A report released today by the Office of the Inspector General for the Department of Justice (OIG) warns that the problems found with the FBI's secret warrants to wiretap former Donald Trump aide Carter Page were not an anomaly. The agency regularly makes mistakes on its applications to the Foreign Intelligence Surveillance Amendment (FISA) Court when it asks for permission to secretly snoop on Americans.
Back in December, the OIG released a blockbuster report showing that FBI agents made a number of significant omissions and errors in their four warrant applications to snoop on Page in the hopes of determining if he was being unduly influenced by Russian officials during Trump's 2016 presidential campaign.
Inspector General Michael Horowitz was so bothered by the problems with the Page warrants that he declared that the OIG would perform a deeper audit to see if FBI officials were following proper procedures with their other secret FISA warrants.
The results of that deeper audit were published today and they don't look good for the FBI. The OIG report shows that the agency regularly neglects proper procedures when seeking FISA warrants.
The failing point appears to be adherence to the Woods procedures, a collection of policies implemented in 2001 to make sure that every fact and detail in a warrant application to the FISA court has been carefully vetted for accuracy and to document that process. The FBI failed to properly follow those procedures with Page. Based on this new report, it looks like this failing is a common problem.
How common? The OIG reviewed 29 FISA warrant applications. In 25 of them the OIG identified errors or "inadequately supported facts." In the other four, the OIG couldn't find the associated Woods files—records that document that the FBI agents did due diligence to verify factual accuracy—at all. In three of those cases, the OIG is not certain whether any Woods files even exist. So there's essentially a problem with every warrant application the OIG looked at for this audit.
The report notes that the OIG is not evaluating whether these errors or omissions were material mistakes that would or should have impacted whether the original warrants should have been granted. But that's not the point, and that's why this audit is so important. Because the FISA warrant process is so deliberately secretive, its oversight is limited to the FISA court, which depends on the FBI to be honest about the procedures it is supposed to follow. The FBI has a lengthy internal process to double-check warrant applications. This report notes that the internal processes have found close to 400 errors in 39 FISA warrant applications across the last five years. Inspector General Horowitz writes:
We do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy, or that the process is working as it was intended to help achieve the "scrupulously accurate" standard for FISA applications.
Horowitz recommends that the FBI put into place a system of examining past Woods procedures compliance problems to train FBI employees to do a better job. And he recommends that the FBI perform a "physical inventory" to make sure that there's a Woods file for every warrant application submitted to the FISA court.
After the Page warrant audit was released, FBI Director Christopher Wray released a 40-point plan to correct procedures within the department. In the FBI's official response to today's OIG report, FBI Associate Deputy Director Paul Abbate contends that the changes that Wray is already introducing, such as more checklists and training, will help fix these problems moving forward.
It's deeply disturbing that the OIG found problems with every single FISA warrant application it looked at. FISA warrants exist for the purpose of catching spies and terrorists, which is why so much secrecy is permitted. But mistakes and omissions in this secretive process have huge civil liberties implications for any citizen caught in the government crosshairs. Normally, citizens can turn to the courts for relief when warrants are misapplied. But that's not the case with FISA warrants.
Read the new OIG memo here.