SAN FRANCISCO (CN) – The FBI must expunge one of two threat assessment memos tied to the editors of Antiwar.com, the Ninth Circuit ruled Wednesday, following the death of one of the men.
Journalists Dennis Raimondo aka Justin Raimondo and Eric Garris sued the agency in San Francisco federal court in 2013, claiming they learned from a Freedom of Information Act request that the FBI conducted a “threat assessment” of them but wouldn’t tell them any more about it.
Garris and Raimondo described Antiwar.com, launched in 1995 to oppose U.S. intervention in the Balkans, as an “an anti-interventionist, pro-peace website with a purely journalistic mission: revealing the truth about America’s foreign policy.”
The response to their FOIA request included an FBI memo revealing that the agency conducted the assessment of the two men and Antiwar.com in 2004, and that an FBI analyst had suggested looking into whether their activity could “constitute a threat to national security on behalf of a foreign power.”
Following a nearly four-year battle, the FBI in 2017 agreed to turn over records it created when it spied on the journalists and pay $299,000 to settle their attorneys’ fees.
Though Garris and Raimondo agreed to drop the FOIA claims, they stopped short of dropping two other claims under the Privacy Act.
In the latest development Wednesday, the Ninth Circuit affirmed and reversed in part a federal judge’s summary judgment in favor of the FBI. The panel ruled that because the FBI had not met its burden of demonstrating that the 2004 memo was pertinent to an ongoing law enforcement activity, it must be expunged.
“Because we so hold, we need not and do not address the question of whether the creation of the 2004 Memo also violated the Privacy Act,” U.S. Circuit Judge A. Wallace Tashima, a Bill Clinton appointee, wrote.
A second memo, which detailed a Halliburton shareholder meeting and listed Antiwar.com as part of a catalog of sources on the meeting, was not expunged because it was pertinent to ongoing law enforcement activity, the panel ruled.
Specifically, the 32-page ruling states, the lower court did not abuse its discretion in granting a protective order to the FBI precluding Garris from deposing certain retired FBI agents.
“The district court granted the FBI’s motion for a protective order without prejudice, reasoning that it would be premature to depose the former agents before learning what evidence the government would rely on, given that it would be burdensome to the retired agents,” Tashima wrote.
U.S. Circuit Judges Marsha Berzon and William Fletcher, also Bill Clinton appointees, joined in the opinion.
Plaintiffs’ counsel on Wednesday also filed a notice of death for Raimondo, who died June 27. No party has been or will be substituted for the editorial director, counsel noted.
Antiwar.com is sponsored by the Randolph Bourne Institute, a Bay Area organization that promotes “a non-interventionist foreign policy for the United States as the best way of fostering a peaceful, more prosperous world,” according to its website.