ICE refuses to release records of agents' intimidation of Narco News

The House of Death cover-up now appears to have enveloped Narco News in its pall.

A letter sent by U.S. Immigration and Customs Enforcement (ICE) in response to a Freedom of Information Act (FOIA) request seems to indicate that this reporter has been under investigation for nearly two years by ICE in retaliation for Narco New’s exposure of that agency’s complicity in mass murder in Juárez.

The FOIA request was sent by Narco News to ICE way back in June 2005, shortly after ICE agents made threatening visits to this reporter’s home and workplace (another newspaper that has nothing to do with Narco News or its coverage of the House of Death).
Between August 2003 and mid-January 2004, a dozen people were tortured, murdered and then buried in the backyard of a house in Juárez. A U.S. government informant under the supervision of ICE agents and a U.S. prosecutor helped to arrange and even participated in the murders.

The U.S. government’s efforts to cover-up its complicity in the carnage was later exposed exclusively by Narco News in a series of stories pointing the finger at high-level officials within the Department of Homeland Security (ICE’s parent agency) and the Department of Justice — including U.S. Attorney Johnny Sutton, a long-time insider with the Bush administration.

Narco News’ FOIA request sought, among other things, information that would explain the underlying purpose of the ICE agents’ visits and the identity of the individuals within the government who ordered that a Narco News reporter be interrogated and intimidated. (The ICE agents confronted my wife and child at our home and even questioned my boss at work in an apparent effort to get me fired from my job.)

ICE has stonewalled the release of any information under that FOIA request since it was filed nearly two years ago, telling Narco News it was parked in line within its huge FOIA backlog.

Finally, in a letter dated Feb. 27, 2007, which did not arrive at this reporter’s home until early March, ICE FOIA Officer Catrina M. Pavlik-Keenan provided the agency’s official response to the June 2, 2005, FOIA request.

From ICE’s response:

This letter responds to your FOIA request dated June 2, 2005, in which you requested copies of documents maintained by the ICE pertaining to yourself. Specifically, you were interested in records regarding ICE Office of Professional Responsibility agent Carlos Salazar and his visit to your home and office in May of 2005.

We have processed your request under FOIA 5 USC 552.

It has been determined that the documents you have requested are exempt from disclosure under Exemption 7(A) of the FOIA.

… In reviewing the documents requested by you, I have determined that certain information is law enforcement information properly withheld under Exemption 7(A) of the FOIA. Exemption 7(A) of the FOIA authorizes the withholding of records or information compiled for law enforcement purposes when disclosure of that information could reasonably be expected to interfere with enforcement proceedings. Information is being withheld under this provision because (1) a law enforcement proceeding is pending or prospective and (2) release of the information could reasonably be expected to cause some articulable harm.

In other words, a case was opened by ICE in 2005 that led to the agents’ attempted interrogation of a Narco News reporter and that case, for some reason, is still open, which leads to the logical conclusion that Narco News is still wrapped up in that unspecified investigation.

Mark Conrad, an attorney and a former supervisory special agent with U.S. Customs, which has since become part of ICE, had the following reaction to ICE’s FOIA response:

The harm they are talking about is to the Agency if they give you that information. There is nothing else out there.

I think it is a bunch of pure unadulterated bullshit and I am disappointed in my former colleagues!

A Department of Homeland Security (DHS) source put it this way:

They’re stonewalling. Articulable harm generally involves [the compromise of] a law enforcement technique or an undercover officer. This is all bogus.

So exactly what is going on here?

The phone call

Narco News contacted the ICE FOIA office in early February to check on the status of its aging FOIA request and was informed the agency had created a new unit to deal with its FOIA backlog. The long-running Narco News FOIA request had been moved to that unit, ICE Senior Paralegal Specialist Anastazia Taylor told Narco News at the time.

Taylor also said the FOIA request would be assigned to a processor after her unit received a response from the San Antonio ICE office concerning the records on the case. Taylor said an email was sent to San Antonio ICE office on Feb. 4, 2007, requesting those records.

Apparently, the response from the San Antonio, Texas, ICE office must have indicated that the case was still under investigation, which provides a convenient excuse not to release the records under the FOIA 7(A) exemption.

But what exactly is this case?

During the visits, the ICE agents were very ambiguous about their purpose, stating initially that they only wanted to know Narco News’s “source” — which of course this reporter refused to divulge on any subject. After some prompting, one of the agents finally indicated that they were interested in a story Narco News had published based on an unclassified ICE memo that revealed the agency was altering terrorism-related case files in a law enforcement database.

This explanation seemed odd at the time since that story had been published on April 7, 2005, nearly two months prior to the May 23 and May 24 visits (to my home and office, respectively) by the ICE agents. If ICE was so concerned about that memo being leaked, then why did they wait so long to send their internal affairs agents to interrogate a Narco News reporter?

What seems far more plausible is that the visit was timed to Narco News’ coverage of the House of Death case. Between March 23 and May 5 of 2005, Narco News published a series of five stories exposing for the first time U.S. Attorney Johnny Sutton’s role in the cover-up of the House of Death mass murder and his efforts to retaliate against the DEA commander who blew the whistle on that cover-up.

That DEA whistleblower, Sandalio Gonzalez, the former head of DEA’s El Paso field office, reveals Sutton’s role in the cover-up in a complaint he filed in September 2004 with the watchdog agency the U.S. Office of Special Counsel (OSC). Narco News obtained that complaint — as well as other documents drafted by Gonzalez and sent through official channels — through a previous FOIA request and then published the documents online.

From Gonzalez’ OSC complaint, which references a February 2004 letter he sent to Sutton’s office that expressed his outrage with ICE’s complicity in the House of Death murders:

A few days later I received a telephone call from [Mike Furgason], the Chief of Operations of the Drug Enforcement Administration (DEA), who informed me that the United States Attorney for the Western District of Texas [Johnny Sutton] had been given a copy of the aforementioned letter and that [Sutton] was very upset with it, and had alleged that my letter had created discovery material in the federal case against [Heriberto Santillan-Tabares, the narco-trafficker at the center of the House of Death case]. [Furgason] also said that [Sutton] had gone directly to the Department of Justice (DOJ) to complain about me, and that DOJ officials had contacted [the] DEA Administrator [Karen Tandy] to inform her about [Sutton’s] complaint....

…  I believe that I’m being punished for speaking the truth about a serious matter of public concern that is not publicly known. When I made this known to the United States Attorney for the Western District of Texas [by sending a copy of the letter to his office in San Antonio], rather than take corrective action, he attacked my professionalism. (And, indirectly criticized my integrity, ironically for refusing to participate in a cover-up, which may even constitute the criminal offense of obstruction of justice, misprision of a felony, or, to a lesser extent, a federal agency’s negligence resulting in multiple homicides.) DEA officials that are fully familiar and upset with the issue of the murders, as well as the obstruction of the investigation of the threat against the life of a DEA agent and his family, and admitted this to me, are now following the political and personal agenda of the United States Attorney for the Western District of Texas [Johnny Sutton] by retaliating against me with a negative performance appraisal. In addition to all of the above, there is also a First Amendment violation here.

So, it appears Sutton is more than willing to use his position to pull the chains behind the scenes against a high-ranking DEA agent. Why would it be any surprise that he might do the same in order to intimidate a pesky online publication like Narco News? And certainly, if he or his cronies did manipulate the levers of power inappropriately to protect their necks, the release of FOIA documents tracing that paper trail would not be in their best interest, which might explain why the so-called “case” is still under investigation.

Web of connections

Johnny Sutton, the U.S. Attorney in San Antonio, Texas, who now finds himself in the hot seat over the ongoing cover-up in the House of Death mass murders, is well connected to the seat of power in this country.

Sutton has close ties to President George W. Bush as well as to U.S. Attorney General Alberto Gonzales.

Sutton, a former assistant district attorney in Harris County, Texas, hitched his star to the Bush political machine in 1995, when he was named the Criminal Justice Policy Director for then-Governor Bush. He served in that post until 2000, when Bush was elected president.

In the wake of Bush’s victory, Sutton was named associated deputy attorney general at the Department of Justice in Washington, D.C., and also served as a policy coordinator for the Bush-Cheney presidential transition team.

In late October of 2001, Sutton was appointed by Bush to serve as U.S. Attorney for the Western District of Texas in San Antonio. The U.S. Senate confirmed the appointment a month later.

So Sutton does indeed have friends in high places, including his current boss at the Department of Justice (DOJ).

San Antonio native Alberto Gonzales also skyrocketed into the big time on the coattails of the Bush machine. Like Sutton, Gonzales also practiced law in Harris County (Houston) prior to joining Gov. Bush’s staff.

Gonzales served as general counsel and a senior advisor to Gov. Bush while Sutton also was on the governor’s staff as a legal advisor. After Bush was elected president in 2000, Gonzales was upgraded to White House Counsel, a position he held until February of 2005, when he became the top gun at DOJ.

Attorney General Gonzales, in late May 2005, appointed Sutton to the post of vice chairman of his Advisory Committee of U.S. Attorneys, which plays a key role in determining DOJ policies and programs. Sutton was elevated to the chairman’s role on that committee in March 2006.

Sutton’s counterpart in New York, U.S. Attorney Michael Garcia, also has an interesting history in connection with the House of Death. Garcia was the head of ICE at the time the Juárez murders occurred and also had a political stake in ensuring that he was not marked with that bloody brush.

In July 2005, only two months after the ICE agents under his command paid a visit to Narco News, Garcia was nominated for the post of U.S. Attorney for the Southern District of New York. He started in the job in September 2005 and that same month Attorney General Gonzales appointed him to the Attorney General’s Advisory Committee — now chaired by Sutton.

The analysis

Narco News’ FOIA request seeking records from ICE concerning the motives and players behind the agency’s assault on Narco News is important far beyond the publication itself, given the extend of the cover-up in the House of Death. Those records could shed important light on whether Sutton, or Garcia, or others, abused their power in order to protect their political positions.

And until those records are made public, we will not have a clear answer to that question. However, the public record already in the sunshine does provide some clues.

In the wake of the ICE agents’ house call on Narco News, U.S. Rep. Charles Gonzalez, D-Texas, sent a letter on behalf of this Narco News reporter to the Department of Homeland Security seeking an explanation for the visits.

Pamela J. Turner, assistant secretary for legislative affairs at DHS, on Aug. 19, 2005, provided the congressman with the following response:

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 reviewed 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, and subsequently interviewed him at this place of work regarding their investigation of an unauthorized disclosure of a sensitive internal ICE memorandum by an ICE employee.

Under DHS Delegation Order 7030, the Secretary of Homeland Security delegated all authority with respect to the investigation of alleged misconduct committed by officers, agents, or employees of ICE, the Bureau of Customs and Border Protection, and U.S. Citizenship and Immigration Services, to the Assistant Secretary for ICE. The Assistant Secretary for ICE [Garcia, at the time of the visits] has delegated such authority to the Director of OPR.

Pursuant to these delegations, 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.

From that letter, it is clear that Garcia was in a position to order his ICE OPR agents to pay a visit to Narco News, or at least delegate that authority to the head of ICE OPR. And, at the time of the visits, it appears DHS had no clear guidelines in place concerning interrogations of journalists. However, Sutton’s hands might have been a bit more tied in directly ordering such a visit.

Sutton likely would not want to be directly tied to such an order given he was the subject of Narco News’ coverage of the cover-up. In addition, the Department of Justice apparently requires a higher threshold of approvals for such a visit to be authorized.

The Reporters Committee for Freedom of the Press pointed that fact out in a September 2005 report dubbed Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know.

From page 44 of that report:

In June 2005, the Reporters Committee wrote [DHS Secretary Michael] 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.

So is it possible that ICE’s Garcia did the bidding of Sutton on this one, to back Narco News off its coverage of Sutton’s role in the cover-up, since both of their keisters were in the hot seat over the House of Death?

Again, the release of the FOIA records is critical to getting at the truth in this matter.

The fact that Sutton (and other DHS and DOJ officials) might be behind the intimidation of Narco News, and even in assuring that the so-called “case” remains open (to make sure the paper trail of that involvement stays hidden), is not unthinkable, at least in the minds of others who have looked into this matter.

From a Dec. 6, 2006, blog story penned by Glenn Greenwald, a New York civil rights attorney who now writes for Salon.com:

The specific DHS memo which the agents claimed to be interested in was a DHS memo obtained by Conroy in which "ICE supervisors were ordered to purge terrorism records from the computer system and reclassify them as unrelated to terrorism." That order, by itself, seems corrupt on its face: "Mark Conrad, a retired supervisory special agent with U.S. Customs, told the Current [an alt pub in San Antonio] that this order contradicts any protocol he knew of while an agent and violates federal law."

But there is little doubt that this unbelievably threatening behavior towards this reporter was motivated by the reporter's exposure of the complicity of ICE and Sutton's office in the Lalo [the House of Death] murders:

"The agents would not do this on their own," Conrad said, adding that in his experience as a supervisor, "we could not interview a reporter especially about sources or anything they had written without Washington approval, including the Department of Justice."

[Ron] Tonkin [a former assistant U.S. prosecutor and Conroy’s attorney] and Conrad speculated that the visits were "payback" for Conroy's stories that were embarrassing to U.S. Attorney for the Western District of Texas Johnny Sutton. On April 1, Conroy reported on an alleged cover-up regarding ICE agents who were reportedly protecting a criminal informant accused of multiple drug-related murders in Ciudad Juárez. The case fell under Sutton's jurisdiction.

… This case goes far beyond that. Agents of our government worked with, paid and recorded a serial murderer who repeatedly tortured and slaughtered people with the knowledge of high-level DOJ and DHS officials. The 30-year DEA agent in charge of the El Paso office who complained about this and brought it to light was threatened and then fired. The independent reporter who reported on it was harassed, intimidated and threatened by agents who, with pure malice, went to his boss in an unrelated job in order to disclose information about him that they thought would be damaging, if not get him fired -- all done to force the reporter to disclose his sources.

This is lawless, thug behavior of the most extreme type. And it resulted in the deaths of numerous people, including the brutal torture and murder of a completely innocent life-long resident of the United States (and husband and father of three), and at least 12 Mexicans, including at least some who were completely innocent of wrongdoing. Homeland Security's conduct also came close to resulting in the slaughter of a DEA agent and his wife and daughters. And those who objected and tried to bring all of this to light were threatened, intimidated and punished.

And all of it was done with the knowledge and consent of very high-ranking Homeland Security and Justice Department officials — possibly including the Attorney General and others — with at least the partial intent to protect a close associate of the President and Alberto Gonzales, an individual who continues to serve as a U.S. Attorney today. And the still-serving DEA administration herself appears to have actively sought to punish the DEA whistleblower.

In a letter written to DHS Secretary Michael Chertoff and to Attorney General Gonzales on June 29, 2005, then U.S. Rep. Cynthia McKinney, D.-Ga., shared her take on ICE’s assault on Narco News:

In particular, General Gonzales, I address this letter to you because many eyebrows have been raised here in Congress by the confluence of facts that demonstrate that Mr. Conroy, as a journalist, has reported a series of stories involving the "House of Death" case in Ciudad Juárez, Mexico, in which an undercover informant in the process of seeking to make a drug case for U.S. Attorney Johnny Sutton's office, allegedly committed numerous homicides while under the protection of that office.

Since it is well known throughout Washington that federal agents do not, as a rule, visit journalists in attempts to discover sources without authorization from the U.S. Attorney with jurisdiction, the behavior of the agents is seen as an attempt by U.S. Attorney Sutton to intimidate a journalist who has reported facts that are embarrassing to him.

Narco News is appealing ICE’s rejection of its FOIA request.

The questioning of a journalist at his home and workplace, absent a subpoena, and absent a clearly articulated reason for the interrogation, raises concerns that the action was, in fact, an attempt to harass the reporter for pursuing news coverage that was embarrassing to high-level government officials, such as Sutton, Garcia and even Attorney General Gonzales — who at this time is himself in the hot seat for firing eight U.S. Attorneys allegedly to prevent them from pursuing prosecutions not in line with the Bush administration’s political interests.

Keeping the Narco News “case” open for nearly two years, if that is the case, could be viewed as an effort to obstruct FOIA in order to prevent the release of further information embarrassing to those government officials.

To withhold documents that might shed light on this important matter would not only thwart the underlying intention of the FOIA, but also undermine the U.S. Justice System itself.

Stay tuned….

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