DOJ Refuses to Explain How Executive Gets Away with Serial Lies to the FISA Court

USA Today’s Brad Heath asked DOJ a very good question: why haven’t the Executive Branch’s serial lies to the FISA Court ever been referred to Office of Professional Responsibility?

I’ve talked to a former OPR attorney who says the office
would ordinarily review a case in which a judge used that type of language, and that it should have
at least opened an inquiry into these.

Over the past several days, DOJ’s Brian Fallon has been stupendously prickish about Heath’s questions based on his assertion that Heath is biased in his belief that such gross misrepresentations would normally merit some kind of sanction.

I have an answer from OPR, and a FISC judge. I am not providing it to you because all you will do is seek to write around it because you are biased in favor of the idea that an inquiry should have been launched. So I will save what I have for another outlet after you publish.


You are not actually open-minded to the idea of not writing the story. You are running it regardless. I have information that undercuts your premise, and would provide it if I thought you were able to be convinced that your story is off base. Instead, I think that to provide it to you would just allow you to cover your bases, and factor it into a story you still plan to write. So I prefer to hold onto the information and use it after the fact, with a different outlet that is more objective about whether an OPR inquiry was appropriate.

I’ve lost count of the number of times someone in the Executive Branch complains that no one comes to them to get their view on NSA-related questions.

But apparently this is what goes on. If you don’t come in with the Executive Branch’s bias, then they refuse to provide you any information.

I really look forward to seeing which journalist DOJ seems to believe will bring “balance” to this issue.

Update: Heath has published his story.

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.

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.

DOJ insists, however, that 5 years of lying to judges is just the way things are supposed to work.

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.”

Fallon continued spinning for other journalists.

Of course, if DOJ were going to investigate lawyers — as opposed to Keith Alexander or similar — for misconduct and lies, Lisa Monaco, who headed the National Security Division from 2010 until earlier this year. But she’s at the White House now, so off limits for any accountability.

14 replies
  1. Big Bob W says:

    Marcy, when will you be coming out with another book? I ask b/c I want to see you interviewed by Jon Stewart on the Daily Show so that you can bring your special smackdown sauce to a wider audience…


  2. C says:

    Well Ben Wittles seems to be champing at the bit for some material. Or perhaps they’ll “leak” it to David Gregory since he’s been so helpful.

    But on a serious note In my experience whenever a mouthpiece is stuck telling someone that they have “secret info” that undercuts their article then the have nothing. At best he has some hazy stuff that someone might spin as making it ok but if what he had was strong he would release it publicly then dare Brad Heath to write his article hopefully shaming him to silence. If the “info” needs a sympathetic outlet then it has less substance than an OLC memo.

  3. shoirca says:

    “I really look forward to seeing which journalist DOJ seems to believe will bring “balance” to this issue.”

    CNN’s Stephanie Cutter seems a safe pick:

    “A recent Fox News piece reported that she was drafted to assist in the campaign in support of Obama’s aborted strike on Syria. On Monday, the New York Times wrote that she had also been working with the White House to “talk up” failed Federal Reserve candidate Lawrence Summers to the press.

    Hart also caught Cutter referring to herself as part of the White House operation during a conversation on CNN.”

  4. TomVet says:

    @bell: Popehat just put up a post on this a few minutes ago. Here’s what Ken thinks of Brian Fallon:

    Brian Fallon’s contempt for Brad Heath is a measure of the United States government’s contempt for you, and for me. The openness of his contempt — expressed to a reporter who would surely quote him — is a sign of the impunity with which representatives of the United States government break the law and lie about it, confident that they can get away with it.

  5. cwolf says:

    … So I prefer to hold onto the information and use it after the fact,…
    Translation —
    We haven’t invented the perfect lie to float yet – but we believe that after you publish, we can make up a pretty good one to fuck with whatever you write, and curb anyone else who might be thing about messing with the DOJ.

  6. omphaloscepsis says:

    “Historian Henry Steele Commager assessed the Committee’s legacy. Referring to executive branch officials who seemed to consider themselves above the law, he said, ‘It is this indifference to constitutional restraints that is perhaps the most threatening of all the evidence that emerges from the findings of the Church Committee.’ ”

    Clearly not an open-minded historian.

  7. bell says:

    thanks. he said it much better then i could have.. shit like this pisses me off.. how do these folks get into these positions? is being a socio-pathic liar a requirement of a gov’t position high up?

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