The FBI released more details related to its ongoing review of more than two dozen Foreign Intelligence Surveillance Act applications, arguing the findings so far should “instill confidence” in the veracity of the claims made in those filings.
The bureau, whose FISA process has come under heavy scrutiny following a Justice Department watchdog report pointing out 17 “significant errors and omissions” in the surveillance of Trump campaign associate Carter Page, responded to a follow-up DOJ audit which unearthed problems with other spy applications and led to the Foreign Intelligence Surveillance Court to order a deeper review.
“On June 15th, the FBI and DOJ responded to an April 3rd FISC order requiring additional assessments of the 29 FISA applications reviewed by the OIG as part of its ongoing audit of the FBI’s Woods Procedures,” the FBI said on Monday. “14 of the 29 applications have been thoroughly reviewed, and the results should instill confidence in the reliability of the information contained in those applications as well as in the authorities the FISC granted by approving them.”
The audit released in late March by Horowitz focused on the FBI’s requirement to maintain an accuracy subfile known as a “Woods File.” Investigators found serious problems in each of the 29 FISA applications they examined, and Horowitz said his team believed “a deficiency in the FBI’s efforts to support the factual statements in FISA applications through its Woods Procedures undermines the FBI’s ability to achieve its ‘scrupulously accurate’ standard for FISA applications.”
The FISA court’s assessment was harsher than the one released by Horowitz.
“It would be an understatement to note that such lack of confidence appears well-founded. None of the 29 cases reviewed had a Woods File that did what it is supposed to do: support each fact proffered to the Court. For four of the 29 applications, the FBI cannot even find the Woods File,” presiding Judge James Boasberg said in early April. “For three of those four, the FBI could not say whether a Woods File ever existed. The OIG, moreover, ‘identified apparent errors or inadequately supported facts’ in all 25 applications for which the Woods Files could be produced.”
Boasberg said the wide-ranging problems “provide further reason for systemic concern” about the FBI’s process for obtaining FISA warrants.
The FBI told the FISA court earlier this month that of the 14 applications more deeply reviewed by the Justice Department and FBI so far, there were approximately 2,651 total factual assertions, with 64 factual assertions being “flagged” for not having corresponding support in the Woods File. Of those 64 assertions, the bureau said 29 were “minor spelling or date discrepancies” between an assertion made in the FISA application versus the supporting documentation in the Woods File. And the FBI said only 1 out of the 64 assertions that were flagged was assessed to be “material” — meaning it could be significant or relevant to the case. But the FBI stressed that “most importantly” that one flawed assertion “was assessed to not have impacted the FISC’s probable cause determination.”
The bureau stressed this week that the applications being audited “predate the 40-plus corrective actions” ordered by FBI Director Christopher Wray in December 2019 to “reform” the FISA process. The FBI said it “remains confident these actions will fully address the findings and recommendations” made by Horowitz. The FBI added that it is “dedicated to the continued, ongoing improvement of the FISA process to ensure all factual assertions contained in FISA applications are accurate and complete.”
The FBI provided more details to the FISA court in May on how it planned to implement Wray’s proposed reforms, stressing the bureau “remains confident” that its steps will address all of the concerns raised by the DOJ watchdog.
Horowitz’s audit memo released in March was a follow-up to his much larger report in December, in which the watchdog criticized the Justice Department and the FBI for at least 17 “significant errors and omissions” related to the FISA warrants for Page and for the bureau’s reliance on British ex-spy Christopher Steele’s flawed and unverified dossier. Steele put his research together at the behest of the opposition research firm Fusion GPS, which was funded by Hillary Clinton’s presidential campaign and the Democratic National Committee through the Perkins Coie law firm.
Declassified footnotes from Horowitz’s report indicate that the bureau became aware that Steele’s dossier may have been compromised by Russian disinformation yet continued to use it to justify surveillance.
In January, Boasberg revealed that the Justice Department decided that, “in view of the material misstatements and omissions” in the filings, the final two of four Page FISA warrants “were not valid” and said the agency was still reviewing the first two.
The FBI told the court it was working to “sequester” all the information obtained through the Page wiretaps until the completion of a further review of the DOJ inspector general report on the warrants and the “outcome of related investigations and any litigation.” Wray testified to Congress he was working to “claw back” information gleaned through the electronic surveillance of Page. The FBI director also testified that the bureau likely illegally surveilled Page.
In a rare public order last year, the FISA court criticized the FBI’s handling of the Page applications as “antithetical to the heightened duty of candor described above” and demanded an evaluation from the bureau. The FISA court also ordered a review of all FISA filings handled by Kevin Clinesmith, the FBI lawyer who altered a key document about Page in the third renewal process. He came under criminal investigation by U.S. Attorney John Durham, a prosecutor from Connecticut, who was tasked by Attorney General William Barr with investigating the origins and conduct of the Russia inquiry.
