Investigator Michael E. Horowitz reviewed a random sample of 29 applications by the FBI for court permission to start wiretaps. Photo / Anna Moneymaker, The New York Times
The bureau has routinely botched work on surveillance applications for its national-security investigations, an inspector general said.
An inspector general uncovered pervasive problems in the FBI's preparation of wiretap applications, according to a memo released Tuesday about an audit that grew out of a damning report last year about errors and omissions in applications to target a former Trump campaign adviser during the Russia investigation.
The follow-up audit of unrelated cases by the Justice Department's independent watchdog, Michael E. Horowitz, revealed a broader pattern of sloppiness by the FBI in seeking permission to use powerful tools to eavesdrop on American soil in national-security cases. It comes at a time when Congress is debating new limits on the Foreign Intelligence Surveillance Act, or FISA.
But the findings of systemic failures also help the FBI politically because they undercut the narrative fostered by President Donald Trump and his supporters that the bureau's botching of applications to surveil his campaign adviser, Carter Page, shows that the broader Russia investigation was a conspiracy motivated by political bias.
Horowitz's investigators reviewed so-called Woods files, where the FBI is supposed to catalogue supporting documentation for factual claims in a FISA application, in a random sample of 29 requests to wiretap someone as part of a terrorism or espionage investigation under FISA. They found problems with all 29.
"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," the inspector general report said.
Testing the FISA applications against their underlying evidence "identified apparent errors or inadequately supported facts in all of the 25 applications we reviewed," the report said.
The other four could not be scrutinised at all because the FBI could not even locate the required Woods file. In the other 25 applications, the review found an average of about 20 problems each. One alone had 65 issues.
In a statement appended to the report, the FBI said it accepted the findings but also said that it believed it is already addressing the source of the problems through corrective steps it put in place following the earlier report about Page, like greater training and new checklists that officials preparing documents for FISA applications must follow.
Some of the problems the review found matched issues the inspector general previously uncovered with the Page applications. For example, FBI policy requires that when investigators submit to a court a factual assertion by a confidential source they must internally document that the source's handler was consulted about those facts and the source's credibility and background.
The Page applications had relied in part on information provided by Christopher Steele, a former British intelligence agent who compiled a dossier of claims about purported Trump-Russia links. The inspector general previously found that the applications overstated the value of Steele's prior assistance — representations his handling agent had not approved.
The follow-up audit released Tuesday found a pattern: About half the applications contained information from confidential sources, and "many of them" lacked the required documentation of any check-in with their handling agents.
Another problem the inspector general uncovered with the Page applications was that when the FBI sought renewed permission from the court to continue wiretapping him, it failed to re-verify facts repeated from earlier applications.
For example, after the first renewal of the Page surveillance, the FBI talked to a person Steele had relied upon and who expressed disagreement with how the dossier portrayed his information. But law enforcement officials continued to cite that information in the second and third renewal applications without noting the source's objections, which likely would have given the judge reason to view it with greater scepticism.
A failure to consistently re-verify recycled statements of fact during renewals also appears to be common, the new report said.
In one case, FBI agents even repeated errors in applications submitted for wiretap renewals. In others, they only corroborated new facts, not earlier assertions they had verified when originally seeking the wiretaps and were relying on again.
"This practice directly contradicts FBI policy," the report said.
The FBI's systematic sloppiness in preparing FISA applications could be even worse than the new audit indicates because Horowitz's office did not look through the voluminous raw case files in search of any mitigating facts the applications had omitted, which was among the problems his office's closer scrutiny of the Page applications identified.
The system is inherently vulnerable to the risk that lower-level agents will cherry-pick evidence when compiling factual summaries, leaving out evidence that weakens their case when they seek permission to conduct surveillance either deliberately or through confirmation bias, current and former national security officials have said.
Audits to catch omissions are particularly difficult since they require the time and resources to achieve a deep-dive understanding of extensive investigative files, like the inspector general's office spent over a year doing with the Russia case and Page.
As part of its changes since the Page report, the FBI has created new checklists to remind agents to consider whether there is any mitigating evidence. The FISA court has ordered officials to swear in future cases that applications to the court contain "all information that might reasonably call into question the accuracy of the information or the reasonableness of any FBI assessment in the application, or otherwise raise doubts about the requested findings."
The new report took no position on the scale of the errors in the application materials — whether they were minor or could have changed law enforcement officials' decisions to seek wiretap orders or a judge's decision to approve them.
(BEGIN OPTIONAL TRIM.)
The FBI and the Justice Department's National Security Division also occasionally audit FISA applications for accuracy. The inspector general report said it examined 34 such accuracy review reports covering 42 FISA applications at eight field offices from 2014 to 2019.
Those reviews found a total of 390 issues in 39 of the 42 applications, "including unverified, inaccurate, or inadequately supported facts, as well as typographical errors," it said.
The findings of systemic problems with its work seeking FISA applications comes at a delicate time for the FBI, which has expressed chagrin at the errors and omissions in the Page applications while touting the importance of preserving its ability to use national-security wiretaps when investigating suspected spies and terrorists.
Earlier in March, the House passed new curbs on FISA as part of a bill to extend three FBI tools for national security investigations that expired on March 15. For example, the bill would push the FISA court to appoint an outsider to critique the government's arguments when a wiretap application raises serious issues about First Amendment activity, which could include political campaigns.
Some libertarian-leaning senators of both parties have argued that the House bill falls short and that more new restrictions are necessary. One of them, Sen. Ron Wyden, D-Ore., said Tuesday that the new findings underscored the need for greater safeguards.
"The inspector general's findings of widespread abuses indicate that Carter Page was not singled out," Wyden said. "Congress should write reforms into black-letter law to ensure that every American's rights are protected, not just friends of the president."
Marc Raimondi, a spokesman for the Justice Department's national security division, pointed to the changes the department and the FBI have already made. He also noted that Attorney General William Barr has further required the bureau to get higher-level approval to open politically sensitive investigations and supports changes in the House's bill.
"The department is committed to putting the inspector general's recommendations into practice and to implementing reforms that will ensure that all FISA applications are complete and accurate," Raimondi said.
Written by: Charlie Savage
Photographs by: Anna Moneymaker
© 2020 THE NEW YORK TIMES
New York Times Opinion: Military options are held to lower standard than diplomatic ones.