Yet again, the FBI has failed to uphold basic safeguards to protect US persons from illicit surveillance. The Department of Justice’s Office of the Inspector General issued a memorandum stating it did not have confidence the FBI was following its own procedures to ensure the accuracy of FISA applications. This memo comes on the heels of the OIG’s findings that the FBI misled the FISA Court during its “Operation Crossfire Hurricane” investigation of Trump associate Carter Page. Given those findings, the OIG set out to do a larger audit of the FBI’s FISA applications. In a review of 25 FISA applications, the OIG found that all of them had “apparent errors or inadequately supported facts.” As part of the review of FISA applications, the OIG had sought to review an additional 4 FISA applications, but the supporting files were missing.
As a result of the OIG’s finding, the FISA Court has ordered the FBI to provide it the names of the 25 targets and whether the surveillance orders against them should be invalidated. The FISA court has also ordered the FBI to take a broader review of their surveillance applications. “The OIG Memorandum provides further reason for systemic concern,” the court said. “It thereby reinforces the need for the court to monitor the ongoing efforts of the FBI and DOJ to ensure that, going forward, FBI applications present accurate and complete facts.” Congressional action is also needed.
While this should be shocking, it should not be surprising. The FBI has repeatedly been found to abuse its national security and intelligence powers. This finding is sadly not a departure from that history.
The findings concern the FBI’s self-imposed “Woods procedures,” put in place to ensure the factual accuracy of FISA applications. As the OIG’s memo mentions, the “FBI implemented its Woods Procedures in 2001 following errors in numerous FISA applications submitted to the FISC in FBI counterterrorism investigations.”
In 2002, a FISA court judge rejected “a secret request made by the Justice Department this year to allow broader cooperation and evidence-sharing between counterintelligence investigators and criminal prosecutors” citing the FBI’s repeated misleading of FISA judges. Of particular concern was the FBI’s September 2000 admission that it misled the court in 75 FISA applications. Further misleading statements were also revealed in March 2001.
While heightened attention has been paid to the abuse of intelligence and national security powers post-9/11, the abuses mentioned above pre-date 9/11 and largely occurred during the Clinton administration. Even before the FBI’s surveillance powers were dramatically expanded after 9/11 and even before the post 9/11 politics of heightened fear mongering about terrorism, the FBI was abusing its national security powers.
These abuses were not just limited to FISA. In the late 1980s, the FBI was caught using its foreign counter intelligence powers to conduct an international terrorism organization against the Committee in Solidarity with the People of El Salvador, a purely domestic group opposed to Ronald Reagan’s foreign policy. This prompted the General Accountability Office to conduct a review of the FBI’s international terrorism investigations and their impact on First Amendment rights.
The post-9/11 decision to expand the FBI’s surveillance powers, increasingly collapse the wall between criminal investigations and foreign intelligence, and give carte blanche to eviscerating civil liberties in the name of countering terrorism, exacerbated these problems. OIG reviews of the Bush-era FBI’s conduct found that FBI abused national security letters, improperly obtained phone records without first getting a grand jury subpoena or national security letter, and used counter terrorism authorities to monitor domestic advocacy groups.
For decades now, various entities in charge of oversight have repeatedly and consistently found serious problems with the FBI’s use of its expansive national security powers. No one tasked with FBI oversight can claim to be caught off guard. WIth this latest revelation, it is well past time for Congress to act. Congress must take a meaningful, systematic review of the FBI myriad of abuses and enact serious safeguards to prevent them from continuing.