- The Washington Times - Wednesday, November 20, 2013

Weeks after Maryland State Police and federal agents seized reporting files from a former Washington Times journalist’s home, a Homeland Security agent checked the materials out of the police evidence room for an hour, according to logs that shine new light on a case that has raised First Amendment concerns.

The custody logs don’t state why the reporting materials were removed from evidence Sept. 3, about a month after they were seized from reporter Audrey Hudson’s home during a search in an unrelated investigation of her husband.

But they do show that the Homeland Security agent checked out files and notes that morning that identified confidential sources that Ms. Hudson had interviewed during a series of award-winning articles published in The Times about problems in the Homeland Security Department’s Federal Air Marshal Service.

Homeland Security officials have acknowledged that their agents seized Ms. Hudson’s files during the execution of a search warrant in early August obtained by Maryland State Police in an unrelated investigation of guns owned by her husband. Her husband has not been charged with any wrongdoing in the case.

Homeland Security officials also have acknowledged that they briefly reviewed the materials to determine whether they contained any sensitive information, even though the search warrant did not authorize seizure of the documents.

The officials have not explained, however, why federal agents attended a raid that involved state laws or why police kept reporting materials for more than a month that were not covered by the judge’s order.

First Amendment advocates and professional journalists said the revelations from the evidence custody logs raise serious concerns that constitutional protections were violated.

“I think it is fair to say that this is an egregious affront on the part of the law enforcement,” said Roger Soenksen, a professor of media arts and design at James Madison University in Harrisonburg, Va.

The Times is preparing to take legal action against the Homeland Security Department.

Editor John Solomon said the evidence logs raise serious concerns that Homeland Security may have tried to exploit the seized documents for information about Ms. Hudson’s and the newspaper’s sources and reporting methods in a series of articles that shined a light on problems inside the federal department.

“It’s unacceptable for law enforcement to have taken these records in the first place, especially when they had nothing to do with the investigation at hand or the search warrant,” Mr. Solomon said. “It’s even more maddening to think that federal agents could simply walk into the evidence room and check these documents out for their reading pleasure.

“Our Founding Fathers, the Congress and the courts have long recognized the First Amendment safeguards that are afforded to a free press, and the protections from unlawful seizure that every American should enjoy. It seems that government officials need a refresher course on these vital freedoms,” Mr. Solomon added.

Ms. Hudson’s home was raided by Maryland State Police at 4:30 a.m. on Aug. 6. The investigators, including Miguel Bosch, a federal agent with the Homeland Security’s Coast Guard Investigative Service, had a warrant to search for unregistered firearms and a potato launcher belonging to Ms. Hudson’s husband, Paul Flanagan. The warrant did not, however, give investigators permission to seize personal records and documents unrelated to the firearms investigation.

The five files that were taken from Ms. Hudson’s office filing cabinet contained documents obtained under the Freedom of Information Act and personal notes and information from confidential sources within the Department of Homeland Security, the Transportation Security Administration and the Federal Air Marshal Service.

Ms. Hudson told The Times that Mr. Bosch, who had worked for the Federal Air Marshal’s Service, specifically asked her whether she was the same “Audrey Hudson” who wrote “The Air Marshal stories” for The Washington Times.

Media law professionals say that if law enforcement officers wanted to review Ms. Hudson’s documents before the search, they should have done so by issuing a subpoena rather than a search warrant.

“A subpoena is a far greater method for investigators to use than a search warrant. It allows the journalist to search for legal counsel and turn over the evidence that is needed for the investigation at hand,” Mr. Soenksen said.

In a previous interview with The Times, Ms. Hudson said police “tore my office apart more than any other room in my house” and that investigators did not take documents that were unrelated to the TSA.

“I had a box full of [Department of Defense] notes,” she said. “They didn’t touch those.”

Ms. Hudson was not aware that the documents had been taken until she was contacted by police a month after the investigation and was asked to pick them up at the station.

In March 2005, Ms. Hudson authored a series of articles for The Times that were critical of the Homeland Security Department, the Transportation Security Administration and the Federal Air Marshal Service.

Her report detailed how air marshals were protecting less than 10 percent of flights during the month of December 2004. The information published by The Times led to a congressional investigation of the Federal Air Marshal Service.

From 2005 to 2009, Ms. Hudson wrote several more investigative reports on operational deficiencies within the Federal Air Marshal Service, the TSA and the Department of Homeland Security.

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