DOJ watchdog finds flaws in FISA process beyond Carter Page application

Cheryl Sanders
April 2, 2020

The new audit, which assessed the FBI's underlying records to support surveillance applications relating to USA persons, said of the Page warrants, "we identified fundamental and serious errors in the agents' conduct of the FBI's factual accuracy review procedures ('Woods Procedures') with regard to all four FISA applications".

The Woods Procedures, Horowitz explained, were implemented "in 2001 following errors in numerous FISA applications submitted to the FISC in FBI counterterrorism investigations". In the 29 FISA applications reviewed, the IG "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". The FBI's failure to comply with the Woods Procedures in the Page FISA applications prompted the IG's office to "initiate an audit to examine more broadly the FBI's execution of, and compliance with, its Woods Procedures".

Critics have long complained about the opaque, one-sided nature of the application process, and longstanding calls to overhaul the system received a bipartisan push because of the errors identified during the FBI's investigation into ties between the Trump campaign and Russian Federation. This included failing to verify every piece of evidence that was cited in FISA applications.

"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", the report stated. The FBI couldn't locate the Woods files for four of the 29 applications and didn't know whether three of those four files ever existed, according to the audit, and the other 25 files contained apparent errors or inadequate supporting facts. Furthermore, of the four remaining FISA applications the IG reviewed, no Woods File was found.

"Because of the pervasiveness and seriousness of the FISA application deficiencies - and the pending reauthorization of FISA - we renew our request that you invite Inspector General Michael Horowitz to testify at a public hearing promptly when the House returns to session", Jordan wrote in a letter to Nadler obtained by the Daily Caller News Foundation.

The FBI should work with the National Security Division to "identify patterns or trends" in errors and "enhance training to improve agents performance in completing the Woods Procedures", the Office of Inspector General recommended in the memorandum. "Specifically, the Federal Bureau of Investigation requires its Chief Division Counsel (CDC) in each Federal Bureau of Investigation field office to perform each year an accuracy review of at least one FISA application from that field office", the report noted.

The Page case raised the question of whether the mistakes were widespread.

Ranking Republican member of the House Intelligence Committee Devin Nunes, told Tuesday that "regardless of whatever "reforms" Federal Bureau of Investigation leaders voluntarily adopt, it's clear their operations require close oversight by congressional leaders who actually care about Americans' civil liberties and will not approve of improper spying when it's aimed at their political opponents". This initial evaluation focused exclusively on the Woods files in these cases and made no determination as to the materiality of errors or the presence of factual support in other forums.

The auditors "do not have confidence" the Federal Bureau of Investigation actually followed procedure in any of the cases, the report concluded.

The wider audit followed Horowitz's findings in December past year that the Page warrants contained at least 17 "significant errors or omissions." . This report was released this week.

Congress is now in the process of reauthorizing several domestic surveillance powers under FISA, which expired on March 15.

The inspector general's office did not make a judgment as to whether the mistakes that it identified were "material" to the investigation or to the court's decision to authorize the wiretap.

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