DOJ Unveils New Reforms to Improve Oversight of FISA Surveillance of Elected Officials, Campaigns

September 1, 2020 Updated: September 1, 2020

The Justice Department (DOJ) and the FBI on Tuesday unveiled several crucial reforms aimed at improving compliance with the Foreign Intelligence Surveillance Act (FISA) process, including more stringent oversight of surveillance applications targeting elected officials and political campaigns.

These reforms are part of the FBI and DOJ’s ongoing efforts to improve compliance and accountability over FISA surveillance after the department came under fire for widespread fundamental and serious errors in the FISA applications used to spy on former Trump campaign associate Carter Page.

Attorney General William Barr issued two memos outlining a series of requirements FBI agents have to meet in order to ensure accuracy of FISA applications and more oversight. One of the memos (pdf) authorizes the establishment of a new internal office inside the FBI that would primarily focus on internal auditing to ensure compliance with the relevant laws and processes.

The other memo establishes protocols for agents to follow to ensure that they make accurate and complete representations to the Foreign Intelligence Surveillance Court (FISC) when seeking legal authority to conduct surveillance activities.

Department of Justice
The Justice Department building on a foggy morning in Washington on Dec. 9, 2019. (Samuel Corum/Getty Images)

One of the rules requires FBI agents to ensure that any use of FISA to surveil federal elected officials, candidates for federal elected office, or their advisers or staff is justified, non-partisan, and based on full and complete information.

“When those activities involve federal elected officials, federal political candidates, or their respective staff members, the Department must be especially vigilant. Such intelligence activities must be subject to rigorous review to ensure that they are justified and non-partisan, are based on full and complete information, take into account the significant First Amendment interests at stake, and do not undermine the political process,” the memo (pdf) stated.

It also requires FBI officials to consider conducting a defensive briefing of a political candidate or a federal elected official target before seeking a FISA warrant. If the official chooses not to, they must document the reasons for not doing so in writing. Meanwhile, these applications must also be approved by the attorney general.

The memo also requires the FBI to develop a process to prevent Americans from becoming unwitting participants in malign influence operations by foreign powers to influence an election, policy, or conduct of the federal government. It also requires the FBI to create disciplinary actions for individuals who knowingly misrepresent facts to the FISC.

“FISA is a critical tool to ensuring the safety and security of Americans, particularly when it comes to fighting terrorism. However, the American people must have confidence that the United States Government will exercise its surveillance authorities in a manner that protects the civil liberties of Americans, avoids interference in the political process, and complies with the Constitution and laws of the United States,” Barr said in a statement.

“What happened to the Trump presidential campaign and his subsequent Administration after the President was duly elected by the American people must never happen again,” he added.

“The additional reforms announced today, which we worked on closely with the Attorney General’s office, will build on the FBI’s efforts to bolster its compliance program,” FBI Director Christopher Wray also said in the statement.

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Former Trump campaign associate Carter Page arrives at a courthouse in New York City, N.Y., on April 16, 2018. (Drew Angerer/Getty Images)

In December 2019, DOJ Inspector General Michael Horowitz released a report that found “at least 17 significant errors or omissions” and “many additional errors in the Woods Procedures” in FISA applications to monitor Page. The FISA applications relied on an unverified opposition research dossier that was compiled by former foreign spy Christopher Steele, who was hired by opposition research firm Fusion GPS and funded by Hillary Clinton’s presidential campaign and the Democratic National Committee.

The dossier’s claims eventually served as the foundation of the Trump–Russia narrative generated by media outlets, anti-Trump politicians, and Obama administration officials. But none of the 103 key allegations contained in the Steele dossier were verified by former special counsel Robert Mueller’s 22-month investigation.

After the December report, Horowitz expanded his review to determine whether the bureau was complying with processes in other FISA applications as part of his ongoing audit.

The follow-up review determined that FBI agents broke the bureau’s policy by failing to follow the “Woods Procedure,” which requires agents to compile supporting documentation for each fact in a FISA application, according to a memo (pdf) released by Horowitz last month. The Woods Procedures were implemented in 2001 in an effort to “minimize factual inaccuracies in FISA applications” as well as to ensure that the statements are “scrupulously accurate.”

Horowitz reviewed a sample of 29 FISA applications spanning a five year period from eight FBI field offices. Of those, the FBI could not locate the Woods files—a record of that contains documentation that substantiates facts asserted in a FISA application—for four of the applications selected for review.

Meanwhile, the office “identified apparent errors or inadequately supported facts” in the Wood files of the other 25 applications.

Wray had previously expressed “deep regret” over the bureau’s errors and ordered more than 40 corrective steps to address the issues in January.

Ivan Pentchoukov contributed to this report.

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