Things are getting interesting, potential ramifications are growing, as the FISA Court responds to the latest information from the DOJ Office of Inspector General (OIG).
After a review of 29 FISA applications, from eight FBI field offices, the OIG informed the FBI and DOJ that none of the surveillance applications were compliant with the Woods procedures. Meaning zero applications had FBI evidence to support the validity of the claims within the FISA warrants. That’s a very big problem if those FISA warrants were used to gather evidence used to prosecute the 29 targets of the applications.
In a FISC order released today [pdf here] presiding Judge James Boasberg is ordering the FBI to identify who those targets were; and asking the DOJ to explain what they did with the evidence gathered as a result of the fraudulently obtained FISA warrants. Big.
If evidence obtained by execution of a fraudulently obtained warrant was used in the prosecution of any of those targets; there’s a possibility those cases will be reopened.
Considering the twenty nine applications from the OIG go back to 2015, there’s a lot of potential for some downstream consequences not only for those 29 applications, but also for all FBI FISA applications with a similar level of neglect.
In the issue of the Carter Page application the DOJ and FBI were already looking into how far the ripple effects carried. The FBI was already undertaking a ‘sequestration effort’ to identify the fruit of the poisonous tree; and the results are still unknown.
This order from Judge Boasberg essentially expands that type of review upon another 29 applications and demands the DOJ identify to the court who were the targets. The court can then, on their own, look and see if any of those U.S. persons were prosecuted in court.
This is a hot mess…. And it is far from over.
You can read Boasberg’s order HERE.
BACKSTORY – The OIG began reviewing FISA applications from eight field offices (the proverbial “rank and file”). The OIG selected 29 FISA applications from those field offices over the period of October 2014 to September 2019. Additionally, every field office and the DOJ-NSD generate internal “Accuracy Reviews”, or self-checks on FISA applications; so the OIG inspected 42 of the accuracy review FISA files to determine if they were compliant.
The results were so bad the IG produced an interim memorandum to the DOJ and FBI [pdf link here]. Within the 17-page-memo the IG notifies Attorney General Bill Barr and FBI Director Chris Wray that all of the claimed FISA processes, in every field office, are grossly deficient, and in most cases there is zero compliance with FISA standards. The IG memorandum is presented before the IG even looks at the specifics of the non-compliance.
Below is the report/memorandum. Additionally I am summarizing the stunning top-lines identified by the IG memo:
- The IG reviewed 29 FISA applications, surveillance warrants, used against U.S. persons.
- The 29 FISA applications were from eight different field offices.
- The FISA applications were from Oct/2014 through Sept/2019.
- All of the FISA applications reviewed were approved by the FISA court.
The ‘Woods File’ is the mandatory FBI evidence file that contains the documentary proof to verify all statements against U.S. persons that are contained in the FISA application. Remember, this is a secret court, the FISA applications result in secret surveillance and wiretaps against U.S. persons outside the fourth amendment.
♦ Within the 29 FISA applications reviewed, four were completely missing the Woods File. Meaning there was zero supportive evidence for any of the FBI claims against U.S. persons underpinning the FISA application. [ie. The FBI just made stuff up]
♦ Of the remaining 25 FISA applications, 100% of them, all of them, were materially deficient on the woods file requirement; and the average number of deficiencies per file was 20. Meaning an average of twenty direct statements against the target, supporting the purpose of the FISA application, sworn by the FBI affiant, were unsubstantiated. [The low was 5, the high was 63, the average per file was 20]
♦ Half of the FISA applications reviewed used Confidential Human Sources (CHS’s). The memo outlines that “many” of applications containing CHS claims had no supportive documentation attesting to the dependability of the CHS.
♦ Two of the 25 FISA applications reviewed had renewals; meaning the FISA applications were renewed to extended surveillance, wiretaps, etc. beyond the initial 90-days. None of the renewals had any re-verification. Both FISAs that used renewals were not compliant.
But wait… it gets worse.
The DOJ and FBI have an internal self-check mechanism. The DOJ National Security Division (DOJ-NSD) chief counsel, and the chief counsel for every FBI field office are required to conduct an “Accuracy Review” of selected FISA applications. One per field office (25 to 30 field offices),which are also sent to DOJ-NSD (main justice) for general counsel inspection.
Keep in mind, these “accuracy reviews” are known in advance, so the FBI has all the time in the world to select the best FISA file for review. Additionally, I surmise the OIG wanted to inspect the “accuracy review” FISA’s because they would show the best light on the overall system itself. The OIG was looking for the best, most compliant, product to report on.
However, when the OIG inspected 42 of these Accuracy Reviews, the IG identified that only three of them had accurately assembled documents (Woods File) supporting the application. The error rate within the files self-checked was over 93%.
So the best FBI files are selected to undergo the FBI and DOJ-NSD accuracy review. The accuracy review takes place by FBI legal counsel and DOJ-NSD legal counsel. However, the IG finds that only three FBI applications in the accuracy reviews were compliant.
The error rate in the files undertaken by the internal accuracy review was over 93% (3 compliant out of 42 reviewed). These were the FISA files with the greatest possibility of being accurate. Let that sink in…