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Who Is Rehashing the Shrinks-4-Hire Report on Bruce Ivins?

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Slightly over a week after McClatchy focused new attention on evidence that Bruce Ivins may not have been able to produce the anthrax used in the 2001 attacks, and just days after Jerrold Nadler called attention to the FBI’s obfuscations about the technical data McClatchy used, the LAT has decided to ignore such technical problems with the FBI’s case and return to claims that Ivins must be the killer because he was mentally unstable.

Of note, much of the LAT story fleshes out the Shrinks-4-Hire report, complete with names, a detailed description of how Bruce Ivins’ mother tried to abort Ivins by bouncing down the stairs, and descriptions from his psychiatrists.

Ivins grew up in Lebanon, Ohio, a small town 30 miles northeast of Cincinnati. His parents had planned the arrivals of their first two children, both sons, but by late 1945 the couple had no desire to add to the family. In conversations with a sister-in-law, Mary Ivins described how she tried to abort the unwanted third pregnancy:

Over and over, she descended a series of steps by bouncing with a thud on her buttocks.

Bruce Ivins, born April 22, 1946, would eventually hear the story himself.

[snip]

A psychiatrist who treated him in the late 1990s, Dr. David Irwin, confided to a therapist that Ivins was the “scariest” patient he had ever known.

It’s as if someone leaked the LAT an unredacted copy of the report in an effort to drown out increasing focus on the many problems with the case. And it’s as if the LAT simply used that as a template for their story, without consulting the information released since the Shrinks-4-Hire was completed that poses problems for it: not the National Academy of Sciences report and the McClatchy stories raising key technical questions about the case, and not Noah Shachtman’s story raising doubts about the FBI’s claim no one else could have accessed Ivins’ anthrax.

I guess some people tied to the anthrax case believe if you keep repeating the story, “Bruce Ivins stalked women, so he must have tried to kill Patrick Leahy” enough times, people will continue to believe it.

The Circumstantial Case against Bruce Ivins Gets Weaker

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It seems we’re going to be discussing anthrax in detail again. And in anticipation of those discussions, I wanted to challenge the notion that the circumstantial evidence against Ivins remains strong.

The whole case depends on the FBI’s contention that a flask Ivins had–RMR-1029–was “the murder weapon.” But in fact, the FBI only has proof that Ivins had what might be one of eight or more potential precursors to the murder weapon. Their efforts to equate the two ignore some interim steps about which they seem to have little evidence (and what they have they’re not examining very closely).

So here’s my summary of the circumstantial case against Bruce Ivins. (Jim White gave me a ton of scientific help with this, but the errors surely result from my own misunderstanding.)

When US Attorney Jeff Taylor announced FBI was closing the investigation in February 2010, he gave the following 7 pieces of evidence that Ivins was the culprit.

First, we were able to identify in early 2005 the genetically-unique parent material of the anthrax spores used in the mailings. As the court documents allege, the parent material of the anthrax spores used in the attacks was a single flask of spores, known as “RMR-1029,” that was created and solely maintained by Dr. Ivins at USAMRIID. This means that the spores used in the attacks were taken from that specific flask, regrown, purified, dried and loaded into the letters. No one received material from that flask without going through Dr. Ivins. We thoroughly investigated every other person who could have had access to the flask and we were able to rule out all but Dr. Ivins.

Second, as a renowned expert in the production and purification of anthrax spores, Dr. Ivins was one of a handful of scientists with the capability to create spores of the concentration and purity used in the attacks. The affidavits allege that, not only did Dr. Ivins create and maintain the spore batch used in the mailings, but he also had access to and experience using a lyophilizer. A lyophilizer is a sophisticated machine that is used to dry pathogens, and can be used to dry anthrax. We know others in Dr. Ivins’ lab consulted him when they needed to use this machine.

Third, in the days leading up to each of the mailings, the documents make clear that Dr. Ivins was working inordinate hours alone at night and on the weekend in the lab where the flask of spores and production equipment were stored. A review of his access records revealed that Dr. Ivins had not spent this many “off hours” in the lab at any time before or after this period. When questioned about why he was in the lab during these off hours prior to each of the mailings, Dr. Ivins was unable to offer any satisfactory explanation.

Fourth, the affidavits indicate Dr. Ivins had engaged in behavior and made a number of statements that suggest consciousness of guilt. For example, one night shortly after a search warrant was executed on his house, Dr. Ivins took highly unusual steps to discard a book and article on DNA coding while under 24/7 surveillance. In addition, he had submitted a questionable sample of anthrax from his flask of parent spores to the FBI, presumably to mislead investigators. He had also made far-reaching efforts to blame others and divert attention away from himself, and had made threatening e-mail statements to a friend regarding the case. Recently, he had detailed threats in his group therapy session to kill people who had wronged him, after learning he might be indicted.

Fifth, as reflected in the court documents, Dr. Ivins had a history of mental health problems and was facing a difficult time professionally in the summer and fall of 2001 because an anthrax vaccine he was working on was failing. The affidavits describe one e-mail to a co-worker in which Dr. Ivins stated that he had “incredible paranoid, delusional thoughts at times,” and feared that he might not be able to control his behavior.

Sixth, throughout his adult life Dr. Ivins had frequently driven to other locations to send packages in the mail under assumed names to disguise his identity as the sender. He had also admitted to using false names and aliases in writings. In addition, he was a prolific writer to Congress and the media, the targeted victims in the anthrax attacks. Law enforcement recovered 68 letters to such entities from his house in a Nov. 1, 2007 search.

I’ll conclude with one more point. The envelopes used in the attacks were all pre-franked envelopes, sold only at U.S. Post Offices during a nine-month window in 2001. An analysis of the envelopes revealed several print defects in the ink on the pre-printed portions of the envelopes. Based on the analysis, we were able to conclude that the envelopes used in the mailings were very likely sold at a post office in the greater Frederick Maryland, area in 2001. Dr. Ivins maintained a post office box at the Post Office in Frederick, from which these pre-franked envelopes with print defects were sold.

Here’s what remains of each of these 7 pieces of evidence:

1. The spores in the attack came from RMR-1029 and Ivins controlled access to that flask

The certainty of this claim was seriously challenged by both the National Academy of Sciences report and subsequent reporting on several grounds.

First, the NAS study concluded only that the genetic analysis was consistent with the spores being derived from RMR-1029.

The results of the genetic analyses of the repository samples were consistent with the finding that the spores in the attack letters were derived from RMR-1029, but the analyses did not definitively demonstrate such a relationship.

That only says that whoever prepared the (probable) two separate batches of anthrax may have started with anthrax obtained at some point from that flask. NAS holds out the possibility the anthrax producer may have gotten it from somewhere else, that it was possible to get similar genetic results from other means (that is, suggesting that’s not the only way to have produced the samples found in the letter).

An even bigger problem is the complete lack of attention on what happened to the anthrax after it came from Ivins’ flask, if it did. The NAS later emphasizes this interim step.

The flask designated RMR-1029 was not the immediate, most proximate source of the letter material. If the letter material did in fact derive from RMR-1029, then one or more separate growth steps, using seed material from RMR-1029 followed by purification, would have been necessary. Furthermore, the evidentiary material in the New York letters had physical properties that were distinct from those of the material in the Washington, D.C. letters.

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Nadler Wants to Know Why FBI Lied to Him about Anthrax

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That’s a very good question, Congressman Nadler:

On September 16, 2008, the House Committee on the Judiciary, on which I sit, conducted an oversight hearing of the FBI at which you testified. At that hearing, I asked you the following: “[W]hat was the percentage of weight of the silicon in the powders that your experts examined?” You testified that you would get back to me. On November 26, 2008, I sent to you this follow-up question in writing: “What was the percentage of weight of the silicon in the powder used in the 2001 anthrax attacks?”

On April 17, 2009, then-Acting Assistant Attorney General M. Faith Burton, of the DOJ Office of Legislative Affairs, responded with the following answer:

FBI Laboratory results indicated that the spore powder on the Leahy letter contained 14,470 ppm of silicon (1.4%). The spore powder on the New York Post letter was found to have silicon present in the sample; however, due to the limited amount of material, a reliable quantitative measurement was not possible. Insufficient quantifies of spore powder on both the Daschle and Brokaw letters precluded analysis of those samples.

A February 15, 2011 report by the National Academy of Sciences (“NAS report”), in which the NAS included its review of the FBI’s data and scientific analysis in the anthrax investigation, raises three questions about this DOJ/FBI response to me. First, with respect to the anthrax on the letter sent to Senator Leahy, the NAS report shows on pages 66 and 67 (Table 4.4) that the silicon content found by the FBI was 1.4% in one sample and 1.8% in a second sample. Why were both figures not provided to me in response to my questions?

Second, the NAS report shows on pages 66 and 67 (Table 4.4) that the FBI found the silicon content in the New York Post letter anthrax to be 10% when the bulk material was measured by mass and 1-2% when individual spore coats were measured by mass per spore. Why was neither piece of data provided to me in response to my questions?

Third and finally, the NAS report raises questions about the appropriateness of the measurements taken of the anthrax on the letter to the New York Post. Specifically, on page 77, the NAS report says:

ICP-OES analysis indicated a silicon content of the bulk New York Post letter material of 10 percent by mass, while SEM-EDX performed by SNL demonstrated silicon in individual spore coats at a level corresponding to 1 percent by mass per spore. At the January 2011 meeting, the FBI attributed this difference to a limited amount of sample available (only one replicate was performed for ICP-OES analysis) and the heterogeneous character of the New York Post letter. An explanation based on the heterogeneous character implies that the specific samples analyzed were not representative of the letter material. In such a case, additional samples should have been analyzed to determine representativeness. If such data exist, they were not provided to the committee. Lacking this information, one cannot rule out the intentional addition of a silicon-based substance to the New York Post letter, in a failed attempt to enhance dispersion. The committee notes that powders with dispersion characteristics similar to the letter material could be produced without the addition of a dispersant.

Were additional samples tested to determine the extent to which the ones examined were representative of the New York Post letter material? If not, why not? And, if the FBI does not have this data, how would you respond to the NAS that, without it, one cannot rule out the possibility that silicon was intentionally added? If the FBI did do these additional tests, please provide the resulting data to me and NAS.

As I noted the other day, the questionable silicon data seems to have come from the same lab that claims to have found proof that the 9/11 hijackers tested positive for anthrax, too.

Why Didn’t FBI Investigate AFIP’s Role in Starting the Iraq-Anthrax Rumors?

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I’ve been reading the National Academy of Sciences Anthrax Report and noted something odd in follow-up to the McClatchy report of the other day describing unexplained tin and silicon in one of the anthrax samples. (Here’s Jim White’s post on the report.) As McClatchy reported, there’s some weird data about silicon and tin in some of the samples.

The lab data, contained in more than 9,000 pages of files that emerged a year after the Justice Department closed its inquiry and condemned the late Army microbiologist Bruce Ivins as the perpetrator, shows unusual levels of silicon and tin in anthrax powder from two of the five letters.

[snip]

To arrive at that position, however, the FBI had to discount its own bulk testing results showing that silicon composed an extraordinary 10.8 percent of a sample from a mailing to the New York Post and as much as 1.8 percent of the anthrax from a letter sent to Democratic Sen. Patrick Leahy of Vermont, far more than the occasional trace contamination. Tin — not usually seen in anthrax powder at all — was measured at 0.65 percent and 0.2 percent, respectively, in those letters.

But it turns out that the weirdest data–showing the 10.8 silicon in the NY Post sample–didn’t come from FBI. As NAS explained, that data came from the Armed Forces Institute of Pathology.

Early in the investigation, AFIP performed [scanning electron microscopy-energy-dispersive X-ray] SEM-EDX analysis of a New York Post letter sample and found regions in the sample having high silicon content but no oxygen, suggesting the presence of silicon-rich material that was not related to nanoparticulate silica. While this observation could have led to an explanation for the difference between the bulk and individual spore measurements, follow-up experiments apparently were not performed.

A release from AFIP describing their analysis of the Daschle letter (not the NY Post letter) is one of the most cited sources of the claim that the anthrax was weaponized in a uniquely Iraqi fashion.

“Ft Detrick sought our assistance to determine the specific components of the anthrax found in the Daschle letter,” said Florabel G. Mullick, MD, ScD, SES, AFIP Principal Deputy Director and department chair. AFIP experts utilized an energy dispersive X-ray spectrometer (an instrument used to detect the presence of otherwise-unseen chemicals through characteristic wavelengths of X-ray light) to confirm the previously unidentifiable substance as silica. “This was a key component,” Mullick said. “Silica prevents the anthrax from aggregating, making it easier to aerosolize. Significantly, we noted the absence of aluminum with the silica. This combination had previously been found in anthrax produced by Iraq.”

This was the analysis that a USAMRID scientist used to declare that the anthrax was weaponized–which said scientist retracted after later Sandia analysis was done (from the NAS report).

An initial finding by the Armed Forces Institute of Pathology (AFIP) found, upon gross examination, that the spores exhibited a silicon signal and sometimes exhibited an oxygen signal. Subsequent studies conducted by Sandia National Laboratories (as described in Chapter 4 of this report) determined that the silicon was localized to the spore coat within the exosporium—that is, it was incorporated into the cell as a natural part of the cell formation process. The USAMRIID scientist who first reviewed the AFIP results and made statements regarding the presence of silicon and possible weaponization retracted those earlier statements.

So some of this was known before–that AFIP served a key role in early rumors that the anthrax was weaponized in a way that pointed to Iraq. But the NAS report seems to confirm that the Iraq rumors originated at least in part from AFIP.

That’s all very interesting for several reasons. First, because FBI claims to have gotten data on AFIP’s SEM-EDX tests just last year.

The committee notes that this information was not made available to it or to the FBI until spring 2010.

That would mean FBI didn’t get (or ask for?) the information until after it had closed the investigation (they closed the investigation in February 2010)!

It would also suggest–rather incredibly–that FBI didn’t hunt down this information when they were stonewalling Jerry Nadler about it (as McClatchy reminds).

New York Democratic Rep. Jerrold Nadler asked FBI Director Robert Mueller how much silicon was in the Post and Leahy letters at a hearing before the House Judiciary Committee in September 2008. The Justice Department responded seven months later that silicon made up 1.4 percent of the Leahy powder (without disclosing the 1.8 percent reading) and that “a reliable quantitative measurement was not possible” for the Post letter.

More interesting still, NAS can’t explain what relationship existed between FBI and AFIP.

The committee also reviewed reports of work carried out in parallel at the AFIP although it is not clear how closely AFIP and the FBI investigative and scientific teams worked together or coordinated their efforts.

I’m also confused about when AFIP did these tests. In its list of official tests, NAS describes the AFIP SEM-EDX tests as having taken place in November 2001.

But somewhere along the way, perhaps along with information about the investigation of a claimed al Qaeda anthrax site explored in 2004, NAS got additional materials from AFIP dating to October 2001.

AFIP Materials related to USAMRIID Specimens October 2001 (41 pages)

And still more interesting is the reference to documents provided to NAS in December 2010–at the time when FBI was trying to stall the release of this document–showing AFIP, along with USAMRID, purportedly conducted anthrax studies on the remains of the Flight 93 9/11 hijackers.

Finally, in the new materials provided to the committee it is noted that [polymerase chain reaction] PCR analysis was performed on human remains from United flight 93 on 9/11/2001 that were identified as those of the hijackers (B3D1). Analysis was performed at USAMRIID and at AFIP for sequences diagnostic of B. anthracis. One assay at USAMRIID gave positive results, but these results were believed by the FBI to be due to laboratory contamination. All other results were negative. As the committee learned at the January 2011 meeting, there were no tests done on remains from any of the other September 11, 2001 hijackers. [my emphasis]

So let’s see. At some point during the anthrax attacks in 2001, USAMRID and AFIP decided to do anthrax tests on material from Flight 93. They purportedly  found the hijackers tested positive for anthrax! But on second thought, FBI tells us, that positive result came from “lab contamination.” And then, presumably just after those tests, USAMRID and AFIP, perhaps working outside the chain of the official FBI investigation of anthrax, discover evidence implicating Iraq in the anthrax attacks. Results that, once again, further testing suggested was inaccurate.

Another example of lab contamination, I guess. Funny how that happens.

And the FBI wants us to believe that over the course of a 9 year investigation, they never decided to investigate the circumstances surrounding this partnership that somehow always resulted in convenient propaganda?

New Standard for Justice: Innocent Until a Secret Shrink Study Proves You Guilty after Your Death

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Our country apparently has a new standard for justice: innocent until a secret study–headed by a guy who may have had some responsibility for screwing up an earlier investigation and conducted entirely after your death–finds you were psychologically capable of committing a crime.

The LAT reports on a just such a report conducted on Bruce Ivins. It was initiated in late 2009 (remember, Ivins died in July 2008), at the suggestion of Dr. Gregory Saathoff, a psychiatrist who consulted on the investigation itself. And it was completed on August 23, 2010. Among the details the report apparently found that should have disqualified Bruce Ivins from having the security clearance he did is the fact that he put question marks next to some questions on a form he filled out in 1987 (those question marks should have raised eyebrows, definitely, but it’s funny they’re looking at them in this context now).

Mostly, though, LAT writer David Willman seems to suggest (and I’m not sure how much of this is speculation, off the record reporting, or reading the report itself) that the redacted parts of the report show that Ivins’ obsession with the KKG sorority in the 1980s should have disqualified him from getting clearance.

Some of the “disqualifying” behaviors that the panel said should have prompted Army officials to reconsider Ivins’ fitness to work in a secure biodefense facility were redacted from the report by Justice Department lawyers because of privacy concerns. However, based on investigative documents made public more than a year ago by the FBI and on remarks by Ivins’ acquaintances, this much is known:

Ivins became obsessed with Kappa Kappa Gamma in the 1960s, when a member of the sorority turned him down for a date. In the late 1970s and early 1980s, Ivins twice burglarized houses affiliated with the sorority.

Over the same period, he tormented a former member of the sorority, Nancy Haigwood, by stealing her laboratory notebook, which was integral to her pursuit of a doctoral degree, and by vandalizing her residence. Ivins was a postdoctoral researcher at the University of North Carolina in the 1970s when Haigwood was a graduate student there.

“Despite criminal behavior and sabotage of his colleague’s research,” the panel said, “Dr. Ivins was hired by USAMRIID and received a security clearance, allowing him to work with potential weapons of mass destruction.”

Now, I believe the report itself had as its stated goal assessing whether Ivins should have been able to retain his clearance. Still, the fact that people are still using Ivins’ KKG obsession as “proof” that he was the anthrax killer–without offering any explanation why that obsession led him to allegedly mail anthrax from outside of a KKG office 3 hours and 25 minutes from his home rather than mailing it from the actual KKG chapters closer to his home–is just blind faith.

Willman also describes the National Academy of Sciences report on the anthrax this way, to fluff up the case against Ivins.

Last month, a committee appointed by the National Academy of Sciences at the FBI’s request concluded that the scientific evidence implicating Ivins was not definitive but “is consistent with and supports” the bureau’s finding of a genetic match between his batch of anthrax and the material in the letters.

As Jim White has pointed out, the scientific panel was not so convinced–and provided a great deal of evidence as to why Ivins probably couldn’t have made the anthrax in his lab at Ft. Detrick.

Overall, the importance of the primary conclusion of the NAS report cannot be overstated (p. 4 of the report as marked, all references will use internal page numbers, not pdf numbers from my pre-publication copy):

It is not possible to reach a definitive conclusion about the origins of the B. anthracis in the mailings based on the available scientific evidence alone.

It’s bad enough that DOJ is using what was intended to be a lessons learned study (to prevent bioterrorism in the future, even though we’re not sure Ivins committed this crime; note that DOJ closed the case during the period of this study) to try to shore up their shaky case against Ivins.

But what really pisses me off is that DOJ was off contracting secret studies at the same time as it was repeatedly refusing to accept an independent review of their work on the case. Read more →

Adam Schiff Advocates Gutting Miranda

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Adam Schiff–a CA Democrat (!)–just filed a bill aiming to not only give prosecutors 4 days to question “terror suspects” before bringing them to court, but also expressing the will of Congress to let them delay Mirandizing suspects “as long as is necessary.”

The bill filed Thursday by Rep. Adam Schiff (D-Calif.) would change federal law by creating a procedure to question a suspected terrorist for up to four days before taking him or her to court without jeopardizing prosecutors’ ability to use statements made by a suspect during that time.

It would also express Congress’s view that authorities can delay reading Miranda warnings “for as long as is necessary” to elicit intelligence from a terror suspect.

I had a whole range of thoughts as I read this. I reminded myself that the time frame Schiff would allow prosecutors to hold people without bringing them to court is just slightly longer than the amount of time our country claims we can legally sleep deprive someone (remember, the reason we delayed bringing Faisal Shahzad to court was because we needed him available 24/7). I’m intrigued by the timing–not long before an election that the White House has said could result in Dems losing the House (and with it, John Conyers and Jerry Nadler losing their Committee and Subcommittee gavels).

But I’m also interested by what Schiff didn’t include in his bill: Any limitation on this to those who present a national security risk (as the hawkish Ben Wittes notes in a quote in the story). So can an environmental activist lose Miranda rights under this bill? Can Quakers?

So Why Can’t Democrats Rein in the Intelligence Industrial Complex?

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Jeff Stein had a piece on the response to the WaPo article on intelligence contracting the other day that started with this question:

House Speaker Nancy Pelosi has long wanted more members of Congress to know what’s going on at the CIA, but why doesn’t she announce a full-fledged investigation into the intelligence contractor mess, complete with televised hearings?

In it, he quotes from someone he describes as a Pelosi aide saying there’s little will to get this done.

Back to Pelosi: An aide, who like all the others speaks only on condition of anonymity, said she “certainly sees a need to step up oversight.” But after taking an informal sounding, he added, Pelosi found “there wasn’t any momentum for it.”

I asked her about that quote when we talked on Saturday. Her first response was to deny that such a quote could have come from one of her staffers, and to suggest it had come from the intelligence committee (which is what her office said in a follow-up to me as well).

Pelosi: You mean someone from the intelligence committee? Not my staff or my office.

When I asked whether there was any support for doing something about contracting, Pelosi said the WaPo article had raised awareness of the problem.

Wheeler: Is there the support in the House and the Senate to do something about all this contracting?

Pelosi: This has been very well read by members.

Wheeler: The Washington Post piece?

Pelosi: Yes. And it isn’t, it doesn’t come as a surprise to people. But it comes as almost a relief that finally some of this is out in the open.

Pelosi went on to describe all the problems with contracting: the cost, the lack of a single chain of accountability, the lack of information-sharing, and the turf battles. Then she basically said the Intelligence Committee would have to take a look–or, maybe, the Administration might assess whether it was making us safer.

Pelosi: I think there, my view is, I think the intelligence committees would have to take a really harsh look, and I would hope the Administration has to say, are the American people safer because of what’s happening in the intelligence community and I think it’s all about their security.

In response to her hope the Administration would do something about contracting, I noted that James Clapper–on his way to being confirmed as DNI–has been a big fan of contracting. Pelosi’s response was to direct responsibility back to the Intelligence Committee.

Wheeler: Although, again, Clapper has been involved in the contracting side and seems to be a pretty big fan of using contractors, I mean he kind of poo-pooed the whole article, so do you think Clapper, again, assuming he’s approved…

Pelosi: I don’t have to vote on him so I’m sort of, I’m always saying to the White House, why him? No, I just don’t know. I don’t want to go there. I don’t know enough to give you a precise view on that. But I do know that this really needs some careful consideration and some review and the intelligence committee is the appropriate place to do it.

Of course, the folks at the Intelligence Committee–at least according to Pelosi though not according to the attribution in his article–are the ones giving Jeff Stein anonymous quotes saying any real investigation of the contracting won’t happen.

For her part, Jan Schakowsky (remember, she was in the room for the interview) doubted the commitment (implicitly, I assume she means the Executive Branch, since they’re the ones still awarding Blackwater contracts) to reducing intelligence contracting. But she also doubts whether the committees (remember, she’s a member of HPSCI) know what these contractors are doing, and ultimately comes back to the question of whether they make us safer.

Schakowsky:While there has occasionally been lip service that we need to reduce the number of contractors, it’s been disappointing to me that in the last few months we’ve seen Blackwater get another big contract with the CIA and with the State Department. I would really question the commitment–any commitment–to reducing the number of contractors. Just even in the most sensitive missions.

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Closing Gitmo: Unintended (?) Consequences

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As you all presumably know, I’ve been in the city of sin all week, doing two days of training and then, yesterday, attending some really good panels at Netroots Nation.

One highlight of the week for me will surely be my panel Saturday at 1:45 Las Vegas time (4:45 ET). Congressman Jerrold Nadler, Center for Constitutional Rights Director Vince Warren, Matthew Alexander, American Prospect’s Adam Serwer, and I will talk about why we need to close Gitmo and how we can do it.

I fear we’re going to be talking as much about unintended consequences as we will about closing Gitmo the right way.

Take the case of  Abdul Aziz Naji. He’s the Algerian who had been detained at Gitmo, who objected being sent back to his home country because he feared torture. Though he appealed his repatriation all the way to SCOTUS (here’s Balkinization on the legal issues), he ultimately lost his bid to stay in Gitmo rather than be returned home.

And now, after being returned to Algeria on Monday, he has apparently disappeared.

The New York-based Center for Constitutional Rights, which represents many Guantanamo detainees, said Naji’s lawyers and family have been unable to locate or contact him since he was repatriated by the U.S. government.

“His whereabouts and well-being in Algeria are currently unknown,” it said in a statement. “Mr. Naji has disappeared since his return to Algeria, and is presumably being held in secret detention by Algerian state security forces.”

Pardiss Kebriaei, a lawyer with the center, said: “We know that he’s been transferred. But as for where he is … we don’t know. It’s very concerning.”

Now, Algeria’s government has denied that he was detained. Which is interesting since–as the Long War Journal points out–our own government called his repatriation a transfer, not a release. That usually means transfer into custody. That seems to suggest we did intend Algeria to hold him.

So where is he?

Anyway, hopefully CCR’s Warren will have an update when he speaks on Saturday.

Did Jay Bybee Accidentally Admit that CIA Experimented on Abu Zubaydah with Sleep Deprivation?

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Pages 100-102 of the Jay Bybee Transcript are worth reading closely, not least for the way Jay Bybee tries to shift the focus of discussion on torture from “severe physical or mental pain or suffering” to “prolonged mental harm” to avoid the obvious fact that CIA and DOJ approved extended sleep deprivation without having any clue whether it amounted to torture.

But I’m more interested in the retroactive edit on page 102, which seems to admit that CIA had already subjected Abu Zubaydah to 11 days of sleep deprivation by the time Jay Bybee signed the OLC memos on August 1, 2002. Here’s what Bybee originally said:

The CIA did not indicate that they intended to keep Abu Zubaydah awake for 11 days. They said this is what we have done. Here is the best literature on this.

In notes reflecting Bybee’s requested changes, he asked that “They said this is what we have done” be changed to “They said this is what we know.”

Bybee goes onto make a similar comment (though this one he didn’t try to correct). He repeatedly refers to the CIA’s studies.

Nadler: And if you deprive someone of sleep for a lengthy period of time, could you not be causing severe physical pain, too, without prolonged mental harm?

Bybee: We didn’t have any evidence of that from what the CIA told us, and that was based on their studies.

Nadler: What the CIA told us?

Bybee: Not just based on their studies. I’m sorry, based on the literature that they had surveyed.

But both Jason Leopold and I have pointed to reasons to believe they already had subjected Abu Zubaydah to 11 days of sleep deprivation. In other words, there is evidence to suggest that the CIA did, in fact, say, “this is what we have done,” and that they had done their own studies … with the guy whose sleep deprivation they were trying to get approved.

Oops! Jay Bybee may have accidentally told the truth!

Jay Bybee Suggests He Wouldn’t Recuse on Ghost Detainee Case

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When Jerry Nadler asked Jay Bybee whether or not it would legal to disappear someone for three years, the Appeals Court Judge refused to answer, saying he might have to rule on such an issue.

Nadler: Let’s assume you had been asked the question, would it be legal to keep people incommunicado in solitary confinement for over 3 years with no knowledge of where they were being held, with no contact with anyone other than the interrogators for 3 years?

[snip]

Nadler: I’m asking under the laws of the United States generally, is it legal or illegal in your opinion to do what I just described?

Bybee: I don’t think I can answer it. I’m very hesitant to speculate because these are the kinds of questions that may come up before my court. I don’t want to be prejudging.

So the guy whose signature set up our entire detainee abuse regime pretends, at least, that he might rule on the issue of ghost detainees as a Judge.

Anyone need any more reasons why Jay Bybee should no longer serve as an Appeals Court Judge?