Posted on 04/13/2008 8:20:52 AM PDT by ZacandPook
On Friday, the government filed this statement of the facts in its memorandum in support of its motion for summary judgment in a civil rights and Privacy Act lawsuit brought by Dr. Steve Hatfill.
“The anthrax attacks occurred in October 2001. Public officials, prominent members of the media, and ordinary citizens were targeted by this first bio-terrorist attack on American soil. Twenty-two persons were infected with anthrax; five died. At least 17 public buildings were contaminated. The attacks wreaked havoc on the U.S. postal system and disrupted government and commerce, resulting in economic losses estimated to exceed one billion dollars. The attacks spread anxiety throughout the nation – already in a heightened state of alert in the wake of the attacks of September 11 – and left behind a lasting sense of vulnerability to future acts of bioterrorism. Given the unprecedented nature of the attacks, the investigation received intense media attention. Journalists from virtually every news organization pursued the story, sometimes conducting their own worldwide investigation to determine the person or persons responsible for the attacks and the motive behind them.
A. Journalistic Interest In Hatfill That Predates Alleged Disclosures
Testimony has revealed that at least certain members of the media began focusing their attention upon Hatfill in early 2002 because of tips they had received from former colleagues of his who found him to be highly suspicious. Articles about Hatfill thus began to appear in the mainstream press and on internet sites as early as January of 2002, and continued until the first search of his apartment on June 25, 2002, which, in turn, led to even more intense press attention.
Barbara Hatch Rosenberg, a Professor at the State University of New York, for example, complained in January and February 2002 on the Federation of American Scientists’ (“FAS”) website of the FBI’s apparent lack of progress on the investigation, and described generally the person she believed was the “anthrax perpetrator.” “Analysis of Anthrax Attacks,” Possible Portrait of the Anthrax Perpetrator (Section IV.6), Defendant’s Appendix , Ex. 1. Rosenberg did not identify Hatfill by name, but described him in sufficient detail: a “Middle-aged American” who “[w]orks for a CIA contractor in Washington, DC area” and [w]orked in USAMRIID laboratory in the past” and “[k]nows Bill Patrick and probably learned a thing or two about weaponization from him informally.” Id. In his amended complaint, Hatfill states that “Professor Rosenberg’s ‘Possible Portrait of the Anthrax Perpetrator’ . . . described [him].”
In addition to her postings on the FAS website, Professor Rosenberg also presented a lecture on February 18, 2002 at Princeton University’s Woodrow Wilson School of Public and International Affairs, entitled “The Anthrax Attacks and the Control of Bioterrorism.” Ex. 2. During the course of her lecture, Rosenberg stated that she had “draw[n] a likely portrait of the perpetrator as a former Fort Detrick scientist who is now working for a contractor in the Washington, D.C, area[.]” Ex. 3. Rosenberg also commented upon Hatfill’s whereabouts on the date of the attacks, stating that “[h]e had reason for travel to Florida, New Jersey and the United Kingdom” – where the attacks had been and from which the letters had been purportedly sent – that “[h]e grew [the anthrax], probably on a solid medium, and weaponised it at a private location where he had accumulated the equipment and the material.” Id. Rosenberg also stated that the investigation had narrowed to a “common suspect[,]” and that “[t]he FBI has questioned that person more than once[.]” Id. Former White House Spokesperson, Ari Fleischer, immediately responded to Rosenberg’s comments, stating that there were several suspects and the FBI had not narrowed that list down to one. Ex. 4. The FBI also issued a press release, stating that it had “interviewed hundreds of persons, in some instances, more than once. It is not accurate, however, that the FBI has identified a prime suspect in this case.” Id. Rosenberg’s comments and writings were subsequently pursued by The New York Times (“The Times”). In a series of Op-Ed articles published from May through July 2002, Nicholas Kristof, a journalist with The Times, accused Hatfill of being responsible for the anthrax attacks. Kristof wrote on May 24, 2002 that the FBI was overlooking the anthrax perpetrator, noting that “experts” (Professor Rosenberg) point “to one middle-aged American who has worked for the United States military bio-defense program and had access to the labs at Fort Detrick, Md. His anthrax vaccinations are up to date, he unquestionably had the ability to make first-rate anthrax, and he was upset at the United States government in the period preceding the anthrax attack.” Ex. 5.
Hatfill first noticed the Kristof columns in May 2002. Hatfill Dep. Tran. in Hatfill v. The New York Times, No. 04-807 (E.D.Va.), Ex. 6, at 13: 3-6. According to Hatfill, “[w]hen Mr. Kristof’s article appeared, it was the first [time] that [he] realized that [his] name [was] in the public domain with connection with an incident of mass murder.” Id. at 16:15-18. Hatfill has charged that The Times began the “entire conflagration and gave every journalist out there reason to drive this thing beyond any sort of sanity. Mr. Kristof lit the fuse to a barn fire and he repeatedly kept stoking the fire.” Id. at 43:19 - 44:1. In July 2004, Hatfill thus filed suit alleging that these articles libeled him by falsely accusing him of being the anthrax mailer. Complaint, Hatfill v. The New York Times, No. 04-807 (E.D.Va.), Ex. 7.
Hatfill alleges in that lawsuit that “Kristof wrote his columns in such a way as to impute guilt for the anthrax letters to [him] in the minds of reasonable readers.” Id. ¶ 12. The articles, Hatfill claimed, which described his “background and work in the field of bio-terrorism, state or imply that [he] was the anthrax mailer.” Id. ¶ 14. Hatfill specifically alleged that statements in Kristof’s articles were false and defamatory, including those that stated that he: (1) “‘unquestionably had the ability to make first-rate anthrax’”; (2) “had the ‘ability’ to send the anthrax”; (3) “had the ‘access’ required to send the anthrax”; (4) “had a ‘motive’ to send the anthrax”; (5) “was one of a ‘handful’ of individuals who had the ‘ability, access and motive to send the anthrax’”; (6) “had access” to an ‘isolated residence’ in the fall of 2001, when the anthrax letters were sent”; (7) “‘gave CIPRO [an antibiotic famously used in the treatment of anthrax infection] to people who visited [the ‘isolated residence’]”; (8) his “anthrax vaccinations were ‘up to date’ as of May 24, 2002”; (9) he “‘failed 3 successive polygraph examinations’ between January 2002 and August 13, 2002”; (10) he “‘was upset at the United States government in the period preceding the attack’”; (11) he “‘was once caught with a girlfriend in a biohazard ‘hot suite’ at Fort Detrick [where Hatfill had concedely worked] surrounded only by blushing germs.’” Id. ¶ 16 (brackets in original). Hatfill alleges in his lawsuit against The Times that “[t]he publication of [Kristof’s] repeated defamation of [him] . . .gave rise to severe notoriety gravely injurious to [him].” Id. ¶ 29. The injury, Hatfill alleged, “was [made] all the more severe given the status and journalistic clout of The Times.” Id. This harm was compounded, Hatfill alleged, by the fact that these articles were “thereafter repeatedly published by a host of print and on-line publications and on the television and radio news” in the following months. Id., ¶ 30.
The case was initially dismissed by the trial court. Hatfill v. The New York Times, No. 04-807, 2004 WL 3023003 (E.D.Va.). That decision was reversed by the United States Court of Appeals, Fourth Circuit, 416 F.3d 320 (4th Cir. 2005). Upon remand, the trial court granted The Times summary judgment, finding that Hatfill was a public figure and public official and had failed to present evidence of malice. Hatfill v. The New York Times, 488 F. Supp. 2d 522 (E.D. Va. 2007). In arriving at that conclusion, the court considered Hatfill’s repeated media interviews before the attacks; the fact that he had “drafted a novel, which he registered with [the] United States Copyright office, describing a scenario in which a terrorist sickens government officials with a biological agent”; and had lectured on the medical effects of chemical and biological agents. Id. at 525.
Although not recited by the district court in The New York Times litigation, Hatfill also talked directly to reporters about his suspected involvement in the attacks. Brian Ross of ABC News, and his producer, Victor Walter, for example, talked separately to Hatfill on two to three occasions as early as January and February 2002, Ross Dep. Tran., Ex. 8, at 263:14 - 270:1, and continued talking to Hatfill until May of that year. Id. Ross also spoke to Hatfill’s friend and mentor, William Patrick, about Hatfill. Id. at 287:9 - 295:12. These meetings were prompted by discussions ABC News had in January 2002 with eight to twelve former colleagues of Hatfill at the United States Army Medical Research Institute of Infectious Diseases (“USAMRIID”). Id. at 242:7 - 246:14. Hatfill’s former colleagues found him to be “highly suspicious because of a number of things he had done when he worked at [USAMRIID], and this behavior was strange "and unusual and they felt that he was a likely candidate.” Id. at 242: 7-17. These meetings were also prompted by ABC News’s own investigative reporting into Hatfill’s background; the more ABC News learned “the more interested [they] became” in Hatfill. Id. at 264: 14-15.
Scott Shane of the Baltimore Sun also spoke to Hatfill in February 2002. Shane also spoke to USAMRIID employees who had worked with Hatfill. Ex. 9. These employees stated that they had been questioned by the FBI and “asked about a former Fort Detrick scientist” – Hatfill – “who returned a few years ago and took discarded biological safety cabinets, used for work with dangerous pathogens.” Id. at 1. These employees claimed that Hatfill “ha[d] expertise on weaponizing anthrax and ha[d] been vaccinated against it[.]” Id. Shane also called one of Hatfill’s former classmates, who was “plagued” by questions from the Baltimore Sun and others within the media regarding Hatfill’s “alleged involvement with the large anthrax outbreak in Zimbabwe[.]” Ex. 10. According to Hatfill, this classmate was told by Shane that Hatfill was purportedly responsible for “mailing the anthrax letters and also starting the [anthrax] outbreak in Zimbabwe/ Rhodesia twenty years before.” Ex. 11, at AGD29SJH00014; see also e-mail to Hatfill fr. DF Andrews, dated Mar. 1, 2002, Ex. 10. Hatfill told Shane in February 2002 that he had been “questioned by the FBI” and that “he considered the questioning to be part of a routine effort to eliminate people with the knowledge to mount [the] attack.” Ex. 9. Hatfill also confirmed for Shane that he had taken an FBI polygraph. Ex. 12, at 2. In March 2002, Hatfill left Shane a frantic telephone message reportedly stating how he had “been [in the bioterrorism] field for a number of years, working until 3 o’clock in the morning, trying to counter this type of weapon of mass destruction” and fearing that his “career [was] over at [that] time.” Ex. 13, at 2. According to Hatfill, Shane later Case 1:03-cv-01793-RBW Document 232-2 Filed 04/11/2008 Page 17 of 73
____ Hatfill did not sue either Shane or Rosenberg, even though Hatfill has stated that Rosenberg “caused” the focus on him. Ex. 14, at 10. Because Hatfill believed that the portrait Rosenberg painted at the February 2002 Princeton conference and in her website postings was so identifying and incriminating, however, Hatfill advised Rosenberg through his lawyers that “before [she] get[s] close to describing him in the future, by name or otherwise, [that she] submit [her] comments for legal vetting before publishing them to anyone.” Ex. 15. There is no evidence that the agency defendants bore any responsibility for the media presence. Information about FBI searches is routinely shared with a variety of state and local law enforcement authorities. Roth Dep. Tran., Ex. 16, at 163:5 -165:21; Garrett Dep. Tran. Ex. 17, at 79: 8-18. ______
compounded Hatfill’s problems by calling his then-employer, Science Applications International Corporation (“SAIC”), and accusing Hatfill of being responsible for the anthrax attacks, Ex. 11, at AGD29SJH00014, which, according to Hatfill, cost him his job as a contractor at SAIC. Id. 1
The media frenzy surrounding Hatfill intensified upon the search of his apartment on June 25, 2002, and the search of a refrigerated mini-storage facility in Ocala, Florida on June 26, 2002. Both were witnessed by the media, and the search of his apartment was carried live on national television. In addition to the television coverage, the searches generated a slew of articles about Hatfill throughout the media, one fueling the next. The Associated Press, for example, detailed in an article, dated June 27, 2002, Hatfill’s (1) work as biodefense researcher, including studies he had conducted at SAIC, and the work he had done at the USAMRIID; (2) his educational background; (3) where he had previously lived; and (4) security clearances he had held and the suspension of those clearances. Ex. 18. The Hartford Courant reported these same details, and additional information regarding Hatfill’s purported service in the Rhodesian army. Ex. 19. The next day -- June 28, 2002 -- the Hartford Courant reported details about Hatfill’s background in biological warfare, his vaccinations against anthrax, questioning that purportedly had occurred among Hatfill’s colleagues, his educational background (including the claim that he had attended medical school in Greendale), and lectures that he had given on the process of turning biological agents into easily inhaled powders. Ex. 20. None of this information is attributed to a government source.
B. Hatfill’s Public Relations Offensive
In July 2002, after these reports and after the first search of Hatfill’s apartment on June 25, 2002, Hatfill retained Victor Glasberg as his attorney. Glasberg Dep. Tran., Ex. 21, at 12: 16-19. Glasberg believed that “any number of people in the media [had] overstepped their bounds. . . . prior to July of 2002 .” Id. at 141:1 - 142:6. To counter this information, Hatfill set out on a “public relations offensive” of his own to “turn [the] tide.” Id. at 138: 20-21, 178: 12-13.
Recognizing that Hatfill “continue[d] [to] get[] killed with bad press, national as well as local[,]” Hatfill drafted a statement and Glasberg forwarded that statement in July 2002 to Hatfill’s then-employer at Louisiana State University (“LSU”). Ex. 11, at 1. The statement detailed Hatfill’s background, including his medical training and employment history, and provided details about Hatfill’s involvement in the anthrax investigation, including how he had been interviewed by the FBI and had taken a polygraph examination. Id. at AGD29SJH00002-13. Hatfill’s statement corroborated the conversations that Hatfill reportedly had with Scott Shane of the Baltimore Sun in February 2002, and how that interaction had purportedly cost Hatfill his job at SAIC in March 2002. Id. at AGD29SJH00014.
In his July statement, Hatfill was careful not to blame DOJ or the FBI for his troubles or for any wrongdoing for the information about him that had made its way into the press. He touted the professionalism of the FBI, noting that “[t]he individual FBI agents with whom [he had come] in contact during this entire process are sons and daughters of which America can be justifiably proud. They are fine men and women doing their best to protect this country.” Id. at AGD29SJH00016. Hatfill’s objection lay with the media, whom he labeled as “irresponsible[,]” for trading in “half-truths, innuendo and speculation, making accusations and slanting real world events . . . to gain viewer recognition, sell newspapers, and increase readership and network ratings.” Id.
As the investigation proceeded, however, Glasberg publicly criticized investigators on the date of the second search of Hatfill’s apartment, August 1, 2002, for obtaining a search warrant rather than accepting the offer Glasberg had allegedly made to cooperate. Ex. 22. So angry was Glasberg with investigators that he wrote a letter, dated the same day as the search, to Assistant United States Attorney Kenneth C. Kohl, denouncing the fact that the search had been conducted “pursuant to a search warrant.” Ex. 23. Glasberg forwarded a copy of this letter to Tom Jackman of the Washington Post, and to the Associated Press, the morning of August 1st. Glasberg, Dep. Tran., Ex. 24, at 265:12 - 266:5; see also Ex. 25 (Glasberg memorandum to file, stating, among other things, that Glasberg showed Jackman Kohl letter on August 1, 2002).
On the day of the search, an FBI spokeswoman at the Bureau’s Washington field office, Debra Weierman, “confirmed that the search was part of the government’s anthrax investigation.” Ex. 25. Weierman added, however, that “she was unable to confirm that [investigators were acting on a search warrant] or to provide any further information about the search.” Id.
The next day – August 2, 2002 – Glasberg faxed the Kohl letter to members of the media. Ex. 26. In the fax transmittal sheet accompanying the Kohl letter, Glasberg also advised the media that: Dr. Hatfill was first contacted by the FBI earlier this year, as part of the Bureau’s survey of several dozen scientists working in fields related to biomedical warfare. He was voluntarily debriefed and polygraphed, and voluntarily agreed to have his home, car and other property subjected to a lengthy and comprehensive search by the FBI. He and his lawyer Tom Carter were told that the results were all favorable and that he was not a suspect in the case. Id. at AGD16SJH03106. Subsequent to the fax transmittal by Glasberg, Weierman confirmed that the search had been conducted pursuant to a search warrant, but only after receiving appropriate authorization from her superiors. Weierman Dep. Tran., Ex. 27, at 93:16 - 94:14.
Hatfill had also accompanied Glasberg for his interview with Jackman the day before to address the “media feeding frenzy.” Ex. 28. Glasberg provided Jackman with the promise of an “[e]xclusive personal statement” from Hatfill and the promise of “[n]o other press contacts pending publication” of the article. Id. Glasberg thus provided Jackman background information about Hatfill, Rosenberg’s statements, and other publications. Ex. 25. Hatfill reportedly complained to the Washington Post in the interview about the media feeding frenzy, and about how his “friends are bombarded” with press inquiries. Ex. 29, at 1. Hatfill also complained about the “[p]hone calls at night. Trespassing. Beating on my door. For the sheer purpose of selling newspapers and television.” Id.
C. Attorney General Ashcroft’s Person of Interest Statements
Following this “media frenzy,” not to mention the two searches of Hatfill’s apartment, former Attorney General John Ashcroft was asked on August 6, 2002 (at an event addressing the subject of missing and exploited children) about Hatfill’s involvement in the investigation. Jane Clayson of CBS News asked General Ashcroft about the searches and whether Hatfill was a “suspect” in the investigation. Ex. 30, at 2. General Ashcroft responded that Hatfill was a “person of interest.” General Ashcroft cautioned, however, that he was “not prepared to say any more at [that] time other than the fact that he is an individual of interest.” Id. At the same media event, Matt Lauer of NBC News also asked General Ashcroft whether Hatfill was a “suspect” in the investigation. Ex. 31. General Ashcroft responded that Hatfill was a “person that – that the FBI’s been interested in.” Id. at 2. General Ashcroft cautioned that he was “not prepared to make a . . . comment about whether a person is officially a . . . suspect or not.” Id.
General Ashcroft made the same comments at a news conference in Newark, New Jersey on August 22, 2002, stating that Hatfill was a “person of interest to the Department of Justice, and we continue the investigation.” Ex. 32, at 1. As in his previous statements, General Ashcroft refused to provide further comment. Id. When asked upon deposition why he referred to Hatfill as a “person of interest” in the anthrax investigation in response to these media inquiries, General Ashcroft testified that he did so in an attempt to correct the record presented by the media that he was a “suspect” in the investigation, which he believed served a necessary law enforcement purpose. Ashcroft Dep. Tran., Ex. 33, at 81: 5-12; 103:18; 108: 9-13; 138: 5-7; 125: 18-21; 134:22 - 136:8. Prior to making these statements, General Ashcroft did not review or otherwise consult any investigative record, id. at 128:14 - 129:12, much less any record pertaining to Hatfill.
General Ashcroft’s initial statements on August 6, 2002 were followed, on August 11, 2002, by the first of Hatfill’s two nationally televised press conferences. Ex. 34. During his press conference, Hatfill lashed out at Rosenberg and other journalists and columnists who he believed wrote a series of “defamatory speculation and innuendo about [him].” Id. at 3. In apparent response to the “person of interest” statements, by contrast, he stated that he did “not object to being considered a ‘subject of interest’ because of [his] knowledge and background in the field of biological warfare.” Id. at 4. This was consistent with Hatfill’s statement to ABC News earlier in 2002 in which he stated that “his background and comments made him a logical subject of the investigation.” Ex. 35. As noted, moreover, Glasberg told the media -- almost a week before the first of General Ashcroft’s statements -- that “Hatfill was first contacted by the FBI [earlier that] year, as part of the Bureau’s survey of several dozen scientists working in fields related to biomedical warfare. He was voluntarily debriefed and polygraphed, and voluntarily agreed to have his home, car and other property subjected to a lengthy and comprehensive search by the FBI.” Ex. 26.
Hatfill’s second press conference was held on August 25, 2002. In the flyer publicizing the conference, Hatfill identified himself to the media -- in bold lettering -- as “the ‘person of interest’ at the center of the federal Government’s [anthrax] investigation.” DA, Exhibit 36.
D. Clawson’s “Sunshine” Policy
Patrick Clawson joined the Hatfill team in early August 2002 as spokesperson and “fielded hundreds of inquiries from members of the press worldwide regarding Dr. Hatfill[.]” Ex. 12, at 13. Clawson believed it best to employ a media strategy that would, in his words, “let it all hang out.” Id. at 50:10. Clawson felt that “permitting maximum sunshine into . . . Hatfill’s existence would do both him and the public the best good.” Clawson Dep. Tran., Ex. 37, at 50:16-18.
“The majority of Clawson’s communications with the press regarding this case have been oral and by telephone and he did not keep a press log or any other regular record of such contacts with the press.” Ex. 12, at 13. Clawson nonetheless admitted upon deposition that he revealed numerous details about Hatfill’s personal and professional background to members of the press (Clawson Dep. Tran., Ex. 37, at 101:9 - 105:21), including Hatfill’s professional expertise (id. at 103:10 - 105:21), use of Cipro (id. at 123:16 - 130:11, 248: 8-13), whereabouts on the days of the attacks (id. at 148:12 - 158:10, 361:15 - 362:3), expertise in working with anthrax (id. at 194:13 - 195:8), former service in the Rhodesian Army (id. at 210:9 - 211:10), and drunk driving arrest (id. at 795: 7-9, 798: 4-6). Clawson also told reporters what had been purportedly removed from Hatfill’s apartment during the two searches of his apartment on June 25, 2002 and August 1, 2002 (including medical books and a jar of bacillus thuringiensis (“BT”)) (id. at 121: 6-12, 131:2 - 131:12, 14:8 - 147:3, 313: 3-10). Clawson also freely relayed to the press that bloodhounds had been presented to Hatfill during the investigation (id. at 200: 15-19); that Hatfill had been the subject of surveillance (id. at 123:12-15, 428: 19-21); that Hatfill had taken polygraphs (id. at 135:16 - 137:17); and that he had submitted to blood tests (id. at 137:18-138:5, 347: 6-10).
In furtherance of Clawson’s “sunshine” policy, Hatfill, Clawson, and Glasberg, together, provided countless on-the-record, on-background (i.e., for use, but not for attribution), and off-the-record (i.e., not for attribution or use) interviews to counter misinformation. Although Hatfill repeatedly claimed upon deposition not to remember what he said during these interviews, he acknowledged in his responses to the Agency Defendants’ interrogatories having such conversations with, in addition to Mr. Jackman, Judith Miller of The New York Times, Jeremy Cherkis of the City Paper, Guy Gugliotta of the Washington Post, David Kestenbaum of National Public Radio, Rick Schmidt of the LA Times, Rob Buchanan of NBC Dateline, Jim Popkin of NBC News, Dee Ann David and Nick Horrock of UPI, Gary Matsumato of Fox TV, Bill Gertz of the Washington Times, and David Tell of the Weekly Standard. Ex. 12, at 3-4. With respect to the Matsumato interview, Glasberg warned Hatfill before the interview that he “should not be quoted, nor should Matsumato say or imply that he spoke with him.” Ex. 38, at 1. Glasberg warned Hatfill that “Matsumato must be willing to go to jail rather than reveal word one of anything [he] says on ‘deep background.’” Id.
All of these disclosures became too much even for Glasberg, who attempted to put a stop to them. In August, when Jackman aired his exclusive interview with Glasberg and Hatfill, Glasberg heralded the success of his public relations strategy noting that “Rosenberg, Shane and Kristof are, [each] of them, in varying stages of sulking, licking their wounds, reacting defensively and changing their tune.” Ex. 39. Slowly Glasberg advised both Hatfill and Glasberg to observe “the rule of COMPLETE SILENCE regarding anything and everything about the case[.]” Ex. 40 (emphasis in original). Ultimately, in September 2002, Glasberg ordered Clawson to stand down, noting “[w]hat you know, you know, and you have put virtually all of that into the public record. Fine. That is where we are, and for good or ill we can and will deal with it. But we must put a full stop to any further conveyance of substantive data about ANYTHING from Steve to anyone [but his attorneys].” Ex. 41 (emphasis in original). To no avail. On October 5, 2002, Hatfill and Clawson appeared together at an Accuracy in Media Conference. Hatfill was asked about the reaction of bloodhounds, and stated, I’m not supposed to answer things against . . . but let me tell you something. They brought this good-looking dog in. I mean, this was the best-fed dog I have seen in a long time. They brought him in and he walked around the room. By the way, I could have left at anytime but I volunteered while they were raiding my apartment the second time, I volunteered to talk with them. The dog came around and I petted him. And the dog walked out. So animals like me (laughter). Ex. 42, at 2.
Disclosures from the Hatfill camp to the media continued. For example, between late 2002 and May 8, 2003, Hatfill’s current attorney, Tom Connolly, and CBS News reporter James Stewart had multiple telephone conversations and two lunch meetings. Ex. 43. According to Stewart, Connolly told Stewart that the investigation was focusing on Hatfill, and detailed at great length the FBI’s surveillance of Hatfill. In virtually every one of these conversations, Connolly encouraged Stewart to report on these subjects. Id. at 96.
E. Louisiana State University’s Decision To Terminate Hatfill
At the time of the second search of his apartment in August 2002, Hatfill was working as a contract employee at the Louisiana State University (“LSU”) on a program to train first responders in the event of a biological attack. This program was funded by the Department of Justice’s Office of Justice Programs (“OJP”) as part of a cooperative agreement. Ex. 44. Under the terms of the cooperative agreement, OJP “maintain[ed] managerial oversight and control” of the program. Id. at 2. Following the second search of Hatfill’s apartment on August 1, 2002, Timothy Beres, Acting Director of OJP’s Office of Domestic Preparedness, directed that LSU “cease and desist from utilizing the subject-matter expert and course instructor duties of Steven J. Hatfill on all Department of Justice funded programs.” Ex. 45. LSU, meanwhile, had independently hired Hatfill to serve as Associate Director of its Academy of Counter-Terrorist Education. Following the second search, LSU placed Hatfill on administrative leave. Ex. 46. LSU then requested a background check of Hatfill. Ex. 47. During the course of that investigation, the University became concerned that Hatfill had forged a diploma for a Ph.D that he claimed to have received from Rhodes University in South Africa. Hatfill explained to Stephen L. Guillott, Jr., who was the Director of the Academy of Counter-Terrorist Education at LSU, that “[h]e assumed the degree had, in fact been awarded since neither his [thesis advisor] nor Rhodes University advised him to the contrary.” Ex. 48. LSU’s Chancellor, Mark A. Emmert, made “an internal decision to terminate [LSU’s] relationship with Dr. Hatfill quite independent of [the DOJ e-mail] communication.” Ex. 51.
Hatfill has now testified that in fact he created a fraudulent diploma with the assistance of someone he met in a bar who boasted that he could make a fraudulent diploma. Hatfill Dep. Tran., Ex. 49 at 19:20 - 20:12. Glasberg, moreover, has stated under oath that Hatfill’s earlier attempted explanation was untrue. Glasberg, Dep. Tran., Ex. 21, at 314:10 - 317:2. In a nationally televised 60 Minutes episode that aired in March 2007, Connolly confirmed that Hatfill forged the diploma for the Ph.D from Rhodes University. Ex. 50, at 3.
F. Hatfill’s Amended Complaint
Hatfill claims lost wages and other emotional damages resulting from General Ashcroft’s “person of interest” statements and other for-attribution statements by DOJ and FBI officials. He also seeks to recover for certain other alleged “leaks” by DOJ and FBI officials. Hatfill additionally asserts that the defendants violated the Act by purportedly failing to (1) maintain an accurate accounting of such disclosures, which he asserts is required by section 552a(c) of the Act; (2) establish appropriate safeguards to insure the security and confidentiality of the records that were purportedly disclosed, which he asserts is required by section 552a(e)(10); (3) correct information that was disseminated about him that was inaccurate or incomplete, which he asserts is required by section 552a(e)(5); and (4) establish adequate rules of conduct, procedures, and penalties for noncompliance, or to train employees in the requirements of the Act, which he asserts is required by section 552a(e)(9). Defendants are entitled to summary judgment.”
I’m not sure I know how to respond to that - it’s too convulted for me to get my brain around.
I will say that the known arrests and prosecutions we’ve seen so far concerning ricin in London appear to be totally overzealous prosecutions - basically middle-easterners get charged for having a jar of castor beans. Yes, they detected tiny amounts of ricin - but you can detect that from a jar of castor beans in any store.
So you then have to ask - if the authorites make headline anouncements for jars of castor beans - why not proudly announce they arrested someone for anthrax with equally dubious evidence - I mean the bar is obviously pretty low for making these announcements.
Let me explain the New Brunswick, NJ and the CT ISP connection to the Al Qaeda website.
Azzam.com posted an exclusive interview with Ayman al-Zawahiri and stressed the importance of cash donations and gas masks and chemical-resistant suits. Ibn Khattab, the Arab Chechnyan fighter who was Bin Laden’s good friend, had told his public that azzam.com was highly recommended and that only the two charities identified by the website should be used to route donations — announcing in 2000 that Benevolence International Foundation was one of the charities that should be used. In February 2000, the Quoqaz.net website similarly posted donation links for the two charities, one being BIF. Ibu al-Khattab, the late Arab-Afghan commander of foreign mjuahideen in Chechnya (who in March 2002 was killed by a poison letter), expressly endorsed Azzam Publications.
Azzam.org had “no bricks and mortar address, but operates a post office box in London, and bill[ed] itself as “an independent media organisation providing authentic news and information about jihad and the Foreign Mujahideen everywhere”. One posting datelined from the southern Afghan city of Kandahar and was a message to Muslim youth from top terror suspect Bin Laden. A farewell message from Azzam Publications .. exhorts “Muslims all over the World (to) render as much financial, physical, medical, media and moral support to the Taliban as they can.” Azzam also urged those with computer expertise to mirror the website so as to keep it up after authorities took it down. One can access old websites as they existed on past dates through www.archives.org and its wonderful Wayback Machine — except to the extent blocked. Just as the DOJ sought info from an ISP somewhere in the Second Circuit (which includes Conn.), they sought information about a user of the Wayback Machine.
The azzam.com website gave instructions on how to route money to the Taliban. It recommended carrying an official letter of the organization stating that the donation was for “for the suffering people of Afghanistan.” The posted form letter from people in South Arlington, read:
“We would like to introduce our official delegation from the Islamic Centre of South Arlington who are carrying monetary assistance for the suffering people of Afghanistan. The members of this delegation are listed below:
1. Abdullah Muhammad Saeed, American passport Holder
2. Ishaq Mansoor Al-Katib, American passport holder
3. Muhammad Abdur-Rasheed, Canadian Passport Holder
They are carrying a quantity of cash donations which have been collected by the Muslim community of South Arlington and are to help the suffering people of Afghanistan. We request all those to whom it may concern to allow the bearers of this letter to pass freely without let or hindrance and to provide them such assistance or protections as may be necessary.
* * *
Signed,
Chairman of the Islamic Centre of South Arlington, USA”
A man formerly known as Paul Hall was arrested in Phoenix on a federal criminal complaint in March 2007 and agreed to be removed to District of Connecticut for further prosecution where there has been investigation of Azzam Publications website located on a server there. He is alleged to have provided classified information to the London-based Azzam Publications about a U.S. Navy battle group as it traveled from California to the Persian Gulf region in 2001. He allegedly “described a recent force protection briefing given aboard his ship, voiced enmity toward America, praised Osama bin Laden and the mujahedeen [and] praised the October 2000 attack on the USS Cole.”
On August 6, 2001, the numeric Internet addresses for the domain Qoqaz.net were changed by its administrators to correspond directly with those of another existing domain: Minna.com. Thus, all web visitors to qoqaz.net and minna.com were shown the same identical Qoqaz.net homepage. Minna.com at the time was registered to:
Mokhtar, Mazen (MMZ265) mazen@ABETTERMARKET.COM
Minna International Corporation
216 Bishop Blvd.
North Brunswick , NJ 08902
Although moderate in his posts and lectures, he for a time used the email signature: “Hamas has no victims, it only has legitimate targets.” In one atypical posting, he wrote that suicide bombing should be encouraged
“[b]ecause it’s an effective method of attacking the ennemy [sic] and continuing jihad, which is at the very least a [religious requirement] on the Muslims. Those who commit suicide seek death, but martyrs are not counted as dead, as Allah said above. They seek a greater life for themselves with Allah, and a greater future for Muslims. May Allah support them, bless them and forgive us for not being with them.” (April 1996)
In November 2000, an e-mail was sent from an individual to Azzam Publications, stating in part:
On your site there is an article about JOINT U.S./RUSSIAN CHEMICAL ATTACK ON AFGHANISTAN IMMINENT Appeal for donations to the Taliban Government Appeal for gas masks I would like to donate where do I start. Or where do I send a shipment of gas masks to?
Instead of disclaiming ability to direct or assist the donor, a response from an Azzam Publications administrative e-mail account stated, “Instructions later this weekend.”
In Fall 2004, the federal authorities indicted the fellow behind Azzam Publications selling “Green Birds,” Babar Ahmad in London, pointing, in part, to the “distribution of videotapes and compact discs depicting fighters in Bosnia, Chechnya and elsewhere, and the eulogizing of dead fighters, for the purpose of recruiting individuals and soliciting donations to support the mujahideen in Afghanistan and Chechnya.” Of Pakistani descent, Ahmad is a British computer specialist. He is associated with KSM, whose assistant had anthrax production documents on his laptop. Ahmad is also the cousin of Muhammad Naeem Noor Khan, who was arrested mid-2004 in Pakistan. Khan’s computers carried detailed surveillance of five financial buildings in New York, Newark and Washington and prompted the Department of Homeland Security to elevate the threat alert level to orange. The surveillance was conducted by al-Hindi and al-Marri, the unlawful combatant.
In an affidavit, an FBI special agent and computer investigative specialist, alleged that a New Brunswick, NJ man, Mazen Mokhtar, assisted Babar in maintaining the continued operation of the Azzam sites, through the use of mirror sites, when the administrators of Azzam sites shut down the Azzam.com site down after 9/11.” The mirror sites, www.qoqaz.net and www.waaqiah.com, allegedly routed people trying to access www.azzam.com. The affidavit alleges that Mr. Mokhtar is listed as the administrative contact for the mirror sites. He also operated minna.com. A friend reports: “He said he used to run a hosting service four or five years ago that used to resell Web hosting services to people. He said he didn’t know those guys (mentioned in court papers) and he is not involved in anything like that.” An Egyptian-born imam and political activist, he is a supporter of Palestinian cause and frequent speaker before groups in Brooklyn and the Bronx. He is said to be nice and seems a man of peace. He gave a couple of thoughtful presentations in the Fall of 2006 that are online on YouTube, to include to the Muslim Students Associationa at Rutgers University.
In an affidavit in support of the indictment of Babar Ahmad, “[t]his same fund raising solicitation and instructions were also posted by a specific individual [the North Brunsick, NJ-based Mazen Mokhtar] who resided in the United States and who served as a U.S.-based administrator for www.qoqaz.net, the mirror site of www.azzam.com, as well as for Azzam Publications sites generally in late 2001.”
The affidavit continued:
“During 2001 that person posted the same solicitation and instruction on another U.S.-based website, www.minna.com, which this individual also operated. Further, a search of this person’s residence in New Jersey resulted in the recovery of contact numbers for Azzam Publications in hardcopy and electronic form. Therefore, it is evident that AHMADworked in concert with this individual to maintain the continued operation of the Azzam sites, through the use of mirror sites, when the administrators of Azzam sites shut the Www.azzam.com site down after 9/11. This U.S. individual’s participation in the effort to continue the existence of the Azzam website content in another form through the use of mirror sites demonstrates that a concerted effort existed between the administrators of Azzam, including Ahmed, and individuals in the United States and others to further the goals of Azzam, that is, to solicit funds for organizations for which support is prohibited under U.S. law, namely the Taliban and Chechen Mujahideen, in an effort to support their goals.
In addition to the specific fund-raising instructions set forth above, throughout 2000 and 2001, the Azzam Publications websites also instructed that individuals use the hawala system — a record-less financial transaction system — to transfer funds to Pakistan and the Taliban to avoid interception of the funds.”
In late April 2007, Mr. Mokhtar was indicted for failing to file tax returns and filing false tax returns. The Indictment alleges that for the tax years 2003 and 2004, Mokhtar failed to file business tax returns. The Indictment additionally alleges that for the tax years 2000, 2002 and 2003, Mokhtar filed fraudulent personal tax returns in that he failed to state the entire amount of income he received from his business, Mindcraft. He likely will raise selective prosecution as a defense though it is a difficult defense to establish.
In an exhibit introduced at Dr. Al-Timimi’s trial, one jihadist wrote an angry email to a mailing list — upon the December announcement by the Taliban it was surrendering — about the overly rosy picture that the website azzam.com had painted.
“What about Azzam.com? It seems the news from there was not authentic and (much as I hate to say this) we were duped.”
He explained:
“I have been enraged about the tactics of these brothers for some time now. I’ve expressed my outrage to a number of brothers over the years but it has only contributed to their rumors that I have “sold out.” I had been approached to host their sites when they were in trouble and flatly refused. When I asked on brother why they LIE (yes, LIE) while swearing they swear by Allah it is true, the response I got was “al-Harbu khud’ah” (Hadeeth, “war is deception”). War is deception to the KUFFAAR not to your brothers!!!. I know brothers who are leaving within the next few days who are now scratching their heads in confusion. What do they do with their one way, non-refundable plane tickets now that cost every cent they had placing themselves and their families in great hardship?”
I would also re-look at the below extract from the Science article. Note that it reports Dugway made spores for the FBI - but without silica. The details of the preparation sound identical to the details in the Dugway/CDC new publication. With the exception that they used silica in the new publication.
http://cryptome.quintessenz.at/mirror/anthrax-powder.htm
In December 2002, the FBI decided to test whether a high-grade anthrax powder resembling the one mailed to the Senate could be made on a small budget, and without silica. To do this job, the bureau called upon Army scientists at Dugway Proving Ground, a desolate Army test range in southwestern Utah. By February 2003, the scientists at Dugway had finished their work. According to military sources with firsthand knowledge of this effort, the resulting powder “flew like penguins.” The experiment had failed. (Penguins can’t fly.)
Military sources say that Dugway washed and centrifuged the material four times to create a pure spore preparation, then dried it by solvent extraction and azeotropic distillation —a process developed by the U.S. Chemical Corps at Fort Detrick in the late 1950s. It is not a simple method, but someone familiar with it might be able to jury-rig a lab to get the job done. As recently as 1996, Bill Patrick says he taught scientists at Dugway how to do this.
The FBI-Dugway effort produced a coarse powder. The spores—some dried under an infrared lamp and the others airdried —stuck together in little cakes, according to military sources, and then were sieved through “a fine steel mesh.” The resulting powder was placed into test tubes. When FBI officials arrived at Dugway to examine the results, a Dugway scientist shook one of the tubes. Unlike the electrostatically charged Senate anthrax spores that floated freely, the Dugway spores fell to the bottom of the test tube and stayed there. “That tells you the particles were too big,” says Spertzel. “It confirms what I’ve been saying all along: To make a good powder, you need an additive.”
Meet John Doe.
Let me simplify things.
Al Qaeda had a website.
On the website, they urgently sought donations of gas masks.
The guy endorsing the website was behind Al Qaeda’s anthrax planning.
It’s webmaster lived 6 miles from the mailbox.
The FBI has aggressively prosecuted those associated with Al Qaeda’s website and a prosecution involving a Trumbull, Conn. ISP that mirrored the website is still pending.
Isn’t the President and founder of the ISP George D. in fact single? (such as “John Doe” is according to his essay in the Washington Post).
It would help our discussions if you didn't always distort what I say. If you can't answer without distorting something I've said, that is a clear indicator that you have no real answers.
I never speculated that "clumps of spores are immune to coating with silica." I just paraphrased what was in the Aerosol Science article because I was about to leave to do some chores, and I didn't have time to go back to get the actual words. Here are the actual words:
Figure 7a shows a particle potentially containing a single BG spore; since no uncoated single spores were observed, this suggests that virtually all single spores remained coated with silica. The coating apparently solidified from exposure to water in the air over the years of sample storage and use. However, multiple spores or clumps were found frequently and these were often largely uncoated as indicated in Figure 7b. The reason for the difference in coating adherence to different sized particles is unclear.
It’s likely the other way around. If any clumps are found they became clumps BECAUSE the spores were not coated in the first place - uncoated spores, or spores with poor coverage came in contact with each other during later handling - and they clumped up due to van der Waals attraction.
Your beliefs seem totally in conflict with the facts. The facts say the spores were ALL CLUMPED to begin with and had to be milled to break the clumps down to individual spores and clumps smaller than 5-microns or so. Whether the original pellet was hard or soft doesn't change the fact that it was, in effect, a LARGE CLUMP.
In fact - the entire process they used is identical to the Patrick process that has been talked about and is protected by secret patents.
Didn't Patrick's process involve freeze drying and a grinding mill instead of a ball mill?
An ABC article by Gary Matsumoto includes this:
Bill Patrick, a scientist who used to make anthrax weapons for the United States, patented a secret process that involved freeze-drying the spores, milling the resulting anthrax "cake" to yield particles of the proper diameter, then coating them with a special mixture to dampen electrostatic charges that cause clumping. Patrick calls this making the particles "slippery."
The "coating" in the final sentence seems to be the 20% by weight of fumed silica added AFTER milling.
So you're going to go back to posting meaningless crap over and over again? That was ONE TEST. And you endlessly refer to it as if it were the only possible test of the only possible spore powder anyone could ever make without using silica.
Everyone should have known before doing it what the results would be. But it proves absolutely NOTHING about what was in the attack anthrax.
Let me simplify further.
BogeyMen in cave has religious friends who know computers.
One of those religious friends makes friends with infidels and steals germ from them.
Gives to other religious friend who puts germ in mailbox.
Lightening strikes BogeyMen in cave dead.
Mountains of paperwork saves friends of Bogeymen from lightening strike.
What about other types of small particles where van der Waals forces play absolutely NO role at all?
“Your beliefs seem totally in conflict with the facts. The facts say the spores were ALL CLUMPED to begin with and had to be milled to break the clumps down to individual spores and clumps smaller than 5-microns or so.”
No, my argument makes perfect sense. BG spores clump when they are not coated. If they came through the sieve as single uncoated spores (becoming single spores for a short time due to collisions with the ball mill bearings) then these uncoated spores would be the very spores to find each other and clump up. It’s exactly as it should be - all the uncoated spores are in clumps at the end of the day.
If silica were not used at all - then ALL the spores would be in clumps. See pictures from the Texas A&M thesis (page 27). As you can see - uncoated BG spores clump. Coated BG spores, on the other hand, don’t clump. That’s why weaponization involves coating spores, as everyone in the field of BW aerosols knows.
Court of appeals to hear Locy arguments tomorrow
http://www.rcfp.org/newsitems/index.php?i=6740 ;
Really? What about particles of gold or aluminum 1 micron in diameter? Do van der Waals forces work on those particles exactly the same way and with the same force as on spores and lactose particles 1 micron in diameter?
I'll be back tomorrow to read your answer.
That depends on the relative Hamaker’s constants. Also it depends on the shape of the particles.
Every material has a Hamaker’s constant - that’s just physics and is absolute.
The target of the Hartford-area library NSL is thought to have used one of these libraries (apparently).
http://www.libraryconnection.info/librarygrid.html
The librarian testified before the Senate Judiciary Committee.
http://judiciary.senate.gov/testimony.cfm?id=2679&wit_id=6284
“[T]he letter requested information we had about the use of a specific IP address that was registered to Library Connection, Inc. He also pointed out the letter’s gag order prohibited Library Connection from disclosing to anyone that the FBI was attempting to obtain information from our library business records.”
“The requested information was for use of an IP address five months earlier, on February 15 [2005].”
Thus, one can infer that surveillance indicates that a particular person used a library computer in the Hartford area on February 15, 2005.
The letter just asked about the specific IP address and not a patron by name. But now anyone who knows the FBI is surveilling him (or her) and read the testimony indicating that their interest relates to his or her visit to use the library computer on February 15, 2005, knows of the FBI’s awareness of that computer use.
The DOJ reports that it was surveillance of a New York City library computer that was critical at thwarting an attack (as I recall).
TrebleRebel,
These NSL cases actually can be related to your fear that the silica issue is being obfuscated to cover up the government’s incompetence or worse.
In the two court ACLU challenges, the District Court judges ruled that the NSL’s automatic gag orders violate the First Amendment. One judge explained:
“The self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction. … A categorical and uncritical extension of non-disclosure may become the cover for spurious ends that government may then deem too inconvenient, inexpedient, merely embarrassing, or even illicit to ever expose to the light of day. At that point, secrecy’s protective shield may serve not as much to secure a safe country as simply to save face.
Similarly, when these cases got up to the court of appeals, one Reagan-appointed judge (who I had the great pleasure of clerking for once), Richard Cardamone, said of the gag orders: “A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens. Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.” Doe v. Gonzales, 449 F.3d 415, 422 (2d Cir. 2006) (Cardamone, J., concurring).
Amerithrax might be said to illustrate the principle. It took a DC law firm’s willingness to devote services probably valued close to $1 million to obtain discovery that showed that the FBI conducted a totally lame media leak investigation in 2002. If a good faith and effective investigation had been conducted, the same prosecutor (Seikaly) would not then have continued the outrageous hyping of the baseless pond and bloodhound stories associated with Hatfill, derailing a balanced understanding of Amerithrax. The DC FBI Field Office head Van Harp’s unwillingness to provide a waiver of confidentiality destroyed the DOJ’s claim that it was committed to a full and successful investigation. Van Harp should have followed Lambert’s example in 2003 of voluntarily submitting to a polygraph and waiver of confidentiality to any reporter. The FBI has allowed Amerithrax to be an anchor around its neck in terms of the world’s perception of the US — it has allowed conspiracy theories to needlessly proliferate that have damaged the country’s standing in world opinion.
Friday, May 9, 2008 11:00 AM Courtroom 20
Judges Ginsburg, Rogers and Kavanaugh
08-5049
Steven Hatfill v. Baltimore Sun Company
15 min per side
I’m confused about the caption on the Court’s calendar cut and pasted above.
But in any event, here is the brief on appeal of the federal defendants filed last month.
“Summary of argument.
The only issue addressed by the federal defendants on this
appeal is whether a plaintiff can demonstrate intentional or
willful disclosure of agency records under the Privacy Act
without identifying the government official who allegedly
released such information.
To make out his Privacy Act claim, Hatfill must show that
any alleged disclosures were made willfully or intentionally—a
question that turns on the acts of the specific agency officials
involved. He must likewise show that the information in question
was derived from protected agency records, rather than from
private knowledge, surmise, or other sources independent of such
records. Those inquiries are not possible without knowing the
identity of the agency official who is alleged to have made the
unlawful disclosures. To the extent Locy suggests otherwise,
that contention is mistaken and should be rejected.”
Ed,
By letter filed April 29, the DOJ advised the court that the federal appellees’ do not plan to present oral argument
It would be great if you obtain or find — and then link on your webpage — the following briefs of those arguing (counsel Hatfill and Locy). Otherwise, I’ll add them to http://www.anthraxandalqaeda.com which has avoided the wrangling over the press subpoena issues given that you do such a thorough job of making materials from the dockets available.
Tapes and transcripts won’t be available unless the reporters group pays for the transcript and uploads it. (How archaic! Even the District of Columbia Court of Appeals.. D.C. rather than federal... allows you to watch in real-time. The 7th Circuit, for example, has had arguments online for a few years now.
These are the key briefs:
APPELLANT REPLY BRIEF [1111974] filed by Toni Locy [Service Date: 04/18/2008 ]
APPELLEE BRIEF [1110632] filed by Steven J. Hatfill [Service Date:04/11/2008 ]
04/11/2008
APPELLEE BRIEF [1110694] filed by Michael B. Mukasey, et al., [Service Date:04/11/2008 ]
Now, put silica aside, and do what you do so well. Be our docket rocketeer.
http://www.latimes.com/news/nationworld/nation/la-na-intel9-2008may09,0,7865641.story
FBI is called slow to join the terrorism fight
A Senate committee wonders whether the bureau can transform itself. Gaps in training and vacancies in key positions are among the issues cited.
By Richard B. Schmitt, Los Angeles Times Staff Writer
May 9, 2008
WASHINGTON —
***
Among the Senate committee’s other findings:
* The FBI is still without an effective training program for intelligence analysts despite “revamping” training almost every year since 2002.
* Most intelligence analysts are supervised by special agents who have little or no experience conducting intelligence analyses.
* The bureau has hired just two “senior intelligence officers” two years after getting authority from Congress to fill 24 of the “critical” positions.
* Only a third of special agents and intelligence analysts have access to the Internet at their desktops. FBI personnel lack the ability to store and share images and audio files associated with intelligence investigations.
* A new weapons-of-mass-destruction directorate within the bureau is “poorly positioned to work across FBI programs that are likely to encounter WMD threats and investigations.”
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