Washington Times sues the DHS over seizure of reporter’s notes

11/21/13. Washington Times sues Homeland Security over seizure of reporter’s notes. Kellan Howell, washingtontimes.com

 

The Washington Times and one of its former journalists on Thursday sued the Department of Homeland Security, accusing federal agents of illegally seizing the newspaper’s reporting materials during the execution of a search warrant in an unrelated case.

In a motion filed in federal court in Greenbelt, The Times and reporter Audrey Hudson asked a judge to force the federal agency to return all reporting files and documents it seized from Ms. Hudson’s home office during a raid in early August.

The newspaper alleged that federal agents accompanying Maryland State Police on the raid took materials from Ms. Hudson’s office that were not covered by the search warrant that authorized the collection solely of evidence about guns and a potato launcher allegedly possessed by her husband, Paul Flanagan.

The seized materials included documents the newspaper had obtained under the Freedom of Information Act as well as notes and memos that identified confidential sources from a series of investigative stories that exposed problems inside the Homeland Security Department’s Federal Air Marshal Service.

The seizure violated Ms. Hudson’s and the newspaper’s constitutional rights, the court filing argued.

The filing asks a federal judge to order the return of “property that has been unlawfully seized … in violation of the Fourth and First Amendments to the Constitution of the United States.”

The newspaper also asked for permission to take testimony from an agent for Homeland Security’s Coast Guard Investigative Service who attended the raid and was involved in collecting the reporter’s materials to determine how widely information from the newspaper’s documents was distributed within the government.

The newspaper has “substantial reason to believe that the information contained in the five file folders seized from Hudson’s home office has been disseminated to or within” multiple federal agencies, the court filing said.

Homeland Security officials declined Thursday night to comment about the legal case.

The newspaper’s motion told the court that the government had ample reason to know it was taking First Amendment protected materials not covered by the search warrant, noting that one of the federal agents on the raid specifically asked Ms. Hudson whether she was the reporter who wrote the stories about the Air Marshal Service.

The court filing also stressed how sensitive information in Ms. Hudson’s seized files were, noting that they contained information directly from confidential sources and included “a memorandum from Hudson to an editor at The Washington Times outlining Hudson’s concern that some of her confidential sources were being retaliated against” by Homeland Security.

“There was no basis for the law enforcement officers to open and inspect the file folders during the search, much less to seize the contents,” the newspaper argued.

Ms. Hudson’s home was raided by Maryland State Police at 4:30 a.m. on Aug. 6. The investigators, including Miguel Bosch, a federal agent with the Homeland Security’s Coast Guard Investigative Service, had a warrant to search for unregistered firearms and a potato launcher belonging to Ms. Hudson’s husband. To date, Mr. Flanagan has not been charged with any wrongdoing in the case.

The warrant did not give investigators permission to seize personal records and documents unrelated to the firearms investigation, the newspaper’s court filing argued.

An evidence log from Maryland State Police shows that on Sept. 3, the documents were removed from the evidence holding room by a federal agent and returned an hour later, but the log gives no record of what was done with the documents and why they were removed.

The legal filing recounts how Ms. Hudson told The Times that Mr. Bosch, who had worked for the Federal Air Marshal Service, specifically asked her whether she was the same “Audrey Hudson” who wrote “the air marshal stories” for The Washington Times.

In March 2005, Ms. Hudson authored a series of articles for The Times that were critical of the Homeland Security Department, the Transportation Security Administration and the Federal Air Marshal Service. Her report detailed how air marshals were protecting less than 10 percent of flights during the month of December 2004.

The information published by The Times led to a congressional investigation of the Federal Air Marshal Service. From 2005 to 2009, Ms. Hudson wrote several more investigative reports on operational deficiencies within the Federal Air Marshal Service, the TSA and the Department of Homeland Security.