Armed agents seize records of reporter, Washington Times prepares legal action
By Guy Taylor
Friday, October 25, 2013
Maryland state police and federal agents used a search warrant in an unrelated criminal investigation to seize the private reporting files of an award-winning former investigative journalist for The Washington Times who had exposed problems in the Homeland Security Department's Federal Air Marshal Service.
Reporter Audrey Hudson said the investigators, who included an agent for Homeland's Coast Guard service, took her private notes and government documents that she had obtained under the Freedom of Information Act during a predawn raid of her family home on Aug. 6.
The documents, some which chronicled her sources and her work at the Times about problems inside the Homeland Security Department, were seized under a warrant to search for unregistered firearms and a "potato gun" suspected of belonging to her husband, Paul Flanagan, a Coast Guard employee. Mr. Flanagan has not been charged with any wrongdoing since the raid.
The warrant, obtained by the Times, offered no specific permission to seize reporting notes or files.
The Washington Times said Friday it is preparing legal action to fight what it called an unwarranted intrusion on the First Amendment.
"While we appreciate law enforcement's right to investigate legitimate concerns, there is no reason for agents to use an unrelated gun case to seize the First Amendment protected materials of a reporter," Times Editor John Solomon said. "This violates the very premise of a free press, and it raises additional concerns when one of the seizing agencies was a frequent target of the reporter's work.
"Homeland's conduct in seizing privileged reporters notes and Freedom of Information Act documents raises serious Fourth Amendment issues, and our lawyers are preparing an appropriate legal response," he said.
Maryland State Police declined comment, except to say that "evidence and information developed during this investigation is currently under review by both the Anne Arundel County State's Attorney's Office and the United State's Attorney's Office," and that a determination has yet to be made on any charges.
The U.S. Coast Guard confirmed it seized and reviewed Ms. Hudson's documents but insisted it did nothing wrong.
Capt. Tony Hahn, a spokesman at Coast Guard headquarters in Washington, said the Coast Guard Investigative Service (CGIS) was involved in the case because Mrs. Hudson's husband, Mr. Flanagan, is a Coast Guard employee.
During the search of the home, said Capt. Hahn, "the CGIS agent discovered government documents labeled 'FOUO' — For Official Use Only and 'LES' — Law Enforcement Sensitive."
"The files that contained these documents were cataloged on the search warrant inventory and taken from the premises," he said. "The documents were reviewed with the source agency and determined to be obtained properly through the Freedom of Information Act."
Ms. Hudson described a harrowing ordeal the morning her family home was raided.
The agents, who had arrived a 4:30 a.m. in full body armor, collected several small arms during the raid, although no charges have been filed against Mr. Flanagan, 54, during the nearly three months since.
Mrs. Hudson, 50, says that while the authorities were raiding her house, Coast Guard investigator Miguel Bosch — who formerly worked at the marshal service — began asking questions about whether she was the same "Audrey Hudson" who had written "the air marshal stories" for The Washington Times. Mrs. Hudson says she responded that she was.
It was not until roughly a month later, Mrs. Hudson says, that she realized the agents had quietly seized five files from her private office — including handwritten and typed notes from interviews with numerous confidential sources related to her exclusive reporting on the air marshals service.
The search warrant for the raid, issued to Maryland State Trooper Victor Hodgin by a district court judge, made no reference to the documents. A copy obtained by The Times indicates that the search was to be narrowly focused on the pursuit of "firearms" and their "accessories and/or parts," as well as any communications that that might be found in Mrs. Hudson and Mrs. Flanagan's home related to "the acquisition of firearms or accessories."
David W. Fischer, a private attorney contacted by the couple, says that the raid is a potential violation of Mrs. Hudson's constitutional rights.
"Obviously, the warrant is about a gun, nothing about reporters notes," he said. "It would be a blatant constitutional violation to take that stuff if the search warrant didn't specifically say so."
"This is a situation where they picked very specifically through her stuff and took documents that the Coast Guard, or the Department of Homeland Security, would be very interested in," he added.
The raid could constitute illegal search and seizure under the Fourth Amendment -- and the fact that the materials were related to her work as a reporter could First Amendment freedom of the press protections.
Once the documents had been "cleared," Homeland decided to return the documents to Mr. Flanagan and Mrs. Hudson, Capt. Hahn said.
The Coast Guard, like the Federal Air Marshal Service is an agency within the U.S. Department of Homeland Security.
A Reporter's Word
What concerns Mrs. Hudson and The Times is the fact that private reporting documents were seized during the search being conducted on totally unrelated grounds.
While Mr. Flanagan has a police record from the mid-1980s related to the unlawful possession of firearms, including automatic weapons, Mrs. Hudson fears her private documents may have been the real target of the search.
"They tore my office apart more than any other room in my house," she said, adding agents did not take other potentially non-TSA-related documents from the office.
"I had a box full of [Department of Defense] notes," she said. "They didn't touch those."
Some of the files included notes that she had used to expose how the Federal Air Marshal Service had lied to Congress during the years after the Sept. 11, 2001, terrorist attacks about the number of airline flights that the service was actually protecting against another terrorist attack.
A story written by Mrs. Hudson for The Times in March 2005, revealed how air marshals were protecting less than 10 percent of domestic and international flights during the month of December 2004, and that the number of flights Homeland Security officials were providing to Congress was higher than the actual number of marshals it employed.
Mrs. Hudson says that the experience of having "a half-dozen armed officers rifle through my personal belongings for the three-hour search was traumatizing."
"But when the files were returned to me and I saw all the notes that had been in their possession for a month, it was gut-wrenching," she said.
That her private files were seized, says Mrs. Hudson, is particularly disturbing because of interactions that she and her husband had during the search of their home, as well as months afterwards, with Coast Guard investigator Miguel Bosch. According to his profile on the networking site LinkedIn, Mr. Bosch worked at the Federal Air Marshal Service from April 2001 through November 2007.
It was Mr. Bosch, Mrs. Hudson says, who asked her during the Aug. 6 search if she was the same Audrey Hudson who had written the air marshal stories. It was also Mr. Bosch, she says, who phoned Mr. Flanagan a month later to say that documents taken during the search had been cleared.
During the call, according Mrs. Hudson, Mr. Bosch said the files had been taken to make sure that they contained only "FOIA-able" information and that he had circulated them to the Transportation Security Administration, which oversees the Federal Air Marshal Service, in order to verify that "it was legitimate" for her to possess such information.
"Essentially, the files that included the identities of numerous government whistleblowers were turned over to the same government agency and officials who they were exposing for wrongdoing," Mrs. Hudson said.
Reached on the telephone by a reporter for The Times, Mr. Bosch refused to comment on whether or not journalist-related documents were seized during the search of Mrs. Hudson's home.
"I got to get on the phone with Coast Guard legal before I talk with you," Mr. Bosch said. "It's still an open investigation."
Asked specifically whether documents related to Mrs. Hudson's reporting activities were taken during the search, he responded: "There was a lot of stuff taken."
The U.S. Coast Guard maintains that it has done nothing wrong in the case and that the investigation into Mrs. Hudson's husband is based on legitimate suspicion that he was illegally in possession of firearms.
The warrant outlines how Mr. Flanagan was found guilty in 1985 — when he was 25 — of resisting arrest in Prince George's County, Maryland.
The charge of carrying a concealed deadly weapon was dropped, but a year later, the U.S. Marshal Service arrested Mr. Flanagan for possession of a machine gun. The warrant also indicates that Mr. Flanagan was also arrested in 1996 by police in Anne Arundel County, Maryland,for possessing a handgun in his vehicle.
The warrant outlines how sometime this year Mr. Flanagan drew the interest of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives after allegedly attempting to purchase "possible machine gun parts from a Swedish national."
The warrant says the information was handed to the Coast Guard's investigative service — since Mr. Flanagan worked at the agency — which conducted an interview during which "Flanagan was evasive but stated he did receive a 'potato gun' but it was defective and it was thrown away."
The term "potato gun" is "slang used during the illegal importation of silencers," according to the warrant.
Mrs. Hudson says the "potato gun" claim is outrageous.
She says that her husband did in fact purchase a "potato launcher" from an online company based in Sweden five years ago as a novelty item, but it was discarded within as few weeks because it did not work.
She noted that the law enforcement agents who raided her home did not take a "golf ball launcher" that also belonged to her husband as a novelty item. They did, however, confiscate small arms belonging to Mrs. Hudson that she had legally registered with the Maryland State Police as far back as 2005.
The search warrant allowed for the weapons to be confiscated, and Mrs. Hudson says the agents told her that because her husband had pled guilty to a resisting arrest charge nearly 30 years ago, she was not allowed to possess the guns under state law. The guns she owned were for recreational shooting, she says, as well as for security concerns resulting from many of her investigations.
"I swear to God, we're not smuggling machine gun parts from Sweden," said Mrs. Hudson, adding that the potato launcher in question "didn't even work."
Mrs. Hudson has been a reporter in Washington, D.C. for nearly 15 years, and covered Homeland Security for the Times after the Sept. 11, 2001, terrorist attacks through December 2009.
Her investigations have sparked numerous congressional investigations that led to laws signed by former Presidents George W. Bush and Bill Clinton. She has won numerous journalism awards for her investigations, including the prestigious Sigma Delta Chi bronze medal for public service, the Society of Professional Journalists Dateline Award in Investigative Reporting, and was nominated twice by The Times for the Pulitzer Prize.
"Protecting confidential sources is a part of my honor and hits me at my ethical core," said Mrs. Hudson. "To have someone steal my source information and know it could impact people's careers, is disgusting, a massive overreach. This kind of conduct is intimidation clearly aimed at silencing a vigorous press."
Guy Taylor rejoined The Washington Times in 2011 as the State Department correspondent.
As a freelance journalist, Taylor’s work was supported by the Pulitzer Center on Crisis Reporting and the Fund For Investigative Journalism, and his stories appeared in a variety publications, from the St. Louis Post-Dispatch to Salon, Reason, Prospect Magazine of London, the Daily Star of Beirut, the ...