The surveillance of onetime Trump campaign adviser Carter Page increasingly appears to have been uniquely problematic.
In response to a Justice Department audit born from that controversy, the FBI released details about more than two dozen Foreign Intelligence Surveillance Act applications, arguing none of its mistakes affected the “validity” of the FISA court’s orders.
This sample indicates that the 17 “significant errors and omissions” found by the DOJ watchdog in the process to obtain warrants to wiretap Page, laid out in a report criticizing the FBI’s reliance upon British ex-spy Christopher Steele’s deeply flawed dossier, was an outlier and gives Republicans who believe Donald Trump’s campaign was unfairly targeted more ammo in the unraveling “Russiagate” controversy.
Following a Justice Department audit that unearthed problems among other spy applications, which led the Foreign Intelligence Surveillance Court to order a deeper review, the FBI said Thursday that for the 29 applications reviewed by the DOJ and FBI, there were an estimated 6,771 factual assertions. “Within these thousands of facts, there were approximately 201 non-material errors found,” the FBI said, including “minor typographical errors, such as misspelled words, and slight date inaccuracies.” The bureau further said, “The DOJ and FBI discovered only two material errors but — most importantly — neither of these errors is assessed to have undermined or otherwise impacted the FISC’s probable cause determinations.”
“None of the errors that had been identified by DOJ-OIG undermined or otherwise impacted the validity of the FISC’s orders,” the FBI said. “All 29 applications selected by the OIG for its audit predate the 40-plus corrective actions ordered by Director Wray in December 2019 to reform the FISA process, and the FBI remains confident these actions will fully address the findings and recommendations made by the DOJ-OIG. The FBI considers FISA an indispensable tool to protect the United States against national security threats and is dedicated to the continued, ongoing improvement of the FISA process to ensure all factual assertions contained in FISA applications are accurate and complete.”
An audit released in late March by DOJ Inspector General Michael Horowitz focused on the FBI’s requirement to maintain an accuracy subfile known as a “Woods File.” Investigators found serious problems in each of the 29 FISA applications they examined, and Horowitz said his team believed “a deficiency in the FBI’s efforts to support the factual statements in FISA applications through its Woods Procedures undermines the FBI’s ability to achieve its ‘scrupulously accurate’ standard for FISA applications.”
The FISA court’s assessment was harsher than the one released by Horowitz.
“It would be an understatement to note that such lack of confidence appears well-founded. None of the 29 cases reviewed had a Woods File that did what it is supposed to do: support each fact proffered to the Court. For four of the 29 applications, the FBI cannot even find the Woods File,” presiding Judge James Boasberg said in early April. “For three of those four, the FBI could not say whether a Woods File ever existed. The OIG, moreover, ‘identified apparent errors or inadequately supported facts’ in all 25 applications for which the Woods Files could be produced.” Boasberg said the wide-ranging problems “provide further reason for systemic concern” about the FBI’s process for obtaining FISA warrants.
Horowitz’s audit memo released in March was a follow-up to his much larger report in December, in which the watchdog criticized the Justice Department and the FBI for numerous “significant errors and omissions” related to the FISA warrants against Page and for the bureau’s reliance on Steele, who put his research together at the behest of the opposition research firm Fusion GPS funded by Hillary Clinton’s presidential campaign and the Democratic National Committee through the Perkins Coie law firm. Page has denied any wrongdoing and was never charged with a crime.
The DOJ watchdog called the FBI’s explanations for these screw-ups “unsatisfactory across the board” and testified that he wasn’t sure if the errors were due to “gross incompetence” or whether they were “intentional.”
Declassified footnotes from Horowitz’s report indicate that the bureau became aware that Steele’s dossier may have been compromised by Russian disinformation yet continued to use it to justify surveillance.
In January, Boasberg revealed that the Justice Department decided that “in view of the material misstatements and omissions” in the filings, the final two of four Page FISA warrants “were not valid” and said the agency was still reviewing the first two.
The FBI told the court it was working to ”sequester” all the information obtained through the Page wiretaps until the completion of a further review of the DOJ inspector general report on the warrants and the “outcome of related investigations and any litigation.” Christopher Wray testified to Congress he was working to “claw back” information gleaned through the electronic surveillance of Page. The FBI director also testified that the bureau likely illegally surveilled Page.
In a rare public order last year, the FISA court criticized the FBI’s handling of the Page applications as “antithetical to the heightened duty of candor described above” and demanded an evaluation from the bureau. The FISA court also ordered a review of all FISA filings handled by Kevin Clinesmith, the FBI lawyer who altered a key document about Page in the third renewal process. He came under criminal investigation by U.S. Attorney John Durham, a prosecutor from Connecticut, who was tasked by Attorney General William Barr with investigating the Russia inquiry.