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Government intercepts, confiscates AP reporters’ package

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  1. Protecting Sources and Materials

    NMU         WASHINGTON, D.C.         Confidentiality/Privilege    

Government intercepts, confiscates AP reporters’ package

  • Federal officials opened a package mailed between two reporters and illegally turned the contents over to the Federal Bureau of Investigations.

March 13, 2003 — Government authorities intercepted a package mailed between two Associated Press reporters last September and, without a warrant and without notifying the reporters, seized the contents, according to an AP report. The package contained a copy of an unclassified FBI report from 1995 that had since become a public record, the AP said.

AP reporter Jim Gomez in Manila sent the document to John Solomon in Washington in connection with stories the two reporters were investigating on terrorism.

The package, sent via Federal Express, was intercepted at the courier’s hub in Indianapolis.

U.S. Customs Service agents told the AP they selected the package during a routine inspection on Sept. 19. Agents opened the package, found the FBI report, and contacted the FBI.

The FBI then took possession of the package and has yet to return it to the AP.

The AP said the FBI document in the package contained information that had been previously disclosed in two court proceedings. The report contained copies of evidence gathered in the terrorism cases of Abdul Hakim Murad and Ramzi Yousef. Murad and Yousef were sentenced to life in prison for plotting to blow up 12 airliners bound for the United States. Yousef was also convicted of planning the 1993 World Trade Center Bombing.

Under agency guidelines, the Customs Service — recently renamed the Bureau of Customs and Border Protection when it was moved to the new Department of Homeland Security — has the right to examine and open non-letter rate parcels coming into the country from overseas, according to David Schulz, attorney for the AP.

Upon inspection, agents may take possession of a package if they suspect the presence of certain contraband. In this situation, it appears Customs had no legal reason to seize the reporters’ package, Schulz said.

Moreover, Customs agents are required to give notice of any seizure to the intended recipient and may not share information with other agencies without a warrant. Both Customs and the FBI should have had court-ordered warrants in order to take possession of the AP’s package, Schulz said.

Here, the AP was not notified of the seizure, and no warrant was obtained before the documents were shared with the FBI.

The AP found out about the breach through a tip in January, according to David Tomlin, assistant to the AP president.

The AP had inquired about the missing package in the fall and was reimbursed $100 for what FedEx said was an accidental loss. A FedEx spokesperson told the AP the company was unable to track the package after it arrived in Indianapolis and had no records of the seizure by Customs.

The Customs Service told the AP in a statement that Customs routinely asks other agencies about contents of packages that pertain to the agencies. Customs said the FBI requested the file and was responsible for obtaining any necessary warrants.

“We’re looking at all of the facts and all the potential rights and remedies we have,” Tomlin said in an interview. The AP has not yet taken any legal action.

Under the federal Privacy Protection Act, it is unlawful for government officers to “search for or seize documentary materials . . . possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication,” unless there is probable cause to believe the reporter committed the crime being investigated, or the seizure is necessary to prevent death or serious injury.

The package interception is the second time Solomon’s work has been the subject of government intrusion.

In May 2001, the Department of Justice subpoenaed Solomon’s home phone records to discover his confidential source for information he reported about the investigation of then-U.S. Senator Robert Torricelli. Solomon did not find out about the subpoena until August, after the records were obtained.

Under federal regulations entitled “Attorney General Guidelines on Subpoenaing the News Media,” the AP should have been given notice of the phone records subpoena before it was carried out.

(Media counsel: David Schulz, Clifford Chance, New York) WT

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