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 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.
The result is a system that relies almost exclusively on the FBI being scrupulous with its facts. Horowitz’s findings show that the bureau has been systematically unscrupulous.
In the twisted politics of the Trump Era, some of bureau’s defenders might actually view this report as good news: It shows that the investigation of the Trump campaign was not necessarily politically motivated. The bureau made the same kinds of mistakes with suspects who were not connected to the Trump campaign.
That’s hardly reassuring — and the malpractice that the report uncovers is a much larger problem than the FBI and its defenders may wish to admit. So far, the response to Horowitz’s December report has been a series of administrative reforms, such as a requirement that FBI field offices preserve their “Woods files” and a mandate for new FISA training for FBI lawyers and agents. That’s all well and good. But one need not go back to the bad old days of J. Edgar Hoover to see that the bureau has been careless in its monitoring of U.S. citizens.
The Woods procedures were issued in 2001 after Congress obtained a memo from the FBI’s counterterrorism division detailing surveillance abuse in the late 1990s. One target’s cell phone remained tapped after he gave it up and the number was reassigned to a different person. Another FBI field office videotaped a meeting, despite a clear prohibition on that technique in its FISA warrant. In 2003, an interim report from the Senate Judiciary Committee concluded that the 2001 memo showed “the FBI was experiencing more systemic problems related to the implementation of FISA orders” than a problem with the surveillance law itself.
Very little has changed in the intervening 17 years. That’s why it’s foolish to expect new and better procedures will work this time. A better approach would be an aggressive policy to prosecute FBI agents and lawyers who submit falsehoods to the surveillance court. The best way to prevent future violations is to severely punish those who commit them in the present.
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