Edited by Sam Thielman
AN ASPECT OF THE TRUMP ERA that had me reaching for the Joker makeup concerned surveillance.
The congressional Republican caucus—which, over the prior 15 years, maintained and championed an expansion of government surveillance at a previously unimaginable scale—treated as a constitutional crisis an FBI investigation of Donald Trump’s coterie of weird freaks who openly sought Russian aid for their political futures. Simultaneously, the congressional Democratic caucus that considered Trump the death rattle of constitutional democracy shoveled surveillance authorities at the FBI and NSA as if Trump wasn’t president—to the point of trying to protect the PATRIOT Act’s infamous permission for the FBI to subpoena records on an investigative target from a service provider right after impeaching Trump.
The result, as I document in the critically acclaimed REIGN OF TERROR, is that, by inertia as much as by design, surveillance was a target of right-wing opprobrium and liberal approval when the targets were Trumpists meeting with foreign spy services, while surveillance on undisclosed millions of Americans proceeded uncontroversially. That tells you that this isn’t about surveillance. It’s about impunity – who gets to enjoy it, who has to suffer because of it.
Congressional Republicans correctly highlighted a December 2019 Justice Department inspector general’s report that identified FBI errors with the re-authorization it submitted to the secret surveillance court to spy on Trump campaign adviser Carter Page. Then, like the Democrats, they ignored a March 2020 Justice Department inspector general report finding that the errors with the Page re-up were part of a broader pattern of FBI misrepresentation before the FISA Court. And that was just scratching the surface. The FBI has also been warrantlessly sifting through NSA surveillance troves – which unlike the subject of the inspector general reports have no probable-cause or even individual-suspicion requirement – in ways FISA Court Judge James Boasberg called “inconsistent with...the requirements of the Fourth Amendment.”
On Thursday, the inspector general issued its latest inquiry into that broader pattern. It details flagrant FBI malpractice, down to the destruction of documentation the bureau delivered to the FISA Court that supposedly established the predicates for surveillance. “Identified systemic non-compliance” is the inspector general’s description. “A significant lapse in the FBI’s management of its FISA program” is the inspector general’s judgement.
Here, the inspector general is discussing something called the Woods Rules, a process that essentially footnotes a FISA application. FBI agents compile a file detailing the evidence they have on a surveillance target that they contend establishes probable cause—that the target is likely enough to be an agent of a foreign power to justify surveillance. They have to disclose and detail any criminal inquiry into or prosecution of the target. If a target has previously been a government asset, the FBI has to detail that as well. In theory.
Out of a sample of 29 surveillance applications, the inspector general found “over 400 instances of non-compliance with the Woods Procedures in connection with those 29 FISA applications.” (This incorporates some of the findings of the inspector general’s previous report.) Imagine if I filed 29 stories – or, worse, a draft of my book – in which I made 400 errors of support and attribution! Imagine if someone found 400 errors in 29 samples of whatever work it is you do. What penalty might you face? Now consider that this concerns what the inspector general calls “one of the DOJ’s most intrusive investigative authorities, and the use of it unavoidably raises civil liberties concerns.”
And those are just the errors. Out of 7000 approved FISA applications the inspector general reviewed between January 2015 and March 2020, at least 179 times, “the Woods File” – again, the adverse information against a surveillance target underlying a surveillance application – was “missing, destroyed, or incomplete at the time of the FBI’s inventory.” Missing, destroyed or incomplete material justifying one of the Justice Department’s most intrusive investigative authorities. If someone who didn’t operate under color of law did something analogous, they would expose themselves to prosecution for obstruction of justice.
Some of this worked like a shell game. To explain the missing evidence, the inspector general found FBI agents “cannibalizing” Woods Files on a given case when it came time to re-up the surveillance. “[I]n some instances,” it reports, “this method involved removing supporting documentation from the Woods File if the associated statement of fact was no longer in the most recent FISA application, which would cause problems if someone were using the derivative Woods File to find the supporting documentation for the statement of fact in an earlier application.” Retention and maintenance of the Woods Files are the subjects of “confusion” from the FBI. There were “numerous examples” where field offices “misplaced” Woods Files “due to the original case agent transferring to another field office.”
WHEN THE INSPECTOR GENERAL describes all this as “identified systemic noncompliance,” it’s talking about what it calls a “culture” problem.
FBI and Justice Department National Security Division leadership, in “statements and actions… seemed to minimize the significance of the FBI’s lack of adherence to its Woods Procedures.” Supervisory Special Agents (SSAs) are supposed to vouch for each factual assertion in the surveillance application. But the inspector general found that in practice, “the only documentation we identified concerning the SSA review was the signature on the Woods Form,” meaning that no one else has any idea what merited the sign-off, only that it occurred. “We generally did not observe other indications of SSA review within the Woods Files that would allow us to assess the adequacy of those reviews, such as documented feedback to the case agent or a specific confirmation that the SSA had traced statements of fact to the supporting documentation,” the inspector general wrote.
Beyond that, the fixes the FBI agreed to make after earlier iterations of the inspector general investigation concern only the creation of the Woods File. These fixes lack “a commensurate level of emphasis on and attention to the subsequent supervisory and oversight steps.” Translated from the bureaucratese, that means the FBI is functionally ignoring the systemic aspects of inspector general’s findings, which concern not only errors introduced into the Woods File but what comes after the creation of the file.
There is a tendency at the FBI, from leadership down to the case agent, to dismiss these concerns as immaterial to probable cause, according to the inspector general. But in fact, “there were 30 instances where FBI field personnel initially determined that the potential inaccuracy we identified was not an error, yet NSD OI [the Office of Intelligence within the Justice Department National Security Division] ultimately determined it was an error, which was thereafter reported to the” FISA Court.
Perhaps you need to have been yelled at by extremely senior figures within the FBI to have this seared into your brain. But speaking as someone fitting that description: I remember very vividly how a centerpiece of intelligence officials’ insistence, post-Snowden, that surveillance was actually responsibly constrained was the existence of robust internal procedural and cultural safeguards within the FBI, CIA and NSA. Oops!
YET THE REMEDIES recommended by the inspector-general are notably unambitious. They include obvious, bare-minimum mitigation approaches like “Establish specific policy on the appropriate format and maintenance of Woods Files.” What they don’t include—for what, I must emphasize, the inspector general describes as “identified systemic noncompliance” concerning “one of the DOJ’s most intrusive investigative authorities”—is a call for anyone to face any administrative discipline at all. Criminal discipline for such laxity over such a massive government power is simply beyond the scope of the inspector general’s imagination. It reflects the addiction to impunity that ensures we have nothing but incoherent, superficial political disputes about surveillance between party leaderships that differently modulate their appetites for mass data acquisition.
Impunity, after all, is at the heart of this “identified systemic noncompliance.” So is timidity over characterizing and confronting that impunity. Until that changes, nothing else about surveillance will.