New Inspector General's Report Finds Even More Problems With The FBI's FISA Surveillance Applications

from the demanding-the-best-people-but-demanding-nothing-from-them dept

The FBI's inability (or unwillingness) to craft factual FISA court affidavits was exposed late last year by an investigation by the DOJ's Inspector General. During the FBI's surveillance of former Trump advisor, Carter Page, information known by the agency was omitted to allow agents to continue its interception of Page's communications. Despite having obtained info showing Page was likely not acting on behalf of a foreign power, the FBI continued its surveillance for months by hiding this key finding from the FISA court.

The fallout from this report continues. The FISA Court banned the FBI agent who lied on the warrant applications. The court also instructed the FBI to start cleaning up its Carter Page mess, including tracking down where any other info it might have illegally collected in this case might have gone, in order to prevent further violations by other agencies in the future.

Current and former DOJ/FBI officials made it clear the FBI's questionable actions in this case were only the agency's most current violations. The skirting of internal guidelines and the truth itself was a common practice dating back nearly 20 years.

The Inspector General's findings in the Page investigation were the tip of the unexpected iceberg. The IG is now looking at the rest of the FBI's FISA work. And the office is finding even more to be concerned about.

The finding of broader failings in the Foreign Intelligence Surveillance Act program came in a review launched by Justice Department Inspector General Michael Horowitz after an earlier inquiry found numerous errors in applications to monitor former Trump campaign foreign policy adviser Carter Page. In a bid to assess whether the faults in the Page’s surveillance process were an aberration or a chronic problem, Horowitz’s audit team zeroed in on 29 applications for surveillance of U.S. citizens or green-card holders over a five-year period.

Horowitz found an average of 20 errors in each of the applications.

It's impossible to say how many of these errors were accidental or deliberately induced. But an average of 20 errors per application is breathtaking, considering the FISA court's national security focus. This is where the government should be the most careful and the FBI clearly isn't. And if this is where the FBI's top agents end up, you have to wonder how many errors normal, non-FISA applications contain.

There's a specific set of policies the FBI is supposed to adhere to when asking the FISA court for permission to engage in domestic surveillance. Even the most minimal conditions of the Woods Procedures aren't being followed by agents. The Procedures say the FBI must compile and retain supporting documentation to ensure FISA applications are "scrupulously accurate." We already know the applications aren't accurate. The report [PDF] points out at least one reason why:

[W]e could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed…

The system appears to be broken from the ground up. The applications contain errors. The supporting information isn't accurate when it isn't missing completely. Interviews with agents and supervisors by the IG reveal this has been an ongoing problem for years now. And no one up top is doing anything to fix it.

FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

Every 90 days, the FBI is supposed to justify continued surveillance to the FISA Court. It did this multiple times during the Carter Page investigation, continuously omitting facts that would have resulted in its surveillance being terminated. The FBI does this in multiple cases, apparently. A mixture of malice, stupidity, and laziness has resulted in the mess observed by the Inspector General.

[B]ased on the results of our review of two renewal files, as well as our discussions with FBI agents, it appears that the FBI is not consistently re-verifying the original statements of fact within renewal applications. In one instance, we observed that errors or unsupported information in the statements of fact that we identified in the initial application had been carried over to each of the renewal applications. In other instances, we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application. This practice directly contradicts FBI policy.

The FBI agrees with the IG's assessment that it's terrible at following its own policies. But the response attached to the IG report -- crafted by the Deputy FBI director -- says things will be fine because… the FBI is creating more policies!

[T]he FBI has been intensely focused on implementing these remedial measures with the goal of ensuring that our FISA authorities are exercised with objectivity and integrity. Among many other changes, we revised FISA request and verification (Woods) forms, developed a new confidential human source checklist, developed and released training on this checklist, developed and provided new training on revised FISA forms, and developed new FISA process rigor training. The revised Woods form now requires agents and supervisors to attest to their diligence in re-verifying facts from prior applications. All Woods forms, both for initial applications and renewals, must now be scanned and maintained in the electronic case file. These already-implemented changes will drive accountability, accuracy, and completeness in the FISA process.

All of this new paperwork doesn't mean anything if the FBI isn't going to make sure agents follow it. The problems seen in 2002 still exist nearly 20 years later, and that's after the implementation of additional policies following every successive reaming from the Inspector General and the FISA Court. If the FBI isn't going to start engaging in serious oversight -- including meaningful discipline of agents who fail to follow policies -- the problems will continue. The only change will be the length of oversight reports, which will contain details of all the new ways the FBI is ignoring its own protocols.

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Filed Under: 4th amendment, carter page, doj, fbi, fisa, fisa court, fisa warrants, fisc, inspector general, surveillance


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  • identicon
    Anonymous Coward, 2 Apr 2020 @ 11:02am

    I suppose the things to ask are how many people have been convicted using the ill-gotten evidence, how many will now be retried and maybe released and then compensated for having their lives ruined and lastly, what action will be taken against those involved, particularly at the top of the tree? I guess the figure will be 0 at all stages because every government court case has to be a win whether the accused is innocent or not!

    reply to this | link to this | view in chronology ]

    • identicon
      Agammamon, 2 Apr 2020 @ 11:15am

      Re:

      Its a FISA court - so all those eventually convicted are 'terrorists' (otherwise these warrant applications would have gone through normal courts). So, basically, none of them will get a retrial.

      The vast majority will never even know if a FISA warrant was used in their case, let alone ever see it.

      Because we can't let the terrorists win.

      reply to this | link to this | view in chronology ]

  • identicon
    Agammamon, 2 Apr 2020 @ 11:12am

    Its almost like having secret courts, shielded from scrutiny, let alone accountability, would lead law enforcement to take a 'who gives a shit' attitude.

    I mean, its unprecedented so you can't expect people to know that this was coming down the pike.

    Oh, wait, its not - which is why we already have Brady disclosure requirements, 'fruit of the poisoned tree' doctrine, Miranda, etc, elsewhere as responses to specific and widespread law enforcement and prosecutorial abuses.

    Yet the cry from all levels of the criminal justice system is 'trust us, we're the good guys'.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 2 Apr 2020 @ 11:12am

    It's what I heard, which might be different from what they said

    FBI documentation of interviews is a joke. They aren't allowed to record these interviews, but take notes instead. The thing is, what is the delta between what the 'suspect' says and what the FBI agent writes down? For all we know, the agent is making out their shopping list. And given the things pointed out in this article, could we even be sure that that shopping list is accurate, or an act of fantasy?

    So if interviews are some of the basis for these so called 'Woods' documents, how could they be called 'scrupulously accurate'?

    reply to this | link to this | view in chronology ]

    • icon
      Upstream (profile), 2 Apr 2020 @ 1:04pm

      Re: It's what I heard, which might be different from what they s

      They aren't allowed to record these interviews, but take notes instead.

      They do this intentionally. They could record interviews, but they choose not to. Incriminating recollections beat the truth every time.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Apr 2020 @ 2:06pm

    Mixing metaphors with vim and vigor

    With the FBI having run aground on the iceberg of the Inspector General's report, will they engage in the Birkenhead Drill, or will they just hunch their shoulders and wait a few months for the heat to die down?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Apr 2020 @ 2:46pm

      Re: Mixing metaphors with vim and vigor

      I vote Birkenhead Drill! It's the only way to deal with that particular rat-infested ship.

      reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 2 Apr 2020 @ 3:12pm

    It's almost as if the FBI looked at the Constitution ignoring surveillance society they had under J Edgar Hoover and repsonded with, "Hold my beer you dilettante."

    reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 2 Apr 2020 @ 5:22pm

    What Good is the Constitution?

    New Inspector General's Report Finds Even More Problems With The FBI's FISA Surveillance Applications

    It is travesty that the Foreign Intelligence Surveillance Act which was enacted to protect US persons from unconstitutional US government surveillance (ie COINTELPRO 1956 -1971 is the claim) has been so thoroughly corrupted by US government expediency, abetted by lack (ie nonexistent) of judicial oversight by a rubber stamp called the Foreign Intelligence Surveillance Court and allowed to wither and die via benign indifference by Congress.

    No US person should be exposed to US government surveillance in an ex parte setting where they are unable to defend themselves from scurrilous accusations and secret unchallengeable evidence.

    Italicized/bold text was excerpted from the FBI website section The Vault containing information pertaining to:

    COINTELPRO

    COINTELPRO The FBI began COINTELPRO—short for Counterintelligence Program—in 1956 to disrupt the activities of the Communist Party of the United States. In the 1960s, it was expanded to include a number of other domestic groups, such as the Ku Klux Klan, the Socialist Workers Party, and the Black Panther Party. All COINTELPRO operations were ended in 1971. Although limited in scope (about two-tenths of one percent of the FBI’s workload over a 15-year period), COINTELPRO was later rightfully criticized by Congress and the American people for abridging first amendment rights and for other reasons.

    https://vault.fbi.gov/cointel-pro

    reply to this | link to this | view in chronology ]

  • icon
    BentFranklin (profile), 3 Apr 2020 @ 7:47am

    I am absolutely livid that this FISA court shit may now make it impossible to bring Trump and his crime syndicate to justice.

    reply to this | link to this | view in chronology ]

  • identicon
    Bob's Uncle, 3 Apr 2020 @ 9:16am

    Forward to the Past

    I was gonna post a rant about how almost all of this day's TD news is a perfect example of a budding Fascist State in motion, but then I realized, nobody is actually willing to believe that such a thing could happen in the USA, even though history is proof that fascism, feudalism and dictatorship are the normal state of life on earth.

    So, instead;

    B'bye America. It was fun while it lasted.

    reply to this | link to this | view in chronology ]

    • icon
      Upstream (profile), 3 Apr 2020 @ 10:20am

      Re: Forward to the Past

      Yeah, it has been a largely fascist state in many ways for quite a while. It is just that now the fascist aspects are growing more quickly and becoming more apparent, and, at least for some people, the facade / veneer / mask / delusion of a "free country" is beginning to wear off.

      reply to this | link to this | view in chronology ]


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