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.