FISA

Justice Department Completes Review of Errors in FISA Applications

By Jeremy Gordon
Tuesday, August 11, 2020, 12:05 PM

The Department of Justice has completed its review of deficiencies in Foreign Intelligence Surveillance Act (FISA) applications concerning U.S. persons identified by the department’s Office of the Inspector General. The Department of Justice review follows the Justice Department’s Office of the Inspector General report on the FBI’s Crossfire Hurricane investigation into members of the Trump campaign.

The Justice Department’s review had been ordered by the Foreign Intelligence Surveillance Court (FISC), which oversees government applications for surveillance warrants against suspected agents of foreign powers. In the wake of the Justice Department Office of the Inspector General report, the court asked the FBI and attorneys from the Justice Department’s National Security Division’s Office of Intelligence to carefully parse each of the 29 FISA applications reviewed by the inspector general’s office and flagged in its report. The FISC had asked the Justice Department to determine the materiality of the errors the inspector general’s office identified and to assess whether the errors rendered invalid the surveillance authorities granted by the FISC.

The Justice Department’s review built upon the inspector general’s office’s more limited earlier review of the same FISA applications. The inspector general’s office audit examined whether the FBI complied with procedures designed to ensure factual accuracy in applications–Woods Procedures–for the sample of FISA applications it reviewed. The procedures are intended to safeguard against the abuse of the government's surveillance powers by requiring the FBI to rigorously document claims it makes in FISA applications. The inspector general’s office review included probing whether the FBI had maintained supporting documentation for each fact asserted in an accuracy sub-file, known as a Woods File. In four instances, the inspector general’s office discovered that documentary support for factual assertions in FISA applications was missing entirely from the application’s respective Woods File. In its report, the inspector general’s office did not seek to determine whether support for those assertions might exist elsewhere, however. And when the inspector general’s office identified instances in which factual assertions in FISA applications differed from information contained in their respective Woods Files, it did not assess the relevance of the discrepancies to the FISC’s approval of government requests to conduct electronic surveillance.

The purpose of the Justice Department review was to answer those remaining questions. In a filing to the FISC on July 29 concluding the report, the Justice Department stated that of hundreds of facts contained in the 29 FISA applications reviewed by the inspector general’s office, one was a material misstatement and one a material omission. In the department’s view, neither material error invalidated the authorizations granted by the FISC to carry out surveillance, although the report acknowledged that that determination was ultimately up to the FISC. And where the inspector general’s office was unable to locate supporting documents in a Woods File, Justice Department accuracy reviewers in many cases were able to track down supporting documents. As a result, in a declaration included in the filing, FBI Acting General Counsel Dawn Browning concluded that the review “should instill confidence in the FBI’s use of its FISA authorities.” But Browning nonetheless committed the agency to “meeting the highest standard of exactness” and “eliminat[ing] errors of any kind.”

The Department of Justice’s Review

According to the filing, the FBI reviewed the applications audited by the inspector general’s office, and the Justice Department’s National Security Division’s Office of Intelligence considered whether the misstatements or omissions in the application were material. The Justice Department defines material facts as those that are relevant to the outcome of the probable cause determination, and the misstatement or omission of which would warrant notice to the FISC. In determining whether facts were material, the Office of Intelligence consulted when necessary with FBI field offices to resolve questions and review additional documents.

The department submitted its evaluation of the first 14 of the 29 FISA applications to the FISC on June 15, and submitted its evaluation of the remaining 15 applications on July 29.

In the first 14 applications it reviewed, the Justice Department’s Office of Intelligence identified 63 non-material errors or unsupported facts, and one misstatement or omission that it deemed material. Of the 63 non-material errors or unsupported facts, according to the filing, 29 reflected typographical errors or date discrepancies between an application and a source document. Of the remaining 34, according to the filing, “13 involve non-material factual assertions that may be accurate, but for which a supporting document could not be located in the FBI’s files, and 21 involve non-material deviations between a source document and an application and/or a misidentified source of information.” The number of errors per application ranged from zero to 15. The details of the errors, and the Justice Department’s analysis of their materiality, was censored from the report.

In the 15 remaining applications, the Office of Intelligence identified one material misstatement in an application for authorization to conduct electronic surveillance and carry out a physical search relating to an individual the FBI suspected might be an agent of a foreign power. The error “involved the difference between the statement in an application stating that the target had become sympathetic toward a particular terrorist group and the supporting documentation which established that a witness reported that this target had become more sympathetic to radical Muslim causes,” according to the filing. The Office of Intelligence deemed the error relevant to a probable cause determination, but ultimately concluded that it “did not invalidate the requested probable cause determination based on the significant, contemporaneous derogatory information in the application.”

The review of these applications also turned up 139 non-material errors or unsupported facts, with the number of errors per application ranging from zero to 23. Forty-eight were typographical errors or date discrepancies between an assertion in the application and a source document. Of the remaining 91 errors, “four involve non-material factual assertions that may be accurate, but for which a supporting document could not be located in FBI’s files; 73 involve non-material deviations between a source document and an application; and 13 involve errors in which the source of an otherwise accurate factual assertion was misidentified.” Descriptions of the errors and the Justice Department’s reasoning in deeming them immaterial were redacted.

Ongoing Reform Efforts

While broadly defending the integrity of the FBI processes for seeking a FISA warrant, Browning’s statement acknowledges that the inspector general’s office memo raised valid concerns, and has helped to shape the FBI’s FISA reforms. She noted that the bureau had made “great strides” in implementing more than forty corrective actions ordered by FBI Director Chris Wray in December 2019 and adopted after the submission of the 29 audited FISA applications. These reforms, in Browning’s account, “were intended... to strengthen the FBI’s FISA procedures and ultimately ensure that FISA applications met the FBI’s ‘scrupulously accurate’ standard.” She also referenced the FBI’s efforts to account for, and ensure the proper maintenance of, Woods Files for all FISA application dockets beginning on or after January 1, 2015. The FISC ordered the FBI to report on the results of this effort every two months. In connection with that project, Browning stated, the FBI has identified thousands of pertinent dockets and sought to account for the existence of a Woods file for each one. According to her declaration, the FBI has “located or remediated” over 99% of these files. The Office of Intelligence is currently evaluating how to proceed in the remaining cases, and the Justice Department will update the FISC on its efforts and the nature of its remedial steps in subsequent filings to the court.

Lessons Learned

According to the filing, the Office of Intelligence believes that the inspector general’s office audits and Justice Department accuracy reviews have yielded information that will improve its existing accuracy review process, including in assessing compliance with Woods Procedures in individual applications. The Office of Intelligence also believes that as a result of the reviews, it has identified drafting practices that may have inadvertently introduced the errors illuminated by the reviews. Examples of the identified drafting practices, which arise both in the counterterrorism and counterintelligence contexts, include “the difference between describing the date on which an intelligence report was produced as compared to the date on which that product was reviewed by the FBI” or deviations stemming from the government’s presentation of characterizations or conclusions based on underlying facts as factual statements themselves. The filing states that training of Office of Intelligence attorneys going forward will “reinforce methods of interacting with FBI personnel and drafting practices” that will help avoid the types of errors under scrutiny.

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