Court: FBI Must Destroy Memos Calling Antiwar.com a Threat

The ruling comes after an eight-year battle over secret surveillance of the popular website after 9/11

Kelley Beaucar Vlahos / The American Conservative

(September 12, 2019) — In a major victory for Antiwar.com, free speech and journalism, a federal appeals court has ruled that the FBI must expunge surveillance memos that agents had drafted about the website’s co-founders Eric Garris and Justin Raimondo in the early years following the 9/11 attacks.

“It’s been a long fight and I’m glad we had an outcome that could might affect future FBI behavior,” said Garris, who runs Antiwar.com, based in the San Francisco Bay area. “I just wish Justin was still here to know that this has happened.”

Raimondo, 67, passed away in June from a long bout with cancer. He and Garris had sued the FBI in 2013 demanding it turn over all the memos and records it was keeping on the two men and the website, which has been promoting anti-interventionist news and views from a libertarian-conservative perspective since 1995. (Full disclosure, this writer was a regular columnist for Antiwar.com beginning in 2009).

They won their case, and in 2017 the FBI agreed to turn over all the memos and settle their legal fees, $299,000, but the final expungement of two key memos involving intelligence gathered on the men and Antiwar.com, had yet to be expunged from the agency’s record.

As this writer pointed out after the 2013 lawsuit was launched, the years following the 9/11 attacks were particularly heady for the FBI. Thanks to the Patriot Act, the federal law enforcement agency got sweeping new powers to spy on Americans, and they used those authorities with gusto, and harassing activists and journalists—even mainstream organizations like The Associated Press—became de rigueur.

It all began when an observant reader brought a heavily redacted 2004 memo to Antiwar.com’s attention in 2011. It was part of a batch of documents the reader had obtained through FOIA requests. It was clear from the documents’ contents that the FBI had been collecting information and records on Raimondo and Garris for some time.

At one point, the FBI agent writing the April 30, 2004 memo on Antiwar.com recommended further monitoring of the website in the form of opening a “preliminary investigation … to determine if [redaction] are engaging in, or have engaged in, activities which constitute a threat to national security.”

Why? Because the website was questioning US war policy (for those who do not remember, if you took an anti-war position anytime between September 11, 2001 and 2004 you were considered so far Left you couldn’t see straight, or you had to be a subversive, if not a traitor to your country. It is clear from the memos the agents involved were erring toward the latter in regards to Antiwar.com.

Agents noted that Antiwar.com had, or linked to, published counter-terrorism watch lists (already in the public domain). The FBI noted at least two of Raimondo’s columns and wondered openly, “who are (Antiwar.com’s) contributors and what are the funds utilized for?” This, after acknowledging there was no evidence of any crime being plotted or committed.

Other things noted in the documents::

— Garris had passed along a threat he received on Sept. 12, 2001 from a Antiwar.com reader obviously disgruntled with the website’s coverage of 9/11. The subject line read, “YOUR SITE IS GOING DOWN,” and proceeded with this missive: “Be warned assholes, ill be posting your site address to all the hack boards tonight … your site is history.”

Concerned, Garris forwarded the email to the FBI field office in San Francisco. Garris heard nothing, but by January 2002, it turned up again, completely twisted around, in a secret FBI memo entitled, “A THREAT BY GARRIS TO HACK FBI WEBSITE.”

It turns out this “threat” went on to justify, at least in part, the FBI’s ongoing interest in monitoring the website.

— The FBI took interest in Raimondo’s writing about a 2001 FBI investigation of five Israeli nationals who were witnessed smiling and celebrating and taking pictures of the burning Twin Towers from a rooftop perch across the river from Manhattan in Union City, New Jersey, on 9/11. After witnesses called the police, the individuals, who all worked for a local moving company, were taken into custody and grilled by FBI and CIA for two months after it was deemed their work visas had expired. They were eventually deported without charge.

Raimondo, in writing about the case in 2002, linked to an American-generated terror watchlist (which had been published elsewhere on the Internet) that went out to Italian financial institutions and included the name of the man who owned the New Jersey moving company in question.

— The FBI noted Antiwar.com was cited in an article, the name of the author redacted, about U.S aid to Israel.

— They also noted that Raimondo had appeared on MSNBC to talk about his opposition to the Iraq War.

— It also cited an article that listed Antiwar.com as a reference was handed out in 2002 at a “peaceful protest” at a British air base in the UK.

— The FBI was watching a member of a domestic neo-Nazi group who had “discussed a website, Antiwar.com” while encouraging fellow members at a conference to “educate themselves” about the Middle East conflict.

— The agency said a special agent’s review of hard drives seized during an investigation of an unnamed subject, revealed that the subject had visited Antiwar.com between July 25, 2002 and June 15, 2003, “among many other websites.”

The FBI acknowledged it searched the Web, as well as Lexis-Nexis, the Universal Index (FBI central records), the agency’s Electronic Case File, Department of Motor Vehicles and Dunn & Bradsheet (credit reports) for information on Antiwar.com and for “one or more individuals” working for the website.

Looking back, it’s hard to fathom how such tiny (Constitutionally protected) crumbs led the FBI to the conclusion that Garris and Raimondo, two dedicated activists (Raimondo was also a prolific author) with decades of time in California’s political trenches, might be a “threat to national security,” but there you are. The website, which is a non-profit and relies heavily on individual donors, lost three significant benefactors since the story broke in 2011, resulting in the lost of $75,000 a year from 2011 to 2013.

“The FBI’s surveillance has impacted our clients’ ability to maintain support for their website and has impacted their editorial choices– exactly the type of harm the First Amendment is supposed to protect against,” Julia Harumi Mass, Antiwar’s ACLU attorney at the time, told this writer in 2013.

The case decided on Wednesday revolved around two remaining memos that the FBI had so far refused to expunge. One involved the call Garris made to the FBI in 2002. The US Court of Appeals for the 9th Circuit in Northern California found that the government did not have a compelling law enforcement reason to keep them.

“Maintenance of a record that describes only First Amendment activity and does not implicate national security is not pertinent to the FBI’s authorized activities,” the court concluded. “Maintenance for maintenance’s sake, without pertinent to national security or other authorized law enforcement activity, is precisely what the (Privacy) Act was intended to prevent.”

Garris said he was relieved and elated that the court was able to end this ugly chapter for the website (though the government as the right to appeal). “I would hope this precedent will help prevent the FBI from doing these things again but we know it won’t … it won’t.”

Kelley Beaucar Vlahos is Executive Editor at TAC. Follow her on Twitter @Vlahos_at_TAC

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