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m. Source of Fishy, Shaggy Dog Stories That Derailed Public Understanding Of Investigation Pleads Fifth While His Daughter Represents Al-Timimi Pro Bono In early August 2002, the head of the District of Columbia Field Office initiated a leak investigation related to Amerithrax information. The first leak investigation concerned leak of bloodhound story to Newsweek (according to email discussed in deposition of lead prosecutor Daniel Seikaly in which he repeatedly pled the Fifth Amendment). A memo from DC Field Office head Van Harp read:
The investigation was closed in October 2002. The memo read:
After a January 9, 2003 "exclusive" report by ABC's Brian Ross that the FBI was focusing on Hatfill and was going to conduct a second round of interviews with other former and current government scientists so that they might rule them out by the process of elimination, the FBI initiated a second media leak investigation. This time it was to proceed with "extreme zeal."
In October 2007, the former Criminal Chief of the U.S. Attorney’s Office for the District of Columbia, Daniel Seikaly, was deposed in the civil rights action by Steve Hatfill about whether he was the source of leaks relating to Steve Hatfill in connection the use of bloodhounds in the anthrax investigation and the draining of ponds in Frederick, Maryland. Key stories appeared in Newsweek and Washington Post. Attorney Seikaly pled the Fifth Amendment against self-incrimination in connection with most substantive questions. Attorney Seikaly has had a very distinguished career. In 2001, Mr. Seikaly went from being Assistant Inspector General for Investigations at the Central Intelligence Agency to Criminal Chief of the U.S. Attorney’s Office for the District of Columbia. There he supervised eighty-five Assistant United States Attorneys involved in the prosecution of all federal offenses in the District of Columbia. He also served as a technical expert for U.S. Department of State funded rule of law programs in Croatia, Estonia, Kazakhstan, and Thailand. Before accepting the appointment to Criminal Chief of the U.S. Attorney’s Office for the District of Columbia, Mr. Seikaly was Assistant Inspector General for Investigations at the Central Intelligence Agency. While with the CIA, a profile at his current law firm’s webpage explains, “he conducted and supervised numerous investigations concerning allegations of misconduct by employees, contractors and vendors involved in CIA programs. In that position, he routinely interacted with senior officials within the intelligence community, other executive branch agencies and Congress concerning intelligence investigations.” The profile continues: “From 1996 to 1998, Daniel served as an Associate Deputy Attorney General at the Department of Justice and was Director of the Department’s Executive Office for National Security. There he was responsible for the coordination and oversight of the national security activities of the Department of Justice, including intelligence operations, international law enforcement, relations with foreign countries and the use of classified information. Reporting directly to the Attorney General and Deputy Attorney General and acting with their authority in national security matters, Daniel was a primary point of contact between the Department of Justice and other executive branch agencies with national security interests such as the National Security Council, the Department of State and the Department of Defense.” His daughter has represented Ali Al-Timimi pro bono in defense of his prosecution for sedition. One USA article concluded: “One of the law enforcement sources says investigators sometimes wonder whether they focused on Hatfill too soon and ignored someone who deserved more attention. So much has gone into investigating Hatfill, the source says, that abandoning the focus on him ‘would be like starting all over.’ ” The press has been so focused in defending itself from the charge that it was unfair to Dr. Hatfill — and law enforcement officials have been so chastened by the civil rights suit brought by Dr. Hatfill — that five years ago there stopped being meaningful coverage of Amerithrax by the mainstream press altogether. Given that it seems the press nowadays only ever has the budget to take spin handed under the table to them by government officials anyway, perhaps the First Amendment is not as worth prioritizing, in the balance of competing interests, as it used to be. The wisdom of the fictional City Desk Editor at the Baltimore Sun on the HBO’s series “Wired” in parsing out such First Amendment issues involving competing considerations — and that of Professor Archibald Cox — will be sorely missed. n. A Wiretap Balancing Act: The New Legal Regime That The White House Forgot To Tell The FISA Judges About All 1228 applications presented to the Foreign Intelligence Surveillance Court in 2002 were approved. During calendar year 2001, 932 applications were made to the Foreign Intelligence Surveillance Court for electronic surveillance and physical search. The Court approved 934 applications in 2001. Why did the White House perceive the FISA Court as such a roadblock? There was a November 2007 filing unsealed in the prosecution of Dr. Al-Timimi that discusses the USG’s suspicion of him regarding anthrax weapons. It copies the counsel of record who is the daughter of the Amerithrax prosecutor who was hyping the “POI” of the other Amerithrax squad.
Dr. Al-Timimi’s counsel continued:
Ali Al-Timimi’s counsel Turley said in a interview. “It’s possible that prosecutors had no idea of the origin of this evidence.” Former WTC 1993 prosecutor Andrew McCarthy has noted, “When, moreover, there is any dispute about whether a sensitive piece of information needs to be disclosed, the decision ends up being made by a judge on the basis of what a fair trial requires rather than by the executive branch on the basis of what public safety demands.” McCarthy explained in connection with the earlier prosecution relating to the bombing of the World Trade Center: ”Much of the CIA’s knowledge, particularly that drawn from its covert operations, is top-secret intelligence. When an Agency analyst gives the kind of briefing I needed on Afghanistan, it is certain to be based on at least some classified information, including intelligence from deep-cover operatives, from foreign countries, and from electronic surveillance the CIA was lucky enough to set up on just the right telephone or meeting place. Such intelligence is sometimes confined to a circle so tight its revelation would blow its source.” Carl W. Tobias, a law professor at the University of Richmond, told The New York Times that a question of balance would be central in how judges rule on the scope of the spying program. “I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants,” Tobias told the Times. “I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security.” Eric Lichtblau’s BUSH’S LAW: The Remaking of American Justice (2008) is extremely good. But what one learns from the book is that not even the DOJ #2 (who was in charge of signing off FISA requests) knew of the NSA’s wiretapping. Only Ashcroft knew and White House people. In the Al-Timimi prosecution, what was needed was certification by the head of NSA regarding the production. The DOJ prosecutor Kromberg, otherwise, is in the position of being dependent on what he is being told by his client. Al-Timimi’s Turley was always top-flight but under the New Administration and as a regular guest on the influential Rachel Maddow show, he was an especially formidable opponent. Given the way the Administration misstated the facts in urging the NYT not to publish about NSA wiretapping, it would not be surprising to learn that they did not merely intercept incoming calls of international interest but instead captured all of the target’s calls. It would not be surprising to learn it started 9/11 rather than 10/7 after President Bush signed an executive order. The issue all relates back to anthrax, actually, given that the Administration knew US biodefense had been infiltrated but had reason to be embarrassed by the close connection of the White House Chief of Staff to the surveillance target. It put the Administration in an untenable and politically embarrassing position — it made their position on Iraq and WMD a house of cards. In mid-December 2008, senior 56-year-old Department of Justice employee Thomas Tamm, identified himself as a key whistleblower in a cover story in Newsweek. He first became troubled in connection with working on the capital case of Zacarias Moussaoui (which was before the same judge as Al-Timimi). He became increasingly troubled when in a new position he was reading CIA cable traffic that seemed to suggest that officials knew that suspects rendered to particular countries were being tortured. That is precisely part of the reason, the leaders of Egyptian Islamic Jihad and the lawyer for the Blind Sheik Abdel-Rahman explained,that Ayman Zawahiri was going to use anthrax against US targets. The Department of Justice is finding it hard to face up to the infiltration that was allowed to happen under the watch of the prior Administration(s). It is far easier to blame the anthrax mailings on the dead guy who is not here to defend himself. o. Nano Is Now: Microencapsulation of the Matter In December 2001, the CIA obtained the record of a request by Ayman Zawahiri to Al Qaeda’s military commander, Egyptian Mohammed Atef, for a book that extensively featured Dr. Ken Alibek and discussed the method of microencapsulation, the method that may have been used in aerosolizing the Daschle and Leahy anthrax. The FBI and CIA very likely were motivated to continue wiretapping Ali Al-Timimi’s phone and email to pursue this lead. According to Ali’s lawyer, he was in contact with folks associated with Al Qaeda’s network including Bin Laden’s sheik (the subject of Bin Laden’s 1996 declaration of war) immediately before and after the first anthrax mailing. According to his lawyer, Ali even met with the “911 imam” to discuss a planned hand delivery of a warning to every member of Congress on the first anniversary of the anthrax letters to the Senators. The book that Ayman asked Atef to get (and it is sold by Amazon) explains:
They continued:
Such a coating is used in pharmaceuticals and functional animal feedstuffs, for example, to avoid the destruction by enzymes before reaching the target organ. A thesis written by Dr. Alibek’s assistant — who the directory from 2002 shows was a couple doors away from Ali Al-Timimi — says if silica was detected it would have been used for this purpose of encapsulation. The author, Dr. Crockett, also acknowledges the help of FBI’s Amerithrax consultant, William Patrick. There was more than one bioweapons thesis by an assistant to Dr. Alibek at GMU’s Center for Biodefense that thanked Dr. Patrick. The forensic finding set the respective squads off in alternative investigative directions. One squad focused on, for example, Hatfill, friend of William Patrick who might have learned a trick or two. Another squad focused on Al-Timimi, who also might have learned a trick or two from the same fount of knowledge — given he shared the same water fountain with Dr. Alibek and Dr. Bailey. In fact, curiously, it now appears that both Al-Timimi and Dr. Bailey worked at SRA. I spoke to Ali’s wife, who was very gracious, but until and unless cleared by counsel, she is not able to discuss why Ali had a high security clearance for mathematical support work for the Navy while at SRA . VII. Sunshine: The Best Disinfectant
With the closing of Amerithrax apparently imminent -- but some of us still not persuaded that the DOJ has yet released any probative evidence -- I am hoping that journalists and others, upon the closing of the case, will submit fruitful and well-crafted FOIA requests to a variety of state and federal agencies. It matters a great deal what you ask, how you ask, and who you ask, but the actual process is very easy. And I recommend that we then pool the results, with anyone sharing their returns receiving unrestricted access to the pooled returns. Here is a USAMRIID web page with responses to media requests made to date.
Responses to one FOIA request then often can lead to more targeted (and thus more fruitful) follow-up requests. The first 100 pages are free and in the case of the USARMIID requests have been waived. Some agencies now permit emailed requests. Here is a first draft of resources (please email with additional ideas). Here is a form generator provided by the Reporters Committee for Freedom of the Press. Unwarranted objections or redactions can be appealed. Suit can be filed to enforce compliance. The information officers appointed to review requests are often politically-minded and so even apart from the importance that the investigation be closed, there might be reason to hold off on FOIA requests until January 20. Observers do not agree on our theories of the case -- but I think we all love documentary evidence. A requester may be charged document duplication costs only (above 100 pages) -- and not search costs -- "when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media." FOIA requesters falling into one or more of these three subcategories of requesters under the 1986 FOIA amendments enjoy a "exemption" from the assessment of search and review fees. Their requests, like those made by any FOIA requester, still must "reasonably describe" the records sought in order to not impose upon an agency "an unreasonably burdensome search." According to the US DOJ, ["t]his fee category, though, includes freelance journalists, when they can demonstrate a solid basis for expecting the information disclosed to be published by a news organization") Dr. Zawahiri accomplished the attack on the US "structure" he intended. With the planes, Al Qaeda struck the US trade dominance (World Trade Center) and its military might (Pentagon). With the anthrax, some US-based supporter(s) of the goals of Zawahiri rounded out the field that they imagine provides support to Israel -- the legislative branch and media. Analogous letter bombs were sent in connection with the earlier attack on the World Trade Center and the imprisonment of the Blind Sheikh and militant islamists responsible for that attack and a related plot. Thus, relying on the postal service to send its deadly missives in connection with an earlier attack of the World Trade Center is not only Al Qaeda's modus operandi, it is its signature. Everyone approaches a problem from their world view and what they know. A hammer tends to find a nail. Biological weapons control activists see a US biodefense insider. Anti-semites saw Zionist perpetrators. US-haters saw a CIA conspiracy. The CIA's Zawahiri Task Force saw a US-based supporter of the militant islamists (at least they do if they are smart). Israeli intelligence and the Iraqi National Congress lobbied for Iraq as the culprit. Liberal Beltway insiders see right-wing wackos. The head of the criminal division at the US Attorney's Office in charge of the investigation apparently was a Palestinian activist like his sister-in-law (and perhaps brother). FBI investigators, divided into squads pursuing the two main alternative hypotheses, seemed to be covering all the possible leads, leaving no stone unturned. Journalists quite reasonably kowtowed to the views of any government source in the investigation they deemed reliable. It is not surprising that they were mislead by leaks by someone who would have been presenting any indictment to the grand jury. When journalists at the leading publications repeatedly chose to rely on a single well-placed source, the investigation would continue to be seriously misdirected at the whims of the leaker. But sometimes if a spokesman for Al Qaeda claims it has green-lighted highly-educated US-based supporters of the militant islamists who have access to United States government and intelligence information relating to biological weapons -- supporters who are "above suspicion" -- then the spokesman may be telling the truth. Sometimes if it walks like a duck and quacks like a duck, it's a duck. Given that the two FBI investigative squads were compartmentalized and not even aware what the other investigative squad was doing, how was there seamless cooperation between the CIA and FBI? How can the investigators on the one squad judge the quality of their analysis? How can the scientists on the third forensics squad know how they are being used in putting out the spin? In light of politicization of the US DOJ, how can one say that the compartmentalization has not been used to serve political or personal or financial interests -- rather than a legitimate law enforcement purpose? Why didn't Dr. James Burans' negotiation of his job with Battelle, a key recipient of the Ames strain from Ivins' flask, constitute a disqualifying conflict of interest from future participation such as at the August 2008 press conference in which he guided answers? Separately, doesn't the fusion of the intelligence function with the law enforcement function at the DOJ lead to an inevitable undermining of public confidence in the Administration of Justice? Why shouldn't we just understand it is an intelligence operation -- a stimulation exercise intended to generate leads through deception. And if the DOJ claims it did not know Aafia had been subject to CIA and ISI questioning for a year, that brings us back to this claimed seamless cooperation between the CIA and FBI. Most of all, where is the evidence that Bruce Ivins was responsible? I haven't see any yet. I just see a theory that is weaker than even a Hatfill Theory on which they paid $5.8 million. Like Ken Alibek said, it's not rocket science. Ayman's plan established by the documentary evidence seized in Afghanistan was to use the cover of charities and universities. Al Qaeda's Mohammed Abdel-Rahman had fellow IANA speaker Ali Al-Timimi availalable to recruit. A December 1998 PDB had said that Mohammed Islambouli was going to send someone to make contact with people in the US to carry out attacks. In mid-2000, KSM and Islambouli apparently eventually sent bio-chem operative Al-Marri from Saudi Arabia, where his family had moved from Doha, Qatar. Al-Marri had been with both KSM and Islambouli. After Al-Marri was done casing New York City targets with UK operative Dhiren Barot, he had his computer sent from Macomb, Illinois to Washington. In the summer of 2001 went to UAE to receive $13,000 from Al-Hawsawi whose laptop had the spraydrying documents. Upon returning to the United States from Pakistan the next year on September 10, 2001, Al-Marri maintained contact with Al-Hawsawi. Al-Hawsawi also handled financial logistics relating to the 9/11 hijackers. Like Tenet said, anthrax planning was in parallel with the 9/11 planes operation. To close the Amerithrax case, the key question: where in Washington did Al-Marri have his computer sent? In the Washington, D.C. area, Taliban supporter Ali Al-Timimi worked in the same building as famed Russian bioweaponeer Ken Alibek and former USAMRIID Deputy Commander and Acting Commander Charles Bailey, who had co-invented a process using hydrophobic silica to lead to greater concentration of a biological agent. Dr. Bailey has been a prolific Ames anthrax strain researcher. Dr. Alibek and Dr. Bailey had multimillion dollar grants from DARPA funding a contract with USAMRIID with Delta Ames supplied by NIH. NSA intercepts showed that Ali Al-Timimi was working with Bin Laden’s sheik al-Hawali, who had been the subject of Bin Laden’s 1996 Declaration of War and his 1998 claim of responsibility for the embassy bombings. Timimi has been sentenced to life plus 70 years before his conviction was reversed and remanded. Bilal Philips had been Ali’s mentor and the father of Jafar the Pilot had been Bilal Philips’ mentor. Ali Al-Timimi shared a fax machine with famed Russian anthrax bioweaponeer Ken Alibek and former USAMRIID deputy commander Charles Bailey, who is listed as an author on various articles reporting biodefense research using virulent Ames strain of anthrax. Dr. Bailey had worked with the Defense Intelligence Agency (”DIA”) for years on threat assessment of biological weapons. Both he and Dr. Alibek had consulted for Battelle, world renown for its expertise on anthrax aerosols. They had co-authored the patent filed in mid-March 2001 on concentrating biological agents using silica in the growth medium that was still confidential as of Fall 2001. Both Dr. Bailey and Ali Al-Timimi had a high security clearance while working at SRA in 1999. Al-Timimi was doing work on a Navy contract. CIA Director Tenet, in a May 2007 book, notes that the CIA was startled to learn that the anthrax planning had been done in parallel with the 9/11 planning. Indeed, it was the laptop of Hawsawi, who was KSM’s assistant who sent and received money from the hijackers, that had the anthrax spraydrying documents on it. In fact, KSM was not really captured on March 1, 2003, when the laptop was seized, as the Pakistanis claim. He apparently instead was captured on or about February 13, 2001 at the time the blind sheik’s son was grabbed, based on a report Zahid Hussain sourced to a police official. Intelligence officials just wanted the two weeks to get leads on those planning attacks. The family members of the bacteriologist who owned the home where Hawsawi and the laptop were taken have always stridently claimed that KSM was not captured there. Two weeks later authorities raided Al-Timimi along with drying and processing experts. In June 2003, a UN report explained that Al-Qaeda “WMD Committee” — Mohammed Abdel-Rahman was one of its three members — “is known to have approached a number of Muslim scientists to assist the terrorist network with the creation and procurement of chemical, biological, radiological and nuclear weapons.” Al-Timimi apparently was one such scientist but there were others. Information permitting a resolution of the Amerithrax matter -- the identify of the processor(s) and mailer -- likely will come from the numerous individuals, now arrested, who may have played a role or known something. It likely will stem from those with a personal knowledge of Al Qaeda, and not those with an ideological or political axe to grind, whether against Iraq or militant islamists, in favor of establishing a Palestinian state, or against the US biodefense establishment or current federal Administration. The perps likely at some point have expressed upset at the detention of the Blind Sheik or been personally affected by the detention of friends or family. Although the analysis by the Institute for Genomic Research (TIGR) in Rockville, Md. did not pinpoint the exact origin of the Florida isolate, the study showed how whole-genome sequencing technology and computational methods can be a powerful approach for analyzing anthrax and other bacterial outbreaks. Similarly, while the anthrax perpetrator(s) may never be caught, the Amerithrax investigation was hard fought by investigators who realized that the next 9/11 might be at issue. As they heard Ayman Zawahiri's recurring threats of attack, the Amerithrax investigators likely remained haunted by coincidences that they tirelessly pursued while they left no stone unturned. Amerithrax investigators emphasize that there is no cover-up -- no conspiracy. The investigators at least once were under intense pressure to solve the case. Giving the government the benefit of the doubt, and putting aside whether anyone will be prosecuted criminally for leaks, the information that was withheld was presumably for reasons of national security and safeguarding the integrity of the confidential criminal investigation. In 2003, anthrax lab tech Yazid Sufaat’s assistants were captured. “Extremely virulent” anthrax was found in Afghanistan after Hambali was harshly interrogated in Jordan. Ron Suskind in One Percent Solution reports that it was unweaponized but authorities knew it could be readily weaponized and had predated 9/11. It was highly concentrated. After these and other developments, conspicuous surveillance was called off on US scientist Dr. Steve Hatfill in late 2003. In the Summer 2006, the “911 Imam” Awlaki (Aulaqi) from Falls Church, Virginia was arrested in Yemen and held for 18 months. Awlaki met both in San Diego and in Falls Church with hijacker Nawaf who had been at the planning meeting in January 2000 at the condo of anthrax lab director Yazid Sufaat. 911 planner Ramzi Bin-al-Shibh had the telephone number of Awlaki’s mosque. CIA Director Tenet in his 2007 book says authorities were startled to find that the anthrax planning had been done in parallel with the 9/11 planning and that Ramzi Bin-al-Shibh had a CBRN role. The Falls Church “911 Iman” Awlaki would speak alongside fellow Falls Church imam Ali Al-Timimi and Bilal Philips about the signs of the coming day of judgment -- for example, in August 2001, he spoke with Ali Al-Timimi in London along with unindicted WTC 1993 conspirator Philips. The anthrax operation was likely led by Mohammed Islambouli, who had been in a cell with KSM in connection with the planned attacks on the US using aircraft and other means. Islambouli’s role and his planned visit to the US in preparation for the attacks was the subject of the December 4, 1998 Presidential Daily Brief by the CIA to President Clinton. If we don’t learn from history, we are doomed to repeat it. The job of journalists, however, is news, not analysis. So journalists understandably need to wait until they are told these things by the government. But sometimes the government’s interest in the fruits of intelligence activity causes them to forego explaining what is really going on or in seeking a criminal prosecution. For example, the wiretap on Postal employee Sattar’s telephone permitted them to catch the head of the Egyptian Islamic Group in Egypt in October 2000. Similarly, by proceeding in great secrecy in Amerithrax, they have had numerous successes that otherwise would have eluded them. The solution to Amerithrax, however, has been there for all to see — most intelligence is open source. Amerithrax is best understood as a complex web of prosecutions. In the end Amerithrax will be known as a great DOJ/FBI success story. Of course, it is important to keep an open mind to alternatives.
We can only hope that FBI Director Robert S. Mueller, III, former US Attorney Jeffrey Taylor, Assistant United States Attorney Ken Kohl, FBI DC Field Office head Persichini, and US Postal Inspector Thomas F. Dellafera took to heart an important lesson in making their not-yet-supported-by-the-disclosed-evidence accusations of murder against Bruce Ivins -- if we don't learn from history, we are doomed to repeat it. Judging by the written comments of Aafia Siddiqui, the lives of thousands of children may hinge in the balance and depend on the correctness of the assessment of the facts by these individuals. Bruce Ivins never got his day in court. But history will be the judge. I, for one, will be there to bear witness. My view is that these folks were the first line of defense and that they failed in their role as spy catchers. Zawahiri at least would know when he was penetrated -- and he wouldn't like it.
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