IN RE: IN THE MATTER OF THE APPLICATION OF THE NEW YORK TIMES COMPANY FOR ACCESS TO CERTAIN SEALED COURT RECORDS

Filing 16

ORDER approving the proposed redaction by the government relating to 1 MOTION MOTION FOR PUBLIC ACCESS TO CERTAIN SEALED COURT RECORDS filed by THE NEW YORK TIMES COMPANY. Signed by Chief Judge Royce C. Lamberth on 11/25/08. (Attachments: # 1 Return in 02mj458, # 2 Warrant in 02mj458, # 3 Return in 02mj459, # 4 Warrant in 02mj459, # 5 Warrant in 02mj460, # 6 Return in 02mj461, # 7 Warrant in 02mj461, # 8 Return in 02mj462, # 9 Warrant in 02mj462, # 10 Chegne Motion to Seal, # 11 Chegne Order to Seal, # 12 Hatfill Motion to Seal, # 13 Hatfill Order to Seal)(jeb, )

In the Matter of the Search of
Residence at

in Washington, DC, and Associated Basement Storage Area

Apent J o h n Napashima

UNITED STATES DHSTNCT COURT
FOR THE DISTRICT OF COLUMBIA

SEARCH WARFUNT
CASE NUMBER:

TO: !hecia1

and any Authorized Officer of the United States

Affidavi-!(s) having been made before me by S ~ e c i aApent Mark P. Morin who has reason to believe that 0 on l the person or E on the premises known as (name, descriptton and or locatton) 3

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in the District of Maryland, there is now concealed a certain person or property, hairs, textile fibers, lab equipment or materials used in preparation of select agents, papers, tape, pens, notes, books, manuals, receipts, financial records of any type, correspondence, address books, handwriting samples, photographs, computer files, cellular phones, phone bills, electronic pager devices, other digital devices, or other documentary evidence.

I am satisfied that the affidavits(s) and any recorded testimony establish probable cause to believe that the person or property ro described is now concealed on the person or premises above-described and establish grounds for the issuance of this warrant. A
YOU ARE HEREBY

return thi.5 q r r a n t to the undersigned U.S. JudgeN.S. ,Magistrate Judge, as required by law.

domestic terrorism search.warrant provisions of the

AO106(Rev.5/85) Amdavit for Search Warrant

t.NITED STATES DHSTNCT C O m T
FOR THE DISTRICT OF COLUMBIA

In the Matter of the Search of

Northwest, ApartmentWashington, DC and Associated Basemen1 Storage Room.

APPLICATION AND AFFIDAVIT FOR SEARCH WARRANT
CASE NUMBER:

6 a m @ 4 6 1 W - 0.1
I

Mark P. Morin
(Official Title)

being duly sworn depose and say: and have reason to believe

I am a ( n ) S p e c i a l Agent with the Federal Bureau of Investieatlon
that on the. person of or

on the property or premises known as (name. description and or locat~on)

Residence at room.

1

, Washington, DC and associated basement storage

in the District of Maryland, there is now concealed a certain person or property, namely hairs, textile fibers, lab equipment o r materials used in preparation of select agents, papers, tape, pens, notes, books, manuals, receipts, financial records of any type, correspondence, address books, handwriting samples, photograph!;, computer files, cellular phones, phone bills, electronic pager devices, other digital devices, o r other documentary evidence which is (state one or more bases for search and seizure sct forth under Rule 41(b)of the Federal Rules of Criminal Procedure) evidence relevant to the commission of an act of terrorism, to includc the use of a weapon of mass destruction (anthrax) and the murder and attempt to murder officers and employees of the United States in violation of Title 1 United States Code, Section(s) 2332a and 11 14 . The facts to support a finding of Probable 8 Cause are as follows: SEE ATTACHED AFFIDAVIT HEREIN INCORPORATED BY REFERENCE AS IF FULLY RESTATED HEREIN Continued on the attached sheet and made a part hereof. Kenneth C. Kohl, AUSA U.S. Attorney's Office, Washington, DC (202) 616-21 39 and subscribed in my presence at Washington, D.C. (pursuant to the domestic terrorism search Act, Section 2 19, which YES NO

Signature of Affiant

Mark P. Morin. Special Agent Federal Bureau of Investigation

IN THE MATTER OF THE SEARCH OF A

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RESIDENCE AT

,

AND ASSOCIATED BASEMENT STORAGE ) ROOM, and a )
)

)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

1

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Misc. No.

WASHINGTON, DC,

1994 CHAMPAGNE TOYOTA COROLLA

UNDER SEAL

AFFIDAVIT IN SUPPORT OF SEARCH WARRANT

I, Mark P. Morin, being duly sworn, depose and say: I have been a Special Agent of the Federal Bureau of Investigation (FBI) for 1. almost seven years. I have conducted criminal investigations involving narcotics and organized crime related offenses. I am also authorized to investigate crimes involving violations of Title 18 U.S.C. Sections 2332(a) and 1 1 14.
2. This affidavit is respectfully submitted in support of an application for a warrant .. .. to search a residence commonly known as Washington, DC, the storage room in the basement associated with that apartment ("Subject Apartment"), and a 1994 Champagne Toyota Corolla ("Subject Vehicle"). Steven Jay Hatfill resides at the Subject Apartment several days each week w t i (the lessee of the The Subject Apartment is further described as a five story red apartment) brick building, glass door entrance way with the n a m e i n brass numbers located on a red brick column on the right side as you face the entrance, and two elevators inside. On the fifth floor to the right off the elevator is a white wood door with the black n u m b e r to the right of the handle in the center of the door. Located on the left side of the door is a doorbell. he basement storage consists of a multi-storage area. Each unit is fenced in with chain link fence. The: n u m b e r is attached to the fence which surrounds the cubicle, approximately 4 x 6 ~ 6There is approximately six to eight black trash bags. The storage unit is located in the . basement behind the underground parking garage. The Subject vehicle is further described as a , District of Columbia 1994 Champagne Toyota Corolla, four door, VIN license plate number

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As I discuss below, there is probable cause to believe that a search of the subject apartment and storage room may result in the collection of evidence relevant to an ongoing criminal investigation into the dissemination of a weapon of mass destruction (anthrax) through the U.S. mail system in September, 2001 and October, 2001 in violation of 18 U.S.C. Sections 2332a ancl 1 1 14, which killed five people and infected 17 others. The FBI investigation of these incidents has led to the identification of Steven Jay Hatfill as a person of further investigative interest for the reasons set forth in this affidavit:

3.

Factual Background On or about September 18, 2001, at least two envelopes containing anthrax spores were processed at a United States Postal Service processing and distribution center in Hamilton Township, New Jersey. One envelope was addressed to Tom Brokaw of NBC TV, and contained a handwritten note with the following text:
4.

09-1 1-01 THIS IS NEXT TAKE PENACILIN NOW DEATH TO AMERICA DEATH TO ISRAEL ALLAH IS GREAT The sccond envelope addressed to "EDITOR, NEW YORK POST," also contained anthrax spores and; a handwritten note that appears identical to the note found in the Brokaw Letter.
5. On or about October 9, 2001, two more envelopes containing anthrax spores and handwritten notes "09-1 1-01" were processed at the U.S. Postal Service processing The return addresses on both letters, one of which was addressed center referred to to U.S. Senator Thomas Daschle and the other of which was addressed to U.S. Senator Patrick Leahy, were the fictitious address: "4'" GRADE, GREENDALE SCHOOL, FRANKLIN PARK NJ 08852." Both letters contained the following handwritten text:

09-1 1-01 YOU CAN NOT STOP US.

WE HAVE THIS ANTHRAX. YOU DIE NOW.
ARE YOU AFRAID? DEATH TO AMERICA. DEATH TO ISRAEL. ALLAH IS GREAT.
6. According to the Center for Disease Control (CDC), between January 1,2001 and September 18, 2001, there was only one confirmed case of anthrax in the United States, which resulted from exposure to infected cattle. Agricultural and farm workers exposed to infected animals, such as sheep, goats, and cattle, get the disease on rare occasions. Laboratory

technicians have been known to contract anthrax from exposure to bacterial spores in recent decades. There is no record of government officials or media employees contracting anthrax. Overall, there have been fewer than ten anthrax cases in the United States since 1980. Cases of inhalational anthrax are particularly rare, with only twenty reported cases in the last century.
7. Between September 18, 200 1 and November 2 1, 2001, within New York, Washington, Florida and Connecticut, there were at least 22 reported cases of anthrax infection. Eleven of those cases involved inhalational anthrax (from inhaling anthrax spores) and the other eleven cases involved cutaneous anthrax (contracted through the skin). Five of the inhalational victims eventually died of their infection: ( I ) Robert Stevens, 63, photo editor, American Media Inc., Boca Raton, Florida, died on 10/5/2001; (2) Thomas L. Morris, Jr., 55, postal worker, Brentwood. Post Office, Washington, D.C., died on 10/21/2001; (3) Joseph P. Curseen, Jr., 47, postal worlter, Brentwood Post Office, Washington, D.C., died on 10122/2001, (4) Kathy T. Nguyen, 6'1, hospital employee, New York City, died on 10/31/2001; and (5) Ottilie Lundgren, 94, Oxford, CT, died on 1 112 112001. At least another 269 persons tested positive for exposure to anthrax spores.

8. All of the exposures described above appear to be related to the dissemination of anthrax spores through the U.S. mails in September and October 2001, based on their timing, location, the place of employment of each individual infected, and the identical strain of anthrax found in each letter and in the blood of the five dead victims. The Center for Disease Control in Atlanta examined isolates of the anthrax 9. microorgan.ism extracted from the powder contained in the Brokaw and Daschle letters, as well as blood samples collected from the five decedents. The CDC has determined that the strain of Bacillus anthracis found in each of the decedents' blood is genetically indistinguishable from the strain of anthrax found in the threat letters sent to Mr. Brokaw and Senator Daschle. Each of these isolates contain the same unique combination of eight genetic markers that distinguish this particular anthrax bacteria as the Arnes-strain. The Ames strain is just one of over 200 genetically distinct strains of anthrax throughout the world. Law enforcement officials have spoken to individuals who have knowledge and 10. training about infectious diseases including anthrax. Based upon their scientific expertise, I understand that anthrax is a potentially deadly infectious disease caused by the bacterium Bacillus anthracis. Quantities of Bacillus anthracis can be produced in a scientific laboratory such as those found at universities or other research institutions. Individuals in possession of a stock culture of the Bacillus anthracis bacterium can produce larger quantities by using items in the course of the growth and spomlation process such as: flasks, brewing carboys, glassware, other fermentation vessels, a centrifuge, blood agar plates, petri dishes, yeast or other sources of nutrients required for the growth of bacteria, hoses, mason jars and other storage containers. Anthrax spores can grow at room temperature or in incubators. Refiigerators and freezers can be used to keep Bacillus anrhracis in a liquid form. To make dry Bacillus anthracis spores out of a liquid wou',d typically involve use of a lyophilizer (Freeze dryer), mortar and pestle, micronizer or milling machine.

Working safely with dried anthrax spores requires scientific training and expertise I I. in technical fields such as microbiology or virology. Fiber Evidence
1. The four envelopes containing the anthrax spores were forwarded to the Trace Evidence Unit of the Federal Bureau of Investigation in Washington. DC for hair and fiber

purposes. Steven Jay Hatfill I. The investigation to date has revealed that Steven Jay Hatfill is a bioterrorism

expert on biological warfare agents from the United States former offensive bio-progam. Steven Hatfill's curriculum vitae claims a "working knowledge of the former U.S. and foreign BW programs, wet and dry BW agents, large scale production of bacterial, rickettsial, and viral BW pathogens and toxins, stabilizers and other additives, former BG simulant production methods . . ." Hatfill is believed to have experience working with various anthrax "simulants," that is, other types of bacillus that mimic the properties of anthracis. Steven Hatfill has a long history of working at scientific laboratories that have the 13. type of equipment that would be necessary to produce the refined Bacillus anthracis contained in the letters. From 09/94 to 09/95, Hatfill worked as a Research Scientist at Oxford University, England. From 09/95 to 09/97, he was a Intramural Research Training Award Program (LRTA) researcher at the National Institutes of Health (NIH). From 09/97 to 09/99, Hatfill was a National liesearch Council (NRC) researcher at United States Army Medical Research Institute of Infectious Diseases (USAMRIID). From 09/99 to 03/02, Hatfill worked as a Science Applicatians International Corporation (SAIC) in McLean, Virginia as a consultant for Biowarfare Medical D e f e n s e . H a t f i l 1 designed and constructed mock terrorist biochemical laboratorie
14.. While employed at USAMRIID in Frederick, Maryland, from 1997 to 1999, Hatfill worked in the laboratory building in which the United States Army houses various biological agents, including the same "Ames" strain of Bacillus anthracis contained in the letters. Hattill had access to the unlocked storage freezers in which the Ames strain of B.A. was then kept.

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Steven Hatfill has made statements suggesting that he has previously prepared and 1. used biological agents, including anthrax, on human beings outside the United States. On April 2 1, 2002, FBI agents interviewed a w i t n e s s who recalls several statements Hatfill made in

16. According t o Steven Hatfill s t a t e d that he (Hatfill) served as a mercenary for the Rhodesia military from 1979-1980, during the very years Rhodesian military and intelligence units are believed to have employed toxic chemical and biological agents against rebels in the closing years of a long and brutal civil war that led to the collapse of the Rhodesian government and the formation of the Zimbabwe state. During a 24 month period in 1979 arid 1980, the rebel-held areas of Rhodesia experienced the worst outbreak of anthrax in world history - more than 10,738 human cases, 182 of them fatal. The epidemic spread to six of eight provinces in a country where anthrax had previously been rare, and only the insurgentcontrolled areas (supporting the guerilla war) were affected. According toHatfill stated that he served in the Rhodesian "Selous Scouts" and worked as a consultant to the Rhodesian Special Branch - the very units that are believed to have been responsible for the anthrax attacks in 1979-11980. Hatfill produced a document purportedly showing the "LD-50" lethal dose rates of anthrax and other biological agents that was based on data he collected while working for the Selous Scouts in Rhodesia. ("LD-50" is the amount of a solid or liquid material that it takes to kill 50% of the human population in a single dose.) Hatfill also boasted that he advised the Rhodesian Special Branch how to lace clothing distributed in rebel-held provinces with a lethal mixture of Organophosphate pesticide and Dimethyl Sulfoxide (DMSO) in order to kill rebel opponents. Hatfill claimed that his suggestion of adding DSMO made the mixture much more 1 the former head of the Rhodesian deadly ant1 hundreds were killed as a result.-I Central lnlelligence Organization during the civil war, has publically admitted that the Rhodesian government deliberately distributed poisoned clothing that resulted in the deaths of hundreds of rebels and civilians.

17. According t o m Steven Hatfi ll m e n t i o n e d that anthrax would be the biol.ogica1agent most likely to be used a weapon in a terrorist attack in the United States. Hatfill cornplained that U.S. military and political leaders had not adequately prepared this country to respond to a terrorist biological attack, and that it would take a "Pearl Harbor7'-type attack to force them to take the risk seriously. Hatfill showed a copy of a training manual on anthrax that instructed "first responders" who confront anthrax on the field to take Penicillin in order to prevent infection. Hatfill stated that the publication was incorrect, and that the antibiotic of choice to prevent anthrax infection would be Ciprofloxacin (also known as "Cipro"). Hatfil! boasted that he is the only scientist in the United States with actual experience dealing wi.th an anthrax outbreak in the field (refemng to his years in Rhodesia), and complained that U.S. military and intelligence communities should be talking to paid professionals like himself.

In the months before and immediately surrounding the anthrax mailings, Steven 18. Hatfill req,uested and filled several prescriptions for the antibiotic Cipro. Cipro is used by physician:; to fight numerous bacterial organisms, but it is the only Federal Drug Administration (FDA) approved antibiotic recommended for the treatment of a Bacillus anthracis infection. The USAMRID handbook on "Medical Managemenf of Biological Casualties," published July 1998, recommends that individuals infected with Bacillus antkracis and persons seeking to prevent anthrax infection be placed on a multi-week regimen of 500 milligram doses of Cipro.

During an interview with FBI agents on March 27,2002, Steven Hatfill denied taking any Cipro during the months of September and October of 2001. However, a review of pharmacy business records reveals that exactly two days before the first anthrax letters were mailed (postmarked) on September 18, 2001, Steven Hatfill filled a prescription for forty 500 mg tablets of Cipro at the CVS pharmacy located near his home in Frederick, Maryland. Exactly two days before the second gr0u.p of anthrax letters were mailed (postmarked) on October 9, 2001, Hatfill filled another prescription for thirty more 500 mg tablets of Cipro at the same CVS pharmacy. Additional Cipro prescriptions were filled by Hatfill on January 9, 2001 (20 tablets), July 1,2001 (20 tablets), and November 10, 2001 (30 tablets). During another interview with FBI agents in October, 2001, Steven Hatfill stated 19. that he maintains a small suspension of an anthrax simulant. Bacillus nlobigii (BG). at his

In a January 26, 1998 Insight magazine article, Steven Hatfill reportedly 20. demonstrated in his own kitchen how someone could "cook up a batch of plague in his or her own kitchen using common household ingredients and protective equipment from a supermarket." Other sources have also stated that Hatfill has produced bio-weapon simulants in his home and has the ability to produce very fine powders similar to those contained in the anthrax letters. Hatfill t o l d that he had, in fact, produced a quantity of Bubonic Plague, and had also acquired the active agent that causes Bovine Spongiform Encephalopathy ("Mad Cow Disease"). IJatfill stated that he stored the agent in his refrigerator and he discussed how easy it would be to destroy substantial portions of the American beef and dairy industry.

In a fictional book Mr. Hat fill wrote but never published in 1999, he discussed in 2 1. detail how a terrorist might acquire, produce and release a lethal pathogen like anthrax or pestis in the United States with deadly consequences. Hatfill describes in his book how a terrorist might purchase lab equipment without arousing suspicion by setting up a "false small business" which, acco::ding to Hatfill, "normally involves nothing more complicated than obtaining a business license for tax purposes and filling in a document termed an Alternate Name Statement."
Use of the Subiect Apartment s the only occupant named on the lease t o at -Vashington, DC. She has resided at that address for ovcr three years. Steven Hatfill has told FBI investigators that a n d that they have 1998. Hatfill admits that he stays at " ' rtment several days each been week. -FBI 1 confirmed that, dunng t he past three months, Hatfill has been observed entenng and exiting the apartment building a t na manner that is consistent with him living at that location several days per week. Hatfill stayed overnight at that address last evening, July 30,2002. 22. i

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Use of the Subiect Automobile 23. The subject automobile to registered t -o w a s h i n g t o n , DC. owned the vehicle at the time of the anthrax attacks in September and October, 2001. FBI o b s e r v e d Hatfill drive or riding in the Subject Vehicle on several occasions within the last three months. Scove of the Search 24. Based on the foregoing, I submit that there is probable cause to believe that a search of the Subject Apartment and Subject Vehicle may result in collection of evidence relevant to the dissemination of a weapon of mass destruction (anthrax) through the U.S. mail system in September, 2001 and October, 2001 in violation of 18 U.S.C. Sections 2332a and 1 1 14. Specifically, there is probable cause to believe that a search and vacuum sweeping of the two premises may reveal lab equipment or materials used in preparation of the deadly anthrax contained i l l the letters, or may produce hairs, textile fibers, papers, tape, pens, notes, books, manuals, receipts, financial records of any type, correspondence, address books, photographs, computer files, cellular phones, phone bills, electronic pager devices, other digital devices, or other documentary evidence that may link Stephen Jay Hatfill to the anthrax mailings, to the location of a laboratory, and may identify coconspirators involved in the attacks. The statements contained in this affidavit are based in part on information 25. provided by FBI Special Agents, on information provided by confidential sources, on observations made by law enforcement agents, and on my experience and background as an FBI Special Agent. I have not included each and every fact known to me concerning this investigation. I have set forth only the facts that I believe are necessary to establish the necessary foundation for the search warrant.

Special Agent Federal Bureau of Investigation

Sworn to before me this

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U.S. MAGISTRATE JUDGE United States District Court for the District of Columbia

DEBORAH A. ROBINSON
U.S. MAGISTRATE JUDQE