Response to the Kaczynski Defense Motion's Critique of the FBI Comparative Analysis

In early March of 1997, a motion was filed in federal court on behalf of Theodore J. Kaczynski. This motion, among other things, sought to suppress the evidence obtained in the Lincoln, Montana, cabin of Kaczynski. The motion challenged, along with other issues, the FBI's comparative analysis project undertaken by the UNABOM Task Force (UTF) which was included as an addendum to the probable cause affidavit of the search warrant application dated April 3, 1996.

The aforementioned comparative analysis project was supervised by and under the direction of FBI Supervisory Special Agent (SSA) James R. Fitzgerald. This response to the defense motions's critique of same is submitted by SSA Fitzgerald.

To facilitate this portion of the motion, the Kaczynski defense team hired a full-time Professor of Linguistics from the University of California at Berkeley by the name of Dr. Robin T. Lakoff to review the above mentioned comparative analysis project. Based on her review, her opinion is that "many of the FBI claims of similarities between the T-Documents and the U-Documents, and the conclusion of common authorship based on those claims, are not tenable or reliable". (Lakoff declaration, pg. 2) Lakoff further states that this opinion is based on reviewing the following documents.

a. Paragraphs 110-117 and 199-200 of the Affidavit.

b. Attachment 4, which is the 50 page "Text Comparison of the "T" Documents and the "U" Documents".

c. "T-2 and U-14: A Comprehensive Comparison".

d. The defense's "Critique of the FBI's Comparative Analysis of the T-Documents and the U-Documents" (Hereinafter referred to as "the Critique")

In view of this, it is difficult to believe that a full-time professor of linguistics, one who stakes her very reputation on her study of and knowledge of the English language, could reach the opinion that she does, relying on the methodology employed. Based on her own declaration, Dr. Lakoff never read, reviewed or even looked at any of the 17 5 T-Documents or the 14 U-Documents (including the 56-page Manifesto). Her opinion is formed solely on her review of the above listed documents, including the Critique. The Critique is the anonymously prepared review of the FBI's comparative analysis. It is found to be full of misstatements, misinterpretations, mistakes, suppositions, and with little, if any, validity. By her own declaration, Dr. Lakoff's opinion is based in part or in whole on the Critique, and upon a closer look at that document (see below) it is easy to see why Dr. Lakoff's opinions are, in fact, the ones which are untenable and unreliable.

Dr. Lakoff's declaration refers to seven categories of "errors in analysis" which she found in her review of the FBI's comparative analysis. Most, if not all, of the issues that she extrapolates upon follow the course of the Critique, which she apparently relied heavily upon, and which encompasses Appendix I and Appendix II in the defense motion. These Appendices are the primary sources of the specificities listed in Dr. Lakoff's declaration by the anonymous author of the Critique.

By following the format of the Critique (Appendix I and later, Appendix II) , issues set forth by both Dr. Lakoff and in the Critique can be accurately addressed in this response.

APPENDIX I

A. Introduction

(Lays out format for rest of Critique)

B. Distinctions Between The T-Documents And The U-Documents

1. Stylistic Distinction

The best the author of the Critique can illustrate in this section in an attempt to show dissimilarities in writing style, is that in T-2, the 23-page 1971 essay, Kaczynski uses two hyphens to set off text by dashes, while in U-14, the Manifesto, only a single hyphen is used to set off text by dashes. The fact that a hyphen (or hyphens) is used at all, as opposed to a star (*) , a plus sign (+), or by merely indenting, is indicative of a similarity in writing style.

2. Inconsistent Spellings

a. Clorate v. Chlorate

"Clorate" is simply a misspelling on the part of Kaczynski. According to the American Heritage Dictionary, 3rd Edition, copyright 1996, and the Webster's New Collegiate Dictionary, copyright 1979, the word "clorate" does not exist. It does not even exist in a secondary or British variant form in either dictionary. In the comparative analysis project, if a simple misspelling occurred in an earlier writing, and was then corrected in later writings (and it is believed that this is the one instance of this) , it was not seen as being relevant for spelling purposes so it was not noted as an inconsistent spelling.

b. Skilfully v. Skillfully

The defense motion clearly errs in listing these words. "Skilfully" does not appear in T-2, nor does "skillfully" appear in U-14. Apparently, as it was not referenced on the bottom of page nine in Appendix I, the author couldn't find it either. Why it was listed here is unknown.

c. Guarantee v. Guaranty

The defense motion clearly errs in listing these words. "Guarantee" and "guaranty" are two different words with two different meanings. They are homonyms. This is not an example of inconsistent spellings because they are two different words used in two different ways.

3. Distinctions In Grammar Between The T-Documents And The U- Documents

A split infinitive is defined as an infinitive verb form with an element, usually an adverb, interposed between "to" and the verb form, as in "to boldly go". Grammarians and linguists have debated its usage (proper or improper) for hundreds of years.

Of the fifteen separate documents referred to in the Critique in which examples of split infinitive usage were provided, it is noted that fourteen of the documents were personal letters written by Kaczynski to his family (or in one case, to a family friend). The fifteenth document, the Manifesto, was obviously written for mass consumption and public review, so the author was writing for and to a different audience. This would easily explain the multiple use of the split infinitive in his informally written letters to his family (and friend) , and his lack of the split infinitive usage (with one noted exception) in his formally written Manifesto. Kaczynski employed a more relaxed, less structured writing style in communicating with his family, while the author of the Manifesto utilized a more structured style. In terms of proving or disproving common authorship between the two sets of documents, Kaczynski's use of the split infinitive in one set and not the other is meaningless.

This is the one "distinction" in grammar, in both sets of documents, that the Critique has uncovered upon its exhaustive study.

C. Words Attributed To The Defendant That The FBI Knew Were From Defendant’s Quotations Of Other English Language Sources

1. Words In Quotations From the Published Works Of Third Persons That The FBI Attributed To The Defendant Himself

2. Quotations From Defendant's Family Members That The FBI Attributed To The Defendant As His Own Usage

3. Quotations From Other Sources Attributed To The Defendant As His Personal Usage

In some instances in the comparative analysis project, content or context comparisons were made using words or phrases from the T- Documents with words or phrases in the U-Documents in which it was known that Kaczynski was repeating words or phrases from other sources. Instances of this occurred in the project infreguently. Examples of this include references that Kaczynski made from published works, or repeating words of his family members or others from earlier letters and documents. These factors were seen as being irrelevant as to the applied methodology of the project. The comparative analysis was designed to compare Kaczynski’s writings to the writings in the U-Documents. Whatever the source of his writings in the T-Documents, if he put pen to paper, these words were then significant to him and to the project. Whether they originated from his own mind, or he was repeating (or in many cases "para-phrasing") someone else's words or writings, the fact that these words influenced him enough to write them down, first in the T-Documents, and then in the U-Documents, showed that they were significant to him, and worthy of comparison. It is the comparison of Kaczynski's known writings to the U-Documents which was the focus of this project. The value of the individual comparisons in these cases remain consistently valid.

(The only time this argument would possibly be relevant would be if these writings were being analyzed in a case of plagiarism or copyright infringement. In such a case, the use of quotes, references, and/or source naming would perhaps be meaningful. However, this comparative analysis was not conducted for this purpose, but simply for the purpose of illustrating common authorship between the two sets of documents. Originality of the writings was not relevant in this project. Repeated use of words and phrases, cross-checked and found in both sets of documents, regardless of their genesis, was relevant. For this latter purpose, the inclusion of a small portion of his writings, even if he was repeating other sources, is methodologically correct.)

In conjunction with the motion's argument in this regard, it should also be pointed out that the examples given in Section C, subsections 1, 2, and 3, reflect only one out of sometimes many otherwise unchallenged examples in each category where repeated words are cited for purposes of comparison. (See below.)

In Section C, subsection 1, the following is noted.

Number of alleged improper examples given in Critique - 13 Number of unchallenged examples in comparative analysis - 111

In Section C, subsection 2, the following is noted.

Number of alleged improper examples given in Critique - 6

Number of unchallenged examples in comparative analysis - 28

In Section C, subsection 3, the following is noted.

Number of alleged improper examples given in Critique - 1

Number of unchallenged examples in comparative analysis - 16

D. Quotations From Defendant's English Translations Of Materials Originally Published in Spanish That The FBI Attributed To The Defendant As His Personal Usage

As mentioned in the response to Section C of the Critique, the use of repeated words, para-phrasing, or even, as in this section, the copying/translating of a short story for someone else's edification by Kaczynski in the T-Documents, and comparing those writings to the U-Documents, is methodologically correct and consistent. It is the writings which were meaningful and significant to Kaczynski which were analyzed, and the subsequent comparisons made. The origin of these words and phrases, be they from his readings, his conversations, or his thought processes, is irrelevant. As stated previously, if Kaczynski put his pen to paper, these words meant something to him and are eligible to be compared to any other documents which he is suspected of writing.

In conjunction with the motion’s argument in this regard, it should also be pointed out that the examples provided in Section D, reflect only one out of sometimes many otherwise unchallenged examples in each category where repeated words are cited for the purpose of comparison. (See below.)

In Section D, the following is noted.

Number of alleged improper examples given in Critique - 11 Number of unchallenged examples in comparative analysis - 95

E. Quotations From The FBI's Own English Translations Of Materials Originally Written By Defendant in Spanish That The FBI Attributed To The Defendant As His Personal Usage

1. The FBI Translation Into English of Published Works

2. The FBI Translation Of Defendant's Letters Written in Spanish

In this section of the Critique, the FBI's translation process itself is brought into question. Example after example is provided here by the defense challenging these translations and how they compare with those conducted by the Kaczynski defense team translator.

Firstly, the translation process of the comparative analysis project should be explained. The translation of the applicable T- Documents from Spanish to English was conducted by primarily two FBI employees, with only several of the letters being translated by a third FBI employee. The primary translators of the T-Documents are Francisco Martinez, who is an FBI support supervisor in charge of all of the language specialists in the San Francisco Office, and a certified FBI translator; and Manuel C. Hinojosa, a retired FBI Special Agent (rehired for this project on a contract basis), who is a native Spanish speaker and who has worked on many FBI wiretaps, interviews, document translations, and other related Spanish to English translations in the course of his investigative duties, and has testified in court on numerous occasions as to these issues, and is the former liaison to the Latin American Consulate in San Francisco. Luis A. Perez-Miranda, an FBI Special Agent currently assigned to the San Francisco Office, a native Spanish speaker, who scored at the highest level in the FBI language ability test, translated only several of the letters during the course of this project.

Secondly, these three translators had nothing to do with any other portion or process of the comparative analysis project. They worked in a "vacuum", separated and removed from the agents and analysts who were working on the remainder of the project. Their role was to simply translate the Spanish written T-Documents, which were provided to them by one of the administrative analysts, into English. When the assigned T-Document translation was completed, they would then hand it back to the same analyst, and move on to the next document to be translated. Not one of the translators ever participated in any other portion of the comparative analysis, nor did they have access to the Manifesto or the other U-Documents.

In conjunction with the motion's argument in this regard, it should also be pointed out that the examples provided in Section E, subsections 1 and 2, reflect only one out of sometimes many otherwise unchallenged examples in each category where translation issues are cited and questioned. (See below.)

In Section E, subsection 1, the following is noted.

Number of alleged improper comparisons given in Critique - 5

Number of unchallenged examples in comparative analysis - 35

In Section E, subsection 2, the following is noted.

Number of alleged improper comparisons given in Critique - 15

Number of unchallenged examples in comparative analysis - 97

Lastly, in this category, in almost forty pages of the Critique, the defense lists no more than thirty examples of what can be best described as their translator’s interpretation of a Spanish to English translation as compared to the FBI's translators' interpretation of the same documents. (Actually, in some cases, it was a topic which was being compared, not a word or phrase.) It is acknowledged that the translation of any language into another is subject, in part, to the translator's interpretation of certain words and/or phrases. It is argued here that the three FBI translators so tasked with this project are all knowledgeable and experienced in the speaking, reading, and translating of Spanish into English, and any interpretation (if indeed one was needed), would be correct and proper. The premise and examples as set forth in the defense motion involving translating, and related to in the above referenced sections of the Critique, have no foundation and are meaningless as to the validity of the comparative analysis project and the issue of common authorship of the two sets of documents.

F. Errors Committed By The FBI In Conducting Its Comparative Analysis of the T-Documents and the U-Documents

Of all of the preceding sections of the Critique, this is the one section which does, in fact, contain examples of mistakes in the comparative analysis. It should be noted, however, that the majority of mistakes are the result of simple typographical errors or accidental omissions of some sort. These "typos" represent a very small percentage of the total examples listed and do nothing to take away from the overall validity of the comparative analysis.

It should also be mentioned here that the errors listed in this section were not made intentionally and are the result of several factors. Firstly, there were (and are) a voluminous amount of documents related to this case which were being examined during the comparative analysis. Every effort was undertaken in this project to present a flawless product, but unfortunately, this was not to be the case. Secondly, the element of human nature was always present and of the hundreds of examples and similarities offered, and well before the defense motion was filed, there were found to be occasional mistakes. None of the mistakes listed was of catastrophic nature in their relationship to the rest of the project. In most cases, the error had more to do with word counts, inaccurate placement of the findings, inaccurate phraseology, or a variation of the dictionary definition of the key word.

Section F is divided into three subsections. A look at each subsection separately will better illustrate these typographical errors or omissions and the insignificance of their representation in the Critique.

1. Words Cited By The FBI Which Do Not Appear In The Cited T- Documents or U-Documents

In this subsection, the Critique lists sixteen examples of words or phrases in the comparative analysis "which do not appear". This is not entirely true. Some of the listings in this subsection are mistakes by the anonymous author(s) of this report, or in other cases, an entire phrase was taken issue with when it should have only been a key word. Refer to the following chart.

Of the sixteen examples provided in this section, it is apparent upon closer review that in only twelve of the examples do actual "errors" exist. In almost every case, the error is one of miscounting, typographically related, or an omission of some sort. In all of these errors, other examples are provided in the comparative analysis which are not challenged in the Critique.

2. Text Comparisons That Have No Apparent Similarity

Two examples are listed here. The first example (a) is merely a typographical error in the comparative analysis as to the placement of the key word "utterly". The example cited belongs on the next page where in the appropriate box it is a valid comparison.

In the second example (b), the Critique claims that the two paragraphs are dissimilar. The Critique is wrong in that the respective listed paragraphs from T-143 and U-14 relate to the similar topics of personality tests. This is a topic related comparison. (Actually, there is an accidental omission in the comparative analysis of the first sentence from the paragraph from T-143 in which the term "personality tests" is actually used by Kaczynski, which, if included, would then have been a word and topic match. As it stands, it is only a topic match. In this case, the "error" in the comparative analysis actually benefits Kaczynski.)

3. Invalid Word Comparisons — The Source Word Used in A Different Document Has A Different Meaning

Only three examples are listed here. In the first example (a) , the word "clear-cut" does have a different meaning in the T-31 reference and should not have been included in the comparative analysis. However, the other listed example of "clear-cut" in T- 80, when compared to U-14, paragraph 138, is a valid comparison.

In the second example (b), the Critique attempts to point out the difference in the usage of the word "guts". As this word is used by the author, the meanings are similar and the comparative analysis of same is valid.

In the last example (c), at issue in the Critique is the use of the word "you'd". This contraction, as used in its listed form, is found consistently in the T-Documents as Kaczynski is apparently writing in a more relaxed and informal style to his family. It is found once in the U-Documents, in U-4, in a letter in which, arguably, the writer is attempting to write in a style in which he appears less educated or less formal. For whatever reason "you'd" is utilized in the documents, it is consistently spelled the same way and meaning virtually the same thing. Whether Kaczynski meant "you would" or "you had" in the cited documents is irrelevant, the key word is "you'd", and all listed comparisons are valid.

APPENDIX II

Appendix II concerns itself with only three issues. They are the following three examples of words or phrases.

A. "You can't eat your cake and have it too"

B. "OK"

C. "Sphere of Freedom"

A separate review of the contents of Appendix II as it relates to these three entries will assist the reader in determining, as in Appendix I, that the arguments and examples made here are meaningless and do not detract at all from the validity of the FBI's comparative analysis.

A. "You Can't Eat Your Cake And Have It Too"

Long before the comparative analysis project, when the Manifesto had been received by the UTF, the phrase "You can't eat your cake and have it too", found in paragraph 185, was noticed by SSA Fitzgerald. It was noted that the phrase was written in a manner that did not reflect the way in which it is commonly used. The most commonly spoken and written version of this statement is "You can't have your cake and eat it too".

Approximately six months later, with the comparative analysis project in full swing, T-Document # 137 was made available to SSA Fitzgerald and upon reading it, it was noticed that the same phrase was repeated, in virtually the same way as in the Manifesto. (Only the pronouns "you" and "we" are different.) Research was undertaken which determined that the way it was written both times in these two separate documents is actually the grammatically and historically correct way of phrasing it. However, the research also indicated that the phrase is very commonly mis-stated, specifically, as in the alternate version listed above (the transposing of "have" and "eat").

Noted by SSA Fitzgerald was that Kaczynski, as usual, was correct in his usage of the English language. It had been observed that he is consistently grammatically correct in virtually all of his writings. This phrase, written in its obscure yet technically correct form, is indicative of that. Where many would invert the order of the statement (i.e., switch the positions of "eat" and "have"), he wrote it correctly. This strengthens the common authorship position in that he is a grammatical perfectionist in almost every word that he writes (except when he occasionally doesn't want to be), and his wording of this phrase is no exception.

In conclusion, in the Critique's own media examples, both Mr. Harper and Mr. Safire write of the fact that this phrase is often mis-worded and commonly written in the alternate version form. (Refer to Appendix II, pgs. 12 and 19, respectively.) Interestingly, the Critique lists ten media examples, going back to 1990, of the version of the phrase which best supports its contention that the phrase is very commonly used. A recent Nexus- Lexus media review, (refer to Addendum) also going back to 1990, found the alternate version, "You can't have your cake and eat it too", which reflected differently as to which version is the most commonly used. (See below)

Kaczynski's Version:

"You can't eat your cake and have it too".

Critique's number of examples suggesting its common usage - 10

Alternate Version:

"You can't have your cake and eat it too".

Lexus-Nexus number of examples suggesting its common usage - 431

Kaczynski used this phrase the correct way, which is not commonly used. A not commonly used phrase found in two separate sets of documents is yet another strong indicator of common authorship. The comparative analysis, and the affidavit, were correct in using this as an example of common authorship.

B. "OK"

In the comparative analysis of the T-Documents and the U- Documents, it was noticed that Kaczynski and the author of the U- Documents both had a tendency to use the word "OK" in both sets of documents. This word was used 32 times in the narrative portions of 15 different T-Documents, and 2 times in the narrative portions of the Manifesto. While not unheard of, it is nonetheless unusual to find a multitude of examples of usage of the word "OK" in the body of any document, much less a series of documents.

This notion is reinforced by the Critique's own listed examples in which a media search produced references to "OK" being used in 75 different newspapers and/or other publications. At first glance, this appears impressive until upon further review it is determined that all 75 examples are nothing more than various newspaper headlines. Examples of newspaper headlines using the work "OK", even if 1,000 were referenced, is like comparing apples to oranges. It is meaningless. The very purpose of a headline is to briefly, efficiently, and succinctly label the attached story as to its content. Headlines always use the minimum amount of words necessary to define the story. As used in a headline, "OK" is a classic example of this. To present this as an argument for dissimilarity of writing styles, that is, comparing the narrative portions of a person's writings to newspaper headlines, is ludicrous.

Once again, the Critique and its author provide numerous, yet flawed, examples in an attempt to bolster their particular argument about alleged shortcomings in the comparative analysis. However, in doing so, it actually serves to strengthen the original premise of the FBI's project. The comparative analysis, and the affidavit, were correct in using this as an example of common authorship.

C. "Sphere of Freedom"

The forty-seven cited media examples in the Critiques's attempt to represent the phrase "sphere of freedom" as being, among other words and phrases, "...commonplace, almost cliches in discourse of the humanities and social sciences; indeed most could e said to be platitudes of everyday serious conversation...", (Lakoff declaration, page 4) is feeble, at best.

Firstly, of the forty-seven cited references, numbers one through nine are meaningless in that they appear in the media only after the publication of the Manifesto in June of 1995. It is argued that these nine examples, written after the Manifesto publication, are tainted and the source of these could possibly be the Manifesto itself. The only examples, if any, which are even remotely relevant to this argument are the usages of this phrase prior to the publication of the Manifesto.

The remaining thirty-eight references, dating from mid-1995 back to 1980, include such notable media outlets as the following.

1. Polish News Bulletin

2. PAP News Wire

3. South China Morning Post

4. History Today

5. International Journal of Advertising

6. ASAP

7. Russian Information Agency, ITAR-TASS

8. Journal of Consumer Policy

9. Reuter Library Report

10. BBC Summary of World Broadcasts (13 times)

11. Current Digest of the Soviet Press

12. UN Chronicle

13. Manchester Guardian Weekly

Two other examples are the television shows "This Week With David Brinkley", and "The McNeil/Lehrer Newshour". The remaining references, from the original list of forty-seven, is pared down to eleven examples of American mainstream newspapers and/or magazines cited as having used this phrase.

To summarize the defense motion's contention, from 1980 through 1995, the Critique cites only eleven separate American mainstream print media examples of the phrase "sphere of freedom , in eight different publications. Based on the Critique citings, this phrase of "everyday serious conversation" (Dr. Lakoff's declaration, pg. 4) can be found in American publications on the average of only once every 1.3 years. This could hardly be called "commonplace" by anyone's, including Dr. Lakoff's, definition. The comparative analysis, and the affidavit, were correct in using this phrase as an example of common authorship.

CONCLUSION

The FBI’s comparative analysis project, undertaken in late February through early April of 1995, and included in the affidavit or probable cause for Kaczynski's cabin, never claimed to be an empirically designed research project, with corresponding statistical data supporting its findings. Time and the exigency of the circumstances did not permit this luxury. Instead, what was strived for, and eventually successfully attained, was a project which would simply allow the reader to form his or her own opinion regarding its contents. To facilitate this, it was decided to keep the format simple and easy to read, while still comprehensive in scope. A side-by-side chart, in this case fifty pages long, with over 600 examples from the T-Documents, was designed so as to compare these examples with multiple examples of very similar, if not identical, words, phrases, and/or topics from the U-Documents. This chart provided the reader with the opportunity to render an opinion accordingly. On April 3, 1996, a judge in Montana reviewed this chart, along with the rest of the aforementioned affidavit, opined that it was credible and approved the search warrant. The comparative analysis was credible then, and it remains credible now.

It is unfortunate that Dr. Lakoff, the linguistic expert hired by the Kaczynski defense team, was only provided with the documents that she cites in her declaration. To have not reviewed and studied the T-Documents and the U-Documents themselves in her attempt to disparage the FBI's project is regrettable. Additionally, to rely in part or in whole on the anonymously authored Critique, which, as demonstrated above, is disingenuous in vast portions and tenuous in its entirety, greatly diminishes her stated opinions. Perhaps if Dr. Lakoff had been allowed to view the actual documents, and also to not have been tainted by the questionable contents of the Critique, her opinions would have differed.

Whether the above is Dr. Lakoff's opinions would have wavered in view of unknown. This will not be an attempt to discredit her as to her knowledge of linguistics and grammar. However, the best expert in the field of any topic or subject matter can only present her opinion from the items she is able to review. In this case, as Dr. Lakoff either declined to study the T-Documents and the U- documents (or was not allowed to by the Kaczynski defense team), and her use of the dubious Critique as being true and accurate, casts a long shadow of doubt over her rendered opinions.

It is acknowledged that there are some mistakes in the FBI's comparative analysis. While, as indicated above, they are mostly typographical in nature, it is nonetheless unfortunate that this happened. It is important to note that the primary portion of the comparative analysis, the fifty-page, side-by-side chart, contains 612 examples of T—Document words or phrases (or topics) as compared to similar or identical words or phrases (or topics) in the U- Documents. Of this vast number of comparisons, both Dr. Lakoff and the author of the Critique only challenge a very small percentage of them. And, as the preceding twelve pages indicate, very unconvincingly, at that.

In closing, the FBI comparative analysis, in its totality, stands as a valid examination of the T-Documents and the U- Documents for the purpose of illustrating common authorship. It was not meant to be conclusive on its individual parts, but on its whole. It was designed and constructed for the reader to develop his or her own opinion as to if the documents were written by the same person. It is argued that they were both written by one person, Theodore J. Kaczynski. Nothing presented in the defense motion by Dr. Lakoff, or in the Critique, effectively challenges this argument.