
Could Bruce Ivins have produced his own large batch of pure anthrax spores?
In a previous diary, I examined the information presented by the FBI in their Investigative Summary (pdf) that was published in closing the Amerithrax investigation of the anthrax attacks of 2001. After first mistakenly assuming too small an amount of anthrax powder in the attack letters, I later corrected the diary to reflect agreement with the FBI’s statement from an anthrax expert that the spores in each attack letter would have come from the equivalent of 100 mL of the infamous flask labeled RMR-1029 that was in Ivins’ possession. This diary will work forward from that basis to ask the question of whether Ivins could have produced the attack material at the USAMRIID facility.
Here is the passage from pages 26 and 27 of the Investigative Summary where the production of RMR-1029 is described:
In 1997, USAMRIID commissioned another Army research facility, Dugway, to prepare large batches of Bacillus anthracis spores for an upcoming series of studies testing the anthrax vaccine, because USAMRIID lacked the capacity to do so. By the fall of 1997, Dr. Ivins received from Dugway seven shipments containing the concentrated product of 12 ten-liter, fermenter-grown lots of Bacillus anthracis – the “Dugway Spores.” By Dr. Ivins’s own account, these spores were not in perfect shape, so he had to “clean them up.” Indeed, he even discarded the seventh shipment because he deemed it to be inadequate. He noted in his lab notebooks the process that he used to clean them, and also sent e-mails to various people noting his frustration that he had to wash them. To the Dugway Spores, Dr. Ivins added concentrates of 22 two-liter batches of spores which he himself prepared with the help of a laboratory technician. He combined his spores with those from Dugway, and put them in two flasks, labeled “GLP [Good Laboratory Practices] Spores.” In addition, he created a Reference Material Receipt record on which he made the following notation: “Dugway Proving Ground + USAMRIID Bact’D – highly purified, 95% unclumped, single refractile spores.” Finally, in his laboratory notebook 4010, page 074, he described the end-product of these efforts as “RMR-1029: :99% refractile spores;
One of the footnotes to the paragraph above reads as follows:
Although he received 164 liters in total, once combined, the spores themselves were harvested and resuspended in a total of approximately one liter of liquid, divided into two one-liter flasks. At some point, when the volume was sufficiently depleted, Dr. Ivins combined the spores into one flask. See Attachment E.
As noted in the previous diary, RMR-1029 was at a concentration of approximately 3 X 1010 spores per mL, or for a one liter batch, there were approximately 3 X1013 spores on hand before any spores were used in experiments. The footnote reproduced above states that Ivins received 164 L of culture material to produce the final, cleaned spores, but this number reflects adding together the 12 ten L batches from Dugway with his own 22 two L batches that he produced. It does not allow for the one shipment out of the seven received from Dugway that Ivins discarded. Since the calculations I am trying to carry out here are aimed at how many L of anthrax Ivins would need to grow to produce the materials in the attack letters, I will assume that the discarded shipment represented 2 ten L fermenter batches from Dugway. (Seven shipments representing 12 ten L batches could be explained most easily if five shipments had two batches and the remaining two each had one batch.)
Therefore, if only 10 of the Dugway ten L fermenter batches were combined with Ivins’ 22 two L flask cultures, then a total of 144 L of anthrax cultures were cleaned and concentrated to the final one L of RMR-1029. For five attack letters with an equivalent number of spores to those contained in 100 mL of RMR-1029 each, that would mean that Ivins would have to have carried out 36 two L cultures to produce the equivalent number of spores as half of RMR-1029. Note the beginning of the first quoted passage above: Dugway was asked to produce their fermenter lots of anthrax "because USAMRIID lacked the capacity to do so".
Two L cultures were most likely the largest individual cultures Ivins could produce. After all, if he could have grown cultures of four or eight L each, he would have needed to grow fewer of them when he was producing his own material to add to RMR-1029. There is also a more mundane reason two L would be his upper limit. Without access to a fermenter, the largest culture flasks microbiologists commonly use are 2.8 L flasks commonly referred to as Fernbach flasks, as seen on the right in this photo. Although a larger flask is shown on the left in the photo, the Fernbach style is preferred because of its low profile. Bacterial growth rates for aerobic (oxygen-consuming) bacteria like anthrax are dependent on oxygen transfer which occurs at the interface between the growth medium and the surrounding air. Although it appears that the flask on the left is filled over the two L mark, such an arrangement would be unsuitable for culture because of poor oxygen transfer at the higher, narrower level of the Ehrlenmeyer flask. Fernbach flasks are not filled above the two L mark for similar reasons.
The flasks in the photo linked above are attached to a standard bacteriological shaker. Note that the "holders" on these shakers are interchangeable, but they commonly are not available in sizes larger than those shown in the photo. Also note that the large flasks take up a lot of room on a standard shaker. It would be expected that USAMRIID would have a large number of shakers (and shakers are available with larger platforms than the one in the photo), but it is very difficult to imagine how Ivins could carry out 36 of his two L cultures in a short time, especially within the time frame in which the FBI notes Ivins’ extended hours in the laboratory. Similarly, it would seem that so many large cultures being grown in a short time would run the risk of crowding out shaker space for other researchers in the facility, and the FBI does not mention other researchers noting excessive shaker use.
Footnote 10 on page 27 of the investigative summary notes that at most, 200 mL of RMR-1029 is unaccounted for. If we assume that material was used in the attacks, then the need for culturing is dropped to the equivalent of 300 mL of RMR-1029, which would still be about 22 of the two L cultures.
Here is the relevant passage from page 30 of the Investigative Summary explaining Ivins’ extra hours in the "hot suite" where anthrax could be safely handled:
However, beginning in the middle of August 2001, there was a noticeable spike in his evening and weekend access to B-313, which continued in spurts through October 2001, and then trailed off to his typical pattern. The data for 2001 revealed the following: January through July: eight hours and 48 minutes total in B-313 during off-hours; August: 11 hours, 15 minutes; September 2001: 31 hours, 28 minutes; October: 16 hours, 13 minutes; November: six hours, 20 minutes; December: three hours, four minutes. (See Attachment H; see also Attachment I, depicting Dr. Ivins’s off-hours lab access over four years). There was no big experiment or project going on in September/October 2001 that would justify all of the time in the hot suites. Even Dr. Ivins could not explain this extraordinary change in his work schedule.
Although the Investigative Summary, in discussing the off-schedule hours for Ivins, notes "He had unfettered access to the necessary tools to grow, harvest, and purify the anthrax, as well as to the equipment capable of performing the forbidden function of drying the anthrax" the subsequent discussion of time spent appears to be dedicated to the process of purifying and drying the spores. The production of the spores themselves is only addressed in that passing "grow" in the sentence above. Yet, as seen in this paper (pdf), the growth cycle for the vegetative (non-infectious) stage of anthrax requires at least an overnight culture (Figure 1 of the paper suggests about a 16-24 hour period needed for growth). Furthermore, a shift in growing conditions (and most likely, growth medium) is needed to achieve sporulation. Figure 2 of this paper suggests a sporulation time of another five to eight hours.
In short, the discussion in the FBI’s Investigative Summary appears to me to be able to account for Ivins’ late hours just before the attacks as devoted solely to the final stages of purifying and drying the spores involved in the attacks. For example, in discussing the abnormal time entries for September, footnote 17 on page 31 of the summary states:
Numerous microbiologists have concurred that two hours and 15 minutes would be enough time to dry Ba spores, depending on factors such as the quantity of starting material, the volume of liquid in which it was suspended, and whether a centrifuge was used to eliminate most of the water, leaving behind a pellet, or paste, capable of being dried in well under two hours.
However, accounting for the purifying and drying of the spores ignores the time that would have been devoted to growing them. I don’t see how the large number of two L cultures that would have been needed could have been produced in these same time slots. The flasks would need to be on the shakers over 24 hours for each batch, and that means other workers in the facility would have noted them. Since there is no mention of workers noticing a large number of abnormally large culture flasks on the shakers during the time frame in question, one is left with postulating that Ivins planned the attack much earlier and grew the large number of two L cultures one or two at a time. This process would have required months to grow the spores and combine the crude, first harvest of spores that were then processed in September and October of 2001.
Although the Investigative Summary does not mention it, one theoretical way to overcome absence of evidence for Ivins producing a large number of cultures would be if Ivins made a technological improvement in either the yield of spores from the culture process or the yield from the cleaning process. Also, the calculations here are assuming that the yields from the original cultures that contributed to RMR-1029, the fermenters at Dugway and Ivins’ flasks, were the same. The Investigative Summary provides no evidence on that front, although it is likely that information is present in Ivins’ notebooks, as he appears thorough enough to have recorded volumes received and spore concentrations in each batch shipped. The overall yield for clean spores in RMR-1029 comes out to 2.1 X 10 11 per L of original culture, averaged over the 144 L of culture that contributed to it. That is not a particularly high bacterial yield, so improvement by a factor of ten could be considered as feasible. With such an improvement, and with the use of the missing 200 mL of the original RMR-1029, Ivins might have needed only about 2 or 3 two L cultures to produce the rest of the needed material in the attacks. Those might be grown in the facility unnoticed, but he still would have had to be especially efficient in his time spent in the hot suites to produce them.
From the very large number of spores used in the anthrax attacks, it is much easier to believe that the material was produced in a fermenter. Although Dugway produced 12 different ten L batches for RMR-1029, and would need about 7 ten L batches at the average yield amount to account for the attack spores, fermentation facilities have access to larger fermenters. Only one surreptitious batch of about 70 L or more would be required to produce the attack material. Both Dugway and Batelle (referred to in the report as a commercial facility in the midwest, see page 35) had access to RMR-1029 and have the needed equipment to produce such a large batch of spores. How carefully did the FBI investigate the possibility of fermenter batches at these facilities? A single large fermenter batch seems to me a much more likely event than Ivins being able to hide the production of 36 two L cultures in a short time, develop a 10 fold improvement in the process, or hide the initial culturing of spores over a number of months prior to the attacks.
In short, the FBI has provided a feasible account of how Ivins could have dried the spores and loaded them into letters, but it has not provided an adequate account of how he was able to culture such a large number of spores without being detected.



47 Comments




JIM
I have posted your conclusion and a link to your blog at my CASE CLOSED blog … http://caseclosedbylewweinstein.wordpress.com/2010/02/22/jim-white-the-fbi-has-not-provided-an-adequate-account-of-how-dr-ivins-was-able-to-culture-such-a-large-number-of-spores-without-being-detected/
If you have any objection, let me know. You are of course welcome to comment on the CASE CLOSED blog.
LEW
Lew,
I don’t mind your link to this post and its conclusions. However, I see that you also have a link to my previous post, but your excerpts don’t reflect my correction of an error in the post’s original version. Could you please add a notation that my first post has been corrected?
Thanks.
This is a fine way to follow up your last post. Well thought through and demonstrating a serious weakness in the report.
Good work.
Thanks. This one took some time.
It was many eons ago in udergraduate days that I last grew anything in a lab. But the thought of dozens of large, heavy, 2-L, glass flasks on shakers at the same time in crowded conditions also makes me think that the likelihood of accidents would be high. Professionals probably wouldn’t try this approach routinely–that’s what batch fermenters are for, as you point out. So, if he tried, I’d expect that Ivins would be no more adept at it than anyone else. He’d be likely to spill or break a few flasks. As a result, at a minimum, he would have had more wastage than normal, not less. And the resulting mess and contamination would probably attract unwanted attention from colleagues and lab-safety people. So why would he try?
If anything, Ivins’ behavior strikes me as that of a man who suddenly has an awful suspicion about something that he was asked, asked to authorize, or asked to provide to a third-party under unusual but seemingly legitimate circumstances. Later, for whatever reason, he puts two and two together, goes, “OMG!”, and, being a paranoid type in a paranoid profession, wonders who is involved and how far it goes. He starts investigating, burning the midnight oil, backtracking, whether for professional, CYA, and/or genuine patriotic reasons. When the attacks happen, he starts acting really weird, because he suspects, rightly or wrongly, that his material was involved.
Yes, I’m discounting most his behavior once he became a suspect because he would have been under such an extreme level of stress that it would be expected to produce abnormal behavior by anyone. After all, he had observed what happened to Hatfill when suspicion fell on him.
Good point. I wasn’t even thinking of stress. I was thinking anger.
If we assume some level of professional and/or patriotic dedication, how do we expect a fellow who holds what he perceives to be the biological equivalent of the atomic bomb to feel and behave the morning after it is used? Particularly if he thinks that he is being used to further the plot?
“Anger” is probably way understating it. At a minimum, you’d expect a savvy FBI investigator to give the possibility more thought than they seem to have.
Indeed. It would be natural for him to spend a lot of time thinking very hard about everything that had gone on with his material, since it would have been such an obvious starting point for what was done and he knew so much about anthrax. Although the FBI report makes a big deal out of Ivins’ initial comment that the material wasn’t produced “in a garage” from the standpoint of the purity of the material, I’m wondering if the comment didn’t apply equally to his understanding of how much material was present and what it would take to produce it. I’m wondering if he immediately suspected Dugway or Batelle and knew that would involve people at very high levels in DoD to achieve. That would sure scare me…
tough subject to write on jim, due to the tall grass laymen readers (like me) need to navigate. but I think I have your jist and wonder if there is any mechanism to question fbi regarding the culturing problem.
thank you for doing this. tough one to write, I reckon. is there anywhere you can take it from here, or is it now safely under the rug?
I would suspect that a Congressional hearing would be one of the very few ways to ask the FBI address the problem. The most likely folks who might take up the issue would be Rush Holt, Pat Leahy or John Conyers. I may try calling those offices in a few days if no information is brought forward to undermine my calculations or assumptions.
Jerry Nadler and his House Judiciary subcommittee should be high on that list, probably, Jim, regardless of what Conyers may or may not be doing.
[And this time, they should forewarn the FBI: "Come prepared, with the responsible experts, as necessary. We refuse to wait another seven months, or even one month, this time before getting answers to our most important questions."]
I just want to highlight a key point that you made near the end of this very informative and important diary, to clarify that you are simply surmising about what Ivins could theoretically have been capable of doing to increase yields, but not in any way stating that he did, or that there is any evidence that he did, or tried to:
In other words, I understand you to mean by the bolded statements that in the event, or provided that, Ivins had somehow created such a ten-fold improvement in bacterial yields, he wouldn’t have needed to make as many batches of new culture (only 2-3, 2 liters at a time), as he would have had to make to add to his stock (22-36, 2 liters at a time) if each new culture had the same (relatively-low) bacterial yield as the existing original culture. And also that the FBI summary neither mentions such an improved-yield possibility, nor provides any evidence that such a ten-fold bacterial yield improvement (or any other level of yield improvement) had been attempted or implemented by Ivins.
[With regard to your previous diary on this, Jim - is there any definitive public evidence about what the actual weight of material in each of the five envelopes was? The statement in a newspaper that you relied on to issue a correction/retraction said (going by memory) "1.5 grams or less." Where is that figure from, and can we tell how accurate it's likely to be? In other words, how much less could the actual figure be, if anyone knows?]
OT to powwow (with apologies to jim) – fwiw, i didn’t get a call back from the parliamentarian’s office yet today, but did just try them again. the receptionist (yeah, no more voice mail) told me no one was available and i didn’t leave another message, having just left one on friday.
Off-topic reply, with apologies to Jim.
Thanks for the update, selise. I was wondering whereabouts in comments I might find you today, if need be. It’s starting to sound like a pattern with them, isn’t it. They still owe you a call-back from your voicemail the Monday of the snow week too, don’t they? So I make that two no-responses to date. Maybe in the morning you could try asking when someone will be available to take your call, and what their name is.
more OT to powwow (sorry jim!). this has definitely been my worst experience with the sp’s office. anyway, i did ask when might be a good time for me to call back (receptionist said she didn’t know). and i’m not comfortable (at least not yet) approaching them other than as a sort of supplicant (as far as i know as a practical matter they aren’t required to take questions from the general public, so i’m depending on their good will and don’t want to jeopardize that.) i did check some of my old notes (from dec 2007 when i called with questions regarding the fisa / dodd / cloture process) and have the first name of the person from the sp’s office who was extremely helpful at that time.
(and since i’m already OT on jim’s thread, re the riddick’s footnote 561 to the congressional record for sept 25 1986 precedent on what business does not constitute a speech for the purposes of the two-speech-rule: my reading is that they clearly did not intend the list to be all-inclusive and also i’m pretty sure that while some actions may not constitute a speech on it’s own, it does cause the senator currently speaking to lose the floor (and therefore end their current speech) either by bringing the action themselves or yielding to another senator. don’t know if that helps, i’m trying to work through your comments on this issue, and am not sure i’m clear on them as you were, i think, changing your own views as you read through the relevant bits from riddick’s – but i think there needs to be three lists: what constitutes business, what constitutes a speech and what causes a senator to lose the floor)
Thanks for clarifying a very important point and placing the emphasis where it belongs. Just that it’s theoretically possible for Ivins to have made an improvement in the process is quite a reach for having any evidence he did so.
The other reason I tend to believe the larger amount for how much powder was in the envelopes is that it leads directly to agreement with the expert’s opinion that the equivalent of 100 mL of RMR-1029 would be needed to produce what was in each letter. It’s likely the expert would have been given access to all details known at the time about what was in the envelopes, including amounts. Further, it makes sense that a scientist as careful as Ivins would not take all of the material from the envelope merely to do his plating assay and microscopic examination. It’s clear that many other analyses were carried out on material from the Leahy letter, including DNA analysis (although this could have been done on colonies that arose from Ivins’ initial plates), electron microscopy, elemental analysis and probably others. The assays I’ve listed have been described in various reports I’ve read and make me regret even further rushing to post an argument based on 13 mg representing all of the powder in the envelope.
As for the OT comments, I’m honored you and selise would put them here. The work the two of you are doing on the filibuster is vital, and I really appreciate the efforts the two of you are putting into it.
Ah, many thanks, Jim. On multiple fronts.
Jim, thank you, for your informed investigative work (for lack of a better term), doing, as you are, the Bureau’s work for them. I also applaud the suggestions you and robspierre have made regarding Ivins, and what he was dealing with … once awareness dawned.
Until a serious investigation of the too-many questions around this case is begun, any thoughts Ivins might have had that he was being framed, would appear to still have curency.
As the FBI would have it, now, Ivins possessed the power to be in two places at the same time, and single-handedly, right under the noses of others, contrived to produce a relative mountain with mole-hole apparatus and pigeon-hole time-slots.
And, for me, there remains the question of clear motive
Ivins death offered a convenient solution to a problem that must have vexed someone. With Ivins gone, who might protest a bit of “cleaning-up”, as it might well have been?
And so we are left, then, all of us … with doubts.
Thank you, Jim, for so ably helping us frame the meaning of, and understand, one of the questions, and, perhaps, a bit of the man.
DW
Thanks, DW. It does seem truly tragic that this case is closed. Far too many questions still linger.
selise and powwow!!!
My continuing thanks and appreciation to you both.
(Someday, when selise calls, I’ll wager, thoughtful people will respond with a becoming alacrity …)
DW
[Warning: The following may all be clear as mud...]
That’s not so good to hear. That’s the view I first assumed (I think @ 16 of the first working thread), and then later revised in my last two comments in that thread, by taking a different approach to the question (the “isn’t ‘business’ logically ‘speech’” approach). [And it would mean, as you probably realize, that they may not have carefully preserved the integrity of the two-speech rule - if future points of order are upheld in line with the apparent thinking behind Footnote 561's precedent - as a constraint on real (if bad faith) filibusters.] I do think and agree – because the 561 precedent language seems clear – that other actions can in future be considered “non-speech” too, even though not now listed in 561. But I’d come to think (it would, that is, “stand to reason”) that they’d have to be actions of a similar nature as those listed – brief, basic things, and less meaningful, for example, than (“business”) motions.
To some extent, selise. The bolded part seems logical to me, in general, though precedent is thin on it, and Footnote 561 specifies some actions where that is not the case (losing the floor doesn’t make the action a “speech”) – but it’s basically a form of the ‘business as speech’ question I included in the second working diary. So I don’t think that we can categorically assume that losing the floor, on its own, can be used to define the ending of a speech (simply because half or more of 561′s officially “non-speech” actions also cause the Senator to lose the floor).
My shorthand (not comprehensive) list of actions (whether they’re on the “business” list, the “non-business” list, the “non-speech” list, or none of the above) that cause a Senator to yield the floor (culled from precedent):
Calling up an amendment
Making a motion
Making a motion to reconsider a matter
Making an appeal
Making a point of order
Suggesting the absence of a quorum
Asking for the yeas and nays
Note, too, that although we saw it go unenforced in the D’Amato 1992 filibuster, if challenged a Senator cannot yield to another for a unanimous consent request (as D’Amato did once for Baucus), without risking losing the floor (although he can make a UCR himself without losing the floor), because a Senator has to be recognized to offer a UCRequest – and, importantly, no Senator holding the floor can recognize another (he can only yield for the purpose of being asked a question – absent, as always, unanimous consent) – the prerogative of ‘recognition’ is entirely the Presiding Officer’s. So D’Amato actually could have lost the floor by agreeing to let Baucus do what he did, if someone on the majority side had played hardball.
You’re obviously homing in on the relevant issues here. But that particular set of lists, of course, will share actions. And I had been starting to think that Footnote 561 may have set the precedent that if an action (that a recognized Senator can take) isn’t on its “non-speech” list, it is, more than likely, a “speech” for purposes of the two-speech rule [that's where I changed my views in the first working thread; at first glance I assumed that 561 was more a sampling of actions; then I decided that it was probably actually a careful effort to identify a type of very-limited action as non-speech, that intentionally left out a lot of more meaningful (including "business") actions - but your research of the 1986 floor debate perhaps is now contradicting this view].
We have three formal lists of actions now in Riddick’s: The Quorum PDF’s “business” and “non-business” lists (pertaining to the question of intervening business between live quorum calls), and the Debate PDF’s Footnote 561 “non-speech” list. What we don’t have, and need, is a better understanding of whether – if this scenario should ever develop as a standard filibuster ploy, which may be doubtful – certain “business” actions, standing on their own (not a single extra word spoken) – whether or not they automatically cause the Senator to lose the floor (UCRequests, for example, don’t) – would qualify as a first “speech” the next time the Senator is recognized.
See the following points from Dr. Meryl Nass, courtesty:
cryptome.org/0001/meryl-nass.htm
“1. The report assumes Ivins manufactured, purified and dried the spore prep in the anthrax hot room at US Army Medical Research Institute of Infectious Diseases (USAMRIID). His colleagues say the equipment available was insufficient to do so on the scale required.”
“2. But even more important, the letter spores contained a Bacillus subtilis contaminant, and silicon to enhance dispersal. FBI has never found the Bacillus subtilis strain at USAMRIID, and it has never acknowledged finding silicon there, either. If the letters anthrax was made at USAMRIID, at least small amounts of both would be there.”
“12. FBI claims Ivins was able to make a spore prep of equivalent purity as the letter spores. However, Ivins had clumping in his spores, while the spores in the Daschle/Leahy letters had no clumps. Whether Ivins could make a pure dried prep is unknown, but there is no evidence he had ever done so.”
There are other issues, but basically, the answer is no. Keep in mind that these letters (the Daschle-Leahy Oct 9th letters) contaminated the entire Senate Hart Office building as well as mail facilities between Princeton and Washington – even though the letters were carefully taped.
Not only that, the material was essentially pure spores, free of vegetative debris, at a trillion spores per gram. This indicates that several purification stages were used – not the kind of thing that could be done without people asking questions.
Then, you have the silica spore coating noted by USAMRIID and AFIP researchers, which reduces clumping and improves dispersal – but which also requires some high-tech equipment – that Ivins didn’t have – to prepare.
So, the obvious conclusion is that Ivins couldn’t have done it.
There was no added silica. It’s pretty well established now that the silicon detected in elemental analysis was from silicon that is naturally included in the spore coat, not added silica. Even USA Today has this information.
The B. subtilis issue is a big problem for the FBI as Nass points out. I may touch on that when I write my planned diary on the genetic analysis carried out, but it may need an entire diary on its own.
The Ivins notebook page released last week showed that Ivins’ prep of RMR-1029 had no clumps.
powwow (with many thanks to jim!), before i reread your comment and try to wrap my head around the issues (it’s not your writing — please don’t think i mean to imply that! it’s a combination of my ignorance, etc and i think a bit the complexity of the issue).
here are some bits from the sept 25, 1986 congressional record (my quick typing — watch for possible errors) from page 26150 (this is towards the end, my photocopy goes from page 26137 to 26154 and i could probably use a few more pages on either end):
Mr. DOLE. And then, any additional speaker, or from this time on then, in addition to the impact it would have on the distinguished Senator from South Carolina [see my previous, this must be hollings], any of the requests that the distinguished minority leader pointed out at a future time would not, in any event, constitute a speech?
The PRESIDING OFFICER. That is correct.
Mr. DOLE. Are there any others that come to mind of the Chair that should be included?
The PRESIDING OFFICER. The only additional element that comes to mind is a request to divide an amendment as a procedural request.
Mr. DOLE. In addition, there were, I think –
Mr. BYRD. Would that not be included within the verbiage of the appeal that I made? I said any procedural motion –
The PRESIDING OFFICER. The Senator is correct.
Mr. BYRD. Or request.
And besides, I did not phrase my appeal in such a way that it is the alph and omega; it is not all inclusive. But these specifics were all set out only as examples.
The PRESIDING OFFICER. The Senator’s statement was not all-inclusive. It was by example.
Mr. BYRD. Exactly.
[...]
Mr. BRYD. Mr. President, in response to the Chair’s request that the appeal be made in writing, which the Chair has a right to make and any Senator has a right to make, I have prepared the following appeal in writing:
The PRESIDING OFFICER. Can the Chair ask for a clarification on the term “standing alone”? Is it the Democratic leader’s intention that if a motion of the sort he has mentioned is preceded by as little as two or three sentences of explanation, that would constitute a speech?
Mr. BRYD. I am attempting to avoid a situation in which a Senator in making a motion to the table, for example, or making a point of order, or making an appeal, stands and lays the predicate for his point of order and speaks thereon; the motion itself would not be standing alone. It would have been preceded by a speech. What I am trying to say is that the motion itself, standing alone, in and of itself, does not constitute a speech.
The PRESIDING OFFICER. For further clarification, the Senator is really speaking of the words that constitute the motion itself?
Mr. BRYD. Yes, the procedural motion.
The PRESIDING OFFICER. Yes.
Mr. BRYD. Or request. And we should keep in mind what we are talking about is the two-speech rule, and that the two-speech rule refers to two speeches on the same question in the same legislative day….
……………………………………
selise here now. i’m going to try to get this scanned in tomorrow afternoon (will call sp’s office in the morning). if i can, doing the ocr (optical character read) should be a breeze (i’ve done it on all the riddick’s sections – makes cutting and pasting much easier) and i can post a text file or pdf for you and others to read to make sure i’m not missing something important or confusing something.
btw, this entire precedent was all worked out while they were under cloture. but byrd did say iirc (and will post if useful) that it applied to non-cloture situations as well.
Jim, I have to confess that the Ivins issue has never been at the forefront of my priorities.
But,I respect your judgment, and as such, your two threads regarding these issues alerted my interest,and in the process, jogged my memory about an article I had recently read when perusing some comments about anthrax scientist’s David Kelly’s death, elsewhere.
The piece was about Porton Down,the UK bioweapons facility ,and the sudden death on November 1,2001,of Russian born anthrax scientist working there;coincidentally, in the same time frame the anthrax letters were being mailed here in the US…(actually , his death was just one month after the Leahy letter of October,2001.)
He owned a biolab called Regma Bio Technologies , headquartered at Porton Down in the UK, but he had a contract with the US Navy.A VERY informative and encyclopedic article.
NOTE: Scroll down to the section entitled “Death of a Scientist”,in the body of the article.
And as a disclaimer, I am NOT inferring any connection, merely pointing out the coincidence of timing and subject matter.
Porton Down: Facts, Discussion Forum, and Encyclopedia Article
Porton Down is an UK government and military science park. Science park. A science park or science and technology park is an area with a collection of …
http://www.absoluteastronomy.com/topics/Porton_Down – Cached
the anthrax killings were used as justification for a massive build out of bsl-3 and bsl-4 labs, even in heavily populated areas and the militarization of what should be national health research. jmo, but i think it is utter madness and i am very very glad that jim is on the ivins case.
I think you would find the info at the link I provided to be of particular interest, selise.
That massive increase in BSL-3 and BSL-4 labs means that there will be many more suspects to investigate if/when there is another attack. That larger number of facilities, with the very large number of additional people handling such dangerous agents also increases the odds of more deranged people having access to the ability to do great harm.
bingo! (to say nothing of accidental releases)
once again, the actions we take in response to terrorism…… increases the risks of more attacks.
thank you. i have no doubt i would, and maybe i’ll have the time at some point… but right now, my few remaining little gray cells are pretty much occupied with senate rules and precedents. i’ve even had to temporarily put aside my econ studies :(
which just makes me extra glad to know that trusted others have the ivins case covered.
…later friends …and many thanks again to jim for being such a generous and gracious OT host.
Funny all of this means You believe in everything the Government has in it’s reports.
Since when has any part of our Government produced true honest reports on anything?
The Russian defector scientist I referred to was named Vladimir Pasechnik, and for the record, the date of his death is not constant in the many articles referring to it.
It is reported ,in alternate sources,from early November of ’01 to November 21,01.
He and David Kelly were associates at Porton Down.
However, the Regma Bio Technology contract with the US Navy was issued in August 2002, AFTER Pasechnik’s death in November,2001.
I just wanted to clarify that for the sake of the record.
Jim, this diary, and your previous one, have been very interesting. I can’t begin to understand all the science behind the purification of anthrax spores. You (and several of the commenters) appear to have a pretty good knowledge of the science.
As an aside, just wondering what Steven Hatfill is thinking about all this. Has he competely disppeared from view, or is he delibrately keeping a low profile or has clammed up to avoid getting back on the radar screen. But he might have an interesting viewpoint on all of this, especially in light of the bad feelings he must have from what he went through.
Uhm, no it doesn’t mean I believe everything they are saying. The whole point of the last two diaries has been to question the government claims in the report.
I agree that it would be interesting to hear what Hatfill is thinking, but he has received a settlement from the government. Most settlements of this type come with a prohibition on discussing the case further. I think the odds are very good that there is such a clause in his settlement. He got just under $3 million up front and now gets $150,000 a year for 20 years, so he has a strong incentive to keep his mouth shut.
If that’s the appeal language that the Senate ultimately voted on that day, selise, to set Footnote 561′s precedent, I don’t think there can be any doubt that the examples of such “procedural motions or requests” in the precedent itself are, as you say @ 14, not all-inclusive, as the Senators themselves clearly indicate during that debate.
What that floor debate excerpt does, for my reading of the precedent, is to put more emphasis on the category of “procedural motions or requests” as the (limited, I assume) category of actions that may be exempted from the two-speech rule. Thereby making the definition of that “procedural” category pretty crucial for understanding the full import of the 561 precedent.
If that definition, though presumably not specified elsewhere in rules or precedents (and only by the examples listed in 561), depends, more or less, on the nature of the action involved, I think my ultimate read of 561 in the first working thread would still be the better read of my two takes there, although the best read is perhaps somewhere between the two. [By the way, applying a standard that the involuntary yielding of the floor automatically creates a "speech" would, I think, be a prime example of too "mechanical" a reading or test of the two-speech rule, according to, and using the language of, the 561 precedent itself.]
So this makes knowing how such “procedural” motions or requests are defined by the Senate (as compared to other “motions or requests”), or likely would be defined in future, a question that we should definitely try to get the Senate Parliamentarian to answer.
Very, very helpful discussion and clarification by the Presiding Officer and Bryd there, selise. Thank you for transcribing it.
That’s Minority Leader Byrd clearly and unequivocally pointing out that even for those (presumably-limited) “procedural motions and requests” that are otherwise exempted from the two-speech rule, any additional verbiage beyond the taking of the action itself transforms the action into a “speech.”
Still leaving the question: “Do, or would, ‘business’ actions generally [points of order, making appeals, and requesting the yeas and nays aside], standing on their own, logically constitute ‘speeches’ under the two-speech rule?” But we could expand or refine it now to: Do, or would, any other precedent-defined “business” actions (aside from the three mentioned in the 561 precedent), standing on their own, qualify as “procedural” motions or requests, under the 561 precedent’s exceptions to the two-speech rule?
That too seems indisputable, selise, from the posture and wording of the 561 precedent in the Debate PDF. [The odd thing, in fact, is that they were trying to enforce the two-speech rule during cloture debate (assuming a cloture motion had passed, that is) - because, though there are, as I believe the Senate knows well, conflicting precedents on it, there seem to be clear indications that the drafters of the 1917 cloture rule did not intend for the two-speech rule to apply during cloture debate (they had instead created other provisions limiting how much one Senator could speak on the matter on which cloture had been invoked).]
OT to powwow: still a little muddy this morning, but i’ve been distracted by what appears to be failing logic board on my laptop. emergency HD backups and fingers crossed. (fortunately most of my filibuster related notes are also on my desktop, so i can still call sp’s office this morning (waiting until after 9:30 est). my first 6 questions are pretty straightforward and if i can get them answered i will ask for a follow up all in a day or two on the more complicated questions i am still trying to understand myself.
edit to add: powwow, i was typing this comment just as you were posting yours @35. now to read…..
more OT to powwow: from your comment @20:
are there any precedents or examples where this is NOT the case?
i was thinking especially of the issue of noting the absence of a quorum – not, i think, a speech when “standing alone”, but causes the speaking senator to lose the floor and marks the end of the current speech.
and that was also how i understood the bit you described @35 as:
[Yikes, on the hardware problems... That's all you needed. Hope you get the backup(s) done.]
Suggesting the absence of a quorum is, indeed, not a speech – because Footnote 561′s precedent explicitly includes it (and because, without a quorum, doing anything but adjourning or forcing a quorum to appear in the Senate is unConstitutional) – though it does result in the Senator losing the floor. Were you asking for a specific cite for the ‘losing the floor’ part of that, or other, examples with the following (I’m not quickly grasping what the “not” here is referring to):
For the purposes of what we need the Parliamentarian to explain or answer, my default premise is that all actions that a Senator could take during a real filibuster that qualify as “business” in the Quorum PDF (and could therefore intervene between live quorum calls, whether or not, on their own, they qualify as “speech” or “non-speech”) would be made with no other verbiage attached. Because it seems pretty safe to assume, as the Byrd explanation helps confirm (for official “non-speech” actions, at least), that any verbiage at all – outside an action itself – will constitute a “speech” under the two-speech rule.
So what we’re trying to prove (this is the proving the negative part of this exercise) is that there is not a tactic realistically available to the filibustering side that would allow them to manipulate or game the two-speech rule by speaking only to take a “business” action that is also deemed not to be a “speech” (so long as no other words are attached to the action, which is what I’m assuming will be the case, for the purposes of this proving-a-negative exercise) between live quorum calls.
that helps. thanks! for some reason, i was thinking only of a senator actually engaged in debate (speech).
some good news (although not great news)…. i just got off the phone with a very nice person in the sp’s office who was willing to answer my questions (although “i don’t know” figured frequently in the answers) and did not seem rushed or unwilling to talk — i ended the conversation while she was still willing to continue — but i didn’t want to press my luck beyond a few questions, so i told her i had more questions on things like what qualifies as business and related, about amendments and filing the tree, and i was sure to follow up about today’s but that i wanted to do some more homework first. i have her name and i asked if i could call her back for these questions later this week and she said sure, so long as she has the free time.
not, i think, a lot of info or unequivocal answers today. but the answer to your: “Question 1. Is filing a cloture motion under Rule 22 an optional procedure or action by the majority Party?” is a definite “yes, not required.”
so sorry, i’m rushed for time and may be until very late tonight (and may not have time to attempt the scanning — will just have to see how things, including the weather, go). will post more as so as i am able (nothing to hold your breath over) tonight or tomorrow morning. i’m just very psyched to have gotten to talk with someone who seemed interested or at least willing to educate a member of the public (as my previous experiences had taught me to expect) and wanted to let you know that, at least, asap.
I’ll take it, selise! That’s probably more than half the battle right there… [Especially if we can eventually get a name and position attached to the definite "Yes, not required."]
Indeed. Congratulations on getting through again at last.
Don’t stress yourself out about getting things scanned in the middle of a hardware crash and bad weather, etc. Do what you need to do, and get back to this when you can – it can’t hurt to let your mind process things more in the meantime.
For my part, I’ll throw out a couple of points that make me further lean toward the notion that we (and the SP) may not be able to completely rule out the theoretical possibility of the ‘live quorum/motion/live quorum/unanimous consent request/live quorum/motion/live quorum/repeat’ scenario that ericj was postulating (by transferring a cloture environment scenario to a real filibuster) in the first working thread:
In comment 16 in that first thread, I noted an apparent conflict between two precedents with regard to motions (quoting them both, one of which is the 1986 Footnote 561 precedent). [I also quoted some precedent in comment 18 which applies here, I think, but I'm disregarding that for the moment, since I don't think it resolves this conflict.] After seeing Byrd, in the 1986 floor debate, refer to (apparently) a “motion to table” as one of the “procedural” motions or requests exempted from the two-speech rule (although the precedent itself doesn’t include a motion to table as one of the examples), I checked the date on the other, conflicting precedent – it was set in 1947.
Presumably that 1947 precedent – which says, simply: “A Senator who has spoken twice on the same question may be recognized to make a motion,” [Footnote 559] – I’m starting to think that the Senate had to (or did) take that 1947 precedent into account as part of their 1986 re-evaluation of the reach of the two-speech rule. [Although, logically, given conflicting precedent, the most recent (and more comprehensive) version would stand, regardless.]
Meaning that perhaps [though I guess I'd need to know first what isn't a "procedural" motion or request in the Senate] even meaningful precedent-defined “business” motions (and other similar actions, like unanimous consent requests) would also qualify as “procedural” motions or requests, and thus be exempted from the two-speech rule, under Footnote 561′s precedent. Which is what Byrd referencing a “motion to table” in floor debate seems to infer, since I assume that if a motion to table isn’t a speech, neither are most other motions.
And if we couldn’t prove that the “business” of motions or unanimous consent requests qualifies as “speech,” when offered standing alone, then I don’t think that we’d be able, in the end, to prove this particular negative. In which case we’d have to consider that the live-quorum-vote approach to, basically, avoiding filibuster debate while holding other Senate business hostage – despite the apparent lack of such real filibuster practice in the past (or there’d be more precedent about it, one way or the other), and the effect of the absurdity of such a tactic on a minority’s reputation – though remote, is still a possibility – unless and until, at least, a real filibuster actually unfolds that way, or, more to the point, is prevented from unfolding that way, if attempted, by some old, or some new precedent.
All just for what it’s worth, pending more definitive information.
in response to Jim White @22
Here’s the AFIP report, the Armed Forces Institute of Pathology, from 2001:
Detecting Environmental Terrorism: AFIP’s Department of Environmental and Toxicologic Pathology provides critical DoD, Homeland Defense programs by Christopher C. Kelly
Armed Forces Institute of Pathology ^ | October 31st, 2002 | Christopher C. Kelley
Hopefully that clears the issue up. Ivins had no silica additives, there were none such at Fort Detrick, which doesn’t weaponize spores – although it is clear that at least two other labs in the U.S. had that capacity – Battelle in West Jefferson Ohio and the Dugway Proving Ground in Utah.
No, that report, from 2001, is thoroughly debunked. The clean dry spores disperse in air on their own. The XFAS saw naturally occurring silicon in the spores. Look at the electron micrographs in the USAToday story I linked and also read this C&E News article from 2006. You can’t go wrong with Mat Meselson. He’s one of the top scientists around and if he looked at the spores and said they weren’t coated, you can believe him.
That being said, I still feel the most likely place the attack spores were produced was Dugway, with Batelle a close second. It’s almost impossible Ivins could have cultured them without being detected.
By the way, I explained this to you over a year ago, when your handle had c’s instead of k’s.
then that will be my first request when i call back. i expect i might have to go through their pr person — at least that is what has happened to me almost every other time i’ve asked to quote someone by name. but i haven’t asked in the sp’s office before and will try next call. actually, now that i think about it for a few seconds, it might be a good entre into asking if i can email a few questions.
no snow, back up update is complete without another logic board failure. so now, my ibook is allowed to die, if it must. *g*
no scan though. i know you don’t seem to concerned about it, but there are pages and pages of byrd explaining precedents (what is, what is not, hierarchy of precedents, etc, etc. he really gives the senate a lesson to explain what he is doing and why). very interesting and the majority seems quite content to have him take the lead in that. anyway, i could have missed the most important bit that you would pick up in a femtosecond. that is why i want to post a scan — pure insecurity on my part.
anyway, will try to cogitate tonight and post an update in the am — either here, or if i feel motivated and you are up for it, in a diary for a new working thread.
Phew – glad you got that backup done.
Now that you’ve found an apparently-willing SP participant for a Q&A, selise, I was wondering if an email approach might not work best for her, especially if she’s both very busy and not sure of some answers on her own. She could take her time to answer and have a chance to check with others, without interrupting her other duties. And then you’d have the information already transcribed, and hopefully available for blog-publication with attribution.
Hmmm… That does sound important and interesting. It also sounds like something we’d want the Senate itself to have right in front of it, if and when this question came up in a future real filibuster. It would probably help inform the Senate Parliamentarian’s perspective on some of our questions, too, if they aren’t already familiar with the specifics of that floor debate.
I am intrigued by the Presiding Officer (presumably being coached by the Parliamentarian) saying “The only additional element…” in this unfortunately-truncated exchange with Majority Leader Dole:
If there are more such exchanges, it certainly wouldn’t hurt to take them into account in our assessment of the precedent (although I suppose there’s no guarantee that the Senate itself would do likewise if and when the issue next comes up).
I think I’ll be able to participate in a new working thread over the next few days, selise, if you decide to go that route. It’s easier to do when you’re not the diary author having to ‘hold the fort’ as it were – just be prepared to be tied down by it if you go that route and it gets some exposure. [Maybe if you go ahead and scan the 1986 debate, that could be the basis for a new working thread post. Although I'm thinking that you may end up needing to track down the tail end of that debate as well, to confirm the final appeal language that the Senate ended up voting on to set the 561 precedent.]
great ideas thanks. i do have the pages through to the vote and i’m pretty sure that although there is some intervening business (apparently while the minority consulted) when the vote is taken on page 26513 it is to byrd’s written appeal above. but it’s always good to have other eyes to confirm or point out what i’ve missed. so i could post in a diary with what i’ve already transcribed, plus some of the additional bits i think may be of interest and links to the scanned copies (once i’ve gotten them). at least that would get this discussion off jim’s thread (who has been extremely generous – thanks again jim!), and also get the reference onto a diary that would make it more visible to anyone with an interest in the weedy details.
i would, however, like to get a bit more from the the beginning, before the ruling from the chair on the two speech rule, because it looks like it might contain some additional interesting material too – on how to hollings got around a ruling regarding the need for business between two quorum calls, it’s still under cloture so i don’t know if it applies (and unlike the two speech rule discussion, there is no statement that the same rule applies outside of cloture but i don’t see any indication that it wouldn’t and you may find it useful for an example in support of ericj115′s earlier question, “in order to get around the “intervening business” required between quorum calls, can’t they just make some random motion (even if it fails)?”
if there are additional pre 1989 references to the record from riddick’s footnotes (beyond those you mentioned prior to my first trip to the library) that come to your attention or you think would be useful to have, please let me know. the snow came last night, but only about a foot and expected to stop soon and the library is open (i have yet to be plowed out though, hopefully soon.).
quick OT update. no scan yet, maybe tonight or possibly tomorrow.
also more from grim and reid:
http://www.huffingtonpost.com/2009/02/23/the-myth-of-the-filibuste_n_169117.html
and also byrd’s office:
http://thehill.com/blogs/blog-briefing-room/news/83437-byrd-calls-changes-to-filibuster-rules-misguided
[Sorry to take so long to reply, selise - this ended up being the first time I could check in today.]
“Only” about a foot?? You are so not in D.C…
That sounds like a good plan to me.
If your copies already include the vote itself, it does seem that you must’ve gotten all the way to the end of the focused discussion about the issue. As for the beginning of the debate (which the eruption of Hollings seemed to more or less mark), if you haven’t already, it’d be interesting (but not crucial for our purposes) to confirm whether a cloture motion had actually passed, or whether a cloture motion had only been filed. Also, anything to do with the intervening business question is something we do want to know, for our ‘proving a negative’ effort.
If I think of or note any other crucial cites, I’ll let you know – but I think the one you’ve already selected and researched (561) is both the most recent, and the most pertinent and comprehensive for our particular purposes. There are many other shorter cites related to this issue, but you’d be chasing them down in a multitude of years, with no way of knowing which would have meaningful debate and which wouldn’t, etc. And the 1986 cite may well have effectively superceded many of those anyway.
I haven’t read the second link you provide @ 46 yet, but note that the first link to the quite unfortunate (because so misleading and trusting of Democratic leadership spin) Ryan Grim post from last year is the post I referenced in the dday thread that discussed Senator Udall’s proposal to change Senate rules. It seems to be a typical case of conflating cloture with non-cloture process, as far as I can tell, though it’s hard to be sure, given the imprecision of the discussion. But Dove’s characterization of Strom Thurmond’s 1957 real filibuster seems inexplicably misleading and dismissive, in any case.
Back to Senator Byrd for a moment, since you link to a article about his views on the filibuster (or lack thereof). I suspect that Byrd is one of the culprits in the ending of the use of the real filibuster. When in the leadership, some of his practices helped endrun and otherwise backburner real filibusters, I believe, and somewhere he’s quoted as saying that filing cloture in lieu of real filibusters is some sort of “gentleman’s filibuster” where “everyone (in the Senate) looks out for everyone else (in the Senate)” – or words to that effect (never mind “looking out” for the American people). Strongly implying, at least, that he approves of the end of the physical filibuster and thus, it follows, the resulting, if originally unintended, imposition of supermajority rule in the Senate. A case of his love of the privileged Senatorial “club” atmosphere overcoming his better judgement and vaunted reverence for the venerable debating traditions and practices of the Senate, perhaps, if I’m reading his preferences right.
I heartily second your thanks to Jim for his generous hosting of this lengthy off-topic discussion in a diary devoted to a very different, and very important, subject.