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

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

Fri, Sep 20th 2013 7:46am — Mike Masnick

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.

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Filed Under: brad heath, brian fallon, doj, ethics, fisc, investigation, nsa, nsa surveillance, office of professional responsibility, opr

24 Comments

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Mark Harrill (profile), 20 Sep 2013 @ 6:14am

Special Prosecutor
As a general rule, I find Congress invoking a Special Prosecutor as nothing more than political theather, but maybe in this case it could produce something useful. A true independent prosecutor who could look into the abuses at the NSA and what, if any, action was taken against the bad actors may be helpful. Then again, maybe it will all be classified and nothing will happen. Yeah probably the latter.
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Anonymous Anonymous Coward, 20 Sep 2013 @ 7:59am

Spinning from a Spinner
What do you expect from a professional spinner?
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Pixelation, 20 Sep 2013 @ 8:13am

Let's hope secret heads will roll.
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Anonymous Coward, 20 Sep 2013 @ 8:14am

Brian Fallon is very likely going to be looking for new employment shortly. If you have any job search leads for him, get in touch at Brian.Fallon@usdoj.gov *. Is there a company out there that needs edible sock testers? From all this it seems like his only applicable job skill is putting his foot in his mouth.

* Of course, you could also write him and tell him what a contemptuous douchebag he is, or how his open derision of the free press shows that the government doesn't give two runny shits about the rights of the public. Your call.
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Anonymous Coward, 20 Sep 2013 @ 8:14am

"Well, you see, there's actually a very good explanation for that, and I'm sure everything will make sense for you, as soon as we tell you all about it. But basically it comes down to - We didn't wanna!"
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Baldaur Regis (profile), 20 Sep 2013 @ 8:22am

It seems the government, and the DOJ in particular, is learning blowback assessment: if an investigation might turn up something bad, don't do the investigation. No investigation, no bad results, no need for a cover-up.

It's not a good thing.
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Anonymous Coward, 20 Sep 2013 @ 8:24am

playing poker against these politician types must be annoying.

"Don't bet against me, my cards are great!"
"Really? Whatcha got?"
"Ain't telling, you gotta pay to see."
"Ok, fair enough" *places bets*
"I have three of a kind. What you got?"
"Still not showing it to you and and I should be taking the winning."
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Tom Stone, 20 Sep 2013 @ 8:26am

Brian Fallon
More proof that the DOJ employs the very best criminal attorneys money can buy.
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Anonymous Coward, 20 Sep 2013 @ 8:49am

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.

I'm not so sure. My bet would be on the fact that the government honestly didn't see a problem after it ignored the evidence and found an excuse to make it sound like there wasn't a problem.

I still think the DOJ is in denial. That's too bad. Not to undermine the 12 step program, but is there one available for goverment bureaucras with heads up their asses?
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John Fenderson (profile), 20 Sep 2013 @ 9:06am

Re: Spinning from a Spinner
A better job of spinning, for starters.
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Jeremy Lyman (profile), 20 Sep 2013 @ 9:27am

It is SOOOO simple you guys...
We didn't conduct an investigation on whether we needed to conduct an investigation because we didn't conduct an investigation on whether we needed to conduct an investigation, which wasn't needed because we didn't conduct and an investigation on whether it was needed.

If you torture logic enough, it will say anything you want it to.
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wec, 20 Sep 2013 @ 9:30am

Criminal attorneys or attorneys who are criminals....
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Ninja (profile), 20 Sep 2013 @ 9:45am

I thought the DOJ was going to embarrass the reporter, not the contrary. Wait, is Heath from Soviet Russia?
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Anonymous Coward, 20 Sep 2013 @ 9:51am

How does one expect an organization that only exists through the so called "legal" use of initiating force/aggression/violence (or threat thereof) & theft/extortion (i.e. "taxation") [all immoral acts] to be ethical?

An expropriating property protector is a contradiction in terms.

I prefer consensual relationships and voluntary exchange.
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Baldaur Regis (profile), 20 Sep 2013 @ 9:54am

Re: It is SOOOO simple you guys...
This is so true. If you waterboard logic, it will tell you that not only is investigating investigative techniques illogical, you can make it put on a Shirley Temple dress and say - with an absolutely straight face - that the government cares for your rights.
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Me, 20 Sep 2013 @ 10:29am

It sounds to me like Fallon needs to be (1) fired and (2) investigated for improprieties.

His contempt for the public is one thing, but his covering up wrongdoing is actionable.
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FM Hilton, 20 Sep 2013 @ 10:34am

What, you expected results?
For anyone who has ever dealt with the DOJ on a real-life basis, this story is not new, or surprising.

They're incompetent, and proud of it. They'll cover it up quickly and ignore the FOIA's that they receive from it.

Business as usual.

Stop being naive. They're in business to represent the government, not the people. Anyone who thinks otherwise has never had to play their games.

It's enlightening, and depressing. Not the way a government legal body is supposed to be, but there you have it.
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Namel3ss (profile), 20 Sep 2013 @ 10:35am

Mike, PLEASE keep this up
The DOJ right now is IMO where you and other investigative journalists REALLY need to plug the enema bag into. They are at the heart of and/or complicit in every scandal plaguing Obama:

* green energy fraud a la solyndra - where's the investigations?
* wall street train-wrecking the economy - same question
* IRS used for political purposes - same question
* NSA spying - same question
* Fast & furious - same question

All of these are major scandals that DOJ should be investigating/prosecuting but they're not doing a damn thing. Instead they're busy hounding "little people" like Aaron Swartz, Weev, etc.

Eric Holder and his cronies should be fired/impeached/indicted/whatever for abject dereliction of duty as attorney general of the US. And the DOJ needs to be shamed, publicly, severely, and often to make this happen.

So keep up the good work!
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Anonymous Coward, 20 Sep 2013 @ 12:54pm

I am sick of the justice system, I think I will go barf now!
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James Burkhardt (profile), 20 Sep 2013 @ 1:50pm

Re:
Last the the United States attempted to only collect money via 'voluntary exchange', it went bankrupt. It was called the Confederation, and its governing document were the 'Articles of Confederation'. It appears that when the states were told "We really need money to maintain the national defense and adjudicate interstate disputes", the States dropped trow and made like the scots in Braveheart.
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Hephaestus (profile), 20 Sep 2013 @ 3:38pm

Re:
Please, this is the government we are talking about here. He will not get fired, he will get a promotion.
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Matthew Cline (profile), 20 Sep 2013 @ 3:55pm

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.
But Fallon didn't want the reporter to rethink the story, he wanted the reporter to not publish the story.
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Anonymous Coward, 20 Sep 2013 @ 5:01pm

Again it shows a government who views the public and journalists as the enemy. Fallon's purpose was not to deal with ethics but how to prevent the question of ethics from being put to the public.

As such it is fairly plain and evident not only does he know the problem with the issue but he doesn't want to deal with it as it makes him personally look bad. The threat of revealing the info he denies this reporter to someone else, is to attempt a shot at the creditability of Brad Heath.

The common thread running through out government today is to prevent any and all info that might call to question the government's ability to do actually fair representation or dealing with ethics where the officials come out looking bad. They have been able to get away with this for years because of the consolidation of MSM among a few select corporations. In doing that, very few actually do investigative reporting anymore because they have fired all the staff they needed to do that.

Investigative reporting is what keeps crooked politicians from being even worse than they are.

So the real question comes down to what is Fallon hiding and just how crooked is he if someone should look into his background?
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Bergman (profile), 23 Sep 2013 @ 11:18pm

Highest Professional Standards?
If any private citizen were to engage in behavior that matches those high standards, that citizen would swiftly be arrested, indicted, and facing countless criminal charges, including racketeering.

But because it is done by those sworn to uphold the law, sworn to enforce the law and entrusted with immense power to ruin the lives of their fellow citizens, it's perfectly okay, just business as usual.

Why should we regard the DOJ as the good guys and not merely an unusually well-armed mafia group?
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