Four days after filing court documents saying that Bruce Ivins did not have the equipment needed to prepare the anthrax powder used in the 2001 attacks, the U.S. Department of Justice took back that statement Tuesday and said it stands by its belief that Ivins was the sole perpetrator of the attacks.
The statement in question was part of several documents filed July 15 in U.S. District Court for the Southern District of Florida as part of a civil case brought against the federal government by the family of Robert Stevens, the first of five people to die in the anthrax attacks.
In trying to prove it could not be held liable in the lawsuit, however, the government had to highlight the very facts its opponents have used in the past to assert that Ivins was not the real perpetrator.
Stevens' family is suing the government for more than $50 million, saying the government was negligent in hiring a mentally unstable person to work with dangerous pathogens, including anthrax. The attacks in September and October 2001 killed five people and sickened 17 others.
In one set of documents, the government said the attacks were not a foreseeable possibility and therefore it would not be reasonable to expect the government to stop an attack of that nature. In trying to prove that the attacks were not foreseeable, the Justice Department outlined the many steps needed to convert the liquid anthrax used at the U.S. Army Medical Research Institute of Infectious Diseases into the powder used in the attacks. The statement of facts submitted to the court reads, in part, "USAMRIID 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."
Ivins' attorney, Paul Kemp, said the statement proved the government never had a case against his client, who committed suicide in 2008 days before the government named him as the sole perpetrator in the Amerithrax case.
But the Justice Department said Tuesday that the statement in question was an error, and officials submitted a corrected version of the statement of facts.
"The Justice Department filed a statement of facts on Friday that contained inaccurate information," Justice Department spokesman Dean Boyd said in a statement Tuesday afternoon. "Today, the Justice Department amended its statement of facts in the Stevens civil lawsuit to correct the information."
The revised sentence reads: "Although USAMRIID had equipment that could be used to dry liquid anthrax in the same building where anthrax research was conducted, USAMRIID did not have a lyophilizer in the specific containment laboratory where RMR-1029 was housed to prepare the dried spore preparations that were used in the letters."
Many of Ivins' former co-workers have questioned the government's theory about him using a lyophilizer elsewhere in the building to dry his stockpile of liquid anthrax. He would have had to carry anthrax outside the contained areas of the building, meaning anthrax spores would likely have dispersed and sickened people in the lab building, they said.
In seeking to prove the anthrax attacks were not foreseeable, the Justice Department notes that it is unclear when preparation for the anthrax attacks began.
The Justice Department then highlighted the very points that many have said prove that Ivins could not have committed the attacks:
- That the anthrax used in the attacks originated from but did not come directly from Ivins' flask.
- That the government's anthrax was "genetically similar, but dissimilar in its form, to the anthrax that resulted in the death of Robert Stevens."
- That "it would also take special expertise (even among those used to working with anthrax) to make dried material of the quality used in the attacks," expertise that many of Ivins' former co-workers said they didn't believe he had.
But Boyd said in his Tuesday statement that "as the several motions filed Friday make clear, the Justice Department and FBI have never wavered from the view that Dr. Ivins mailed the anthrax letters. The Justice Department and FBI stand behind their findings that Dr. Ivins had the necessary equipment in the containment suite where RMR-1029 was housed to perpetrate those attacks and that a lyophilizer which he ordered, and which was labeled 'property of Bruce Ivins,' was stationed in a nearby containment suite."
The unforeseeable and therefore unpreventable nature of the attacks was one of three tactics the Justice Department used in its motions to dismiss the case or move to summary judgment. The three motions were filed Friday and recently discovered by a team of investigative reporters from McClatchy Newspapers, ProPublica and PBS' "Frontline."
One of the motions to dismiss the case argues that accepting Ivins as the killer means the victim's family cannot receive compensation because federal government employees' actions related to their employment cannot be held against the government. Dismissing the notion that Ivins was the killer also negates the lawsuit, the Justice Department argues, because not being able to prove who the killer was and what his or her methods were means the plaintiffs cannot prove exactly what the government's negligence was.
The other motion to dismiss the case revolved around the argument that, regardless of whether or not Ivins was the real killer, the plaintiffs cannot prove that USAMRIID policy or procedure, or a breach thereof, led to anthrax attacks.
"We are confident that we would have proven (Ivins') guilt beyond a reasonable doubt at a criminal trial, and maintain in the civil suit that the evidence of his guilt meets the lesser civil standard that it is 'more likely than not' that Dr. Ivins mailed the anthrax attack letters," Boyd concluded in his statement.