Schneier on Security

Why would there still BE a court date after you are found not guilty? To be given a stern warning "dont not do it again"?

Whats all the fuss anyway, customs agents had unrestricted powers like this for decades?

Wasn't there an incident (reported on the Interesting People list)
last year where DHS agents visited a small store in Oregon that
also had potentially violated copywrite?

Is the DHS really a covert arm of the RIAA/MPAA?

Just more evidence that our billions of tax dollars are paying for
more "theater" than actual security.

I don't quite follow the logic here. If the person had been arrested because of an outstanding warrant for murder, would this story still be relevant? Would people still complain about the DHS checking identities at the border?

In other words, what are the criteria for deciding when a person should be in a national criminal database? If you allow murderers into the database, where do you stop? Or should a murderer be allowed to escape justice simply by travelling to another state?

Sounds like the MAFIAA (www.mafiaa.org) has made terrorists out of DHS. Soon we'll need to pray to Hollywood once a day.

"Whats all the fuss anyway, customs agents had unrestricted powers like this for decades?"

The fuss, I believe, is that now they have interlinked databases so the DHS can access your parking tickets or civil code violations. They didn't have that level of cooperation before.

Next step, your tax records get distributed through the system.

Of course using DHS to retain people for non-terrorist, legal issues is just plain wrong. There should be a separate checkpoint manned by non-DHS federal employees checking people against federal databases. And then fifty more checkpoints checking people against databases for each of the fifty states.

Fifty-two separate checkpoints at every border crossing is not at all unreasonable. And I'm sure we could make it efficient enough to take no more than five or six hours.

I'm not convinced by this one. It may be wishful thinking, but is it too much to hope for that he really was stopped for all the good reasons he gives (Pakistan, etc.), that while he was sitting there his documents were being run through some sort of check, and that when the check concluded that he was just an innocent journalist, he was released? That they told him the cover story because they don't exactly want to tell every person they take in for questioning the details of how they operate (maybe even Malik didn't know the real reason why he was told to chat this guy up for a few hours)? In that case, this would be a case of the system operating perfectly: an innocent person with legitimate flag-raisers is detained briefly, and ultimately released without having been subjected to any humiliating treatment or presumption of guilt.
I don't want to be an inveterate optimist, but on the other hand, we do spend a lot of time on this blog assuming the worst about DHS, NSA, etc (oh, man, those NSA idiots, they don't know s**t about networks, I bet I could program better than they could, etc.) Let's be as suspicious as we have to, but let's also not assume that just because someone works for the government, they're utterly incompetent.

The only thing wrong here is that the guy was let go. The Dept. of Homeland Security isn't a narrowly-focused organization with the solitary mission of fighting terrorism. It inherited all the routine tasks that go along with the legacy organizations it took over. The border security part of this includes preventing people with outstanding warrants from entering the country. The fact that the warrant has nothing to do with terror is irrelevant.

@Haninah

"we do spend a lot of time on this blog assuming the worst about DHS, NSA, etc"

The way I see it, we spend a lot of time assuming the best, not the worst. Take this case. We could assume your cover story deal; namely that DHS knew all of his shifty terrorism-related background but told him he was being held for selling T-shirts. So instead of mere incompetence, we have an agency with no oversight stopping people for hours, checking into their travel backgrounds, and then completely lying to them about why they were stopped.

When you get pulled over by the police, do you expect them to lie about why they pulled you over? Sure, sometimes their real reason is "you looked fishy" or "I just had a fight with my wife and I needed to feel powerful again", but they always find a legitimate reason. And quite honestly the "let's find a reason" stops are scary too, and not at all a good thing.

I wish, but don't expect, my elected officials to tell the truth. I do expect government agencies to tell the truth where they could get involved in my life. The exceptions (CIA, NSA, military) aren't supposed to be allowed to interact with me anyway.

In any case, DHS is not a spy agency nor a branch of the military. They are effectively police and they should act like it. But just like all of those Keystone Kops TSA agents I encounter at every trip through the magnetometer, DHS seems to want all of the privileges of being police but without any of the responsibility.

The choice is between being incompetent or malevolently competent; choosing the former is assuming the best.

All you security experts should wake up to the fact of corruption and gov. based terrorism to control the people and make politicians richer, ie, W. and Cheney & friends(Halliburton, Bachtel) etc . Check out www.infowars.com and www.prisonplanet.com to see what our government has in store for us in the very near future. "Love the country, but fear the Government"

@ Michael
I share your sentiments, but disagree with you on this case. Your constitutional right to know what you're suspected of doesn't kick in, in an ordinary investigation, till your case goes to trial. It's perfectly normal for the cops to bring someone in for questioning without disclosing to them the full details of the suspected crime they're investigating. Of course, if you're being questioned, you have a right to know that that is what's going on (and to have an attorney present), but it doesn't sound like this guy was being questioned, merely (under my scenario) being held while a background check was being run. And it's not just the police: I'm sure the IRS, for example, has the same power. In short, detaining someone for six hours at the border without telling them what it is that's suspicious about them, assuming that they're not being in any way abused or threatened during that time, is a long way from a Kafkaesque trial in which a defendant is never informed of the crime of which they're accused.
Unfortunately, we now know that our country is also running that type of Kafkaesque trial, and, even worse, detaining people indefinitely without the prospect of any sort of trial, and under abusive conditions. But we're as bad as the worst consumers of movie plot threats if we socially engineer ourselves into seeing a case of either incompetence or competent malevolence every time we hear from a total stranger that he or she had an interaction with a law enforcement agency which is not completely explained by the facts which are available to us. Don't we need something more than mildly odd behavior (on the part of the law-enforcement agency) to trigger our suspicion?
To put it another way: yes, I do believe in slippery slopes, but that doesn't mean that in a country where people are being secretly detained and tortured we should be wasting our time pondering the fate of a journalist who, on returning from some rather remarkable adventures abroad, was forced to submit for six hours to mediocre sports talk with a government employee ("a Pakistani, ironically" -- and why exactly is the govt employee's ethnicity so ironic?).
Just saying.

Database creep. Checkpoint creep. Petty bureaucrats with no meaningful oversight.

We can do something about that last. Write your Congressman! Make a big nasty stink using your blog and the media . . .

"Question Authority, or Authority Will Question You." Never been more true than today.

"It's perfectly normal for the cops to bring someone in for questioning without disclosing to them the full details of the suspected crime they're investigating."

Well, no, I don't think that's exactly right. They may extend an invitation for you to come down for an interview or perp walk, but you can decline. So, if they really want your presence, they have to get a warrant. Of course, the warrant might not disclose why. But as noted, you can then bring your atty.

On the other hand, government agents enforcing our borders have additional legal powers relating to searches and detentions. And the original author's point that DHS is enforcing warrants, not for violent felonies, not for felonies, not for misdemeanors, but infractions (and civil complaints) should be of concern to all, I would think. It also appears to be an inappropriate use of our resources, that was in this case obvious to the NYPD. The DHS should perhaps survey other law enforcement agencies, and not detain people when they can know ahead of time that it is a futile waste of their time (as well as the detainee's).

Remember the last country to have a Homeland Security division of government?

Of course they pronounced it "HeimatSicherheit"

Geez, so now before you take a trip abroad you need to worry about unpaid parking tickets? How lame is that?

This is the inevitable question that gets asked when one is pulled over for speeding. "Why aren't you catching the *real* criminals?"

It is not the cross-linked databases that are the problem, but, shoot, if you're going to tag the guy for an outstanding warrant, how about one that actually involves public safety?

Bootleg Celtics' shirts, indeed.

This guy's story stinks of BS. I doubt we can decipher what the truth is, or even if this guy ever traveled out of the U.S. There are lots of dopes and wanna-bes out there allegedly working "to counter terrorism" on their own. It's crap even if they really think they are combatting terrorism, and most often it's just an excuse to be doing other things. The LA Times puts it all out simply because it follows their editorial line to criticize the Bush Administration.
Lots of folks here pretty down on those who have to do their best to make the critical decisions at the border and before. Wanting so to believe that horrendously bad decisions were made - not looking into the real situation. Keystone Monday-morning Quarterbacks.

I don't see the concern here. He had a warrant outstanding, in the very city he was flying into. Basically any law-enforcement officer he encountered and who became aware of his identity and the warrant is suposed to arrest him on sight.

The real question is why did they let him go before they could get the NYPD there?

Because it was six hours later and the NYPD had better things to do?

If his story is true, and I have no reason to believe otherwise, then it's a lovely little piece.

Lovely because it reveals the Dept. of Homeland Security and the thinking that created it to be the emperors clothes that it is.

It would have made a great movie moment combining the pettiness of the small minded abuse of power with the humour of the obviously ridiculous, topped with the crowning glory of the incompetent twist at the end!

You would be hard pressed to create better from your imagination.

I love it.

Y'know, I half expect the DHS to make money as a collection agency, keeping people who don't have clean credit reports from returning to the country.

"Yeah, that'll teach you to short a creditor!"

And, of course, there's no way to clean it up, any more than you can clear yourself from any of the other lists that get made.

@geoff lane: "Remember the last country to have a Homeland Security division of government? /Of course they pronounced it "HeimatSicherheit" '

That wasn't the last one. I remember Gosudarstvennoy Bezopasnoty rather more recently.

@geoff

It was called "Staatssicherheit" or just MfS

a2e5ecc0 a2e5ecc0

They probably didn't even shoot him even after he shat all over them...

[or set up a heroin overdose like some clancy novel]

Dear Bruce:

I am a National Security Whistleblower who has recently published the book “BorderGate� (www.BorderGate.net). “BorderGate� is a true story written by former U.S. Customs Special Agent Darlene Fitzgerald and Peter S. Ferrara. “BorderGate� puts a human face on a story exposing corrupt and/or incompetent, high level DHS managers who are literally allowing train car loads of illegal narcotics to come into the U.S. There is a cancer growing on the Department of Homeland Security (DHS). The government doesn’t want people to read this story. It tells in detail how and why some of the best and brightest Agents in Department of Homeland Security are being driven out. This story culminated in a landmark case in federal court (Fitzgerald - Nunn Vs. Department of Homeland Security). You may see some of the most shocking transcripts of this trial at BorderGate.net.

In many ways, we are less safe now than before “9/11," even after countless billions have been spent. Why is this? Those who stand on the front lines of protecting this country - - the Agents and Officers who are actually trying to protect us - - are being systematically driven out of law enforcement by corrupt and incompetent bureaucrats who have a different agenda. What we witnessed after Hurricane Katrina will pale in comparison to what we will see after this country is hit by a weapon of mass destruction.

Currently, there is no effective law to protect any Federal Whistleblower who dares to report wrongdoing and confront the cronyism and corruption which eats away at U.S. Customs and at DHS. If these Whistleblowers lose, then we all lose. What America’s enemies have thus far been unable to do will be done from within our own government.

We are asking for your help. The Project on Government Oversight (POGO) and the Government Accountability Project (GAP) are supporting some much-needed legislation to protect legitimate Federal Whistleblowers from the persecution and retaliation of the kind exposed in “BorderGate.� Anything you can do to bring attention to this problem and support such legislation would be greatly appreciated. I have already been a guest on the O’Reilley Factor, CSPAN, NBC News, and numerous other new papers and magazines have completed articles on our story. We must act before it is too late. The story “BorderGate� tells, and the call for action it makes cannot be ignored. No one in government can say they have not been warned.

Please visit our website at “www.BorderGate.net� to ascertain how you may be of help to us in spreading the word. You may contact us at the website or at the below listed contact information for further information. Thank you for your attention to this crucial matter.

Sincerely,

Darlene Fitzgerald and Peter S. Ferrara
Authors of “BorderGate�
lawdarlene@highland.net

WHAT GOES AROUND COMES AROUND

On January 17, 2007, the media at large reported that U.S. Attorney Carol C. Lam, the top federal prosecutor in San Diego, CA, was removed from her job. The Justice Department said Tuesday that, “Ms. Lam’s dismissal had nothing to do with the prosecution of Mr. Randy (Duke) Cunningham, but was based on her overall record in prosecuting firearms violations and crimes along the California border with Mexico.�

At the very same time that U. S. Attorney Lam was responsible for the Cunningham case, she was also responsible for the landmark case Fitzgerald – Nunn Vs. Department of Homeland Security. A year before this civil trial began, Lam’s Assistant U.S. Attorney (AUSA) Timothy Stetler had been made aware of the ostensible corruption that U.S. Customs Special Agents Darlene Fitzgerald and Sandy Nunn had uncovered and attempted to expose. Darlene’s investigation uncovered tons of narcotics and contraband being facilitated into the U.S. via railroad tanker cars with the apparent approval of Customs managers. AUSA Timothy Stetler listened to the testimony of Superior Court Judge Yvette Palazuelos in her pre-trial deposition. She corroborated Darlene’s suspicions when she stated that the managers at Customs were, “Torpedoing our rail operation� and criminal cases. She further stated, “At the very least these managers were committing Obstruction of Justice.� AUSA Stetler told Gastone Bebi, attorney for Fitzgerald and Nunn, that he was concerned that it was in fact corruption and that he felt he had a duty to report it. He should have reported this to his boss, U.S. Attorney Lam.

There was no investigation into the well-documented, well-witnessed allegations of Sandy and Darlene. At the trial, Superior Court Judge Yvette Palazuelos took the stand and made history that day by being the first sitting Judge ever to testify against the U.S. Government. A complete transcript of her historic testimony may be read at www.BorderGate.net. The essential fact of her testimony was that she witnessed high-level Customs managers shut down Operation Rite Rail. In that operation Darlene had already seized 8000 pounds of marijuana and 34 kilos of uncut cocaine in just one pressurized railroad tanker car. She had secondaried (placed on hold pending inspection) five more of these cars. These five cars importing from Mexico were improperly manifested as empty yet contained 25 to 40 tons of unknown contraband. They had been sent from the same front company in Mexico where the previous seized- tanker car was from. Darlene had high-level information from a reliable informant as to the contents of these five cars – yet Darlene was ordered off the case and told to shut down her operation.

At the trial, Assistant Special Agent in Charge (ASAIC) Gary Pinkava took the stand for Customs (See Federal Transcript of Pinkava’s testimony at www.BorderGate.net). During the course of his testimony, he admitted that he would not allow Darlene and her Supervisor Robert Mattivi pressure test, at no charge to the government, these highly suspect tanker cars. This would have been the largest seizure on record for any agency (25 to 40 tons) and it was under the command and control of ASAIC Pinkava. Subsequently, as testified to by numerous witnesses (see other testimony at the BorderGate web site), these tanker cars were released into the commerce of the U.S. uninspected by anyone.

As shocking as this testimony was, there was also evidence of witness tampering during the course of the trial. The Honorable Roger T. Benitez, United States District Judge, while presiding over this case, responded to the efforts by U.S. Customs Attorneys who threatened U.S. Customs employees with the loss of their jobs if they dared to answer subpoenas and testify against Customs managers. Judge Benitez stated, “Boy, there’s something about this that doesn’t pass the smell test!� (see www.BorderGate.net). All these crimes remain uninvestigated.

What Darlene and Sandy exposed at this trial is the horrendous National Security Terrorist Threat that these tanker cars pose to our nation. Timothy McVey blew up the Federal Murrah Building in Oklahoma City with about one ton of ammonium nitrate in an unsealed-cargo truck. This cowardly attack killed scores of people and resulted in at least fifteen damaged buildings being torn down. A terrorist can put forty times this amount of ammonium nitrate in a railroad tanker car and pressurize it. This would result in the world’s largest pipe bomb. This is almost too frightful to image, yet America has enemies who relish such a possibility. Darlene has repeatedly said that the national security threat she has exposed is apolitical because exploding tanker cars do not just kill Republicans, Democrats or Independents, they kill everyone. This too was made known to the San Diego U.S. Attorney’s Office, which was headed by U.S. Attorney Lam.

During the course of this trial sufficient evidence to warrant a Grand Jury investigation into the following was absolutely exposed: Facilitation of the Importation of 25 to 40 tons of contraband into the U.S., Witness Tampering, Perjury, Misprision of Felony, and possible Subornation of Perjury. This evidence was sufficient to warrant the initiation of a Grand Jury Investigation – yet there was none. The most shocking federal transcripts of this testimony can be found at www.BorderGate.net. U. S. Attorney Lam knew, or should have known, about this ostensible corruption committed by the Customs managers before the trial, and later exposed at the trial. Yet to date, nothing has been done to investigate any of this.

What is even more telling in this case is the fact that Senator Dianne Feinstein has publicly defended U.S. Attorney Lam. This is most interesting when you consider that well before this case (Fitzgerald – Nunn Vs. Department of Homeland Security) was ever filed in federal court, 24 Customs employees signed a letter begging Senator Feinstein to investigate their allegations of corruption. Two weeks after Senator Feinstein’s Office received this letter (sent certified mail & fax) Senator Feinstein was seen by several of these Customs employees out on one of the U.S. Customs Yacht “rubbing elbows� with one of the very managers the brave 24 wanted Feinstein to investigate. It was later learned by a reporter who covered this story, that Senator Feinstein’s husband may have had a financial interest in the very companies over whose rails this contraband was rolling. Senator Feinstein initiated no investigation into the 24 Customs employees’ allegations. Customs turned up the retaliation heat on the agents involved in this rail project. Details of this horrendous retaliation are chronicled in the book “BorderGate.�

It is important to note that there have been no other rail tanker car seizures since Darlene’s seizure in 1998. Have the drug smugglers and terrorists simply quit trying to enter the U.S. or have they simply been operating freely under the unwatchful and accommodating eyes of U.S. Attorney Lam and Senator Feinstein.

The real victims here are Darlene, Sandy, and all other brave Whistleblowers who have come forward with important information that exposes threats to our National Security. There is no real protection for Federal Whistleblowers. There seems to be a pattern at the U.S. Attorneys Office and the Department of Homeland Security of acting against employees for doing their job instead of prosecuting corruption. Another clear example of this is the two Border Patrol Agents who now face prison because they defended themselves in a firefight against a known drug smuggler. Again, it was a U.S. Attorney’s Office who appeared to take the side of the drug smuggler and went after the Border Patrol Agents. Yet there has been no investigation into the motivation of the AUSA prosecuting this case against the Border Patrol Agents. This raises the question – Who is overseeing those who are responsible for prosecutorial oversight?

U.S. Attorney Lam at worst condoned, and at best ignored the retaliation by U.S. Customs managers against Whistleblowers Fitzgerald and Nunn. Now she complains when she is the object of “possible� retaliation for her role in exposing the Cunningham scandal. What goes around comes around.

By: Attorney Austin Price
Attorney for Darlene Fitzgerald,
and Peter Ferrara, Authors of: “BorderGate,
the story the government doesn’t want you to read.�
www.BorderGate.net

My name is Darlene Fitzgerald, and I am a National Security Whistleblower. Please read the following letter and if you wish to help an innocent man and fellow Whistleblower, please contact the House Judiciary Committee at the below listed contact information & demand an investigation into this travesty of justice. Remember, in the words of Rev. Martin Luther King, "Injustice anywhere is a threat to justice everywhere."

Phone: (202) 225-5126

OR

FAX: Please just fax the first page of this letter to: (202) 225-0072

Austin Price
Attorney at Law
P. O. Box 1340
Whitley City, Kentucky 42653

Phone: (606) 376-5931
Fax: (606) 376-4401

October 9, 2007

House of Representatives
Committee on the Judiciary
2138 Rayburn House Office Bldg.
Washington, D.C. 20515

Dear Congress:

Having worked as an attorney for over sixteen years, I have tried numerous criminal cases ranging from minor misdemeanors to capital murder. I have found that most police officers, prosecutors and courts truly strive to be honorable and serve the public fairly. However, it appears that the protections that we enjoy are often denied to those who seek to protect us by whistleblowing on corruption, fraud, waste and abuse in our federal government. In fact, it appears that one such whistleblower, John Carman, is being wrongfully imprisoned by the very people who are supposed to protect us.

In September, 2007, I had the opportunity to observe most of John Carman’s criminal trial in federal court in San Diego, California. I had previously met John through my fiancee, Darlene Fitzgerald, who testified at his trial. Darlene and John had previously collaborated to expose corruption in the U.S. Customs Service. As I observed John’s trial, I was looking for a “smoking gun,� some real piece of evidence that I could say - I see why the government would believe he is guilty. But it simply was not there.

In the mid 1990's, John was an inspector with the U. S. Customs Service (now under the Department of Homeland Security) assigned to the San Ysidro Port of Entry, on the California border with Mexico. John served many years with Customs and, prior to working for Customs, was a Secret Service Officer. By the mid 1990's, John had successfully worked for the federal government maintaining a high level security clearance and good standing for over 25 years.

While working at Customs, John says that he began to notice things that with all his experience, training and expertise did not add up. John noticed that there were things like “overflight exemptions� being granted to suspected narcotics smugglers and drug cartel members which allowed these highly suspect individuals to enter the U.S. uninspected with simply a stroke of a pen from certain Customs’ managers. Further, John noticed that important leads on suspects connected to notorious drug cartel members that should have be followed up, were being shut down by these very same managers. John says that when he began to question his managers’ actions, he was immediately retaliated against.

At about the same time frame, Special Agent Darlene Fitzgerald of the U.S. Customs Service was running a counter-smuggling operation in Southern California, involving pressurized rail tanker cars that were suspected of bringing tons of illegal narcotics into the U.S. Darlene had been with the Customs Service for just over ten years and, prior to that, was a captain in the U.S. Army Military Police Corps, for many years - all in good standing. Darlene’s task force, dubbed “Operation Rite Rail,� had information that literally tons of narcotics were being loaded into tanker cars in a rail yard in Guadalajara, Mexico every day, destined for the U.S. Her information turned out to be accurate because her task force seized 8,000 pounds of marijuana and 34 kilos of pure, uncut cocaine in just one of these tanker cars. Subsequently, Darlene seized five more of these tanker cars from the same front/shell company in Mexico, manifested as empty, yet, when weighed, were found to cumulatively contained 25 to 40 tons of contraband. Darlene says that certain managers in her chain of command immediately began to torpedo her operation and eventually ordered her to stop her investigation. The hold that Darlene had placed on these five tanker cars was then inexplicably removed, without Darlene’s knowledge or permission, allowing them to enter the U.S., uninspected by anyone.

Darlene and her task force realized that if drug cartels could use railroad tanker cars to smuggle drugs into the U.S., terrorists could also use them for attacks. Timothy McVeigh blew up the federal Murrah Building with less than one ton of ammonium nitrate in an unsealed cargo truck. Terrorists could put several times this amount of ammonium nitrate in a sealed tanker car and, essentially, create the world’s largest pipe bomb. While this seems too hideous to image, surely America has enemies who welcome such an opportunity. It is no surprise to me that since Darlene left Customs, no railroad tanker car seizures have been made. I sincerely doubt that the drug smugglers have simply stopped using them.

Darlene and John, and other loyal Customs employees working with them, were then placed between the proverbial rock and a hard place. Their instincts were screaming that this was more than just incompetence. Surely, no manager would perfunctorily surrender the acclaim and recognition that would have came with making what was probably the largest drug seizure in U.S. history. All of these loyal government employees had been taught throughout their careers that the way to solve grievances was to use their chain of command, and so they did. Darlene says that the real problem turned out to be the chain of command. Under the United States Code, if a government official observes what he/she feels is a felony, they must report this suspected offense, or they too will be guilty of a felony - Misprision of Felony. As is clearly documented, these employees did their duties and reported these offenses through their chain of command. Yet, no investigations were ever conducted. In fact, U.S. Customs SAC Lori Brown (the person in charge of Customs enforcement throughout Los Angeles and into Las Vegas) openly condoned the shut down of the investigation by Customs managers.

What these loyal government employees say happened to them can best be described as a horror story that seems more tailored to a Grisham novel. All of these agents/officers had been with the government for many years and had never been placed under investigation by anyone for anything. Yet, unexpectedly, as soon as they reported what they felt was major corruption, they were placed under repeated frivolous internal affairs investigations and, eventually, IRS audits. When they locked arms and decided to fight back by going outside the agency for help, the agency simply turned up the heat on them. Darlene and John say that they and five other Customs Special Agents and Inspectors met with FBI Special Agent Rob Meza with the FBI’s Public Corruptions Office out of San Diego, California. They laid out all of their evidence and even had a federal prosecutor, who had witnessed much of this corruption, back them up. Agent Meza reportedly agreed to investigate, then did not, even though millions of your tax dollars pay for this task force to investigate public corruption.

Again, the heat was turned up even higher on the Customs employees. They say they were harassed, investigated, passed over for promotions, threatened, surveilled by their own agency, and ultimately drummed out of the Customs Service, for doing their jobs. The details of this travesty of justice are contained in a recently released book entitled “BorderGate, the story the government doesn’t want you to read.�

These agents/inspectors attempted to file a class action lawsuit against Customs for whistleblower retaliation and EEO violations. The class action was split into several different federal cases. John’s case moved forward separately from Darlene and her co-plaintiff’s, Special Agent Sandy Nunn’s, case. Darlene’s Co-Case Agent, Special Agent Ruben Sandoval’s case was split away as well. The game plan of “divide and conquer� is a good strategy for the government when they choose willful blindness as opposed to seeking out the truth.

During the time frame after these Customs employees left the agency and their civil cases were slowly snaking through the federal court system, these people did not go quietly into the night. John developed what became a very popular website for government whistleblowers who feared for their jobs if they spoke out against their managers. Here they could pass on information anonymously if they wished, although some used John’s website to publically blow the whistle on government corruption, fraud, waste and abuse. As you might imagine, this website, entitled “www.CustomsCorruption.com,� would not have been well received by those within Customs and the FBI who were the object of the allegations. Morever, these brave Customs employees in their attempts to obtain help, testified before various U.S. Congressional & Senatorial committees. They were repeatedly in the media regarding their allegations of corruption in Customs and the failure of Special Agent Meza and the FBI Public Corruption Office to investigate their allegations. Certainly, these activities would not have been welcomed by either agency.

Just a few weeks after the initial meeting with Special Agent Meza, John says he was arrested by local authorities in Le Mesa, California, reportedly at the direction of U.S. Customs Internal Affairs. The charge was apparently so frivolous that it did not even make it past arraignment. John was immediately released and filed another law suit against Customs. This appears to be the first attempt to shut John up using the criminal courts; it would not be the last.

Ruben Sandoval’s civil case was dismissed on a motion for summary judgment before it ever went to trial. According to statistics at the Government Accountability Project (GAP), Whistleblowers must first utilize the Federal Merit Systems Protection Board, and then file an appeal directly with the Federal Circuit Court of Appeals. Since October 1994, One Hundred Eighty-Three (183) out of One Hundred Eighty-Five (185) cases were dismissed for decisions on the merits.

In February 2005, Darlene and Sandy’s federal civil case was held in the San Diego Federal Courthouse. This case made history as a landmark case. It was the first time that a sitting judge, the Honorable Yvette Palazuelos, testified against the federal government as Darlene and Sandy’s witness. During this trial, there was ample evidence presented to warrant a grand jury investigation into perjury, witness tampering, and facilitation of the illegal importation of 25 to 40 tons of narcotics - yet there was none. After 90% of Darlene and Sandy’s case was disallowed into the trial, the jury, not surprisingly, found in favor of Customs. The trial is more fully detailed in Darlene’s book “BorderGate.� Darlene and Sandy report that everyone on their witness list, including John, has since been severely harassed, fired, and/or arrested.

Even with the shenanigans, Darlene and John were still willing to testify before another Congressional committee in May, 2007, in support of the much needed “Whistleblower Protection Act� for federal government employees. Just two weeks before they had planned to go to Washington, D.C., John was placed under arrest by the FBI in San Diego on charges of conspiracy to kidnap a U.S. citizen in Mexico. The FBI’s case was based in large part on the testimony and telephone recordings of a convicted felon and illegal alien, Eloy Fernandez.

Eloy’s felony conviction stems from his attempted framing of two Customs’ employees for crimes the FBI maintains they did not commit. Eloy’s acknowledged motivation in framing the Custom’s employees was so that the government would give him U.S. citizenship in exchange for his providing information of a crime. After his felony conviction, however, the FBI’s headquarters reportedly blackballed Eloy from ever again being used as a confidential informant (CI). When the FBI blackballed Eloy, they noted that he was desperate for U.S. citizenship and hoped to use the government to get that citizenship by supplying information. John’s attorney, Knut Hohnson, says that by this time, Eloy had already received over $300,000 from the government for information in other cases. He never paid any taxes on this money, and the government never filed any forms with the IRS notifying them that Eloy had earned this money.

Agent Lombardi was admittedly aware that Eloy was expecting either U.S. citizenship or a green card for his work in trying to get incriminating statements from John. Apparently, Eloy’s only duty for such a coveted status was to talk with John three times, while Agent Lombardi recorded the telephone conversations. These recordings were used by Agent Lombardi to indict John.

Later at John’s trial, it was apparent that John was unaware of Eloy’s past. Testimony from numerous federal agents revealed that John had taken Eloy to various agencies and introduced him as a possible contact for them in Mexico. Apparently, due to confidentiality, these agents were not allowed to tell John of Eloy’s past or that he had been blackballed by the FBI.

When John left Customs earlier, he had become a private investigator in San Diego. One of his clients was George Lane. Lane had hired John for a surveillance job of his ex-girlfriend Christie (last name intentionally omitted to preserve her privacy). Unknown to John or Christie, Lane, reportedly, was a consummate womanizer who had become quite skillful at conning women. He was reputed to have been notorious for spinning yarns that he was either a CIA agent or NSA agent, of which he was, apparently, neither. This information was confirmed, and uncontested during John’s trial, not only by Christie, but by Eloy and the government as well. Further, Darlene through her own investigation of Lane in Maysville, Kentucky, further developed this fact.

The recordings and e-mails clearly showed that Lane had convinced John that Christie was heavily using methamphetamine in Mexico, while in the presence of her two young sons. They also revealed that John was under the belief that he could have Eloy arrange for the Mexican Police (Mex. Feds) to detain, search, and arrest Christie if she were found to have drugs in her possession. Further they revealed that John believed that because of his tip, the Mex Feds would pay him a portion of any future bond that Christie would have to post. While this sounds a bit seedy, it certainly does not rise to the level of kidnapping; and it is tempered by fact that John believed he would be protecting the children from a methamphetamine addict.

It was discovered several months prior to John’s trial that the FBI knew where Lane was located but, inexplicably, had never arrested him. Asked by John’s attorney to locate and interview Lane, in July 2007, Darlene traveled to Maysville, Kentucky where Lane was reportedly residing. She discovered after interviewing several residents of Maysville, including members of the local police and sheriffs’ departments, that FBI Agent Lombardi had interviewed Lane two months prior to her arrival. In fact, FBI Agent Lombardi himself had traveled to Maysville along with a polygrapher and had not only interviewed Lane but had polygraphed him and executed a search warrant on his residence, seizing two lap top computers. The prosecution released the information that Agent Lombardi had obtained only after George Lane was arrested, even though John’s attorney had requested it weeks prior.

Bear in mind that Agent Lombardi and the prosecution had argued the dangerous nature of the charges against John and his ability to abscond as justification to keep him imprisoned. Certainly, the same would have been true for Lane; after all, Lane, who was an alleged co-conspirator, had obviously already departed California. If the prosecution and Agent Lombardi truly believed this, then why was Lane not arrested in Kentucky when there was a clear opportunity to do so? Perhaps, it was because they did not want Lane present during John’s trial. Certainly, it would have seemed unlikely that Lane would have ever been discovered in Maysville, Kentucky by John’s attorney who,

after all, was in California. It should be noted, that only after Darlene discovered this critical information was Lane eventually arrested.

John’s attorney claims that immediately after John’s criminal trial, Lane was released on bond, even though John had been held without bond throughout his ordeal. Could it have been that since Darlene had discovered his whereabouts, Lane was being sent a not too subtle message discouraging him from cooperating with John’s attorney?

Before John’s trial began, his attorney repeatedly asked through motions to the court for all discoverable evidence held by the government. On the Thursday before John’s trial was to begin (Sept. 19th), the prosecutor in step with Agent Lombardi relayed to the court and John’s attorney that despite all of their best efforts, they could not locate Eloy. However, they still wanted to use the recorded telephone conversations between Eloy and John as evidence. Now, at almost that same instance that this was occurring, Eloy was telephoning Darlene in an attempt to contact journalist Bill Conroy. Bill is the reporter who broke the “BorderGate� story in which John, Darlene and others had uncovered. Incidentally, Bill relates that he and his family were also severely harassed and intimidated by U.S. Customs after he had printed his articles. Bill had continued to follow this story, however, and had recently published a story on John’s case, which is how Eloy got his name.

When Eloy spoke to Darlene he told her that he needed to get in touch with Bill in order to, “Tell his side of the story.� This begs the question, “Why does the FBI’s witness need to talk to the media to tell his story?� Darlene passed the information on to Bill, and Eloy was later interviewed that same day. Eloy reportedly told Bill that the FBI had lied to him and setup John. He also said that he had been trying to get with Agent Lombardi and the prosecutor, but they would not return his calls. Keep in mind that this interview was happening the very day that the prosecutor was informing the court that Eloy could not be found. Apparently, only after the court refused to allow the government to play for the jury Eloy’s voice recordings from the telephone conversations did the prosecutor and Agent Lombardi feel the need to return Eloy’s telephone calls. When it became clear that the court was going to enforced John’s Sixth Amendment right to confront the witnesses against him, Eloy then miraculously appeared just in time to testify for the government.

The evidence presented by the prosecution during John’s trial was essentially Eloy’s three recorded telephone conversations with John and various e-mails. Nowhere in any of these recorded conversations or e-mails does John ever discuss a kidnapping. The only mention of kidnapping came from Eloy in one of the e-mails, but nothing in the recorded telephone conversations. Eloy said to John, “What ever happened to that woman we were going to kidnap, ha, ha, just kidding.� John responded to this statement with confusion as to what Eloy had written. The prosecution never addressed the obvious questions of why Eloy said he was just kidding and why Eloy had not been encouraged to send e-mails to John soliciting details of the alleged kidnapping. After all, Eloy was certainly hoping to curry favor with the FBI in hopes of getting U.S. citizenship. Likewise, it is important to note that Agent Lombardi was present during all three recorded telephone conversations, yet he never explained why he did not insist upon Eloy asking John specific questions about the alleged plot. The obvious reason would appear to be that if Eloy had forthrightly discussed such a kidnapping plot, and there was none, then John would have immediately began to question Eloy as to what he was talking about.

Throughout the tape recorded conversations and e-mails, John repeatedly speaks of having Christie arrested and of bond money - not kidnapping. Further, nowhere in any of the evidence was there any statements by John or even Eloy of a planned kidnapping. Presumably, the whole idea for Agent Lombardi’s working with Eloy was to have him entice John into discussing a kidnapping plot. Yet, even with Eloy talking with John three separate times and exchanging numerous e-mails, there are no conversations of how, when or where they would grab Christie; what would be used to secure her, i.e., rope, zip ties or handcuffs; whose car would be used, rental or personal vehicle; what time and date would it occur; where would it occur, city or country side; while she was alone or with someone; where she would be taken; would she be held at a motel/ hotel or private residence; who would be watching her while waiting for the ransom; would they take shifts and how long would the shifts be (12 hours/ one day, one week, etc.); who would write a ransom note; how would it be written(e.g. typed, hand written, news clippings, etc); if typed, whose computer; who would deliver the ransom note; what would it say; how long would they wait; who would pay the ransom; how would contact be made; amount of ransom; method of delivery and pick up of the ransom. The lack of these details, or the thousands of other details that would have arisen had there been a kidnapping plot, were never addressed by the prosecution. Could it be that they do not exist? Moreover, when Eloy took the stand, he was given ample opportunity to describe the details of a kidnapping plot had he and John ever actually discussed such a thing. Surely, had he and John ever had such conversations, recorded or not, Eloy could have easily lured John into discussing them during the recorded telephone conversations, yet they were not even alluded to.

In order to understand why the expenditure of $300,000 for Eloy may seem contrary to government policy, it is necessary to review the apparent corruption that Darlene had blown the whistle on when she worked for Customs. As stated above, in 1997, Darlene and her task force seized 8,000 pounds of marijuana and 34 kilos of pure, uncut cocaine from a single railroad tanker car. They then seized five more tanker cars containing 25 to 40 tons of contraband and had them parked in a rail yard awaiting approval to be opened. Her manager Assistant Special Agent in Charge (ASAIC) Gary Pinkava refused to allow her to inspect the tanker cars and ordered her not to complete her investigation. Later, he gave numerous reasons for not allowing the inspection of the tanker cars, which initially included him stating at a deposition that he did not even remember the tanker cars. After several other witnesses testified that Pinkava had in fact been specifically told about the tanker cars and after he was reminded of the fact that this would have been difficult to forget since it would have been potentially the largest drug seizure in U.S. history, his memory surprisingly improved. His second excuse was that he had told Darlene’s immediate supervisor, Robert Mattivi, to inspect the tanker cars. When this assertion was refuted by Mattivi, Pinkava then said that it would have cost too much to open the tanker cars. Incidentally, this was also argued by the government in Darlene’s civil trial as justification for thwarting her investigation. (Case styled as Darlene Fitzgerald / Sandy Nunn Vs. Department of Homeland Security, civil docket in San Diego Federal Court; (a complete transcript of ASAIC Pinkava’s testimony may be read at www.BorderGate.net)). It was presented in court that the cost to safely open and inspect one of these tanker cars would have been approximately $8,000.

Now, when you compare the refusal by certain officials within our government to the spending of even a relatively small amount of money to generate the country’s largest drug seizure with the amount they are willing to spend on a witnesses such as Eloy, it paints a disturbing picture. This is even more disturbing when you read ASAIC Pinkava’s trial testimony from the Fitzgerald/Nunn civil case wherein he admitted, without equivocation, that he would not even allow Darlene and Robert Mattivi to pressure test the tanker cars for free. Darlene says that she had arranged to have the tanker cars pressure tested at no cost to the government, and yet ASAIC Pinkava still ordered her not to do her job. No investigation has ever been conducted into why a high level Customs manager would actively thwart such an investigation.

In his criminal trial, John, unfortunately, got assaulted by a perfect storm. First, he was against young prosecutors who appeared more than eager to impress their superiors by obtaining a conviction on John - the man who had embarrassed some by maintaining a website exposing corruption within the federal government. A more seasoned prosecutor surely would have insisted upon Agent Lombardi having Eloy to get John to discuss details of the alleged kidnapping plot, or seek a wire tap on John’s telephone. Certainly, appropriate safeguards could have been initiated to protect Christie while the investigation was properly conducted. And, clearly, the government has not been concerned with spending too much tax payer money on certain investigations.

Second, the criminal case against John was being managed by an FBI agent whose own agency had been specifically singled out by John for its refusal to investigate public corruption. Third, John’s jury consisted of jurors who had only been superficially questioned by the court using cursory questions. John’s attorney was not permitted to ask any questions of the jury, and the court did not ask any probing questions that might have uncovered biases against John.

Clearly, the prosecution team showed no intentions of prosecuting John fairly. As stated above, Agent Lombardi and the prosecution did not divulge evidence voluntarily, timely, or sufficiently. During the presentation of the case, they introduced the three recorded statements and various e-mails covering a plethora of topics and investigations that John was discussing with various people. Then, during his closing argument, the prosecutor incessantly took excerpts from those documents and pieced them together, often out of context. A clear example of this was when the prosecutor took just one sentence from an e-mail in which John was discussing a hotel in Mexico. The prosecutor presented this as one of his “Ah-HaH!� moments, telling the jury that this proved that this was the location where John and Eloy were going to take Christie. What the prosecution did not reveal to the jury was that the e-mail had been sent two years prior to this alleged conspiracy. John’s attorney attempted to rectify this misstatement of fact, and displayed the date to the jury, but the wound had already been inflicted. Even

though this piece of evidence was clearly refuted by John’s attorney, the prosecutor continued to present statements out of context, even when they clearly referred to entirely different matters.

Another example of this came when the prosecutor took a statement in which John was talking of a reward on another case he had been working on. At no time during this conversation was Christie referenced. In fact, John spoke of the other case he had been working on. John’s attorney even had another investigator testify that he and John were, in fact, talking about a reward for a case he had given John. Yet the prosecutor continued to present this statement out of context repeatedly and referred to it as “ransom� for Christie. Objections were raised, arguments were made; the court instructed the jury; but the damage was apparently too great to overcome.

The prosecutor then got to present his closing argument to the jury, twice. In federal court, the prosecution is allowed to present, essentially, two closing arguments. John’s attorney was permitted only one closing argument, smothered between the prosecution’s two arguments.

On September 26th, John was found guilty, much to the shock and dismay of those who had observed the trial and were aware of the whistleblower retaliation. The message sent by those in power in San Diego appears to be that whistleblowing on waste, fraud, abuse and corruption will not be tolerated.

It is also important to note that in May of this year as John remained incarcerated, Darlene Fitzgerald did in fact go to Washington, D.C. and testified in support of the “Whistleblower Protection Act� also known as the “Akaka Bill� after Senator Akaka who helped author it. It was officially read into the record that over 700 federal government employees wanted to appear and testify at this hearing. This clearly shows just how pervasive and systemic whistleblower retaliation has become. As I am writing this letter, this much needed piece of legislation sits idle at the Senate.

Since I first began practicing law, I have never truly felt that I knew, without a doubt, that an innocent man had been convicted of a crime he had not committed. John’s case changes that. On behalf of John and all brave whistleblowers, I beseech you to appoint a special prosecutor and initiate a formal investigation into these cases. If you passively allow whistleblowers, such as John Carman and Darlene Fitzgerald, to be silenced, then no one can be expected to have the courage to report corruption, fraud, waste and abuse within our government. Our beloved country can scarcely afford to be without the
eyes and ears of whistleblowers at a time when so many of our enemies, both foreign and domestic, seek to do us harm.

Sincerely yours,

Austin Price, Esquire

CC:

U.S. Senate Committee on the Judiciary
Senator Harry Reid
The Government Accountability Project (GAP)
The Project on Government Oversight (POGO)
Senator Daniel Akaka
Congressman Dana Roherbacher
Senator Charles (Chuck) Grassley

I was on the jury at John Carmans trial and heard him say in a recorded conversation that Eloy should plant drug evidence in the womans room. It was very clear that Carman knew Eloy was staging a mock arrest, and that Carman was motivated by money. He was in financial stress, and was wotried that his wife would leave him ( his words!)I cannot believe the spin you people put on this whole thing. Even if Eloy had never testified, the emails and recorded conversations had all the information.

It is as they say, Only in america,
having live there for over 25 yrs
and having part take in what was supossed to be law enforcing ,
favors were given to the asking ,
and not fully understanding the real nature of the american ways,
asthe y say one hand washes the other
however this was not so in the case of John Carman,.
I knew firs hand of his needs , and financial stress, wich in my opinion is what motivated him to make a wrong move,
He is a trained and very inteligent individual , to whom i trusted my problrems.
and it may have been his terainig that drove him to be cautios with me ,
I had always senced a bit of distrust from him
so when he approaches me with a mock kiddnaping , I had a feeling that he was not alltoghter mind wise , and I from day one , try to persuade him from such a lathol crime , I also hopedthat some how he would give up but my pleading was not as efective as the drive from his alledge counter part , numeros times he told me about his conections to the Feds , and I thiought , that if I gave him up, the Feds would have informed him that he was being wisttle blown and that afterwards he would have call me to tell me off and that that , would have put an end to all this friken mess,
I had no Idea that the Feds were allready after him . I tried to give him up to Customs , were I knew he had some friends , but Customs was to buzzy to listen to me or maybe they diden´t believe me after all he would have been mony less but otherwise a free man, none of his friends came to his rescue , and I had to stop a crime from being comitted.

I can not believe so much talk about this

Eloy guy, I mean he claimed that he had

for over thirteen years as an informant

for not one but several federal agencies

and that as lew of payment he had

recived over 300.000 thousand dollars

ovar thirteen years , yet he claimed that

among the things he had done ,was the

mater of one ton of cocaine , plus an

undsclosed amount of merihuana and

other diffrernent tipes of drugs

how many of us has ever risk their lives

for such little amount of money

for the safe and wellbeing af a single

american citizen,

that to me is heroic behavior if not

patriotism,

thank you Eloy

+what did you get from us in return+