For years, we civil libertarians were told that our concerns about the secret court that oversees the FBI’s applications to monitor U.S. citizens were overblown. So what if the Foreign Intelligence Surveillance Court approved more than 99% of all applications. The bureau and Justice Department must follow an onerous process, we were assured, that protects innocent citizens from being snooped on by their government.
Those assurances, as it turns out, were not very reliable. On Tuesday, the Justice Department Inspector General Michael Horowitz issued a new report that found systematic errors of fact in the FBI’s applications for warrants under the Foreign Intelligence Surveillance Act. The memo does not speak to the materiality or significance of those errors — but they are startling nonetheless.
Out of 42 applications, the report says, 39 included major defects. All told, the inspector general uncovered 390 deficiencies, including “unverified, inaccurate, or inadequately supported facts, as well as typographical errors.”
The memo follows the report Horowitz issued in December that reviewed four FISA warrants for Carter Page, a former foreign policy adviser to then-candidate Donald Trump’s 2106 presidential campaign. The bureau suspected him of being a Russian agent, but the report found that it repeatedly relied on an opposition research dossier to persuade the secret court to renew the surveillance warrant even after agents knew the dossier was riddled with errors. Rules that have been in place for nearly 20 years to verify the accuracy of facts presented in the warrant and include exculpatory information, known as the Woods procedures, were ignored.
The December report was a black eye for the bureau. It prompted one judge on the surveillance court to reprimand the agents involved in the Page applications, temporarily barring them from appearing before it.
Those applications were so troubling that Horowitz launched an audit of how the FBI was complying with its own rules in all FISA applications between October 2014 and September 2019. His conclusion is straightforward. “We do not have confidence that the FBI has executed its Woods procedures in compliance with FBI policy,” the report says.
The Woods procedures are crucial because the surveillance court is unlike other U.S. courts. For obvious reasons, it does not operate under the adversarial system, whereby a lawyer representing the suspected spy or terrorist can challenge the government’s evidence. Instead, the court itself is supposed to provide special scrutiny to the prosecution’s case — but as the Page fiasco showed, it is in no position to do so.