Federal court orders government to assess whether FISA applications were so flawed they should not have been approved

Inspector General Michael Horowitz found that all 29 FBI applications his office scrutinized contained errors

Justice Department Inspector General Michael Horowitz testifies at a Senate Judiciary Committee hearing in December on the inspector general's report on alleged abuses of the Foreign Intelligence Surveillance Act. (Andrew Harnik/AP)

The nation’s secretive surveillance court on Friday ordered the government to determine by mid-June whether any of the 29 surveillance applications that the Justice Department’s inspector general recently found to be flawed contained “material misstatements or omissions” that could render them invalid.

Inspector General Michael Horowitz, in a memorandum issued Tuesday, found that all 29 applications his office scrutinized as part of an ongoing review contained errors, suggesting that problems exposed in a wiretap application during the FBI’s probe of President Trump’s 2016 campaign extend far beyond that case alone.

Horowitz did not determine whether any of the errors were material or whether they would have influenced the government’s decision to apply to the Foreign Intelligence Surveillance Court for permission to secretly wiretap a suspect. Under the Foreign Intelligence Surveillance Act (FISA), the government must have probable cause to believe that a target is an agent of a foreign power.

The FBI is supposed to document the facts asserted in its surveillance applications in a file, following what are known as the Woods Procedures. As a result of his preliminary review, Horowitz said “we do not have confidence” that the FBI complied with those procedures. In fact, four of the 29 applications lacked Woods files — and in three of those cases, the bureau did not even know whether a file existed, Horowitz found.

“It would be an understatement to note that such lack of confidence appears well-founded,” wrote James E. Boasberg, the FISC chief judge.

Horowitz’s damning findings suggest that the FBI might be suffering from broad, institutional weaknesses in its handling of surveillance applications in terrorism and espionage cases — more than political bias, as some critics have suggested. Problems were found in an array of cases managed by FBI field offices across the country.

The inspector general’s review stems from issues his office uncovered last year with the wiretap application — and three subsequent renewal requests — targeting Carter Page, a former Trump campaign aide in 2016. Horowitz documented 17 serious problems with the applications, and his latest memorandum seems to indicate that other, lower-profile cases were similarly plagued by mistakes.

Boasberg ordered the FBI and the Justice Department, which vets the applications and presents them to the court, to provide him with an assessment by June 15 concerning to what extent the 29 applications contained misstatements or omissions and whether any of the errors should invalidate any of the applications granted by the court.

The judge also ordered the government to provide the names of the targets and to specify which applications were missing Woods files.

The applications covered the period from October 2014 to September 2019, and in all cases, the surveillance has been completed.

In a statement, the FBI acknowledged the court’s order: “Maintaining the trust and confidence of the court is paramount to the FBI and we are continuing to implement the 40-plus corrective actions ordered by [FBI] Director [Christopher] Wray in December 2019.” The statement noted that the 29 applications predated the announcement of the corrective steps, but “the FBI understands the court’s desire to obtain information related to the applications. In line with our duty of candor to the court and our responsibilities to the American people, we will continue to work closely with the FISC and the Department of Justice to ensure that our FISA authorities are exercised responsibly."