A drama played out last week between USA Today reporter Brad Heath and the Department of Justice, Office of Professional Responsibility. At Techdirt, Mike Masnick reported it, and Ken at Popehat followed it up. It matters because Brad has done some extraordinary investigations into systemic impropriety, and made some enemies along the way.
It began with Brad trying to FOIA documentation to find out what the OPR had done after the release of classified decisions showing that the FISA court had thrice chastised the DOJ for presenting misleading information to the court.
Heath had sent the DOJ a FOIA request to the DOJ’s Office of Professional Responsibility (OPR) asking basically whether or not the OPR had been involved in any investigation concerning the recently declassified FISA Court order, about how the NSA had misled the FISA court and abused its capabilities repeatedly.
This resulted in a series of emails with DOJ’s chief flack Brian Fallon.
The DOJ claimed that there were no responsive documents — which even by itself is quite incredible. Heath appears to have then followed up with Fallon at the DOJ to seek comments. Fallon’s response by itself is stunning:
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.
And so, the gauntlet was thrown down. Brad had information from former assistant United States attorneys who worked in the Office of Professional Responsibility stating that such an order, even if non-public, should have generated an investigation into how the government misled the court in three separate cases. Fallon wasn’t impressed with Brad’s dedication to his nation.
Fallon responds that he’s “done negotiating” and claims that he “will work with someone else afterwards explaining why what you reported is off base.”
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
As if Brad was being tested by Fallon, he published his USA Today story, offering the only conclusion possible under the circumstances:
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.
This is where the shoe was supposed to fall, where Fallon made good on his threat to smack Brad’s story with his bias, his misinformation, his closed mind, his refusal to promise to kill his story. And the shoe turned out to be a flip flop:
In an email to POLITICO, Fallon explained why he didn’t think Heath should be reporting on the lack of an OPR investigation.
“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.”
That’s it. That’s the smack the government delivered, that it didn’t think it did anything wrong in misleading FISC three separate times. They didn’t do anything wrong. It was just hard to get it right because it was so complicated that government attorneys couldn’t be expected to get their facts straight. Stercus accidit, you know.
Oddly enough, there may be some truth in Fallon’s contention, that government lawyers are simply not up to the task of providing accurate information to a court in an ex parte proceeding. While AUSA’s have a tendency to believe that there is nothing, absolutely nothing, they haven’t mastered, many of us on the other side have watched, whether in bemusement or dread, as they got things horribly wrong.
But you can’t tell an AUSA they have no clue what they’re talking about. It makes them very angry to be told they aren’t brilliant, and they tend to take it out inappropriately. They may not understand drug dealing, corporate finance or technology, but they know only too well how to exercise discretion in a way to maximize harm.
What Fallon didn’t comprehend, however, is that even if his contention is right, that there was no misconduct in the sense of a deliberate effort to mislead the court, the same need for inquiry exists if the DOJ is providing false and inaccurate information to the FISC, upon which courts rely in issuing orders that give rise to massive intrusions into personal privacy. There are two levels of wrong happening here, the first being that courts are being misinformed, the second being that they are being intentionally misinformed. While the latter is malevolent, the former is incompetent. That’s not really the sort of thing the government ought to be proud of.
Brad Heath did what he should have done as a reporter. He sought all voices, but refused to commit to buy in advance. That Fallon thought this would somehow embarrass Brad suggests that he’s run head-on into the Peter Principle. But no one really cares if Fallon makes a fool of himself. What does matter is that Fallon, apparently inadvertently, announced to the world that the Department of Justice is incompetent to handle the task of conveying accurate and factual information under FISA, and cannot, therefore, be trusted to provide the court with reliable information upon which to plunder the communications metadata of Americans.
Thanks for the info, Fallon. And thanks to Brad for again providing us with a better and deeper grasp of how our government is doing its job.