Justice Department Review Finds More Errors in FBI Surveillance Applications

April 11, 2020 Updated: April 11, 2020

A Justice Department internal review has identified that the FBI had made “material errors and omissions” in two surveillance warrant applications, according to a newly unsealed court filing.

The errors were disclosed to the Foreign Intelligence Surveillance Court (FISC) in a redacted 54-page filing made on April 3. The filing, which was made public this week, lays out the steps the DOJ and FBI had taken to address issues in the accuracy of surveillance applications and the credibility of confidential human sources that are relied on in an investigation.

The department did not identify which investigations the errors were found in but said they were discovered during accuracy reviews conducted by the department’s National Security Division in 2019. That year, the department conducted 30 reviews revealing “two material errors” in one application and “some material omissions” in another application after an accuracy review and subsequent follow-up discussions were carried out while preparing for a renewal application.

It was determined in both cases that probable cause still existed to find that the targets of the warrant were acting as foreign intelligence agents.

“In both of these cases, the government reported these errors and omissions to the court and assessed that, notwithstanding these errors or omissions, probable cause existed to find that the targets were acting as an agent of a foreign power,” according to the filing.

The department has been taking steps to improve the process of their surveillance applications submitted to the Foreign Intelligence Surveillance Court after a DOJ watchdog report, released in December 2019, found “at least 17 significant errors or omissions” and “many additional errors in the Woods Procedures” in Foreign Intelligence Surveillance Act (FISA) applications to monitor former Trump campaign associate Carter Page.

After the December report, DOJ Inspector General Michael 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 Horowtiz 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.

FBI Director Christopher Wray expressed “deep regret” over the bureau’s errors and ordered more than 40 corrective steps to address the issues in January. The court filing provides an update and details as to what the bureau has done to resolve the problems.

Some measures include developing a checklist that agents can use to determine the reliability of a confidential human source used in a FISA application, according to the court filing. Other steps include revising the FISA request forms completed by agents.

“This checklist will aid OI attorneys’ proactive approach in eliciting all material information about CHS reliability, bias, and motivation from the FBI agent,” the filing states.

The accuracy reviews, which involve travel and in-person visits to FBI field offices, have been put on pause due to the CCP virus pandemic but will eventually resume “with a 50 percent increase in oversight positions and increased rigor,” including unannounced reviews, said John Demers, DOJ’s assistant attorney general for National Security.

“As the filing shows, the Department takes its oversight responsibilities seriously and reports all potentially material errors to the Court promptly,” Demers said in a statement.

The FBI said in a separate statement that it is confident the steps it is taking will address the problems identified by the inspector general, and that it will continue updating the court on the progress it makes.

Meanwhile, Attorney General William Barr told Fox News in an interview aired on Thursday he thinks it is possible to go forward with the FISA process if “a regime that would make it very hard to either wilfully circumvent FISA or to do so sloppily without due regard for the American person involved” was put in place.

“I think it’s very sad. And the people who abused FISA have a lot to answer for because this was an important tool to protect the American people,” Barr said. “They abused it. They undercut public confidence in FISA but also the FBI as an institution and we have to rebuild that.”

The Associated Press contributed to this report.

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