The Justice Department defended its use of the Foreign Intelligence Surveillance Act, arguing its deep-dive review of 29 FISA applications should increase trust in the process while suggesting the surveillance of Carter Page was uniquely problematic.
“We are pleased that our review of these applications concluded that all contained sufficient basis for probable cause and uncovered only two material errors, neither of which invalidated the authorizations granted by the FISA Court,” Assistant Attorney General for National Security John Demers said on Monday. “These findings, together with the more than 40 corrective actions undertaken by the Federal Bureau of Investigation and the National Security Division, should instill confidence in the FBI’s use of FISA authorities.”
Demers added that FISA “remains critical to confronting current national security threats, including election interference, Chinese espionage, and terrorism.”
This DOJ review indicates that the 17 “significant errors and omissions” found by the DOJ Inspector General Michael Horowitz in the process to obtain warrants to wiretap Trump campaign associate Carter Page, laid out in a report criticizing the FBI’s reliance upon British ex-spy Christopher Steele’s deeply flawed dossier, was an outlier. In response to a DOJ audit born from that controversy, the FBI released details last week about more than two dozen FISA applications, arguing none of its mistakes affected the “validity” of the FISA court’s orders.
Deputy Assistant Attorney General Melissa MacTough of the National Security Division submitted a 73-page filing with the FISA Court in June, detailing the DOJ’s review of 14 of the 29 FISA filings from the DOJ’s watchdog audit. She said the DOJ’s Office of Intelligence “has identified one material misstatement or omission among the hundreds of pages of facts contained within these 14 filings.” The DOJ official said, “This omission involved the factual description of an interview in which additional, relevant information contained in the supporting documentation was not presented for the Court’s consideration. However, OI assesses that this omission did not render invalid, in whole or in part, the authorizations granted by the Court in that application based on the remaining, contemporaneous inculpatory information in the application as well as a related, though different, piece of relevant information that was also included in that application.”
MacTough submitted another 88-page filing with the FISA court in July related to the DOJ’s review of the other 15 of the 29 FISA filings from Horowitz’s audit. She said the DOJ “identified one material misstatement in an allocation seeking to initiate Court-authorized electronic surveillance and physical search,” but that didn’t invalidate the FISAs. She revealed the misstatement “involved the difference between the statement in an application stating that the target had become sympathetic toward a particular terrorist group and the supporting documentation which established that a witness reported that this target had become more sympathetic to radical Muslim causes.” The DOJ official argued that “this misstatement did not invalidate the requested probable cause determination based on the significant, contemporaneous derogatory information in the application.”
The March audit by 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, “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.”
“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,” FISA court Judge James Boasberg said in April, adding, “The OIG, moreover, ‘identified apparent errors or inadequately supported facts’ in all 25 applications for which the Woods Files could be produced.”
Horowitz’s audit 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 the Democrat-funded Steele.
The DOJ watchdog called the FBI’s explanations for these screw-ups “unsatisfactory across the board” and testified he wasn’t sure if the errors were “gross incompetence” or “intentional.”
Declassified footnotes from Horowitz’s report indicate the bureau became aware that Steele’s dossier may have been compromised by Russian disinformation.
In January, the Justice Department determined that the final two of four Page FISA warrants “were not valid.”
The FBI told the court it was working to ”sequester” all the information from the Page wiretaps, and Christopher Wray testified to Congress he was working to “claw back” that intelligence. The FBI director testified that the bureau likely illegally surveilled Page.
The FISA court criticized the FBI’s handling of the Page applications as “antithetical to the heightened duty of candor described above” and 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, who was tasked by Attorney General William Barr with investigating the Russia inquiry.