Congress has failed to reform federal surveillance laws, despite the FBI’s 2016 abuse of a secret court to spy on the Trump presidential campaign. The latest report from Justice Department Inspector General Michael Horowitz on the FBI’s other surveillance abuses is more evidence of the need to overhaul the Foreign Intelligence Surveillance Act.
Mr. Horowitz’s 2019 report found the FBI had gulled the FISA court into letting it spy on former Trump aide Carter Page by presenting false information. The scandal inspired the Horowitz team to conduct a broader audit of FBI compliance, and the results are damning.
The FBI must abide by what are known as Woods Procedures that include a file supporting every factual assertion in a warrant application. As the IG notes, surveillance warrants are among the Justice Department’s “most intrusive investigative authorities” and must be “scrupulously accurate.”
The IG’s preliminary look last year into a sample of 29 wiretap applications said the FBI couldn’t locate Woods files for four applications, and the IG found errors in the remaining 25. As last week’s full report explains, the FBI and Justice have since acknowledged the 29 applications contained a total of 209 errors. These range from typographical (38) and date (42) errors, to unsupported facts (17), misidentified sources of information (15), and deviations from source documents (93).
The IG also found 209 examples in the 29 applications of the FBI failing to provide “adequate documentation to support factual assertions.” In all “there were over 400 instances of non-compliance with the Woods Procedures.”
Most alarming are the four errors that DOJ and the FBI admit were “material”—serious enough to have potentially changed the FISA court’s determination of “probable cause” to issue a warrant. The errors related to three applications in which the FBI omitted important or relevant information about targets, or provided outdated or unverified facts.
In response to the IG’s preliminary findings last year, the FBI reviewed more than 7,000 FISA applications from January 2015 to March 2020, and the IG reports that for 183 of them “the required Woods File was missing, destroyed, or incomplete.” This is supposed to be America’s premier law-enforcement body.
The IG criticizes an FBI culture that believes it is above the rules, and he devotes an entire section to spanking its leadership for its reaction to the 2020 preliminary findings. While FBI director Christopher Wray instituted some reforms, the agency minimized the findings with statements that “appeared to display a tolerance for error.”
No one has taken responsibility—including Mr. Wray, on whose watch many of these mistakes happened. He has proposed more reforms to the very (Woods) reforms instituted 20 years ago to improve FBI behavior. Sure.
Introducing the Constitution’s independent Article III judges into intelligence collection in the executive branch was always a mistake, as we wrote in the 1970s. The system dilutes accountability for wiretaps, letting the court and FBI blame each other for mistakes and political abuses like those in 2016.
Congress should abolish the FISA court and return authority to the law enforcement leaders making surveillance decisions. Then hold them accountable, including jail time for abuses.