The FBI's selective release of documents in the anthrax case

Some preliminary observations about the FBI's evidence.

Published August 6, 2008 8:11PM (EDT)

(updated below - Update II - Update III)

After obtaining a federal judge's approval to unseal the documents in the anthrax investigation, the FBI has released selected documents relating to its case against Bruce Ivins. Those documents can be viewed here.

I'm in the process of reviewing these documents and will post preliminary thoughts here as I do so, updating this post as I make my way through them, and then will undoubtedly have more to write after I am able to speak with some experts with regard to the FBI's scientific claims.

One critical caveat to keep at the forefront of one's mind is that when one side is in exclusive possession of all documents and can pick and choose which ones to release in full or in part in order to make their case, while leaving out the parts that undercut the picture they want to paint - which is exactly what the FBI is doing here -- then it is very easy to make things look however you want.

The first FBI listed document -- the October, 2007 Probable Cause Affidavit from Postal Inspector Thomas Dellafera (here -- .pdf), summarizes the Government's case against Ivins as of that time, and it is a good starting point. That document, standing alone, contains some persuasive circumstantial evidence against Ivins -- no doubt about it. But it also contains very little scientific evidence, and more to the point, circumstantial evidence is extremely easy to manipulate when you're the only one who has it.

One of the most notable aspects of that document is the motive attributed to Ivins, which is several-fold (much of which is grounded in its attribution to Ivins of a right-wing political agenda):

  • Ivins harbored animosity towards Catholic politicians who were pro-choice, particularly Sen. Daschle and Sen. Leahy, two of the targets of the most virulent anthrax strain that was sent;

  • particularly in the wake of 9/11, he was angry towards those who embraced the ACLU position that civil liberties must be safeguarded, and Sens. Daschle and Leahy, at the time, were widely perceived to have been holding up passage of the Patriot Act, and he also was furious at those who wanted to "coddle" or "excuse" terrorists;

  • he was angry at NBC News because one of its journalists, Gary Matsumoto (who subsequently was the producer of the ABC bentonite stories) was investigating the safety of the anthrax vaccine; and one of the anthrax letters was sent to Tom Brokaw at NBC; and,

  • he was afraid that Government support for the anthrax vaccine he helped develop, and funding for future research, would dissipate, and an anthrax attack would revitalize that support.

On the ABC/Iraq front, Media Bistro today conducted an interview with Brian Ross regarding the bentonite story, which is here. In an article examining these issues, The Columbia Journalism Review supports my position, and that of Professors Rosen and Gillmor's, that Ross should disclose the identity of his sources, and adds several more questions he and ABC should answer. I will undoubtedly have more on that issue and the rest of the issues raised by the DOJ documents shortly. The Accountability Now petition to key members of Congress for an investigation -- needed more than ever -- is here.

UPDATE: One of the pieces of circumstantial evidence which the FBI stressed most heavily and which has clearly impressed The New York Times is that Ivins, in a September 26, 2001 email to a colleague (which the FBI appears not to have released in full), wrote: "Osama bin Laden has just decreed death to all Jews and all Americans." After citing that email, the FBI then claims in each of its Search Warrant affidavits (emphasis in original) that this is "language similar to the text of the anthrax letters postmarked two weeks later warning 'DEATH TO AMERICA,' 'DEATH TO ISRAEL.'"

Everyone can decide for themselves how persuasive they find that, but "Death to America" and "Death to Israel" were hardly some exotic or unique phrases the use of which by both Ivins and the anthrax attacker would constitute anything incriminating. To the contrary, those phrases were very common, and routinely appeared in press reports, particularly around the time of 9/11, for obvious reasons:

  • The Washington Post, 9/27/2001 -- Dateline: October 26, 2001:
    Iran's top political and religious leader said today his country would not join a U.S.-led coalition against terrorism, dousing hopes that Iran's recent condemnations of terrorist attacks in the United States might lead to warming relations between the longtime antagonists. . . .

    [Khamenei]'s speech, delivered to a group of war veterans and their families, was punctuated by chants from the crowd of "Death to America!" and "Death to Israel!" the traditional rallying cries of hard-liners in Iran.

  • Chicago Tribune, 9/27/2001:
    In his speech to families of victims of the 1980-88 war against Iraq, Khamenei ruled out Iran's participation in any attack on Afghanistan or in a wider U.S.-led battle against terrorism.

    "Iran will not provide any help in an attack by the U.S. and its allies. You who have always hurt Iran's interests, how can you ask for our help in attacking an oppressed country?" the ayatollah asked. The gathering of several thousand shouted their approval with cries of "Death to America" and "Death to Israel."

It's hardly surprising -- let alone shocking -- that Ivins would use those phrases to argue why Islamic radicals were a threat. Indeed, those exact phrases had long been prominent in the news in connection with numerous reports of Islamic radicals. As but a few examples:

  • The Guardian, 12/28/2000:
    Iran's spiritual leader, Ayatollah Ali Khamenei, told tens of thousands of worshippers gathered in and around a north Tehran mosque: "It is a human, religious, wise and historical duty for all the Muslim nations to support the oppressed Palestinian nation as much as possible."

    Some hardliners responded with calls of "Death to Israel! Death to America!"

  • The Journal of Counterterrorism & Security International, Winter, 1999:
    "Death to America; death to Israel! Israel is the enemy of Islam, America is the Great Satan!"

    - Hizballah Secretary General Hassan Nasrallah leading mourners in an angry chant at the funeral of Ali Deeb, a slain officer of the group (August 1999).

And news report -- particularly in the immediate aftermath of the 9/11 attacks -- had very vocally touted Osama bin Laden's 1996 "fatwa" against Americans and "Zionist Jews". The persuasiveness of this "evidence" depends upon your believing that those phrases are so rare that Ivins' invocation of them in an email -- followed by the anthrax attacker's use of similar phrases two weeks later -- is striking or something, but if anything is true, it's that attributing to Islamic radicals the phrases "Death to America" and "Death to Israel" was a clich&eacute, not some unique rhetorical fingerprint marking Ivins as the author of the anthrax letters. That's almost certainly why the anthrax attacker invoked those images in the letters -- because they were such common fears among Americans in the wake of 9/11.

For exactly the same reasons, in September, 2001, speculating about whether Osama bin Laden had anthrax was just as common -- for any Americans, let alone an anthrax vaccine researcher as Ivins was. As but one of countless examples, here's what Maureen Dowd wrote in The New York Times on September 26, 2001:

After all these finicky years of fighting everyday germs and inevitable mortality with fancy products, Americans are now confronted with the specter of terrorists in crop dusters and hazardous-waste trucks spreading really terrifying, deadly toxins like plague, smallpox, blister agents, nerve gas and botulism.

Women I know in New York and Washington debate whether to order Israeli vs. Marine Corps gas masks, half-hour lightweight gas masks vs. $400 eight-hour gas masks, baby gas masks and pet gas masks, with the same meticulous attention they gave to ordering no-foam-no-fat-no-whip lattes in more innocent days. They share information on which pharmacies still have Cipro, Zithromax and Doxycycline, all antibiotics that can be used for anthrax, the way they once traded tips on designer shoe bargains. They talk more now about real botulism than its trendy cosmetic derivative Botox.

I could spend the rest of the night listing all the examples of people in the media during that time talking about Osama bin Laden, bioterrorism, and anthrax specifically. The fact that Ivins was doing so -- with a colleague in the field -- is anything but surprising. It would be surprising if he hadn't been. I want to stress again that there does appear to be some convincing circumstantial evidence presented by the FBI (at least as of now, in its one-sided form), but I don't think that email remotely qualifies as such.

UPDATE II: What is most conspicuously absent from these FBI documents is any real forensic evidence linking Ivins to the anthrax that was sent. That's particularly striking because the FBI took numerous swabs of Ivins' residence, his office space, his laboratory devices (presumably including the lyothilizer he used), his locker, his cars. If they had discovered any anthrax traces that genetically matched what was sent in 2001, they certainly would have said so. But they don't.

It's long been claimed that the property that rendered so dangerous the anthrax sent to Daschle and Leahy was that it was airborne. At times it was even claimed that the anthrax was aerosolized. Under all circumstances, in order for it to be inhalation anthrax, it would have to disperse rather easily. Wouldn't one expect that the FBI's swabs would reveal traces of anthrax somewhere on the clothes, in the home or other physical surroundings of the anthrax attacker? Yet apparently those multiple swabbing episodes turned up nothing, at least based on the documents that were released today.

Nor are there any real answers to the question of how Ivins would have manufactured, on his own and without being detected, anthrax grade of the type that was used in the attacks. The numerous hours he spent alone in the lab doesn't address what many of his colleagues said would have been his technological inability to produce anthrax of this type.

Rep. Rush Holt today received a briefing from the FBI Director and just said this:

I appreciate the preliminary briefing that FBI Director Mueller gave me today. I am pleased the FBI finally has begun to answer the questions that the families of the victims have had for nearly seven years. While the circumstantial evidence pointing to Dr. Ivins that the Department of Justice released today is compelling, a number of important questions remain unanswered, such as why investigators remained focused on Dr. Hatfill long after they had begun to suspect Dr. Ivins of the crime and why investigators are so certain that Ivins acted alone. In addition, there are important policy questions for handling any future incidents of bioterrorism. I will continue to conduct additional oversight on this issue over the course of the next several months.

There are other questions besides those, too. And there will undoubtedly be more when and if the FBI releases the actual documents and data underlying their conclusions. It is critical to keep in mind that all they released is their own claims and summary about the evidence they have. The evidence itself continues to remain concealed, in their exclusive possession, examined by nobody.

What happened today with this selective document release is akin to a criminal trial where only the Prosecutor is allowed to see the relevant evidence, only the Prosecutor is allowed to select which evidence is presented, and only the Prosecutor speaks. Such a distorted, one-sided process doesn't even happen at Guantanamo, which should, by itself, indicate how much skepticism is warranted here until the FBI makes the actual evidence available so that its claims can be subjected to critical scrutiny.

UPDATE III: Long-time anthrax expert Dr. Meryl Nass (Curriculum Vitae here) uses crystal clear rationality to point out just some of the glaring flaws in what the FBI presented today. The fact that the FBI is plainly unable to place him near Princeton, New Jersey on either of the two dates on which the letters were sent -- and, worse, the fact that the FBI included several facts which cut against such a finding -- is, as Dr. Nass points out, by itself an enormous omission:

Put up or shut up: this is the most critical evidence in this case. If Ivins cannot be placed in New Jersey on those dates, he is not the attacker, or he did not act alone.

I highly recommend that her analysis be read in its entirety, particularly by any journalists who are preparing to opine on what took place today.

And while NPR's reporting on this matter earlier in the week left much to be desired, kudos to them for their article today, weaving in substantial commentary from Ivins' lawyer, Paul Kemp, and thus including vigorous challenges to and criticisms of most of the FBI's claim.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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