WASHINGTON – The Justice Department has identified mistakes in two applications for national security wiretaps, but also says it has made important strides in overhauling a surveillance system that has come under intense political scrutiny because of errors made during the Russia probe.
The department did not identify the investigations that were found to have the omissions or “material errors,” defined as errors relevant to a decision on whether probable cause exists for surveillance. In both cases, the department reported the mistakes and concluded that in spite of them there was still probable cause to believe the surveillance targets were agents of a foreign power.
FBI and Justice Department 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 they rely on during investigations.
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 the 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 adopted a checklist for agents to use in evaluating the credibility of confidential sources whose information is cited in surveillance applications.
And a revised forms asks agents to attest that they have disclosed to Justice Department lawyers 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.
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 for accuracy of applications in 2019, the government found material errors in two of them. One application was found to have two material errors, and the other had material omissions, according to the filing.
Unlike routine 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 and whether a request for surveillance should be authorized.
“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 reviews, 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 was 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.
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