Analysis The FBI has not followed internal rules when applying to spy on US citizens for at least five years, according to an extraordinary report [PDF] by the Department of Justice’s inspector general.
The failure to follow so-called Woods Procedures, designed to make sure the FBI’s submissions for secret spying are correct, puts a question mark over more than 700 approved applications to intercept and log every phone call and email made by named individuals.
US Congress: Spying law is flawed, open to abuse, and lacking in accountability – so let's reauthorize itREAD MORE
Under the current system, the Feds apply to the Foreign Intelligence Surveillance Court (FISC), which can then grant the investigative agency extraordinary spying powers. These can also be granted retroactively if the agency needs to move quickly.
Back in 2001, however, a number of FISA warrants were found to have been granted on unverified information, driving the creation of the Woods Procedures, named after the FBI official who drew them up, Michael Woods.
Following a review last year of one of those successful applications that targeted a Trump campaign staffer called Carter Page, the FBI was found to have made “fundamental and serious errors” in its application. Inspector general Michael Horowitz then expanded his review to another 29 applications dated from October 2014 to September 2019 out of a pool of over 700 and found the same problems in every single other case he looked at, pointing to a systemic problem.
As a result, more than five years’ worth of secret spying activities by the US government may be illegitimate. Horowitz found the same “basic and fundamental errors” in every application.
The FISA Court has long been highlighted by critics as an unaccountable body with extraordinary powers. Except for very rare occasions, only one side – the government – can present its case to the judges and as a result the court has approved almost every application. The process is wide open to abuse, critics have argued, and so it turns out to have been the case.
The Woods Procedures include things like sufficient supporting documentation of any assertions, a second review of any facts and assertions, and a re-verification of facts whenever an extension is applied for. They are a check and balance on power.
“We do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy," the report states.
It says that it couldn't review files for four of the 29 selected FISA applications because the FBI has not been able to locate them and, in three of these instances, did not know if the files ever existed.
All of the 25 applications reviewed had "inadequately supported facts," and "FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms."
Ah yeah but it's all fixed now
Somewhat amazingly, the FBI doesn’t dispute the findings. The inspector general provided his report to the FBI and prosecutors for their feedback, and appended their responses to the report.
Neither the Feds nor the Dept of Justice denies the assertion that the FBI has not followed its own rules. And both argue that recent proposed changes, prompted solely by the inspector general’s previous report and which critics assert do not go far enough, have effectively fixed the issues.
There is no mention in either response or in the inspector general’s report of what the implications are for the hundreds of people that have been subject to secret spying orders that allow federal agents to track everything that person does and says.
But then, there may not be any implications because under the FISA rules, the person subjected to the spying is not informed of the order against them, even when the spying is over. And they are not even entitled to know or see any evidence compiled against them as a result of the spying operation, even if they are charged as a result of the spying.
It is, in short, a sign that the FBI cannot be trusted to follow its own rules even when those rules apply to the most invasive powers it can be given. ®