IG Audit Warns of Potential Civil Liberties Violations in FISA Process

A newly released Justice Department Inspector General report sounds an alarm on potential exposure to violations of Americans' civil liberties in the Foreign Intelligence Surveillance Act (FISA) process used by the FBI.

The report calls for "additional action" and issues 10 recommendations after a further audit of the FBI's Woods Procedures, used to ensure oversight of FBI FISA applications in the initial audit, found non-compliance in 29 FISA applications approved by the Foreign Intelligence Surveillance Court (FISC) from 2015 to 2019. That time included the former FBI Director James Comey-era Crossfire Hurricane investigation into the 2016 campaign of former President Donald Trump.

"The FBI and DOJ are implementing important reforms as a result of our prior FISA reports," the IG report results in brief read Thursday. "However, we believe additional action is necessary to ensure rigorous supervisory review and to further strengthen Woods Procedures oversight to reduce the risk of erroneous information being included in FISA applications, which can lead to faulty probable cause determinations and infringement of U.S. persons' civil liberties."

The Woods Procedures are in place to ensure the accuracy of FISA applications and the evidence before the court. This new inspection into the FBI, FISA, and the National Security Division (NSD) was called for after the March 2020 IG memo detailed 209 errors in the 29 FISA applications, including four applications deemed "material" to the FBI's Crossfire Hurricane application.

The IG has found more than 200 additional instances of Woods Procedures non-compliance, according to the report.

Also, the report has issued 10 recommendations to strengthen the oversight of the Woods Procedures, including eight for the FBI:

Establish specific policy on the appropriate format and maintenance of Woods Files.
In consultation with NSD and the FISC, determine how long it is necessary to retain Woods Files to ensure the accuracy and proper oversight of the FBI’s FISA applications and promulgate guidance on the established requirement.
Ensure its policy identifies the required types of documentation to be included in the Woods File as support for statements of fact in FISA applications.
Develop and implement policy that describes the expectations for supervisory review of Woods Files. Specifically, this policy should clearly convey the requirement for reviewers to confirm support for all statements of fact in each application and provide for better evidence of the supervisory review process that goes beyond simply signing the Woods Form. As part of this policy modification, the FBI should also consider options for incorporating an element of independent verification of the Woods File during the FISA application process.
Provide NSD OI the results of the CDC accuracy reviews as they are completed and incorporate this requirement into appropriate FBI policy.
Enhance the CDC accuracy review process to ensure necessary corrective actions are, in fact, taken to address deficiencies identified in CDC accuracy reviews and that these actions are documented.
Designate a headquarters entity with responsibility for ensuring accountability and efficacy of the Woods Procedures across the FBI.
Ensure its leadership makes additional efforts to communicate and emphasize to its workforce the importance of adhering to the FBI’s established accuracy benchmark for FISA applications — i.e., the scrupulously accurate standard — and that every step of the quality assurance process be rigorously completed.

And two for the NSD, according to the report:

Ensure NSD OI's oversight efforts (such as its trends report activities) incorporate a timely, strategic assessment of identified errors from accuracy reviews, including analysis of potential underlying causes, and actively monitor FBI efforts to address NSD OI's recommendations.
Make additional efforts to confirm to its oversight staff the importance of the FBI's accuracy standards and of strict compliance with the Woods Procedures.