DHS defends investigating agency critics and giving them warning notices

Two federal agents in blue jackets stand on David Streever's porch at his home in Rochester, N.Y. David Streever hide caption

After U.S. Immigration and Customs Enforcement agents tried to track down a New York man at his home, an airport and a hotel to confront him over a critical email he sent to the former head of ICE five months prior, federal officials are defending such investigations in court filings .

The same court filings say the investigation into the man, David Streever, was closed at the end of June.

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NPR wrote about Streever's case last month and the First Amendment lawsuit he filed against Department of Homeland Security and ICE officials.

Two ICE special agents came looking for Streever at his home in Rochester on June 23 to ask him about a scathing email he sent former acting director of ICE, Todd Lyons in January. The email, which was written after federal immigration officials fatally shot two U.S. citizen observers in Minneapolis, compared Lyons to a Nazi and predicted the ICE leader would be tormented by his own conscience.

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The agents left Streever's wife with a warning notice for Streever to sign and return. It said "YOU MAY BE IN VIOLATION OF FEDERAL LAW" and listed federal laws that make it a crime to threaten federal officials. The bottom of the form reads: "Receipt of this Notice will be taken into consideration, should you continue to be involved in any criminal activities described above."

Streever sued, arguing the government's actions caused him to self-censor himself and violated his First Amendment rights. His attorneys with the nonprofit free speech group, the Foundation for Individual Rights and Expression (FIRE), have asked a federal judge to block DHS and those working with the department from taking any further action to intimidate or retaliate against Streever for his protected speech, and block any future action related to his receipt of the warning notice.

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The federal government argues the case should be dismissed. Lawyers from the U.S. Attorney's office in Washington, D.C. said in a brief earlier this month that the relief Streever seeks "would unnecessarily inhibit the Government's investigatory prerogative" and justified such investigations due to an increase in threats of violence against public officials.

"In-person investigatory visits from law enforcement—accompanied by prophylactic warnings about federal law—are a critical tool in the investigative and preventative process, and they do not violate the First Amendment," the filing reads.

Notably, the filing did not argue that Streever's January email to Lyons was actually a violent threat that could be prosecuted, or that Streever had written anything in addition to the January email that triggered the investigation.

"They didn't even come back and try to say, 'Well, if you look at it in the right light, this could be a threat of violence that is not protected by the First Amendment,'" said Adam Steinbaugh, an attorney with FIRE who is representing Streever. "They effectively concede that this is protected political speech. And I think that should send alarm bells ringing, because now you have the government saying, 'Yeah, we acknowledge this is protected political speech, but it's critical that we issue warning notices about this.'"

He added that such a stance is "alien" to the First Amendment.

The January email Streever sent had the subject line "What's next" and called Lyons a "monstrous human being," comparing him to Reinhard Heydrich, a Nazi official who was one of the architects of the Holocaust .

"The way you are protecting the obvious execution in Minnesota, even as we see the videos, will lead to your downfall. Even Trump will turn on you before the end, and you will be a sad, despised man who eats himself alive with shame at your own pathetic weakness.

"You will never know peace. You will seek to lose yourself, to escape the burden of knowing the truth about yourself. But wherever you go, you will find yourself. You will torment yourself until your last day on Earth," the email read.

Brent Goodwin, ICE's assistant director for investigations at its Office of Professional Responsibility, wrote in a declaration to the court that Streever's email was forwarded to his office because it had "potential threatening undertones to ICE personnel, potentially presenting a safety concern." Goodwin continued, "ICE OPR did not have any information about Mr. Streever when the email came in, so OPR decided that it needed to conduct an ICE investigation."

The same declaration said special agents from Jersey City, New Jersey went to Rochester – a one-way trip of more than 330 miles – to attempt to question Streever at his home. When his wife told them he was in Europe, agents tracked his return flight so they could confront him at John F. Kennedy International Airport when he landed on June 25.

When Streever managed to clear immigration and customs at the airport without being stopped, Goodwin wrote that agents "obtained the local hotel which Mr. Streever had listed with CBP for his inbound destination."

At the hotel, staff did not tell the agents whether Streever had checked in and Streever did not answer phone calls from the agents.

On June 30, Special Agent Abbi Henry wrote a report to summarize the investigation and wrote the Jersey City office had "exhausted all investigative leads" and closed the case, according to Goodwin's account.

By that date, a Syracuse newspaper had already written about Streever's case and NPR had already sought comment from DHS about it.

Steinbaugh said what happens in this case, has broader ramifications for all Americans. "If the government is able to issue a warning notice here, what's to stop them from issuing it to anyone who criticizes ICE online?"