OIG Finds More Flaws in FBI FISA Process

The Department of Justice’s (DOJ) Office of the Inspector General (OIG) issued another report critical of how the Federal Bureau of Investigation (FBI) has complied with requirements for submitting applications to Foreign Intelligence Surveillance Courts under the Foreign Intelligence Surveillance Act (FISA). Like the previous report in December 2019 investigating the FISA process that led to surveillance of certain members of the Trump presidential campaign, this report also turned up numerous instances under which the FBI was not meeting the requirements to substantiate claims made in FISA applications. This report comes at a time when four FISA authorities have lapsed as the House and Senate could not agree on a final bill, and the House has declined to pass the Senate’s extension passed before COVID-19 more or less took over the legislative agenda.

The OIG explained

As a result of these findings (i.e. the investigation in FBI surveillance of some Trump campaign operatives), in December 2019, my office initiated an audit to examine more broadly the FBI’s execution of, and compliance with, its Woods Procedures relating to U.S. Persons covering the period from October 2014 to September 2019. As an initial step in our audit, over the past 2 months, we visited 8 FBI field offices of varying sizes and reviewed a judgmentally selected sample of 29 applications relating to U.S. Persons and involving both counterintelligence and counterterrorism investigations. This sample was selected from a dataset provided by the FBI that contained more than 700 applications relating to U.S. Persons submitted by those 8 field offices over a 5-year period. The proportion of counterintelligence and counterterrorism applications within our sample roughly models the ratio of the case types within that total of FBI FISA applications. Our initial review of these applications has consisted solely of determining whether the contents of the FBI’s Woods File supported statements of fact in the associated FISA application; our review did not seek to determine whether support existed elsewhere for the factual assertion in the FISA application (such as in the case file), or if relevant information had been omitted from the application. For all of the FISA applications that we have reviewed to date, the period of court-authorized surveillance had been completed and no such surveillance was active at the time of our review.

The OIG stated that “[a]s a result of our audit work to date and as described below, we do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy.” The OIG noted that “[s]pecifically, the Woods Procedures mandate compiling supporting documentation for each fact in the FISA application…[and] [a]dherence to the Woods Procedures should result in such documentation as a means toward achievement of the FBI’s policy that FISA applications be ‘scrupulously accurate.’” The OIG stated that “[o]ur lack of confidence that the Woods Procedures are working as intended stems primarily from the fact that:

(1) we could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed;

(2) our testing of FISA applications to the associated Woods Files identified apparent errors or inadequately supported facts in all of the 25 applications we reviewed, and interviews to date with available agents or supervisors in field offices generally have confirmed the issues we identified;

(3) existing FBI and National Security Division (NSD) oversight mechanisms have also identified deficiencies in documentary support and application accuracy that are similar to those that we have observed to date; and

(4) FBI and NSD officials we interviewed indicated to us 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, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

However, the OIG cautioned that “[d]uring this initial review, we have not made judgments about whether the errors or concerns we identified were material.” The OIG added that “we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application…[and] 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.”

This is the second report critical of government surveillance programs in the last month. In March, the Privacy and Civil Liberties Oversight Board (PCLOB or Board) released its “Report on the Government’s Use of the Call Detail Records Program Under the USA Freedom Act“ that noted that in only two instances did the CDR program turn up intelligence that was unique and valuable despite having collected over 434 million CDRs in 2018. Opponents of the program have seized on the PCLOB’s review to further argue for closing down the CDR program even though the Board did not find any willful violations of the USA FREEDOM Act, the latter point being likely to be used by proponents of the program.

As noted, even though the House passed the “USA FREEDOM Reauthorization Act of 2020” (H.R. 6172) in early March to reauthorize three expiring Foreign Intelligence Surveillance Act (FISA) provisions, shutter the CDR program and implement reforms, the Senate declined to act immediately on the bill and opted instead to send a 77-day extension of these now lapsed authorities to the House, which is currently in recess. The Senate will turn to a reform bill under a process that will allow votes on specified amendments subject to a 60-vote threshold.

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