DoJ ignored FISA court concerns over deceptive NSA description of surveillance

posted at 10:01 am on September 20, 2013 by Ed Morrissey

The Department of Justice likes to exaggerate its record on investigations and prosecutions, but in one area they’ve been oddly quiet.  As information has been exposed on the NSA surveillance program and the FISA court’s frustration with their conduct of it, USA Today wondered whether Justice ever bothered to follow up on complaints from the court’s judges about misrepresentations made by the Obama administration while seeking continuing authorization of its extraordinary surveillance.  After getting a FOIA request pushed through, the answer turns out to be no (via Instapundit):

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 suggestthat 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.

This once again demonstrates the issues of a lack of real oversight — not necessarily because the mechanisms don’t exist, but because they aren’t being used.  Federal judges repeatedly complained about receiving misleading NSA representations of their activities. In any other court, a single could get a lawyer disbarred if the misleading representation was significantly false, and certainly would prompt an investigation.  In this case, with repeated violations, the DoJ did nothing, which certainly suggests that the DoJ at least tacitly approved of misleading the court as long as they could get away with it.  That’s hardly a confidence-builder in this administration’s claims to have acted to protect the rights of Americans in the surveillance programs in question.

But it’s not just the DoJ or the White House, either. Not only should those complaints have triggered the kind of investigation noted above at the DoJ, it should have flagged Congress to the problem as well.  I’d be curious to know whether the intelligence committees in either chamber kept themselves apprised of these orders and the complaints of the judges, or whether they had been kept completely out of the loop.  If it’s the former, then Congress is at least tacitly complicit; if it’s the latter, then there clearly isn’t any effective oversight of the FISA court by the legislative branch, which is their purview.

Finally, what were the judges doing about this? One judge threatened a contempt citation, but in the end they signed off on authorizations by the score despite their complaints.  If the judges on the FISA court are truly this impotent, then not only do we have an oversight problem, we have a systemic problem on checking executive power entirely.


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This once again demonstrates the issues of a lack of real oversight malfeasance.

You may have to be polite, Ed. We don’t.

Mr. D on September 20, 2013 at 10:09 AM

Malfeasance. Treason. Tyranny. Treachery. All of which, lead to revolution of the most violent kind. They asked for it. They may just get it if this doesn’t stop.

HomeoftheBrave on September 20, 2013 at 10:12 AM

In a sharply worded 2009 order, one of the judges, Reggie Walton, went so far as to suggestthat he could hold national security officials in contempt or refer their conduct to outside investigators.

Then it is time for Congress to step in…

JohnGalt23 on September 20, 2013 at 10:14 AM

Ed writes this as if he’s surprised. Maybe he’s just being facetious.

BKeyser on September 20, 2013 at 10:14 AM

Well I can imagine that the justice department was quite busy. Its tough to investigate complaints by judges when you’re furiously crating up thousands of weapons to Fedex over to Mexican drug cartels.

/s

Defenestratus on September 20, 2013 at 10:22 AM

Just add it to the list of other criminal activities by this administration. Congress step in? Give me a break. They won’t even use the one tool available to them. Funding. They can be summed up with one term. Feckless.

iamsaved on September 20, 2013 at 10:27 AM

Then it is time for Congress to step in…

JohnGalt23 on September 20, 2013 at 10:14 AM

In other words, the music will come up and the clowns will come flooding out of thier clown cars and begin to entertain us all, stumbling and skipping and pushing pies in each other’s faces.

bofh on September 20, 2013 at 10:28 AM

It should be called The Department of Wink-wink, Nudge-nudge..

GarandFan on September 20, 2013 at 10:31 AM

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.

They didn’t learn about it until it made the Newspapers. The apple doesn’t fall far from the Tree.

chemman on September 20, 2013 at 11:12 AM

Perhaps you weren’t a member of the Bush/Cheney apology choir during the time they were actually (not hypothetically)subverting the constitution…
 
Maybe you were outraged by the NSA’s warrantless wiretapping.
 
But maybe, like so many here, you were a full throated cheerleader then?
 
verbaluce on March 7, 2013 at 5:54 PM

 
(Formatted with actual spacing for ease of laughing at.)

rogerb on September 20, 2013 at 11:13 AM

L’État, c’est nous.

Resist We Much on September 20, 2013 at 11:18 AM

If the judges on the FISA court are truly this impotent, then not only do we have an oversight problem, we have a systemic problem on checking executive power entirely.

No ‘if’ necessary; it’s a foregone conclusion.

(Take a look at the EPA’s egregious abuse of regulatory, for a start.)

hillbillyjim on September 20, 2013 at 11:53 AM

^^^ s/b regulatory authority ^^^

hillbillyjim on September 20, 2013 at 11:54 AM

I admit it. I’m almost ready to jump on the impeach bandwagon. But I’ve had a bad week. I’m sure next week I’ll realize the Glory of the One.

Chris of Rights on September 20, 2013 at 12:10 PM

But maybe, like so many here, you were a full throated cheerleader… then?

verbaluce on March 7, 2013 at 5:54 PM

…of Obama, who promised to:

1) Lower the sea levels

2) Close GITMO

3) End rendition

4)

‘We have to have enough troops that we’re not just air-raiding villages and killing civilians.’

- Senator Barack Obama, 2007

‘These strikes are legal, they are ethical and they are wise.’

- Obama Spox Jay Carney, 5 February 2013

5) Refuse to intervene in affairs of sovereign nations, except if:

a) They want us to help draft their constitution. If so, there must be an absolute right to abortion point of gestation, on-demand, and for no cost. Right, Kenya?

b) Want our cooperation and aid, Senegal? Decriminalise and embrace homosexuality!

To which Senegalese President Macky Sall replied:

‘These issues are all societal issues basically, and we cannot have a standard model which is applicable to all nations, all countries — you said it, we all have different cultures. We have different religions. We have different traditions. And even in countries where this has been decriminalized and homosexual marriage is allowed, people don’t share the same views.’

c) To be transparent and accurate, especially with Syria:

1) United States = 1,429 died from sarin gas;

2) Médecins Sans Frontières = 355 from sarin gas & they are on the ground;

3) Syrian Observatory for Human Rights = 322 from sarin gas & they are on the ground.

5. Close the inequality gap, which has increased under his watch to a point not last seen since the 1920s. Spreading the wealth, evidently, means ‘Bread and Circuses’ for the poor and more wealth for the Ruling Class & its cronies.

6. Africans, who are, evidently, under some tribal vex that gives them the silly idea that they, too, can drive any car they want, have A/C, and trade in their pushcart for a real car See: Obama To Africans: If You Get A/C, Cars, & Nice Houses Like Everyone Else, ‘The Planet Will Boil Over’).

7. Playing King Canute with ‘road and bridges,’ ‘school teachers and firefighters,’ and ‘Infrastructure eL3vEnTy111!!!111′ will eventually work per FDR’s 1938 Spaghetti Economic Theory followed by his JUST DO SOMETHING! ANYTHING!!!.

8. Bambi’s getting his задница crushed like a set of Matryoshka by Медведь is no sign of strength. And, breaking the kneecaps of Boehner and Cantor (two cretins that scream ‘Orkin Man, Please!), who went out on a limb to support Obama over Syria when almost the entirety of the country stood on the ground screaming ‘Nyet, Nyet, Nyet!, only to treat them like kulaks even after his global embarrassment. I love you, guys! I hate you, guys! Give me a clean CR and an unlimited debt increase without a ceiling! Be an ‘Yea’ vote or you will be made to cry before the debt ceiling and the CR are done.’

Cheer up! Now that the science is now UNSETTLED and many scientists are warning that we are entering a ice age, you can go back to using more than one-square of toilet plants.

BTW: Bush received the support of the Congress, the UN, NATO, the Arab League, and the American public.

The Authorisation for Use of Military Force Against Terrorists passed the House 420-1-10 and the Senate by a 98-0-2 margin and was signed into law on 18 September 2001.

The Authorisation for Use of Military Force Against Iraq Resolution passed the House 297-133-3 and the Senate by a 77-23 margin and was signed into law on 16 October 2002.

Resist We Much on September 20, 2013 at 12:14 PM

Welcome to the new normal. Brought to you by hope & change.

It’s pretty clear by now. Obama and any future liberal / socialist president can do whatever they want.

With this kind of weapon / info along with all of the other now weaponized agencies, we will potentially see more liberal presidents in the near future. It’s self perpetuating which is exactly what they want. Obama can’t rule for life, so this is the next best thing.

Oxymoron on September 20, 2013 at 12:15 PM

And you wonder why this administration keeps ignoring the law. They get away with it.

TerryW on September 20, 2013 at 12:16 PM

Finally, what were the judges doing about this? One judge threatened a contempt citation, but in the end they signed off on authorizations by the score despite their complaints. If the judges on the FISA court are truly this impotent, then not only do we have an oversight problem, we have a systemic problem on checking executive power entirely.

Game, set and match.

Those Americans who are Socialists, either by design or by default, have so outnumbered those who aren’t, that every facet of the State is now unaccountable and unrestrained.

When this happens, tyranny will necessarily follow.

It will happen, here.

OhEssYouCowboys on September 20, 2013 at 12:31 PM

Thugs a la Mugabe’s Zimbabwe

Schadenfreude on September 20, 2013 at 12:59 PM

But maybe, like so many here, you were a full throated cheerleader… then?

verbaluce on March 7, 2013 at 5:54 PM

…of Obama, who promised to:

1) Lower the sea levels

2) Close GITMO

3) End rendition

4) Obey the Constitution.

5)

‘We have to have enough troops that we’re not just air-raiding villages and killing civilians.’

– Senator Barack Obama, 2007

‘These strikes are legal, they are ethical and they are wise.’

– Obama Spox Jay Carney, 5 February 2013

6) Refuse to intervene in affairs of sovereign nations, except if:

a) They want us to help draft their constitution. If so, there must be an absolute right to abortion point of gestation, on-demand, and for no cost. Right, Kenya?

b) Want our cooperation and aid, Senegal? Decriminalise and embrace homosexuality!

To which Senegalese President Macky Sall replied:

‘These issues are all societal issues basically, and we cannot have a standard model which is applicable to all nations, all countries — you said it, we all have different cultures. We have different religions. We have different traditions. And even in countries where this has been decriminalized and homosexual marriage is allowed, people don’t share the same views.’

7) To be transparent and accurate, especially with Syria:

1) United States = 1,429 died from sarin gas;

2) Médecins Sans Frontières = 355 from sarin gas & they are on the ground;

3) Syrian Observatory for Human Rights = 322 from sarin gas & they are on the ground.

8. Close the inequality gap, which has increased under his watch to a point not last seen since the 1920s. Spreading the wealth, evidently, means ‘Bread and Circuses’ for the poor and more wealth for the Ruling Class & its cronies.

9. Africans, who are, evidently, under some tribal vex that gives them the silly idea that they, too, can drive any car they want, have A/C, and trade in their pushcart for a real car. See: Obama To Africans: If You Get A/C, Cars, & Nice Houses Like Everyone Else, ‘The Planet Will Boil Over’).

10. Playing King Canute with ‘road and bridges,’ ‘school teachers and firefighters,’ and ‘Infrastructure eL3vEnTy111!!!111′ will eventually work per FDR’s 1938 Spaghetti Economic Theory followed by his JUST DO SOMETHING! ANYTHING!!!

11. Like Rahmallerina, he could again pivot to jobs for the umpteenth time. I counted 15 in ‘Awesomely Awesome News! Awesomely Awesome Obama Plans An Awesomely Awesome ‘PIVOT’ To Awesomely Awesome Jobs For The Awesomely Awesome 15th Time!…but that was back on 4 August 2011. He’s been an useless swirling pivoting dervish ever since.

Bambi’s getting his задница crushed like a set of Matryoshka by Медведь is no sign of strength. And, breaking the kneecaps of Boehner and Cantor (two cretins that scream ‘Orkin Man, Please!), who went out on a limb to support Obama over Syria when almost the entirety of the country stood on the ground screaming ‘Nyet, Nyet, Nyet!,’ only to treat them like kulaks even after his global embarrassment. ‘I love you, guys! I hate you, guys! Give me a clean CR and an unlimited debt increase without a ceiling! Be a ‘Yea’ vote or you will be made to cry before the debt ceiling and the CR are done.’

Cheer up! Now that the NOW-NOT-SO-SETTLED-SCIENCE is pointing in the direction of – and many scientists agree – a possibly coming ice age, you can give using more than one-square of toilet plants.

BTW: Bush received the support of the Congress, the UN, NATO, the Arab League, and the American public for both Afghanistan and Iraq.

AUMF tallies:

The Authorisation for Use of Military Force Against Terrorists passed the House 420-1-10 and the Senate by a 98-0-2 margin and was signed into law on 18 September 2001.

The Authorisation for Use of Military Force Against Iraq Resolution passed the House 297-133-3 and the Senate by a 77-23 margin and was signed into law on 16 October 2002.
.
.
Afghan Polls:
.
.
CNN/Gallup/USA Today (October, 2011):

* 88% of Americans backed military action in Afghanistan

Gallup (July 10–12, 2009):

* 61% of Americans in sending military forces in 2001.

* 36% of Americans DO THINK THE U.S. MADE A MISTAKE in sending military forces in 2001.

* 54% also thought things are going well for the U.S.

Angus Reid poll (July 15–18, 2009):

* 55% of Americans support the military operation.

* 35% oppose it.

* 49% of Americans thought their country did the right thing in sending military forces.

* 48%, of Americans felt that they did not have a clear idea of what the war is about.

A Washington Post–ABC poll (July 2009):

* 51% think the war is worth fighting

* 45% think the war is not worth fighting

* 46% think significant progress is being made toward winning

* 42% think no progress is being made and we should leave

.
.
ON IRAQ:
.
.
1992 (March):

* 55% of Americans said they would support sending American troops back to the Persian Gulf to remove Saddam Hussein from power

Gallup (Feb 2001):

* 52% would favour an invasion of Iraq

* 42% opposed it.

* 64% said that the U.S. should have removed Saddam at the end of the Gulf War.

CBS News:

* 2/3rd wanted the government to wait for the UN inspections to end.

* 31% supported using military force immediately.

* This same poll showed that a majority believed that Iraq had weapons of mass destruction, but did not expect UN inspectors to find them.

* 60% of those polled also supported, if necessary, the use of military action to remove Saddam from power.

Time Magazine, CNN, Fox News, USA Today, CBS News produced similar responses.

ABC News poll:

* 10% of Americans favoured giving the inspectors less than a few weeks;

* 41% favoured giving them a few weeks;

* 33% favoured giving them a few months; and,

* 13% more than months; perhaps, years or decades.

Gallup (Feb)

* 52% would favour an invasion of Iraq;

* 42% would oppose it;

* 64% said that the U.S. should have removed Saddam at the end of the Gulf War.

Gallup:

* 67% speech watchers: case made

* The figure was 47% before the speech.

ABC News: Little difference in the percentage of Americans who felt that Bush has made his case for war after he had made his speech, with the percentage remaining at about 40%.

As an aside, Obama’s Syria speech resulted in a whole 9% agreeing with his demand that we take military action against the sovereign country of Syria without or without approval from Congress, the support from the American people, the approval of NATO, the authorisation of the United Nations, a large ‘coalition of the willing – France doesn’t sount) and the assent of the Arab League.

USA TODAY/CNN/Gallup Poll taken days before the March 20 invasion:

* Support for the war was related to UN approval.

* 60% said they were ready for such an invasion ‘in the next week or two.’

* 54% of Americans favored a U.S. invasion even if the U.N. Security Council were to reject a resolution paving the way for military action.

* If the Bush administration did not seek a final Security Council vote, support for a war dropped to 47%.

Gallup/CNN/ USAToday (May 2003):

CNN/USA Today Poll:

* 79% of Americans thought the Iraq War was justified, with or without conclusive evidence of illegal weapons.

* 19% thought weapons were needed to justify the war.

I did not support the Iraq War, but I, unlike many, at least have the principles and scruples to maintain that position. If anyone is interested in the reason ‘behind the scenes’ by support for Iraq was high before the 2004 presidential election, look no further than John Kerry’s campaign manager, Bob ’0-7′ Schrum. I’ll try to find the statement.

Read what Democrats had to say about Hussein and his WMD BOTH BEFORE AND AFTER BUSH BECAME PRESIDENT.

Don’t let it be forgot
That once there was a spot
For one brief shining moment that was known
As All-Then-Plot.

Resist We Much on September 20, 2013 at 1:36 PM

Don’t let it be forgot
That once there was a spot
For one brief shining moment that was known

As All-Pre-Plot.

Or

As AllUniteAlot.

Resist We Much on September 20, 2013 at 1:39 PM