March 31, 2020 12:18PM

FISA Abuses Update: DoJ IG Management Advisory Memorandum Edition

Lots of very important stories are going to get passed by, very understandably, due to the ongoing COVID-19 national emergency we’re all trying to survive. Here’s one story that I hope does not get permanently subsumed by our public health crisis: the total debacle that is the FBI Foreign Intelligence Surveillance Act (FISA) surveillance application process.

Today, the Department of Justice Inspector General released a Management Advisory Memorandum (MAM) about its follow up audit work in the wake of its Crossfire Hurricane (i.e., Carter Page FISA surveillance scandal) report from December 2019. Even though the DoJ IG is still relatively early in its follow up audit of FBI FISA application practices with the Foreign Intelligence Surveillance Court (FISC) for applications to spy on U.S. Person, the DoJ IG’s preliminary findings were so alarming that they felt compelled to issue MAM now.

Regarding the FBI’s existing factual accuracy review procedures (known internally as “Woods procedures”), the IG stated (pp. 2–3):

(1) we could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has notbeen able to locate them and, in 3 of these instances, did not know if they ever existed;

(2) our testing of FISA applications to the associated Woods Files identified apparent errors or inadequately supported facts in all of the 25 applications we reviewed, and interviews to date with available agents or supervisors in field offices generally have confirmed the issues we identified;

(3) existing FBI and NSD oversight mechanisms have also identified deficiencies in documentary support and application accuracy that are similar to those that we have observed to date; and

(4) FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

Bottom line: none of the relatively small sample of FISA applications reviewed were likely worth the paper they were written on. And based on this relatively random sample, I’ll be very surprised if the IG doesn’t find exactly the same state of affairs for FISA applications at every one of the 56 FBI field offices in the country.

All of which leaves us with a very simple, and damning, question: Exactly how many Americans were wrongly targeted for FISA surveillance–and possibly prosecution–on the basis of bogus FISA applications? Hopefully, the final IG report, which likely won’t be out for many months, will tell us. The questions then will become whether Congress will actually do anything about it and will anybody at the Justice Department and FBI get sacked over this. If history is any guide, the answers are likely to be “no” absent a fundamental change in attitude by House and Senate members towards the Bureau and DoJ.