Errors discovered in the FBI’s applications to wiretap suspected foreign spies and terrorists did not undercut the applications, the U.S. Department of Justice said Monday.
The FBI audited 29 applications that were presented to the Foreign Intelligence Surveillance Court in recent years after a report from the U.S. Department of Justice’s inspector general found “significant errors and omissions” in the bureau’s applications to wiretap a former Trump campaign aide.
A review of the 29 applications for Foreign Intelligence Surveillance Act warrants found 203 false statements or omissions, but the Justice department and FBI said only two of those were “material,” according to a partly redacted court submission released Monday.
“The government has identified only one material misstatement and one material omission, neither of which are assessed to have invalidated the authorizations granted by the court in the applicable dockets,” wrote Melissa MacTough, the deputy assistant attorney general for national security.
“Non-material” errors included typographical errors, date discrepancies, the misidentification of sources or the inability to locate a supporting document, MacTough said.
The audit looked at more than 6,700 “factual assertions” within the 29 FISA applications, Dawn Browning, acting general counsel for the FBI, said in a sworn statement.
“The complete absence in the twenty-nine applications of material errors impacting probable cause should instill confidence in the FBI’s use of its FISA authorities,” Browning said. “Indeed, the overwhelming majority of factual assertions — approximately 6,568 — were determined not to be erroneous at all, materially or otherwise.”
Some critics of the FISA process were skeptical of the results.
“The officials reviewing the applications come from the same parts of the department that made the errors in the first place. They have every incentive to downplay the significance of the errors. I would have much more confidence if the analysis of the significance of the mistakes had been conducted by the office that discovered them, namely, the Office of the Inspector General. The attorney general could have asked the OIG to do this review, but didn’t,” said Elizabeth Goitein, co-director of the liberty and national security program at the Brennan Center for Justice.
“Even if it were true that only two of the errors in the 29 applications reviewed were ‘material,’ that’s nothing to be proud of. In just the past three years, the Department of Justice has submitted 3,270 applications to conduct electronic surveillance under Title I of FISA. Based on the rate of material error found by DOJ, we can expect that there were roughly 225 material errors in those applications. With that many material errors, you can be fairly confident that at least some surveillance orders were issued that otherwise would not have been. That’s a serious miscarriage of justice,” she said.
U.S. Department of Justice Inspector General Michael Horowitz found serious errors with the FBI’s surveillance of former Trump campaign aide Carter Page, according to a report he released in December on the early stages of the Russia investigation. The Justice department said in January that the final two of the four warrants against Page were invalid, indicating that the department believed the surveillance on the Trump aide should have ended in early 2017.
The FBI sought to surveil Page in connection with its investigation into Russian interference in the 2016 election, but he was never charged with any wrongdoing.
“These new findings reaffirm that the FISA warrant process, thankfully, isn’t suffering from a systemic problem, but also that the problems with the Carter Page warrant process were uniquely concerning,” said Brad Moss, a national security attorney.
“There were mistakes that, in hindsight, were rather clear in how the Page process was pursued and that need to be rectified to prevent similar errors in the future. What remains unclear is if political gamesmanship will prevent proper reforms from being implemented that would save this critical national security tool,” Moss said.
When reached Tuesday, Page declined to comment on the latest FISA review, saying he had not had time to look over it but he would have more to say on the process in his forthcoming book.
(Edited by Allison Elyse Gualtieri.)