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.
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.
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.
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.
“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.”
