4. Executive Branch requirements
Over 20 years ago, the FBI adopted procedures designed to ensure the accuracy of the information contained in FISA applications. These are often referred to as the “Woods Procedures,” after their principal author.[1] The recent OIG reviews of the Page and other FISA applications raised concerns about compliance with the Woods Procedures and the accuracy and completeness of the information in FISA applications.[2] As a result, the Department has made numerous filings with the FISC, and the FISC has also directed that changes be made:[3]
- For all applications, the FBI now requires that both an agent and a supervisor must affirm that the Office of Intelligence (“OI”) of NSD, which represents the Government before the FISC, “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.”[4]
- Before the government files an application for electronic surveillance of a federal elected official, a candidate for federal office, or a staffer of such a person, the Attorney General has directed that an FBI field office not involved in the investigation must “review[] the case file and evaluate[] the proposed filing for accuracy and completeness.”[5]
The Attorney General also has imposed other limitations on applications for electronic surveillance in politically sensitive matters:
- Defensive briefings. Before the government files an application with the FISC, the FBI Director must consider “conducting a defensive briefing of the target.” Then, either the FBI must conduct a briefing or, “if the Director determines that such a briefing is not appropriate,” the Director must document that determination in writing.[6] This is in addition to the general requirement described above for the FBI to establish procedures for defensive briefings.
- Duration of surveillance. The maximum duration the government may seek from the FISC for a surveillance is 60 days. This is shorter than the statutorily permitted 90-day maximum for surveillance of a U.S. person. In addition, every 30 days, the government
- ↑ For a description of the Woods Procedures and a discussion of accuracy issues and the FISC, see 1 David Kris & Douglas Wilson, National Security Investigations & Prosecutions § 6.3 (2019).
- ↑ E.g., Redacted GIG Review at viii–x; Audit of 29 Applications at i.
- ↑ See, e.g., In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Corrected Op. and Order at 4, Misc. No. 19-02 (FISC Mar. 5, 2020); In re Carter W. Page, Order Regarding Handling and Disposition of Information at 1, Nos. 16-1182, 17-52, 17-375, and 17-679 (FISC Jan. 7, 2020).
- ↑ Declaration of Christopher W. Wray, In Re Accuracy Concerns, Docket No. Misc. 19-02, at 3 (Jan. 10, 2020) (hereinafter “Wray Declaration”).
- ↑ Supplemental Reforms Memorandum at 2.
- ↑ Id.
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