"If an American citizen is searched, there needs to be a record. These guys are snooping around, and they're not doing the reports," says Ken Bonerigo, the subject of a July boarding by Homeland Security that doesn't seem to exist on paper.
When a Kinder Morgan representative placed a call to the National Response Center in Washington, D.C., on July 18 about a suspicious person in a johnboat videotaping their unloading operations at Shipyard Creek, the NRC got in touch with the Coast Guard. The Coast Guard then called the Charleston County Sheriff's marine unit, who sent two officers over to a sailboat in the marina. The officers met with the owner of the boat, Bonerigo, and ticketed him for having expired decals on his sailboat, not the johnboat he was taping from. And that's where the confusion commences.
The incident report by the two county officers begins: "(We) responded to assist Project SeaHawk with a suspicious person call" and concludes, "After issuing the citation a Project SeaHawk investigative team arrived on the scene. (We) turned the suspect over to them for further follow up in reference to the photographs." The report never mentions boarding Bonerigo's sailboat or the search of the cabin that took place when five more officers arrived at the scene. And four months later, SeaHawk now says they weren't involved.
Project SeaHawk is a multi-jurisdictional Homeland Security program that protects Charleston's port. Bonerigo says he was told that the five officers, led by Lt. Jim Connelly, (who heads the Charleston County Sheriff's Office marine unit), represented that task force. The team was looking for videos Bonerigo had shot of Kinder Morgan polluting Shipyard Creek as they unloaded coal and cement from ships (the subject of a City Paper cover story — "Citizen Watch," Aug. 1). He posted the videos on YouTube, in hopes that DHEC would take action to prevent coal dust from covering his boat when winds blew from the southwest.
After the encounter with what he'd been told was Homeland Security, Bonerigo decided to follow up. He was suspicious about the visit he'd received from two Kinder Morgan executives that morning to his boat to address his concerns, in between the time that he videotaped and the time the officers arrived. And he says he was told by the officers that Shipyard Creek around Kinder Morgan was an "exclusion zone" where private vessels weren't allowed; this claim was later refuted by the Coast Guard.
Bonerigo filed Freedom of Information Act requests to obtain all documents pertinent to the incident. When they turned up nothing more than the incident report, which doesn't mention the boarding, he approached Congressman Henry Brown's office for help. They filed a FOIA request with Project SeaHawk and received a response from the U.S. Department of Justice dated Oct. 29, 2007.
"Please know that a review of the events associated with this incident was conducted by the SeaHawk Task Force," it states. "Based on this review, SeaHawk had no direct involvement with the incident involving Mr. Bonerigo."
The Dept. of Justice letter acknowledges that SeaHawk was informed that a Charleston County Marine Unit was responding, but it says, "the Charleston County Sheriff's Office [had] jurisdiction over this incident and holds the appropriate incident documents."
In City Paper's August conversations with SeaHawk Deputy Frank Gutierrez, he seemed to acknowledge that SeaHawk did in fact play a role in searching Bonerigo's boat. In our discussions, he used the pronoun "we" in describing the incident, a word choice he now explains as a "collective 'we'," referring to organizations like SLED, U.S. Customs, and the Coast Guard that comprise the SeaHawk task force. In August, Gutierrez said that a "consensual search" took place.
In August, Charleston County's Lt. Connelly repeatedly referred to a "pending investigation" with SeaHawk, but said he was unsure of "whether they'll go any further" with the issue. When City Paper contacted him last week, Connelly said, "We did not search the vessel. We boarded the vessel," yet he acknowledged being inside the cabin of the boat and that officers had viewed videos taken by Bonerigo.
In regards to a boarding report, Connelly stated, "It would not necessarily be in the incident report. If SeaHawk didn't pick up the investigation then they're absolutely right, they would not have a copy of that, and we should."
He agreed to locate that report, and days later left City Paper a message that stated, "In the process of writing a citation for non-current registration numbers being posted, the SeaHawk boarding team arrived. There was no boarding report filled out because when the citation was written they felt that a boarding form had already been completed, so therefore none was filled out. This is not unusual. Usually, if a citation is written, a boarding form may not be filled out."
A Charleston-area admiralties lawyer familiar with the case explains that "probable cause sort of goes out the window on the water" and officers can "board and search as much as they want," but that the lack of paperwork seems "irregular." It's unclear if the lack of record violates the law, but the implication of legal, undocumented searches by Homeland Security are heavy.
"If it's a safety check report (the boarding) like they said it was, they need to at least fill out the paperwork," Bonerigo says. "I don't like being a suspect when I didn't do a thing wrong except complain about coal dust. This is all rotten."
SeaHawk has distanced itself from the incident, with Gutierrez stating last week that "Connelly is not even remotely assigned to the SeaHawk task force," adding, "We have no involvement in this, other than almost the voluntary participation on the part of Connelly in managing the marine unit mission when it comes to supporting SeaHawk." (A 2005 Post and Courier article about SeaHawk calls Connelly "the top official in charge of the agency's marine program.") Gutierrez sees the matter as a "perfect example" of SeaHawk working — the Coast Guard got a lead that was then shared throughout enforcement bodies.
The question lies in the aftermath. An incident report states twice that SeaHawk was involved, the U.S. Department of Justice says they weren't, and there's no written record of five officers boarding and searching a private vessel.
"We have no record, there is no paper, and there is no investigation," says Gutierrez. "It's all in the jurisdiction of Charleston County. Period."