WASHINGTON — The Department of Justice has identified what it describes as “material errors” in two applications for national security wiretaps, but also says it has made important strides in overhauling a surveillance system that has come under political scrutiny because of mistakes made during the Russia probe.
The department did not identify the investigations in which the mistakes and omissions were found, but defines material errors as those that are relevant in deciding whether probable cause exists for authorizing surveillance. In both cases, the department reported the errors and concluded there was probable cause to believe the targets of the surveillance were agents of a foreign power.
FBI and DOJ officials disclosed the errors in a newly unsealed document that lays out the steps taken in recent months to improve the accuracy of surveillance applications and to ensure the credibility of confidential sources and the information they provide.
The court filing, made public this week, represents the government's latest attempt to address concerns about the credibility of wiretap applications it submits to the Foreign Intelligence Surveillance Court. A Justice Department watchdog report from December found errors and omissions in applications to monitor the communications of a former Trump campaign aide, and an audit released last week found problems with additional applications between 2014 and 2019.
The FBI has announced more than 40 corrective steps to address more pervasive problems. The redacted filing to the court updates the status of several of those reforms.
The Justice Department filing notes, for instance, that the FBI has begun using a checklist for agents to fill out regarding the reliability of information from confidential sources that they include in their wiretap applications.
Agents must also now complete a form in which they attest that they have disclosed all information that could call into question the accuracy of the application, or could raise doubt about whether probable cause exists for the FBI’s suspicions.
A revised form requires agents to describe all facts that lead them to believe that the proposed target of the surveillance is an agent of a foreign power, as well as “any information that is potentially inconsistent with any information in this request.”
The secretive court was set up to issue surveillance warrants on people whom the FBI has probable cause to suspect are agents of a foreign power, such as potential spies or terrorists. The presiding judge of that court, James Boasberg, last week directed the FBI to provide him with additional information about its investigations following the newly critical audit from the watchdog office.
The Justice Department filing says that in 30 reviews of applications in 2019, the government found material errors in two of them, including one involving omissions of information. Unlike punctuation errors, for instance, material errors have the potential to affect whether or not probable cause exists to believe that someone is an agent of a foreign power.
“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 notes.
The accuracy reviews, which involve travel and in-person visits to FBI field offices, have been suspended because of the coronavirus but will eventually resume “with a 50 percent increase in oversight positions and increased rigor,” including unannounced office visits, said Assistant Attorney General John Demers, the Justice Department's top national security official.
“As the filing shows, the Department takes its oversight responsibilities seriously and reports all potentially material errors to the Court promptly," Demers said in a statement.
The FBI said in a separate statement that it is confident the steps it is taking will address the problems identified by the inspector general, and that it will continue updating the court on the progress it makes.
