The FBI’s Secret FISA Court Surveillance Applications Are Chock Full of Screw-Ups
October 1, 2021 | Tags: FBI
The FBI has done an even worse job properly double-checking the accuracy of warrant applications to secretly snoop on Americans than was previously known, a new report details this week.
We're talking about the use of the classified surveillance processes of the Foreign Intelligence Surveillance Act (FISA) Courts to get permission to wiretap or otherwise spy on Americans who are suspected of involvement in crimes or actions that involve national security.
Because this surveillance is kept secret from the citizens and they don't have the option to defend themselves or argue their innocence, the FISA Court is supposed to serve as a mechanism of due process, making sure that the FBI does its due diligence when requesting to snoop on citizens.
But this process is inherently dependent on the FBI's own accuracy in its documentation and its honesty, and both of those came under question when the FBI got permission on multiple occasions from the FISA Court to wiretap Carter Page, a former aide to President Donald Trump when he was running for office in 2016.
Page's ties to the Russian government prompted concerns about foreign influence on the campaign and the FBI got permission four times from the FISA Court to wiretap him. Page, ultimately, was never charged with any crimes. In 2020, an investigation from the Office of the Inspector General (OIG) for the Department of Justice found the FBI made numerous mistakes and withheld important information from the FISA Court in the Page warrant applications.
Subsequent to the Page investigation, Inspector General Michael E. Horowitz organized an audit to determine whether similar problems were happening with the other FISA warrant applications targeting Americans. In a 2020 memorandum, Horowitz determined that the FBI regularly neglected following its own procedures to make certain each FISA warrant application is as accurate as possible. Out of 29 FISA warrant applications to surveil Americans, the OIG found that 25 of them had errors or "inadequately supported facts." And the other four were missing the associated files that showed that the FBI agents involved were following so-called Woods procedures—the policies the FBI came up with in 2001 to make sure each warrant was properly detailed.
A report released Thursday details the results of the audit ordered by Horowitz, and the problems go even deeper. Out of 7,000 FISA applications between 2015 and 2020, the OIG found 183 instances where those aforementioned Woods files were "missing, destroyed, or incomplete," meaning the accuracy of those warrant applications may be difficult or impossible to prove.
As for the accuracy of the files that did exist, there was more bad news. The OIG went back through those 29 warrant applications and found even more errors. It found more than 200 additional errors or omissions on top of the previous 200 errors or omissions in those 29 applications it had reported in 2020. The audit notes:
We believe that these shortcomings occurred primarily because the FBI and [National Security Division] generally did not place sufficient emphasis or attention on the need for rigorous supervisory review of a completed Woods File and robust oversight of the Woods Procedures during the time period covered by our review. Further, certain public statements from FBI and NSD officials appeared to display a tolerance for error that is inconsistent with the FBI's policy that applications be scrupulously accurate.
The OIG seems pretty clear that it's not happy with what seems like a sloppy culture at the FBI for its FISA warrant applications. The audit actually breaks down the types of errors it found in the documents, everything from deviations from what source information actually says, errors in dates, factual assertions that weren't supported by data, typos, and misidentified sources.
The FBI responded in a statement that it appreciated and agreed with the OIG's recommendations to assure more accurate FISA applications and is working on implementing reforms.
Ashley Gorski, senior staff attorney at the ACLU's National Security Project, takes note here of consistent concern that citizens who end up in the FBI's crosshairs don't have the assistance of legal representation to speak on their behalf. This is an issue that civil rights and privacy groups have been attempting to get addressed.
"Today's Inspector General report provides yet more evidence that FISA surveillance is in need of reform," Gorski said Thursday in a prepared statement. "The FBI has repeatedly failed to comply with the procedures for ensuring the accuracy of its FISA applications, and its efforts to improve oversight policies in the wake of the Carter Page debacle have not gone nearly far enough. But there's a more fundamental problem here: in practice, FISA applications are never subject to testing by defense counsel in court. No FBI internal compliance policy can compensate for that."