When the FBI asks the Foreign Intelligence Surveillance Act court for permission to surveil an American on national security grounds, the agency’s application must be supported by a file documenting grounds for the FBI’s suspicion. The FBI calls this a “Woods file.”
This documentation is more than a mere procedural step. It validates the need for the surveillance, in effect supplying probable cause to the FISA judge in ex parte hearings in which only the government is present.
Spurred to investigate by the Carter Page “unmasking” fiasco, Justice Department Inspector General Michael Horowitz took a sampling of 29 FISA applications. He released his findings in December, 2019, that included many errors and missing documentation, four of which were material to a case.
Now his office has examined more than 7,000 FISA applications from 2015 to 2020. Many of them were terrorism or counter-intelligence cases. Some 183 of them, about 2.6 percent, have a Woods file that is either incomplete or missing entirely. Rounding back to the original 29 applications examined, Horowitz’s team found “over 400 instances of non-compliance with the Woods Procedures.”
His report concludes with ten recommendations for the FBI and the Department of Justice’s National Security Division. Inspector General Horowitz has done a commendable job. But his recommendations will be implemented in secret by the FBI. We would have to trust that agency not to veer off again into rogue behavior, as it has done countless times before – from the days of COINTELPRO to its current refusal to respond to PPSA’s Freedom of Information Act requests about possible surveillance of Members of Congress.
Congress should step in to implement reforms, including the Lee-Leahy Amendment, which would bring into the FISA court proceedings scrutiny of FBI applications from civil liberty experts with high-level security clearances. These friends of the court would act as proxies for those who may never know they were targets of surveillance.