U.S. Revises Its Response to Lawsuit on Anthrax

The New York Times | July 19, 2011
By Scott Shane

Embarrassed Justice Department officials rushed on Tuesday to correct their own filing in a lawsuit over the 2001 anthrax letters after learning that it appeared to contradict the Federal Bureau of Investigation’s conclusion that Bruce E. Ivins, an Army scientist, prepared the deadly powder in his Army laboratory.

Lawyers for the department’s civil division wrote in the July 15 filing that the Army’s biodefense center at Fort Detrick, Md., “did not have the specialized equipment in a containment laboratory that would be required to prepare the dried spore preparations that were used in the letters.”

But on Tuesday, the department sent the court a list of corrections to its documents in the Florida lawsuit, filed by the family of Robert Stevens, a tabloid photo editor and one of five people killed in the anthrax attacks. What the filing should have said, the department wrote, was that while the Army lab did not have a lyophilizer, a freeze-drying machine, in the space where Dr. Ivins usually worked, there was a lyophilizer and other equipment in the building that he could have used to dry the anthrax into powder.

The department said the inaccurate initial filing resulted from a failure of communication between civil division lawyers handling the lawsuit and the criminal division prosecutors and F.B.I. agents who spent years investigating the case. Dr. Ivins killed himself in 2008 as prosecutors prepared to indict him on murder charges, and F.B.I. and Justice Department officials have maintained that he alone prepared and mailed the deadly letters.

The department said that conclusion had not changed.

“We are confident that we would have proven his guilt beyond a reasonable doubt at a criminal trial,” a department spokesman, Dean Boyd, said.

The flap was only the latest in an investigation that some members of Congress have accused the bureau of bungling. Before focusing on Dr. Ivins, the bureau spent years pursuing another former Fort Detrick scientist, Dr. Steven J. Hatfill, before exonerating him and paying him a settlement worth $4.6 million. More recently, a National Academy of Sciences panel criticized the bureau’s technical work on the case, saying the investigation of Dr. Ivins was not as airtight as the government claimed.

The disputed government filing, first reported jointly by PBS Frontline, ProPublica and McClatchy, was part of a motion to dismiss the lawsuit in which Mr. Stevens’s survivors claim that his death resulted from the government’s negligence in handling anthrax at the Army lab. The government asserts that it was difficult or impossible to prevent Dr. Ivins from preparing the letters and that its failure to do so was not negligent.

F.B.I. officials have argued that the circumstantial case against Dr. Ivins is overwhelming. They cite his late-night work alone in the lab before anthrax mailings in 2001; genetic evidence linking the mailed anthrax to a supply in his lab; his habit of driving distances at night to mail packages and letters under assumed names; and his admitted mental problems and past threats of violence.