PERSPECTIVE: FBI exoneratedJustice Department Completes Review of Errors in FISA Applications

Published 12 August 2020

The 2016 application by the FBI to the FISA court for permission to place Carter Page, a former Trump campaign adviser, under surveillance over his suspicious contacts with Russian intelligence officers, was reviewed by the Justice Department’s Inspector General. The DOJ IG found the application to be proper and in line with the department’s guidelines, even though it contained a few minor errors. AG William Barr ordered a second thorough review of the FBI’s application, a review which included a review of the IG’s review as well. The Barr-ordered review has been completed, and the Justice Department reported that most of the errors identified by the Office of the Inspector General were minor, and none invalidated the surveillance application and authorizations. The DOJ review “should instill confidence in the FBI’s use of its FISA authorities,” said FBI Acting General Counsel Dawn Browning, committed the agency to “meeting the highest standard of exactness” and “eliminat[ing] errors of any kind.”

The Department of Justice has completed its review of deficiencies in Foreign Intelligence Surveillance Act (FISA) applications concerning U.S. persons identified by the department’s Office of the Inspector General. Jeremy Gordon writes in Lawfare that the Department of Justice review follows the Justice Department’s Office of the Inspector General report on the FBI’s Crossfire Hurricane investigation into members of the Trump campaign.

Gordon writes:

The Justice Department’s review built upon the inspector general’s office’s more limited earlier review of the same FISA applications. The inspector general’s office audit examined whether the FBI complied with procedures designed to ensure factual accuracy in applications–Woods Procedures–for the sample of FISA applications it reviewed.The procedures are intended to safeguard against the abuse of the government’s surveillance powers by requiring the FBI to rigorously document claims it makes in FISA applications. 

Gordon notes that in four instances, the inspector general’s office discovered that documentary support for factual assertions in FISA applications was missing entirely from the application’s respective Woods File. In its report, “the inspector general’s office did not seek to determine whether support for those assertions might exist elsewhere, however,” Gordon writes. “And when the inspector general’s office identified instances in which factual assertions in FISA applications differed from information contained in their respective Woods Files, it did not assess the relevance of the discrepancies to the FISC’s approval of government requests to conduct electronic surveillance.”

The purpose of the Justice Department review was to answer those remaining questions.

In a filing to the FISC on July 29 concluding the report, the Justice Department stated that of hundreds of facts contained in the 29 FISA applications reviewed by the inspector general’s office, one was a material misstatement and one a material omission. In the department’s view, neither material error invalidated the authorizations granted by the FISC to carry out surveillance, although the report acknowledged that that determination was ultimately up to the FISC. And where the inspector general’s office was unable to locate supporting documents in a Woods File, Justice Department accuracy reviewers in many cases were able to track down supporting documents. As a result, in a declaration included in the filing, FBI Acting General Counsel Dawn Browning concluded that the review “should instill confidence in the FBI’s use of its FISA authorities.” But Browning nonetheless committed the agency to “meeting the highest standard of exactness” and “eliminat[ing] errors of any kind.”