DOJ watchdog finds additional problems with FBI’s surveillance warrant process

A Justice Department watchdog has identified additional errors in the FBI’s surveillance warrant application process after reviewing more than two dozen Foreign Intelligence Surveillance Act (FISA) applications, according to a new publicly released memo. 

Justice Department (DOJ) Inspector General Michael Horowitz informed FBI Director Christopher Wray on Monday that his office did “not have confidence” the FBI was properly following the Woods Procedures, an FBI policy that requires officials to provide supporting documentation to back up factual assertions made in FISA applications. Such applications seek to wiretap individuals on U.S. soil in national security cases.

This review piggybacks on a damning report released in December that found errors and omissions in a FISA application and its renewals that targeted former Trump campaign adviser Carter Page as part of the government’s investigation into Russian interference.

“As a result of our audit work to date and as described below, we do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy,” Horowitz wrote in a management advisory memorandum to Wray.

“Specifically, the Woods Procedures mandate compiling supporting documentation for each fact in the FISA application. Adherence to the Woods Procedures should result in such documentation as a means toward achievement of the FBI’s policy that FISA applications be ‘scrupulously accurate.'”

Horowitz discovered these additional problems after visiting eight FBI field offices and reviewing a selected sample of 29 FISA applications that were tied to both counterintelligence and counterterrorism investigations between October 2014 and September 2019. 

Out of a selected sample of 29 FISA applications, the FBI was unable to locate Woods Files for four or a reason they weren’t completed. Horowitz and his team found an average of 20 issues per each of the other 25 applications they reviewed.

In other words, he discovered problems with all the applications he studied. 

“While our review of these issues and follow-up with case agents is still ongoing—and we have not made materiality judgments for these or other errors or concerns we identified—at this time we have identified an average of about 20 issues per application reviewed, with a high of approximately 65 issues in one application and less than 5 issues in another application,” Horowitz found.

He found that FISA requirements related to applications involving a Confidential Human Source (CHS) were “not being consistently followed,” including information about the handling agent or CHS coordinator who must verify that the facts presented in the FISA application regarding the CHS’s reliability and background.

And the team found the FBI “is not consistently” re-verifying, as required, the original statements of fact when filing FISA renewal applications, in which the case agent must confirm that the facts laid out in the application “remain true” in addition to providing supporting documentation for any new statements that are made.

Horowitz, who says he is continuing to examine the matter, could also find other deficiencies in his ongoing review. His new audit does not appear to review the hefty case files for fact omissions.

President Trump and his allies have long claimed that top government officials cut corners to seek the wiretap on Page during the 2016 election out of bias against Trump, but Horowitz’s latest memo indicates that the issues may be far more pervasive and systemic. 

“As a result of these findings, in December 2019, my office initiated an audit to examine more broadly the FBI’s execution of, and compliance with, its Woods Procedures relating to U.S. Persons covering the period from October 2014 to September 2019,” Horowitz wrote.

Horowitz also emphasizes that he did not weigh in on whether these errors had a material effect on the entire surveillance application. 

“During this initial review, we have not made judgments about whether the errors or concerns we identified were material. Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application,” he continued.

“Our review was limited to assessing whether the FBI’s Woods Files included documentation to support the factual statements in its FISA applications as required by FBI policy; we did not review case files or other documentation to confirm FISA application accuracy or identify any relevant omissions.”

Still, Horowitz raised concerns about the handling of the FBI FISA applications.

“We believe that the repeated weaknesses in the FBI’s execution of the Woods Procedures in each of the 29 FISA applications we reviewed to date— including the 4 applications for which the FBI could not furnish an original Woods File—raise significant questions about the extent to which the FBI is complying with its own requirement…” Horowitz wrote.

Horowitz said he will continue to examine FISA applications as well as expand the audit to include FISA application accuracy efforts performed within the National Security Division of the FBI. 

He also recommended that the FBI not only make sure each application has a Woods File, but that it also institute regular and systematic examinations of accuracy reviews, which he says will enhance training among agents and improve the process of completing the Woods Procedures for the FISA applications.

The FBI, in a statement issued with the memo, accepted the findings. It also said that it is already in the midst of taking steps to address FISA deficiencies after the 2019 report on the omissions and errors in Page’s wiretap, but it will incorporate the recommendations Horowitz set forth in his latest memo as well.