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.
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.
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.
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.
“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.
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.