The Justice Department’s independent watchdog found the FBI’s disregard for its own Foreign Intelligence Surveillance Act procedures extended beyond its controversial targeting of former Trump campaign associate Carter Page.
An audit, the findings of which were released on Tuesday, uncovered a lack of properly documented verifications in dozens of electronic surveillance applications.
DOJ Inspector General Michael Horowitz’s report focused narrowly on the bureau’s requirement to create and maintain an accuracy subfile known as a “Woods file” to ensure that factual assertions in FISA applications are backed up by demonstrable evidence. FBI policy requires that the Woods file to contain supporting documentation for every factual assertion in a FISA application.
“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 four 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 that FISA applications be supported by documentation in the Woods File,” Horowitz concluded. “We believe that 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.”
Horowitz’s 17-page audit was a follow-up of his much larger report in December, which found serious Woods procedure violations in FBI applications for FISA warrants to monitor Page, who was suspected of being an agent for Russia but was never charged with any wrongdoing.
The inspector general criticized the DOJ and the FBI late last year for at least 17 “significant errors and omissions” related to the FISA warrants for Page and for the bureau’s heavy reliance on British ex-spy Christopher Steele’s salacious and unverified dossier. Steele put his research together in 2016 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. The DOJ watchdog also criticized the FBI for not passing along information gleaned from its confidential human sources to the court.
Horowitz explained Tuesday that the wider audit of the FBI’s compliance with Woods procedures covered a period from October 2014 to September 2019. The review included a random sampling of 29 applications from eight FBI field offices out of 700 total filings, including representative samples of counterintelligence and counterterrorism applications. Horowitz stressed that his inquiry focused solely on the Woods file itself and not on whether the factual evidence existed elsewhere in the FISA application or if facts had been omitted from the FISA application.
The inspector general said that “the Woods File deficiencies that we identified spanned all eight field offices.”
The DOJ watchdog found that for 4 of the 29 applications, “the FBI either has been unable to locate the Woods File that was prepared at the time of the application” or that “FBI personnel suggested a Woods File was not completed.”
For the remaining 25 applications, Horowitz’s investigators identified facts stated in the FISA application that were either not supported, not corroborated, or inconsistent with the documentation in the Woods files.
“We do not speculate as to whether the potential errors would have influenced the decision to file the application or the Foreign Intelligence Surveillance Court’s decision to approve the FISA application,” Horowitz said. “In addition, our review was limited to assessing the FBI’s execution of its Woods Procedures, which are not focused on affirming the completeness of the information in FISA applications.”
Horowitz also found violations in the handling of confidential human sources.
Woods procedures require that the bureau include documentation from the source’s handling agent or coordinator showing that they have reviewed the facts in the FISA application regarding the source’s reliability and that based on a review of the documentation in file, the facts in the FISA application appear to be accurate. The DOJ watchdog said that “about half of the applications we reviewed contained facts attributed to confidential human sources, and for many of them we found that the Woods File lacked documentation attesting to these two requirements.”
The DOJ watchdog said his findings “also indicate that FBI case agents are not consistently following Woods Procedures requirements related to renewal applications” and that “the FBI is not consistently re-verifying the original statements of fact within renewal applications” as required.
Horowitz said his office’s “lack of confidence” in the bureau stemmed in part from how agents and supervisors they interviewed “generally have confirmed the issues” his office unearthed and that FBI and National Security Division officials indicated that “there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy.”
The inspector general said existing FBI oversight mechanisms “also identified deficiencies in documentary support and application accuracy that are similar to those that we have observed.”
The DOJ watchdog’s office scrutinized the 34 internal accuracy review reports the FBI conducted during the same five-year period at the same offices for 42 FISA applications — only one of which Horowitz’s team reviewed in the audit. The inspector general said the FBI “identified deficiencies” similar to the ones he uncovered. Horowitz said three of the 42 reviews “did not identify any deficiencies,” but “the reports covering the remaining 39 applications identified a total of about 390 issues, including unverified, inaccurate, or inadequately supported facts, as well as typographical errors.”
Following Horowitz’s December report, the DOJ said at least the final two of four Page FISA warrants were “not valid,” and it’s unclear whether the first two will be judged the same way.
A Jan. 7 filing by the Foreign Intelligence Surveillance Court revealed the FBI sought to “sequester” the information obtained from the Page surveillance until the completion of a further review of the DOJ inspector general report and the “outcome of related investigations and any litigation.”
FBI Director Christopher Wray testified in February that the behavior was “utterly unacceptable” and agreed there had been at least some illegal surveillance. He said he was working to “claw back” the FISA information.
The FISA court, which blasted the bureau for actions “antithetical to the heightened duty of candor,” ordered all DOJ and FBI personal under disciplinary or criminal review relating to their work on the Page applications be barred from the FISA process for the time being.
