A Justice Department watchdog has found more problems with FBI applications to a secret court that approves surveillance as part of counterintelligence and counterterrorism investigations.
The inspector general audit, released Tuesday, could play into the ongoing congressional debate over the program. Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., said he would call DOJ Inspector General Michael Horowitz to testify about the findings and his recommendations about what changes to make.
In December, Horowitz identified “significant concerns” with how the FBI handled applications to surveil former Trump campaign adviser Carter Page. His office looked at 29 other applications in an audit and found the FBI was not following procedures from 2001 meant to protect the Foreign Intelligence Surveillance Act process from abuse and irregularities.
In a memo Tuesday, Horowitz wrote that “we believe that 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 FBI requires case agents to keep a “Woods file” that contains documentation for every factual assertion in a FISA application and other information, Horowitz wrote. It must be completed before an application is submitted to the secret Foreign Intelligence Surveillance Act court.
Of the 29 applications, the audit found no Woods file for four cases. And there were multiple problems in all 25 of the other applications, such as facts in the applications that were not supported by documentation in the Woods file or were inconsistent with that documentation.
“While our review of these issues and follow-up with case agents is still ongoing—and we have not made materiality judgments for these or other errors or concerns we identified—at this time we have identified an average of about 20 issues per application reviewed, with a high of approximately 65 issues in one application and less than 5 issues in another application,” Horowitz wrote.
The Justice Department agrees with Horowitz's recommendations in the memo, and has backed provisions in the proposed legislation that would address deficiencies Horowitz found, including in this audit, a spokeswoman said.
The FISA process has been in the political spotlight because the FBI launched a criminal probe into members of President Donald Trump’s campaign in 2016. Trump and his congressional allies criticized the FBI probe into Russian interference in the election.
In December, Horowitz found 17 “significant inaccuracies and omissions” in applications to allow for continued surveillance of Page.
Tuesday’s memo indicates the problems with the FISA application process are more widespread than just the Carter case.
The FBI made changes to the program after the December report, and in a letter the bureau said those previous corrective actions will address issues uncovered in the audit.
Surveillance authorities, including those under FISA, lapsed earlier this month. Congress then extended those authorities until the end of May to deal with the debate over the issue when it was not dealing with the immediate concerns over the coronavirus outbreak.
The House had passed a bill (HR 6172) on March 11 to reauthorize FISA powers but overhaul some provisions. Among them, the bill would impose additional requirements on FISA court orders that target a federal elected official or candidate, and require the FBI to appoint an officer responsible for compliance with FISA requirements.
Neema Singh Guliani, ACLU senior legislative counsel, used the Horowitz memo Tuesday to call on the Senate to improve the House-passed bill.
"This report further demonstrates that the incident with Carter Page was not a one-off. There are systemic problems with our foreign intelligence surveillance laws and courts,” Guliani said in a news release.
“It is disappointing that despite repeated examples of deficiencies with our surveillance laws, Congress has failed to advance a strong surveillance reform bill to better protect our privacy rights,” she said.