F.B.I. Will Present Scientific Evidence in Anthrax Case to Counter Doubts

Let’s consider how this same US Attorney’s Office screwed the pooch last time in regard to Dr. Hatfill. The source of the fishy, shaggy dog stories that derailed public understanding of the investigation pled the Fifth Amendment. His daughter then came to represent the “anthrax weapons suspect” of the other Amerithrax investigative squad.
The investigative squads were compartmentalized, and kept separate from the forensic study — leaving it all to be integrated by the same folks that brought you Hatfill. Anyone remember the phrase “the investigators were confident that...”

In early August 2002, the head of the District of Columbia Field Office initiated a leak investigation related to Amerithrax information. The first leak investigation concerned leak of bloodhound story to Newsweek (according to email discussed in deposition of lead prosecutor Daniel Seikaly in which he repeatedly pled the Fifth Amendment). A memo from DC Field Office head Van Harp read:

TO: OPR
NSD
From: Washington Field
ADIC’s Office: Harp Van A (202) xxx-xxxx
***
Title: UNSUB
UNAUTHORIZED DISCLOSURE AND/OR
MEDIA LEAK IN CONNECTION WITH THE
AMERITHRAX INVESTIGATION
***
[REDACTED]
[REDACTED]

The appearance of this information in the media affects the conduct of this investigation as well as the morale of the dedicated personnel who have expended enormous energy and effort on this investigation.

As such, I am requesting that either a media leak or OPR investigation be initiated. In the event a leak investigation is initiated then the enclosed LRM should be hand delivered to AAG Chertoff. [REDACTED]

The investigation was closed in October 2002. The memo read:
Date: October 8, 2002
To: Mr. H. Marshall Jarrett
Counsel
Office of Professional Responsibility
United States Department of Justice

From: David W. Szady
Assistant Director
Counterintelligence Division
Subject: [REDACTED[

The purpose of this memorandum is to notify your office of the closing of the FBI’s criminal investigation of the captioned media leak matter. It is the understanding of the FBI that your continUed investigation of this matter will be pursued by your office.
[REDACTED]
***
After a January 9, 2003 “exclusive” report by ABC’s Brian Ross that the FBI was focusing on Hatfill and was going to conduct a second round of interviews with other former and current government scientists so that they might rule them out by the process of elimination, the FBI initiated a second media leak investigation. This time it was to proceed with “extreme zeal.”

The memo read:
Precedence: PRIORITY Date: 1/13/2003
To: Director’s Office
Washington Field
From: Washington Field
Contact Richard L. Lambert 202-xxx-xxxx
Approved by: Harp Van
Lambert Richard L
Title: AMERITHRAX
MAJOR CASE 184
00: WFO

Synopsis: To request the opening of new OPR media leak investigation regarding captioned case.
[large redacted passages]

To demonstrate the seriousness with which the FBI views this matter, it is requested that the OPR inquiry commence with an interview of IIC Rick Lambert who will waive all Fifth Amendment privileges and accede to a voluntary polygraph examination to set a tone of candor, forthrightness and cooperation.

[redacted]

The instant matter is the second unauthorized media disclosure to occur in this investigation. Its potential detriment to the effective prosecution of the case is substantial. Accordingly, in the interests of both specific and general deterrence, the Inspector in Charge requests that this OPR inquiry be pursued with unprecedent zeal.”

A June 2003 email then shut the barn door long after the horse had left the barn door:

From: DEBRA WEIERMAN
To: Lisa Hodgson
Date: Wed, June 4, 2003 12:18 PM
Subject: AMERITHRAX INVESTIGATION
Lisa: Please disseminate to all WFO employees. Thanks, Debbie

For the information of all recipients, Director Mueller has ordered that no one discuss the AMERITHRAX case with any representative of the news media. The WFO and Baltimore Media Offices have released several media advisories, which were coordinated with the US Attorney and FBIHQ, to explain specific milestones in the case. However, NO FBI WFO EMPLOYEE, INCLUDING MYSELF AND INSPECTOR RICK LAMBERT, WHO IS IN CHARGE OF AMERITHRAX, IS TO RESPOND TO ANY MEDIA INQUIRIES, THE ONLY EXCEPTION IS DEBBIE WEIERMAN IN THE MEDIA OFFICE. All inquiries from reporters or journalists received by any WFO employee are to be immediately referred to Debbie at xxx-xxxx, and she will handle.
I thank everyone at WFO for their dedication to the job and to this office. I also thank you for your cooperation in this very important matter.
Mike Rolince

In October 2007, the former Criminal Chief of the U.S. Attorney’s Office for the District of Columbia, Daniel Seikaly, was deposed in the civil rights action by Steve Hatfill about whether he was the source of leaks relating to Steve Hatfill in connection the use of bloodhounds in the anthrax investigation and the draining of ponds in Frederick, Maryland. Key stories appeared in Newsweek and Washington Post. Attorney Seikaly pled the Fifth Amendment against self-incrimination in connection with most substantive questions.

Attorney Seikaly has had a very distinguished career. In 2001, Mr. Seikaly went from being Assistant Inspector General for Investigations at the Central Intelligence Agency to Criminal Chief of the U.S. Attorney’s Office for the District of Columbia. There he supervised eighty-five Assistant United States Attorneys involved in the prosecution of all federal offenses in the District of Columbia. He also served as a technical expert for U.S. Department of State funded rule of law programs in Croatia, Estonia, Kazakhstan, and Thailand. Before accepting the appointment to Criminal Chief of the U.S. Attorney’s Office for the District of Columbia, Mr. Seikaly was Assistant Inspector General for Investigations at the Central Intelligence Agency. While with the CIA, a profile at his current law firm’s webpage explains, “he conducted and supervised numerous investigations concerning allegations of misconduct by employees, contractors and vendors involved in CIA programs. In that position, he routinely interacted with senior officials within the intelligence community, other executive branch agencies and Congress concerning intelligence investigations.” The profile continues: “From 1996 to 1998, Daniel served as an Associate Deputy Attorney General at the Department of Justice and was Director of the Department’s Executive Office for National Security. There he was responsible for the coordination and oversight of the national security activities of the Department of Justice, including intelligence operations, international law enforcement, relations with foreign countries and the use of classified information. Reporting directly to the Attorney General and Deputy Attorney General and acting with their authority in national security matters, Daniel was a primary point of contact between the Department of Justice and other executive branch agencies with national security interests such as the National Security Council, the Department of State and the Department of Defense.”

Here are some excerpts from the deposition:

“Q. … calls this article, quote ‘An exclusive look at the search for the perpetrator of America’s worst bioterror attack.” Did you tell Mr. Klaidman [of Newsweek] that you were giving him an exclusive on this information?
[deponent invokes Fifth Amendment]

Q. Did you tell Mr. Klaidman that the FBI was acting on a tip when it searched the pond in Frederick?
…

Q. Did you tell Mr. Klaidman that FBI agents had interviewed the acquaintance of Dr. Hatfill’s that was supposedly the tipster?
[deponent invokes Fifth Amendment]

Q. Did you tell Mr. Klaidman that the acquaintance had told the FBI that Dr. Hatfill said toxic bacteria could be made in the woods and the evidence could be tossed in the lake?
[deponent invokes Fifth Amendment]

Q. Did you tell Mr. Klaidman that the FBI might drain the entire pond the month after this report?
[deponent invokes Fifth Amendment]
[Lawyer defending deposition] Mark, let me say something on the record so we all understand the assertion because the manner in which — or the type of questions you’re asking here. My client has been instructed to assert the Fifth Amendment privilege regardless of whether or not the answer to the question would be yes or no, because even if the answer were to be no, if he answered no to certain questions, I think an inference could be drawn from that as to what he does or doesn’t know.
So I just want to make sure you understand in terms of our Fifth Amendment assertion here is that he’s asserting the Fifth Amendment privilege to questions that may have a yes or no answer, and it’s not fair to assume that the answer to every one of these questions would be yes or no if he were to answer the questions. Does that make sense?

Q. It makes sense, but we will be seeking an adverse inference as to all questions where the fifth amendment is taken.
***

Q. Mr. Seikaly, do you deny any of the statements attributed to you by Mr. Klaidman with respect to the [Newsweek bloodhound story]
[deponent invokes Fifth Amendment]

Q Is it actually even true whether the search of the pond was prompted by a tip?

Q. Are you aware of any information that might have been used as a predicate for the pond search having been obtained as the fruits of electronic surveillance?
[deponent invokes Fifth Amendment]

Q Did you tell Mr. Klaidman that agents might be looking for a wet suit that could have been used to dispose of — that could have been used and disposed of by the anthrax attacker?

[deponent invokes Fifth Amendment]
***

Q. Did you give Allan Lengel of The Washington Post any information reflected in this article?
[deponent invokes Fifth Amendment]

Q. Mr. Lengel has testified that you told him the FBI search of the pond in Frederick was tied to Steven Hatfill and that it was triggered by a hypothetical statement Dr. Hatfill has made about anthrax; is that correct?

A. That Mr. Lengel testified about that?

Q. Is it correct that you told Mr. Lengel about those things?
[deponent invokes Fifth Amendment]

Q. How did you know that the FBI’s search of the pond in Frederick was tied to Steven Hatfill?
[deponent invokes Fifth Amendment]
***

Q. Why did you decide to disclose information to Mr. Lengel about the pond search?
[deponent invokes Fifth Amendment]
***

Q Did you tell Mr. Lengel that the items recovered from the pond up to that point included a clear box with holes that could accommodate gloves?
[deponent invokes Fifth Amendment]
***

Q Did you tell Mr. Lengel that the items recovered from the pond up that point included vials wrapped in plastic?
[deponent invokes Fifth Amendment]

Q. Do you specifically deny making any statement that Mr. Lengel has attributed to you?
[deponent invokes Fifth Amendment]
***

Q. How did you know that tests for the presence of anthrax
bacteria on the equipment were continuing after two rounds of tests produced conflicting results?
[deponent invokes Fifth Amendment]

Q. Why did you disclose that information to Mr. Lengel?
[deponent invokes Fifth Amendment]
***

Q Did you tell Mr. Lengel that the search of the pond in Frederick netted nothing but a hodgepodge of items that did not appear to be linked to the case?
[deponent invokes Fifth Amendment]
***

Q If we take the dates from Exhibits …, it appears that you disclosed investigative information to Mr. Lengel for articles that appeared in January 2003, May 2003, June 2003 and August 2003. Is that right?
[deponent invokes Fifth Amendment]
***

Q. … Do you know whether you ever saw this e-mail before?

A. I don’t believe I have.

Q. Okay. Let’s look at the partially redacted paragraph. It says, quote, “WFO [Washington Field Office] has opened a leak investigation in an attempt to find out who spoke to Newsweek Magazine over the weekend about the bureau’s use of bloodhounds in the anthrax investigation,” closed quote. Do you see that?

A. I do.

Q. And the date of the email is August 5th, 2002.

A. That’s correct.

Q. The investigation that’s referenced here is about the story that you gave Mr. Klaidman, is it not?

A. Assert my Fifth Amendment Privilege in response.
***

Q. Okay. In the bottom e-mail, when Blier begins, “here is a summary of my conversation with Glen about the anthrax leak investigation.” Now, Bill Blier worked for you, did he not?

A. Yes.

Q. Did you know what Mr. Blier was referring to when he referred to, quote, the anthrax leak investigation?

A. I believe that it was an investigation involving the possible compromise of classified information is my understanding. I did know about an investigation in that.
***

Q And do you know whether that had anything to do with bloodhounds or Newsweek?

A I don’t believe it did but I don’t know.
***

Q You were aware of an anthrax investigation, yes?

A. I was — I was aware that there was a discussion of an investigation involving the compromise of classified information arising from the anthrax investigation, the Amerithrax investigation. I do recall knowing that we were — we and the U.S. Attorney’s Office and the Justice Department were concerned about this and were seeking to find out who compromised the classified information.
***

Q. Did you think it remarkable in any way that bloodhounds could track a scent from anthrax letters that were ten months old to a Denny’s in Louisiana where someone had eaten the day before?
[deponent invokes Fifth Amendment]
His daughter has represented Ali Al-Timimi pro bono in defense of his prosecution for sedition.

My preference would be that former USA Today reporter Toni Locy, found in contempt by a District Court judge in the Hatfill civil rights action, just end the circus by confirming that her source was (if it was) the head of the criminal division in the District of Columbia, Dan Seikaly, who repeatedly pled the Fifth on the general subject at civil deposition. He had consented to being named by the reporters who contacted him and asked for a waiver of confidentiality. If he is the source, Ms. Locy’s refusal to more promptly contact her sources might be much ado about nothing. Based on her description in in her second deposition, Ms. Locy made only what seemed a half-hearted effort to contact a third and fourth source to ask for a waiver of confidentiality before her deposition (when that was the entire purpose of the second deposition). At her second deposition, she said: “I don’t know. I’ve just begun the process of reaching out to people.” She said that she had not spoken to Mr. Seikaly since her last deposition.

No one disputes, for example, in connection with the pond draining story that the Maryland ponds were in fact drained. Her article reports that one official said that they were just looking to avoid criticism in the future that they had not aggressively pursued all theories. One person of interest as the third federal law enforcement source is the Criminal Chief of the U.S. Attorney’s Office for the District of Columbia who pled the Fifth Amendment on these issues at deposition. Was he Ms. Locy’s third “federal law enforcement source” on the subject? (The prosecutor providing the information about the pond draining had released two other reporters, when asked, from a promise of confidentiality, out of fairness to them).

Another article she wrote titled “Anthrax Investigators tail scientist 24/7? states that the sources “requested anonymity because the anthrax probe is active.” That article refers to “four law enforcement sources.” It claims that Dr. Hatfill’s response to questioning in a polygraph on the subject of the attacks was “evasive.” Polygraph results are inadmissible in federal court and almost all state courts because they are deemed unreliable. If the report was that the alleged witch drowned upon being dunked, should we be so quick to protect the source of the report? What if it turns out that the leak was from the lawyer who would not be able to admit the claimed polygraph finding in court?

The USA article concluded: “One of the law enforcement sources says investigators sometimes wonder whether they focused on Hatfill too soon and ignored someone who deserved more attention. So much has gone into investigating Hatfill, the source says, that abandoning the focus on him ‘would be like starting all over.’ ” The press has been so focused in defending itself from the charge that it was unfair to Dr. Hatfill — and law enforcement officials have been so chastened by the civil rights suit brought by Dr. Hatfill — that five years ago there stopped being meaningful coverage of Amerithrax by the mainstream press altogether. Given that it seems the press nowadays only ever has the budget to take spin handed under the table to them by government officials anyway, perhaps the First Amendment is not as worth prioritizing, in the balance of competing interests, as it used to be. Maybe we would learn more if Dr. Hatfill were allowed a meaningful day in court and then bloggers uploaded the transcript. The wisdom of the fictional City Desk Editor at the Baltimore Sun on the HBO’s series “Wired” in parsing out such First Amendment issues involving competing considerations — and that of Professor Archibald Cox — will be sorely missed.

All we know for sure. If we don’t learn from history we are bound to repeat it.

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