An Attempt to Suppress
or
A Series of Unfortunate Blunders?

As I mention in the article in the Chronology, I don't think this is censorship -- at least not overt censorship -- although I would certainly say that both parties acted well beyond the pale of legality.

The sequence of events in this case are pretty much as follows:

• 1995 (circa): The material in question, a laboratory report on evidence taken from a Filipino apartment rented by a terrorism suspect, was publicly disclosed in two court venues. This material included copies and photographs of dozens of pieces of evidence from the terrorism cases of Abdul Hakim Murad and Ramzi Yousef. At some point the material had been cleared for declassification.

• 19 Sep 2002: Customs agents opened the package containing the report after selecting the package for a routine inspection when it arrived in Indianapolis at a FedEx hub; a similar package containing another copy of the report in a package addressed to AP's United Nations office was left in the system.

• Customs called the agency identified in the material[01].

• An FBI agent in Indianapolis reviewed the document and said it contained some information that should not be made public, and the package was sent to the FBI in Washington.

• No warrant was ever served by either Customs or the FBI. Both agencies admitted to that.

• Neither agency notified AP of the seizure.[02]

• AP inquired about the missing FedEx package when it failed to arrive in Washington, and the courier suggested it might have fallen off a delivery van. AP was reimbursed $100 for the loss.

• Jan 2003: AP was tipped that the package had been intercepted and that the FBI had requested an investigation to find out who provided the report to the news service in the first place. The Philippine Department of Justice wrote to the Philippine National Police in part, "In view of the concerns raised by the FBI regarding this matter, may we request your good office to conduct a thorough investigation on the mishandling of such sensitive information?"

• Feb 2003: Stories were published about government concerns dating prior to 19 Apr 1995 that white supremacists might bomb a federal building. The stories were the result of the research project betweeen Jim Gomez and John Solomon and of which the package was a part.

• 12 Mar 2003: FedEx spokeswoman Sally Davenport reportedly said when interviewed that the company was unable to track the package after its arrival in Indianapolis and there were no records showing it had been seized by Customs. If FedEx knows a package has been seized, policy is to notify the customer and provide a contact number. FedEx sent a letter of apology to Associated Press.

To further complicate this case, there was a previous free press violation attempt perpetrated against John Solomon. In May 2001, the U.S. Department of Justice attempted to subpoena his home phone records because he reported on an investigation into then-Senator Robert Torricelli of New Jersey. The DOJ had served the subpoena in an effort to unmask which law enforcement official had told AP about a wiretap operation against Torricelli.

So. On the face of it, it certainly appears that Solomon is the target of some kind of Big Brother operation, right? Yeah, but appearances are deceiving.

It is not beyond the bounds of coincidence that that particular package was selected at random. If it is beyond the bounds of credulity, then the problem is not with coincidence, but that your mind's boggle threshold is set too low.

What really sets off the ol' bullshit detector is the series of one blunder after another. It is not so much that the document was seized, but that no warrant was served, AP was never notified, and even FedEx records were not annotated to indicate that the package had been removed from the system. However, while this chain of events is increasingly implausible with each event in the chain, each of these is also an individual event. In the realm of probability analysis, the chance that you will a roll a six on a throw of the die, is 1/6. The probability of rolling two in a row is 1/(6^2) or 1/36. The probability of rolling three sixes in a row is 1/(6^3). However, at one and the same time the probability of throwing a six on any individual roll remains 1/6. The key to this is that each roll is made independently of every other roll.

So: what are the chances that an employee of any one of these agencies would perpetrate a human error and fail to log the processing of a package and to notify the proprietor of the investigation? Raise that probability to the third power and you'll get the probability that employees at all three agencies committed the same error. As I said, these odds do not stretch the bounds of coincidence. They just make it hard to believe it could be a coincidence. Still, stranger things have happened, and those stranger things have been documented.

And how do you deal with cases that stretch credulity as this one does? In critical thinking, the foundation for every critical review must be Occam's Razor: the simplest solution that covers all the facts is usually the right one[03].

The key in this case, to my way of thinking, is not the likelyhood of such a chain of events occuring, but the specific actions in each event. Customs opened a private correspondence and seized a piece of private property[04]. The FBI unilaterally determined that this property, which was a matter of public record in that it had been presented as evidence in an open trial[05], constituted a material threat to public security without giving the owner of the material the chance to challenge that decision before an impartial third party.

Both of these actions are clearly illegal in my mind, and both are also part of a consistent pattern of behaviour by U.S. federal agencies. And as far as I am concerned the only rationale the FBI could have to declare that material a threat to public safety -- because of the analysis of bomb making materials contained in the document -- is post-WTC-tragedy hysteria[06]. I cannot see any other reason for this attempt to suppress this material. So it is censorship relatively speaking, but I am willing to tolerate relative acts of censorship that derive from simply sloppy work[07] as long as the conditions that allow such sloppy work to arise are corrected. In cases such as thing one, I would say that every agency involved in the investigation and seizure of materials must immediately advise the proprietor that the agency has seized or received the materials in question.

FOOTNOTES:

[01] This was reported as standard operation procedure when a package being examined contains material that pertains to a federal agency, and according to the Customs Bureau statement regarding the matter, "An FBI agent subsequently examined the file and requested that it be turned over to the FBI. Based upon these representations by the FBI, Customs turned the file over."
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[02] It was reported that Customs said it was the FBI's responsibility to notify AP. This, of course, is a matter of knee-jerk reactionary butt-covering.
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[03] Uusally, but not always. The number of cases where Occam's Razor fail however, are quite small, so it is better to err on the side of caution. That way you will usually be right, and if you are wrong at least you won't be too spectacularly wrong.
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[04] David Tomlin, assistant to the AP president and an attorney himself, is quoted as having said, "The job of Customs is to intercept smuggled contraband and collect import duties. Customs has no authority to seize private correspondence where there's no suspicion it contains contraband. There certainly wasn't any such suspicion here."
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[05] Albeit an open trial in a foreign country, which opens the can of worms concerning international law. Consider: court documents from a foreign country were found within the jurisdiction of the American bill of rights. Are such documents public documents simply from being in the U.S. even though by the laws of the country of origin they may not be made public? That is certainly assumed to be the case by the American press, as can be seen from their disregard for the sealing of court documents by Canadian courts. Then too there is the necessary corrolary: is a document a public record in the U.S. just because it is a public record in that other country? Then throw in the factor that the documents were from an investigation in that foreign country by agents of a domestic department.
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[06] FBI spokesman Doug Garrison, who works in the Indianapolis bureau, is quoted as saying, "From the FBI's perspective, if the document was a laboratory report that contained sensitive information that the laboratory thought ought to be controlled, they had an obligation to control it. Generally speaking, we're more careful about the kind of information that's out there. We don't want criminals to get ideas as to how to cause more damage." A fine rationale for not allowing the law abiding to have access to such information. And to totally ignore the fact that the information in the document was declassified. Could that have been, do you suppose, because the laboratory thought the information did not need to be controlled? -- that no such obligation was perceived to exist by those who created the document?
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[07] Or from another case of knee-jerk reactionary butt-covering. If it was such, and I believe it was, then it is even more a matter of covert censorship.
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