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Anthrax case closed, circumstantial evidence strong

This article first appeared in the St. Louis Beacon, Oct. 10, 2011 - WASHINGTON - The scenes could have come from a forensic detective TV show: investigators growing deadly cultures in guarded Petri dishes; German shepherds sniffing for evidence in a suspect's apartment; an entire lake drained for a futile search; a library of psychiatric profiles; and a suspicious flask called RMR-1029.

But the FBI's seven-year, $100 million "Amerithrax" investigation of the 2001 anthrax mailings was hardly a textbook case of crime-fighting. There were enough false leads, wrong turns, bad decisions, lawsuits and public relations blunders to taint the investigation and -- for some critics -- to throw into question the FBI's conclusion: that U.S. biodefense scientist Bruce E. Ivins, acting alone, committed the anthrax murders.

"There are so many holes in the case," complained one biodefense expert, citing questions that will never be answered because Ivins killed himself in 2008, just as a federal grand jury was about to indict him. While the suicide gave the impression of guilt, two U.S. senators called for an independent inquiry; a National Academy of Sciences report said the scientific evidence was strong but not conclusive; and several skeptics still suspect that al-Qaida had a role in Amerithrax.

"People can theorize and they will continue to do so" about al-Qaida or other suspects, said author David Willman. "But where's the evidence?"

After conducting hundreds of interviews about Ivins and the FBI's investigation for his book, "The Mirage Man: Bruce Ivins, the Anthrax Attacks and America's Rush to War," Willman is convinced that Ivins was the anthrax killer -- and had the motive, the character and the means to carry out the crime and mislead a small army of investigators for years.

The irony of the case is remarkable: Within weeks of the mail attack, Ivins had insinuated himself into the FBI investigation as an anthrax expert who falsely implicated other scientists. But, in the end, Ivins ended up as the hunted, rather than a hunter. The question is: Why did it take the FBI so long to finger a mentally unbalanced anthrax specialist right under their noses during the entire inquiry?

Indeed, Amerithrax was the most expensive and extensive criminal investigation in U.S. history. The startling totals: 600,000 investigator hours, interviews with 10,000 witnesses, collecting 6,000 pieces of evidence, and the serving of 5,750 federal grand jury subpoenas.

And the concept of the anthrax attack being an "insider" job was hardly novel, given that the FBI had wasted thousands of agent hours investigating Steven J. Hatfill, a virologist and biodefense expert who had been born in St. Louis and went to high school in Mattoon, Ill.

Named as a "person of interest" by then-Attorney General John D. Ashcroft during a conference in August 2002, Hatfill had come under suspicion early in the investigation, in part because he was a biodefense expert who had worked for a couple of years at Fort Detrick in Maryland, had written a 1999 report about the possibility of an anthrax mail attack, and had taken a strong antibiotic at about the same time as the anthrax mailings.

But Hatfill eventually was exonerated and successfully sued the Justice Department, the FBI and Ashcroft for violating his privacy and constitutional rights, winning a $4.6 million settlement in June 2008. In an interview in December, Ashcroft declined to say what he thought of the FBI investigation and its conclusions.

"All the evidence and stuff was not shared with me. And I don't rehash stuff," Ashcroft told the Beacon. Asked whether he shared any of the doubts about whether the FBI had, in the end, fingered the right guy, Ashcroft said:

"Well, they didn't get the guy. He committed suicide -- right? So they didn't get anybody in the end."

Did Fbi Finally Identify Right Suspect?

It is true that Ivins -- because of his suicide -- was never indicted, and the case never went to trial. Even so, the FBI in 2010 released an exhaustive "investigative summary" of the Amerithrax case that lays out the extensive evidence pointing to Ivins.

"There were gross inadequacies in our early investigation efforts, but sophistication grew over time," said epidemiologist and biodefense expert Michael Osterholm, director of the Center for Infectious Disease Research and Policy.

After reviewing the evidence, Osterholm said he was convinced that Ivins was behind the anthrax mail attacks. And he believes the FBI is now better prepared to investigate in the event of another biological attack. "The level of sophistication has grown dramatically," he said. "If there were a bioterrorism crime in this country today, I think the FBI's capability of handling it is very different than it was in 2001."

In its summary of the Amerithrax investigation last year, the Justice Department explained that "in its early stages, despite the enormous amount of evidence gathered through traditional law enforcement techniques, limitations on scientific methods prevented law enforcement from determining who was responsible for the attacks."

Eventually, however, the FBI -- by supplementing traditional gumshoe law enforcement techniques with groundbreaking scientific analysis -- was able to pinpoint the source of the attacks to the anthrax "spore batch" in a laboratory flask called RMR-1029 in his "hot suites" lab at the U.S. Army Medical Research Institute of Infectious Diseases (USAMRIID) in Fort Detrick.

The FBI concluded that "Ivins was the sole custodian of this material," the Amerithrax summary said. "Investigators interviewed every co-worker of Dr. Ivins and every researcher ... with access to the cold-room in which RMR-1029 was stored, and everyone agreed that no one at USAMRIID legitimately used quantities of RMR-1029 without the authorization and knowledge of Dr. Ivins."

The flask may be the key, but the FBI's case against Ivins also developed far more evidence that linked him to the crime in terms of motive, opportunity, proximity to the Amerithrax envelopes, the language of the letters, his consciousness of guilt, an apparent inability to explain his behavior, and mental-health issues relevant to the crime.

Ivins, who was first interviewed by the FBI in November 2001 and was initially helpful in advising G-men about anthrax spores, had been at the periphery of the investigation until three or so years later, when FBI officials began to focus on RMR-1029.

After conducting hundreds of interviews and analyzing the FBI's evidence, Willman -- while lambasting the FBI for its early mistakes in the case -- concluded that Ivins was guilty. Aside from the psychiatric profiles of Ivins that indicate why he would have done it, Willman cites the fact that Ivins had a clear motive in creating anthrax terror.

"Ivins was absolutely furious that his 'baby,' which was the recombinant anthrax vaccine, was dead in the water. In the words of his supervisor ... the next-generation vaccine was 'beyond the back burner' as of early 2001," said Willman.

"He was a very astute student of what moves bureaucracy and what influences elected officials in this country. And this crisis was the Hail-Mary pass that rescued the recombinant anthrax vaccine."

That's because the multi-billion dollar federal response to Amerithrax included Project BioShield, which provides millions of dollars for research into counter-measures to guard against potential biological attack.

"The first contract awarded under Project BioShield was for $877.5 million for development of the recombinant anthrax vaccine, on which Bruce Ivins held two patents," said Willman. "Project BioShield never would have happened without the anthrax letter attacks."

"So, yes, [Ivins] got exactly what he wanted."

Skeptics See Holes in the Case

Despite the apparent motive and the massive amount of circumstantial evidence that the FBI collected in its case against Ivins, some scientists, experts in the biodefense establishment and lawmakers still express doubts about his guilt -- in part because no one piece of evidence was found to tie Ivins directly to the anthrax mailings.

This summer, three prominent scientists who have for years questioned the FBI's conclusions wrote a paper in the Journal of Bioterrorism & Biodefense questioning why federal investigators did not explain in their report why some unusual elements were present in the anthrax spores.

"Ten years after the anthrax attacks, almost three years after the FBI accused a dead man of perpetrating the 2001 anthrax attacks singlehandedly, and more than a year since they closed the case without further investigation, the FBI has produced no concrete evidence on key questions," the three scientists wrote.

In a paper made available this summer, the scientists -- Martin E. Hugh-Jones, Barbara Hatch Rosenberg, and Stuart Jacobsen -- questioned exactly where and how the anthrax spores in the attack letters were prepared; how the spore powders acquired "extraordinarily high levels of silicon and tin"; and how the spores became contaminated by a rare strain of a related bacterium, B. subtilis.

While FBI officials say the questions don't go to the heart of the case against Ivins, the New York Times reported this month that the chairwoman of a National Academy of Science panel that reviewed the scientific parts of the FBI inquiry felt that the questions were worth looking into.

Some biosecurity experts also remain skeptical. Randall J. Larsen, former executive director of the Congressional Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, told the Beacon that he is "absolutely not" convinced by the FBI's evidence against Ivins.

"There are so many holes in the case," said Larsen, who is now chief executive of the Bipartisan WMD Terrorism Research Center. "I'm convinced that Bruce Ivins was mentally disturbed ... But that doesn't mean that he was the guy who did this."

Larsen said he was "98 percent convinced of the link to flask RMR 1029, we just don't know how many other Petri dishes it went through... We know those samples from Flask 1029 were shared with several other labs around the world. And once they got there, what was their chain of custody? Who got it?"

Larsen is among those who feel the case against Ivins might not have convinced a jury -- if a grand jury had indicted him and Ivins had not taken his own life. When Larsen was researching a book in 2006, he said, "At that time my interviews with the FBI told me that they were 100 percent sure it was Steven Hatfill. And I refused to put his name in my book because I believed they didn't really have a case."

Today, Larsen said, "I feel the same way about Bruce Ivins. It may have been Bruce Ivins, but in no way has the FBI proven it. Not only have they not proved it beyond a reasonable doubt, I don't think they've proved it to a mere preponderance of evidence. I don't think they could win in a civil case."

Congressional Doubts Linger, but Fading

In the months after the Ivins suicide and the FBI's revelations about him, some members of Congress continued to air doubts about the handling of the case and the possibility that Ivins might either be the wrong suspect or did not act alone.

Among the initial doubters were the two liberal U.S. senators to whom anthrax-laden letters had been mailed: Tom Daschle, D-S.D., and Pat Leahy, D-Vt.

But Daschle said a few weeks after the initial news about Ivins that an intensive FBI briefing had convinced him that their case was "pretty compelling."  He is now an attorney in private practice.

Leahy, chairman of the Senate Judiciary Committee, continued to express doubts and interrogate FBI officials about the investigation at Senate hearings, but he has been mostly silent about the Amerithrax case in recent months.

However, two other lawmakers -- U.S. Sen. Charles Grassley, R-Ia., and U.S. Rep. Rush Holt, R-N.J., --have taken up the cause and continued to press the FBI for more answers on the case, which was formally closed in 2010. Grassley is a senior Republican on the Judiciary Committee, which has jurisdiction over the FBI; Holt, a scientist by profession, represents a district that includes Princeton, N.J., where the Amerithrax letters were posted in mailboxes.

At a 2008 oversight hearing with FBI Director Robert Mueller, Grassley had said that an independent review of the Amerithrax inquiry was badly needed because "there are many unanswered questions the FBI must address before the public can have confidence in the outcome of the case, and a thorough congressional investigation is needed to ensure that those questions are answered."

After a National Academy of Sciences (NAS) panel cast some doubt on the scientific side of the investigation in February, Grassley reiterated his call for an independent review. "There are no more excuses for avoiding an independent review and assessment of how the FBI handled its investigation in the anthrax case," Grassley said then, arguing that the NAS report "shows that the science is not necessarily a slam dunk."

Making similar points, Holt in February reintroduced a bill called the Anthrax Attacks Investigation Act --” first introduced in 2008 -- that would set up a congressional commission to investigate the Amerithrax attacks and the federal government's investigation of the attacks.

"The NAS report makes clear there are still questions to be answered and still lessons to be learned about the FBI's investigation into the attacks," Holt said then. "It would take a credulous person to believe the circumstantial evidence that the FBI used to draw its conclusions with such certainty. The FBI has not proven to me that this is an open and shut case."

This summer, congressional attention again focused on the case when news organizations reported that Justice Department civil lawyers had filed court papers in a Florida case that conflicted with the FBI's investigative summary of Amerithrax. The initial filing on July 15 said Ivins' lab lacked direct access to the "specialized equipment" needed to dry wet anthrax spores into airborne powder. But, after the FBI and the department's criminal division complained, the civil lawyers revised the court filing to conform to the FBI's earlier conclusion that Ivins had access to such spore-drying equipment.

Last month, Grassley asked Attorney General Eric Holder and FBI Director Robert Mueller to explain that apparent retraction. In a letter, the senators said the decision to change the court filing "produced a new set of questions regarding this unsolved crime."

For his part, Willman says congressional critics have legitimate complaints about the FBI's handling of the Amerithrax investigation -- especially in the early years -- but he has not seen any convincing evidence to back up various conspiracy theories.

"Those who have trotted out those kinds of theories have alleged that, if Bruce Ivins did it ... that there were others involved, who could be charged as accessories, before or after the fact," Willman said. But he added that such critics have "had three years to give us even a scrap of evidence that would support such assertions, but have yet to do so."

The Al-Qaida Connection?

One conspiracy theory that persists is that the Amerithrax attacks were somehow connected to al-Qaida. That suspicion that seemed logical a decade ago because the bioterror followed within weeks of 9/11 and the anthrax letters were written in a way that seemed to implicate Islamist militants.

The FBI and the U.S. military spent many hours trying to show such a link, and evidence was found that al-Qaida operatives made efforts from 1999-2001 to secure anthrax strains and assemble a lab to work on pathogens. But no direct link was ever found to the Amerithrax attacks.

Laurie Garrett, the senior fellow for global health of the Council on Foreign Relations and author of "The Coming Plague," writes in her new e-book, "I Heard the Sirens Scream," that she and others have doubts about the FBI's conclusions on Amerithrax -- and still suspect that al-Qaida might have had a role in the fatal mailings.

In an NPR interview in August, Garrett said she was "outraged because the FBI completely botched the investigation on the anthrax ... because there's so much evidence that al-Qaida was behind the anthrax mailings and that at least as strong a circumstantial case as was made against Bruce Ivins can be made against al-Qaida."

Among the circumstantial pieces of evidence cited by Garrett are reports that the cave in Tora Bora where Osama bin Laden hid after the 9/11 attacks "twice tested positive" for the Ames strain of anthrax, and the body of one of the hijackers of Flight 93, which crashed on 9/11 in rural Pennsylvania, had "tested positive for anthrax."

In a 2005 paper written for the U.S. Army Strategic Studies Institute, biological terror expert Milton Leitenberg assessed the evidence of al-Qaida's interest in biological terror and "Agent X" -- a reference to anthrax in some of the terror group's documents.

"While incriminating as to al-Qaida's eventual intentions, all information to date indicates that al-Qaida could not possibly have been responsible for the anthrax attacks in the United States in 2001," Leitenberg wrote.

Willman also dismisses the alleged al-Qaida connection to the Amerithrax mailing, writing that "there is no credible evidence that al-Qaida or Iraq ever obtained the Ames strain -- let alone RMR 1029."

The NAS report also found no clear link, citing initial reports of a positive test for anthrax at an al-Qaida site in Afghanistan as a likely false positive -- given that more extensive testing of samples collected later found no evidence of anthrax.

"While it is undoubtedly true that al-Qaida was seeking to establish an offensive bioweapons program in 2001," the FBI's investigative summary of the Amerithrax case said that the team that examined the evidence "were unable to find any link between al-Qaida and the letter attacks in the United States, or even that, at the time of the attacks, any al-Qaida operatives had access to the type and quality of anthrax pathogen used in the 2001 attacks."

Advancing 'microbial Forensics'

While it got off to a shaky start and at one point seemed to focus on the wrong suspect, some good things came out of the Amerithrax investigation, which broke new ground in a field called microbial forensics. This specialty involves detailed analysis of microbes used in a crime, to a degree of certainty that might hold up to court challenges.

In its 2010 summary of the case, the FBI said that "groundbreaking scientific analysis ... was developed specifically for the case to trace the anthrax used in the attacks to a particular flask of material." It added that "a genetic mapping and comparison project such as the one successfully achieved here had never been undertaken."

"The field of microbial forensics was pretty much created" as a result of the anthrax genomic investigation, said Steven Salzberg, a bioinformatics scientist who played an important role in analyzing the anthrax samples collected in 2001.

While that time-consuming genetic fingerprinting helped the FBI trace the origin of the anthrax used in the mail attacks to the RMR-1029 flask in Ivins' lab, that evidence was not exactly a smoking gun. The FBI also had to track down and check the alibis of every other scientist who might have had access to the anthrax in the flask.

While critics still question whether the genetic analysis of the anthrax samples was conclusive, the FBI asserted that "doubts about the potential reliability of genetic testing of anthrax were rebutted both by the fact that extensive validation studies were conducted prior to the examination of the evidence, and by the fact that there was so much consistency identified across the RMR-1029-related samples."

Salzberg, now a professor at the Johns Hopkins University Medical School's institute of genetic medicine, cautions that there are limits to how much such genomic forensics can tell investigators. "The problem, which is still a problem today, is that we don't really know exactly who has what strain of a pathogen," he said. "Homeland Security has tried to track this much better, among labs, but they can only do that in the U.S."

If a future attack were to use the pathogens that cause plague or anthrax or cholera, Salzberg said, "we could quickly tell you what it was. But as for telling you where it came from, I don't think we're much better off today than we were 10 years ago."

He added: "If some rogue group wants to get their hands on some nasty pathogen, and they culture it for a while so it has some unique markers, or they culture it so it will be resistant to antibiotics, how would you know they had it?"

That's why Bruce Budowle, one of the FBI investigators credited with helping build the agency's microbial forensics, calls for research on anthrax and other select agents to take more "genetic fingerprints" of bioterror pathogens from around the globe. Bodowle now works with the University of North Texas Health Science Center at Fort Worth.

"If anthrax pops up again, we still don't know enough about what type of strains are in the environment," Budowle told USA Today. Because the characteristics of certain microbes can vary widely from location to location, scientists need to generate more information about those differences to help investigators nail down the source of the germs used in an attack.

Robert Koenig is also the author of "The Fourth Horseman: One Man's Mission to Wage the Great War in America," which tells the story of the first use of anthrax as a weapon of sabotage in the 20th century.

Rob Koenig is an award-winning journalist and author. He worked at the STL Beacon until 2013.