Today, DOJ Inspector General Michael Horowitz issued a new report on the FBI’s “Execution of its Woods Procedures for Applications Filed with the Foreign Intelligence Surveillance Court Relating to US Persons.” It’s damning for the FBI.
Before we get to the Inspector General’s findings, a bit of background is important. The FISA Court is a secret court where the government is present but the accused is not. As IG Horowitz explains:
“Unlike the use of other intrusive investigative techniques (such as wiretaps under Title III and traditional criminal search warrants) that are granted in ex parte hearings but can potentially be subject to later court challenge, FISA orders generally have not been subject to scrutiny through subsequent adversarial proceedings.”
Because this is an ex parte hearing, the DOJ/FBI have heightened duties of candor. According to the FISA Court’s local rules, the government is required to disclose all material facts and correct any misstatements of material facts:
This latest audit by IG Horowitz focused on the FBI’s compliance with the Woods procedures. This is how the process works:
Last year, IG Horowitz reviewed 29 random FISA applications. He found “that the FBI was not meeting the expectations of its own protocols.” As he reported in March 2020:
“We identified numerous instances of non-compliance with the Woods Procedures in the 25 Woods Files that were made available to us to review; and we reported that the FBI was unable to produce the original version of the remaining 4 Woods Files we requested.”
More concerning are the latest discoveries after an audit of more FISA applications. These include:
“over 400 instances of non-compliance with the Woods Procedures in connection with those 29 FISA applications”
“over 7,000 FISA applications authorized between January 2015 and March 2020, there were at least 179 instances in which the Woods File required by FBI policy was missing in whole or in part”
The more material errors (aside from losing their own files) included:
To put this into context, in December 2019, after IG Horowitz detailed substantial issues with the Carter Page FISA applications, the FISA Court noted that the misconduct was serious and ordered the FBI to conduct remedial measures to fix the problems of the FBI’s own creation. The FBI promised to take corrective action.
One can’t help but speculate that the FISA Court won’t do much about these latest issues, aside from ordering the FBI to conduct more training. After all, the then-presiding judge of the FISA Court, Judge Boasberg, refused jail time for FBI lawyer Kevin Clinesmith after he altered an e-mail and lied about Carter Page’s relationship with the CIA.
Knowing the history of the FISA Court excusing government misconduct, we present the same question now that we did after the Clinesmith sentencing: What does it say about the FISA Court’s “heightened duty of candor” if there aren’t heightened punishments for violating that duty?
And we have one final question - one that has applied to Director Wray for the last few years: how could the FBI Director allow these abuses to continue?
The FBI almost NEVER follows its own procedures in any of its endeavors. Informants are utilized without much documentation or oversight. The FISA violations are just the tip of this bureaucratic iceberg. The original restrictions were placed on the utilization of the FISA Courts because of their secrecy provisions and lack of ability to challenge the assertions being made. It is just all eyewash and a fig leaf for public consumption. Congress passed and created this monster and Constitutionally suspect Court but NEVER gets to review or enforce the provisions provided to balance the secrecy issues. A real Star Chamber operation.
Guess what? An examination of FBI wire tap applications would probably reveal the same lack of documentation and the affidavits would be loaded with dubious assertions and sworn to facts that are suspect. Entire system is broken and full of corruption and obfuscation. FBI supervisors don't supervise and Congress does little or nothing to enforce compliance.
Americans really have no protection from arbitrary use of surveillance and other things that result in wholesale violations of our Constitutional rights. DOJ is just another bureaucratic, mediocre gov't agency of repression populated by aspiring politicians. Without wholesale reform and some serious prosecutions this will continue as standard operating procedure by most of the gov't's enforcement agencies. CIA reform is another can of worms.
IMO...the fault is with the FISA Court Judges that have turned themselves into Rubber Stamps that the FBI abused