Inspector General's Report: Still Lots Of Problems At DOJ Agencies, Who I Now Have To Ask For Permission To See Documents
from the the-overseen-now-run-the-oversight dept
The DOJ's Inspector General Michael Horowitz has a thankless job. His office must look into improper actions by a variety of government agencies that have no interest in being independently overseen, much less inspected generally. The DEA and FBI have both played an instrumental part in undermining his investigations -- so much so that Horowitz has taken his complaints to Congress and suggested legislators punch the unhelpful agencies right in the pocketbook.
The OIG has just released its semi-annual report for 2015, which sums up the highlights and lowlights of six months of investigations. There's more bad news than good, but that's to be expected considering a) the Inspector General is supposed to look into the DOJ's problems, not its heroics and b) the DEA, FBI et al haven't improved their attitude toward being inspected/implementing OIG recommendations.
Case in point on the last one:
The FBI has always received data "tipped" by the NSA from the Section 215 collection. During the same period (2007-2009) the NSA was getting chewed out by FISC Judge Reggie Walton for its abuse of the program, the FBI was having its own issues. IG Horowitz wasn't able to look into this as quickly as he wanted to because the FBI stonewalled him, refusing to grant access to pertinent documents. Horowitz hoped to get to the bottom of this before the Patriot Act reauthorization came up in May, but was unable to.
However, he was able to put the following together. The FBI had put inadequate minimization procedures in place back in 2006, shortly after another Patriot Act reauthorization. The OIG told the FBI to update its procedures in 2008, in order to comply with the reauthorization. The FBI got right on it.
Nevertheless, the OIG found that by mid- 2009, DOJ had not replaced the interim procedures, and FISA Court judges began to issue Supplemental Orders in Section 215 matters requiring DOJ to report to the FISA Court on the implementation of the interim procedures. The Attorney General ultimately adopted final minimization procedures in March 2013.Which lead the IG to this obvious conclusion:
Given the significance of minimization procedures in the Reauthorization Act, the OIG does not believe that DOJ should have taken until 2013 to meet this statutory obligation.That's basically seven years of the FBI using minimization procedures that did not meet statutory requirements. (The Patriot Reauthorization Act of 2005 went into effect in March of 2006.)
The OIG is still looking into other aspects of the FBI's participation in the Section 215 program, but any conclusions it draws will be of historical interest only now that the program is officially dead. These are listed in the "Ongoing Work" section.
The FBI’s use of Section 215 authority under the FISA from 2012 through 2014, including the effectiveness of Section 215 as an investigative tool and the FBI’s compliance with the minimization procedures DOJ approved and implemented in 2013.The FBI isn't the only DOJ agency partaking in broad surveillance efforts. The DEA is also collecting tons of data and information without a warrant.
The FBI’s use of information derived from the National Security Agency’s (NSA) collection of telephony metadata obtained from certain telecommunications service providers under Section 215 of the Patriot Act.
The DEA’s use of administrative subpoenas to obtain broad collections of data or information, including the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data.Other works-in-progress include an examination of the ATF's confidential informant program, the DEA's handling of drug seizures, nepotism and favoritism at the US Marshals Service, issues with the Bureau of Prisons' private contractors and an investigation of the ATF's controversial "Storefront" program, which has taken heat recently because of agents' decisions to turn intellectually-disabled people into shills for fake drug/weapon sales operations before arresting them for their "complicity."
But all of this won't lead to much unless Congress acts to roll back a DOJ policy backed by an Office of Legal Counsel decision.
In particular, in July, DOJ’s Office of Legal Counsel (OLC) issued its opinion, 14 months after it was requested by the then Deputy Attorney General (DAG), which found that Section 6(a) of the IG Act does not entitle the OIG to obtain independent access to grand jury, wiretap, and credit information in DOJ’s possession that is necessary for the OIG to perform oversight of DOJ. Indeed, the OLC opinion concludes that such records can only be obtained by the OIG in certain—but not all—circumstances through disclosure exceptions in specific laws related to those records.This won't just make it more difficult for the OIG to do its job. It will also discourage DOJ employees from coming forward with information about abuse and misconduct.
The OLC opinion also provides that, in all instances, DOJ employees will decide whether access by the OIG is warranted— placing agency staff in the position of deciding whether to grant, or deny, the Inspector General access to information necessary to conduct its oversight. Requiring an Inspector General to obtain permission from agency staff in order to access agency information turns the principle of independent oversight that is contained within the IG Act on its head.
Such a shift in mindset could deter whistleblowers from directly providing information to Inspectors General about waste, fraud, abuse, or mismanagement because of concern that the agency may later claim that the disclosure was improper and use that decision to retaliate against the whistleblower.I'm sure the DOJ feels there's no problem on its end as it pertains to this new policy. But independent oversight is one of the few things standing between DOJ components and incredible amounts of misconduct and abuse. There's far too much power vested in these agencies and the OLC has made it even easier for them to abuse this power and get away with it.