DOJ Never Investigated FISC Judges' Ethics Complaints; Also Tried to Dick Over Reporter About It

In some of the recently declassified rulings from the Foreign Intelligence Surveillance Court (FISC), judges have made note and complained of the multiple times (three that we know of) where the judges felt they were misled by National Security Agency officials about the nature and extent of surveillance (read here and here).

So Brad Heath of USA Today contacted the Justice Department to determine if they've ever investigated these ethics complaints. Here's what he reported today:

The Justice Department's internal ethics watchdog says it never investigated repeated complaints by federal judges that the government had misled them about the NSA's secret surveillance of Americans' phone calls and Internet communications.

Two judges on the court that oversees the spying programs separately rebuked federal officials in top-secret court orders for misrepresenting how the NSA was harvesting and analyzing communication records. In a sharply worded 2009 order, one of the judges, Reggie Walton, went so far as to suggest that he could hold national security officials in contempt or refer their conduct to outside investigators.

The Justice Department's Office of Professional Responsibility routinely probes judges' allegations that the department's lawyers may have violated ethics rules that prohibit attorneys from misleading courts. Still, OPR said in response to a Freedom of Information Act request by USA TODAY that it had no record of ever having investigated — or even being made aware of — the scathing and, at the time, classified, critiques from the Foreign Intelligence Surveillance Court between 2009 and 2011.

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.

But there's more! There's a behind-the-scenes story that comes with this investigation that is both bonkers and infuriating. As Heath was trying to get more info from the Department of Justice, a spokesperson told him he had more information that contradicted Heath's reporting, but refused to provide the information to Heath because he objected to USA Today's intent to run a story, period. Instead the spokesman said he would hold on to the information and then hand it over to another outlet to publish after the above story came out, obviously to discredit Heath. Techdirt details the e-mail exchange, which has been made public, here. The spokesman accuses Heath of bias simply by writing a story at all. Not by taking a particular side – just by writing a story at all. This is what government officials see as bias now – writing about subjects it doesn't want you to write about.

And here was the spokesman's statement today once the e-mail exchange came out:

"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."

Once the government tells you there was no evidence of misconduct, why would you still want to write anything, huh? We told you everything was fine!

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