The US Department of Justice’s internal oversight body did not investigate complaints by federal intelligence court judges that government lawyers misrepresented how the NSA gathered and analyzed data from American phone and internet communications.
Two judges on the Foreign
Intelligence Surveillance Court (FISC), which oversees the spying operations of the
National Security Agency (NSA), on several occasions admonished
federal officials for misstating the scope of the NSA’s
collection of communication data.
In 2009, Judge Reggie Walton threatened to hold the officials in contempt or refer them to outside investigators. Department of Justice (DOJ) lawyers asked the judge to do neither, claiming that any misinformation was solely due to confusion and that the NSA had “self-reported” the issues to its own inspector general.
In 2011, Judge John Bates said that government lawyers distorted the monitoring of internet traffic. “The court is troubled that the government's revelations regarding NSA's acquisition of internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program," he wrote in a previously disclosed 2011 order.
The Office of Professional Responsibility (OPR) is charged with probing judicial allegations of government lawyer misconduct and ethical violations. However, OPR said in response to a Freedom of Information Act request by USA Today that it had no record - nor was it even aware - of any investigations of the FISC complaints.
The allegations within the judges’ opinions - which did not allege wrongdoing nor point to any specific individual of the DOJ’s National Security Division - are enough to warrant an investigation, said former OPR attorney Leslie Griffin. "There's enough in the opinions that it should trigger some level of inquiry," she said.
The FISC complaints were declassified in August following numerous disclosures leaked by former NSA contractor Edward Snowden on the breadth of the agency’s mass surveillance programs.
A Justice Department spokesman said Thursday that the DOJ 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."
National Security Division lawyers help the NSA prepare spy orders to the FISC. Records show that on at least two occasions, the DOJ’s lawyers alerted the secret surveillance court that the government had misled the nature of NSA surveillance. FISC judges have since requested that DOJ lawyers play a larger role in oversight.
"These were not abuses of surveillance authority, and the errors were not made intentionally," said Carrie Cordero, a lawyer who worked for the National Security Division in 2009. "This was lawyers translating highly technical information."
Critics see the lack of investigation as a sign of weak oversight of the surveillance apparatus.
"What's surprising to me is that the FISA Court judges remain surprised" about having been misinformed, American Civil Liberties Union (ACLU) privacy lawyer Mike German said.
The DOJ requires its lawyers and their supervisors to notify the OPR of "any indication by a judge or magistrate judge that the court is taking under consideration an allegation of professional misconduct.”
The OPR monitors complaints about government lawyers made by judges in federal court decisions. It then decides whether to investigate the claims. For example, the OPR conducted a five-year investigation of George W. Bush-era DOJ lawyers John Yoo and Jay Bybee, who provided legal memos justifying the use of torture on terrorism suspects.
Director of National Intelligence James Clapper said in a statement last week that "significant steps” were taken to address the issues that Walton raised in his 2009 opinion when DOJ lawyers said that misinformation was due to confusion within the NSA about how surveillance programs were allowed to operate.
A spokeswoman for the NSA said she was unable to comment on what was done to remedy the discrepancies.
Neither Walton nor Bates would offer an opinion on whether the DOJ should have done its own investigation.