DOJ Refuses To Let Tech Companies See Legal Arguments It's Making Against Them

from the isn't-that-convenient dept

The ongoing legal fight, in which a bunch of US tech and internet companies -- namely Google, Facebook, Microsoft, Yahoo and LinkedIn -- are suing the US government, claiming a First Amendment right to publish some details on the number of requests they get from the NSA under Section 702 of the FISA Amendments Act, as well as the number of users impacted by those requests, is getting ever weirder. The government had filed its response back at the end of September. And, you might notice, large portions of it are totally redacted. For example, here is page 13 of the document (though, numbered page 8):
At least they didn't redact the page number Of course, stuff gets filed under seal all the time, and it's not particularly uncommon to see redacted passages in legal documents -- especially (obviously) when it has to do with matters of national security. But, here's what's different. Normally the opposing parties in the case are allowed to see the details of what's redacted. Here, the DOJ is simply refusing to let the tech companies see its own argument. In response, the companies have filed a pretty direct and somewhat angry motion, asking the FISA court to either let them see the arguments, or to strike the redacted portions from the DOJ's motion. Basically, the DOJ is saying that it can make legal arguments that only the court can see, but which the tech companies suing it cannot see. That goes against every basic concept of due process.

The government has submitted a response and supporting declaration for ex parte, in camera review. It has given the providers only a heavily redacted version of its submissions, and it has rejected all requests for greater access.

Unless the government reconsiders its refusal to accommodate the providers' legitimate need to understand the basis for the government's response, the providers respectfully request that this Court strike the redacted portions of the government's brief and supporting declaration. The redacted version of the government's submissions does not comply with Foreign Intelligence Surveillance Court Rule 7(j) because it does not "clearly articulate the government's legal arguments," as the rule requires. If the government's interpretation of the rule were correct, the rule would violate both the First Amendment and the Due Process Clause. To avoid that result, the Court should construe the rule to require fuller disclosure to the providers.

Allowing the government to file an ex parte brief in this case will cripple the providers' ability to reply to the government's arguments and is likely to result in a disposition of the providers' First Amendment claims based on information that the providers will never see. The providers do not dispute that in some cases it may be appropriate for this Court to consider ex parte filings. In this case, however, such a course is neither justified nor constitutional. The providers already know the core information that the government seeks to protect in this litigation--the number of FISC orders or FAA directives to which they have been subject, if any. At issue here is only the secondary question whether the providers may be told the reason why the government seeks to keep that information a secret. The government has not argued that sharing those reasons with the providers or their counsel would endanger national security. Accordingly, unless the government allows the providers' counsel to access its response, the Court should strike the redacted portions of the response.

The whole thing is really quite incredible. Our government is so focused on the secrecy of its secret laws and secret demands that it won't even tell the companies fighting the secrecy the secret reasons it's telling the court it has to keep stuff secret? How is that possibly consistent with basic due process under the law?

Filed Under: due process, faa, fisa, fisa amendments act, fisa court, fisc, free speech, gag order, nsa, redactions, section 702
Companies: facebook, google, linkedin, microsoft, yahoo

Feinstein Releases Fake NSA Reform Bill, Actually Tries To Legalize Illegal NSA Bulk Data Collection

from the don't-buy-the-lies dept

Despite Dianne Feinstein's supposed "conversion" earlier this week about the NSA being out of control with its spying, and the associated performance of NSA folks claiming that they were screwed, it's quickly become apparent that this was all pure theater to make people think that real reform might be coming. Feinstein claimed she was shocked about this and called for a full investigation... and yet, just two days later, she held a markup of her planned "reform" bill for the collection of intelligence by the NSA (and held the markup in secret -- because nothing says "let's increase transparency of the NSA" like keeping the debates and votes secret). That bill was moved out of committee today by a vote of 11 to 4, leading Feinstein to release the bill with a bunch of misleading claptrap designed to make people think it's real reform. It even confused some folks who know this stuff into thinking, after a quick first pass, that it "banned" the bulk data collection. And you might think that's the case because her description says:

• Prohibits the collection of bulk communication records under Section 215 of the USA PATRIOT Act except under specific procedures and restrictions set forth in the bill;
• Establishes criminal penalties of up to 10 years in prison for intentional unauthorized access to data acquired under the Foreign Intelligence Surveillance Act (FISA) by the United States;
• Prohibits the bulk collection of the content of communications under Section 215 of the USA PATRIOT Act;

Reading that, you might think it actually banned the bulk data collection that's been reported on, but it does not. That "except under specific procedures and restrictions set forth in the bill" just takes the highly questionable reasoning of the FISA Court in approving the bulk data collection and makes that the "exception." In other words, it does exactly the opposite of what Feinstein claims. Rather than banning bulk data collection, it legalizes it. That third point on the "content" is just a red herring -- the same red herring that Feinstein and others have been waving about wildly for months, pretending people are upset about the collection of actual recordings, rather than the collection of metadata. She's wrong. People are upset about the collection of metadata, which this legalizes.

Even more ridiculous, the focus (both in the marketing and the bill itself) on collection of content "under Section 215" is another red herring, since it appears that much of that collection actually happens under other programs anyway. So this doesn't change a damn thing.

Other supposed "changes" in the bill -- including limiting who can perform queries on the data, how many "hops" they can analyze and how long they can retain the data, all match with current practice and don't change a thing. Even though James Clapper and Keith Alexander more or less seemed to concede at yesterday's House hearing that they'd be okay with cutting back on the data retention from five to three years, this bill keeps it at five. There are a few other minor changes, but this bill is almost entirely as expected, simply codifying the status quo, even though Feinstein has insisted that it was legal all along. The one minor "concession" which many had expected -- having a third party at the FISA Court who could fight for civil liberties -- is watered down. Rather than an actual adversarial setup, with this person representing civil liberties, it's set up as an appointed "amicus cureia" or "friend of the court," where they basically just advise the court on the issue.

This bill is a farce, and made even more farcical by the misleading way in which Feinstein has presented it, pretending it bans bulk data collection when it actually legalizes it.

Filed Under: bulk data collection, dianne feinstein, fisa, fisa court, fisa improvements act, fisc, lies, nsa, nsa surveillance, section 215

As Expected, USA Freedom Act Aims To Stop Worst NSA Abuses

from the a-step-in-the-right-direction dept

As was expected, a new bill to curb the NSA's excesses was introduced in both houses of Congress this morning, with very strong backing in both houses and on both sides of the aisle (in terms of having both powerful sponsors, and lots and lots of co-sponsors). The bill is not perfect, and it is not the final answer to all the NSA's activities, but it's a big step in the right direction -- stopping dragnet surveillance, reforming the way the FISA court works and adding some more transparency (we described many of the details in our post last week, and the bill matches what was expected). It has a decent chance of passing, but getting anything through Congress can be a chore these days. We'll be following what happens with this bill closely. You can see the full bill below or the quick two pager describing the details.

Filed Under: bulk collection, dragnet collection, fisa, fisa court, fisc, james sensensbrenner, nsa, nsa surveillance, pat leahy, usa freedom

Latest Declassified NSA Records Show NSA Believes It Can Spy On Everyone's Location Based On Existing Approvals

from the of-course-it-does dept

James Clapper has declassified another batch of documents on the NSA activities. We'll probably write about a few of them, but let's start with one that's getting a lot of initial attention: the document that discusses the "test" of collecting location info from the telcos based on where your mobile phone was. The short version? Do you know where you were on April 26, 2010? Because the NSA probably does. It had already been revealed that the NSA had run "a test" of obtaining location info from the telcos. This document, which is a memo from the NSA to the Senate Intelligence Committee is just explaining some of the details, with this being the key one:

In regards to the mobility testing effort, NSA consulted with DOJ before implementing this testing effort. Based upon our description of the proposed mobility data (cell site location information) testing plans, DOJ advised in February 2010 that obtaining the data for the described testing purposes was permissable based upon the current language of the Court's BR FISA order requiring the production of 'all call detail records.' It is our understanding that DOJ also orally advised the FISC, via its staff, that we had obtained a limited set of test data sampling of cellular mobility data (cell site location information) pursuant to the Court-authorized program and that we were exploring the possibility of acquiring such mobility under the BR FISA program in the near future based upon the authority currently granted by the Court.

The key takeaway here: the NSA believes that the current FISA approval of dragnet collection of metadata on every phone call includes permission to track location data as well, even though it doesn't currently do so. The "BR FISA order" means "business records" which is what Section 215 of the PATRIOT Act is sometimes called. The fact that the NSA didn't seem to think it was necessary to check with the FISA Court before running this test, just to make sure it was actually allowed is rather telling.

Separately, can anyone explain why the redacted portions of this document are redacted? It makes no sense. They redact the number of location records that were obtained. I can't see how that number could possibly need to remain classified once the existence of such a test was declassified. The only reason I can think of to keep that classified is to avoid embarrassment over the large number of people whose location info was scooped up. Similarly, they redact the name of the lawyer who wrote the memo. Again, the only reason I can think to do this is to protect him from embarrassment and public mocking. Such a public mocking might seem unfair, but I don't see how it fits in with a reasonable classification category.

Filed Under: business records, fisa, fisc, location data, nsa, nsa surveillance, patriot act, section 215

Major New Anti-NSA Bill Dropping Next Week With Powerful Support

from the this-could-get-interesting dept

We already knew that Rep. Jim Sensenbrenner was getting ready to release a major new anti-NSA spying bill called the USA Freedom Act, and Derek Khanna has just revealed many of the details of the bill, scheduled to be introduced in both houses of Congress this coming Tuesday. It will be backed by Sensenbrenner in the House and Pat Leahy in the Senate, and will have plenty of co-sponsors (already about 50 have signed up) including some who had initially voted against the Amash Amendment back in July. In other words, this bill has a very high likelihood of actually passing, though I imagine that the intelligence community, and potentially the White House, will push back on it. For Congress, gathering up a veto-proof majority may be a more difficult task.

The bill appears to do a number of good things, focusing on limiting the NSA's ability to do dragnet collections, rather than specific and targeted data collection, while also significantly increasing transparency of the activities of the NSA as well as the FISA court when it comes to rulings that interpret the law.

• End bulk data collection under Section 215 of the PATRIOT Act. This is the program that collects metadata on every phone call based on a twisted interpretation of the law and a thorough revisionist dictionary for words like "targeted," "relevance," "search" and "surveillance." Sensenbrenner, who crafted much of the original PATRIOT Act insists that when he wrote it, it was intended to already ban this kind of dragnet. The new bill will make that explicit. Similarly, it appears that the bill will require the intelligence community to be much more proactive in filtering out unnecessary information and deleting information collected incidentally.
  
  
• Fixing the FISC: As many have recommended, the law would make sure that a public advocate can be present to be an adversarial presence, arguing in favor of protecting Americans' privacy. There will be a special Office of the Special Advocate (OSA) created for this role. Somewhat surprisingly, the OSA will even be allowed to appeal decisions that the FISA court makes if it believes they stray from the law or the Constitution. That could be a very big deal.
  
  Separately, the DOJ will be required to declassify all FISC decisions from the past decade that involve "a significant construction or interpretation of the law." That is, no more secret law-making by the FISC.
  
  
• Greater transparency for companies on the receiving end of demands for information. This would make it so companies that get orders to hand over information can reveal numbers of requests, effectively stopping the existing gag orders which prevent us from knowing how often the NSA is demanding info from internet companies.

This legislation doesn't solve all the problems, but it does clearly attack the most egregious actions by the NSA and the wider intelligence community. I imagine those in that community will fight back hard on this. We'll be hearing outrageous claims about how people will die if they can't spy on all of us. But, in the end, if the NSA hadn't continued to expand its spying efforts, we wouldn't be in this mess to begin with.

Filed Under: fisa court, fisc, jim sensenbrenner, nsa, nsa surveillance, patrick leahy, section 215, transparency, usa freedom act

FISA Court Tries, Once Again, To Justify Allowing Bulk Collection Of Data On All Your Phone Calls

from the let's-try-this-again dept

Last week, the FISA Court (FISC) renewed yet again (as it has every few months for over 7 years) the ability of the government to demand data on every phone call from American telcos. Last month, the FISC (for the first time) published its rationale for allowing the collection -- one that many experts found extremely lacking. Not only did the court incorrectly state that members of Congress were fully aware of the details of the program when they renewed it, but it also made up some of its own rules and ignored some of the Supreme Court's statements on such forms of data collection.

Today, the court has declassified the new justification that was written up for this latest round of rubber-stamping, and it's written by a different judge than before. This time, it's Judge Mary McLaughlin, who notes that this is the first time she's had to review such an application, but for the most part she "agrees with and adopts" the reasoning used back in July by Judge Eagan to justify the collection. However, she also attempts to go into a little more detail, perhaps in response to the public criticism to Eagan's reasoning. Eagan's ruling stated the following:

In light of the importance of the national security programs that were set to expire, the Executive Branch and relevant congressional committees worked together to ensure that each Member of Congress knew or had the opportunity to know how Section 215 was being implemented under this Court's Documentation and personnel were also made available to afford each Member full knowledge of the scope of the implementation of Section 215 and of the underlying legal interpretation.

Unfortunately, as many have pointed out (and the White House has admitted) this is not true. Rep. Mike Rogers did not share the details with members of the House, despite the White House recommending strongly that he do so. While he did set up "briefings" with the NSA, they were clearly designed to keep Representatives in the dark. Among the many tricks that Rogers pulled, was sending announcements of the briefings to what's considered the "spam folder" of representatives, holding them at very inconvenient times (when most Reps. were out of town) and then leaving it up to the Reps. to guess what they should be asking about.

In this latest ruling, McLaughlin doesn't make the claim as directly as Eagan did, but still suggests that every member of Congress "had the opportunity to learn about the scope of the metadata collection and this Court's interpretation of Section 215." Thus, because they reauthorized it (thanks mostly due to fear-mongering by the heads of the Intelligence Committees), it must mean that Congress approved of the interpretation of the law. That seems specious, at best. It's increasingly clear that the heads of the intelligence committees actively sought to mislead others in Congress over these programs. Pretending that they were well informed is simply fiction. The very fact that so many in Congress (including some on the Intelligence Committee) have noted that they were kept in the dark about many important details, Judge McLaughlin is playing games here that don't reflect reality.

She also attempts to deal with the fact that in the Jones GPS case, the Supreme Court indicated that when there's bulk collection of data, it's possible to cross over from not being a 4th Amendment violation, to being one. In other rulings, the suggestion had been that if a single data point wasn't a 4th Amendment violation, then the bulk collection couldn't be either -- even though Justice Alito's opinion in Jones strongly argued otherwise. McLaughlin tries to hand-wave this away:

The Supreme Court's more recent decision in United States v. Jones... does not point to a different result here. Jones involved the acquisition of a different type of information through different means.

More specifically, she argues that because Jones was about monitoring and this case is about collection it's different. That also seems questionable, as Alito himself made the comparison to wiretapping. To argue that they're not analogous seems like it's ignoring what was said. McLaughlin does, legitimately, point out that Justice Sotomayor's opinion suggested that the whole notion of the 3rd party doctrine (saying there's no 4th Amendment protection for information given to a third party) should be revisited, but that the Court declined to do so in Jones.

Hopefully, this is setting up a situation in which the Supreme Court will no longer be able to punt the issue, as it did in Jones, and we can get some renewed respect for the 4th Amendment, especially in cases where bulk data is collected and accessed by government officials.

Filed Under: 3rd party doctrine, bulk collection, fisa, fisa court, fisc, metadata, patriot act, section 215, supreme court

FISA Court Argues To Senate That It's Not A Rubber Stamp

from the sometimes-it-requests-changes dept

The FISA Court is still trying to shed its reputation as a rubber stamp. In a new letter, responding to questions from Senator Grassley, the court explains that, while it's true that it eventually approves basically all requests that the intelligence community brings before the court, that doesn't take into account the changes it requires. It starts out by noting, as it has previously, that the "over 99%" approval rate is only for "final applications" and doesn't fairly consider that it frequently asks for substantial changes. In response to that earlier statement, Senator Grassley had asked how many times does it ask for substantial changes, and the court sent back the following late last week:

During the three month period from July 1, 2013 through September 30, 2013, we have observed that 24.4% of matters submitted ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action. This does not include, for example, mere typographical corrections. Although we have every reason to believe that this three month period is typical in terms of the historic rate of modifications, we will continue to collect these statistics for an additional period of time and we will inform you if those data suggest that the recent three months were anomalous.

Of course, by July 1st, it's pretty clear that the FISC knew that it was going to be under substantial scrutiny concerning these efforts, and the whole "rubber stamp" discussion had already been widespread in the press. While the court insists that this is probably no different than in the past, the real question is what was it in the past... and there, the FISC admits, it has no idea. In responding to the request for historical data, it notes:

FISC [is] just beginning a practice of collecting statistics on the rate at which such modifications occur.

In other words, back before there was any public scrutiny, nobody much bothered to monitor these things and make sure that the FISC wasn't just a rubber stamp -- and there's no real way to go back and check.

Also, there's the whole question of how do you define "substantial." While the FISC at least admits the bar is higher than typographical corrections, it also admits that the rating is somewhat in the eye of the beholder:

It should be noted, however, that these statistics are an attempt to measure the results of what are, typically, informal communications between the branches. Therefore, the determination of exactly when a modification is "substantial," and whether it was caused solely by the FISC's intervention, can be a judgment call.

Filed Under: fisa, fisa court, fisc, nsa, nsa surveillance, rubber stamp

FISA Court Rubber Stamps Continued Collection Of Metadata On Every Single Phone Call

from the because-it-can dept

This won't come as a huge surprise, I would imagine, but the telephony metadata dragnet collection that has to be renewed every few months "expired" today and was promptly reapproved by the FISA court, because "fuck you, that's why." That's not quite what they said, but consider it the bureaucratic-speak equivalent, coming from the Director of National Intelligence:

Previously on several occasions, the Director of National Intelligence declassified certain information about this telephony metadata collection program in order to provide the public with a more thorough and balanced understanding of the program. Consistent with his prior declassification decision and in light of the significant and continuing public interest in the telephony metadata collection program, DNI Clapper has decided to declassify and disclose publicly that the government filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the court renewed that authority.

The administration is undertaking a declassification review of this most recent court order.

Of course, it's true that last month, the previous order rubber-stamping this approval was declassified and revealed. Even though the same thing has been rubber stamped every few months for at least the past seven years, this time there was an attempt at a full justification for why it made sense. Of course, since it was a one-sided situation, without any adversarial hearing or opinion, it allowed the FISA court to make up its own rules and completely contradict the Supreme Court (to whom it's supposed to listen). It seems highly doubtful that the eventual declassified version of this rubber stamp will be any different than the last one.

Of course, in the last three months, we've also learned that this program of collecting data on every phone call in the US has been necessary to stop precisely zero attacks in the US -- but it did apparently lead them to a taxi driver sending some money to some not very nice people in Somalia. And, because of that, the NSA gets to keep track of everyone's phone calls. As has been explained repeatedly, this seems to go against not just the spirit and intended purpose of the 4th Amendment, but the plain language of that same Amendment. But, the FISA court has earned its rubber stamp reputation for a reason, and apparently it's not about to give up on it.

Filed Under: business records, dragnet, fisa, fisa court, fisc, metadata, nsa, nsa surveillance, section 215
Companies: at&t, verizon

Senator Leahy Slams NSA Surveillance, Aims For Changes To FISA Court And NSA's Powers

from the about-time dept

There have been a number of proposals put forth in response to the Ed Snowden leaks, but many don't have very much support. However, having Senate Judiciary Committee boss Patrick Leahy pushing strongly for reforms is likely to get some attention. At just about the same time that Brazilian President Dilma Rousseff was slamming NSA surveillance to President Obama's face at the UN, Leahy was giving a speech slamming the NSA's practices, as well as the limp oversight of the FISA Court.

Sen. Patrick Leahy, the powerful chairman of the chamber’s Judiciary Committee, on Tuesday strongly endorsed a series of sweeping restrictions on U.S. surveillance programs — from ending the bulk collection of Americans’ phone call logs to creating new oversight mechanisms to keep the NSA in check.

In a speech at Georgetown University Law Center, Leahy (D-Vt.) said the government “has not made its case” that the ability to collect Americans’ phone records en masse under the PATRIOT Act is “an effective counterterrorism tool, especially in light of the intrusion on Americans’ privacy rights.”

While he reiterated his support for a bill that was introduced a few months ago that restricts Section 230, his renewed focus on the FISA Court may be the more interesting tidbit:

Leahy also called for a “hard look at the existing oversight structure and what we are asking of the judges appointed to the FISA Court.” Those judges, he explained, have taken on a “regulatory role not envisioned in the original version” of the law. And the court, he said, hamstrung by the NSA’s misunderstanding of its own programs or the agency’s misleading statements, hasn’t always been able to conduct meaningful oversight.

Leahy rejected the idea that the FISA Court is an “unthinking rubber stamp,” but he did raise the possibility that Congress will rethink the court’s responsibilities and structure

This is a key point in all of this that is often missed in the debates. The FISA court was supposed to just look at warrant requests from law enforcement to make sure they make sense. But it's changed into a body that is actually making law, by figuring out how to interpret various statutes, often in secrecy, without any opposing viewpoints presented. That's not what it was designed to do, and it's part of how we ended up in the situation we're in today.

Filed Under: fisa court, fisc, nsa, nsa surveillance, patrick leahy

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.

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