Blogger Marcy Wheeler discusses the ACLU’s lawsuit – filed on behalf of Antiwar.com – against the FBI for unwarranted surveillance; the FBI memo stating Antiwar.com might be “a threat to national security” and working “on behalf of a foreign power;” Justin Raimondo’s controversial columns after 9/11 about Urban Moving Systems and Israeli “art students” that may have piqued the FBI’s interest; the loss of major donors who worried about being investigated themselves; and evidence that the FBI thinks anti-Zionism is criminal behavior.
Scott Horton interviews Marcy Wheeler
The Scott Horton Show
May 22, 2013
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Scott Horton: All right, y’all. Welcome back to the show. I’m Scott Horton. This is my show. Scotthorton.org is the website. Got all my interview archives there, more than 2800 of them now going back to 2003. Sign up for the podcast feed there, the whole show or the interviews, scotthorton.org, and you can follow me on Facebook, Twitter and YouTube at /scotthortonshow. Be aware, I might say something mean to you. Well, not so much on YouTube, but on Facebook. (laughs)
All right. Our guest today, looks like going to be our only guest today, is the great Marcy Wheeler, emptywheel they call her because that’s the name of her blog, emptywheel.net. Welcome back, Marcy, how are you doing?
Marcy Wheeler: Good. Thanks for having me, Scott.
Horton: Well thanks very much for joining us today. I really appreciate it. And pretty important, the subject matter, to me anyway. Back, what, a couple of years ago, a blogger sued under the Freedom of Information Act looking into Israeli foreknowledge of the September 11th attack, perhaps, kind of a thing, and that ended up leading to the discovery that the FBI had been looking into Antiwar.com. And the way I remember it anyway was they were seemed to have been abusing their anti-terrorism powers with lower thresholds of evidence in order to investigate Antiwar.com. And so anyway, in the intervening years Eric Garris, the head of Antiwar.com, has been trying to get the FBI to turn over anything and everything that they have on Antiwar.com and they’ve been refusing him. So now the ACLU is representing Antiwar.com and suing the FBI for everything, to try to get a judge to force them to turn over everything. And so anyway, you’re a genius and you look at paperwork like this and you always know exactly what it means and what’s most important about it all and how people can understand it and what have you, so I was hoping that maybe you could correct all the parts of what I just said that were wrong and then maybe explain what’s really going on here.
Wheeler: There’s two things going on. One is, there’s a file out there. We have a very good idea of a lot of what’s in there, but we know it exists. Or, a, there’s a memo that was written regarding Antiwar.com, I’ll get to in a second. The second thing is that after having discovered that it exists — as you say, Eric filed to get it from FBI officially, hopefully in unredacted form because a lot of it was redacted and it would be more interesting, hopefully in up-to-date form because it was a couple of years out of date when it was discovered, and FBI said, ‘I don’t have anything.’ And then Eric came back and said, ‘Sure you do, I’ve seen it. Can you double check and double check anything that refers to Antiwar.com?’ And FBI just closed the file.
So, those are the two issues. One is, how did Antiwar.com get investigated in the first place? What was included in there? What was the rationale for gathering all that information together? And then the second one is, FBI refuses to kind of give up what it’s got, claims it can’t find it, and that’s an interesting question by itself.
Horton: Right. Okay. So, which one you want to start with?
Wheeler: I guess let’s start with what’s in there, which is what all this appears to come down to is Justin Raimondo posted a terrorist watch list. And I don’t remember what year that was. Do you remember?
Horton: Oh, that he posted? It would have been late ’01 or ’02, I believe, for that one.
Wheeler: Yeah, basically what it showed is in addition to all these Muslims who were being tracked, there were also these Israelis who seemed to have advance warning of the 9/11 attack. It was out there on the intertubes. He posted it. And in the course of the invest— it was in Newark. This whole thing started in Newark where there were a couple of — well, there was a whole bunch of ties to 9/11, but a Newark FBI agent was investigating a number of things, including, I think, Muslims, not Israelis, but found this watch list and wondered whether Antiwar.com was sharing it with the Muslims who were on the list in an effort to support terrorism. I think that was the logic of the FBI when they started this investigation.
Wheeler: And then —
Horton: Well, and it was a real thing kind of argument along those lines, right, that they investigated a Pakistani and he had been to Antiwar.com before. Not that it’s a place (laughs) — he’d been to that website before.
Wheeler: Right. And that’s the thing you see throughout this memo is that you see a Nazi who had been to Antiwar.com and was kind of recommending the content on it, but not by any shade the ideology on it, to other Nazis, and that should never ascribe guilt to Antiwar.com because dubious people read Antiwar.com, right?
Horton: Well, yeah, the whole thing is all run by Jews and Catholics, so it’s not like we get along with the Nazis very well.
Wheeler: (laughs) Let’s make it very clear!
Wheeler: But that’s the thing is, it’s like, the notion that Antiwar libertarian/anti-Zionist writing is necessarily tied to all of the many groups who might be interested in reading Antiwar libertarian/anti-Zionist writing is nonsense, but that’s where I think FBI investigations have gotten us because, and what’s interesting about this file is that — and you and I, I think, talk about this every week at this point — the FBI has changed its standard for whether or not they can investigate First Amendment material. They changed it in 2008, they changed it in 2011, each time making it easier to investigate people, investigate the First Amendment, either religion or politics, views of people if it’s associated with the Nazis or Islamic terrorists or what have you. But this was back in 2001, 2002, 2003, 2004, when those rules hadn’t been changed yet, so there really should — I mean the rules as they are are terrible but there really shouldn’t have been the ability to go, to make these associations, to say, ‘Oh, Antiwar.com published something that Nazis like and therefore Antiwar.com might have ties to Nazis. Let’s start investigating the donors.’ Which is, the donors are a really important part of this story that’s new.
Horton: Right. Now, well, and hang on one sec because I want to get back to the donors in a minute, but, so, just let me make sure I understand this. What happened was, Antiwar.com linked — Justin was writing one of his articles about the art students, and I see here in his article being reprinted now today at Antiwar.com, he’s linking back to pieces that he did in the spring of 2002, and what had happened was someone inside the government had leaked this paperwork to some Italian banks, I think, saying, you know, ‘These are some people that we’re interested in in the case of 9/11,’ or something, but very vaguely, right. It wasn’t accusing people on the list of doing it necessarily or anything like that. But then all Justin did was link to it — or I guess not, they have republished it on Antiwar.com servers, but it’s not like the leak was to them directly in the first place or anything. They were basically just republishing something that was already in the public domain —
Horton: — and then so they took that, and then they said, ‘Oh, yeah, also a Muslim read Antiwar.com one time, oh yeah and also a Nazi read Antiwar.com one time, and so on that basis we are recommending a further counterterrorism investigation,’ which is I think lower thresholds of evidence than any kind of regular criminal investigation, ‘we’re recommending a counterterrorism investigation including into who’s funding Antiwar.com, because apparently that’s what they’re into is providing aid and comfort to Nazis and Muslim terrorists.’
Wheeler: Yeah, that’s the really interesting thing about the FBI’s response is the outcome of this memo is that they first of all were going to have the people whose FBI job it is to sit and troll the Internet all day every day sit and troll Antiwar all day every day. So for a while we assume in this time period somebody at FBI was being paid to read Antiwar.com. Of course they probably weren’t donating, so it’s all, you know, very sketchy. (laughs) But that’s one thing is that we think the FBI was continuing to read Antiwar.com just to see whether anybody did anything suspicious. But at the same time there was kind of the institutional move to get San Francisco, to get where Justin and Eric both live, to do some further investigation, and because of this standard of investigation, that record should have been kept, and it should have been kept under their names, at least my understanding of the way FBI files work, and therefore you FOIA it and it should be there. Right? And FBI says there was nothing. It should be there. Not only should it be there, but it should be there under their names, as opposed to the rest of this, the rest — the Nazis and the Islamic guy who read Antiwar.com. There was a peace protest in here which I think is important.
Wheeler: The rest of that I think would legitimately be considered references to Antiwar.com, except that the end of this memo seems to suggest that the next thing the FBI did was further investigations of Antiwar.com, and therefore there should be a file somewhere, and that file apparently can’t be found by the FBI.
Horton: Mmhmm. So they’re claiming that nothing happened after this, but also this didn’t happen either. (laughs)
Horton: They don’t have a record of either, of anything.
Wheeler: Right. And they’re not giving it up. And that’s not credible.
Horton: Right. Well, and so that’s why the ACLU decided that, ‘Hey, this looks like a good time.’ And now if I remember a couple of years ago when we talked about this, you said this was actually the first time that we had on record where the FBI, where we knew — there were times where everybody kinda knew or speculated or were pretty sure, but this, here we can prove that the FBI was using their counterterrorism powers against a media organization in the United States.
Wheeler: Right. Because most of the associated investigations — obviously the Islamic, but the Nazi would be domestic terror — were terrorism related, and that was, it was out of that concern, as we understand it, that the FBI did any further investigation on the notion that the ideology, that terrorists were glomming onto Antiwar.com whether or not the ideology fit and therefore Antiwar.com might be spreading terrorism. I mean, that was sort of the logic. And I don’t — you know, there’s no indication — for example, there are references to FISA files in the memo itself, but those appear to be FISA records on, say, [unclear] Pakistani. They don’t, you know, it doesn’t appear that they were wiretapping Justin and Eric, but that these were all in this reference pool that they were kind of drawing this picture of Antiwar.com as associated with a bunch of people that Antiwar.com wasn’t affirmatively associated with at all except for maybe the peace protest in England —
Wheeler: — that somehow got in the file. And that’s another thing that I find really interesting.
Horton: Is that they even bother bringing up a peace protest in England in this context?
Wheeler: Well, I mean — you know, they’re not supposed to be surveiling peace protests, and it’s clear, a) that they did surveil a peace protest, and, b) then tied it to Antiwar.com as well. I mean, why should a peace protest be in the FBI files as a means for kind of alleging suspicion in the first place?
Wheeler: It should — it should — if you have a suspicion —
Horton: Because to them it’s the same thing as someone at a Klan rally mentioning your writing too, which is just as ridiculous, which I guess goes to my next question too which is, and I guess I’m just asking you to speculate now, but it sounds like if they’re denying that what we know exists, because we’ve seen it with our own eyes exist, does that indicate to you that they probably did go further with this investigation based on this same kind of superfluous stuff? Or perhaps the next FBI agent in the chain read this thing and said, ‘This is ridiculous,’ and maybe it just died a death right there.
Wheeler: It’s unclear. I mean, there’s no way that the file we know exists should have been deleted. So that should be there and, you know, maybe whoever did the search on that particular day screwed up. That’s the most generous way of interpreting this, I think. The other, you know, the way that I understand, FBI responded to Justin and Eric basically by just closing down the inquiry even after they said, ‘No, double check would you,’ it doesn’t seem to permit some of the — because the FBI is allowed, when you FOIA something, if there’s an ongoing investigation, to kind of lie to you about whether they have any documents. If you FOIA information about, say, an informant, they can lie to you about whether they have documents. If there’s an ongoing intelligence issue, they can lie to you about whether they have got documents. They were caught doing so in, if I remember correctly, 2011 in L.A. — sorry, no, it became clear in 2012 because a judge kind of made them admit it, but they got caught in 2011 and were going to change the way that they lie to people when they FOIA something that they were unwilling to give you, that they were legally protected from giving you, but it doesn’t appear that that’s what’s going on here because the lies aren’t the lies they tell you if they’re trying to hide things. Does that make sense?
Wheeler: No, it doesn’t. (laughs)
Horton: Yeah, yeah, I get you.
Wheeler: Yeah, I mean, so the point being that they, there was an active investigation into Eric and Justin and they FOIAed their file. They might get a response back from the FBI that says we’ve got nothing, but to just close the file, just close the inquiry, isn’t how we understand that the FBI has been dealing with those kinds of FOIA requests.
Horton: Right, and the thing is too is they’ve answered definitively that ‘We don’t have anything on A, B and C Antiwar.com employee’ already.
Horton: So it sounds like if they had really pursued this thing for that long then it would have encompassed more than just Justin and Eric since there’s, you know, seven of us or whatever.
Wheeler: Right. Right. Right. So that’s the thing. We don’t know why. I think it’s going to be really hard for the government just to — I mean, this will be an interesting lawsuit, because, you know, the documents are there and it’s going to be really hard — the documents are not only there but they’ve been released under FOIA in the past, so it’s going to be impossible for the government to say, ‘Well, we can’t release these under FOIA here,’ with the exception that what happened in the interim — and I forget, I forget which case this was attached to. I think it was actually the Israelis. They were investigated after 9/11. The investigation was closed. The investigation was reopened a number of years later, and that made those documents sensitive in the interim here. And so, I mean, that’s the only other possibility that I can think of is that investigation is ongoing and therefore they’re unwilling to — you know, either ongoing or the government is claiming it’s ongoing to protect the Israelis — and therefore they’re not going to give the documents because the file is tied to an ongoing investigation that they’re pretending doesn’t exist.
Horton: Yeah, which — I don’t know. The FBI picking that thread back up about possible Mossad foreknowledge?
Horton: I don’t know, that doesn’t sound right, in the political context that we live in right now.
Wheeler: No, but I want to interrupt because there’s actually — do you remember a couple of weeks ago there was a guy in Virginia who was picked up for wanting to fight with Syrian rebels —
Wheeler: — with the Al Qaeda —
Horton: Two of them, right? Two different guys I think have been indicted.
Wheeler: Well, there’s two guys. There was one in Illinois and there was one in DC. But the stuff in the complaint on the guy in the DC area actually cited his anti-Zionist views as part of the proof that he was violent. And that was notable, I think, and it’s not received enough attention in the United States, that the FBI would suggest that anti-Zionist views constitute some kind of criminality — constitute some evidence that might be tied to criminality.
Horton: Now, is this the same one who his father said, ‘What are you talking about? He works for the CIA! You can’t indict him for that!’
Wheeler: Yeah, that’s exactly the guy. Yeah.
Horton: That was really believable too, because what’s he doing? He’s over there backing the suicide bombers. Well, isn’t that Barack Obama’s mission that he sent him on? Sounds like it.
Wheeler: Right. I mean, and I sort of wonder whether this guy got caught with the CIA getting ahead of themselves, or David Petraeus going off on his own and now they’re trying to reel him back in and now he’s screwed, but all that aside, I mean, it’s disturbing that — and I’m going to quote directly, that Haroun (sp?) has — one of the things the FBI was investigating him for was saying, ‘The only good Zionist is a dead Zionist.’ Violent, sure. But anti— it’s an anti-Zionist statement and they’re using that to establish his criminality. I mean, I just want to throw that out there because —
Horton: Yeah, well, and that’s still — that’s still a far cry from, ‘And I’m on my way to go and create some dead ones now.’
Wheeler: Right. Exactly. And that’s not even what Al-Nusra, what the terrorists in question are doing.
Wheeler: They’re trying to create dead Assad loyalists, not dead Israelis. So it’s just — so it’s just — I mean, when I heard that Antiwar was suing, I thought that that’s important to bring back into this conversation because if the FBI is going to start claiming that anti-Zionist views are criminal, that’s a problem.
Wheeler: Even just, you know, just political opinion. And the notion that the FBI would inherently protect Israel from any, any, you know, contrary opinions in the United States is pretty scary.
Horton: Yeah, especially when the facts are so anti-Zionist (laughs), you know what I mean? Well.
Wheeler: Well, never let the facts get in the way. (laughs)
Horton: Well, so now whatever happened to the Pakistani in this case?
Wheeler: We don’t know, because we don’t know — I don’t think we know exactly who it was, do we?
Horton: I don’t know. If anybody does, it’s you, but I guess not.
Wheeler: Well, I’d have to look back. I think that name was hidden in the original FOIA. So. I mean, it was a Pakistani living in Newark. We don’t know.
Horton: All right. And now, so these new guidelines. As you said, this is just administrative law, right? The attorney general’s deputies write up memos that say, ‘Your speech, your religious beliefs, are now fair game to begin an investigation,’ which actually now that I think about it, didn’t they rewrite the guidelines so broad that actually thin air is reason enough to start an investigation of people, that they have completely legalized fishing expeditions in all cases now. No?
Wheeler: What they’ve legalized are called assessments. And they’re just sort of, ‘Do some preliminary investigation of somebody, and don’t write it down.’ I mean, that’s the thing. If you don’t necessarily have to write it down, it might be, ‘Well, you know, I think this Scott Horton guy smells funny so I’m just going to look into a couple of databases and see if there’s anything there.’ That’s called an assessment. It’s the lower level of investigation that was kind of institutionalized in 2008 and 2011 allows to do this without documentation. And at one level the no documentation is good because it means after that FBI guy investigates you, there’s no, you know, that record isn’t there or, say, legal background checks or something like that. But it also means nobody has a way of double checking what the FBI is doing, what kind of, you know, what kind of witch hunts they decide to start on their own and do without any kind of documentation, so it’s kind of a double-edged sword there.
Horton: Mmhmm. Well and you know, this whole Reverend ‘Needem Myler Mohler,’ whatever, however you say it, the German minister who said, you know, ‘First they came for the Communists, then the Jews, then whoever, and then by the time they came for me there was no one left to stick up for me,’ that kind of thing? This, all of this has been going on a long time against Muslims in this country, the kinds of things that are happening to the Associated Press now, the kind of things that are, you know, beginning to catch people’s attention, it’s basically been the case — well, like for example, if I wanted to create a new Austinites for Peace or something like that, I would just have to expect that there are FBI agents, you know, showing up and pretending to be my friend there just to at least spy on me and maybe try to entrap me into a crime or something like that. But that’s the same thing as going to a mosque on Friday too, the guy right next to you might just be an undercover cop looking to try to at least spy on you and maybe entrap you into something that he can destroy you over. And, you know, sooner or later that kind of stuff starts blowing back in all directions, you know. As long as the majority of us tolerate it because we are not the ones being targeted, we are ultimately setting ourselves up for the very same kind of treatment.
Wheeler: Right. I mean, I think that with regard to the Antiwar.com story, there are two issues. One is, how is the press being treated? Because what this shows is that the press was being treated as an ideological tag, if you will, you know, going back now eight years, and then it happened to WikiLeaks. That’s not exactly what’s happening to Fox and AP now, but it is this very aggressive treatment of the press as not, you know, of what is written as suspect. But then there’s the other thing, and we know — you know, Robert Mueller, every time he goes to Congress, boasts about how FBI has turned into an intelligence agency since 9/11, and what that actually means is the FBI has turned into a giant network of informants since 9/11, and yeah, it started focusing primarily on Muslims but they are no longer focusing exclusively on — Muslims and to some extent, you know, Nazis, right?
Wheeler: And the Nazi thing, for better and for worse, is kept in check I think because the political blowback you have from it — in other words, Tom Coburn did a really important investigation of fusion centers and he did it because he was learning that right-wingers were being investigated, certain organizations in the right wing were being investigated, and that led him to investigate. That led the Department of Homeland Security to kind of back off on that front, but there’s no champion for Muslims in that realm. And there’s frankly not even a champion for, say, Occupy Wall Street people who are, people who are challenging economic status quo in this country, and so we expect the informants, you know, and —
Horton: Well, they conflated regular conservatives with the radical right too willingly in that first report. They didn’t — they were smart and they didn’t do that with Occupy and go ahead and tar all Democrats as, you know, radical revolutionary dangerous people the way they did the rest of the Occupy movement, I think, was the difference in that one, but.
You know, I ought to join this lawsuit and sue for lost wages when I see this whole thing about how they lost all their donors. Well I got laid off last summer, lost my — boy, you have no idea how expensive my wife’s COBRA health insurance is. I ought to be suing the hell out of the FBI for that. Because like you were saying, I interrupted you and we went in a different direction, but that’s a big part of this is that they say in the documents, ‘Hey, I wonder who’s donating to Antiwar.com?’ Which means that I just made it worse just now, people stop donating, that scares the hell out of regular peaceful people.
Wheeler: Right. And that’s a really interesting side of this lawsuit, I think. Because Antiwar.com has documented evidence and they named three big donors — $75,000 a year, right? something like that — who withdrew, who stopped donating because this FBI document said, ‘I’m going to go investigate the donors to this organization.’ And so I think Antiwar.com has a very good case to be made that FBI’s improper investigation of Antiwar.com had real problems financially for the organization and effectively moved toward diminishing its influence, not because of any criminal conduct but solely because of this kind of fishing expedition that the FBI went on.
Horton: That’s the great Marcy Wheeler, emptywheel.net. Thank you, Marcy.
Wheeler: Thanks so much.