Beyond a Reasonable Doubt?

U.S. Attorney Jeffrey Taylor said at a Justice Department news conference, "We regret that we will not have the opportunity to present evidence to the jury."

Everybody else regrets it too--since what came out today was another pastiche of innuendo and circumstantial evidence, with an awful lot of holes. Time for the FBI to present all of what it has to the court of public opinion, don't you think? A major benefit for the FBI of sharing its case would be restoration of confidence in the US' system of justice, the Justice Department and its FBI.

I worked all day at the hospital, but want to get something out tonight, in a hurry, regarding the strength of some of the evidence presented today. I'll no doubt have more to say once I have read the rest of the "evidence".

Here goes:

1. Ivins had just been immunized against anthrax. He was required to have yearly immunizations, and some anthrax scientists have chosen to be vaccinated every six months for safety, since the vaccine's efficacy is weak--and Ivins had proven its weakness in several animal models. In his career he had probably received about 33 separate anthrax vaccinations.

2. Earlier, we heard the envelopes came from the specific post office he frequented. Today the affidavit states it is "reasonable to conclude" they were purchased in Maryland or Virginia.

3. Choosing a strain that would direct suspicion at Ivins. The perpetrator(s) were tremendously careful to leave no clues vis a vis the envelopes. For example, block lettering was used, which is the hardest to identify with handwriting analysis. Second, stamped envelopes were chosen to avoid using saliva. Third, there were no fingerprints on anything.

Why would the person(s) who took such care select an anthrax strain that would focus suspicion on himself? In 2001, strain analysis was possible. It had been discussed many times as a forensic tool for biowarfare, including in a paper I wrote in 1992, which Ivins had read, and in which I thanked him for his contributions.

4. Ivins was the "sole custodian" of the strain. But the strain was grown in 1997, and many people had access to it over that four year period. Having received a sample, or obtained it surreptitiously, they would be "custodians" of it too.

5. Ivins was in the lab alone at night for prolonged periods--much more so than at other times. Perhaps so. But the document states he spent exactly the same amount of time in the biosafety suite each night for 3 nights running just when the first letters were sent (September 14-16): 2 hours and 15 minutes, each time. That is a funny coincidence, when he spent variable amounts of time in the building. To me it suggests a clerical error.

Between September 11, 2001 and the first anthrax letter being found, there was a LOT of talk about a biological attack being next. I was deluged with queries about this at the time. So if Ivins was trying to work harder under the cloud of an impending attack, it makes sense to me, because I was working harder.

6. If the motive is that he was mentally disturbed, agitated, out of control, then the care he took with those envelopes is paradoxical.

7. He was under pressure to help Bioport with its substandard anthrax vaccine. So he wanted to help Bioport by creating an attack? That doesn't make sense. He had proven Bioport's vaccine had limited efficacy. He knew about the safety data implicating the vaccine in chronic illnesses, particularly autoimmune illnesses. His colleague at Detrick, Phil Pittman, MD, took the possibility the adjuvant was causing illness seriously, and had published on this. Bruce told me he thought he might have a blood illness due to the anthrax vaccinations he had received.

But most critically, Bruce had created new anthrax vaccines designed to replace Bioport's (now Emergent Biosolutions') vaccine. Why would he want to do Bioport a favor?

And the vaccine that was used after the attack was Bioport's (licensed in 1970, when Ivins was still in school) not Ivins', since Ivins' vaccines were not licensed or fully tested.

8. The affidavit carefully wordsmiths around Ivins' lack of knowledge for making weaponized anthrax, by emphasizing that he might have known some of the things needed to make such a product. The statement is this: "Dr. Ivins was adept at manipulating anthrax production and purification variables to maximize sporulation and improve the quality of anthrax spore preparations. He also understood anthrax aerosolization dosage rates and the importance of purity, consistency and spore particle size due to his responsibility for providing liquid anthrax spore preparations for animal anthrax spore challenges." After 28 years making anthrax, it would be odd if he weren't expert in all these areas.

9. We still need to know about the finished spore preparation in the letters. I am one who tends to believe the first reports in contrast to the later ones: the ones that come out before someone decides the story needs to be shaped. So it is logical to conclude that a very small amount of an additive, or a special treatment, was used to prepare the Daschle/Leahy letter spores in order to make the spores repel one another. This was multiply reported by scientists who had first crack at the sample. Later, other scientist who got to study the spores may have said there was no additive. But were they given the same spores? Had the effect worn off? The 2006 Beecher (FBI) paper claimed there was no additive, but curiously cited no research to back up this claim. To me, this was written by FBI in a crude attempt to shape the story, and was soon disputed by a UN official, Dr. Mereish. If you can show me what the real preparation was, and how Ivins could have learned to make it, I would find the story a lot more convincing.

10. The Naval Medical Research Center held all the samples, under contract to FBI. This is a trivial point, but the Army and Navy are longstanding competitors.

11. Mental health. If Ivins was so out of control, so scary, why was he allowed to keep working in a high containment lab with access to some of the world's deadliest pathogens for so long? Is it true, as has been reported, that it was an FBI agent who suggested Ms. Duley ask for a protection order? The wording on the order suggests she was coached by the FBI; how else would she know Ivins was to be charged with capital murder? More information on her finances and pre-existing legal troubles, and whether they had been remedied recently, is needed.

12. Ivins cursed about giving journalist Gary Matsumoto information requested in a Freedom of Information Act request. Matsumoto is a most peculiar journalist. We had a number of conversations. He would not get off the phone, sometimes staying on for an hour or more. He would harass me, in an attempt to shape the story. He worked very hard, trying to force me to say that the only problem with anthrax vaccine was its squalene adjuvant, although there were many reasons to question that assertion. I hung up on him more than once, exasperated, and no doubt I used some foul language describing our conversations to others.

13. The anthrax attacker MUST be able to be placed at the scene of the mailboxes, at the times the letters were mailed. Surely the FBI sought information on these dates and places from everyone with anthrax access in the US and probably abroad, shortly after the letter attacks. Either Ivins had an alibi or he didn't. Put up or shut up: this is the most critical evidence in this case. If Ivins cannot be placed in New Jersey on those dates, he is not the attacker, or he did not act alone.

Furthermore, there were other letters. Some contained other powders. Some were said to contain some anthrax in contemporaneous news reports. Some were warnings. These were mailed from other places, on other dates. The FBI has sat on this collateral evidence. If these envelopes, ink or block print were the same, the attacker would have to be placed at the scene when those letters were mailed. What happened to this evidence? Pony up.

14. The anthrax letters were sent for effect, not to kill. (See my 2002 article for more on this.) Here are the effects that resulted, at least in part, from the letters:

A. The Patriot Act
B. War against Iraq
C. A new bioterrorism industry, worth over $50 Billion so far, was created
D. The moribund Anthrax Vaccine Program was resurrected

Who benefited? Ivins was no beneficiary. (Had the Bioport vaccine been killed, as planned, maybe Ivins' vaccine would have taken its place.)

You know who benefited:

• The bioevangelists, who have made a ton of bucks on the threat
  
• The Neocons, looking for an excuse to attack Iraq. The Iraqis may not have attacked the World Trade Center, but by golly, everyone knew they had anthrax!
  
• Those seeking to consolidate more power in the executive branch, increase the surveillance of Americans, get rid of Habeus Corpus, and on and on.
• The anthrax vaccine manufacturer, Bioport. Guess what? Its CEO, Fuad El-Hibri and his company Intervac bought Bioport in 1998 with $3 Million down. The day before he bought it, the Army agreed to indemnify it for him, for free. Then contracts totalling hundreds of millions of dollars started rolling in.
  
• Correction: Twice last week, one day after Ivins went into the hospital with an overdose, and one day after Ivins died, El Hibri sold some of his shares in the company. Did he think the company would get some extra scrutiny and its share price plummet? Although the shares were reportedly sold "automatically," if you review the price fluctuations, that would appear unlikely. Since mid July 2008, the sales totalled about $3 million.
  

I am still waiting to hear about how the FBI eliminated from consideration those with a real motive.