DOJ review finds material errors in two 2019 surveillance applications

A Justice Department internal investigation has found that there were at least two surveillance warrant applications in 2019 with material errors, according to a newly unsealed court filing.

In the 54-page filing to the Foreign Intelligence Surveillance Court (FISC) last week, the Department of Justice (DOJ) laid out not only the errors that were made but also gave a lengthy explanation of how it is working to address issues in its surveillance warrant process.

According to the court documents, the DOJ’s National Security Division conducted 30 accuracy reviews last year, and while it is still working on its final results of those reviews, the DOJ says it has so far found “material errors or omissions” in “two applications in two FBI field offices.”

In one application, the department found two material errors, according to the filing. In the other, briefers found that a renewal application had “some material omissions” through both an accuracy review and subsequent follow-up discussions as the renewal was in the works.

In both cases, the review found that probable cause did still exist, despite the errors.

“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,” the filing says.

The word “material” is often used by lawyers to describe facts that are central to a particular case. And if a material error is discovered, then a court’s ruling of probable cause to wiretap a target through the Foreign Intelligence Surveillance Act (FISA) could be affected. Such warrants are particularly sensitive because they seek to wiretap individuals on U.S. soil related to national security cases.

Throughout the review, the steps the FBI has taken to address the problems with FISA are laid out in detail. The review is on pause amid the coronavirus outbreak, according to officials, though it is expected to continue.

“Although accuracy reviews, which involve travel and in person meetings, are currently suspended due to Coronavirus, we will restart them as soon as we can with a 50 percent increase in oversight positions and increased rigor,” John Demers, assistant attorney general for National Security, said in a statement. 

The filing comes on top of a damning report issued by DOJ Inspector General Michael Horowitz last year that found 17 serious errors or omissions in FISA applications for the 2016 wiretap on former Trump campaign aide Carter Page.

Perhaps the most explosive discovery by the IG was that a front-line lawyer, Kevin Clinesmith,  altered an email related to the warrant renewal application.

The report said it found no evidence that the initiation of the investigation was motivated by political bias, but Horowitz indicated to senators during a public hearing earlier this year that “it gets murkier” when Clinesmith’s actions on the renewal applications are considered. 

Following the IG surveillance report, Horowitz said he continued to broaden his review to see if he could determine other deficiencies in his ongoing review.

Late last month, Horowitz informed FBI Director Christopher Wray 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.

“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 memo to Wray.

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, but he says they did not review the case files for fact omissions.

The FBI has accepted both of Horowitz’s FISA findings and has vowed to take steps to address FISA deficiencies.

While the FBI says it has already taken steps to remedy the FISA process after the review of surveillance applications on Page, the FBI said it will also incorporate the additional recommendations Horowitz set forth after his findings in the Woods File report. 

Some measures they have taken include having attorneys who join the Office of Intelligence (OI) receive extensive training, the court filing says. It also said supervisors are using the problems in the accuracy reviews to help address “lessons learned.”

Additionally, the bureau has revised the FISA request form, while also issuing a checklist for any applications related to a handler working with confidential human source, or CHS.

“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 says.

The FISA verification form was also revised so that it included certain questions to help ensure “accuracy and completeness in FISA applications and prevent the omissions identified by the OIG Report,” the court document reads.

The FBI in a statement noted that it has and is continuing to take steps to address the FISA process. 

“The FBI and [National Security Division’s] filing with the FISC provides the Court with an update regarding some of the corrective actions that the FBI has made and continues to make to its FISA processes. These steps are part of the 40-plus corrective actions that Director Wray ordered in December 2019,” the FBI said in a statement.

“The FBI remains confident that these corrective actions will address the errors identified in earlier FISA applications that the IG reviewed in connection with its recent Woods Procedures audit as well as its review of the Crossfire Hurricane investigation,” it continued, referring to the probe that involved Page.

These actions come after Republicans have long called for reform, particularly because Page was employed by the Trump campaign.

Attorney General William Barr said this week that he wants guardrails put in place to block agents from straying from strict FISA guidelines, while hammering unnamed officials who have abused such a process.