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.
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.