DOJ To Reporter: We Can Prove You're Wrong, But We Want To Embarrass You, So We'll Wait

Journalism

from the that's-not-how-it-works dept

Thu, Sep 19th 2013 10:53am — Mike Masnick

Over at Cryptome today there's an absolutely incredible exchange between the Justice Department's Brian Fallon (from the Office of Public Affairs -- basically a PR guy) and Brad Heath, an investigative reporter from USA Today. Heath had sent the DOJ a FOIA request to the DOJ's Office of Professional Responsibility (OPR) asking basically whether or not the OPR had been involved in any investigation concerning the recently declassified FISA Court order, about how the NSA had misled the FISA court and abused its capabilities repeatedly. It certainly seems reasonable to try to find out if the DOJ then investigated those abuses and the NSA's misrepresentations to the FISA court.

The DOJ claimed that there were no responsive documents -- which even by itself is quite incredible. Heath appears to have then followed up with Fallon at the DOJ to seek comments. Fallon's response by itself is stunning:

I have an answer from OPR, and a FISC judge. I am not providing it to you because all you will do is seek to write around it because you are biased in favor of the idea that an inquiry should have been launched. So I will save what I have for another outlet after you publish.

Basically, this is the DOJ giving the middle finger to Heath, telling him that they have answers to his questions, but won't give them to him in order to purposely try to make him look bad by giving those quotes to someone else. Heath, quite reasonably, responded that he's been perfectly patient in waiting for an answer, but if none is forthcoming, he'll write the story as he has it (which, from the FOIA request, suggests that the DOJ did absolutely nothing about the NSA's abuses and misrepresentations to the FISC).

Fallon responds that he's "done negotiating" and claims that he "will work with someone else afterwards explaining why what you reported is off base." So, not only is the DOJ not answering the reporter, it's telling the reporter that the reporter has incorrect information but the DOJ refuses to correct the reporter in order to make the reporter look bad. Heath points out that he's not "negotiating" he's just asking for answers to basic questions. And then the real issue comes out in the DOJ's reply:

You are not actually open-minded to the idea of not writing the story. You are running it regardless. I have information that undercuts your premise, and would provide it if I thought you were able to be convinced that your story is off base. Instead, I think that to provide it to you would just allow you to cover your bases, and factor it into a story you still plan to write. So I prefer to hold onto the information and use it after the fact, with a different outlet that is more objective about whether an OPR inquiry was appropriate

Yeah. The DOJ is saying that it has answers to a reporter's questions, which it knows adds to the public debate about the DOJ's response to the NSA's activities, but because it's trying to stifle the report, it won't share the info with him. This is incredible. It's a clear move by the DOJ to try to silence the press with an effective threat: "if you agree not to publish your article, then we'll explain why we did what we did. If you do publish your article, we'll make you look foolish."

This is incredibly childish and unprofessional behavior by Fallon and the DOJ. Remember how this is supposed to be "the most transparent administration in history"? Apparently the DOJ thinks that only means "we'll be transparent if you only agree to write nice stuff about us." That's not how it works.

Heath points out that Fallon is wrong -- if Heath just wanted to publish the story he would have done so already, without waiting for a comment from the DOJ. And then he points out the obvious:

You can’t seriously ask me not to publish something on the basis of information you won’t share

Either way, this seems to highlight (once again) how the federal government, and especially the DOJ, views journalists these days -- especially investigative journalists. It will do anything possible to intimidate them into not publishing stories that might embarrass the administration. That's not transparency, it's thuggery and intimidation.

Usa Today Doj (PDF)Usa Today Doj (Text)

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Filed Under: abuse, brad heath, brian fallon, doj, fisc, journalism, nsa, nsa surveillance, transparency

34 Comments

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silverscarcat (profile), 19 Sep 2013 @ 11:02am

And they wonder why...
Snowden, Manning and Assange are seen as heroes for giving the public information.
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jackn2, 19 Sep 2013 @ 11:03am

ATTICA!
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GeneralEmergency (profile), 19 Sep 2013 @ 11:04am

Arrrggggghhhhh...
.

The arrogance of these "people" is stunning. There is not one iota of understanding that they are PUBLIC SERVANTS running thru the blood of these cretins.

Eric Holder and his entire DOJ crew are clearly world-class dirtbags.

.
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Anonymous Coward, 19 Sep 2013 @ 11:09am

Holy shit that Fallon guy is the worst kind of smug idiot.
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Atkray (profile), 19 Sep 2013 @ 11:10am

Re: And they wonder why...
Unfortunately they don't wonder that, they are so myopic they only see them as traitors. If they could even see that, then there might be hope for a shift in thinking.
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DannyB (profile), 19 Sep 2013 @ 11:11am

Re: Arrrggggghhhhh...
They may be dirtbags.
They may even be world-class dirtbags.
And even well-paid dirtbags.

But they will have something unique on their resume that distinguishes them from many other dirtbags. They are dirtbags who have worked inside the US Government, know the ropes, and are able to show corporate dirtbags how to game the system. That is worth at least a fantastically well paid industry job after they are out of office.
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John Fenderson (profile), 19 Sep 2013 @ 11:14am

They are being more transparent!
After all, they're not even trying to hide their thuggishness or their complete disdain for the American people anymore.

I'm curious what the DOJ's definition of "unbiased reporting" is. I suspect it means "reporting only what we tell you to report".
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That One Guy (profile), 19 Sep 2013 @ 11:18am

You can't really blame him
I mean if I worked for a government/agency that had been caught out in lie, after lie, after lie, in the past few weeks, it would be hard to pass up the chance to turn it around, if only for once, and even if it was less 'You just lied, and here's the proof of it' and more 'You were incorrect, and this information I refused to give you shows why'.
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Glen, 19 Sep 2013 @ 11:20am

This is pathetic. Apparently Fallon doesn't realize who looks like the idiot.
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Baldaur Regis (profile), 19 Sep 2013 @ 11:25am

This is a rather remarkably frank admission from a senior DOJ official that there is a bias in disseminating public information, based on the publication and/or reporter (and note here that USA Today is a 'real newspaper' with 'real reporters', not some scruffy long-hair's blog).

I wonder what the exchange would be if the reporter said the story is now about the DOJ's refusal to give information specifically to USA Today, and would Mr. Fallon care to comment? I'd buy a paper to read THAT story.
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Anonymous Coward, 19 Sep 2013 @ 11:28am

surely the thing it shows most is the absolute contempt it views FIOA laws! what the hell is the point of having any FIOA laws if the departments that get them served just turns round and gives the finger? today, a law is only a law if it can be used against an ordinary person. when it's a wealthy person or a government agency, which, you must remember are supposed to be employed by us and working for us, on the receiving end, they can just ignore the law and tell the person making an accusation or a request to go fuck themselves! nice!!
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Anonymous Coward, 19 Sep 2013 @ 11:30am

Of course Fallon is a douchebag. He had plenty of practice being the mouthpiece for his last boss: Chuck Schumer.

Fallon has only been at inJustice for a few months. Just think how much more exquisitely douchey he'll be by the time the Republicans finally impeach Holder.
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Anonymous Coward, 19 Sep 2013 @ 11:36am

Re: You can't really blame him
You're assuming that the secret DOJ information would actually make the DOJ look like it's doing their job. Personally, I doubt it. If the DOJ had documentation that would actually make them look good, they would want to share it. If USA Today published a biased article despite receiving that documentation, it would be even more embarrassing than it would to have their story proven incorrect at a later date.

Instead, I suspect that this is more of the same nonsense we've been seeing all along. The administration is caught doing things that it shouldn't; they claim they have secret documents to exonerate themselves, but that nobody can see the evidence; the documents get released, and it turns out that they doesn't exonerate anyone, and only provide further evidence of wrong-doing.
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BS Simon (profile), 19 Sep 2013 @ 11:39am

Question...
Would this exchange have any effect on a suit to follow up the FOIA request?
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PRMan, 19 Sep 2013 @ 11:40am

Re: Re: You can't really blame him
Exactly, it comes off as a bluff.
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Me, 19 Sep 2013 @ 11:52am

Wow!

How is that (1) Brian Fallon at DOJ still has a job after that and (2) isn't being charged with a crime?

This is remarkable.
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Anonymous Coward, 19 Sep 2013 @ 12:18pm

We've had over and over in the last months, exactly why the public can't trust the government to follow the laws of the land and the very documents that gives it the consent to govern. What none of these dirt bags have put together is that when the public gets far enough along, it will remove the consent to govern and most often that results in a revolution. I would really, really, hate to see that. A civil war is not what we need.

We have a government that is doing everything in it's power to hide and cover up the violations it is doing knowingly. An unlawful law does not make something legal. The Patriot Act is essentially such a law, breaking the Constitution for the short term result. We now see that short term is not in the picture as far as these 'public servants' are concerned. To them it is very much long term and permanent.

It is time to end this farce.
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sorrykb (profile), 19 Sep 2013 @ 12:24pm

Next up:
Brian Fallon sues Brian Heath and USA Today, claiming that his emails are copyrighted.
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Anonymous Coward, 19 Sep 2013 @ 12:29pm

Re: They are being more transparent!
I tend to see it like the old greeks. They act in Ate and therefore commits hubris. Somehow the system breaks there since they are the ones supposed to bring nemesis.
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steve, 19 Sep 2013 @ 12:54pm

Response to: sorrykb on Sep 19th, 2013 @ 12:24pm
No copyright in US government works :-)
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Anonymous Coward, 19 Sep 2013 @ 1:15pm

Re: They are being more transparent!
Unbiased Reporting: Ctrl-A Ctrl-C Ctrl-A Ctrl-V Ctrl-S
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roarshock44, 19 Sep 2013 @ 3:01pm

i reel, and i'm not from virginia.

some of this information coming out has me so disoriented i wonder if i made a wrong turn and i'm now in soviet russia or red china.

it's time to start voting people out, and anyone not part of the solution, yada yada. if, at that time, the people pulling the strings decide voting should be suspended or something akin, dire times will be on us indeed.
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Jayce, 19 Sep 2013 @ 3:35pm

Re: Question...
That was my thought also. If he has information relevant to the FOI request, which is what he has explicitly stated, then why was it not released in response to the FOI request?

Seems like we need an investigation into the answers about a possible investigation!
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Jayce, 19 Sep 2013 @ 3:37pm

Re:
"What none of these dirt bags have put together is that when the public gets far enough along, it will remove the consent to govern and most often that results in a revolution. I would really, really, hate to see that. A civil war is not what we need."

North Korea keeps its people too starved to fight back. The U.S. keeps its people too fat to bother.
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Anonymous Coward, 19 Sep 2013 @ 5:15pm

The hole gets deeper!
Politico just posted an update here: http://www.politico.com/blogs/media/2013/09/doj-spox-to-usa-today-i-will-save-what-i-have-for-173063 .html

Fallon's explanation to Politico:

"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. 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."

In other words, the DOJ is saying that USA today is biased because they think there should be an investigation into the lawyers who repeatedly made "substantial misrepresentations regarding the scope of a major collection program". Apparently repeatedly lying to one's own oversight court is not worthy of an inquiry.
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Frankie Baby, 19 Sep 2013 @ 8:58pm

Double it up
So maybe the DOJ didn't have responsive documents to the first inquiry, great, but now they dug themselves a hole. A second FOIA request as to what Fallon and the DOJ are withholding should prove ironic, amusing, and potentially enlightening.
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bgmcb (profile), 19 Sep 2013 @ 9:00pm

Re: The hole gets deeper!
The DOJ is saying lying in FISA court is not like lying I in a real court. So no harm no foul. A hurt feelings kind of thing.
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Ninja (profile), 20 Sep 2013 @ 3:51am

Well, he can add that to his report and leave it open in the end to further clarification once the DOJ decides to release the information. Slap in the face ;)
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IguanaMom, 20 Sep 2013 @ 4:49am

Re:
This is actually refusal to provide a comment. The FOIA documents were only released after EFF sued to get them. That's how dickish they are being.
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MikeW_CA, 20 Sep 2013 @ 7:13am

no "Professional Responsibility"
Clearly, there's no "Professional Responsibility" in the current DOJ.
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Patrick Maurer, 20 Sep 2013 @ 8:50am

Out of control government
Is it not clear to everyone that is not a single cell amoeba, that this government is completely out of control. We have life time employees that perpetuate the con of this government being truly representative of the American citizenry, when in fact they are running a ponzi scheme while slowly removing our Constitutional Rights. We have political courts now that favor business over citizens, Representatives that act as if they are just propagandists of their respective political party's. We have a ballot box but with the party system the way it is, it just perpetuates the party and not the principles this country was founded on. America is headed for the scrap heap of the once great institutions of history.
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Anonymous Coward, 20 Sep 2013 @ 10:10am

The lines are drawn.
tHEY have all the big guns and military, militias, and police forces and courts..
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Thomas, 20 Sep 2013 @ 5:19pm

How to deal with DO(J???) scum who played aforementioned game...!!!
EEEEEzy way to spotlight DOJ malfeasence and arrogance..

Just tell the WHOLE story, including the childish and manipulative behavior of DOJ as exemplified by their PR mouthpiece.. Brian Fallon...

Brad Heath should be grateful to the DOJ and their sophomoric slimeball Fallen for sexing up what would have been just another dog bites man story.
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Steve Spenser, 20 Sep 2013 @ 6:04pm

Brad Heath's eventual article
FYI, here's the eventual article that USA Today reported: http://usat.ly/1eVuU6G
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