Judge Won’t Let FBI|off the Hook Yet

SAN FRANCISCO (CN) — Seeing no law-enforcement objective in the FBI's "vague" references, a federal judge ordered the bureau Tuesday to confer with editors accusing it of illegally spying on AntiWar.com.

Dennis Joseph Raimondo aka Justin Raimondo and Eric Anthony Garris sued the FBI in 2013. Their site Antiwar.com was founded in 1995 to oppose U.S. intervention in the Balkans. They describe it as "an anti-interventionist website that publishes news and opinion articles about U.S. foreign and military policy."

In August 2011 they learned they were under federal surveillance when documents about them were posted on the nonparty website Scribd.com.

"Included in the posting was a FBI memorandum that names both plaintiffs, states their positions of employment at Antiwar.com, describes their First Amendment activities, and recommends opening a preliminary investigation," the editors said in their lawsuit.

An FBI analyst, according to a heavily redacted 2004 memo, suggested the investigation probe whether the editors "are engaging in, or have engaged in, activities which constitute a threat to National Security on behalf of a foreign power," the complaint states.

The editors said the FBI lacked a legitimate law-enforcement purpose and that its files on them should be purged.

Raimondo and Garris said they submitted Freedom of Information Act requests in response to the Scribd.com discovery, which the FBI brushed off.

"After an administrative appeals process, plaintiffs perfected their requests in May 2012 to include a clear request for records referring or relating to Antiwar.com," the editors said. "A year later, plaintiffs have not received a substantive response for records relating to themselves or Antiwar.com."

The ACLU entered the fray in November 2013, asking a federal judge to order the FBI to turn over documents on Antiwar.com and the editors.

Raimondo and Garris once ran a bookstore in San Francisco called Libertarian Books and Periodicals, which was raided in 1981 by the San Francisco Police Department. The two were arrested and won a civil lawsuit stemming from the raid.

In March this year, U.S. Magistrate Judge Jacqueline Scott Corley seemed inclined to side with the FBI on dueling motions for summary judgment, but did not issue a final ruling on the FOIA exemptions.

On Tuesday, Corley denied without prejudice both parties' cross-motions for summary judgment on the editors' FOIA and Privacy Act disclosure claims, and granted the government's motion for summary judgment on the editors' claims for relief under Sections (e)(7) and (d)(2) of the Privacy Act.

"The FBI's vague reference to everything from 'civil rights matters' to 'violent criminal threat, domestic terrorism investigations, international terrorism investigations, and counterintelligence investigations' does not adequately identify a law enforcement objective which justifies withholding under Exemption 7," the 25-page ruling states. "For this reason alone, defendant's motion for summary judgment as to Exemption 7 and the related Privacy Act violation must be denied."

Corley found the FBI's threat assessment was conducted pursuant to 2003 attorney general's guidelines for FBI national security investigations and foreign intelligence collection, which "authorized the FBI to investigate threats to national security and established a threat assessment as the 'lowest legal investigative activity.'"

"The FBI reviewed plaintiffs' publicly available articles and postings, as well as documents within the FBI's and other databases, to compile its threat assessment," the ruling states. "Plaintiffs had to have been aware of the possibility that their articles and postings could be reviewed by law enforcement."

Corley slated a case management conference for June 9. An updated joint case management conference statement is due by June 2.

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