Congress recently put off its reform of surveillance laws until summer amid the pandemic. Justice Department Inspector General Michael Horowitz has now provided more support for action with a report this week finding even more FBI surveillance abuses.
Mr. Horowitz in December released the devastating findings of his investigation into the FBI’s probe of the 2016 Trump campaign, in particular the bureau’s corruption of a secret court process to spy on former Trump aide Carter Page. The IG found the FBI had duped the court, providing it with information that wasn’t accurate while omitting exculpatory evidence. The findings inspired the Horowitz team to initiate a broader audit of how the FBI complies with “Woods Procedures.”
Those procedures date to 2001, after the FBI was found to have submitted numerous erroneous surveillance applications to the Foreign Intelligence Surveillance Court. Woods Procedures require a case agent to maintain a “Woods” file that provides supporting documentation for every factual assertion in an application. Courts rely on FBI honesty, since the wiretap requests are secret and no one represents the target. The Woods policy is designed to ensure applications are “scrupulously accurate,” and a case agent and supervisor must sign an official form verifying the file is complete and accurate.
Yet the IG’s audit of a sample 29 applications to wiretap U.S. citizens or residents from October 2014 to September 2019 found a hot mess. The IG couldn’t even review Woods files for four of the 29, “because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed.” The audit nonetheless found “errors or inadequately supported facts in all of the 25 applications we reviewed.” The IG noted that his office did not examine whether these errors were “material” enough to have influenced the FISA court’s decisions. But a 100% fail rate suggests the court is rarely if ever getting an honest picture.
The IG found the FBI’s “oversight” mechanisms to ensure Woods accuracy were also lacking. FBI policy requires lawyers in FBI field offices and in DOJ’s National Security Division to perform an annual “accuracy review” of a set number of applications. The IG discovered that in all these reviews the “field offices are given advance notification” of which applications will be requested, allowing them to spruce up those files for inspection.
Even then, the files were botched jobs—by the government’s own admission. The IG looked at 34 of these “accuracy review” reports, which covered 42 FISA applications. Reports related to only three of the applications delivered a clean bill of health. But “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.” And while the results of these reviews go into reports, the IG found FBI headquarters does not use the findings in any “comprehensive, strategic fashion”—say, to “assess the performance of individuals involved in and accountable for FISA applications.”
That word—accountable—gets to the heart of the matter here. Even as former Director Jim Comey and his media protectorate cast FBI critics as unpatriotic, the IG has revealed a system in which agents routinely abuse the system, and management turns a blind eye. FBI Director Christopher Wray’s response to this new IG report is again to promise that the bureau will reform, but this report shows the FBI couldn’t be trusted to abide by the processes it agreed to follow after the last abuses were discovered.
The reason is incentives. The agents know that a court will sign off on their requests no matter what they send in so there’s little reason to be scrupulous. If something is amiss, the court order is their protection. The entire FISA process of injecting Article III judges into executive branch decisions dilutes political accountability and is an invitation to abuse.
Reforms that Republicans forced into the House’s reauthorization of three expiring surveillance laws in March are better than nothing. But the Senate should renew the other surveillance powers and abolish the political cover that is the FISA court. Make the Justice Department and FBI take responsibility for their wiretap decisions—and their abuses.
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