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Government Surveillance

FBI Records Do Not Substantiate Factual Assertions in FISA Applications

A preliminary report issued by Department of Justice Inspector General Michael Horowitz makes the astonishing disclosure that FBI records are insufficient to support the statements of fact the US DOJ made in every foreign intelligence surveillance application the IG reviewed.

The Inspector General’s investigation stemmed from initial findings made in a December 2019 report the IG issued following its investigation of the FISA application for surveillance of then-candidate Donald J. Trump’s campaign advisor, Carter Page, a US citizen. In the Carter Page investigation, the IG found, among other things, that the government had misled the FISA Court into thinking that the FBI had independently and fully corroborated dirt on Donald Trump that appeared in the infamous “Steele dossier,” and that information former British intelligence agent Steele had provided was reliable enough to have been used in court in criminal proceedings. The IG found that the government mis-used information about Page’s contacts with Russian officials to help establish its claim that he was a Russian agent without disclosing that he was reporting on those contacts to the CIA. It also found that an FBI lawyer had fraudulently altered an email message to indicate that Page was not a CIA source, when in fact, he was.

These findings prompted the IG to commence a broader investigation of FISA applications pertaining to other Americans to determine whether proper procedures were being followed in those cases. Those procedures—the Woods procedures, named after the official who designed them—are supposed to ensure achievement of the FBI’s policy that FISA applications be “scrupulously accurate.” Privacy advocates, and members of Congress alike were concerned that if significant errors could be identified in an application as sensitive as Carter Page’s, there were likely errors in other surveillance applications. These concerns have been borne out. Today’s report revealed that in the 25 cases the IG reviewed from eight FBI field offices, the files maintained pursuant to the Woods procedures were insufficient to document statements of fact made in every single case.

The report also indicated that in four additional cases regarding the FISA surveillance of Americans, the FBI was unable even to locate the files required to be maintained under the Woods procedures.

As a result, the IG indicated that it would expand the objective of its audit to assess the adequacy of efforts of not only the FBI, but of the Department of Justice National Security Division to ensure that FISA applications are accurate.

The IG’s reports are expected to shape further efforts to reform FISA. Reform measures attached to legislation that would re-authorize three expiring provisions of the USA PATRIOT Act were enacted by the U.S. House of Representatives, but were deemed inadequate in the Senate, thus stalling the legislation.

As of this writing, the USA PATRIOT Act provisions authorizing collection of business records and other “tangible things” under Section 215, roving “intelligence” wiretaps that need not specify the target of surveillance or the phone or other facility the target uses, and “lone wolf” intelligence surveillance of individuals who are not tied to any foreign government, terrorist organization or other foreign power, have all lapsed. They are expected to be renewed, and additional FISA reforms are expected to be considered, when Congress returns following the effective closure of Capitol Hill to thwart the spread of the coronavirus.