FISA Reform

The Inspector General’s Disturbing FISA Memo

By Benjamin Wittes
Tuesday, March 31, 2020, 8:34 PM

When Justice Department Inspector General Michael Horowitz released his lengthy report last year on the FBI’s handling of the “Crossfire Hurricane” investigation, I posed the question of how commonly the Foreign Intelligence Surveillance Act (FISA) process yields train wrecks like the warrant applications in the case of Carter Page. “[I]t’s safe to say that if this is anything like what a normal FISA application process looks like, then the FISA process is a mess and the civil liberties anxieties about FISA deserve a serious new look,” I wrote:

But is the Page FISA application typical? Perhaps a better way to ask the question is how typical a dumpster fire like this one is. After all, in any complex human system, total failure is going to happen a certain percentage of the time—and partial failures are going to happen more often. How often does the FISA process fail to the point that the court is given an application with multiple errors and significant omissions? How often does it fail less spectacularly—like, say, an application with three or four errors, rather than the 17 Horowitz identifies in the Page FISA application? The investigation Horowitz performed does not offer much insight into this question.

Today, the inspector general began answering this question. Unfortunately, the emerging answer may be something of a worst-case scenario. No, it’s not political spying on the Trump campaign or anything like that. Notwithstanding the idiotic Justice Department statement on Tuesday—which claimed that the FBI’s FISA abuse “resulted in one of the greatest political travesties in American history”—there’s still no evidence of political abuse of FISA. Rather, the problem is a far more general one: It appears that the facts presented in a lot of FISA applications are not reliably accurate.

Horowitz released a memorandum presenting some interim results from an audit of the accuracy of FISA applications, which he began in light of the findings on the Page FISA application. The audit is an attempt to assess the FBI’s compliance with the so-called Woods Procedures, which are designed to ensure that the FBI documents claims made in FISA applications rigorously. The results so far are, to put it mildly, arresting—arresting enough that Horowitz wrote what he termed a “management advisory memorandum” to FBI Director Christopher Wray to let him know how bad the situation is.

Jeremy Gordon offers a detailed summary of the report here. For present purposes, the key facts are these: So far, Horowitz’s team has reviewed 29 FISA applications involving surveillance of U.S. persons. In four of those applications, the inspector general could not review what’s called the Woods File—the documentary material that is supposed to support every factual claim in a FISA application—because the files could not be located. In three of these cases, Horowitz reports, it is unclear whether they ever existed in the first place. In the remaining 25 files, the inspector general found discrepancies and errors in all, an average of 20 issues per application—with a range of a small handful to around 65.

It’s even worse than that sounds. The reason is that Horowitz says his “initial review ... 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.” In other words, “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 the FISA applications.” In short, there are very likely errors that would not show up in this initial screen—including, for example, if the information in the Woods File were itself incorrect.

There were other problems too: “About half of the applications we reviewed contained facts attributed to CHSs [confidential human sources], and for many of them we found that the Woods File lacked documentation attesting to [key] requirements.”

It is not clear from the relatively cursory current memorandum how serious the errors in question are. They likely vary in importance. Horowitz writes that “we have not made judgments about whether the errors or concerns we identified were material. Also, 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.” But the volume of errors and the fact that they seem to be ubiquitous is a serious problem even if they are all individually trivial. And at least in the Page case, the errors were not trivial. Cumulatively, they were sufficiently significant so as to call into question the ultimate integrity of some of the surveillance renewals.

Horowitz’s bottom line? “[W]e do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy.”

Law enforcement makes errors in warrant applications all the time. But FISA applications have to be different. Unlike with a normal search warrant application or a Title III wiretap request, there is no notice—even retroactively—to the surveillance target unless that person is prosecuted and the government tries to use material collected under FISA. Even then, the government does not disclose the underlying application, so the Foreign Intelligence Surveillance Court is the only entity outside of the executive branch that gets to review proposed surveillance. If the court cannot rely on the facts in the average FISA application, that is a very big problem—a problem that goes to the heart of whether FISA is a workable compromise between the needs of the intelligence world and the civil liberties demands of privacy and accountable government.

The first step in remedying this situation is to better understand the scope of the problem. The completion of Horowitz’s audit should help answer key questions here. How serious are how many of these mistakes? Are we dealing with careless errors that are ultimately harmless, or are we dealing with—as happened in the Page case—compounding mistakes that, layered on top of one another, result in the court’s being meaningfully misled on the state of the evidence?

The FBI also has an ongoing process of internal reform in response to the Crossfire Hurricane report. Indeed, the purpose of this memo was to inform that process while it’s still ongoing. That process may well address some of the underlying bureaucratic pathologies and dysfunction that seem to be causing these issues.

The worry, however, is that these problems are deep—deep enough that they appear to have been largely unknown, even within the FBI, until the Carter Page application began surfacing some of them. Fixing them will require a comparably deep understanding of why the FBI apparently does not have the culture of accuracy in crafting FISA applications that some of us believed it had.