Remembering the Antiwar.com Lawsuit AgainsttheFBI

Remembering the Antiwar.com Lawsuit Against the FBI

by Michael German

The FBI is one of the most powerful institutions in the United States. It has the mission of protecting the public from serious crime, our democratic system from corruption, and our national security from threats from hostile foreign nations.

The U.S. government has given it enormous power to serve these missions, often under a thick coat of secrecy. Not surprisingly then, throughout its history it has often abused these authorities. Holding it accountable has been difficult. Judges and legislators fear that they would be blamed for curbing its power or reducing its resources if anything later went wrong.

Eric Garris and his late colleague at Antiwar.com, Justin Raimondo, had the courage to stand up to FBI abuse during a time of heightened public fear-mongering about possible terrorist threats.

Their courage to vindicate their First Amendment rights to publish without interference from FBI snooping and false accusations resulted in landmark court rulings that afford better protections to all journalists and publishers.

Garris and Raimondo, along with their ACLU of Northern California attorneys, were able to expose through their lawsuit that bureau officials had misinterpreted Garris's email request for assistance on a discrete matter as a threat to the FBI. Though the documents revealed that the error was quickly rectified through investigation, the false interpretation of Garris's email remained in the FBI's intelligence files, along with older materials the bureau improperly collected more than a decade ago from during Garris's days as a political activist.

For years afterward, FBI agents and analysts would read something they didn't like on Antiwar.com. The false accusation was used to justify new inquiries into Garris and Raimondo's perfectly legal and First Amendment-protected activities.

The decision to take on the FBI wasn't easy. It added untold stress to Garris, who recognized the agencys habit of retaliating against its perceived enemies, and a financial burden to Antiwar.com. The FBI's surveillance of the website temporarily chilled donors and news contributors. While the agency recognized its error in documenting a mistaken interpretation of Garris's email, it refused to remove the flawed intelligence from its files.

Garris's persistence paid off: In getting a fulsome public release of documents revealing the FBI's errors and abuses and, more important, compelling the bureau to remove the flawed and inappropriately collected information from its files.

From my 16 years as an FBI agent I know that the bureau does not like to purge any information out of an odd concern that it might someday, somehow, be useful. Garris's lawsuit proved that reason could triumph over fear, and that courts could compel the FBI to remove improperly collected information from its files.

While the FBI would be reluctant to admit it, Garris's case also helped the FBI by revealing their flawed logic and taking one small step to cleaning up their files. Bad intelligence was not and cannot be help in fighting crime of improving national security.

Michael German is a fellow with the Liberty and National Security program at the Brennan Center for Justice at New York University Law School. He served sixteen years as a Special Agent with the Federal Bureau of Investigation and seven as a civil rights lobbyist with the American Civil Liberties Union.