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Stephen Engelberg on the FBI’s Anthrax Case

In 2001, shortly after the 9/11 attacks, five people died after receiving anthrax-laced letters in the mail. This prompted the FBI to begin one of the largest criminal investigations in history – a $100 million case that ultimately identified Army scientist Bruce Ivins as the murderer just after he committed suicide in 2008.

Fast forward three years to July 15. Justice Department lawyers have now stated in court papers that Ivins’ lab did not contain the necessary equipment to create the powdered anthrax spores in the letters. The government, however, still maintains that Ivins is the killer – even though no actual anthrax spores were ever found in Ivins’ home and car.

As ProPublica, PBS Frontline and McClatchy Newspapers continue to focus on this case for a joint documentary, the podcast team welcomed Stephen Engelberg to this week’s show to explain the complexities behind Ivins’ case.

Read the full transcript below and listen to all of ProPublica’s podcasts on iTunes.

TRANSCRIPT

Mike Webb: Hi, I'm Mike Webb, and welcome to the ProPublica podcast. In the aftermath of the September 11 terror attacks, Americans were further unnerved by a series of letters that were mailed to senators and members of the media that contained anthrax in them. Five people who handled the letters died and at least 17 others were infected.

The mailings led the FBI to begin one of the largest criminal investigations in its history. In 2008, federal prosecutors declared that a scientist named Bruce Ivins, who worked at the government's biodefense labs at Fort Detrick, was the lone perpetrator of the crimes. Although doubts remain about Ivins' guilt, the FBI formally closed its investigation of the matter in 2010.

Joining us here today on the podcast is ProPublica managing editor Stephen Engelberg. Engelberg is the questioning dynamo that makes ProPublica hum. He's a Pulitzer Prize-winning journalist and the former investigations editor of The New York Times and the managing editor of The Oregonian.

While he worked as a report for The New York Times, he covered the anthrax case. And he's also the author of the book called "Germs" that he wrote with Judy Miller and Bill Broad.

He's part of the team of reporters from McClatchy Newspapers and PBS Frontline that reported on new developments in the anthrax case. And he's here to talk about them with us today. Welcome to the podcast, Steve.

Stephen Engelberg: Thanks very much.

Mike: All right, so let's start with that new development. Bruce Ivins is guilty of the attacks. Case closed, right?

Stephen: Well, of course, Bruce Ivins committed suicide before he was ever put on trial on these charges. His lawyers and many of his friends have continued to insist since then that had he ever been tried, he would not have been convicted, that the evidence was lacking.

Our documentary is exploring some of the questions that surround the investigation of the case and the investigation previously, which had led to the identification of a different suspect, Steven Hatfill, who was eventually cleared and paid a several million dollar settlement by the government for his troubles.

Mike: So the government is engaged in a lawsuit. Who brought that lawsuit?

Stephen: The lawsuit was brought by the family of the first gentleman to be sickened and ultimately killed by the anthrax letters: a man named Robert Stevens, who worked in Florida as a photo editor for the company that publishes the National Enquirer.

We never saw the letter that he opened, but it is understood from his colleagues that he did open a letter containing a strange powder. He then became ill with inhalation anthrax. And that anthrax matched genetically the other victims' anthrax. So we can be pretty sure that whoever mailed the letters to the senators and so on mailed this letter to Mr. Stevens.

His family went and sued the government claiming that since this came from a government lab, this must have been some amount of negligence on the part of the government for failing to safeguard this very dangerous germ.

Mike: OK, and the civil division of the Department of Justice is defending the government in the case. What did they do that raised a red flag?

Stephen: Well, exactly this. The government has many different kinds of lawyers. Some lawyers prosecute cases. They work for the criminal division and the U.S. Attorneys of the United States. It was criminal division lawyers who had developed the case against Bruce Ivins.

Other lawyers defend the United States from charges brought in civil cases, like this one, which was a $50 million lawsuit brought by the family of Mr. Stevens.

Now what happened is that in this case, they began to develop evidence that perhaps Ivins was not the guy. This complicated the case significantly. Originally, the family and the government had jointly stipulated that Ivins was the mailer of the anthrax letters and therefore all you had to do was look at his behavior to see whether the government was negligent about him.

But as the government's witnesses were questioned in this case, it became clear that several of them, Ivins' colleagues, were saying he could not have done this. The equipment was lacking in the laboratory. At that point, the family of Mr. Stevens withdrew from the stipulation and said, "Look. We're not going to accept that it was Ivins since his colleagues don't accept it. We're just going to say it was somebody in the government and we're going to try to work with that."

It was from that point forward that the civil division said, "OK. Well, Ivins couldn't have done it. We'll accept that. We'll accept what the government witnesses are saying here. But therefore, if he couldn't have done it, was that foreseeable? Would these supervisors know this? If he couldn't have done it and it wasn't foreseeable that he did it, then we can't be held liable for it.” [1]

It's a kind of complicated legal argument, but it could have been effective.

Mike: Would they have been better off if the Justice Department lawyers had been speaking and sort of coordinated a response?

Stephen: What happened next, just to continue chronologically here Mike, is that the government filed a statement that Ivins couldn't have done it based on these interviews. The civil division apparently had not spoken with the criminal division about what they intended to say.

And so when this appeared, criminal division lawyers were quite irritated, quite angry, and about 24 hours later they filed an amended set of things in which they corrected the statements. They said, "Well, Bruce Ivins is the guy who did it. And while he couldn't have done it in this specific place where there was special equipment to contain the germs, he might have done it somewhere else."

So they tried to repair the damage here. The problem is that those statements from the government scientists are still on the record. The statements are quite clear. In fact, they were helpfully highlighted by the civil division so all the key quotes were there for readers, which we read.

Mike: Is there substance to that statement, that Ivins didn't have access? Do we know?

Stephen: What we have in this case is a mystery. What the FBI would tell you is that Ivins is a very erratic guy, which is true. That he never should have had a security clearance, which is clearly true, that he was prone to sending letters to people under fake names, that he drove late at night to odd places, that he was obsessed with women from a particular fraternity. A woman had rejected him in college and he had a lifelong obsession with this fraternity whose national offices happened to be across the street from where one of the letters was mailed from. [2]

All of this sounds very, very suspicious. Ivins is a quite viable suspect. The problem is that he made this very buoyant, floaty anthrax and they've never been able to find a single spore of it on searching his clothing, searching his car, searching his home, and even searching his laboratory where reportedly this was made.

So you have a mystery. You have no forensic evidence linking Bruce Ivins to this crime. You have a powerful and significant circumstantial case, but a lack of forensic evidence. This raises the question of perhaps the reason there's no forensic evidence is that he didn't do it.

Mike: The National Academy of Sciences (NAS) also cast out on Ivins' guilt, as well, did they?

Stephen: They raised questions about the science behind this. They said that some of the genetic analysis which had linked the anthrax spores to a specific beaker of anthrax stored in Ivins' office and created by Ivins might not be as definitive as the FBI had suspected or has asserted.

I think the NAS report doesn't really settle anything. It just deepens some of the questions around this. It added to the mystery. There are people today who believe that the Kennedy assassination remains unsolved. Is this going to be a scientific version of the Kennedy assassination? I think that's possible.

Mike: What happens next with this particular case?

Stephen: The case, of course, is continuing in civil court in Florida. It will be very interesting indeed to see how the judge and ultimately a jury react to the fact that two different versions of the facts were filed by the United States government. You can be certain that the Stevens’ family lawyers are going to make hay out of that.

Mike: Will we ever know what happened?

Stephen: You know, you never want to say never about a matter like this. I think there are things yet to know about the Ivins case and our team with Frontline and with McClatchy is continuing to try to unravel what we feel is a mystery.

Now the FBI, in fairness to them, has a powerfully argued case. They've put many records and documents and interviews on the record. You can now go online and read to your heart's content about this. I want to make it clear they had good reason to suspect Bruce Ivins. But we are continuing to follow up on leads that suggest both his guilt and also his innocence.

Mike: All right. Thank you very much for joining us, Steve.

Stephen: My pleasure.

Mike: That was ProPublica managing editor Steve Engelberg.

The anthrax stories were co-written by Greg Gordon of McClatchy Newspapers, Mike Wiser of Frontline, and Engelberg. You can read all of their reporting at ProPublica.org/anthraxreport.

And now, our "Officials Say the Darndest Things Tumblr Quote of the Week."

"We're very concerned that this is essentially an entity funded around Congress, and yet it has the ability to bully banks." Who said it? House Oversight Chairman Darrell Issa, explaining why he has a problem with the Consumer Financial Protection Bureau.

All right, that's it for this week's show. Thanks to Minhee Cho for producing it, and thanks to you for listening. For ProPublica, I'm Mike Webb. We'll see you next time.

Transcription by CastingWords

1. The Civil Division never actually said that Ivins could not have done it, but they noted that the Army Medical Research Institute for Infectious Diseases did not have the specialized equipment in a containment lab.

2. Engelberg meant to say “sorority,” not “fraternity.”

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