| 420MED.COM 2006-10-08, 4:28 pm |
| For years, the federal government's war on crime has relied on
informants who help boost conviction rates beyond 90 percent.
So after informants helped Boston-area law officers snag Sean Bucci on
marijuana charges in 2003, Bucci took his battle to a new frontier -
cyberspace.
In August 2004, Bucci, 32, - who's out on bond awaiting trial -
launched whosarat.com, a Web site that exposes informants and
undercover law officers in an attempt, the Web site claims, to level
the playing field. The site encourages defendants, lawyers and others
to post profiles of agents and informants and warns it doesn't condone
violence.
Today, the site bills itself as the largest of its kind. It contains
profiles of more than 400 officers and 3,500 purported informants, and
it has become a popular resource for many defendants and defense
lawyers getting ready for trial.
Some profiles contain attachments to court pleadings, news stories or
government documents and news releases. Others have photos - though
the operators say they have disabled the mechanism allowing visitors to
post pictures of law officers.
(below is a copy of a Department of Homeland Security internal email)
===copy of DHS email===
Web of trouble 11/29/2005 04:02 PM
Subject: SIS Bulletin #137 Whosarat Website Advisory
>From the Anti-Terrorism Advisory Council U.S. Attorney's Office -
Miami:
There has been a lot of emails floating around about a website that
lists names of LEOs and informants. Do NOT go to this website. Read the
DHS bulletin below.
Andrea please pass along on Threatcom with the strong advisory to not
view this website.
(U//FOUO) UNITED STATES: CAUTION: Operation Security Risk.
Don't visit the Internet website http://www.whosarat .com. The site
consists of a published list of government IP addresses, the names and
photographs of law enforcement officers, and the names of confidential
informants. Visiting the site could result in the compromise of
government IP addresses. Searching the site for a particular name could
result in that name being cross-indexed to the IP address of the
computer used to make the inquiry. Searching for the names of officers
or informants could compromise those individual's identities. Any
website is capable of collecting IP address and search information from
visitors, but this site is remarkable because it makes visitor
information public. This published information could be used by
criminals and/or terrorists to hinder law enforcement efforts and
endanger officers and informants. Do not visit this or similar sites
from computers that use a government IP address, and do not search this
or similar sites for officers or informant names. (FPS Desk Officer, 13
Sep 04; HSOC 3353-04)
Ms. Chasey Hunker
Intelligence Liaison Officer
Anti-Terrorism Advisory Council
U.S. Attorney's Office - Miami
===end copy of DHS email===
But law enforcement authorities contend it endangers informants and
could have a chilling effect on potential government cooperators.
The feds, until recently, found themselves with their hands tied
because they lost an attempt to delete a separate, similar site from
the Web.
A judge in Alabama ruled that a site that posted photos and names of
informants and agents and sought more information about them was
protected by the First Amendment, and that the person who launched the
site was allowed by the Fifth and Sixth Amendments to gather
information to defend himself.
"It's awfully difficult to (shut down), unless there's specific proof
that it has harmed someone," said U.S. District Judge John R. Tunheim
of Minnesota, who chairs a national judicial committee studying how to
protect sensitive information the judiciary releases in court
documents. "I would just observe generally that it's difficult to
regulate what ends up on the Web."
Unable to pierce the constitutional shields, the Justice Department
last month privately approached federal judges with claims that the
information the judiciary posts online over its own electronic
document-filing systems - called PACER and CM/ECF - is being used
by whosarat.com to intimidate informants.
Although no specific case has been cited where an informant or agent
has been harmed, one example the feds have circulated is that of an
informant who was profiled on the site and had to be moved after
printouts of his profile and photo were plastered on poles, signposts
and cars in his neighborhood in Philadelphia.
The claims this month resulted in limits on what court documents the
federal judiciary will make available in San Antonio and West Texas,
and it is likely to result in a national lockdown on other law
enforcement documents that may indicate who's ratting out whom.
"I'm surprised it's taken the Justice Department this long to go to the
judges and say, 'What can you folks do about this situation?'" said
Michael Natola, a Boston attorney who once represented Bucci.
Leveling field
The operators of whosarat.com declined to make Bucci available for an
interview.
But in e-mailed responses to the San Antonio Express-News' questions,
spokesman Anthony Capone said the site receives 15,000 to 50,000 hits
weekly from all over the world.
"Whosarat.com was created for defendants and attorneys involved in
non-violent crimes to use to investigate their accusers. This will
result in leveling the playing field of today's criminal justice
system," wrote Capone, who also described himself as director of
operations. "Before Whosarat.com, informants were merely un-credible
(sic) fingers of accusation reaching out of the darkness. That scenario
has seriously changed. Whosarat.com shines a light on these un-credible
informants who all too often tell outright lies, in order to receive a
sentence reduction, or for financial gain.
Whosarat.com is effectively being used by defendants to investigate
their accusers or by members who want to help others investigate their
accusers."
Capone openly contends what many practitioners in criminal law grumble
about behind the scenes - that informants are unreliable, and that
they provide false information and lie so they can get paid by the
government or get a pass or reduction on their own criminal charges.
Examples of Capone's allegations are real. Last year, for instance, a
former longtime FBI informant pleaded guilty to charges that he schemed
to deceive the FBI during a four-year federal grand jury investigation
in Detroit.
In a news release issued in June 2005, the Justice Department said
Myron Strong, 34, schemed to defraud law enforcement by inventing a
fictitious international drug trafficking organization that he claimed
was distributing cocaine, heroin and marijuana across the country
through several dealers in the Detroit area.
During the alleged scheme, Strong falsely accused real people of being
drug dealers and submitted drugs and other substances as alleged
evidence of their crimes, the release stated. Strong and his associates
netted $240,000 in drug money and other investigative expenses, the
release stated.
Law enforcement authorities "pay these people ridiculous amounts of $,
dismiss their pending cases, give them sentence reductions, allow them
to commit crimes, allow them to make up stories and when they find out
the informants are lying, they just overlook it, and continue using
these people and swear they are credible, when in reality, these
informants are a bigger threat to society than most of their so called
targets," Capone wrote.
The observation hasn't been overlooked by the government's own system
of checks and balances.
Last year, the Justice Department's inspector general, Glenn Fine,
issued a report that found FBI agents ignored rules for handling
confidential informants that were implemented following several
high-profile scandals.
Looking at 120 cases across the country, the report concluded FBI
agents violated procedures in 87 percent of them, including some cases
in which there was no proper oversight of informants allegedly involved
in illegal activity.
The FBI responded that it has adjusted its oversight mechanisms to be
in line with Justice Department wishes, and that informants remain an
important part of investigations.
"Confidential informants and other confidential human sources are
critical to the FBI's ability to carry out our counterterrorism,
national security and criminal law enforcement missions," FBI spokesman
Bill Carter said in response to e-mailed questions. "A source can have
a singular piece of information we could not otherwise obtain, enabling
us to prevent a terrorist act or crime or apprehend a fugitive. It is
important that we have a vigorous and effective human source program
which complies with legal and departmental requirements. "
The government first tried to close the door on sites like whosarat.com
in 2004 when it challenged Leon Carmichael Sr., a drug case defendant
who put up a Web site that included photos and information about
informants and agents in his case.
The Web site sought more information about the agents and informants,
and the government alleged the site violated a federal law against
knowingly intimidating witnesses in order to prevent them from
testifying at trial.
But U.S. District Judge Myron H. Thomas of Alabama ruled the Web site
was protected free speech, because it did not constitute a "true
threat" or "incitement. "
Thomas also made another observation: "Even the wealthiest of criminal
defendants is at a substantial disadvantage compared to the government.
.... In light of this imbalance of power, the criminal defendant should
have some leeway in addressing the public, and, at the very least,
should not be limited more than the government."
Different approaches
Now, rather than trying to delete whosarat.com from the Web, the
government has tried different approaches.
In selected cases around the country, prosecutors have sought delays in
handing over or have refused to provide documentation or other evidence
that could reveal identifying or personal information of informants or
agents, a review of some cases show.
In Bucci's federal marijuana-trafficki ng case, his lawyer argues that
prosecutors heaped more charges on Bucci only after he started
whosarat.com because of "the government's open and animus feeling
toward the Web site," according to a court motion filed two weeks ago.
"The pending charges against Sean Bucci and his co-defendants were
brought consistent with the charging policies of the U.S. Attorney's
Office," Samantha Martin, a spokeswoman for the office in Boston, said
in an e-mail. "We will not comment beyond that."
Other government agencies have sounded the alarm. In an internal
Homeland Security Department memo obtained by the Express-News, the
agency warns its staff not to visit whosarat.com.
"Visiting the site could result in the compromise of government IP
(internet provider) addresses," the memo said, adding that it could
reveal information about agents who visit the site.
The memo also said the site is "remarkable" because it makes
information of who visits the site public.
"This published information could be used by criminals and/or
terrorists to hinder law enforcement efforts and endanger officers and
informants," the memo stated.
But the information on the site, some say, isn't always correct.
Federal prosecutors recently approached federal judges in the Western
District of Texas and complained about the site because they claim it
incorrectly profiled Michael Houston Russell, a drug defendant from San
Antonio, as an informant.
Russell, 59, was prosecuted during a drug task force investigation of a
ring that grew hundreds of marijuana plants in south Texas, court
records show. He pleaded guilty to aiding and abetting the manufacture
of more than 100 marijuana plants, and was sentenced to three years of
probation, his court file shows.
Assistant U.S. Attorney Richard Durbin, chief of the criminal division
for the U.S. attorney's office, said he was concerned that someone
lifted Russell's plea agreement from the court's PACER system, drew
inaccurate conclusions from it and posted it with Russell's profile on
whosarat.com.
"If you look at his plea agreement, it does not appear he's a
cooperator," Durbin argued. "But they're using that agreement to try to
show he cooperated."
"I'm concerned that they can use the (electronic- filing) system to
falsely identify people as cooperators, " Durbin added.
"But the main concern is that they use it to intimidate (real)
cooperators. "
Russell's lawyer, Michael Morris of New Braunfels, said his client
already qualified for probation-- that Russell didn't get that
sentence because of the plea deal - and that inaccurate inferences
were drawn by whoever posted the plea agreement on the site.
"It puts innocent people's lives in danger," Morris said. "They are
innocent of what they're being accused of, which is profiteers of the
government. In Mr. Russell's case, I can assure you that is not the
case."
Federal judges for the Western District of Texas met in San Antonio on
Sept. 30 and decided plea agreements will no longer be placed on the
PACER system, which now allows lawyers to file court pleadings from
their desktops. Instead, plea agreements will be filed and kept
traditionally - in the files at the courthouse.
Concerns
Judge Tunheim, who chairs the Court Administration and Case Management
Committee, said the Justice Department has approached the judiciary in
Washington about concerns involving whosarat.com. Tunheim said that,
from his observation of that site, there "absolutely" are incorrect
inferences being drawn on notations or documents kept in the court's
electronic case management systems.
A federal law passed in 2002 requires the judiciary and other
government agencies to make more documents available over the Internet.
The judiciary is shifting from PACER to a system identified as CM/ECF,
which is in place in 93 percent of the federal courts and makes 27
million civil, criminal and bankruptcy cases available for perusing by
the public for a fee.
Tunheim said the federal courts have to strike a balance to ensure
transparency in the criminal justice process while ensuring sensitive
information is not misused.
"I don't think the answer is to take all criminal case documents off of
the electronic case filing system," Tunheim said. "It seems to me that
if there are sensitive matters going on in a particular case, either
the document or the record of the hearing should be sealed."
The committee meets in December and may issue recommendations for
national guidelines in advance of the March 2007 meeting of the
Judicial Conference, the judiciary's policy-making body.
Capone, meanwhile, said that postings are submitted by his Web site's
members, and "we take no part in the submissions of postings."
But he said the plea agreements speak for themselves.
"The feds claim many things fact & fiction as long as it supports their
argument and personally, we don't care, they have a right to express
themselves and so do we," Capone wrote. "Law enforcement and informants
can whine and complain all they want, but the bottom line is,
Whosarat.com is here to stay."
gcontreras@express- news.net
http://www.mysanant onio.com/ news/nation/ stories/MYSA1008
06.01A.whosarat. 30ee26f.html
|