Department of Justice (DOJ) Inspector General Michael Horowitz has told FBI Director Christopher Wray that, as a result of a recent audit, he does “not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy.”
Woods Procedures refer to supporting factual documentation underlying any application for a FISA warrant. The recent audit was spurred by the Inspector General’s (IG) investigation into the FBI’s spying on former Trump campaign adviser Carter Page. That report identified “at least 17 significant errors or omissions in the Page FISA applications, and many additional errors in the Woods Procedures.”
As a result of these many errors, two of the renewal FISAs have since been deemed invalid by the DOJ and the first two remain under review.
In his March 30 memo, Horowitz notes that he believes that the errors in the Woods files represent “a deficiency in the FBI’s efforts to support the factual statements in FISA applications” and, as a result, “undermines the FBI’s ability to achieve its ‘scrupulously accurate’ standard for FISA applications.”
To obtain a FISA warrant, the FBI is required to show that a U.S. citizen is an agent of a foreign power. FISA warrants allow for some of the most intrusive spying on American citizens.
As part of the IG’s probe, eight FBI field offices “of varying sizes” were visited over the past two months. A sample of 29 out of 700 applications for FISA warrants on U.S. persons that had been submitted by these field offices over a five-year period—from October 2014 to September 2019—were reviewed. The time period includes the FBI directorships of both James Comey and Wray, along with approximately four months in 2017 when Andrew McCabe was the acting FBI director.
The IG investigation didn’t attempt to verify the underlying validity of these FISAs, but instead focused only on whether the “contents of the FBI’s Woods File supported statements of fact in the associated FISA application.”
Four reviews were unable to be completed because the FBI couldn’t locate the underlying Woods files, and each of the other 25 applications the IG’s team reviewed contained material errors.
In three out of the four cases where the Woods files couldn’t be found, the FBI told the IG it didn’t know if the Woods files had ever existed.
“FBI and NSD [DOJ’s National Security Division] 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,” the IG memo states.
The IG noted that while his “review of these issues and follow-up with case agents is still ongoing,” the IG had identified an average of 20 “issues” per application, which ranged from a low of “less than five issues” to a high of 65 issues within a single application.
Horowitz defined “issues” to mean that facts stated in the FISA application were:
(a) not supported by any documentation in the Woods file,
(b) not clearly corroborated by the supporting documentation in the Woods file, or
(c) inconsistent with the supporting documentation in the Woods file.
Despite the material number of issues found by Horowitz, it appears that the FISA court issued a surveillance warrant in each of the cases reviewed by the inspector general.
Use of Confidential Human Sources
Additionally, the IG noted that approximately 50 percent of the FISA applications audited by his office utilized Confidential Human Sources (CHS).
As the IG notes, “Woods Procedures require that when a FISA application contains reporting from an FBI CHS, the Woods File must include documentation from the handling agent or CHS coordinator (or either of their immediate supervisors) stating that: (1) this individual has reviewed the facts presented in the FISA application regarding the CHS’s reliability and background; and (2) based on a review of the CHS file documentation, the facts presented in the FISA application are accurate.”
It appears that procedures were often not followed regarding proper documentation and fact-checking of these CHSs, with the IG noting that for many of the FISA applications, “we found that the Woods File lacked documentation attesting to these two requirements.”
Of the 29 FISA applications reviewed, two of them required renewals. As Horowitz notes, prior to making a formal application request to the FISA Court for renewal, the case agent is required to “re-verify that statements of fact repeated in a renewal application from an initial FISA application remain true and must obtain supporting documentation for any new statements of fact included in the renewal application that goes to the FISC for approval.”
However, the IG found that “the FBI is not consistently re-verifying the original statements of fact within renewal applications.”
The IG noted that in one instance, he observed errors made in the initial application being carried over into the renewal and in other instances, was told by the preparing case agent 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.”
As the IG notes, “this practice directly contradicts FBI policy.”
Review of Internal Audits of FISA Applications
In addition to the 29 FISA applications from the eight FBI field offices, Horowitz also examined the annual accuracy reviews undertaken by the Chief Division Counsel (CDC) at each of the examined FBI field offices. As Horowitz notes, FBI policy requires that the CDC at each FBI field office select one FISA application each year for accuracy review. These reports are then sent to the FBI’s Office of General Counsel at FBI headquarters.
Separately, the NSD Office of Intelligence (OI) is required to conduct its own accuracy review of at least one FISA application from each of the FBI’s “25 to 30 different field offices.”
The accuracy reviews by both the CDC and the OI are required to be performed on a FISA application that has been approved by the FISA court. The IG received a total of “34 FBI CDC and NSD OI reports addressing 42 separate U.S. Person FISA applications” from the eight field offices visited by the IG.
These reviews aren’t focused on assessing compliance with Woods Procedures and instead focus on whether “support exists at the time of the FBI CDC or NSD OI review for each factual assertion in the FISA application under review.” Each field office can decide on a case-by-case basis whether or not to include the Woods file as part of the support for the review.
Notably, the field offices are “given advance notification of which FISA application(s) will be reviewed and are expected to compile documentary evidence to support the relevant FISA application(s).” In other words, each field office knows in advance which FISA application will be audited and has ample time to reexamine and rereview the application in advance of the accuracy audit.
The IG rightly noted that “this method should identify fewer unsupported facts in the application than would result from only reviewing the Woods File … because the responsible personnel are aware of the upcoming review and given time to gather any existing documentation to support the factual assertions in the FISA applications.”
The CDC and NSD OI accuracy review reports of the 42 U.S. person FISA applications “routinely identified deficiencies in documentation.”
Only three of the 42 FISAs weren’t flagged for errors and the other 39 applications identified a total of “about 390 issues, including unverified, inaccurate, or inadequately supported facts, as well as typographical errors.”
The 34 reports (covering the 42 FISAs) reviewed by the IG indicate that none of the 390 “identified issues” were “deemed to be material.” However, the IG also noted that the DOJ’s Office of Intelligence, which provides a determination of whether a misstatement or omission of fact identified during an accuracy review is material, hadn’t been asked to make materiality determinations, nor had they received the FBI CDC accuracy reviews—which accounted for approximately 250 of the issues in the reports reviewed by the IG.
The IG memorandum notes that regarding both the FBI CDC and NSD OI accuracy reviews, “no comprehensive, strategic analysis of the cumulative results is performed at the FBI headquarters level,” meaning that the issues related to the FISA warrants aren’t systematically addressed.
“The accuracy reviews were not being used by the FBI as a tool to help assess the FBI’s compliance with its Woods Procedures,” the IG report states.
Horowitz apparently found the levels of errors and omissions so great that he felt compelled to draft the memorandum to FBI Director Wray, even though his investigation hasn’t been completed, and the IG himself referred to his results as “preliminary.”
The importance of Horowitz feeling compelled to interrupt his audit in order to inform Wray was recognized by Sen. Charles Grassley (R-Iowa), who said in a statement:
“Based on the inspector general’s audit, the flawed Page case appears to be the tip of the iceberg. Not a single application from the past five years reviewed by the inspector general was up to snuff. That’s alarming and unacceptable. The inspector general’s decision to bring these failures to the director’s attention before its audit is even completed underscores the seriousness of these findings.”
Expanding IG Probe
Horowitz stated that his continuing audits were being expanded beyond the FBI and into the DOJ’s National Security Division.
The IG made an immediate recommendation that the FBI, in coordination with the NSD systematically “examine the results of past and future accuracy reviews to identify patterns or trends in identified errors.”
Horowitz also recommended that the FBI perform a wholescale physical audit to “ensure that Woods Files exist for every FISA application submitted to the FISC in all pending investigations.”
Deflection for Problems With Page FISA
The findings of systemic problems of the FBI in its FISA applications might be used as a defense for the many errors found within the Carter Page FISA applications. Michael Bromwich, the lawyer for fired Deputy FBI Director Andrew McCabe, wrote on Twitter following the release of the IG memo:
“Further evidence that the problems with the Carter Page FISA applications had nothing to do with Trump, Carter Page, or political bias. Statements to the contrary from @LindseyGrahamSC and his GOP colleagues on Senate Judiciary were baseless.”
However, this approach ignores several significant issues specific to the Page FISAs. Kevin Clinesmith, a senior attorney in the FBI’s Office of General Counsel, has reportedly been referred for criminal prosecution by Horowitz for allegedly altering an email connected to the renewal of a FISA warrant on Page.
Clinesmith’s email alteration deliberately removed the fact that Page had “a prior relationship” with another governmental agency and was used in a crucial part of the Page FISA renewals.
Clinesmith allegedly “took an email from an official at another federal agency that contained several factual assertions, then added material to the bottom that looked like another assertion from the email’s author, when it was instead his own understanding.”
This altered email was then included in a package that was prepared for another FBI official to read in “preparation for signing an affidavit” to be submitted to the FISA court, “attesting to the facts and analysis” in the application.
It’s worth noting that despite some media portrayals of Clinesmith as a low-level attorney, he was actually “the primary FBI attorney assigned” to the FBI’s counterintelligence investigation into alleged Russian election interference beginning in early 2017.
A second issue specific to the Page FISA pertains to the unusual, and early, involvement of McCabe and then-Deputy Attorney General Sally Yates.
Trisha Anderson, the principal deputy general counsel for the FBI and head of the bureau’s National Security and Cyber Law Branch, approved the application for a warrant to spy on Page before it went to then-FBI Director James Comey. According to Anderson, pre-approvals for the Page FISA were provided by both McCabe and Yates, before the FISA application was ever presented to her for review.
“[M]y boss and my boss’ boss had already reviewed and approved this application. And, in fact, the Deputy Attorney General, who had the authority to sign the application, to be the substantive approver on the FISA application itself, had approved the application. And that typically would not have been the case before I did that,” said Anderson.
Anderson told investigators that the Page FISA “was handled a little bit differently in that sense, in that it received very high-level review and approvals — informal, oral approvals — before it ever came to me for signature.”
The unusual preliminary review and approval from both McCabe and Yates appear to have had a substantial impact on the normal review process, leading other individuals such as Anderson to believe that the Page FISA was more vetted than, perhaps, it really was. It isn’t known why McCabe and Yates both chose to insert themselves at an early stage into the Page FISA process.
The FISA court has also discussed the FBI’s mishandling of the Page FISA. A declassified Jan. 7 order, released by Presiding FISA Court Judge James Boasberg, revealed that the Department of Justice (DOJ) has determined that two of the four FISA surveillance applications on Page were “not valid.”
The court wrote that it had received notice of “material misstatements and omissions” in the Foreign Intelligence Surveillance Act (FISA) applications made on Page, apparently with respect to the final two FISA renewals. The court also noted that the DOJ had made the assessment that with regard to the two applications, “there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power.”
The order also noted that while the DOJ hasn’t yet made a determination on the validity of the first two FISA applications, the department intends to have the FBI sequester information relating to those first two orders “in the same manner as information acquired” in the final two renewals that have now been determined to be invalid.