Hot Air

DoJ IG: FBI problems on FISA warrants “far beyond” Crossfire Hurricane — and FBI leadership was well aware of it

Did anyone really think that the Carter Page FISA warrant was a one-off? The Department of Justice’s audit of twenty-nine other FISA warrants pursued by the FBI found errors in every single application to the Foreign Intelligence Surveillance Court. Seventeen of them were serious errors, the Inspector General reported today:

The Justice Department inspector general revealed Tuesday that he found errors in every FBI application to a secret surveillance court his office examined as part of an ongoing review — suggesting the problems exposed in the bureau’s probe of President Trump’s 2016 campaign extend far beyond that case alone.

The memorandum issued by Inspector General Michael Horowitz stems from an audit launched last year after his office found 17 serious problems with the FBI’s surveillance applications targeting former Trump campaign adviser Carter Page.

The interim results of that audit suggest that the problems that plagued the Page investigation may exist in other counterterrorism and counterintelligence cases. The memorandum may buttress some of the criticism that Trump and his supporters have leveled at the FBI, but the findings also suggest that, rather than political motives, the issues at the agency may be broader institutional weaknesses.

This does cut both ways. Had the errors and misrepresentations in the Page warrant been a singular occurrence, it would have strengthened the case that the FBI agents involved in Operation Crossfire Hurricane had specific political motives. If they make these kinds of misrepresentations and errors on a constant basis, it’s tougher to argue that it was specifically targeted at Trump.

Of course, this doesn’t necessarily preclude that, either. It makes it much easier to argue that the FBI routinely abuses its authority and misleads the FISC in order to pursue its own purposes, whatever they are. Four of the cases were missing their “Woods files” entirely, making this pattern look even more suspicious. IG Michael Horowitz issued a statement of no-confidence in the FBI’s operation to FBI director Chris Wray:

Justice Department Inspector General Michael Horowitz informed FBI Director Christopher Wray on Monday that his office did “not have confidence” that the FBI was properly following the Woods Procedures, an FBI policy that requires officials to provide supporting documentation to back up factual assertions made in FISA applications.

“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,” Horowitz wrote in a management advisory memorandum to Wray.

“Specifically, the Woods Procedures mandate compiling supporting documentation for each fact in the FISA application. Adherence 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.’”

Just how bad are these applications? Horowitz doesn’t yet have a conclusion on materiality, but the sheer number of errors is astounding:

Horowitz’s office said in a report released Tuesday that of the 29 applications — all of which involved U.S. citizens – that were pulled from “8 FBI field offices of varying sizes,” the FBI could not find Woods Files for four of the applications, while the other 25 all had “apparent errors or inadequately supported facts.”

“While our review of these issues and follow-up with case agents is still ongoing—and we have not made materiality judgments for these or other errors or concerns we identified—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,” the report reveals.

How did it get that bad? For one thing, Horowitz reports, the FBI wasn’t doing anything to enforce accuracy and completeness on FISA warrants. And the FBI knew damned well that these problems existed, too:

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. …

Our preliminary review of the 34 FBI CDC and NSD OI accuracy review reports covering the period from October 2014 to September 2019 for the 8 field offices we visited—which address a total of 42 U.S. Person FISA applications, 1 of which was also included among the 29 FISA applications that we reviewed—revealed that these oversight mechanisms routinely identified deficiencies in documentation supporting FISA applications similar to those that, as described in more detail below, we have observed during our audit to date. 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.

It turns out that FBI management had little interest in oversight of the FISA warrant application process:

Therefore, the results of FBI CDC and NSD OI oversight mechanisms have been available to relevant FBI officials responsible for ensuring the integrity of the FBI’s FISA program. FBI OGC personnel told us, however, that the FBI CDC and NSD OI accuracy review reports had not been used in a comprehensive, strategic fashion by FBI Headquarters to assess the performance of individuals involved in and accountable for FISA applications, to identify trends in results of the reviews, or to contribute to an evaluation of the efficacy of quality assurance mechanisms intended to ensure that FISA applications were “scrupulously accurate.” That is, the accuracy reviews were not being used by the FBI as a tool to help assess the FBI’s compliance with its Woods Procedures.

In other words, FBI leadership knew that their agents were submitting erroneous and false information to the FISC to get surveillance warrants. They just didn’t care enough about the problem to take any action to stop it. That should inform the FISC judges’ decisions in the future to grant approvals for surveillance based on FBI representations.

In fact, this should inform Congress that this process is broken and the FBI can’t be trusted with it in its current form. This process needs to be made more adversarial, for one thing, and material misrepresentations need to be prosecuted on the same basis that the DoJ prosecutes those who lie to FBI agents. After a couple of convictions puts agents in Club Fed pour encourager les autres, future audits would likely find a much lower failure rate. The problem here is that everyone in the FBI apparently knew they could manipulate this process with impunity. With that in mind, should we be surprised that the process might have been manipulated by agents with political axes to grind?

Leave a Reply