A review by the Justice Department and FBI of their practices for seeking approval of intelligence-related surveillance found that nearly all of the inaccuracies and omissions identified in a scathing internal watchdog report issued late last year were minor or involved paperwork problems.
The review of a set of 29 Foreign Intelligence Surveillance Court applications flagged by Inspector General Michael Horowitz’s office in an alarming alert last December identified a total of 203 false statements or omissions, but the Justice Department and the FBI concluded that only two of those were “material,” according to a court submission released on Monday.
Those two instances — which involved one misstatement and one omission in separate applications regarding individuals whose identities were not released — were deemed by the law enforcement agencies not to have been so serious that they “invalidated” the secret surveillance warrants the court issued based on that information, wrote Melissa MacTough, the deputy assistant attorney general for national security wrote.
FBI officials did not publicly describe the inspector general report as overwrought, but they suggested that the perceptions it fueled of an out-of-control secret spying apparatus were unwarranted.
“Given that the Government uncovered only two material errors amidst thousands of facts, and because those errors are not judged to have impacted probable cause, the FBI believes the results of the review … should instill confidence in the accuracy of material information the FBI submits to the Court,” wrote the FBI’s acting general counsel, Dawn Browning.
Many of those fears that the FBI was running roughshod over suspects’ rights were fanned by President Donald Trump and House Republicans, who said the watchdog report was fresh evidence of the flawed process used to surveil a Trump supporter, Carter Page, during the 2016 campaign and into the early months of the Trump administration.
However, the inspector general’s alert last December also arguably undermined the notion that Page was the victim of a political vendetta by anti-Trump officials at the FBI, suggesting that mere sloppiness could account for significant errors and omissions in applications to conduct surveillance and physical searches targeting him.
When Horowitz issued his statement last year, several former officials presented his conclusion as troubling because of the powers the surveillance process involves to spy on Americans. But the ex-officials also said evidence of nefarious intent in Page’s case remained lacking.
The review filed with the FISA court last Wednesday and partially unsealed on Monday may largely return the debate to the status quo before Horowitz’s announcement.
Still, the FBI’s review did confirm that a surveillance process that many ex-officials touted as rigorous and painstakingly documented was flawed by numerous errors and recordkeeping failures. The inaccuracies and foul-ups are particularly embarrassing for the FBI and the Justice Department because they promised to be more vigilant after a controversy about dozens of flawed applications drew the ire of a judge overseeing the FISA Court nearly two decades ago.
The FBI stressed in its new filing that many of the apparent mistakes it identified were minor, involving typographical errors, agents using the wrong dates for underlying documents or misidentifying underlying documents. Browning did note that it was ultimately up to the surveillance court to make “final judgments” about how material the errors were and whether they undermined the applications issued.
Soon after the inspector general alert was released last year, FBI Director Christopher Wray announced a slew of reforms aimed at addressing concerns about the FISA process. The changes included added training for agents and more frequent audits of applications and their underlying files.
“The FBI remains confident these actions will fully address the findings and recommendations made by the DOJ-OIG,” an FBI spokesperson said last week. “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.”
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