Questions for the FBI

Not all questions asked of the FBI would endanger the
anthrax case.  Some questions could help the public and
concerned scientists understand the situation more clearly,
and could result in getting better information from them.

1. Is there any reason to believe that the person who stole the anthrax must be the same person who mailed the anthrax?

If the FBI does not know exactly who did the crime and how it was done, how can they possibly know if the person who stole the anthrax is the same person who mailed the anthrax?  It could have changed hands.  The first scientist may have worked at some government lab, but the second scientist may be in  academia, a medical field or some other area where handling dangerous germs is routine.

If we are not considering the fact that the anthrax could have changed hands, scientists who have vital information may focus only on people who once worked on government projects at a government facility.

2. Can it be stated for certain that the anthrax in the first mailing was less-well refined than the anthrax in the second mailing?

The FBI needs to clarify the differences between the anthrax in the letters to the media and the anthrax in the letters to the Senators.  Without clarification, too many people are assuming that the anthrax was stolen from some government lab and used in the mailings exactly as stolen, without any further refining or processing.

All the speculation about cover-ups and government conspiracies stems from the idea that the anthrax was not processed or refined after it was stolen.  The official statements that the anthrax in the letters to the Senators was "more refined" is not sufficient information.  How did it differ?  Does it appear that it was the same anthrax but from different stages of processing?

3.  Could the anthrax have been refined in a non-government lab or a makeshift lab?

Around January 29, 2002, in letters mailed to 40,000 microbiologists, the FBI clearly stated, "It is possible this person used off-hours in a laboratory or may have even established an improvised or concealed facility comprised of sufficient equipment to produce the anthrax."  However, in an interview aired on CNN two months later, on March 27, 2002, Assistant Director of the FBI's Washington Field Office Van Harp said, "There are only so many people, so many places that this can be done." and "Contrary to what was initially out there at the beginning of the investigation, this anthrax, we do not believe, was made up in a garage or a bathtub."  These last statements appear to be taken out of context, but negate the previous statement and once again point the public's and scientists' attention back toward anthrax that could only have been processed in a government lab.

4.  Is there any evidence that the Florida anthrax is different from the New York anthrax?

Since the first anthrax case to hit the news occurred in Florida, and some al Qaeda lived in Florida, and some hoax letters were mailed from St. Petersburg, Florida, a large part of the American public and many in the media feel that the anthrax-laced letter sent to American Media, Inc., in Boca Raton, FL, was not part of the Trenton, New Jersey, anthrax mailing of September 18th.  Is there any evidence indicating the Florida attack was a separate attack from the anthrax letters mailed to NBC and The New York Post?

5.  Was there any trace of anthrax in the body of Ahmed Ibrahim Al Haznawi?

The body of the hijacker is being held in storage because no one has claimed it.  News reports say the government doesn't know what to do with the bodies of the 4 hijackers who died in the crash in Pennsylvania.  One of those hijackers is the man who had the lesion on his leg which Dr. Tsonas belatedly diagnosed as possible anthrax.  If the body is available, can it be tested to verify if Al Haznawi truly did have anthrax?  That diagnosis by Dr. Tsonas is the linchpin for most arguments that al Qaeda was behind the anthrax mailings.
 
 

PARTIAL ANSWERS?

In a New York Times article by William J. Broad and David Johnston dated May 7, 2002, some partial answers to the above four questions may have been provided.  The second question seems most clearly answered:

2.  Can it be stated for certain that the anthrax in the first mailing was less-well refined than the anthrax in the second mailing?

The New York Times article says, "Federal officials said the first wave of well-documented attacks with mailed anthrax — in letters from Trenton postmarked Sept. 18 to NBC News and The New York Post — was relatively crude. The powder was heavily contaminated, they said, with what biologists call vegetative cells — anthrax bacteria before processing in the laboratory turns them into hardened spores. Vegetative cells in dry anthrax powder are generally dead and therefore harmless, experts said."

The New York Times also said, "Deepening the mystery of the biological attacks that terrified the nation last fall, federal investigators have discovered that the anthrax sent through the mail, in general, grew more potent from one letter to the next, with the spores in the final letter to be opened —  the one sent to Senator Patrick J. Leahy of Vermont — the deadliest of all."

However, the FBI says the above comment is not true: "But there were no significant differences in the samples collected from the Senate letters, and there was no increase in potency or improvement in quality from one Senate sample to the next."  This comment is in the FBI's response to a New York Times editorial.

So, there were significant differences between the September 18 mailing to the media and the October 9 mailing to Senators Daschle and Leahy, but there was no difference in the anthrax in the two letters to the Senators.

The third question also seems to be partially answered:

3.  Could the anthrax have been refined in a non-government lab or a makeshift lab?

The article says, "Despite the increasing sophistication of the anthrax, investigators say they still judge that the deadly powder could have been made in any of thousands of biological laboratories, though getting the right starter germs would have been difficult."

The last part of that statement seems to support the idea (mainly mine) that the anthrax was stolen from a government lab by one person and then turned over to someone else who refined and mailed it.  But some die-hard scientist who apparently still loves the government conspiracy theory said the increasing potency of anthrax in the letters might suggest that the attacker was a thief who stole several samples.   "Maybe he didn't pocket one vial but two or three, if we're assuming this was an opportunist," this scientist said.

So, while the New York Times article partially answers question #3, it's clear that a defense attorney could have found experts who would have poked holes in the government's case.  But more recent articles in The New York Times and The Washington Post show that the anthrax in the letter sent to Senator Leahy was "newly made" - no more than two years old.   This seems to make it a near certainty that the anthrax was refined between Sept. 11 and Oct 9, 2001, somewhere.  It seems highly unlikely that it was a government lab, since such labs were probably in virtual lockdown at that time and any suspicious activity would be noticed.  The most likely place seems to be a non-government lab where things could proceed as always.

The full answer to question #4 may come soon:

4.  Is there any evidence that the Florida anthrax is different from the New York anthrax?

The article only says, "In the Florida case, no letter or residual powder was ever recovered, leaving many questions about the anthrax there."

While that statement seemed to imply that we’re never going to learn much about the Florida anthrax, it seems in conflict with other reports stating that the entire AMI building - all three floors - were thoroughly contaminated with spores.  The conflict must be the problem of having millions of microscopic spores scattered all over the place versus having a nice handy pile of them in one place.  I imagine it could take countless man-hours to collect a pile of microscopic spores once they’ve been scattered, and even then they'd only know about the spores they found, and they might not be able to state with certainty anything about the general size of the spores that were mailed.

Perhaps that is one reason why the FBI and the CDC are planning to re-enter the building.  A June 30, 2002, article in the San Antonio Express-News stated, "FBI investigators seeking additional clues into who's behind the deadly anthrax attacks last year are planning to re-enter the scene of the first crime, the sealed Florida offices of American Media Inc."  Judy Orihuela, a spokeswoman for the FBI field office in Miami, said agents want to look through the building, which has been quarantined since early October.  "Before, when we were there, we took samples," she said. "My understanding is that they want to be more thorough."

Another article in the Miami Herald dated Aug. 27, 2002, states that the work inside the AMI building will include tests to determine if the anthrax spores there are an exact match to the anthrax spores in the other letters.

If the FBI is building a circumstantial case against someone, it would seem vital to eliminate as many questions as they can that still remain about the "Florida anthrax".  Is it truly identical to the New York Post anthrax?  Can that be demonstrated satisfactorily in court?  Why did people at AMI get inhalation anthrax while the New Yorkers got cutaneous anthrax?  Etc.

*

While none of the questions has been definitively answered, the New York Times article also partially answers another question which I didn’t ask of the FBI:  What does the FBI hope to achieve from analyzing the spores?
 


CIRCUMSTANTIAL EVIDENCE

"Circumstantial evidence - Indirect evidence.
Facts and circumstances surrounding an event from which a jury
may infer other related facts.  Circumstantial, or indirect evidence,
tends to substantiate the main issues involved in a case, even if it falls
short of proving the case." - The Plain-Language Law Dictionary

When putting together a case against a scientist who has covered his tracks, the case would most likely be almost entirely circumstantial.

A newspaper columnist once asked me, "How can you think a case against someone with a surreptitious lab milling murderous materiel would be circumstantial only?"

I responded, "I think it's safe to assume that if the anthrax mailer had left behind any equipment or anthrax or anything else that was prima facie evidence, he'd be in jail by now.  After the second mailing, the anthrax mailer almost certainly cleaned up after himself.  He didn't leave equipment and anthrax spores all over the place.  He's a scientist - probably a microbiologist.  He knows how to clean up after himself."

When making a circumstantial case, it seems to me that you not only have to gather all the circumstantial evidence you can find that points to the culprit, you also have to make certain you can block any defense the culprit’s lawyers might assemble.

What kind of circumstantial evidence could the FBI have?

In a story by CBS back in February they said, "And after searching thousands of copiers in New Jersey where the letters were mailed, agents believe they've found the very one the killer used to make his duplicates by isolating the tiny scratches and smears unique to each machine."  This seems to be confirmed by a May 2002 article by Laura Rozen  who writes for salon.com.  Ms Rozen wrote "Already investigators have identified the Xerox machine used to photocopy the letters sent to Democratic senators, NBC, and the New York Post last fall, a source close to the investigation said.  The machine is 'publicly accessible' and is in New Jersey, but in what town or what facility was not disclosed."

Knowing what Xerox machine was used would be excellent circumstantial evidence if the suspect had access to that machine.  If the suspect had easy access and is known to have frequently used it, so much the better.

But can it be demonstrated in court that it is the same machine used to copy the anthrax letters?  Or is it just something that appears certain to FBI agents but cannot be scientifically proven?  Other sources are saying that the information about the Xerox machine is untrue, that the FBI is denying it.  It doesn't take much dispute for circumstantial evidence to become unsubstantiated opinion.

More possibilities for circumstantial evidence:

The suspect lives and works in central New Jersey.
The suspect has virtually unlimited access to a lab with the equipment needed to refine the anthrax.
The suspect was seen working in his lab in the evenings and on weekends between Sept. 11 and Oct. 9, 2001.
The suspect has voiced his concerns about America's lack of preparedness against biological attacks.
The suspect has access to a mailing list that includes the addresses of Senators Daschle and Leahy in same format as the anthrax letters.
The suspect is known to have met with a person who could have supplied the Ames anthrax.
The suspect is an inventive-type who could have developed totally new techniques for refining anthrax.
The suspect has published what could be considered to be a "manifesto".

All this might point to a single suspect, but none of it is prima facie evidence that would easily make a solid, convincing case in court.  I.e., it's no "smoking gun".   It's all circumstantial evidence.

His lawyers would use the following facts and questions in their cross-examination to one by one rebut each item of circumstantial evidence listed above:

Hundreds, maybe thousands of people use that particular Xerox machine.
Millions of people live in central New Jersey.
Thousands of people have access to labs with the equipment needed to refine the anthrax.
The scientist shouldn't be punished for working hard.
What scientist wouldn't be concerned about America's lack of preparedness against biological attacks?
Many people had access to the same mailing list.
Since when is it a crime for two scientists to meet over drinks?
Is it now a crime to be inventive?
The scientist published his concerns about biological attacks.  Is that a crime?

Plus the defense attorneys might be able to prove:

The defendant had no known access to Ames anthrax - other than meeting with people who did.
The defendant is a respected scientist and has no criminal record.

And they'd parade out dozens of respected citizens to testify that the defendant is of good character, respected in his field, and he would never never do something so terrible.

*

Assuming that the analysis on this web site is at least partially correct and that a scientist working at some professional lab in New Jersey managed to refine the anthrax in his lab on evenings and weekends:

If the trial had been held in the last week of April, 2002, the defense would probably have been able to bring to court dozens of esteemed experts to declare that the spores were so well refined that they could only have been processed in some sophisticated lab run by a government with a vast research budget.  The government's case would never get beyond such testimony.

But in the first week of May, 2002, we have new experts saying, "the deadly powder could have been made in any of thousands of biological laboratories".  Prior statements by William Patrick now seem much more important.

After more work at analyzing the anthrax, it’s very likely that a much better argument can be made to defeat any legal defense expert who comes forward to declare that it must have been done in a sophisticated government lab funded by the United States government or some foreign terrorist state.

Think what would happen if the government was putting on its case back in the last week in April and pointed to a defendant who only worked at Battelle, and who must therefore have stolen the Ames anthrax from Battelle.

What would happen to the government’s case if the defense brought forth a scientist with "solid evidence" that the anthrax originated at Dugway?  Answer: The prosecution’s case would be compromised, even if they had previously presented another scientist with "conclusive evidence" that it originated at Battelle.

It seems, therefore, that the examination of the spores and the hunt for everything that can be learned from the spores is not primarily intended to find the anthrax terrorist. It's difficult to see how knowing the source of the spores can pinpoint a single individual at that installation.  But such information can help create a solid legal case that cannot be lost to crafty defense lawyers pointing out remote possibilities and uninvestigated areas  that raise "reasonable doubt".

Or to put it another way, the FBI isn’t only analyzing the anthrax to prove who mailed the anthrax letters, they could primarily be analyzing the anthrax to make certain there are no surprises and no uncertainties that the culprit's defense attorneys can put together to defeat the government’s circumstantial case.

Which, of course, implies that they have a very good circumstantial case against who did it.  But they can’t go to court until they have pre-defeated whatever defense the anthrax terrorist’s attorneys are likely to muster.

Let’s hope that’s what’s going on.  I can’t prove it is.  My evidence here is only circumstantial.

Ed Lake
May 11, 2002
Updated Aug. 27, 2002

BACK

(c) 2002 by Ed Lake
All Rights Reserved