The Articles Of Freedom

Sunday, July 11, 2010

The other illegal immigrants

Reporter: Claire Doan

TUCSON (KGUN-TV) - The national debate over SB1070 has largely ignored one sizeable population: millions of people who used visas to enter the United States legally, but stayed long after their documentation expire.

The latest statistics show these illegal immigrants comprise nearly half of the 11 million illegal immigrants currently in America, but few are actually caught.

Last year in Arizona, federal agents arrested and deported only 27 visa violators – a tiny figure compared with the 241,673 people that Tucson Border Patrol apprehended last year.

Immigration attorney Maurice Goldman says he often encounters people who stay in the United States, even after Immigrations and Customs Enforcement (ICE) notifies them of their visas expiring.

"I've seen people here for sometimes a decade, sometimes longer without documentation. They're flying under the radar. They're not doing anything that's drawing attention to them," Goldman said. "That's why you see so many people here over the years. As long as [they're] not getting into criminal trouble, they're not really high priority as far as arrests."

9OYS asked Richard Crocker, the Deputy Special Agent in Charge at ICE, why there seems to be a lack of priority when it comes to tracking down visa violators. He says the statistics do not reflect a lack of effort on ICE's part; rather, it's a matter of geography.

"Most of what we deal with here are the entry-without-inspection people who walk across the border, who have not status to begin with. That's the bulk of our work," Crocker said. "Most of your visa overstays, foreign student, violent overstays – most of them are in your major metropolitan areas."

Agents in ICE's special enforcement unit in Washington, DC look through data and records for possible violators, prioritize the list of possible offenders and send names to local ICE offices. That's when local agents in Arizona track down the visa violators and make arrests.

"The problem is that we have procedures in place. The federal laws exist. The penalties exist. They basically have not been enforced over the years," Attorney General Terry Goddard said, but emphasize that Arizona has certain mechanisms in place to deter visa violators.

"Frankly, in Arizona we're very tough on having any kinds of benefits. You can't get driver's licenses. You can't get insurance. You can't get state benefits of many kinds. So that's a start."

Monday, March 29, 2010

The Fight Against ObamaCare Continues

By Floyd and Mary Beth Brown, Expose Obama

With benefits as notorious as Viagra for pedophiles and rapists, we watched in horror as the American way of life was fundamentally changed by Democratic members of the House of Representatives and Senate. Obama and Pelosi twisted arms and bribed members of Congress into supporting their massive new entitlement program. A feeling of defeat and despair began to creep in as ObamaCare became the law. At their huge celebration party at the White House, in words unfitting a vice-president, Joe Biden exuberantly proclaimed, “This is a big F***ing deal.”

Repeal is a laudable goal we should work towards, but the political reality dictates that is highly improbable. Even Ronald Reagan was unable to repeal the Department of Education that he had pledged to abolish. Once a new government entitlement and layers of bureaucracy are created, it is nearly impossible to roll back.
But don’t give up now. While prospects are bleak, there is reason for hope.

The attorneys general of 14 different states have signed onto a lawsuit challenging certain portions of ObamaCare as being unconstitutional. While these lawsuits will not repeal the whole law, they will eliminate the most egregious portions of the bill.
It is comforting to know that at least 14 elected representatives take their oaths of office seriously and are willing to stand up to preserve and defend the Constitution.

The lawsuit asserts a few major breaches of constitutional limitations by the federal government. The first is that under the enumerated powers of the Constitution, the federal government has no authority to require its citizens to purchase a product. Some liberals might claim that the government already requires you to purchase auto insurance. This comparison is faulty for two reasons: first of all, driving a car is a privilege, not a requirement. A citizen may choose not to drive a car and, therefore, not have insurance. The second reason this comparison falls flat is that auto insurance mandates are not passed by the federal government, but by the states. Our Constitution enshrines an oft-maligned principle known as federalism.
The lawsuit states, “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.”

The second unconstitutional provision of ObamaCare is the tax penalty required under the act. This tax that must be paid by uninsured citizens is a capitation, or a direct tax, which is prohibited by Article 1, sections 2 and 9 of the Constitution.

The third reason the act is unconstitutional is that it mandates that states add people to their Medicaid rolls, and forces the states to pay the costs out-of-pocket. Florida estimates they will see a 50 percent increase in Medicaid enrollment. This unfunded mandate is clearly unconstitutional.

The new act changes the dynamic of Medicaid from a state-federal partnership, to a top-down federal program where the discretion of the states is removed.

The only response from Obama’s administration has been from Nancy-Ann DeParle, director of the White House Office of Health Reform. She said the president isn’t “concerned” about the potential legal challenges. Congress has the “inherent authority” to mandate coverage under the commerce clause that allows the federal government to regulate interstate commerce, she told Bloomberg Television.

While the success of this lawsuit may seem unlikely, this is not the first time an ambitious president has run afoul of the Constitution. The Supreme Court overturned some of Franklin D. Roosevelt’s more radical and unconstitutional schemes during the Great Depression. This led to his attempts to pack the Supreme Court.

Our hope is that the Supreme Court will defend the Constitution. They will hear the joint case from these courageous attorneys general, or one of the cases forthcoming from private citizens, and fulfill the proper role of interpreting the U.S. Constitution.

If the courts will not stand and uphold the Constitution, who will?

Saturday, March 27, 2010

Napolitano: Supreme Court to Strike Down Obamacare

By: David A. Patten

President Barack Obama is one of the worst presidents ever in terms of respecting constitutional limitations on government, and the states suing the federal government over healthcare reform "have a pretty strong case" and are likely to prevail, according to author and judicial analyst Andrew P. Napolitano.

In an exclusive interview with Newsmax.TV's Ashley Martella, Napolitano says the president's healthcare reforms amount to "commandeering" the state legislatures for federal purposes, which the Supreme Court has forbidden as unconstitutional.

"The Constitution does not authorize the Congress to regulate the state governments," Napolitano says. "Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done.

"That's called commandeering the legislature," he says. "That's the Congress taking away the discretion of the legislature with respect to regulation, and spending taxpayer dollars. That's prohibited in a couple of Supreme Court cases. So on that argument, the attorneys general have a pretty strong case and I think they will prevail.”

Napolitano, author of his just-released “Lies the Government Told You: Myth, Power, and Deception in American History” and a Fox News senior judicial analyst, is the youngest Superior Court judge ever to attain lifetime tenure in the state of New Jersey. He served on the bench from 1987 to 1995.

Napolitano tells Newsmax that the longstanding precedent of state regulation of the healthcare industry makes the new federal regulations that much more problematic.

"The Supreme Court has ruled that in areas of human behavior that are not delegated to the Congress in the Constitution, and that have been traditionally regulated by the states, the Congress can't simply move in there," Napolitano says. "And the states for 230 years have had near exclusive regulation over the delivery of healthcare. The states license hospitals. The states license medications. The states license healthcare providers whether they're doctors, nurses, or pharmacists. The feds have had nothing to do with it.

"The Congress can't simply wake up one day and decide that it wants to regulate this. I predict that the Supreme Court will invalidate major portions of what the president just signed into law…"

The judge also says he would rate President Obama as one of the worst presidents in terms of obedience to constitutional limitations.

"I believe we have a one party system in this country, called the big-government party," Napolitano says. "There is a Republican branch that likes war and deficits and assaulting civil liberties. There is a Democratic branch that likes welfare and taxes and assaulting commercial liberties.

"President Obama obviously is squarely within the Democratic branch. The president who had the least fidelity to the Constitution was Abraham Lincoln, who waged war on half the country, even though there's obviously no authority for that, a war that killed nearly 700,000 people. President Obama is close to that end of lacking fidelity to the Constitution. He wants to outdo his hero FDR."

For those who oppose healthcare, the Fox legal expert says, the bad news is that many of the legal challenges to healthcare reform will have to wait until 2014, when the changes become fully operational.

Until then, there would be no legal case that individuals had been actually harmed by the law. Moreover, Napolitano says it takes an average of four years for a case to work its way through the various federal courts the final hearing that's expected to come before the Supreme Court.

"You're talking about 2018, which is eight years from now, before it is likely the Supreme Court will hear this," he says.

Other issues that Napolitano addressed during the wide-ranging interview:

* He believes American is in danger of becoming "a fascist country," which he defines as "private ownership, but government control." He adds, "The government doesn't have the money to own anything. But it has the force and the threat of violence to control just about anything it wants. That will rapidly expand under President Obama, unless and until the midterm elections give us a midterm correction – which everyone seems to think, and I'm in that group, is about to come our way.
* Napolitano believes the federal government lacks the legal authority to order citizens to purchase healthcare insurance. The Congress [is] ordering human beings to purchase something that they might not want, might not need, might not be able to afford, and might not want -- that's never happened in our history before," Napolitano says. "My gut tells me that too is unconstitutional, because the Congress doesn't have that kind of power under the Constitution."
* The sweetheart deals in the healthcare reform bill used that persuaded Democrats to vote for it – the Louisiana Purchase, Cornhusker Kickback, Gatorade Exception and others – create "a very unique and tricky constitutional problem" for Democrats, because they treat citizens differently based on which state they live in, running afoul of the Constitution's equal protection clause according to Napolitano. "So these bennies or bribes, whatever you want, or horse trading as it used to be called, clearly violate equal protection by forcing people in the other states to pay the bills of the states that don't have to pay what the rest of us do," Napolitano says.
* Exempting union members from the so-called "Cadillac tax" on expensive health insurance policies, while imposing that tax on other citizens, is outright discrimination according to Napolitano. "The government cannot draw a bright line, with fidelity to the Constitution and the law, on the one side of which everybody pays, and the other side of which some people pay. It can't say, 'Here's a tax, but we're only going to apply it to nonunion people. Here's a tax, and we're only going to apply it to graduates of Ivy League institutions.' The Constitution does not permit that type of discrimination."
* Politicians from both parties routinely disregard the Constitutional limits imposed on them by the nation's founding document, Napolitano says. "The problem with the Constitution is not any structural problem," says Napolitano. "The problem with the constitution is that those who take an oath to uphold it don't take their oath seriously. For example, just a month ago in interviewing Congressman Jim Clyburn, who's the No. 3 ranking Democrat in the House, I said to him, Congressman Clyburn, can you tell me where in the Constitution the Congress is authorized to regulate healthcare? He said, 'Judge, most of what we do down here,' referring to Washington, 'is not authorized by the Constitution. Can you tell me where in the Constitution we're prohibited from regulating healthcare.' Napolitano says that reflects a misunderstanding of what the Constitution actually is. "He's turning the Constitution on its head, because Congress is not a general legislature," he says. "It was not created in order to right every wrong. It exists only to legislate in the 17 specific, discrete, unique areas where the Constitution has given it power. All other areas of human area are reserved for the states."
* Napolitano says that members of Congress infringe on Constitutional rights because they fail to recognize its basis. "They reject Jefferson's argument, in the Declaration of Independence, that our rights come from our Creator, therefore they're natural rights, therefore they can't be legislated away," Napolitano says. "They think they can legislate on any activity, regulate any behavior, tax any person or thing, as long as the politics will let them survive. They're wrong, and with this healthcare legislation, they may be proven wrong, in a very direct and in-your-face way."

Friday, March 26, 2010

Gregory Kane: Nothing reasonable about random searches By: Gregory Kane Examiner Staff Writer March 25, 2010 Read more at the Washington Examiner: h

What's "reasonable" about a random search?

That's the question I sent by text message to a young lady who kind of drafted me to be her mentor. I was sitting at a gate in BWI-Marshall Airport, waiting to take a flight first to Philadelphia, and then on to Toronto. I had just undergone at least my third "random" search at an airport.

I had to step inside some type of funny booth and hold my hands in front of me. Then I had to hold them up high with my palms outward. The process didn't take too long, but while it lasted the one thought running through my mind was: "This seems so anti-Fourth Amendment."

That's why I sent the text message. And the question isn't a rhetorical one.

What, exactly, is reasonable about a random search? The Fourth Amendment says this:

"The right of the people to be secure in their persons, homes, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

No, the founding fathers didn't italicize the word "unreasonable" in the original document, but perhaps they should have. There is nothing about a random search that even remotely satisfies the criteria of any portion of the Fourth Amendment.

When airport personnel pull somebody over for a random search, there's no "probable cause" involved. There's not even a "reasonable suspicion" -- the criteria for what is called a "Terry stop" -- that the person being searched has either committed a crime or is about to commit one.

The term "Terry stop" comes from a 1968 Supreme Court case in which eight justices -- on the ultraliberal "Warren Court," no less -- ruled that police stop-and-frisk tactics were constitutional. Here's how part of the decision reads, written by ultraliberal Chief Justice Earl Warren himself:

"[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries ... he is entitled for the protection of himself and others in the area to conduct a limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."

I'm sure Warren didn't italicize the words "reasonably" and "reasonable" either. I did it to show that words like reason, reasonable and reasonably are the foundation of the Fourth Amendment. And random searches are almost by definition unreasonable.

Yet the practice still persists at our airports, and I think I know why. Conducting random searches is the politically correct way of trying to ferret out potential terrorists. Racial and ethnic profiling -- which some have proposed -- might be offensive and repugnant, but it has at least one thing going for it.

Racial and ethnic profiling, as a technique in determining who might be a terrorist seeking to bomb or hijack an aircraft, is much more reasonable than a random search. But the current zeitgeist in America is that we don't want to dare offend anyone from specified ethnic, religious or racial groups. (It's far better, I suppose, to offend Joe or Jane Average with a random search.)

So the more reasonable approach is tossed out in favor of the unreasonable, clearly unconstitutional one.

What's reasonable about a random search? Not one blessed thing.

Examiner Columnist Gregory Kane is a Pulitzer-nominated news and opinion journalist who has covered people and politics from Baltimore to the Sudan.

Read more at the Washington Examiner:

Thursday, March 25, 2010

Judicial Watch: Slaughter Rule Unconstitutional

Washington, DC -- March 19, 2010

Judicial Watch president Tom Fitton issued the following statement today in response to plans by the House of Representatives to use the so-called Slaughter Rule to “deem” the Senate health care bill passed without an actual up-or-down vote:

A constitutional crisis is upon us. The Democratic leadership’s plan to use the “Slaughter Rule” to pass the Senate health care bill without an explicit “yea or nay” vote by the House is an absolute violation of the U.S. Constitution (Article 1, Section 7).

Indeed, the Supreme Court has held that “(1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may ‘become a law.’” Clinton v. City of New York, 524 U.S. 417, 448 (1998)

Simply put, the House can’t pretend to vote on a bill and expect that the result will pass constitutional muster. No House member can keep true to his oath of office to “support and defend the Constitution” and approve the use of the Slaughter Rule to avoid a direct vote on the Senate health care bill.

And the U.S. Constitution would also seem to require that President Obama veto any resulting “bill” sent to him for signature, as the document that results from any House action under the Slaughter Rule is a constitutional nullity.

But concerned Americans should not assume that the courts will uphold the Constitution and throw out any government health care takeover because of the Slaughter Rule. The best defense against the Slaughter Rule’s usurpation of the Constitution is to stop it legislatively this weekend.

Judicial Watch Sues HHS to Obtain Documents Related to President Obama’s Closed-Door Health Care Meetings

President Broke Campaign Promise to Broadcast Health Care Meetings on C-SPAN; Held Private Health Care Discussions with Vice President Biden, HHS Secretary Sebelius, Speaker Pelosi, Majority Leader Reid and Union Officials
Contact Information:
Press Office 202-646-5172, ext 305

Washington, DC -- March 18, 2010

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it filed a lawsuit against the Obama Department of Health and Human Services (HHS) to obtain documents related to President Obama’s closed-door health care meetings with Vice President Biden, HHS Secretary Sebelius, Speaker Pelosi, Majority Leader Reid and union officials in violation of a campaign promise to broadcast all health care discussions on C-SPAN.

According to Judicial Watch’s lawsuit, filed on March 17, 2010:

At an August 21, 2008 town hall meeting in Chester Virginia, presidential candidate Barack Obama promised the nation that, to achieve health care reform, “I’m going to have all the negotiations around a big table. We’ll have doctors and nurses and hospital administrators. Insurance companies, drug companies – they’ll get a seat at the table, they just won’t be able to buy every chair. But what we will do is, we’ll have the negotiations televised on C-Span, so that people can see who is making arguments on behalf of their constituents, and who are making arguments on behalf of the drug companies or the insurance companies. And so, that approach, I think is what is going to allow people to stay involved in this process.”

In a startling breach of his campaign promise, between January 1, 2010, and January 15, 2010, President Obama, Vice President Biden, Health and Human Services Secretary Sebelius, and White House Office of Health Reform Director DeParle met behind closed doors with various groups to reach accord on health care reform before a final vote occurred in the U.S. House of Representatives. One group of individuals was senior officials of major unions. A second group consisted of Senate Majority Leader Reid and House Speaker Pelosi and other members of Congress.

Because President Obama and Secretary Sebelius held closed door negotiations at the White House, the public was denied the transparency President Obama had promised as a candidate.

In order to try to restore some minimal degree of transparency to the negotiations, Judicial Watch filed its original Freedom of Information Act (FOIA) request on January 15, 2010. HHS acknowledged receipt of Judicial Watch’s request on January 19, 2010. On January 21, 2010, and March 12, 2010, HHS indicated that two offices within the agency found no responsive requests. However, the Immediate Office of the Secretary and the Office of the Secretary Scheduling Office have thus far failed to respond. As Judicial Watch noted in its FOIA lawsuit, these are the two offices within HHS most likely to have custody of the requested records.

“First President Obama breaks his promise on making health care negotiations public and now his administration is stonewalling the release of records from his secret health care meetings. The President and liberals in Congress are on the verge of staging a government takeover of our health care system, and the American people, at this key moment, are completely in the dark. This lawsuit is designed to hold President Obama to his promises of transparency. It is shameful that the Obama administration would violate FOIA law to help ensure passage of Obamacare,” stated Judicial Watch President Tom Fitton.

Tuesday, March 23, 2010

Idaho, 12 other states sue federal government over new health law

Idaho joined with 12 other states in suing the federal government Tuesday immediately after President Obama signed the new health-care bill into law.

Thirteen Republican state attorneys general sued to block the law, calling it unconstitutional. Idaho Gov. Butch Otter said the lawsuit was needed to "stop this insanity."

"The sovereignty of the state of Idaho is very important to us," Otter said in an televised interview on Fox News.

The lawsuit says the health care reform law infringes on the sovereignty of the states by imposing onerous new operating rules that they must follow, Idaho Attorney General Lawrence Wasden said.

The law requires Idaho to spend billions of additional dollars without providing funds or resources to the state to help subsidize the cost of implementation of the law, he said. This burden comes at a time when Idaho faces severe budget cuts to offset shortfalls in an already-strained budget, Wasden said.

“Our complaint alleges the new law infringes upon the constitutional rights of Idahoans and residents of the other states by mandating all citizens and legal residents have qualifying health care coverage or pay a tax penalty,” Wasden said.

“The law exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution," he said. "Additionally, the tax penalty required under the law constitutes an unlawful direct tax in violation of Article I, sections 2 and 9 of the Constitution."

Under the new law, Idaho will be required to vastly broaden its Medicaid eligibility standards to accommodate upwards of 50 percent more enrollees, many of whom would be required to enroll or face a tax penalty, Wasden said.

Wasden was required to sue under the Idaho Health Freedom Act, which passed the Legislature this session and was signed into law by Otter last week.

“Legal scholars keep saying this lawsuit is futile ‘if the law is constitutional,’" the governor said in a statement. "Well, we contend the federal government has overstepped its authority with this law, and that it’s our duty to challenge it.”

The Idaho Health Freedom Act could cost the state an estimated $100,000, but the Legislature has not provided that money in the attorney general's budget. Wasden must either pay Idaho's legal expenses from his budget - $15.7 million budget for fiscal 2011, down 9 percent from this year - or tap the state's Constitutional Defense Fund for the money.

The Legislature created the constitutional fund in 1995 and gave it $1 million. The fund is overseen by a council consisting of Otter, House Speaker Lawerence Denney, Senate Pro Tem Bob Geddes and Wasden.

Today, the fund has $240,321.61. But some of that money could be allocated already. The House passed House Concurrent Resolution 58 earlier this session asking the council to investigate the feasibility of the state taking control and management of Bureau of Land Management and U.S. Forest Service lands. A Senate committee approved that resolution Monday, sending it to the full Senate.

The lawsuit was filed in federal court in Pensacola, Fla. Other states joining the lawsuit are South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington and South Dakota. The defendants are the federal departments of Health and Human Services, Treasury and Labor.

Minutemen Hit The Border!!

The President of the Minutemen, Carmen Mercer, has has enough. She says, ““The Minutemen are returning to the border – locked and loaded – to say, ‘You are wrong Obama, America comes first!’” As if that wasn’t enough to make Angry White Dude love her, Mercer also called Janet Napolitano an “unqualified buffoon who risks the lives of American citizens every day she is the head of DHS.” Couldn’t agree more!

Mercer says the Minutemen are heading to the border to stop each and every illegal invader. Immigration enforcement is the job of the federal government…one they have failed miserably! America is so out of whack we allow illegal immigrants to enter our country at will and put them on our welfare programs to boot! We also pay their health care, education for their children and incarceration for their criminals who prey on law-abiding Americans! Isn’t America great? It is if you’re a foreign moocher!

On top of years of open border policy, Obama now wants to ram through amnesty for those illegals! After his shameful passing of ObamaCare he’ll need the votes of illegal aliens for the Congressional Democrats and himself. If he thinks Americans are angry over ObamaCare, he hasn’t seen anything like the trouble he’ll start with amnesty. Trouble he will not be able to contain.

Our country and heritage are being stolen from right under our noses by corrupt politicians. Some have decided it’s time to do something about it. Maybe they’ve decided they’ve had enough with the willful breaking of our laws. Maybe they’ve had enough political correctness. How long will the rest of us wait?

Here’s the article from the excellent Sonoran News:

Thursday, December 31, 2009

DHS Subpoenas Two Journalists Who Published Leaked Airline Security Changes

Transportation Security Administration officers put passengers' suitcases through an X-ray machine at Los Angeles International Airport Dec. 29. (Reuters Photo)

The Department of Homeland Security, which oversees the Transportation Security Administration, sent federal agents to the homes of two journalists and served them with subpoenas on Tuesday night to try to identify the source of a leak about aviation security changes imposed after the failed attempt on Christmas Day to blow up Northwest Flight 253.

In separate visits, the DHS employees told Chris Elliott and Steve Frischling that their computers and all e-mail correspondence related to the leak of the security directive were being subpoenaed as part of an investigation into who leaked the document to them, which both journalists published on their Web sites.

The directive, issued within hours after 23-year-old Umar Farouk Abdulmutallab failed to detonate explosives that had been sewn into his underwear, restricted passenger movement and activities on all international flights. After being published by Elliott and Frischling, the restrictions were widely ridiculed by travel experts, bloggers, and news organizations, which deeply embarrassed the TSA and the homeland security agency, already under pressure for their missteps in the foiled attack.

The TSA backtracked almost immediately on the restrictions -- which had ordered airlines, among other things, not to permit passengers to go to the bathroom an hour before arrival on all international flights and to prevent them from holding pillows, blankets and personal possessions on their laps. A TSA spokesman said that the added security precautions were discretionary.

Elliott, the blogger who first published Security Directive SD-1544-09-06 and writes a travel column for The Washington Post, said he was surprised and somewhat intimidated by the TSA visit and being served with the subpoena. In his blog, Elliott wrote that he had "just put the kids in the bathtub when Special Agent Robert Flaherty knocked on my front door with a subpoena. He was very polite, and used "sir" a lot, and he said he just wanted a name: Who sent me the security directive?"
related links


CIA Prepared Report on Nigerian Terror Suspect Before Attempted Attack, Sources Say

Elliott said in an interview that he had declined to tell Flaherty the identity of his source or turn over his computer. He said he has referred further inquiries about his stance to Mark Holsher, an attorney, who did not return calls for comment.

Frischling, who runs a travel Web site called "Flying with Fish" and published the directive minutes after Elliott, said in an interview today that he had given his computer to the two federal agents who came to his house on Tuesday night. Frischling said he complied with their request after they asserted that he was "not a journalist" and handed him a subpoena, telling him he had now been "served." They also said they would return the next morning to confiscate his computer and other communications equipment if he failed to cooperate.

Frischling said his computer was returned this morning with several corrupted sectors and that he was running software to repair it. He said he had given the agents his computer because the directive had been sent to him anonymously, that he had deleted the original e-mails, and that it had been sent to him by someone who had undoubtedly used a phony e-mail name and address.

Francis DiScala Jr., Fischling's attorney, criticized the DHS for using "heavy-handed tactics" and "intimidating" his client. "Federal agents came and confiscated the tools of his trade at night in front of his three children," DiScala said. "When federal agents show up at your door with badges, their very presence is intimidating. The weight of the government is on you and just you. Steve was not motivated by generosity in giving up his personal computer, which he uses to earn a living."

Frischling said that the subpoena he received Tuesday, which was first reported by the Daily Kos, was almost identical to that posted by Elliott on his Web site. That subpoena, issued by the administrator of the TSA and the Department of Homeland Security, orders him to "produce and permit inspection and copying of the records" related to the inquiry to Special Agent Flaherty "no later than COB (close of business) December 31, 2009, in furtherance of an official investigation." The subpoenas order the recipients to produce "all documents, e-mails, and/or faxsimile transmissions in your control possession or control" regarding the "receipt of TSA Security Directive 1544-09, dated December 25, 2009."

The subpoena also warns that failure to comply makes the recipient "subject to fines" and "imprisonment for not more than one year," or "both."

Flaherty, who is based in a TSA office in Orlando, Florida, did not return e-mails asking him for comment on his investigation, or why he and other agents went to the journalists' homes at night.

Spokesmen for the Department of Homeland Security declined comment on the inquiry and subpoenas. The TSA, which never posted its regulations which are set to expire after Dec. 30, confirmed the existence of a leak investigation. Its statement asserted that security directives were "not for public disclosure" and that the TSA's Office of Inspections was "currently investigating how the recent SDs were acquired and published by parties who should not have been privy to this information."

Both the TSA and its parent Department of Homeland Security have been heavily criticized not only for the temporary security restrictions but for their handling of the terrorist incident more broadly. The transportation agency has been lambasted, for instance, for having allowed Abdulmutallab to board the Detroit-bound flight that originated in Nigeria with virtually no luggage and having bought a round-trip ticket in cash. DHS Secretary Janet Napolitano has also faced heat for having initially asserted in talk shows Sunday that the aviation security system worked well because the attack was foiled and other planes in the air were informed of the incident soon after the foiled attack took place.

Stung by the criticism, Napolitano reversed course on Monday, saying her remarks had been taken out of context, and that the incident had raised troubling security concerns. On Tuesday, three days after the incident, President Obama emerged from his vacation seclusion in Hawaii to deliver a broadside attack on the handling of the incident, saying it reflected a "systemic failure" that he considered "totally unacceptable." He has ordered a review of the incident, which he called a "catastrophe." A preliminary copy of that review is supposed to be delivered to him Thursday.

That the TSA would spend time and resources pursuing journalists about the origins of the leak of its security directive rather than focusing on finding how Abdulmutallab was able to board the plane despite intelligence indicating he was a potential security risk says much about the agency's priorities.

Elliott said he did not regret having published the directive, since he was a "consumer advocate trying to help the flying public." The TSA's security restrictions following the failed attack, he said, were "poorly thought through and didn't match up with what the TSA was telling the airlines." No one knew what was going on, he said "because the TSA did not respond" to his questions. He published it, he added, because the document did not state that it was secret or classified. "And that's what led to the knock on my door."

Lucy Dalglish, who heads the Reporters Committee for Freedom of the Press, a non-profit group which defends reporters and news organizations fighting for freedom of expression, said that the subpoenas "border on the ridiculous."

"Certainly TSA is enraged that it's order not to release this information was violated. Yet, there's nothing national security-related in the directive posted by Chris Elliott," she said.

She said it pertains more to what travelers already know: "Carry-on luggage is being searched and folks are being frisked at the gate."