Justice Department retracts court filings that undercut FBI's anthrax case

McClatchy Newspapers, ProPublica and FrontlineJuly 19, 2011 

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

Although the seven-page correction, filed in federal court in Florida, addresses conflicts between lawyers in the Civil and Criminal Divisions, it does not erase depositions filed by the government that 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 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).

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 are arguing it could have been prepared elsewhere.

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

In a legal filing last week, department lawyers 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 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.

Boyd noted that Ivins had ordered his own machine, known as a lyophilizer, which could be used for drying anthrax spores into powder. A lyophilizer labeled "property of Bruce Ivins" was located in a nearby containment suite, he said.

While amending 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 containment suite.

"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 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.

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McClatchy Newspapers 2011

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