A Justice Department internal review has found “material errors or omissions” in two Foreign Intelligence Surveillance Act warrants in 2019, according to a new court filing.
In one FISA application, the department found two material errors, while the another application had “some material omissions.” The errors were detailed in the Justice Department’s filing, which updated the court on how the FBI had implemented the court’s order to clean up the warrant process.
The Justice Department did not disclose the investigations or the mistakes, which occurred in a review of 30 warrants from last year, but it defines “material errors” as those that could tip the scales on whether probable cause exists for surveillance.
In both cases, the department review found that probable cause did exist despite the errors.
“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 department wrote in a filing with the Foreign Intelligence Surveillance Court.
The revelation came in a filing Friday that details the steps the FBI is taking to improve the accuracy of its surveillance applications and ensure sources are providing factual information.
A scathing Justice Department inspector general report from December found numerous errors in its applications to surveil former Trump campaign aide Carter Page.
The inspector general last month released a broader review finding even more flaws in the FBI’s FISA applications, uncovering an average of 20 errors — including no documentation to support accusations lodged — in 29 applications his team scrutinized.
Both reports drew widespread condemnation from President Trump and his allies, who have claimed FISA was used as a tool to undermine his 2016 campaign.
It also resulted in two stunning rebukes from the FISA court. The court last week ordered the FBI to turn over the names of the 29 cases reviewed by the inspector general.
Judge James E. Boasberg said the reports hurt the court’s confidence in the FBI’s confidence.
“The OIG Memorandum provides further reason for systemic concern,” Judge Boasberg wrote. “It thereby 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.”
The FBI had announced more than 40 corrective steps to address the accuracy concerns. The Justice Department said in the filing unsealed Friday that the FBI has taken strides towards improving its record.
For example, the Justice Department noted the FBI now uses a checklist for agents to fill out to evaluate the reliability of information gleaned from confidential sources they include in wiretap applications.
Agents also now must attest that they have disclosed all information that could call into question the accuracy of the information provided to the FISC or raise doubts about probable cause.
The department is conducting accuracy reviews of FISA applications, but those applications have been suspended because of the coronavirus pandemic.
The reviews will resume “with a 50% increase in oversight positions and increased rigor,” including unannounced office visits, Assistant Attorney General for National Security John Demers said in the filing.
“As the filing shows, the Department takes its oversight responsibilities seriously and reports all potentially material errors to the Court promptly,” Mr. Demers wrote.
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