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FBI v. The First Amendment: The US Government's Investigation of Antiwar.com


Antiwar Magnify

Federal Bureau of Investigation documents released last week reveal the FBI investigated Antiwar.com, a website regularly publishing content critical of US foreign policy, for at least six years based on the content and audience of the antiwar.com website, as well as an asinine mistake by the FBI.

According to Julia Harumi Mass of the American Civil Liberties Union of Northern California, which is representing Antiwar.com in a lawsuit against the FBI, the FBI produced in response to a document request in the lawsuit documents confirming "that the FBI targeted and spied on Antiwar.com [and the website's founding editors Eric] Garris and [Justin] Raimondo based on their First Amendment protected activity and kept records about that activity in violation of federal law." Mass elaborates on the anti-press freedom justifications for the investigation:

One of the factors that prompted the FBI to investigate the editors of the online magazine was that Justin Raimondo writes under this pseudonym. The content of a writer’s published opinions and whether they write under a pseduonym [sic] should never be used to characterize someone as a potential threat to national security, or justify an FBI investigation. The First Amendment protects anonymous speech too. News articles and the comments of the public should not be included in FBI intelligence files unless they’re necessary to a real criminal investigation.

The second flawed factor that prompted the FBI investivgation [sic] is that “many individuals worldwide…including individuals who are currently under investigation” view the website. Presumably people around the world, “including individuals who are currently under [FBI] investigation” view all kinds of websites and news sources. Being part of a successful media outlet should not make a journalist suspicious and should not be the basis for government surveillance.

In addition, Mass points to a mistake as a third factor prompting the investigation:

The third flawed and incorrect factor was the FBI’s mistaken conclusion that Eric Garris had threatened to hack the FBI website. In fact, Garris reported to the FBI that he was the recipient of a hacking threat to Antiwar.com. After reporting this threat, he was instructed to forward the email to the FBI, which he did. The FBI later concluded that Garris had threatened to hack the FBI website and placed him under suspicion.

It is an odd mistake for the FBI to interpret Garris's reporting of a hacking threat against the Antiwar.com website as a threat by Garris against the FBI's website. The flub up could have been rectified and an illegitimate investigation potentially prevented by just double-checking Garris's communication with the FBI. Instead, the asinine mistake remained uncorrected, allowing the investigation to proceed with a justification not rooted in concern about First Amendment-protected expression.

Of course, Garris, in reporting a website hacking threat to the FBI, was doing just what the FBI prominently recommends on its home page:

Reporting Crime
You can report violations of U.S. federal law or submit Information in a criminal or terrorism investigation as follows:
Submit a tip electronically
Contact your local FBI office
Contact your nearest overseas office
Report online crime or e-mail hoaxes

The FBI investigation of Antiwar.com began in 2002, the same year Attorney General John Ashcroft released new guidelines for domestic investigations that did away with restraints built into prior FBI guidelines adopted after examination of FBI and other government entities' abuses by the 1976 Church Committee investigations. The Electronic Privacy Privacy Information Center (EPIC) relates here the history of US attorneys general amending the 1976 guidelines periodically over the years, including making significant changes in 1983, to piecemeal strip away liberty protections. In an informative memorandum, which may be read here, ACLU Washington National Office Legislative Counsel Marvin J. Johnson explains how the 2002 guidelines changes allowed the FBI "to spy on domestic groups even when there is no suspicion of wrongdoing" and FBI investigations to "continue longer, with intrusive techniques and with less oversight, even when they produce no evidence of crime."

Of course, also throughout 2002, the George W. Bush Administration, along with advocates in Congress and the media, was working to increase public support for a proposed war in Iraq and maintain public support for an ongoing war in Afghanistan. A website featuring content critical of US foreign policy could hinder these public relations efforts.

Many Americans hoped that the election of a new president and his appointing of a new FBI director would end abuses such as the investigation of Antiwar.com and its founding editors based on shoddy and legally-dubious justifications. However, President Barack Obama has promised more of the same—not change—at the FBI. Obama first extended by two years the term of President George W. Bush appointed FBI Director Robert Mueler, while praising Mueler for setting "the gold standard" for leading the FBI. Next, Obama nominated for the position James B. Comey, Jr. who, at the nomination announcement, effusively praised Mueller's work as director.

Now that public opposition has prevented a US attack on Syria, will FBI investigations of individuals and groups opposing US foreign interventions increase?

As with US wars, strong public opposition is key for restricting the US government's illegitimate investigation and harassment of people and groups that oppose US government policies and actions.


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