On Tuesday, the ACLU filed a lawsuit against the FBI on behalf of the libertarian, anti-war website antiwar.com. The suit was mounted in reaction to the FBI’s lack unresponsiveness to the website’s request through the Freedom of Information Act (FOIA) for the release of records being kept on its editorial staff.
In the wake of the suit, antiwar.com has since changed its homepage to display a message to their readers explaining the case, coupled with a background piece on the suit by Kelly Vlahos.
The issue of the FBI’s potential surveillance was first brought up in 2011, when a reader of the site filed a FOIA request that yielded a series of mostly redacted FBI documents, which were then published online. These documents, dated as far back as April, 2004, suggest the FBI started keeping tabs on antiwar.com after editorial director Justin Raimondo published several pieces online linking to terrorist watch lists after 9/11.
In a 2011 piece published in response the documents’ release, Raimondo described how the documents contain (though the author and article names are officially redacted) summaries of articles he wrote to do with terrorism, but providing no grounds for the recommendation of a primary investigation on antiwar.com and its editorial team, and whether their activities “constitute a threat to National Security on behalf of a foreign power.” While the documents do acknowledge the legal protection afforded antiwar.com by protected speech laws, Raimondo stated that there is no clear basis for their recommendations, at least in what has been made publicly available.
Antiwar.com subsequently filed its own FOIA request to have the entirety of the mostly withheld records released last April, to which the FBI has not responded, thus sparking the noncompliance suit. According to FOIA, antiwar.com should be able to access any and all records on their website and personnel, unless the records fall within nine exempted categories (listed here).
While most of these exemptions can be ruled out immediately (unless the redacted documents do protect important geographical and geophysical information), as blogger Marcy Wheeler writes, it is possible that the documents have to do with investigations conducted by other departments, which would make them exempt from FOIA.
That possibility aside, antiwar.com seems to have a case. According to the Reporters' Committee for Freedom of the Press, the FBI’s lack of response can legally warrant a lawsuit, and as long as “good cause” can be demonstrated, the information will likely be released. In this case, that would probably be the financial losses antiwar.com has suffered since the surveillance’s discovery. As Vlahos pointed out in her article, several donors have ceased giving to the website out of fear that the FBI may be monitoring donors as well, totaling in a yearly loss of $75,000 in otherwise expected donations since 2011.