Department of Justice Inspector General Michael Horowitz testifies at a Senate Judiciary Committee on Capitol Hill in Washington, Wednesday, Dec. 11, 2019, during a hearing on the Inspector General’s report on alleged abuses of the Foreign Intelligence Surveillance Act. (AP Photo/Susan Walsh)

 

Last week, the Office of Inspector General (OIG) uncovered an alarming number of errors that the Justice Department made when filing applications for surveillance warrants. Put simply, the OIG determined that the applications that DOJ officials filed didn’t pass the smell test. Apparently, the Foreign Intelligence Surveillance court agrees with this assessment.

The Washington Examiner reported that following the OIG’s report detailing the many errors made by DOJ officials, the FISA court issued a ruling demanding answers from the department regarding the faulty applications. The judge requested that the DOJ provide an explanation as to whether or not the applications were invalid.

Over the past year, the OIG has investigated the origin of the probe into the Trump campaign, especially when it came to former Trump advisor Carter Page. Not only did the agency find issues with the application that eventually allowed the FBI to spy on Page, but they also revealed egregious errors in a number of other applications.

The primary focus of the report was the FBI’s failure to adhere to the Woods Procedures, which is a set of guidelines that dictate how an application is to be filed. One of the most critical rules involved in creating a Woods file is providing credible and substantiated evidence to back up every factual claim made in the application.

“We believe that a deficiency in the FBI’s efforts to support the factual statements in FISA applications through its Woods Procedures undermines the FBI’s ability to achieve its ‘scrupulously accurate’ standard for FISA applications,” Inspector General Horowitz explained.

The OIG’s report was already damning enough, but the FISA court took it a step further. Presiding Judge James Boasberg said:

“It would be an understatement to note that such lack of confidence appears well-founded. None of the 29 cases reviewed had a Woods File that did what it is supposed to do: support each fact proffered to the Court. For four of the 29 applications, the FBI cannot even find the Woods File.”

The judge surmised that these problems “provide further reason for systemic concerns” about the FBI’s apparent failure to follow the appropriate procedure. He indicated that this problem “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.”

Judge Boasberg ordered the Justice Department to provide the FISA court with “the names of the targets” for all 29 surveillance applications and to indicate which targets are related to applications that have no Woods File. In its report, the OIG noted that some of these files were missing without an explanation. In some cases, FBI agents stated that they were unsure if some of these files even existed, which could mean that some applications that the court approved might not have been justified.

The judge also ordered the agency to “assess to what extent those 29 applications involved material misstatements or omission,” and “assess whether any such material misstatements and omissions render invalid, in whole or in part, authorizations granted by the Court for that target in the reviewed docket or other dockets.”

Boasberg gave the DOJ a deadline, ordering that the department make “a sworn submission reporting on the conduct and results of the assessments,” that the court ordered. This submission must include “the basis for assessing that particular misstatements or omissions were not material or otherwise did not render invalid any Court authorization.”

But that’s not all.

After the Justice Department provides the requested information, they must “report on the progress of efforts to account for and ensure the proper maintenance of Woods Files” for each docket dating back to the beginning of 2015 and “take associated remedial steps” as necessary. This report must be done every two months after they submit their findings in June.

The FISA court’s rebuke of the Justice Department is a positive sign and a well-deserved dressing down of the agency. But, as I’ve expressed in other articles about the DOJ, will it make any difference? Ordering the department to provide critical information about the conduct of its officials is certainly warranted in this instance.

But none of it will matter if none of the agents who performed the shoddy work on the applications are held accountable. As we have already seen, the DOJ rarely punishes officials engaged in wrongdoing, deliberate or otherwise. Will Attorney General William Barr finally be willing to drop the hammer when more information comes out? Or will this, like other displays of misconduct, go unanswered?

 

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