Federal agents went to the homes of two bloggers Tuesday to issue subpoenas in an effort to find out who leaked them a memo on the Transportation Security Administration's enhanced security procedures in the wake of the failed Christmas Day terror attack. The agents looked through the computer, Blackberry, and iPhone of one of the bloggers, and told him they'd sit outside his house until he gave them the information they wanted, he says.
On Sunday, Chris Elliott, a well-regarded travel journalist who writes for National Geographic, MSNBC, and the Washington Post, published on his blog a TSA security directive, issued in the hours after the failed bombing incident. The directive, which went to airline, airport, and government personnel, outlined enhanced screening procedures, including performing a "thorough pat-down of all passengers at boarding gate prior to boarding, concentrating on upper legs and torso."
Around the same time, Steven Frischling, who writes a blog for KLM Dutch Royal airlines, posted the same directive.
Two days later, agents for the TSA, a division of the Department of Homeland Security, visited both men at home, and issued them subpoenas.
Here is the Eliot's account from his blog:
We 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?
I invited Flaherty to sit down in the living room and introduced him to my cats, who seemed to take a liking to him. The kids came by to say hello, too.
“A subpoena?” I asked the special agent. “Is that really necessary?”
“Sir,” he repeated. “You’ve been served.”
Alright, then. I’ve been served. Here’s the full text of the subpoena:
UNITED STATES OF AMERICA
Department of Homeland Security
Transportation Security Administration
SUBPOENA DUCES TECUM
YOU ARE HEREBY COMMANDED BY THE ADMINISTRATOR, TRANSPORTATION SECURITY ADMINISTRATION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, to produce and permit inspection and copying of the records described below to Special Agent Robert Flaherty, TSA Office of Inspection, Transportation Security Admininistration, 580 T G Lee Blvd, Suite 610, Orlando, Florida 32822 (Phone #: 407-563-4096), email:
Robert.M.flaherty@dhs.gov, no later than COB December 31, 2009, in furtherance of an official investigation:
All documents, emails, and/or faxsimile transmissions (sic) in your control possession or control concerning your receipt of TSA Security Directive 1544-09-06 dated December 25, 2009.
IN TESTIMONY WHEREOF, the undersigned, an officer designated by the Transportation Security Administration, has hereunto set his hand in the county of Arlington, Virginia, this 29th day of December, 2009.
Dan Kuntz
Senior Counsel – Civil Enforcement
Transportation Security Administration
U.S. Department of Homeland Security
AUTHORITY
This subpoena is issued under the authority contained in 49 U.S.C. §§ 40113 and 46104; and 49 C.F.R § 1503.3.
Any person who neglects or refuses to produce records in obedience to this subpoena is subject to fines under Title 18, United States Code, imprisonment for not more than one year, or both, 49 U.S.C § 46313.
(For those of you who didn’t go to law school or take Latin, a subpoena duces tecum — Latin for “bring with you under penalty of punishment” — is form of a subpoena issued by a court ordering the parties named to appear and produce tangible evidence for use at a hearing or trial.)
So if I’m reading this correctly, the TSA wants me to tell them who gave me the security directive.
I told Flaherty I’d call my attorney and get back to him.
What would you do?
(Incidentally, my kids liked Special Agent Flaherty. They’ve been calling him “our friend from the TSA” all evening. Probably because he had a cool badge and got along with the cats.)
Update:
The Department of Homeland Security has withdrawn a subpoena that would have required me to furnish it with all documents related to the Dec. 25 TSA Security Directive published on this Web site.
The move came after I was granted an extension on the government’s request earlier today. I also signaled my intent to challenge the subpoena in federal court next week.
My attorney, Anthony Elia, received the following confirmation from the Department of Homeland Security:
Mr. Elia:
This is to confirm our earlier telephone conversation that the TSA subpoena of December 29, 2009, issued to your client, Mr. Christopher Elliott, is being withdraw as no longer necessary.Thank you for your assistance and have a happy and safe New Year.
John A. Drennan
Deputy Chief Counsel (Enforcement)Office of the Chief Counsel
Transportation Security Administration
Department of Homeland Security
I also just spoke with Steve Frischling, who had also been served with a subpoena in connection with the security directive. He says he received a phone call from a deputy chief counsel for enforcement at the DHS to let him know he was off the hook and that the agency had offered to buy him a new computer. His previous computer had been damaged after Frischling consented to a search of his computer and hard drive.
Needless to say, I’m delighted by this turn of events.
TSA did the right thing by withdrawing its subpoena. Perhaps it has bigger problems to worry about?
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