While COVID-19 is taking up much of the news cycle, there are other things that must be attended to as well. This week's report by the FBI Office of the Inspector General gives the FBI a zero for its performance in reviewing 29 Foreign Intelligence Surveillance Act (FISA) applications.
The bottom line is that the FBI is not following procedures for FISA applications, which allow the bureau to surveil U.S. citizens. As U.S. citizens, we should demand that the procedures be followed completely. The sad part is that this is not the first time such failures have been revealed — and that the rules and regulations that were put together to prevent such abuse are not being followed.
It's important to review background information to understand the importance of this report.
In 2001, Michael Woods, then the head of the FBI Office of General Counsel National Security Law Unit, put together rules to "ensure accuracy with regard to ... the facts supporting probable cause" for applications to the FISA court. According to FBI testimony to Congress in 2003, these procedures were put in place because "(i)ncorrect information was repeated in subsequent and related FISA packages."
This FISA application process was used to start the 2016 investigation into the presidential campaign of Donald Trump. The investigation turned up nothing on Trump, but the investigation itself was reviewed to see if FBI procedure had been followed.
Last December, the Justice Department inspector general, Michael Horowitz, released a report on the FBI investigation. It found numerous issues and resulted in FBI Director Christopher Wray ordering "more than 40 corrective steps to address the Report's recommendations."
Horowitz then reviewed a sample of 29 FISA applications from between October 2014 and September 2019. This report was released this week. None of the 29 applications correctly followed FBI procedures.
These cases involved "both counterintelligence and counterterrorism investigations," according to the IG report. Of the 29, the FBI could not find four of the supporting Woods files. According to the report, "in 3 of these instances, (they) did not know if they ever existed." The other 25 cases all had "apparent errors or inadequately supported facts."
All 29 failed.
While the review has not determined the materiality of the errors, it did tally the number of errors. "We have 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," it said.
The report noted, "we do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy." No doubt!
The FBI had also implemented review procedures for FISA compliance in 2009. "Specifically, the FBI requires its Chief Division Counsel (CDC) in each FBI field office to perform each year an accuracy review of at least one FISA application from that field office," the report noted. Similarly, the National Security Division (NSD) Office of Intelligence (OI) "conducts its own accuracy review each year of at least 1 FISA application originating from each of approximately 25 to 30 different FBI field offices."
During its review, the IG office interviewed both FBI and NSD officials "focused on determining whether support exists at the time of the FBI CDC or NSD OI review for each factual assertion in the FISA application under review."
They found that the field offices had been given notice before the review of what case would be reviewed so they could compile the documentation.
The report released this week included recommendations for "a physical inventory to ensure that Woods Files exist for every FISA application submitted to the FISC" — Foreign Intelligence Surveillance Court — "in all pending investigations." And for the FBI and NSD to "systematically and regularly examine the results of past and future accuracy reviews to identify patterns or trends in identified errors so that the FBI can enhance training to improve agents' performance in completing the Woods Procedures, or improve policies to help ensure the accuracy of FISA applications."
Sadly, with no clear pattern of procedures and policy being followed, I am not sure what good these recommendations will do. My guess is that many in Congress will feel the same. Get set for congressional testimony.
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