Justice Department inspector general Michael Horowitz issued interim findings of an ongoing review of Foreign Intelligence Surveillance Act (FISA) applications beyond the Page application. And the results suggest that Page was hardly alone.
The report honed in on 29 cases it selected — from more than 700 such applications in the past five years — in which the FBI sought similar warrants. It found that, as with Page’s, there were problems with all of them.
More specifically, Horowitz sought to determine whether the FBI in these cases had followed mandatory procedures for documenting accurate information about why the surveillance was necessary, also known as Woods files. Of the 29 cases, 25 featured errors in their Woods files. In the other four cases, a Woods file could not even be found and, Horowitz suggests in some cases, might never have been created in the first place.
It also found significant problems in the Justice Department’s separate, internal review process for the accuracy of FISA information, despite it finding a similarly prevalent number of problems.
Here are a few key sections of the report.
1. The summary
“As 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,” begins a key section.
The report reaches that conclusion citing four main reasons:
- “[W]e 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.”
- “[O]ur 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.”
- “[E]xisting FBI and [Justice Department National Security Division] oversight mechanisms have also identified deficiencies in documentary support and application accuracy that are similar to those that we have observed to date."
- “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.”
2. The number of errors
Horowitz previously found 17 serious errors in the Page applications. The errors in these 25 other cases are also numerous.
Horowitz stressed that the review was ongoing, but said that “at this time 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.”
Horowitz said the problems cited involved lack of supporting documentation, lack of corroboration from the documentation, and inconsistencies in the documentation.
One way to look at this is that the problems with Page’s application weren’t extraordinary, and perhaps that a Trump campaign adviser wasn’t singled out for ill treatment. Trump supporters have alleged that Page was politically targeted and have played up Horowitz’s previous findings as evidence of what Trump calls a “witch hunt.”
But another is that the entire system is rife with problems and ripe for real reforms, which the FBI has said it is pursuing in the aftermath of the Page findings and which Congress has considered.
3. Horowitz isn’t saying whether these errors mattered
As with the Page application, Horowitz here doesn’t weigh in on whether the errors actually impacted the approval or appropriateness of the surveillance.
“During this initial review, we have not made judgments about whether the errors or concerns we identified were material,” the report states. “Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the [Foreign Intelligence Surveillance Court’s] decision to approve the FISA application.”
Defenders of the FISA process after the Page situation came to light were quick to emphasize this. But it’s important to note that Horowitz is saying that determining these things just wasn’t part of his review. Hypothetically replaying the decisions of FISC judges would indeed be difficult to do.
And Horowitz adds: “Nevertheless, 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.”
In other words, the FBI is failing according to the very high standard it needs to meet.
4. DOJ’s internal reviews have also discovered errors, but the process is broken
Horowitz also reviewed 34 cases in which the Justice Department conducted its own reviews of the accuracy of the information in 42 applications. In those cases, numerous errors were also found.
“Although reports related to 3 of the 42 FISA applications did not identify any deficiencies, the reports covering the remaining 39 applications identified a total of about 390 issues, including unverified, inaccurate, or inadequately supported facts, as well as typographical errors.”
In these cases, though, the Justice Department itself did seek to determine whether these errors were material. It found that none of them were, but Horowitz indicates that the process was mishandled.
“However, we were told by NSD [Office of Intelligence] personnel that the FBI had not asked NSD OI to weigh in on materiality determinations nor had NSD OI formally received FBI CDC accuracy review results, which accounted for about 250 of the total issues in the reports we reviewed,” Horowitz’s report says.
As the report notes, a 2009 policy memorandum prescribes that the “OI determines, in consultation with the FBI, whether a misstatement or omission of fact identified during an accuracy review is material.”
Horowitz is saying there is a breakdown in the Justice Department’s and the FBI’s own accountability system when it comes to accuracy of this information. And his own findings suggest the scope of the problem — and perhaps the need for addressing it — are even bigger than previously known.