DOJ Scrambles To Try To Explain Why It Never Investigated Systematic Misrepresentations By NSA To FISA Court

from the er,-um,-er,-because! dept

So, yesterday, we wrote about DOJ spokesperson Brian Fallon's email exchange with USA Today investigative reporter Brad Heath, insisting that he (Fallon) was holding back answers to Heath's questions in an attempt to convince him not to publish a story, and promising that he'd instead reveal those answers to a competing reporter to make Heath look bad later. As Ken White rightfully noted, this was a story that showed the government's contempt for the public.

As promised, Heath did in fact publish his story, and it's a big story, which is well-researched and supported, highlighting how based on the quotes from FISC judges, the DOJ's Office of Professional Responsibility (basically the DOJ's ethics watchdogs) had an absolute responsibility to investigate what happened, and even possibly take action against people for blatantly misrepresenting facts about the NSA's surveillance effort to the FISA court. Remember, the declassified ruling stated plainly:

The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.

A substantial misrepresentation by the DOJ to the FISA court should be a big deal. Three times in three years should be an even bigger deal, and one where you'd think the ethics office would get involved. In fact, Heath spoke to a previous attorney at OPR who said exactly that:

Those opinions were sufficiently critical that OPR should have reviewed the situation, even if only to assure the department that its lawyers were not to blame, former OPR attorney Leslie Griffin said. "There's enough in the opinions that it should trigger some level of inquiry," she said.

Instead, as the FOIA response indicated, the DOJ OPR did absolutely nothing. There was no investigation. No one was reprimanded for repeatedly misrepresenting the NSA's surveillance program to its one major oversight body, the FISA court. That's a big story, and you can see why the DOJ didn't want it out there. So, now we're supposed to see the "answers" that Fallon promised to leak to other reporters that would undercut this argument. But we're still waiting. Fallon's initial response (in Heath's article) is weak beyond belief:

Justice spokesman Brian Fallon said in a statement Thursday that the department's lawyers "did exactly what they should have done. They promptly and appropriately reported compliance issues upon their discovery within the executive branch as well as to the Court and Congress. The court's opinions and facts demonstrate that the department attorneys' representation before the court met the highest professional standards."

That doesn't seem to undermine Heath's story at all. It strengthens it. If the DOJ is allowed to misrepresent the NSA's activities so frequently, and that's okay because it "meets the highest professional standards" isn't that a problem?

In another interview, this time with Politico, Fallon continued to attack Heath, but failed to actually show that the story was inaccurate or not newsworthy at all. Instead, he makes it pretty clear that this is more about a coverup of the DOJ's failings.

"Brad is reporting on the lack of an OPR inquiry, but that only seems newsworthy if one might be warranted in the first place. It isn’t," he wrote. "For the last several days, we asked Brad to exercise discretion rather than write a story that leaves a false impression that there was any evidence of misconduct or basis for an inquiry. We proposed putting him in touch with people who could independently explain why no inquiry was warranted in hopes it might persuade him. When it became clear he intended to publish his story regardless, there was no point in asking any of those people to reach out."

First of all, that makes no sense. Clearly, if someone gave a logical and detailed reason why no investigation was necessary, that would have likely made Heath rethink the entire story. So it makes no sense to say that he no longer wanted people to reach out to Heath. The only narrative that holds together is the one where the DOJ is totally embarrassed by its own failings and doesn't want the story published because of that. In the meantime, despite all these statements from Fallon, he's yet to reveal the magic answers that actually explain why no investigation was warranted. In fact, he's told Huffington Post that he's said everything he has to say already. And so far that's basically nothing that disputes the story.

And that just leaves a lot of people more convinced that not only was an investigation warranted, the DOJ's inability to recognize that, even today, calls into serious question the ability of the DOJ's ethics operations to, you know, be ethical. And let's not even begin to discuss the "ethics" of a DOJ spokesperson telling a reporter that he was withholding information (which now appears to not exist) that proves a story was incorrect.