The FBI’s inability (or unwillingness) to craft factual FISA court affidavits was exposed late last year by an investigation by the DOJ’s Inspector General. During the FBI’s surveillance of former Trump advisor, Carter Page, information known by the agency was omitted to allow agents to continue its interception of Page’s communications. Despite having obtained info showing Page was likely not acting on behalf of a foreign power, the FBI continued its surveillance for months by hiding this key finding from the FISA court.
The fallout from this report continues. The FISA Court banned the FBI agent who lied on the warrant applications. The court also instructed the FBI to start cleaning up its Carter Page mess, including tracking down where any other info it might have illegally collected in this case might have gone, in order to prevent further violations by other agencies in the future.
Current and former DOJ/FBI officials made it clear the FBI’s questionable actions in this case were only the agency’s most current violations. The skirting of internal guidelines and the truth itself was a common practice dating back nearly 20 years.
The Inspector General’s findings in the Page investigation were the tip of the unexpected iceberg. The IG is now looking at the rest of the FBI’s FISA work. And the office is finding even more to be concerned about.
The finding of broader failings in the Foreign Intelligence Surveillance Act program came in a review launched by Justice Department Inspector General Michael Horowitz after an earlier inquiry found numerous errors in applications to monitor former Trump campaign foreign policy adviser Carter Page. In a bid to assess whether the faults in the Page’s surveillance process were an aberration or a chronic problem, Horowitz’s audit team zeroed in on 29 applications for surveillance of U.S. citizens or green-card holders over a five-year period.
Horowitz found an average of 20 errors in each of the applications.
It’s impossible to say how many of these errors were accidental or deliberately induced. But an average of 20 errors per application is breathtaking, considering the FISA court’s national security focus. This is where the government should be the most careful and the FBI clearly isn’t. And if this is where the FBI’s top agents end up, you have to wonder how many errors normal, non-FISA applications contain.
There’s a specific set of policies the FBI is supposed to adhere to when asking the FISA court for permission to engage in domestic surveillance. Even the most minimal conditions of the Woods Procedures aren’t being followed by agents. The Procedures say the FBI must compile and retain supporting documentation to ensure FISA applications are “scrupulously accurate.” We already know the applications aren’t accurate. The report [PDF] points out at least one reason why:[W]e could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed…
The system appears to be broken from the ground up. The applications contain errors. The supporting information isn’t accurate when it isn’t missing completely. Interviews with agents and supervisors by the IG reveal this has been an ongoing problem for years now. And no one up top is doing anything to fix it.
FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.
Every 90 days, the FBI is supposed to justify continued surveillance to the FISA Court. It did this multiple times during the Carter Page investigation, continuously omitting facts that would have resulted in its surveillance being terminated. The FBI does this in multiple cases, apparently. A mixture of malice, stupidity, and laziness has resulted in the mess observed by the Inspector General.[B]ased on the results of our review of two renewal files, as well as our discussions with FBI agents, it appears that the FBI is not consistently re-verifying the original statements of fact within renewal applications. In one instance, we observed that errors or unsupported information in the statements of fact that we identified in the initial application had been carried over to each of the renewal applications. In other instances, we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application. This practice directly contradicts FBI policy.
The FBI agrees with the IG’s assessment that it’s terrible at following its own policies. But the response attached to the IG report — crafted by the Deputy FBI director — says things will be fine because… the FBI is creating more policies![T]he FBI has been intensely focused on implementing these remedial measures with the goal of ensuring that our FISA authorities are exercised with objectivity and integrity. Among many other changes, we revised FISA request and verification (Woods) forms, developed a new confidential human source checklist, developed and released training on this checklist, developed and provided new training on revised FISA forms, and developed new FISA process rigor training. The revised Woods form now requires agents and supervisors to attest to their diligence in re-verifying facts from prior applications. All Woods forms, both for initial applications and renewals, must now be scanned and maintained in the electronic case file. These already-implemented changes will drive accountability, accuracy, and completeness in the FISA process.
All of this new paperwork doesn’t mean anything if the FBI isn’t going to make sure agents follow it. The problems seen in 2002 still exist nearly 20 years later, and that’s after the implementation of additional policies following every successive reaming from the Inspector General and the FISA Court. If the FBI isn’t going to start engaging in serious oversight — including meaningful discipline of agents who fail to follow policies — the problems will continue. The only change will be the length of oversight reports, which will contain details of all the new ways the FBI is ignoring its own protocols.