Case: In Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC (December 2019) (Collyer, J.)

19-00002 | Foreign Intelligence Surveillance Court

Filed Date: Dec. 17, 2019

Case Ongoing

Clearinghouse coding in progress

Case Summary

On December 17, 2019, FISC issued an order responding to allegations that the FBI provided false information in connection to the surveillance of U.S. citizen Carter Page, In Re Motion for Publication of Records (May 2019). The allegations were in response to the Government's release of the Office of Inspector General's (OIG) Report detailing the circumstances surrounding the four applications for Mr. Page's surveiilance. The release of the report was in response to FISC's order on December 5, …

On December 17, 2019, FISC issued an order responding to allegations that the FBI provided false information in connection to the surveillance of U.S. citizen Carter Page, In Re Motion for Publication of Records (May 2019). The allegations were in response to the Government's release of the Office of Inspector General's (OIG) Report detailing the circumstances surrounding the four applications for Mr. Page's surveiilance. The release of the report was in response to FISC's order on December 5, 2019, which provided information addressing the misstatements and misconduct by the FBI.

Judge Rosemary M. Collyer found that the report showed evidence that the FBI had acted antithetical to their "heightened duty of candor." Judge Collyer ordered that the Government would, by January 10, 2020, inform FISC about the steps it had taken and intended to take to ensure that FBI statements of fact were reliable and accurate. The order further stipulated that if the FBI was unable to make this deadline, it would submit a proposed timetable for the measures and detail why the information coming from the FBI should be considered reliable.

On January 10, 2020, Judge James E. Boasberg issued an order appointing David S. Kris to serve as amicus curiae "to assist the Court in assessing the Government's response to the December 17, 2019, Order."

On January 10, 2020, the U.S. Government submitted their response to the FISC December 17, 2019 Order. The FBI outlined new procedures to "ensure factual accuracy and completeness of information in applications." These included revisions to the forms used for applications and improved training. The Government also stipulated that the NSD and FBI were in the process of amending the 2009 Memorandum, which governed some of the FISA querying procedures, to "ensure accurate and complete FISA applications."

The response also included the Declaration of Christopher W. Wray, the Director of the FBI, which explicitly identified actions the FBI intended to take to address the revelations of the OIG Report. Wray outlined twelve corrective actions specific to FISA:

(#1) Supplementing the FISA Request form with new questions, including a checklist of relevant information, which will direct agents to provide additional information and to collect all details relevant to the consideration of a probable cause finding, emphasizing the need to err on the side of disclosure;

(#2) Requiring that all information known at the time of the request and bearing on the reliability of a CHS whose information is used to support the FISA application is captured in the FISA Request Form and verified by the CHS handler;

(#3) Adding reverification directives to the FISA Verification Form, known as the Woods Form, which will require agents and their supervisors to attest to their diligence in re-verifying facts from prior factual applications and to confirm that any changes or clarifying facts, to the extent needed, are in the FISA renewal application;

(#4) Improving the FISA Verification Form by adding a section devoted to CHSs, including a new certification related to the CHS-originated content in the FISA application by the CHS handler, and CHS-related information that requires confirmation by the CHS handler, which will be maintained in the CHS's file;

(#5) Adding an affirmation to the FISA Verification Form that, to the best of the agent's and supervisor's knowledge, OI has been apprised of all information that might reasonably call into question the accuracy of the information in the application or otherwise raise doubts about the requested probable cause findings or the theory of the case;

(#6) Adding a checklist to the FISA Verification Form that walks through the new and existing steps for the supervisor who is affirming the case agent's accuracy review prior to his or her signature, affirming the completeness of the accuracy review;

(#7) Formalizing the role of FBI attorneys in the legal review process for FISA applications, to include identification of the point at which SES-level FBI OGC personnel will be involved, which positions may serve as the supervisory legal reviewer, and establishing the documentation required for the legal review;

(#8) Creating and teaching a case study based on the OIG Report findings, analyzing all steps of that particular FISA application and its renewals to show FBI personnel the errors, omissions, failures to follow policy, and communication breakdowns, and to instruct where new or revised policies and procedures will apply, so that mistakes of the past are not repeated;

(#9) Requiring serialization of completed FISA Verification Forms in the FBI's case management system to increase accountability and transparency;

(#10) Developing and requiring new training focused on FISA process rigor and the steps FBI personnel must take, at all levels, to make sure that OI and the FISC are apprised of all information in the FBI's holdings at the time of an application that would be relevant to a determination of probable cause;

(#11) Identifying and pursuing short- and long-term technological improvements, in partnership with DOJ, that will aid in consistency and accountability; and, (#12) Directing the FBI's recently expanded Office of Integrity and Compliance to work with the FBI's Resource Planning Office to identify and propose audit, review, and compliance mechanisms to ensure the above changes to the FISA process are effective. These actions would be implemented "with enhanced communication and training to the workforce." The timeline for the implementation of the Corrective Actions ranged from January 2020 to June 2020.

In the interim, Mr. Wray stipulated heightened standards for applications while the Corrective Actions were implemented.

On January 15, 2020, Amicus Curiae David Kris filed a brief evaluating the proposed actions of the FBI. Kris argued that the proposed Corrective Actions were not sufficient. Kris outlined several potential additional steps, including: changing who signed the requests, increased use of technology, increased recording and reporting, and additional and expanded accuracy reviews. Kris argued that all the reforms should be implemented with the goal of changing FBI culture and instilling more individual responsibility. He also recommended that the court stipulate that the FBI implement more disciplinary measures for misrepresenting facts in order to deter others. In the interim, Kris recommended that FISC hold additional hearings to further convey its concerns to the FBI.

On January 31, 2019, the United States issued a response to the Kris' Amicus Brief. The Government asserted that the "FBI and DOJ will need time to assess if the corrective actions are effective and to think strategically as to whether additional measures need to be put in placed on the results of the measures."

As of February 21, the case was ongoing.

Summary Authors

Cedar Hobbs (2/21/2020)

Related Cases

In Re Motion for Publication of Records (May 2019), Foreign Intelligence Surveillance Court (2019)

Documents in the Clearinghouse

No documents yet available via the Clearinghouse.

Resources

Docket

Last updated July 11, 2023, 11:34 p.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Court

Foreign Intelligence Surveillance Act—Foreign Targeting (702, 703, 704)

Key Dates

Filing Date: Dec. 17, 2019

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

John Solomon, an investigative journalist, and Southeastern Legal Foundation, a public interest law firm.

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

United States, Federal

Defendant Type(s):

Law-enforcement

Jurisdiction-wide

Case Details

Constitutional Clause(s):

Unreasonable search and seizure

Freedom of speech/association

Available Documents:

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

None yet

Source of Relief:

None yet

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues