The FBI made material errors in at least two applications to the Foreign Intelligence Surveillance Court in 2019, according to a newly unsealed court filing that shows Justice Department internal reviews of such national security cases have been put on hold during the coronavirus pandemic.
In a 54-page submission to the court created by the Foreign Intelligence Surveillance Act, better known as the FISA court, the Justice Department explained in detail how it was trying to correct problems in the FBI’s FISA process that came to light as a result of the 2016 investigation into advisers to Donald Trump’s presidential campaign. The FISA court is used to pursue the most important national security cases involving terrorism or espionage.
Last year, Justice Department Inspector General Michael Horowitz found 17 serious errors or omissions in FISA applications for surveillance on Carter Page, a former Trump campaign adviser. As a result, Horowitz launched a broader audit of the FBI’s FISA work. In a memorandum filed last month, Horowitz said he had also found problems with every one of more than two dozen FISA applications sampled as part of that audit, which is not yet complete.
President Donald Trump has argued that the errors in the Page case showed the FBI launched a politically motivated witch hunt against him, although Horowitz’s subsequent findings suggest a wider, systemic accountability problem in how the FBI has used the secret surveillance program. FBI Director Christopher Wray has announced more than 40 corrective actions to reform its FISA process.
In Horowitz’s recent memorandum, he said it was too early to say whether the new errors he had found were material, a legal term used to describe facts so central to the matter that they could have affected the court’s finding of probable cause to surveil a FISA target.
FULL REVIEW PLEDGED
In the new Justice Department filing submitted last week and released in redacted form this week, the agency said its 2019 accuracy reviews of FISA applications found material errors in two applications, both counterintelligence cases. One application contained two material errors, while the other omitted material facts, according to the filing, which said the department has not completed its assessment of accuracy reviews for the year.
“In both of these cases, the Government reported these errors and omissions to the Court and assessed that, notwithstanding these errors or omissions, probable cause existed to find that the targets were acting as an agent of a foreign power,” the filing said.
A year earlier, the Justice Department found 329 errors in a sampling of 40 FISA applications, but determined none of them were material.
The filing also said that in March, the Justice Department suspended accuracy reviews due to the coronavirus, and will resume them once the pandemic has passed.
John Demers, the head of the Justice Department’s national security division, said the filing shows the department “takes its oversight responsibilities seriously and reports all potentially material errors to the Court promptly.”
Demers said the department will re-start accuracy reviews of FISA applications — which involve travel and face-to-face meetings — “as soon as we can,” and that the oversight work will boost staffing by 50 percent for more rigorous examinations and unannounced reviews. Some of those reviews, Demers said, will probe more deeply into FISA files to “ensure the completeness of the representations made in the applications.”
The FBI said the bureau is confident the corrective actions laid out last year by Wray “will address the errors in earlier FISA applications,” and will continue to update the court “to ensure that our corrective steps are implemented in a timely manner and that our FISA authorities are exercised responsibly.”
BARR WEIGHS IN
In an interview with Fox News Channel’s Laura Ingraham that aired Thursday night, Attorney General William Barr said he felt officials could install safeguards that would make it “very hard” for agents to circumvent the FISA rules, either intentionally or out of sloppiness. Without naming anyone, he lashed out at those found to have done wrong in applying for surveillance warrants.
“The people who abused FISA have a lot to answer for, because this was an important tool to protect the American people,” Barr said. “They abused it. They undercut public confidence in FISA, but also the FBI as an institution, and we have to rebuild that.”
Barr believes the Russia investigation that shadowed Trump for the first two years of his administration was started without any basis and amounted to an effort to “sabotage the presidency,” he said.
Barr, who has appointed a U.S. attorney to lead an investigation into the origins of the Russia probe, said the Justice Department has evidence there was “something far more troubling” than just mistakes during the investigation that eventually morphed into former special counsel Robert Mueller’s probe.
“I think the president has every right to be frustrated, because I think what happened to him was one of the greatest travesties in American history,” Barr said.
The attorney general said the FBI launched its counterintelligence investigation into ties between the Trump campaign and Russia “without any basis.”
“Even more concerning, actually, is what happened after the campaign, a whole pattern of events while he was president,” Barr said. “To sabotage the presidency, and I think that — or at least have the effect of sabotaging the presidency.”
The Justice Department’s inspector general found the FBI was justified in opening an investigation into ties between the Trump presidential campaign and Russia — to protect against a national security threat — and found the bureau didn’t act with political bias.
Trump and his supporters are counting on different conclusions from the separate investigation led by John Durham, the U.S. attorney Barr selected to examine the early days of the Russia probe. Durham’s investigation is ongoing, and Barr did not provide any evidence about what Durham has found so far.
Mueller concluded that the Russian government interfered in the 2016 election, but his investigation didn’t find sufficient evidence to establish a criminal conspiracy between Trump’s campaign and Russia. Mueller also examined about a dozen possible instances of obstruction of justice and has said he could not exonerate the president.
WATCHDOGS OPPOSED
In that same interview, Barr said he supported Trump’s decision to oust the intelligence community’s inspector general, whose decision to alert Congress about a whistleblower complaint last year helped spark Trump’s impeachment.
Barr said Trump “did the right thing” in removing Michael Atkinson from his post as the intelligence community’s internal watchdog, and recalled how the Justice Department had fought against Atkinson last year when he wanted to turn the whistleblower complaint over to lawmakers.
“He had interpreted his statute, which was a fairly narrow statute which gave him jurisdiction over wrongdoing … by intelligence people, and tried to turn it into a commission to explore anything in the government and immediately report it to Congress without letting the executive branch look at it and determine whether there was any problem,” Barr said of Atkinson.
In the past week, Trump has drawn bipartisan criticism after telling Congress he intended to fire Atkinson in 30 days, and then effectively removing Glenn Fine as chairman of the federal panel that Congress created to oversee his administration’s management of the $2 trillion coronavirus stimulus package.
Critics alleged that Trump was launching an assault on a critical mechanism for good government; inspectors general are supposed to be independent, nonpartisan watchdogs ferreting out fraud, waste and abuse. The removal of Atkinson, in particular, troubled Senate Republicans, who have pushed the White House for a more detailed explanation.
A spokesperson for the intelligence community inspector general’s office did not immediately return an email message seeking comment.
Atkinson has said previously that he was “disappointed and saddened” by Trump’s decision, adding, “It is hard not to think that the president’s loss of confidence in me derives from my having faithfully discharged my legal obligations as an independent and impartial inspector general.”
Trump has said he felt Atkinson did a “terrible job,” and that he had lost confidence in him.
“I think he wants responsible watchdogs,” Barr said of Trump.
Information for this article was contributed by Devlin Barrett and Matt Zapotosky of The Washington Post; and by Michael Balsamo and Eric Tucker of The Associated Press.
A Section on 04/11/2020
