We can't win this battle with 'white papers'

The Reporters Committee for Freedom of the Press (RCFP) recently published an 84-page white paper called "Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public's Right to Know."

This edition of the white paper, which was first released six months after Sept. 11, 2001, takes a look at what the federal government has done since the terrorist attacks on New York and Washington, D.C., to  “limit the ability of journalists to do their jobs.”

"Since the 5th edition was released a year ago, it has become clear to us that secrecy has nasty byproducts," said Reporters Committee Executive Director Lucy Dalglish in a prepared statement marking the release of the white paper earlier this month. "When more secrets are kept, journalists are forced to report using confidential sources, which, unfortunately leads to more subpoenas served on journalists. The trend toward journalists like Judy Miller of the New York Times going to jail will only escalate unless Congress adopts a federal shield law."

A proposed shield law and the Judy Miller case are not the only ground covered in the report. The RCFP white paper also zeroes in on Narco News and the Department of Homeland Security (DHS). From page 44 of the report, which can be found at the RCFP Web site:

The Department of Homeland Security

On Jan. 24, 2003, the doors opened at a new law enforcement and investigatory agency with functions taken from as many as 22 other federal agencies. The reorganization of these operations reportedly marked the biggest government bureaucratic shake-up since the creation of the Department of Defense half a century ago.

The Department of Homeland Security’s first secretary, former Pennsylvania Gov. Tom Ridge had a mixed record on openness issues (he fought in 2001 to substantially improve the state’s open records law, yet was earlier accused of violating the law when he refused to reveal details of a $145 million payment to an emissions testing company in 1995). Michael Chertoff , a judge for the U.S. Court of Appeals in Philadelphia (3rd Cir.) from 2003 to 2005, was sworn in as the second department secretary after a 98-0 vote Feb. 15, 2005.

Before being named to the appellate court, Chertoff worked as a prosecutor in New Jersey, the Southern District of New York and in the Criminal Division of the U.S. Department of Justice. He also served as special counsel for the Senate committee investigating the Whitewater political scandal and in the law firm Latham & Watkins.

One month after Chertoff started in the job, a federal report on terrorism threats — such as exploding chlorine tanks and infecting cattle with foot-and-mouth disease — disappeared from the Internet where it was briefly posted. In explaining why the report should have been, and from now on will be, confidential, Chertoff said, “What I want to resist is . . . a temptation to feed the desire for information by putting something out that we are not in a position to speak about definitively.”

A day later, in his first public appearance before reporters, Chertoff said he plans a “disciplined” approach to sharing threat-related information with the public.

In June 2005, the Reporters Committee wrote Chertoff urging him to adopt guidelines restricting how agents seek to obtain information from journalists, similar to regulations that have been in place at the Department of Justice for more than three decades. The letter was sent after a leaked memo from the investigative arm of the Department of Homeland Security sparked its officials to visit the home and workplace of Bill Conroy in an attempt to discover his source for an article on the online news service Narco News.

Getting personal

Now, as a journalist, it’s tough writing about yourself “objectively”; in fact, it’s impossible. So I offer no such pretense. Also, what is important here is not that federal agents attempted to intimidate me into giving up my sources. What matters is that they attempted to intimidate any journalist.

Immediately after the DHS agents visited my home and workplace in late May 2005 in an effort to intimidate me into coughing up my sources for a story published by Narco News, I contacted U.S. Immigration and Customs Enforcement (ICE) seeking a rational for the visit. [The agents who paid me a visit worked for ICE’s Office of Professional Responsibility (OPR), which is part of DHS.]

Here’s the response I received via e-mail from ICE spokesman Dean Boyd on May 26, 2005:

Agents from ICE's Office of Professional Responsibility were operating within the scope of their duties and in compliance with federal law in a legitimate effort to interview a potential witness while conducting an ongoing investigation.

The response might lead you to conclude that the ICE agents who barged into my life were actually investigating the contents of the leaked memo, and not on a witch-hunt to find the leaker. After all, what the memo reveals is quite shocking.

From the story that supposedly brought the ICE agents to my door:

The memo, issued on March 28 by a high-ranking official with DHS’ Immigration and Customs Enforcement agency (ICE), essentially orders supervisors in the field to sanitize terrorism-related case files maintained in a major law-enforcement computer system called TECS. All told, TECS contains about 12,000 terrorism-related “records,” of which about 4,000 have been generated by ICE, according to the memo.

ICE supervisors, per the memo’s instructions, are to "modify or remove all ICE-generated TECS records designated as ‘terrorist.’”

Altering or destroying terrorism related law-enforcement records in the heat of a so-called “war on terrorism” certainly must be some kind of crime, right?

But I also was getting other information from law enforcement sources that raised even more questions in my mind.

In addition to the memo story, I had been informed by several law enforcement sources that Narco News’ coverage of the House of Death case might have prompted the intimidating visits from the ICE agents. In that case, Narco News exposed the fact that ICE agents and U.S. prosecutors -- including Johnny Sutton, the U.S. Attorney in San Antonio, Texas -- have been accused of covering up a government informant’s participation in numerous murders in Ciudad Juárez, Mexico.

“What is extremely troubling to me is that Sutton, his El Paso Assistant (U.S. Attorney Juanita Fielden) and apparently some ICE personnel are intent on covering this House of Death fiasco up,” former Customs supervisory special agent Mark Conrad told Narco News earlier this summer. “I find myself coming to the conclusion that Sutton is more involved in this mess than has come to light. …

“… His apparent attempt to use two goofy OPR agents to intimidate you, your family and your employer is pathetic, sad and dangerous. For those OPR types to claim that they needed to know your source of a non-classified, non "official use only" document in order to guard against some future leak is laughable on its face.”

Mr. Conroy goes to Washington

I pressed on, hoping to get more answers.

After receiving the e-mail from ICE’s Boyd, I wrote my local congressman, U.S. Rep. Charlie Gonzalez, D-San Antonio. I asked him to see what he could find out about the case:

I am asking you to make an inquiry of the appropriate officials within DHS and DOJ (Department of Justice) to determine the truth of what happened to me — and by extension to Narco News and the First Amendment rights of all journalists.

It is my understanding that questioning of journalists by federal agents on matters related to media-related work does not occur without the authorization –- or at least the knowledge –- of the law enforcement agency’s headquarters and a U.S. Attorney. If that is accurate, then the agents that visited my home (and workplace) were either acting without proper approvals, or those approvals were granted, but quite possibly for suspect reasons.

In either case, the threat to a free press is clear and the chilling effect created for all journalists substantial absent the sanitizing effect of sunshine.

Earlier this month, Gonzalez’ office finally got back to me with responses from DHS and DOJ.

Here’s what DOJ had to say:

This is in response to your correspondence on behalf of your constituent, Mr. Bill Conroy, who expresses concern regarding the legitimacy of visits to his office and home by law enforcement officials from the Bureau of Immigration and Customs Enforcement.

Because this matter involves an issue under the jurisdiction of the Department of Homeland Security (DHS), rather than the Department of Justice, it would be more appropriate for DHS to respond to the inquiry.

So, DOJ passed the buck and failed to clarify whether the U.S. Attorney in San Antonio authorized the agents’ visits to my home and workplace.

In any event, U.S. Rep. Gonzalez’ inquiry on my behalf was shuffled off to DHS by DOJ. By this time, the agents' tactics in visiting my home and workplace prompted the RCFP, Congresswoman Cynthia McKinney and the Federal Hispanic Law Enforcement Officers Association to also send letters of protest to DHS. To date, as far as I’m aware, DHS had not responded to any of those letters.

Following is DHS’ response to U.S. Rep. Gonzalez letter on my behalf (notice that the name of the congressman is misspelled):

Dear Representative Gonzales:

Thank you for your letter on behalf of your constituent, Bill Conroy, relating to the conduct of two Special Agents employed by the Department of Homeland Security, Immigration and Customs Enforcement (ICE), Office of Professional Responsibility (OPR).

I have received the allegations contained in your constituent’s letter and offer the following information. Mr. Conroy notes in his May 30, 2005, letter to your office that ICE Special Agents attempted to reach him at his home [confronting my wife and children instead], and subsequently interviewed him at his place of work [and interrogated my boss, a fact left out of this DHS response] regarding their investigation of an unauthorized disclosure of a sensitive internal ICE memorandum by an ICE employee.

… ICE OPR Special Agents have broad authority to conduct investigations into allegations of employee misconduct. This authority includes interviewing ICE employees as well as members of the public whom the Special Agents believe might have information relevant to their investigation. Members of the press are not entitled to any special treatment in this regard. Nevertheless, I have forwarded Mr. Conroy’s concerns to ICE OPR for that office’s review and appropriate action.

My reaction to that kiss-off letter, is, in a word, "unreal." The DHS response fails to address the very serious concern that somebody within their agency has ordered that terrorism-related investigative records be altered or removed. Further, it is an admission that a witch-hunt has been launched to find the whistleblower who brought this serious national security concern to the public’s attention through the media. Then, to top it off, DHS brags about the fact that it has “broad authority” to bully journalists at will should they attempt to do their jobs and expose government malfeasance.

And in an act that could not even be outdone by the Star Chamber of 15th century England, a corrupt court packed with the king’s cronies, DHS refers my concerns back to the very agency, ICE OPR, that sent the agents to my door in the first place.

Given this charade masquerading as “good government,” it is no surprise that DHS, and its underling agency FEMA, brought us the City of Death in New Orleans. We’ll need far more than cordial academic white papers by Beltway-bound press groups like RCFP to change the dynamics of this state-sanctioned oppression of the press, of citizens, if there is any hope that this country will ever have freedom of the press, if it will ever know justice.

Given my experience with this Inquisition-style of government, I think its time we start looking elsewhere for answers; they won’t be coming out of Washington. I for one am starting to look south, across the border, where America’s heart appears to still be alive:

What we’re going to do is, together, shake this country up from below, lift it up, and stand it on its head. Let that show all the plundering, all the hatred, all the exploitation. We’re going to shake it up and maybe we’ll find that it wasn’t right, that it shouldn’t have been like that; then we’re going to have to unroll it again, no higher and no lower than what its mountains, its valleys, its rivers and lakes indicate, and we’ll lay it out again, and again….
— Subcomandante Insurgente Marcos