Faulty FISA warrants flawed largely by minor typos only, DOJ says

The Justice Department defended its record of submitting warrants under the Foreign Intelligence Surveillance Act, insisting that errors uncovered by a department watchdog were largely minor typographical errors that did not influence the court’s decision, according to a court filing unsealed Monday.

Department lawyers said the errors “were not capable of influencing the court’s probable cause determination” and did not render the warrants invalid, according to a filing last week with the Foreign Intelligence Surveillance Court.

Officials at the Justice Department and FBI made the filing in response to reviews launched by Justice Department Inspector General Michael E. Horowitz, who found numerous errors in applications to monitor former Trump campaign aide Carter Page.

In a bid to determine whether flaws in the Page warrant application were systematic or an aberration, Mr. Horowitz audited 29 applications to surveil U.S. citizens or green-card holders over a five-year period.

The assessment was another embarrassment for the FBI as Mr. Horowitz uncovered an average of 20 errors in each application.

The FBI pushed back in the filing unsealed Monday saying only one of the errors was material to whether probable cause existed to believe someone is a foreign agent. Department lawyers also asserted the one material error did not affect the court’s determination.

A Justice Department review of 14 out of the 29 warrant applications reviewed by Mr. Horowitz concluded the errors were not as bad as they first appeared.

Of roughly 2,651 factual assertions in the FISA warrants, 64 were flagged for not following the Woods procedures, a method to ensure an application was properly completed. Those 64 errors were minor spelling errors or date discrepancies, the court filing said.

“The FBI believes these results should instill confidence in the reliability of the information contained in the fourteen applications that were submitted to the Court,” the filing said. “Nevertheless, because the FBI holds itself to the highest possible standard, the FBI will continue to emphasize the importance of rigorous attention to detail in the FISA process, so as to further enhance the accuracy and completeness of its FISA applications.”

In a statement, the FBI said the errors occurred before Director Christopher A. Wray implemented more than 40 actions to reform FISA procedures.

“The FBI remains confident these actions will fully address the findings and recommendations made by the DOJ OIG,” the statement said. “The FBI considers FISA an indispensable tool to help protect the United States against national security threats and is dedicated to the continued, ongoing improvement of the FISA process to ensure all factual assertions contained in FISA applications are accurate and complete.”

The filing unsealed Monday was in response to an April order from the FISA Court asking the FBI to explain how its warrant applications were riddled with errors.

At the time, the court said “it lacked confidence” that the FBI was adhering to the standards necessary to ensure its warrants were “scrupulously” accurate.

“It would be an understatement to note that such lack of confidence appears well-founded,” the court’s top judge wrote in an order just days after Mr. Horowitz had released his report.

“The OIG Memorandum provides further reason for systemic concern,” the order said. “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.”