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Full text of my subpoena from the Department of Homeland Security

December 29, 2009

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.)

(Photo: timsamoff/Flickr Creative Commons; it is not a picture of my actual subpoena, which doesn’t look quite as sexy.)

Christopher Elliott is the author of Scammed: How to Save Your Money and Find Better Service in a World of Schemes, Swindles, and Shady Deals. Critics have called it “eye-opening” and “inspiring” — it’ll “grab your attention and won’t let go.” Order your copy now on Amazon, Barnes & Noble or iTunes.

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272 comments

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  • http://prudencewilldictate.blogspot.com/ Bill

    While it’s hard to reach any conclusion other than that the TSA has a large number of incompetent boobs, there might be someone over there who has a clue. I’m not completely sure how I feel about the issue, but in trying to look at various aspects of the thing, I considered the following.

    Our government, including the TSA does have the right to keep secrets (plenty of precedent for this). The TSA bears the responsibility to keep its secrets secret, not the public. Once in the hands of the public, ex-secrets now belong to the public (plenty of legal precedent here too). As a journalist it is your right and obligation not to make decisions on what to withhold from the public. You got the document; you should print it.

    I’d like to see a reduction in the number of incompetent boobs in the TSA. By definition, it was an incompetent TSA boob who leaked a TSA internal document. If our enemy is incompetent TSA boobs, help the special agent find the boob. If you swore to the leaker that you wouldn’t disclose either him or the document, he is still an incompetent boob. If he is that easily tricked into compromising his employer’s information, he might just as likely leak something that actually did pertain to national security. Help the feds fire his ass.

  • Rich Green

    At the end of the day, you printed something you had no reason to have nor any right to publish.

    You should prepare for a long legal battle if you refuse to reveal your source.

    On a side note, what reason can you give for actually posting this? Why not just say “the third magnetometer from the right about LAX doesn’t work” Posting things like this serves nothing but to fuel the paranoid “they are taking all my rights” crowd.

    I am all for bomb sniffing dogs, profilers (ala El Al) and the backscatter readers. I prefer flying safe. I have nothing to hide so I don’t care.

  • Joan Schmelzle

    I certainly hope you do not have to give the TSA what they are asking for–must be the old journalism teacher haning around in me. And this comes up just as I was about to send you a tidbit that I thought showed at least one TSA agent had a sense of humor.

    On my trip to Florida I had packed seven packages of different cheeses in a plastic bag in my checked bag–gifts for my brother and nephews homes where I visited and stayed. Usually I find the little TSA card lying on top of the contents. When I unpacked I didn’t think about it. Then I took the plastic bag to the kitchen so my brother could pick the cheese he wanted. And there neatly folded in the bag was the usual card telling me my luggage had been searched. I rather liked this, and thought you might get a slight chuckle out of it despite the obnoxious subpoena.

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  • Cassivella

    Chris, what is MSNBC and NatGeo and such saying to you about this?

  • Paulie

    Wow…I wonder, was this the HOPE and CHANGE that we wee to be treated to by Mr. Obama’s vaunted “most transparent goverment ever”?

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  • Lianne

    @ Rich Green & Ryo

    There was nothing in that document that wasn’t public knowledge by the time Chris published it. Chris was simply trying to make his readers aware of new security procedures to help them navigate their way legitimately through TSA security and to prevent a passenger from incurring the wrath of a on overzealous FA when they wanted to go to the bathroom in the last hour of a flight.

    Unelss a terrorist got the bright idea of trying to impersonate the Queen of England I’m pretty certain there’s nothing in that document that couldn’t be revealed.

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  • http://www.roamingtales.com Caitlin

    On the issue of protection of a source.

    If you gave the source assurances of anonymity then journalistic ethics say you must protect that.

    If the source took it upon themselves to send the document to you, anonymously or otherwise, without checking with you first, then you don’t really owe them any duty of care.

  • Peter

    I’m sure TSA is still recovering from the TSA handbook that was leaked a few weeks back. TSA also has to learn that it is important to disseminate information — like revised screening processes — PDQ — or risk being seen as outdated. They have a lot of egg of their face because of this situation and are have to answer a lot of questions — detailed questions.

    The person(s) who violated the confidentiality agreement by distributing it should have their hands slapped. This was not a situation of whistle-blower and those individual(s) had no right to decide if or not this document would have hurt national security. Unfortunately, the nature of today’s news and media really challenges the ethics of employees whom companies — and government have trusted with confidential documents. There is financial incentives to bragging rights to be the first out with news. One day, someone will give out too much information to the wrong media outlet and we will pay the price. Luckily, the rules that TSA devised made no sense or difference what so ever and this time it didn’t matter that they were leaked. They only served to make TSA look even more ridiculous — and maybe that, is part of what this is all about.

  • Jimbo

    Talk to a good lawyer. Quashing an administrative subpoena by a reporter isn’t that hard, especially since your document isn’t classified. Your First Amendment rights trump their 49 USC gobbedlygook interest in finding out who among 10,000 recipients leaked the document. Don’t go Frank’s way, be a journalist and stand up to this heavy-handed treatment. TSA will lose in court and in the public eye.

  • Duke Nukem

    This is “Nothing but the Truth” all over again…This only means that the TSA Document is/was THE OFFICIAL screening guide, and it also means that Those Stupid Agents don’t know their head from their ASS..People, buckle up. Cases like this will pop up even more, eventually turning the US of A into US of Soviet America, a dictatorship, (I guess that’s what Obama means by “improving relations with Venezuela”) much like the Soviet Russian government doing with religious groups.

  • Joe Farrell

    Just remember – do not say anything to anyone. I do not care what they ask, promise, threaten, cajole or otherwwise say – and take free legal advice for what it is worth – don’t cooperate with ANYONE.

    They are asking you for documents. If you have no documents ANY LONGER you produce nothing.

    Furthermore – you object to the SDT on the grounds that you have a fifth amendment right against self-incrimination. Giving them documents admits that you have the document.

    I know MSNBC will get you a good lawyer.

  • Kim

    You’ll get my donation for a legal defense fund but I suspect the Reporters Committee for Freedom of the Press would help as well.

  • Grant Ritchie

    Did Chris’ source(s) have a legal right to reveal proprietary TSA information? No. Does TSA have a legal right to take action to discover the name(s) of Chris’ source(s)? Yes. Do we, Chris’ readers, have a moral duty to stand up for him? Absolutely!
    That being said, I hereby authorize you, Chris, to reveal to TSA that I was the source of the Security Directive in question, and I’d like suggest that all you “other” folks who leaked this document authorize Chris to release your names, too. Chris, standing alone, will be a lot easier to bully, intimidate, and even jail, than Chris with 100 of us standing beside him.

  • http://N/A PJ

    We have seen, repeatedly, that what the United States government does in secret is NOT for our benefit. The DOD lying about virtually EVERYTHING- including soldiers murdering civilians; friendly fire; KR&B electrocuting soldiers and covering up; fraud, waste and abuse. The NSA/CIA/FBI using torture and private companies licensed to kill; missing numerous leads on 9/11. The gross incompetence of the FAA, FDA, TSA and virtually every other government organization. Obama’s “courageous” Attorney General Eric Holder hiding behind “State Secrets” and keeping the status quo intact. A Government that hides its actions from the People is the Enemy of the People.

  • Ray Sharradh

    I’m a fan of protecting journalistic integrity (although bloggers, per se, are NOT journalists). But seriously, people – the whole “protected sources” concept is for protecting whistleblowers who bring to light misdeeds, misappropriations, corruption, etc. In this particular case, the TSA is quite RIGHTFULLY attempting to find out who it is that is betraying aviation security. Is everyone seriously trying to protect the low-life, deceitful scumbag who was provided this document by the government under the pretext of complying with the requirements to protect it, and then turning around and passing it around for open publication? THAT is the true mark of a two-face pathetic excuse of a human being with NO honor or integrity. Get real, folks.

  • Justin

    PJ,

    Agreed. The Bush Administration set a DANGEROUS precedence with the Patriot Act / NSA Wiretapping / Use of Homeland Security Letters / Torture, etc etc.

    Yet, Obama, for all his empty promises, is simply continuing the status quo (didn’t expect differently to be honest). Why? Once a person has power, they are not apt to give it back. Promises or not.

    So Chris is in for ONE HELL OF A BATTLE…. Shield has NOT PASSED. It has stalled. Therefore, the rights of the media are to be determined by the courts. Pretty much, the only saving grace for Chris will be:

    1) Media Media Media. Break out the big guns and get mass coverage. Negative Press can easy pressure from the government.

    2) Legal Slush fund. Get big name lawyers. I know Chris writes for CNN. He’s going to need ACLU, CNN, etc lawyers to help him here.

    However, as stated in my previous post, the New York Times reporter who failed to disclose / refused to name her source spent 85 days in jail. Chris has a wife and kids. This might be a reality though. Push come to shove, Chris might have to make a HARD CHOICE between journalistic integrity (Hiding his sources and their confidentiality) or paying the price for it. No one said speaking out did not come with consequences. Chris chose to publish the article, and all stories have risks involved.

  • http://www.eximpartners.com Stephen Costanzo

    Christopher,

    What’s next, censorship? Fight ‘em! (Well you asked…)

    I depend on your blog for up-to-date travel industry information. It would be good to know that you can tell us the truth so we can be prepared. There was nothing in that TSA directive that would be giving potential terrorists tactical information on beating their system. Rather, it sounded to me like after reading that memo, they would decide that there are easier ways of blowing us up–like getting through our porous port security and border patrols.

    Keep on fighting for us. And thanks!

    Sincerely,

    Steve

  • http://www.shannonlane.com Shannon

    Chris – Sending good vibes your way. Just thinking about you and your family.

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  • Aaron

    Apparently, Chris isn’t the only blogger receiving a “visit” from the TSA. I just read that another blogger in Connecticut also received a visitor with the same “gift”. The article is on a local news site via the AP.

  • Justin

    Ray Sharradh,

    Maybe you do not see it, but the individual who leaked this exposed what he felt was a flawed policy. If you took a few minutes to back off your harsh tone, and analyze the situation, you might understand. Here’s what we have:

    1) TSA failed to properly execute their duties and let said individual on a plane. Sure, we do not know the details, but it is clear, someone was not properly screened.

    2) The TSA is now expected us to buy their over-reaction for their lack of due diligence. As if fear mongering hasn’t been the name of the game long enough. Maybe, just maybe, if they did their job properly in the first place, this could have been prevented.

    But hey, who are we to point out the obvious. Just blame Chris the journalist, for reporting on the story. It’s all his fault anyway, right? (Sarcasm).

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  • salome

    what would I DO ? –tell him to leave it by the door…..oh you can’t ? too bad.

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  • Mike

    I work as an investigator for a living. You did the right thing. However. Security screeners letting bombs on planes is not acceptable. I haven’t heard a story about someone being stopped with a bomb yet. However it always seems that brave passengers end up doing what the TSA could not.

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  • John S.

    “This subpoena is issued under the authority contained in 49 U.S.C. §§ 40113 and 46104; and 49 C.F.R § 1503.3.”

    49 U.S.C 40113: http://tinyurl.com/yf48uxg
    Applicable section: “(a) GENERAL AUTHORITY.—The Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration
    with respect to aviation safety duties and powers designated to be carried out by the Administrator) may take action the Secretary, Under Secretary, or Administrator, as appropriate, considers necessary to carry out this part, including conducting investigations, prescribing regulations, standards, and procedures, and issuing orders.”

    49 C.F.R. 1503.3: http://tinyurl.com/ygd3ohw
    Applicable section: “(a) The Administrator may conduct investigations, hold hearings, issue subpoenas, require the production of relevant documents, records, and property, and take evidence and depositions.”

    49 U.S.C. 46104: http://tinyurl.com/ykr3epg
    Applicable section: “A judicial proceeding to enforce a subpena under this section may be brought in the jurisdiction in which the proceeding or investigation is conducted. The court may punish a failure to obey an order of the court to comply with the subpena as a contempt of court.”

    Which means the subpena has no legal power until a court orders you to comply with it, and you are not subject to punishment for refusing the subpena until a court finds you in contempt of court for refusing to comply with the court’s order. Until a court compels you to comply with the TSA subpena, it has not legal force.

    As it should be. Can the police issue their own subpenas without court order? NO.

    I wouldn’t have given up a thing until a REAL subpena issued by a court, not by the TSA, were produced.

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  • Frank Palmer

    I like how the news is making a big deal out of how the TSA screwed up and should have seen red flags like he paid cash, one way, father told the embassy he was worried.

    I think the scary news should be how easy this was to accomplish and how someone not on a watch list with a credit card could do this and get through security easily any day. I don’t know if full body scans or puffer machines or something else could help to stop this flaw in the system but I hope they get something soon.

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  • JP Russell

    What DHS does via TSA does little, if anything, for security. Now comes the inevitable intimidation by the Feds to one who points out that the Emperor has few, if any, clothes on when it comes to security.

    Get a damn good lawyer, spread the word on this around the world, set up a donation site and resist this idiocy. The only thing the Feds don’t have power against is the overwhelming power of the information age to keep Federal idiocy in the spotlight.

    This is important. You don’t want to get to a day when, after they went for your friends and neighbors they came for you. Bad things happen when state power is abused. Rember Germany from 1933 on…..

  • http://krstype.wordpress.com krs

    i would have had to talk to an attorney too. sounds like he didn’t try to intimidate you into not talking to an attorney so you’ve got that going for you, which is nice. i just think they should focus any and all energy into stopping terrorists with underpants bombs. maybe less time on finding out your source for the security directive that contained information anyone could notice if they fly frequently.

  • http://www.rectorpress.com Lewis B. Sckolnick

    Wow! Chris Elliott is famous. Is that a GMA sound truck coming up the street? Either the TSA is desperate or this really is a conspiracy. Just think about it there is Abdulmutallab then out of nowhere there is Frischling and here Elliott already has a lawyer working on things. And whatever else there is do not forget the attack cats.

  • BeeVee

    This isn’t the same TSA that you see scanning your luggage at the airport. These are gun-carrying government agents whose job is to enforce the law. They’ll be nice and pleasant (calling you “Sir”..) as you as you reciprocate and answer their questions truthfully. Note: Don’t ever lie to them either; that’s another whole set of charges.

    Protect your sources if you feel you must, but be advised that I think that the TSA may eventually come at you very hard.

    If you have already hired a lawyer, then I think that’s a good first step. But just remember that you’re likely going to be standing in front of a Federal Judge, also known as “the 800-lb. gorilla”. And you’re going to be playing the part of “the suitcase”, as in that old Samosite TV commercial.

    Best of luck to you and please feel free to e-mail me if you want to know about my dealings with the TSA.

  • BeeVee

    I deal with TSA agents all the time in my job (cargo). That being said, I’m not sure that Chris any legal rights to disclose or publish any document that the government considers confidential.

    SD’s (Security Directives) are designated as being SSI (Sensitive Security Information), and come with a variety of usual punishments for their unauthorized release; fines, jail, etc. etc.

    It’s not considered “TOP SECRET”, but, I think that the government will certainly be able to make a pretty strong case against Chris for publishing this on the Internet.

    This isn’t the same TSA that you see scanning your luggage at the airport. These are gun-carrying government agents whose job is to enforce the law. They’ll be nice and pleasant (calling you “Sir”..) as you as you reciprocate and answer their questions truthfully. Note: Don’t ever lie to them either; that’s another whole set of charges.

    Protect your sources if you feel you must, but be advised that I think that the TSA may eventually come at you very hard.

    If you have already hired a lawyer, then I think that’s a good first step. But just remember that you’re likely going to be standing in front of a Federal Judge, also known as “the 800-lb. gorilla”. And you’re going to be playing the part of “the suitcase”, as in that old Samosite TV commercial.

    Best of luck to you and please feel free to e-mail me if you want to know about my dealings with the TSA.

  • Alfred

    Mike, he boarded a plane overseas .. outside TSA’s purview, I’d say.

  • Jim Doran

    Chris,
    Sorry. I side with TSA on this. They are not after you, any other bloggers, or any journalists. If you receive information that you believe we should know about it’s expected that you’ll print it. However, the TSA Employee who sent it to you is in violation of a dozen different Federal statutes, he’s who they want. Think about it in a positive light, if this individual will release “classified” memo’s to the media, what kind of real classified info will he sell to enemies of this nation – info that could cost American lives. He’s already proven he doesn’t care about the law and the Constitution he swore to defend, so…

    BTW, I personally do NOT agree with TSA’s memo. I think they’ve become a gestapo like bunch of flunkies. TSA screeners work for TSA for two reasons, in my opinion; the easiest way to get a good Federal job is to already have a Federal job and move up the chain; they don’t qualify for jobs as mall cops!

    Now, before they put me on a permanent no fly list, I don’t care. I don’t fly anymore anyway.

  • streamfortyseven

    You need to get a lawyer. Since it’s Johnson County District Court, I’d say get a local attorney who does criminal defense at the Federal level, or at least has experience in that area. I think your first move is to make a motion to quash the subpoena. I’m surprised that TSA filed in District Court, and not in Federal Court. There might be questions about the form of the subpoena as well, as mentioned above. I know some people who practice in Johnson County, and could refer you to them.

  • Ken

    This is a case of setting priorities and every one of us has a moral obligation to stop anyone who is trying murder people. That is exactly why the TSA was established – to stop the mass murder of air travelers by people who don’t like others who disagree with their politics and religion. The TSA has a tough job and at times, has bungled badly. However, that doesn’t mean that the TSA will stop trying to protect us and it doesn’t mean we shouldn’t help them. That should be our priority.

    Forget for a moment, the big bad government complex so many people have…let’s get real here: if Chris’s wife and kids were traveling by air he would want them to be as safe as possible. If that meant releasing his source, Chris would not hesitate all all. Well, my family travels by air frequently and I want them as safe as possible.

    Everyone (including Chris) should help prevent murders anyway possible. If that means Chris should pass on this information, then so be it. If you can’t understand this simple moral concept, I can’t fathom how you can really understand the more complex concept of freedom of the press and the shield law.

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  • streamfortyseven

    Here’s the relevant code section from 49 CFR 1520:

    Ҥ 1520.13 Marking SSI.

    (a) Marking of paper records. In the case of paper records containing SSI, a covered person must mark the record by placing the protective marking conspicuously on the top, and the distribution limitation statement on the bottom, of—

    (1) The outside of any front and back cover, including a binder cover or folder, if the document has a front and back cover;

    (2) Any title page; and

    (3) Each page of the document.

    (b) Protective marking. The protective marking is: SENSITIVE SECURITY INFORMATION.

    (c) Distribution limitation statement. The distribution limitation statement is:

    WARNING: This record contains Sensitive Security Information that is controlled under 49 CFR parts 15 and 1520. No part of this record may be disclosed to persons without a “need to know”, as defined in 49 CFR parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

    (d) Other types of records. In the case of non-paper records that contain SSI, including motion picture films, videotape recordings, audio recording, and electronic and magnetic records, a covered person must clearly and conspicuously mark the records with the protective marking and the distribution limitation statement such that the viewer or listener is reasonably likely to see or hear them when obtaining access to the contents of the record.”

    There was no distribution limitation statement conforming to either 49 CFR 15 or 49 CFR 1520 on the copy of whatever you disseminated, so you had no legal notice conforming to statutory or regulatory specifications of any limitation on distribution. Here’s the distribution limitation language in what you allegedly disseminated: “No other dissemination may be made without prior approval of the Assistant Secretary for the Transportation Security Administration. Unauthorized dissemination of this document or information contained herein is prohibited by 49 CFR Part 1520 (see 69 Fed. Reg. 28066 (May 18, 2004).”

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  • http://www.justbarkingmad.com Quilly Mammoth

    Right now an al-Qaeda operative is going through a TSA checkpoint gathering intelligence. Meanwhile valuable resources are being spent by Janet Incompitano and her band of well mannered thugs harassing journalists about sources for a non-classified memo.

    Disgraceful.

  • gypsyseeker

    Typical of the feds. Finger pointing, excuse making, kill the witness mentality instead of solving the problem. And keeping people in their seats for the last hour of a flight is ridiculous (babies, diapers, diarrhea, too much coffee, etc.). Again, solve the problem before people get on the plane!

  • Eric

    Free press is the ultimate check on government. Our founding fathers understood that well, hence Art. 1 of the United States Constitution.

    The problem with the subpoena, in my opinion, is that it impedes on free press. The person providing the memo was exercising his or her freedom of the press – your article was simply the manifestation of a constitutionally protected communication.

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