FBI and DOJ prepared takedown of "Iranian" American Herald Tribune website
with years of legal chicanery
GARETH PORTER.NOVEMBER 20, 2020
INFORMATION WARS
IRAN
The new powers claimed by the FBI to seize "Iranian" outlets could have
serious implications for the basic American freedom to publish and access
news and opinion
The US Department of Justice announced on October DATE it had seized the web
domain of the American Herald Tribune (AHT), an alternative media outlet
that published editorials criticizing US foreign policy. As The Grayzone
reported, AHT published articles primarily written by Americans under their
own names, often as original content. 128 other internet publications based
in Iran were also taken down by US law enforcement.
The US Department of Justice (DOJ) and the FBI engaged in more than two
years of legal chicanery to justify its unprecedented seizure of AHT and the
other Iran-based websites. Among many intricate maneuvers, they sought to
link AHT and the other websites to Iran's Islamic Revolutionary Guard Corps
(IRGC), thus portraying them as accessories to terrorism and in violation of
US laws regulating foreign influence operations. The FBI also relied on a
public relations campaign to frame the Iranian websites it targeted as
agents of a foreign power.
These actions and justifications enabled the FBI to obtain far-reaching new
powers that could have serious implications for the basic American freedom
to write, publish and access news and opinion.
Trump's "maximum pressure" policy creates justification for seizing websites
The FBI's moves against supposedly Iranian websites were preceded by a
campaign by FBI officials to pressure social media partners like Facebook
and Google into removing the sites. FBI Director Christopher Wray told
reporters that FBI officials had been "providing actionable intelligence" on
specific internet accounts to those social media giants to help them remove
undesirable sites from their platforms.
The FBI also exploited the national frenzy over Russian interference in the
2016 US election to clear space for its seizure of the Iranian websites.
Executive Order 13848, issued in September 2018, asserted that internet
publications had "created significant vulnerabilities and magnified the
scope and intensity of the threat of foreign interference" in U.S.
elections, and declared "a national emergency to deal with this threat."
The order stated that any "property or interests in property" of any foreign
government or "person acting as an agent for or on behalf of a foreign
government" found to have interfered with a U.S. election could be blocked.
The FBI employed that language to prepare its attack on Iranian websites.
Another legal move to advance the operation was the official designation of
the Islamic Revolutionary Guard Corps (IRGC) as a terrorist organization in
April 2019. A key component of the Trump administration's "maximum pressure"
policy against Iran, the designation was met with opposition from the
Pentagon and CIA, which both considered it a potential threat to U.S. troops
around the world. But the DOJ and FBI needed a means of justifying more
aggressive action against Iran, such as the mass seizure of websites and
other property it claimed was controlled by the IRGC.
The FBI affidavit supporting the request to a judge for seizure of the
website contained no evidence to back up the charge; it merely declared that
the FBI "believes" the government of Iran was using the IRGC to carry out
what it called a "covert influence campaign". And it based that belief on
"content from the domains which is consistent with Iranian foreign policy
and IRGC disinformation tradecraft."
Thin evidence, plentiful ignorance in FBI affidavits
Despite a paucity of concrete evidence, Judge Joseph C. Spero of the
Northern District of California agreed with the FBI's argument that the
websites served Iranian state interests and functioned under the control of
the IRGC. Spero thus approved a seizure warrant for those 92 internet
domains on October 2, according to U.S. Attorney's Office for the district.
But the seizure warrant for a second group of 27 websites was only issued on
Election Day, November 3, and executed the following day. That delay
indicated that the Justice Department and FBI were struggling to prove the
27 websites they sought to seize were, in fact, "operated by or on behalf of
the IRGC."
While seeking a judge's approval for the second warrant, the FBI issued a
joint "alert" on October 29 about what it called "Iranian advanced
persistent threat (APT) actors" that were supposedly "intent on influencing
and interfering with the U.S. elections to sow discord among voters and
undermine public confidence in the U.S. electoral process." The FBI
bulletin referenced a "significant number of intrusions against U.S.-based
networks" but provided further no information on the timing, targets or
objectives of such cyber operations.
The FBI's mention of new evidence of alleged Iranian interference in the
election was evidently aimed at enabling Justice Department lawyers to
invoke the 2018 Executive Order authorizing blocking assets of a foreign
agent that had interfered with a U.S. election.
The problem with the new legal-political argument for hitting back at Iran,
however, is that the FBI document acknowledged that the "threat group" was
not proven to be Iranian but only "assessed to be located in Iran." This was
a crucial distinction, because it meant that the attribution of the list of
IP addresses to Iran was an assumption rather a finding based on conclusive
evidence. In fact, the same FBI report admitted that "many of these IP
addresses likely correspond to Virtual Private Network (VPN) services, which
can be used by individuals all over the world." That fact, it said, "creates
the potential for false positives."
The FBI affidavit in support of the second seizure warrant still relied on
the argument that the "content" of the "Target Domains" was "consistent with
GOI [Government of Iran] tradecraft," and that various data showed that the
publication was based in Iran. This effectively criminalized Iranian
publications that engaged in criticism of U.S. and Israeli policies.
But in several cases, the official FBI claims of "GOI tradecraft" revealed
an utter ignorance about Iranian society and politics on the part of the US
law enforcement agents. The FBI cited a video on a website it seized called
Islamic Pulse that supposedly promoted "esteemed prominent Iranian leaders,"
including "quotes" from "Ayatollah Knoei and Ayatollah Sistani." But there
is no one named Ayatollah Knoei.
The figure in question was obviously Grand Ayatollah Abu al-Qasim al-Khoei,
a spiritual leader of Iraq from the early 1970s until his death in 1992. As
for the "Iranian leader" Ayatollah Ali Sistani, anyone who lived through the
Iraq War would know that he has been the politically influential spiritual
leader of all Iraqi Shiites since Ayatollah al-Khoei's death. Ali Sistani is
also misidentified as an "Iranian" in the FBI attack on another website the
agency planned to take down.
Abusing FARA to erase an alternative outlet
Among the four websites the FBI implicitly conceded were not IRGC assets was
the American Herald Tribune. This outlet, unlike nearly all of the other
websites closed down, had published articles written by Americans under
their own names, and was edited by a Canadian academic named Anthony Hall.
To justify the takedown of AHT and three other papers, the DOJ invoked the
Foreign Agents Registration Act (FARA). Citing content in AHT which it
claimed "insinuates that particular candidates for U.S. President and U.S.
Vice President were pro-Zionist; that mail-in voting could lead to violence;
and that the U.S. election is susceptible to foreign interference," the DOJ
argued that these opinions "constitute political activities" on behalf of a
foreign state.
The FBI thus linked AHT to the Iranian government based on content that
supposedly served Iranian state interests.
The FARA guidelines did not provide adequate legal cover for the operation,
however. That's because FARA does not apply to foreign entities, as Joshua
R. Fattal, a former advisor in the Department of Homeland Security's Office
of General Counsel, pointed out.
That law clearly defines an "agent of a foreign principal" as a person or
institution that "engages within the United States" in political activities
on behalf of a foreign government or actor. Considering that none of the
websites targeted by the FBI existed inside the US, it is hard to imagine
who the bureau's arguments about FARA would stand up in court.
Tellingly, the FBI affidavit explicitly ruled out treating the American
contributors to AHT as "agents of a foreign principal." In its affidavit, it
instead stated its belief that "genuine journalists that have contributed to
American Herald Tribune may be unwitting and unaware of the true nature and
origins of the inauthentic news site." That stance avoided the more
fundamental issue of the constitutionally protected right of Americans to
write for whatever publication and from whatever position they choose.
Yet another legal argument cited by the FBI was evidently created by the DOJ
out of whole cloth to justify its unprecedented removal of websites from the
internet. It argued that what it calls "disinformation" published in those
sites represents a "service" to Iran performed in violation of a prohibition
on any exports of goods, technology or services from the United States to
Iran, directly or indirectly, as spelled out in regulations promulgated by
the Clinton administration in a 1997 Executive Order.
But FBI and DOJ were unable to point to a single piece of legal precedent to
support its assertion that political views expressed on the internet
represent a "service" to a foreign government. In fact, the U.S. government
has never advanced this argument in a court of law. That is because, once
again, FARA applies only to actors subject to U.S. jurisdiction - not to an
actor in Iran that has established a website and arranged for content to be
published on it.
Theoretically, the FBI could try to prosecute individuals who have written
for the AHT. But as Fattal, the former DHS advisor, has noted, "FARA
statutorily mandates that violators of the act must run afoul of its terms
'willfully,' so an 'unwitting; American agent would not be required to
register."
But now that a US district court has allowed the DOJ and FBI to seize the
website of AHT on the flimsiest legal and political grounds, the targeting
of American contributors to a publication that the FBI views as a foreign
influence on U.S. opinion is no longer unthinkable.
