One July day some years ago a bunch of guys signed a manifesto that included this line:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
This was a bold proclamation of a Lockean ideal: a government's legitimacy depends on the consent of those it rules.
It's easy to assume that consent is only manifested directly through voting. It's not. It's also manifested indirectly through voting. We vote for representatives, and those representatives pass the laws we want — including restrictions on government power — or we vote against them next time. Laws restricting government power are a crucial manifestation of the consent of the governed and its explicit limits.
To which the government of the United States of America says: fuck you.
Brad Heath, a reporter from USA Today, was following up on FOIA requests that sought to determine whether the Department of Justice's Office of Professional Responsibility (which polices and disciplines the lawyers of the Department of Justice) undertook proceedings against any government lawyers when the Foreign Intelligence Surveillance Court ruled government attorneys had lied to it. More specifically, in finding that the United States government "so frequently and systemically violated" oversight laws "that it can fairly be said that this critical element of the overall . . . regime has never functioned effectively," the Court this to say about the representations made by government lawyers:
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.
Give the government some credit, I suppose, for admitting that it lied repeatedly to the court about the scope of a spying program.
It was good journalism for USA Today and Brad Heath to question whether the lawyers who lied to the FISC suffered any consequences for it, or indeed whether the Department of Justice even considered imposing such consequences. Mr. Heath followed up by email with Brian Fallon, Director of the Department of Justice's Office of Public Affairs. (Mr. Fallon used to be the chief spokesman for a United States Senator.) What follows is an infuriating and repulsive display of arrogance by your government and mine. Fallon explains that he does have answers to Heath's questions, and could give them, and they undercut Heath's story, but won't tell Heath because Heath would only write the story. Like a journalist or something:
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.
Fallon later clarified that he views Heath as biased against the notion that he shouldn't write about this at all:
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.
The government broke the law in the course of spying. The government's lawyers then lied about the government breaking the law in the course of representing the government before a court given rather modest power to oversee the government's adherence to the law. The chief spokesperson for the government entity employing the liars thinks that it is biased to want to write a story about whether anyone considered disciplining the lawyers involved, and biased to think that lawyers who lie to courts about government lawbreaking should be disciplined. Therefore he will withhold pertinent information from journalists who want to explore such questions, and give it to the sort of journalists who are reliable fluffers of the security state.
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.
If the United States government defies laws that are a manifestation of the consent of the governed and its limits, on what basis can it claim to be a legitimate government? On what basis does it claim our loyalty or obedience?
Maybe you could email Mr. Fallon and ask.
Meanwhile, here is Brad Heath's 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.
Hat tip: Mike Masnick.
Edited To Add: This was Fallon's statement today about this exchange:
"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."
Note that the United States government doesn't merely want to provide its input to the story to get its case out that there was no inquiry because there was no misconduct. The United States government objects to there being a discussion of the issue at all, even though the particular lawyers are not named. Also note that it is the United States government's position that, when a judge complains that the government has misled it three times, that's not in and of itself a sufficient basis to ask OPR to inquire whether there is any misconduct.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
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