Journalism in the Public Interest

Justice Department Retracts Court Filings That Undercut FBI’s Anthrax Case

The unusual seven-page correction, hurriedly filed in federal court in Florida, does not erase testimony from government scientists who challenged the FBI’s finding that Bruce Ivins mailed anthrax-filled letters that killed five people in 2001.


A research at the Army's Fort Detrick, Md., biomedical research laboratory opens the anthrax-filled letter sent to Sen. Patrick Leahy, D-Vt. (FBI)

This story was co-published with PBS Frontline and McClatchy.

WASHINGTON -- Rushing into court to undo a major blunder, Justice Department lawyers defending a civil suit Tuesday retracted statements that question the FBI's finding that a former Army microbiologist mailed the anthrax-filled letters that killed five people in 2001.

But the unusual seven-page correction, filed in federal court in Florida, does not erase testimony from government scientists who challenged the FBI's finding that the late Bruce Ivins was the perpetrator.

The department's legal dance stems from its two seemingly conflicting roles: backing up the FBI's finding that Ivins, who committed suicide in July 2008, was the killer; and defending an Army bio-weapons lab at Fort Detrick, Md., against allegations of negligence.

The department's Civil Division is attempting to limit federal liability over the death of the first anthrax victim, a Boca Raton, Fla., man whose family is seeking $50 million in damages for alleged negligence by the lab at the U.S. Army Medical Research Institute of Infectious Diseases (USAMRIID), where Ivins worked on anthrax vaccines.

In trying to minimize USAMRIID's liability, government lawyers have had to walk a fine line, because the FBI says Ivins produced the anthrax powder at the facility while the civil lawyers seemed to suggest it could have been prepared elsewhere.

Tuesday's retraction came a day after a collaborative report by McClatchy, the Public Broadcasting System's Frontline news magazine and ProPublica, disclosing what appeared to be an explosive Justice Department revelation.

In a legal filing last week, department lawyers in the civil case said that the lab lacked the "specialized equipment in a containment suite" needed for Ivins to have dried the deadly powder.

That and other statements raised hackles at the FBI and among prosecutors in the criminal case, leading to hurried huddles at the Justice Department.

In a statement Tuesday, department spokesman Dean Boyd said that Civil Division lawyers had submitted "inaccurate information" and that "the Justice Department and FBI stand behind their findings that Dr. Ivins had the necessary equipment in the containment suite" to produce the spores.

They noted that Ivins had ordered his own machine, known as a lyophilizer, that could be used for drying anthrax spores. The machine was labeled "property of Bruce Ivins" and was located in a nearby biocontainment suite.

Although it amended the filing, the Justice Department could not take back what government scientists had said in sworn depositions.

Stephen Little, a technician at the Army lab, was asked whether the equipment could have been used to make the dried spore preparation used in the letters.

"Not any equipment I have seen," Little replied.

Little said that there was "no way" Ivins could have moved the lyophilizer to the into the biocontainment suite, where Ivins' lab space was located.

"The thing is as big as a refrigerator," Little said.

Another scientist, Susan Welkos, said, "We don't have any way to produce the massive amount of (anthrax) material that would have been necessary to grow up and dry in a way that wouldn't have killed everybody in the institute."

Both quotations were highlighted by Justice Department lawyers in their submission to the court last week.

Friday's filing also said that Ivins sent anthrax from a flask in his lab—a flask that the FBI contends provided the parent material for the letter anthrax—to two outside laboratories, the Battelle Memorial Institute in West Jefferson, Ohio, and a lab operated by BioPort in Lansing, Mich.

The amended filing said that Ivins sent the spores only to Battelle, narrowing the number of parties who might have been considered suspects.

Boyd said that the department and the FBI "have never wavered from that view that Dr. Ivins mailed the anthrax letters."

Ivins overdosed on Tylenol and two other drugs not long after learning that federal prosecutors were preparing to indict him on capital murder charges.

It was unclear how the court filings by the Civil Division ended up so at odds with the narrative developed by prosecutors, and the department did not offer an explanation.

Elizabeth Ferrari

July 19, 2011, 9:29 p.m.

The FBI has no case.  They can’t credibly assert that Bruce Ivins had control of that vial which turns out to be two vials that many people had access to.

No expert agrees with them, not even their own.  Claire Fraser Liggett said publicly that science alone cannot prove this case and their “new science”  turned out to be a lie told to the Senate.

Someone please stick a fork in this multiply botched investigation.  The Ivins family deserves an apology at a minimum.  As does the American people.

And let’s not forget the context in which these “anthrax attacks” took place. They were crucial in stampeding the misnamed Patriot Act through Congress without debate. Others people had motive as well as means.

There is another filing of interest in the past week relating to the DOJ’s prevention of the deposition of its expert who argued Dr. Ivins was guilty based on him having creepy interests.

The Pulitzer may go to the write-up of this issue of what Dr. Ivins was doing on those nights. The documents were only recently produced to me under FOIA.

We need less speculation and more focus on the documentary evidence.

Lewis Weinstein

July 20, 2011, 11:25 a.m.

The FBI’s pathetic case against Dr. Bruce Ivins is finally starting to unravel, after years of FBI/DOJ stonewalling and improper restriction of documents which should have been released under FOIA. And when it does, perhaps we’ll learn what it is the FBI has been keeping from the American people. For extensive information, documents and analysis on this case, check out the CASE CLOSED blog at ...

Ivins as an individual, therefore,it Is not the policy of the FBI/DOJ to represent individuals.

Man…who is in charge of PR for the DOJ?

If these actions - introducing evidence that put the lie to another case and then withdrawing that evidence to permit successful prosecution in the other case regardless of the evidence - are intended to do anything other than convince the American people that the Federal government prioritizes convicting defendants over ethics, morality, and justice then they failed.


I suppose my initial question should have been “Man…did the DOJ retain Alberto Gonzales as a consultant on ethics and morality?”.

And now the DOJ has mishandled the Roger Clemens matter.

Barry Schmittou

July 20, 2011, 7:15 p.m.

The Justice Department was probabaly distracted by the 32 Non Prosecution agreements they gave big businesses in 2010.

If you scroll down to page three of the following link and look in the second column you’ll see many of the crimes are health care or financial fraud and kickbacks committed by multiple corporations !!

The Corporations paid big fines for the privilege of not being prosecuted, BUT the bid rigging and other crimes continue !!

Here’s the link :

JP Morgan also received a non prosecution agreement for bid rigging in 31 States on July 6, 2011.

Here’s a quote from the U.S. Department of Justice :

“From 2001 to 2006, certain then-employees ofJPM at its municipal derivatives desk (which was closed by the Company in 2008) and/or predecessor desks entered into unlawful agreements to manipulate the bidding process and rig bids on certain relevant municipal contracts, and made payments and engaged in other activities in connection with those agreements, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and certain sections of Title 18 of the United States Code”

The full agreement can be seen at :

AND JP Morgan received another agreement from the SEC. Here are quotes from ProPublica :

“The $154 million settlement the Securities and Exchange Commission wrested from JPMorgan Chase involved only one of more than two dozen mortgage securities deals that the hedge fund Magnetar helped create. As we detailed last year [1], many banks in the waning days of the boom created collateralized debt obligations, or CDOs, with the help of Magnetar, which also bet against many of the same investments.”

The full article can be seen at

Prudential Insurance, Unum Insurance, and MetLife also committed similar violations regarding health care plans and also received Non Prosecution agreements !!

In 2008 Metlife Executive Vice President James Lipscomb gave President Obama $30,000 for his victory party.

MetLife’s third Non Prosecution agreement is signed by MetLife’s James Lipscomb !!

See evidence at :

Stephanie Palmer

July 21, 2011, 4:42 a.m.

There is no evidence. Whatever was being produced by the FBI had to have been manufactured by them at the behest of the Bush administration. This is very much like the aluminum tubes they said had to do with nuclear weapons which took us into a 10 year war. This administration should settle this case and drop all further efforts at trying to solve it. All we have to do is sit by and do nothing about any of this in order for the very secretive Bush administration to win. This country has come far too close to being a police state. I for one am extremely uncomfortable just living my daily life.

DOJ ain’t getting it done but Ivins and Clemens are both quite likely guilty of the charges brought against them.  Truth and justice are often separate matters.  Procedural blunders ruin cases, defense team blunders result in endless appeals.  It’s a skewed system that, in the end, works.  However, as we observe it let’s not ignore the truth when reveling/moaning about system errors.

Science writer Laurie Garrett explains in I HEARD THE SIRENS SCREAM (July 18, 2001)

“The FBI’s mysteriously withheld 641 pages of evidence did little to sway the NRC, which issued its damning and final conclusions on February 15, 2011.  But there were two blockbusters revealed in those 641 pages, pointing to a possible al-Qaeda connection with the anthrax mailings.

First, among the bodies recovered from the United Flight 93 crash site were those of Ziad Jarrah, Ahmad Al Haznawi and the two other al-Qaeda hijackers thwarted by brave passengers in their attempts to crash the jet into the White House.  PCR analysis was performed in 2001 on the hijackers’ tissues, testing positive for Bacillus anthracis.  The FBI thought the USAMRIID finding was due to lab contamination, and had the tests repeated at an alternative U.S. Army facility, which did not find evidence of anthrax.  But the NRC scientists felt it was possible that the negative finding was the result of sampling error (the part of the body that was tested).

This possible anthrax finding was especially interesting because Ahmad Al Haznawi was the al-Qaeda member that sought medical help in the emergency room of the Ft. Lauderdale Holy Cross Hospital on June 22, 2001.  Dr. Christos Tsonas treated Al Haznawi with antibiotics for a black crusty sore on his hand, which was after 9/11 retrospectively diagnosed as a possible case of cutaneous anthrax infection.

The other revelation in the 641 pages was evidence related to three 2004 searches for anthrax spores carried out by the FBI and “other intelligence partners” in an “overseas location” used in 2001 by al-Qaeda.  Though the location is classified, it appears to have been Afghanistan, where U.S. Special Forces found two al-Qaeda related laboratories, one in Kabul and the other in Tora Bora, where Osama bin Laden successfully dodge American capture in December 2001?”

[Comment:  Tora Bora?  Kandahar.]

The three different rounds of swabbing, soil sampling and testing yielded contradictory results, some positive for anthracis, some negative. Adding to the confusion, another unnamed U.S. intelligence agency scoured the location before the FBI first reached the site, not only finding anthrax, but the Ames strain.  The Ames-type Bacillus anthracis is a form of the bacterium never previously found in Asia.  Further details of the possible al-Qaeda role in Amerithrax remain classified, and were not provided to the NRC.

One point stands out:  The primary two rounds of testing, first by an unnamed intelligence agency and then by the FBI, came up positive for Ames strain anthrax, while the second two were negative.  It cannot be ruled out that the first two rounds of swabbing and sampling were so thorough that little Bacillus anthracis remained to be found in the final pair of investigations.

Given the passage of time between putative use of the al-Qaeda lab and the four separate rounds of scouring and swabbing, including ultimate removal of entire sinks and plumbing for laboratory testing back in the U.S., the NRC said the FBI findings were, “inconclusive regarding the presence of B. anthracis Ames at the undisclosed site.  Several scientific and technical issues should be explored in more detail.”  The entire issue of possible al-Qaeda involvement in the 2001 anthrax attacks “deserves a more thorough scientific review,” the NRC said.

Life would be a lot simpler if there were not any individuals, corporations, and nations vested in pointing the finger at radical Islam. way needs to catch up to the needs of democracy and provide us with a device that we can just slap on the head of anybody who makes an accusation or offers up advice or a conclusion….something that lights up and rings a buzzer if said individual is lying or simply withholding evidence in order to benefit a special interest.

We’d have to get a whole new crop of politicians in most “democratic” countries, but it would be worth it.

This article is part of an ongoing investigation:

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