Since it began a decade ago, the federal government’s massive investigation of the 2001 anthrax attacks has been plagued by missteps and complications.
Investigators initially focused on the wrong man, then had to pay him a nearly $6 million settlement. In 2008, they accused another man, Bruce E. Ivins, who killed himself before he could go to trial.
Now, in the latest twist, the government has argued against itself.
In documents deep in the files of a recently settled Florida lawsuit, Justice Department civil attorneys contradicted their own department’s conclusion that Ivins was unquestionably the anthrax killer. The lawyers said the type of anthrax in Ivins’s lab was “radically different” from the deadly anthrax. They cited several witnesses who said Ivins was innocent, and they suggested that a private laboratory in Ohio could have been involved in the attacks.
The spectacle of one arm of the Justice Department publicly questioning another could undermine one of the most high-profile investigations in years, according to critics and independent experts who reviewed the court filings.
“I cannot think of another case in which the government has done such an egregious about-face,’’ said Paul Rothstein, a law professor at Georgetown University.
The documents were filed in a lawsuit over the October 2001 death of Robert Stevens, a Florida photo editor. His survivors accused the government of negligence for experimenting with anthrax at Fort Detrick; the case lingered in court until the Justice Department settled it in November.
The court documents in the case were first disclosed in a joint report by McClatchy newspapers, PBS’s “Frontline” and ProPublica.
The case, Stevens v. United States, offers a rare glimpse inside a typically unified and notoriously tight-lipped agency that collided with itself in a particularly controversial investigation. While the guilt of Ivins is likely to be a subject of public speculation and intrigue for years to come, the government’s inconsistency in the Stevens matter is sure to add another layer to that debate.
Justice Department prosecutors and FBI officials said they stand firmly behind their conclusions that Ivins prepared and mailed the anthrax-laced letters, which killed five people and terrified the nation just after Sept. 11, 2001. They said the civil filings were legal hypotheticals designed to shield the government from a negligence lawsuit filed by the family of an anthrax victim.
Yet last summer, when criminal investigators learned that their conclusions had apparently been challenged — and by their colleagues, no less — they were surprised and frustrated, leading to shouting matches within the department before it rushed to change portions of the filings, according to people familiar with the events.
Experts said that the civil lawyers went beyond the typical arguments attorneys make to avoid government liability, especially in a situation in which the Justice Department’s criminal side had already accused Ivins.
“When there have been so many public statements about Ivins’s guilt, someone higher up in the department should have seen this collision coming down the tracks,’’ Rothstein said.
Confusion raised doubts
Critics said that the confusion has raised new doubts about the already disputed criminal investigation of Ivins. The Fort Detrick scientist committed suicide in 2008 as investigators were closing in on him, and the Justice Department closed the case in 2010.
The Stevens case documents “should put a gun to the case and explode it,” said Meryl Nass, a physician who — along with many of Ivins’s colleagues and some members of Congress — has long questioned his guilt.
Paul F. Kemp, a lawyer for Ivins, said the civil lawsuit creates “not just reasonable doubt” about Ivins’s guilt but “millions of reasonable doubts.”
Justice Department and FBI officials counter that the evidence remains overwhelming that Ivins alone sent the spore-laden letters to news media and two U.S. Senate offices, which also sickened 17 people. The department did not provide civil division lawyers to comment on the case.
Department officials acknowledged that the civil filings appeared contradictory but attributed that to imprecise wording, some of which was corrected, and they said the civil attorneys were just doing their jobs.
“Whatever we say, there’s always going to be some percent of the public that will say Ivins didn’t do this,” said Rachel Lieber, an assistant U.S. attorney in the U.S. Attorney’s Office in the District who would have led the prosecution of Ivins. “People are entitled to their own views, but if you take a rational approach and look at the evidence, you come to the conclusion that it’s overwhelming.”
In defending the government against the Stevens lawsuit, civil lawyers tried to create distance between the Army lab where Ivins worked and the killer anthrax.
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