SAN FRANCISCO (CN) - The FBI's power to investigate people based purely on their speech was tested in a Federal Court hearing Thursday, with the judge seemingly inclined to side with the feds on the issue.
Two antiwar news editors who sued the FBI in 2013 say the decision to investigate them lacked a legitimate law-enforcement purpose and files on them should therefore be purged.
Dennis Joseph Raimondo aka Justin Raimondo and Eric Anthony Garris, editors of the Antiwar.com news site, sued the FBI in 2013 for allegedly brushing off their FOIA requests and violating the Privacy Act.
The Privacy Act requires the government only hold information on people that is "relevant and necessary to accomplish a purpose of the agency."
The editors say the FBI had no legitimate basis to suspect them of any criminal wrongdoing and that they were investigated purely because of their First Amendment activities.
They also say the FBI improperly invoked exemptions to withhold redacted portions of files it released after the suit was filed three years ago.
Three FBI memos from 2004, 2002 and 1972 were the focus of debate between civil rights attorneys and the government during Thursday's hearing on dueling motions for summary judgment.
The first file at issue was a threat assessment conducted on the two editors and their website in 2004. The FBI says the publishing of a list of active FBI investigation targets on Antiwar.com prompted the threat assessment.
The editors' attorney Laura Hurtado argued publishing the watch list was a protected First Amendment exercise, which cannot serve as the basis for launching a criminal investigation under the Privacy Act and federal guidelines.
U.S. Magistrate Judge Jacqueline Scott Corley disagreed and posed a hypothetical, asking if the government should be allowed to investigate had a group known to be sympathetic to the Islamic State published an FBI watch list.
"You're asking the court to rule in a way that restricts what the FBI can do to investigate," Corley said.
"That's all the FBI does these days is investigate First Amendment activity," Corley added. "We get a lot of warrants for information posted on Facebook."
Because the assessment revealed the antiwar editors did not pose a threat, Corely said it appears "what happened here is exactly how it should work."
Another argument focused on a January 2002 memo that inaccurately stated Garris had threatened to hack the FBI website. Garris had actually contacted the FBI about an email he received threatening to hack Antiwar.com.
In February 2014, the FBI addressed that error by creating a corrective action file noting that Garris never threatened to hack the FBI.
U.S. government attorney Jennifer Wang said the corrective notice shows up any time a search is performed for Garris' name, but Hurtado argued the inaccurate file should be expunged or altered to clearly indicate that her client never threatened the FBI.
Deleting the file would also erase knowledge that the FBI ever committed such an egregious error, Corley said, but the judge appeared swayed by the plaintiffs' argument that the error should be noted on the original file, despite the government's objections.
"If it was somehow attached to the original so they're always together, I think that would probably satisfy them as well," Corley said.
The third file up for debate was a record on Garris attending an anti-Vietnam War protest in 1972.
Continuing to maintain a file on protesters who took part in an antiwar demonstration more than 40 years ago is "improper" and violates the Privacy Act, Hurtado argued.
The government cited a law-enforcement exemption to justify continuing to maintain that document, which was released with redacted third-party names and details.
Corley indicated that the FBI should be allowed to maintain historic records that might become pertinent to a future investigation, noting that if someone makes a threat against the president, the FBI should be able to look through its records and see if that person made similar threats 30 or 40 years ago.
"You're saying the FBI cannot maintain records, even though 99 percent has nothing to do with your client and applies to other people," the judge said of the 1972 memo.
Regarding the government's citing law-enforcement exemptions to justify redacting third-party names and details from files, Hurtado said the government must specify the nature of its "ongoing investigations" in order to keep the information secret.
Hurtado pointed to the 1991 Ninth Circuit case, Wiener v. FBI, which found the FBI failed to supply facts to justify its claim that John Lennon, the subject of a FOIA records request, was under investigation for obstruction of justice.
"The government represents the information redacted represents people in an ongoing, unspecified investigation," Corley said. "It's hard for me to read that statement as consistent with Wiener."
After bringing the nearly two-hour hearing to a close, Corley said she would rule on the Privacy Act claims but will need more details from the government before she can issue a final ruling on the FOIA exemptions.
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