Top Experts Analyze IG Report Finding Problems in FBI Surveillance

quote:

---

MCCABE: It is serious any time the FBI fails to comply with its own policies, and especially serious when the policy directly implicates FISA accuracy. The intrusive nature of FISA surveillance demands that the applications for authorization be, in all material respects, absolutely accurate — which is why we need to know more than what the interim IG report tells us. Most policies are designed to ensure that an agency meets its legal and ethical obligations in a consistent and effective way. The Woods policy is no different. It requires documentation of the facts presented to the court in order to ensure the FBI meets the legal requirement of presenting a factually accurate request. It is important to note that the IG report does not find that the applications they reviewed were factually inaccurate, but simply that they contained facts not adequately documented in the Woods file. The IG’s review was extremely narrow – the review focused exclusively on comparing the FISA application to the Woods file. The IG did not review the whole case file — which may very well have contained the documents that were lacking in the Woods file. The failure to maintain a good Woods file is serious, but not nearly as serious as making misrepresentations to the court. This report does not tell us if that happened. The answer is something we still don’t know and need to know.

We also don’t know if the facts the IG found not to have adequate Woods documentation were actually material to the application. The IG report points out that standard DOJ accuracy reviews of FISA applications and their Woods files typically uncover errors, but rarely ever find errors that are considered “material.” These reviews include a robust exchange between the case agent, her supervisor, and the DOJ reviewer. They include not just the Woods file, but the entire case file and all the information known to the case agent.

Admittedly, the IG may be correct that the FBI’s comprehensive, strategic examination of these accuracy reviews “would have put the FBI on notice that the Woods Procedures were not consistently executed thoroughly and rigorously.” But that does not say as much it sounds. It just brings us full circle. Even if the FBI were on notice for such inconsistencies, we still don’t know whether that points ultimately to material errors and to misrepresentations made to courts, or instead to nonmaterial, even trivial, errors and clerical mistakes in failing to put the right documents in the right place.

Bottom line: policy compliance failures are serious, especially those involving the use of FISA. Faulty Woods files are a bad sign for FISA accuracy. But we won’t know if there were serious errors in FISA applications until someone reviews the complete case file for each request. That said, we now know better where to look and what questions to ask thanks to the IG’s efforts.

---