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NSA Obfuscated to Congress about Back Door Searches in 2009

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The NSA got a lot of criticism for releasing its IOB reports on December 23, just as everyone was preparing for vacation. But there were three reports that — at least when I accessed the interface — weren’t originally posted: Q3 and Q4 2009 and Q3 2010 — all conveniently important dates for the Internet dragnet (I’ll have more on what they didn’t disclose soon).

Apparently those reports were added on New Year’s Eve Eve Eve, an even bigger wasteland for document dumps than Christmas Eve.

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In addition to details about what NSA did and didn’t reveal about the Internet and (to a lesser degree) phone dragnet, the Q3 report also claimed to rebut this June 16, 2009 Risen and Lichtblau article.

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The article pretty clearly reveals the outlines of what we’ve since learned to be big privacy problems behind NSA’s programs — definitely back door searches, and probably upstream collection.

Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

[snip]

A new law enacted by Congress last year gave the N.S.A. greater legal leeway to collect the private communications of Americans so long as it was done only as the incidental byproduct of investigating individuals “reasonably believed” to be overseas.

But after closed-door hearings by three Congressional panels, some lawmakers are asking what the tolerable limits are for such incidental collection and whether the privacy of Americans is being adequately protected.

“For the Hill, the issue is a sense of scale, about how much domestic e-mail collection is acceptable,” a former intelligence official said, speaking on condition of anonymity because N.S.A. operations are classified. “It’s a question of how many mistakes they can allow.”

[snip]

The N.S.A. is believed to have gone beyond legal boundaries designed to protect Americans in about 8 to 10 separate court orders issued by the Foreign Intelligence Surveillance Court, according to three intelligence officials who spoke anonymously because disclosing such information is illegal. Because each court order could single out hundreds or even thousands of phone numbers or e-mail addresses, the number of individual communications that were improperly collected could number in the millions, officials said.

[snip]

But even before that, the agency appears to have tolerated significant collection and examination of domestic e-mail messages without warrants, according to the former analyst, who spoke only on condition of anonymity.

He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

Over and over, this report clearly describes the accessing of US person data, without warrants, that has been incidentally collected. Rush Holt — then leading an oversight investigation into the NSA — even goes on the record in the article.

The report helpfully includes the rebuttal NSA sent to Congress (starting at PDF 18). The rebuttal goes like this:

  • The NYT story made “it seem as if NSA is broadly irresponsible in executing its mission” under EO 12333 or FISA “The opposite is true.”
  • NSA recently identified compliance issues but these “accusations are far afield of the compliance matters” related to the metadata dragnets and other recent violations. [The NYT had never said they were related, and there’s no evidence Risen and Lichtblau knew of them, except insofar as they also finally confirmed that the hospital confrontation pertained to the Internet dragnet in this article.]
  • It is difficult to know what the NYT’s anonymous sources mean. [The rebuttal makes no mention of Holt’s on the record comments, or the obvious references to back door searches.]
  • Maybe the reference to the examination of US person content is a reference to David Faulk but those allegations are false as the NSA IG will soon report.
  • A largely redacted bullet seems to admit they suck in related emails, as alleged in the article.
  • “The article also identifies a 30% threshold for inclusion of U.S. person information within NSA databases. There is no truth to this statement.”  [Of course, that’s not what the article says, as the red text above makes clear — it talks about how much US person content a search may pull up, not how much is in the databases.]
  • The access of Bill Clinton’s email was in 1992 and it is used as an example in oversight training [which is what the article described — though the rebuttal makes it far more clear that this is an “about” search on what other people are saying about Clinton].

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GAO Analysis Highlights Lab Samples Excluded in Sloppy FBI Anthrax Investigation

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As the last Friday before Christmas, late yesterday afternoon was the most obvious Friday news dump hour of the year, and the government didn’t disappoint. The Government Accountability Office released the results of a twenty-three month long study of the genetic analysis that was used to tie the material found in the anthrax attacks of 2001 to the laboratory of Bruce Ivins, whom the FBI concluded (pdf) was solely responsible for the attacks. The FBI’s conclusion is highly suspect for many reasons. On the science side, it is very unlikely that Ivins could have produced all of the attack material on his own and the detailed chemistry of the attack spores suggests that highly sophisticated materials and techniques unavailable to Ivins likely were used to prepare the attack material. Regarding that second point, note that even William Broad refers indirectly to the chemistry concerns in his New York Times article on the GAO report:

To the regret of independent scientists, the report made no mention of an issue beyond genetics: whether the spores displayed signs of advanced manufacturing. They have pointed to distinctive chemicals found in the dried anthrax spores that they say contradict F.B.I. claims that the germs were unsophisticated.

Evidence of special coatings, they say, suggests that Dr. Ivins had help in obtaining his germ weapons or was innocent.

The GAO study was undertaken, in part, because of questions raised by the National Academies study released in 2011 and with special prompting by Representative Rush Holt, from whose district the letters likely were mailed. The GAO study focused on obtaining a better understanding of the validity of the genetic analysis that was carried out and the statistics underlying the conclusions reached.

For a refresher, a helpful illustration from the GAO report shows the underlying biology of the genetic analysis that was carried out in the Amerithrax investigation. Here we see photos of a typical colony of the Ames strain of Bacilus anthracis on an agar plate and four variant colony types that occurred at low frequency when the attack material was spread out on agar so that colonies arose from single cells of the overall population of bacteria that were present in the attack material:
morphs

DNA sequence analysis was employed to identify the changes that led to these variant colony shapes. The FBI then commissioned private laboratories to develop DNA-based tests (relying on polymerase chain reaction, or PCR, methodology) that could be used to screen the large bank of isolates of the Ames strain that the FBI had accumulated through a subpoena submitted to all 20 laboratories known to have isolates of the Ames strain. Developing these assays represented a new frontier in forensic genetics and it did not prove possible to develop tests for all of the mutations identified in the original DNA sequencing. In the end, four tests were developed by the four different contractors.

The Amerithrax report stated that of the 947 samples included in the final analysis, only eight showed all four of the DNA changes the tests were designed to detect. Seven of those samples came from the laboratory where Ivins worked (U.S. Army Medical Research Institute of Infectious Diseases, or USAMRIID) and one came from Batelle Memorial Institute in Columbus, Ohio. The FBI noted that there was a record of material being transferred from USAMRIID to Battelle, accounting for the sample found there.

The GAO analysis finds a number of significant issues with the FBI’s work: Read more →

Mike Rogers Says 4 Briefings Recently Makes Up for Withholding Information before PATRIOT Act Vote

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Here’s House Intelligence Chair Mike Rogers’ response to the White Paper’s revelation, backed by Justin Amash’s reports, that he didn’t invite all members of the House to read notice of the Section 215 dragnet.

The House Intelligence Committee makes it a top priority to inform Members about the intelligence issues on which Members must vote. This process is always conducted consistent with the Committee’s legal obligation to carefully protect the sensitive intelligence sources and methods our intelligence agencies use to do their important work. Prior to voting on the PATRIOT Act reauthorization and the FAA reauthorization, Chairman Rogers hosted classified briefings to which all Members were invited to have their questions about these authorities answered. Additionally, over the past two months, Chairman Rogers has hosted four classified briefings, with officials from the NSA and other agencies, on the Section 215 and Section 702 programs and has invited all Republican Members to attend and receive additional classified briefings on the use of these tools from Committee staff. The Committee has provided many opportunities for Members to have their questions answered by both the HPSCI and the NSA. And Chairman Rogers has encouraged members to attend those classified briefings to better understand how the authorities are used to protect the country. [my emphasis]

So even according to Mike Rogers, Mike Rogers provided briefings to members to answer the questions they’d have no notice they needed to ask before reauthorization of the PATRIOT Act because Mike Rogers hadn’t provided the explanation of what they might want to ask questions about.

And since Edward Snowden exposed all this, he has had 4 briefings.

Nowhere in Rogers’ statement does he deny he failed to pass on the notice that read,

We believe that making this document available to all members of Congress, as we did with a similar document in December 2009, is an effective way to inform the legislative debate about reauthorization of Section 215.

Which, I take, is additional confirmation (in addition to the White Paper and reports from Congress) he failed to pass on notice that DOJ and the Administration claimed they wanted shared with all of Congress.

The legality of the 215 dragnet depends, in part, on whether or not the Executive briefed Congress. And because of Mike Rogers, it appears that that legal case is beginning to crumble.

Transpartisan Arguments the Government Won’t Want to Succeed

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Justin Amash, Paul Broun, Tulsi Gabbard, Morgan Griffith, Rush Holt, Walter Jones, Barbara Lee, Zoe Lofgren, Thomas Massie, Tom McClintock, Eleanor Holmes Norton, Beto O’Rourke, Steve Pearce, Matt Salmon, Mark Sanford, Ted Yoho.

Well, that’s got to be a group of people the Powers That Be don’t want to see joining together?

Captain Tulsi Gabbard, Physics PhD Rush Holt, Appalachian Trail Hiker Mark Sanford, and Paleocon Walter Jones. With my libertarian Congressman, Justin Amash apparently leading the bunch.

All on a court motion together, calling for the court to release the FISC opinion explaining why the government’s Section 702 collection was unconstitutional because without it they can’t do their job. Which includes, in part, informing the American people.

As important, whatever information Members of Congress learn about secret FISC opinions and orders, they are unable publicly to discuss or debate them because any disclosure is still subject to secrecy requirements.

[snip]

In light of recent disclosures regarding the existence of a “classified intelligence program,” related to the “business records” section of FISA, the Director of National Intelligence has acknowledged that “it is important for the American people to understand” the limits of the program and the principles behind it.

[snip]

Notwithstanding the compelling public interest in an open debate about the scope and propriety of government surveillance programs authorized under FISA, even the amici — Members of the U.S. Congress — cannot meaningfully participate in that public debate so long as this Court’s relevant decisions and interpretations of law remain secret. They cannot engage in public discussion on the floor of the Senate and the House about the government’s surveillance programs. And they cannot engage in dialogue with their constituents on these pressing matters of public importance.

[snip]

Informed, public debate is central to Congress’s role as a coequal branch of the federal government. The Constitution acknowledges the unique importance of open debate to Congress’s role in the Speech or Debate Clause. Debate in Congress serves no only the institution’s internal goal of creating sound public policy. Courts have recognized a second crucial purpose of informed, public debate in Congress: to inform the American people about the issues affecting their government.

Now, I think they may overestimate the degree to which this opinion pertains to the Section 215 collection (indeed, if it pertains to Internet metadata collection, it pertains to Section 214 of PATRIOT instead). [Update, 9/13/13: I’m mistaken here–it was exclusively Section 215.]

And I think their Speech or Debate argument has confused people about whether these members of Congress have seen what’s in the opinion. Holt used to be on the House Intelligence Committee, but no longer is, so I assume none of the Members on this brief know what the opinion is. In any case, the House has much more restrictive rules about who can access intelligence secrets than the Senate.

But I am rather fond of the argument that Congress can’t do its job with all the secrecy the Executive is operating under.

Where Were These Dems Asking about CIA-on-the-Hudson During Brennan’s Confirmation?

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I have always been a huge fan of what Thomas Perez has done in DOJ’s Civil Rights Division. But this sentence, from Adam Serwer’s query on what happened to DOJ’s review of the CIA-on-the-Hudson, ought to give pause.

Since taking office, the special litigation section of the civil rights division has investigated more local police departments for unconstitutional policing than ever before, but never on behalf of American Muslims profiled by law enforcement.

But the rest of Serwer’s piece barely touches a big missed opportunity — and, potentially, an explanation for why DOJ has slow-walked its investigation of the profiling of Muslims in NYC. Serwer notes that Brennan complimented the program, in contrast to Eric Holder’s stated concerns about it.

Although Holder referred to the reports of the NYPD’s actions as “disturbing,” that’s not the view of everyone in the Obama administration. CIA Director John Brennan, formerly a top White House counterterrorism adviser, praised the NYPD’s surveillance program in April 2012. “I have full confidence that the NYPD is doing things consistent with the law, and it’s something that again has been responsible for keeping this city safe over the past decade,” Brennan said.

Brennan is not just the former White House counterterrorism [and homeland security] czar, but he’s also the guy who, when CIA-on-the-Hudson was being set up in the days after 9/11, was in charge of logistics and personnel at the CIA. Which means there’s a pretty decent chance he had a role in dual-hatting the CIA guy who operated domestically to help NYPD spy on Americans.

But Brennan’s role in finding a way to use CIA tactics domestically barely came up in his confirmation hearings. As I noted, he was asked whether he knew about the program (and acknowledged knowing about it), but he was not asked — at least not in any of the public materials — whether he had a role in setting it up.

Sort of a key question for the guy now in charge of the entire CIA, whether he thinks the CIA should find loopholes to get around prohibitions on CIA working domestically, don’t you think?

Serwer names several House Democrats — Rush Holt, Mike Honda, Judy Chu — who have been asking about this investigation. Obviously, they didn’t get a vote on Brennan’s nomination. But it seems the nomination period would have been a very good time to ask questions about how and why, at a time when Brennan played a key role in logistics and personnel at the agency, the government decided to set up this workaround. Asking at that time might have clarified why it is that the Administration seems uninterested in investigating this program.

As it is, we’re now left with a guy who publicly applauded such work-arounds — and CIA involvement through cooperation in fusion centers — in charge of the entire CIA.

That Makes Over 21 Requests by 31 Members of Congress, Mr. President

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Adding the letter that Barbara Lee, as well as a list of all Members of Congress who have, at one time or another, requested the targeted killing memos.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1) 

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4) 

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6) 

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)

February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)

February 7, 2013: Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)

February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)

February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)

February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.

February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)

March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)

All Members of Congress who have asked about Targeted Killing Memos and/or policies

  1. Ron Wyden
  2. Dianne Feinstein
  3. Saxby Chambliss
  4. Chuck Grassley
  5. Pat Leahy
  6. Tom Graves
  7. Jerry Nadler
  8. John Conyers
  9. Bobby Scott
  10. Ted Poe
  11. Trey Gowdy
  12. Rand Paul
  13. Mark Udall
  14. Dick Durbin
  15. Tom Udall
  16. Jeff Merkley
  17. Mike Lee
  18. Al Franken
  19. Mark Begich
  20. Susan Collins
  21. John McCain
  22. Bob Goodlatte
  23. Trent Franks
  24. James Sensenbrenner
  25. Barbara Lee
  26. Keith Ellison
  27. Raul Grijalva
  28. Donna Edwards
  29. Mike Honda
  30. Rush Holt
  31. James McGovern

John Brennan, the Intelligence Community’s One Man Justice Department

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Matt Apuzzo has a story describing three different responses to growing concerns about the CIA-on-the-Hudson.

There’s Rush Holt, who unfortunately is no longer on the House Intelligence Committee and therefore has limited ability to look into this:

“I believe that these serious and significant allegations warrant an immediate investigation,” Holt wrote.

[snip]

Holt, who previously served on the House Intelligence Committee, said he never remembers being told about the CIA partnership or the programs the NYPD was running.

[snip]

Holt asked for a special prosecutor because he wanted both the civil rights issues and the NYPD-CIA collaboration to be investigated, his office said.

So Holt, who suggests he should have been informed of the NYPD spook program but wasn’t, suggests one means of oversight never happened.

There’s Mike Bloomberg, who has been Mayor for almost the entire post-9/11 period and therefore ought to have exercised some oversight over this program:

In New York, Mayor Michael Bloomberg was asked Thursday about the CIA’s investigation and whether he thought the partnership violated any laws.

“How would I know?” Bloomberg replied. “They’re doing an investigation. That’s what — if I knew, I’d be happy to tell them. But my guess is no.”

Surprisingly, Bloomberg hasn’t thought of consulting one of NY’s own lawyers, or one of the thousands of lawyers inhabiting NY, to find out whether the partnership was legal. A smart guy like Mayor Mike and he claims not to even know how he might find out if the program were legal. Rather than finding out, though, he’s just gonna guess.

And then, finally, there’s John Brennan, the guy who apparently did the targeting for Cheney’s illegal wiretap program and also was personally involved in one of the whistleblower cases the Obama Justice Department is prosecuting, who cites his intimate knowledge of the program as his basis for being sure there’s no problem.

President Barack Obama’s homeland security adviser, John Brennan, who was the deputy executive director the CIA when the NYPD intelligence programs began, said he was intimately familiar with the CIA-NYPD partnership. He said that agency knew what the rules were and did not cross any lines.

Call me crazy. But I think there’s a third reason to support Holt’s call for an independent prosecutor. Not only is Obama’s DOJ personally involved, but his top Homeland Security advisor was involved in this mess, too. Given the White House’s past involvement in shutting down DOJ investigations pertaining to the Brennan-era CIA, I’d say we need someone free of that chain of authority.

The Circumstantial Case against Bruce Ivins Gets Weaker

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It seems we’re going to be discussing anthrax in detail again. And in anticipation of those discussions, I wanted to challenge the notion that the circumstantial evidence against Ivins remains strong.

The whole case depends on the FBI’s contention that a flask Ivins had–RMR-1029–was “the murder weapon.” But in fact, the FBI only has proof that Ivins had what might be one of eight or more potential precursors to the murder weapon. Their efforts to equate the two ignore some interim steps about which they seem to have little evidence (and what they have they’re not examining very closely).

So here’s my summary of the circumstantial case against Bruce Ivins. (Jim White gave me a ton of scientific help with this, but the errors surely result from my own misunderstanding.)

When US Attorney Jeff Taylor announced FBI was closing the investigation in February 2010, he gave the following 7 pieces of evidence that Ivins was the culprit.

First, we were able to identify in early 2005 the genetically-unique parent material of the anthrax spores used in the mailings. As the court documents allege, the parent material of the anthrax spores used in the attacks was a single flask of spores, known as “RMR-1029,” that was created and solely maintained by Dr. Ivins at USAMRIID. This means that the spores used in the attacks were taken from that specific flask, regrown, purified, dried and loaded into the letters. No one received material from that flask without going through Dr. Ivins. We thoroughly investigated every other person who could have had access to the flask and we were able to rule out all but Dr. Ivins.

Second, as a renowned expert in the production and purification of anthrax spores, Dr. Ivins was one of a handful of scientists with the capability to create spores of the concentration and purity used in the attacks. The affidavits allege that, not only did Dr. Ivins create and maintain the spore batch used in the mailings, but he also had access to and experience using a lyophilizer. A lyophilizer is a sophisticated machine that is used to dry pathogens, and can be used to dry anthrax. We know others in Dr. Ivins’ lab consulted him when they needed to use this machine.

Third, in the days leading up to each of the mailings, the documents make clear that Dr. Ivins was working inordinate hours alone at night and on the weekend in the lab where the flask of spores and production equipment were stored. A review of his access records revealed that Dr. Ivins had not spent this many “off hours” in the lab at any time before or after this period. When questioned about why he was in the lab during these off hours prior to each of the mailings, Dr. Ivins was unable to offer any satisfactory explanation.

Fourth, the affidavits indicate Dr. Ivins had engaged in behavior and made a number of statements that suggest consciousness of guilt. For example, one night shortly after a search warrant was executed on his house, Dr. Ivins took highly unusual steps to discard a book and article on DNA coding while under 24/7 surveillance. In addition, he had submitted a questionable sample of anthrax from his flask of parent spores to the FBI, presumably to mislead investigators. He had also made far-reaching efforts to blame others and divert attention away from himself, and had made threatening e-mail statements to a friend regarding the case. Recently, he had detailed threats in his group therapy session to kill people who had wronged him, after learning he might be indicted.

Fifth, as reflected in the court documents, Dr. Ivins had a history of mental health problems and was facing a difficult time professionally in the summer and fall of 2001 because an anthrax vaccine he was working on was failing. The affidavits describe one e-mail to a co-worker in which Dr. Ivins stated that he had “incredible paranoid, delusional thoughts at times,” and feared that he might not be able to control his behavior.

Sixth, throughout his adult life Dr. Ivins had frequently driven to other locations to send packages in the mail under assumed names to disguise his identity as the sender. He had also admitted to using false names and aliases in writings. In addition, he was a prolific writer to Congress and the media, the targeted victims in the anthrax attacks. Law enforcement recovered 68 letters to such entities from his house in a Nov. 1, 2007 search.

I’ll conclude with one more point. The envelopes used in the attacks were all pre-franked envelopes, sold only at U.S. Post Offices during a nine-month window in 2001. An analysis of the envelopes revealed several print defects in the ink on the pre-printed portions of the envelopes. Based on the analysis, we were able to conclude that the envelopes used in the mailings were very likely sold at a post office in the greater Frederick Maryland, area in 2001. Dr. Ivins maintained a post office box at the Post Office in Frederick, from which these pre-franked envelopes with print defects were sold.

Here’s what remains of each of these 7 pieces of evidence:

1. The spores in the attack came from RMR-1029 and Ivins controlled access to that flask

The certainty of this claim was seriously challenged by both the National Academy of Sciences report and subsequent reporting on several grounds.

First, the NAS study concluded only that the genetic analysis was consistent with the spores being derived from RMR-1029.

The results of the genetic analyses of the repository samples were consistent with the finding that the spores in the attack letters were derived from RMR-1029, but the analyses did not definitively demonstrate such a relationship.

That only says that whoever prepared the (probable) two separate batches of anthrax may have started with anthrax obtained at some point from that flask. NAS holds out the possibility the anthrax producer may have gotten it from somewhere else, that it was possible to get similar genetic results from other means (that is, suggesting that’s not the only way to have produced the samples found in the letter).

An even bigger problem is the complete lack of attention on what happened to the anthrax after it came from Ivins’ flask, if it did. The NAS later emphasizes this interim step.

The flask designated RMR-1029 was not the immediate, most proximate source of the letter material. If the letter material did in fact derive from RMR-1029, then one or more separate growth steps, using seed material from RMR-1029 followed by purification, would have been necessary. Furthermore, the evidentiary material in the New York letters had physical properties that were distinct from those of the material in the Washington, D.C. letters.

Read more →

New Standard for Justice: Innocent Until a Secret Shrink Study Proves You Guilty after Your Death

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Our country apparently has a new standard for justice: innocent until a secret study–headed by a guy who may have had some responsibility for screwing up an earlier investigation and conducted entirely after your death–finds you were psychologically capable of committing a crime.

The LAT reports on a just such a report conducted on Bruce Ivins. It was initiated in late 2009 (remember, Ivins died in July 2008), at the suggestion of Dr. Gregory Saathoff, a psychiatrist who consulted on the investigation itself. And it was completed on August 23, 2010. Among the details the report apparently found that should have disqualified Bruce Ivins from having the security clearance he did is the fact that he put question marks next to some questions on a form he filled out in 1987 (those question marks should have raised eyebrows, definitely, but it’s funny they’re looking at them in this context now).

Mostly, though, LAT writer David Willman seems to suggest (and I’m not sure how much of this is speculation, off the record reporting, or reading the report itself) that the redacted parts of the report show that Ivins’ obsession with the KKG sorority in the 1980s should have disqualified him from getting clearance.

Some of the “disqualifying” behaviors that the panel said should have prompted Army officials to reconsider Ivins’ fitness to work in a secure biodefense facility were redacted from the report by Justice Department lawyers because of privacy concerns. However, based on investigative documents made public more than a year ago by the FBI and on remarks by Ivins’ acquaintances, this much is known:

Ivins became obsessed with Kappa Kappa Gamma in the 1960s, when a member of the sorority turned him down for a date. In the late 1970s and early 1980s, Ivins twice burglarized houses affiliated with the sorority.

Over the same period, he tormented a former member of the sorority, Nancy Haigwood, by stealing her laboratory notebook, which was integral to her pursuit of a doctoral degree, and by vandalizing her residence. Ivins was a postdoctoral researcher at the University of North Carolina in the 1970s when Haigwood was a graduate student there.

“Despite criminal behavior and sabotage of his colleague’s research,” the panel said, “Dr. Ivins was hired by USAMRIID and received a security clearance, allowing him to work with potential weapons of mass destruction.”

Now, I believe the report itself had as its stated goal assessing whether Ivins should have been able to retain his clearance. Still, the fact that people are still using Ivins’ KKG obsession as “proof” that he was the anthrax killer–without offering any explanation why that obsession led him to allegedly mail anthrax from outside of a KKG office 3 hours and 25 minutes from his home rather than mailing it from the actual KKG chapters closer to his home–is just blind faith.

Willman also describes the National Academy of Sciences report on the anthrax this way, to fluff up the case against Ivins.

Last month, a committee appointed by the National Academy of Sciences at the FBI’s request concluded that the scientific evidence implicating Ivins was not definitive but “is consistent with and supports” the bureau’s finding of a genetic match between his batch of anthrax and the material in the letters.

As Jim White has pointed out, the scientific panel was not so convinced–and provided a great deal of evidence as to why Ivins probably couldn’t have made the anthrax in his lab at Ft. Detrick.

Overall, the importance of the primary conclusion of the NAS report cannot be overstated (p. 4 of the report as marked, all references will use internal page numbers, not pdf numbers from my pre-publication copy):

It is not possible to reach a definitive conclusion about the origins of the B. anthracis in the mailings based on the available scientific evidence alone.

It’s bad enough that DOJ is using what was intended to be a lessons learned study (to prevent bioterrorism in the future, even though we’re not sure Ivins committed this crime; note that DOJ closed the case during the period of this study) to try to shore up their shaky case against Ivins.

But what really pisses me off is that DOJ was off contracting secret studies at the same time as it was repeatedly refusing to accept an independent review of their work on the case. Read more →

Nadler: FBI’s Not Done on Amerithrax

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I know that Rush Holt has already called for further investigation in the anthrax case, but having a Sub-Committee Chair at HJC make the same call might carry different weight.

Congressman Jerrold Nadler (D-NY), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, reiterated his call for an independent investigation into the 2001 anthrax attacks which killed five people and sickened 17.  He issued the following statement:

“Despite the FBI’s assertion that the case of the anthrax attacks is closed, there are still many troubling questions.  For example, in a 2008 Judiciary Committee hearing, I asked FBI Director Robert Mueller whether Bruce Ivins was capable of producing the weaponized anthrax that was used in the attacks.  To this day, it is still far from clear that Mr. Ivins had either the know-how or access to the equipment needed to produce the material.  Because the FBI has not sufficiently answered such questions, I join Congressman Holt in urging an independent investigation of the case.”