Privacy SOS

Justice Department official sets out to kill ‘USA Today’ story by claiming that it is a non-story

Something very fishy happened this week. The Justice Department tried to get a USA Today reporter to drop a story that would embarrass the government, and when he wouldn’t, gave the reporter a quote implying that the story is a non-story. The tl;dr is: There’s nothing to see here, but we’d really prefer it if you didn’t publish it!

What happened, exactly?

Contrary to the DOJ’s bizarre denial, it’s quite a story indeed. The short version is that judges on the Foreign Intelligence Surveillance Court have on multiple occasions called out the Department of Justice for misrepresenting critically important facts in briefs to the court, but the DOJ office charged with investigating material misrepresentations to judges never looked into any of the allegations. In other words, internal DOJ accountability mechanisms failed.

Here's the longer version:

Since Edward Snowden’s leaks, we have been granted access to a number of declassified FISC opinions, among them those that allege DOJ material misrepresentations to the court. (That's a fancy way of saying "The DOJ told judges things that were not true.") Hoping to find out whether the DOJ ever investigated these misrepresentations, USA Today journalist Brad Heath filed a FOIA to the DOJ’s Office of Professional Responsibility, the office responsible for investigating these kinds of charges. 

Heath found that the OPR never looked into any of them. This despite the fact that the office, Heath writes, “routinely probes judges' allegations that the [DOJ’s] lawyers may have violated ethics rules that prohibit attorneys from misleading courts.” In other words, investigating these kinds of things is actually the OPR’s job, but when it came to the DOJ telling the FISC untrue things about NSA spying, it didn't perform it.

The OPR's is a very important job. As an internal watchdog, OPR, at least in theory, works to keep a check on prosecutors who have substantial motivations to trick judges into agreeing with them. The role of this internal watchdog is arguably even more important in the classified FISC context, because the public (until recently) has had no access into the court’s inner workings and therefore could not provide any external accountability.

The flood of sunlight prompted by Snowden’s leaks therefore shows us once again why both transparency and external accountability are so critical, and how they are inextricably bound. Had these declassified FISC opinions never been released, Brad Heath would never have known to ask the OPR about whether it investigated DOJ misrepresentations to the FISC. And had Brad Heath never filed that FOIA, the public never would have known that the internal oversight provided by OPR is an insufficient check on DOJ power.

Why does it even matter? What are we really talking about here?

USA Today provides an example of the kind of misconduct the OPR never found fit to investigate:

In one FISC order, dated Jan. 28, 2009, Judge Reggie Walton noted that the Justice Department had alerted the court that the government had been querying the telephone records "in a manner that appears to the court to be directly contrary'' to a previous court order authorizing the record collection and "contrary to the sworn attestations of several executive branch officials.''

In a stinging rebuke, Walton ordered the government to provide an explanation so that he could determine whether the collection authorization should be rescinded and whether those found to be in violation should be held in "contempt'' or referred to "appropriate investigative offices.''

The OPR routinely probes allegations of government misconduct in the courts, but apparently not when it comes to the government's misrepresentation of facts in applications to a secret court seeking approval for mass surveillance programs that impact literally all of us. That’s a pretty big deal! 

A spokesman for the DOJ claimed he didn’t think it wasn’t a big deal, however. He wanted Heath to kill the story, and towards that end made weird and intimidating comments to the journalist.

In emails leaked online this morning, we see a truly disturbing if subtle exercise of power on behalf of the DOJ, which did not want the story published. The DOJ’s opinion appears to be that there is no there, there — that the story should have been dead in the water, because the OPR did its job when it didn't investigate allegations of misconduct. Walton’s and the other FISC judge’s accusations about DOJ material misrepresentations regarding NSA surveillance didn’t warrant investigation, the DOJ claimed, and so Heath should have just dropped the story.

Heath reports:

Justice spokesman Brian Fallon said in a statement Thursday that the department's lawyers "did exactly what they should have done. The court's opinions and facts demonstrate that the department attorneys' representation before the court met the highest professional standards."

Never mind that a former OPR attorney told Heath the opposite, nor that Judge Walton himself threatened to provoke an investigation into DOJ conduct.

Despite the confidence oozing out of his official statement, Fallon’s emails to journalist Heath don’t look like the emails of someone unconcerned about a non-story. They read like the desperate and bullying efforts of a government spokesman intent on figuring out how to kill a story that will make his office look bad. 

If the DOJ’s conduct “met the highest professional standards,” and the OPR was right not to investigate the FISC judge’s claims about government misrepresentations, methinks Mr. Fallon doth protest too much. 

More likely is that all the sunlight on their surveillance is really hurting the DOJ’s eyes. Pesky journalists digging around for yet more information that could embarrass the government is the last thing the DOJ wants. But thankfully, the transparency keeps coming anyway.

Brad Heath’s story is newsworthy because it shows that the DOJ failed to keep its own lawyers accountable. The message is clear, and contrary to Mr. Fallon’s claims, important: The DOJ cannot be trusted to police itself. We need external checks and balances on the government's surveillance powers. 

© 2021 ACLU of Massachusetts.