fear in the U.S. that spawned the next decade's War on Civil Liberties and Terror and posture of Endless War; multiple government officials used ABC News' Brian Ross to convince the nation that Saddam was likely behind those attacks (as but one example, The Washington Post's Richard Cohen, in 2008, cited the anthrax attacks as his primary reason for supporting the attack on Iraq; in October, 2001, John McCain said on David Letterman's program that there is evidence linking Iraq to the anthrax attack). Even if one believes the FBI's case, it means that one of the most significant Terrorist attacks in American history was launched from within the U.S. military. As Alan Pearson -- Director of the Biological and Chemical Weapons Control Program at the Center for Arms Control and Non-Proliferation -- put it:
If Ivins was indeed responsible for the attacks, did he have any assistance? Did anyone else at the Army lab or elsewhere have any knowledge of his activities prior to, during, or shortly after the anthrax attacks? . . . It appears increasingly likely that the only significant bioterrorism attack in history may have originated from right within the biodefense program of our own country. The implications for our understanding of the bioterrorism threat and for our entire biodefense strategy and enterprise are potentially profound.
Indeed, Cohen claimed that "a high government official" told him shortly after the 9/11 attack to carry cipro as an antidote against anthrax. The Editors of Nature added: "This case is too important to be brushed under the carpet. The anthrax attacks killed five people, infected several others, paralysed the United States with fear and shaped the nation's bioterrorism policy."
But, of course, in the U.S., the nation's most powerful political and financial factions -- especially those who control the National Security State -- are immune from meaningful scrutiny and investigation. As a result, President Obama -- in what I think is one his most indefensible acts -- actually threatened to veto the entire intelligence authorization bill if it included a proposed bipartisan amendment (passed by the House) that would have mandated an independent inquiry into the FBI's anthrax investigation. Democratic Rep. Rush Holt, whose New Jersey district was the site where the letters were allegedly mailed and one of the bill's sponsors, said at the time he was appalled that "an Administration that has pledged to be transparent and accountable would seek to block any review of the investigation in this matter."
Indeed, the veto threat issued by the Obama White House was refreshingly (albeit unintentionally) candid about why it was so eager to block any independent inquiry: "The commencement of a fresh investigation would undermine public confidence in the criminal investigation and unfairly cast doubt on its conclusions." That would happen only if the FBI's claims could not withstanding independent, critical scrutiny. But -- as is even more apparent now than ever -- the White House is fully aware that it cannot. In a rational, non-corrupt environment, that would be a reason to insist upon -- not take extraordinary steps to block -- an independent investigation into one of the most consequential crimes ever committed on U.S. soil. But that, manifestly, is not the world in which we live, and thus -- despite continuously mounting evidence that we do not know anywhere close to the full story of who perpetrated this attack -- the country's political leadership continues to stonewall any efforts to find out.