FBI raids Washington Post reporter's home
theguardian.com902 points by echelon_musk 20 hours ago
902 points by echelon_musk 20 hours ago
To clarify why it’s aggressive: federal employees have a legal duty to secure classified information, but everyone else does not.
Reporters are not federal employees and it’s not illegal for them to have or discuss classified materials. Most of what Snowden leaked was classified, and remains classified to this day, but you and I can read about it on Wikipedia. The government pursued Snowden because he was legally obligated to protect that info. They did not pursue Barton Gellman because he wasn’t.
So in this case the government is raiding the home of someone who did not commit any crime, in the hopes of getting at people who might have. I think it’s not hard to imagine how this concept could get ugly fast.
> "So in this case the government is raiding the home of someone who did not commit any crime, in the hopes of getting at people who might have."
That's unequivocally a lawful basis for a court-ordered search warrant. They must have probable cause that the person being searched has evidence of a crime; not necessarily that the search target and the criminal suspect are one and the same. Search is investigative; not punitive.
The newsworthy part of this is it's a journalist they raided, and to go after their journalistic sources at that. It's previously been a DoJ policy not to go after the media for things related to their reporting work. But that policy wasn't a legal or constitutional requirement. It's merely something the DoJ voluntarily pledged to stop doing, after the public reaction to President Obama's wiretapping of journalists in 2013,
https://en.wikipedia.org/wiki/2013_Department_of_Justice_inv... ("2013 Department of Justice investigations of reporters")
> Search is investigative; not punitive.
Let's be real, it can be both. A legal, valid and justified search can be done in a manner calculated to inflict maximum pain. Raiding in the middle of the night instead of when they step out their door in the morning, ripping open walls when all they're really looking for is a laptop, flipping and trashing the place in a excessive manner, breaking things in the process, pointing guns at children, shooting the family retriever, etc. I don't know if they took this raid too far in any of these ways, but it wouldn't surprise me.
> A legal, valid and justified search can be done in a manner calculated to inflict maximum pain.
See "three felonies a day" - if everyone will casually and unknowingly break some law daily, selective enforcement can be used maliciously.
What recourse would an American have against a punitive search? And what if something turns up which would retroactively justify it?
> "And what if something turns up which would retroactively justify it?"
US constitutional law prohibits the introduction of evidence obtained illegally.
https://en.wikipedia.org/wiki/Exclusionary_rule ("Exclusionary rule")
There's no "retroactive" exception. The core point of this rule is to deter police from intentionally violating people's rights, under the expectation that what they find will, "retroactively", vindicate them. Won't work.
> Won’t work.
How would you know when it did? You can’t “retroactively” justify an arbitrary search under the exclusionary rule, but this doesn’t exclude evidence tangential to a legally-executed warrant during the execution of that warrant. For example, suppose someone is suspected of illegally possessing wildlife. A search warrant is issued on the residence. No wildlife is found, and in fact no wildlife was ever on the premises. If officers find large quantities of cocaine during the search, they aren’t precluded from making an arrest, because the warrant used to gain entry and conduct the search was legal.
Only if it falls under the "plain view" doctrine, which is not unlimited:
https://en.wikipedia.org/wiki/Plain_view_doctrine
> In Arizona v. Hicks, police officers were in an apartment investigating a shooting and suspected that a record player in the apartment was stolen. The officers could not see the serial number, which was on the bottom of the record player, so they lifted the player and confirmed that its serial number matched that of one that had been reported stolen. However, the Supreme Court ruled that lifting the record player constituted an additional search (although a relatively nonintrusive one) because the serial number was not in plain view.
Constitutional law doesn't mean anything when the authorities don't respect it. Constitutional law won't stop you from being arrested or killed if you don't fully submit to an authoritarian government.
There were laws in Germany to prevent what Hitler did. It still happened.
See also: parallel construction, which has come up (rightfully so) in HN threads about dragnet surveillance.
> What recourse would an American have against a punitive search?
None. The endless videos, from better-years-gone-by of people refusing to answer questions at the border then having drug dogs run all over their car to scratch it up was my first exposure to federal agents acting maliciously.
You can attempt to sue for damages, but the suit is likely to be dismissed because law enforcement and legal adjudication are tightly coupled and very friendly in ways that subvert the proper functioning of justice. More likely you'd just invite more harassment for daring to attempt recourse at all.
Anyone who has had their home searched AKA ransacked by law enforcement knows that searches are effectively punitive.
I agree that's what GP wrote, but I think GP's point is that it's not illegal for journalists to have classified documents, so it does not qualify as probable cause.
Try reading the comment you replied to again. A valid reason for a search is the collection of evidence of a crime. Which orthogonal to whether the person or premisses committed a crime.
> it's not illegal for journalists to have classified documents, so it does not qualify as probable cause
It's amazing how many people offer free internet advice off of ideological groupthink rather than actual laws.
This raid was authorized by a warrant. Do you really think a judge doesn't know the law, but you do?
If a crime happens in your neighborhood, and you have a camera, the cops could get a warrant to search your footage. It doesn't mean you committed a crime, it just means you can be compelled to provide information pertaining to an investigation.
Yes, but to continue the comparison, it would be weird/aggressive/intimidating if the cops raided the neighbor's home and took the device and all hard drives on the premises to get the footage instead of the normal methods of compelling someone to provide the footage.
Especially, if as is the case here, the criminal was already behind bars.
This is not a comment about if journalists homes should be more sacred than other people. Some countries do give journalists extra legal protection against this, but I do not know US law in this regard.
To my understanding, a US search warrant authorize law enforcement officers to search a particular location and seize specific items. The requirements are:
1# filled in good faith by a law enforcement officer 2# Have probable cause to search 3# issued by a neutral and detached magistrate 4# the warrant must state specifically the place to be searched and the items to be seized.
There is nothing about the owner of the location. It can be a car, a parking lot, a home, a work place, a container, a safe, a deposit box in a bank, and so on.
The significant question here is about probable cause. Why were those items interesting for the FBI to collect? Are they looking to secure evidence against the leaker, and if so, what was the specifics of the search warrant? The article states: "The statement gave no further details of the raid or investigation".
Probable cause should not be about preventing journalists access to documents they already got, as that would be like going after Barton Gellman.
Most likely securing information/evidence about the leaker, who likely did break the law or connected to someone who did... the first party leaking classified materials broke the law, while other intermediaries may not have. In an investigative process, this isn't at all inappropriate... Journalists aren't sacrosanct, though policies may have varied as to the level investigations will go.
> Some countries do give journalists extra legal protection against this, but I do not know US law in this regard.
Something worth noting at least for pedantic purposes, since practice is quite different; technically speaking every person has the same rights and laws to follow as a journalist. Fundamentally, there are really no differences between a journalist and a regular person engaging in the same activities.
It's an indication of the unique system architecture that differentiates the USA from all other societies on the planet.
It has been attacked, infiltrated, poison pilled, and really rather devastated in especially the last 100 years, but it is still standing, for better or worse, whether it can be restored or it just needs to die in order to give others a chance to rebuild something improved on the core characteristics of the Constitution.
>So in this case the government is raiding the home of someone who did not commit any crime, in the hopes of getting at people who might have.
I looked at a lot of search warrant affidavits in a previous job and there's really nothing all that unusual about this aspect (doing it to a member of the press or doing it on a pretext are separate issues that I'm not commenting on). Police execute search warrants at other locations all the time because the relevant question is whether there is probable cause to believe that there is evidence of the commission of the crime they are investigating at that location, not whether the person who lives or works there is guilty of that particular crime. Given that fact, of course, it's all the more reason that judicial officers should subject search warrant affidavits to careful scrutiny because when they come to look through your stuff they will just turn your house or business upside down and they don't get paid to help you clean up afterwards.
I appreciate the added nuance here and would like to hear your comments on the seperate issue of doing this to a member of the press, or better, the sepcific pretext presented by the reporting:
> The warrant, she said, was executed “at the home of a Washington Post journalist who was obtaining and reporting classified and illegally leaked information from a Pentagon contractor. The leaker is currently behind bars.”
> Bondi added: “The Trump administration will not tolerate illegal leaks of classified information that, when reported, pose a grave risk to our nation’s national security and the brave men and women who are serving our country.”
As long as there's probable cause for some crime, the subjective motivations of the officer are almost never going to enter the legal analysis. Whren v. United States[1] was a case about a pretextual traffic stop, but the core reasoning (unanimously) was about what the Fourth Amendment requires/allow. For example, if police have a "hunch" you're selling drugs but not probable cause, they can just wait for you to run a stop sign or something and then pull you over and see if you left something in plain view, or if you act nervous, or try to get consent to search. At that point, the fact that the initial reason they started focusing on you was a mere hunch doesn't matter legally speaking. If this sounds like it can be used to make life hard for people that law enforcement doesn't like, you're not wrong. In my job we really didn't see how challenges to search warrants turned out, but as far as I'm aware the Supreme Court has never said "Whren only applies to traffic stops and not search warrant affidavits."
> For example, if police have a "hunch" you're selling drugs but not probable cause, they can just wait for you to ...
Whren doesn't seem to track in this case or am I missing something? In the example provided, the hunch directly ties the target to the crime ("drug selling"), which matches the stop's pretext. Natanson isn't accused of any crime, she's essentially writing about the "selling of drugs", not organizing or committing it.
Adjusting your example, if I'm simply friends (implying history of contact) with a known drug dealer, am I really at risk of my home being raided and communications seized solely because I might have evidence leading to their conviction?
Then extrapolating this to the implications on freedom of press... This doesn't sit well with me.
> Adjusting your example, if I'm simply friends (implying history of contact) with a known drug dealer, am I really at risk of my home being raided and communications seized solely because I might have evidence leading to their conviction?
If the police can convince a judge to give them a warrant for it, sure, but if they were targeting you specifically they probably wouldn't bother with the indirect route of your drug-dealing friend and would just harass you for j walking and not using your blinkers properly until you raised your voice at a cop and charge you with assaulting an officer.
I believe you have the hypothetical confused.
> if they were targeting you specifically
They are not targeting Natanson at all from what I can tell. They're targeting a source she's writing from (to what extent isn't clear to me). This is precisely why I'm positing Whren doesn't apply here.
I get the idea of being 'papered' out of a system, but I'm trying to distinguish a pretext that can be justified (objective probable cause) from one that can't (abuse of process). My boss can easily provide reason relating me to fire me, however fantastic the reality, but those would be refused, for good reason, if they surfaced them through private channels outside the organization.
In the case of drugs, they probably wouldn't have any reason to raid you unless you were suspected of stashing drugs or money or some other evidence. The journalist is reasonably likely to be in contact with the leaker and so the cops have a somewhat valid pretext to seize things they thought contained evidence of the crime. Whether or not the cops should be able to do that is another thing, but the precedents have been long set.
The really strange thing here is the massive raid in the middle of the night rather than a more proportional response. That suggests that the journalist was being targeted specifically.
> In the case of drugs, they probably wouldn't have any reason to raid you unless you were suspected of stashing drugs or money or some other evidence.
To keep with the analogy: If I had a public history of contact with the dealer (and was a prolific writer on the inner workings of drug trafficking), police could claim "reasonable suspicion" that I have communications/evidence related to them. That would justify seizing my devices for investigation under the same logic.
I agree there's more context to evaluate, but even Bondi's provided framing troubles me. It seems broad enough to target any journalist with relevant sources to a provided crime.
You'd have to be able to read minds if you want to establish a pretext. There are perfectly valid reasons, such as evidence collection against the accused party, to perform the search/raid.
I do wish that the law provided for concepts of minimal damage and repair should there be actual damage (not just creating a mess) that doesn't result in evidence. ie: if you tear open drywall, there better be something behind drywall that was collected as evidence.
However, that's not the case, and even civilly it's hard to collect damages even when it's the "wrong house"... though thatt's one of the few exceptions I've seen... also, iirc, there's been some 4th amendment arguments to construe having to pay for use/damages, not sure where that has landed.
IANAL.
...they don't get paid to help you clean up afterwards.
Could you litigate to recover the costs and repair any damage done? Is there case law around what is a reasonable level of dishevelment?
You can file a civil suit against the police department, but results are far from certain. Unless it was a case of the cops raiding the wrong home entirely and you managed to make the news the success rate is not great.
And even then . . . https://ij.org/if-you-break-it-you-buy-it-unless-youre-the-p...
Let's call it "extremely difficult" - https://ij.org/if-you-break-it-you-buy-it-unless-youre-the-p...
Unlikely. Similarly, if the fire department has to use an axe to chop your door open to respond to a fire call, it’s your responsibility to replace the door.
Sure, though the government routinely searches the personal property of innocent people if they think that search will yield information about a suspect.
The issue here is the American tradition of a free press and the legitimate role of leaks in a free country. The PBS article is a bit better on context:
> The Justice Department over the years has developed, and revised, internal guidelines governing how it will respond to news media leaks.
> In April, Attorney General Pam Bondi issued new guidelines saying prosecutors would again have the authority to use subpoenas, court orders and search warrants to hunt for government officials who make "unauthorized disclosures" to journalists.
> The moves rescinded a Biden administration policy that protected journalists from having their phone records secretly seized during leak investigations — a practice long decried by news organizations and press freedom groups.
https://www.pbs.org/newshour/politics/fbi-searched-home-of-w...
My understanding is that searches of journalists still must be signed off on by the AG personally.
> the government routinely searches the personal property of innocent people if they think that search will yield information about a suspect.
If that's true, it's a direct violation of the fourth amendment. I'll paste it here for convenience:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That includes an explicit carve-out for reasonable searches. And given "innocent until proven guilty" any search is technically targeting innocent people in hopes of yielding information about a suspect. Sometimes that's a reasonable thing to do.
Well, "routinely" should have been interpreted to mean "routinely, after showing probable cause and obtaining a warrant". Law enforcement obtains warrants for that routinely, that is, it's not an exceptional case for them to do so.
there are some places where no one should go skulking around, no matter what the problem might be.
if someone goes snooping around my 1000yd backstop without signing in at the range house, they are suicidal.
there is a lot of signage, and curtailage, and a darwin prize
> Reporters are not federal employees and it’s not illegal for them to have or discuss classified materials. Most of what Snowden leaked was classified, and remains classified to this day, but you and I can read about it on Wikipedia.
CNN tells viewers its illegal to read Wikileaks emails (2016)
“Also interesting is—remember—it’s illegal to possess these stolen documents. It’s different for the media. So everything you learn about this, you’re learning from us.”
An anecdote: someone close to me had written some of the diplomatic cables Snowden leaked. After the leak they (and others) received stern warnings to not access stories about the leaks on their unclassified systems, because those systems were not authorized to access the classified information (in the New York Times).
On the face of it this sounds silly and futile, but there is a good reason for this approach.
The classification system only works if the handling requirements for information that it covers are unambiguous.
Some added context for this raid. It allegedly is about a govt contractor
> The search came as part of an investigation into a government contractor accused of illegally retaining classified government materials.
So, wait, the administration cares about people illegally retaining classified information now?
Sending the FBI after journalists is not new. They did it in 2010 and 2013 on a much bigger scale.
> The government pursued Snowden because he was legally obligated to protect that info. They did not pursue Barton Gellman because he wasn’t.
Former administrations, to their credit, exhibited some degree of restraint that the current administration lacks. However, they indicted Julian Assange and plenty of people back then have warned precisely about the kind of things happening today.
- The Indictment of Julian Assange Is a Threat to Journalism https://news.ycombinator.com/item?id=19653012
- Traditional journalists may abandon WikiLeaks’ Assange at their own peril https://news.ycombinator.com/item?id=19639165
From the EFF back then:
> Make no mistake, this not just about Assange or Wikileaks—this is a threat to all journalism, and the public interest. The press stands in place of the public in holding the government accountable, and the Assange charges threaten that critical role.
https://www.eff.org/deeplinks/2019/05/governments-indictment...
What if you had the hard copies of the classified files or the original USB drive used in exfiltrate the classified data, not a digital copy.
> To clarify why it’s aggressive: federal employees have a legal duty to secure classified information […]
Does that include (former) presidents as well?
* https://www.bbc.com/news/world-us-canada-65775163
* https://en.wikipedia.org/wiki/Federal_prosecution_of_Donald_...
(Asking for a friend.)
They have duty to not take documents with them when they leave office. And they have duty to protect the documents while in the office.
Of course that was before right wing supreme cpurt decides presidents can vreak the law as they wish (wink wink only as long as they are right wing, I am sure they would rule differently on democrat).
It's possible (and in fact the law) that the journalist against whom a search warrant is issued is suspected of aiding in the leak or committing a crime, though. I don't think we yet know that she's not in that category; only that she claims that she was told that she wasn't the focus of the probe and was not currently formally accused of a crime.
To my naive brain, the rules seem to be:
- it's okay when Side A goes after Assange (a journalist) for possessing classified material. Also, Side A encourages journalists in certain countries to do exactly what Assange did.
- it's not okay when Side B goes after journalists aligned with Side A
They had a warrant and need the evidence to convict the person who failed to protect the information. They did not arrest the reporter did they?
Yet others just invite journalists to signal groups accieentally and don't face any repercussions. Strange.
Explain why they pursued Julian Assange then.
Based on your own logic then Assange did not have any requirement to protect classified information yet he was Public Enemy number one.
I know people who personally sat on the Edward Snowden board and spent years of their life trying to create a case within the intelligence community against this guy
> Explain why they pursued Julian Assange then.
There is a difference between someone essentially just handing you a pile of classified documents and you going around soliciting and encouraging people to break the law and mishandle the documents to give to you.
> mishandle the documents
https://www.jonathan-cook.net/2011-09-28/the-dangerous-cult-...
> The low point in Leigh’s role in this saga is divulging in his own book a complex password Assange had created to protect a digital file containing the original and unedited embassy cables. Each was being carefully redacted before publication by several newspapers, including the Guardian.
> This act of – in the most generous interpretation of Leigh’s behavior – gross stupidity provided the key for every security agency in the world to open the file. Leigh has accused Wikileaks of negligence in allowing a digital copy of the file to be available. Whether true, his own role in the affair is far more inexcusable.
> His and the Guardian’s recklessness in disclosing the password was compounded by their negligent decision to contact neither Assange nor Wikileaks before publication of Leigh’s book to check whether the password was still in use.
> [The Guardian] made no mention either of Leigh’s role in revealing the password or of Wikileaks’ point that, following Leigh’s incompetence, every security agency and hacker in the world had access to the file’s contents. Better, Wikileaks believed, to create a level playing field and allow everyone access to the cables, thereby letting informants know whether they had been named and were in danger.
Jonathan Cook does a good job of telling this story.
https://www.jonathan-cook.net/2013-07-29/the-assassination-o...
https://www.jonathan-cook.net/2022-05-04/persecution-julian-...
Didn’t they persecute (or tried to, I don’t remember anymore) Assange for the same reason though? Or is there some clear difference here?
They had a flimsy argument that Assange actively conspired with Manning to hack government machines based on some chat logs.
Not to belittle good framing, but we are /waaaaay/ past the ugly point of law and order.
We are - but it's important to not allow our standards to be shifted. This is unacceptable and while there is plenty of stuff happening today that's unacceptable it's still important to call it out. The past year has been a test of our endurance as illegal actions are piled up (in imo an intentional effort to overwhelm) and our minds must ping pong from foreign leaders being kidnapped to murders to threats against our closest allies all while legal demands from congress specifically passed against the administration are blatantly and illegally ignored.
It's all unacceptable and it's exhausting, but apathy is the enemy here.
Calling out does nothing. Everyone is aware of the issues.
The problem is nobody is willing to use their constitutional right to fight for justice, because everyone is deathly afraid of losing even a little bit of their comfortable life.
If people were more willing to use the rights given to them by a specific amendment, none of this would happen.
A lot of people are doing that. Every protester against ICE is doing exactly what you described. Some have been murdered for it.
wrong amendment
If we need to fall back on that one it's going to suck. It isn't going to be glorious or something to celebrate being a part of - it's going to absolutely suck to live through and where we end up at the far end is very much up to chance @see myanmar.
>that one it's going to suck.
Absolutely, but you can't make someone believe that things like trans athletes, DEI, multi race populations, and whatever else are all extremely minor things compared to how good your life is, until that good life goes away. Its exactly the same thing as with all the anti vaxxers who were dying on respirators saying that they were wrong and begging people to take the vaccine. Everyone needs a reality check.
And on the other side of the isle, people need to realize that is not just political opinions, some people are truly just evil.
We are already there.
The middle class of America has got to be the most spoiled, pathetic group in all of history.
Maybe this is too idealistic, but Waltz the IR Realist, frames this as 2 types of situations.
You have your anarchic situations, International Relations, non-law breaking situations like having a conversation with a friend/stranger, and everything not covered in (signed) (legal) writing.
You have your hierarchy. When the police get involved, when your boss can fire you, legal, etc.. In this case, you still need 4 things to happen: There needs to be a legal basis(Legislature), they need to be caught(Executive), they need to be found guilty (Judicial), it needs to be enforced (Executive).
I wouldn't give up in hierarchy yet. But know the limitations.
That's nothing, there was the time the FBI raided James O'Keefe's house to find Ashley Biden's diary. I feel weird writing any of that out, because its sounds batshit, but they did that. Some people may not like James for any given number of reasons (NPR did a hit peace saying he doesn't qualify for journalism protections - which to me is a matter of opinion not necessarily fact), but since when do federal agents raid peoples homes for diaries? Were there nuclear launch codes in there or something? I would imagine there's way more important things they could have been doing at the time.
I wouldn't say "that's nothing." And the O'Keefe thing is certainly problematic, but it's worth noting that the investigation was for purchasing stolen goods/information.
Obviously not many <$20 stolen objects would warrant an FBI raid, but also if it were actually worth <$20 then Veritas wouldn't have paid $40,000 for it.
AFAICT their journalistic immunity basically got them out of charges for buying goods they knew to be stolen at time of purchase, which is federally illegal under 18 U.S.C. § 2315 and separately illegal in all 50 states.
Kind of a key point in that – the whole purchasing stolen information thing.
Yes that was also bad. I don't know why you say "that's nothing" though, this is just an additional example of a bad thing. We don't have to pick which one is worse and then minimize every other example.
The FBI working to recover stolen property on behalf of a private citizen who was the victim of a crime is something different. Harder to defend a reporter holding stolen property just because the victim is related to a public official. Would actually feel better about defending O'Keefe if the diary did have launch codes.
Wasn't the diary stolen, and thus the property was stolen? If you have proof or reasonable suspicion that someone has possession of a stolen property, shouldn't law enforcement be able to retrieve that?
Yes, and also Project Veritas hadn’t published it. The two events are completely different things.
O'Keefe had already returned it, as I recall.
Right. It wasn't to recover the diary, it was an investigation into how they acquired it (which appears to have been clearly illegal given that you can't buy stolen goods, even if you're a journalist).
I would not say that Project Veritas acted illegally in this case, although I have absolutely no love for them and I think they have acted illegally and immorally in other cases. In the end the Justice Department did not bring charges.
You absolutely can't offer someone money to steal documents. That's clear. Even providing advice on acquiring documents is probably going to be unlawful. And if possession of the document itself is otherwise illegal (i.e., CSAM) there's no protection there.
It isn't necessarily illegal to offer money for a document, particularly if you don't have knowledge of how the document was acquired. I'm not familiar enough with this case to have a strong opinion other than knowing the DoJ elected not to bring charges.
And, yes, it was Trump's DoJ. In this case I'm unaware of any evidence that the decision was politically motived and I still have some confidence that whistleblowers would speak out, particularly given the recent wave of resignations due to directives in Minneapolis. I think people of good will could disagree with me there for sure.
It is unambiguously illegal to pay for goods you know to be stolen. In all 50 states and federally.
Most courts would assume someone who purchased a private diary of a living person would know that it was stolen.
"particularly if you don't have knowledge of how the document was acquired."
Correct, and there's no way that the private diary of a still-living daughter of a politician was acquired by any method other than theft.
Prosecutors don't need to prove the buyer actually dispositively knew the document was stolen, only that reasonable person would have known it to be such.
Which would be obvious in this case.