APPENDIX 2 FBI'S RESPONSE U.S. De parlmcnl of J us tice Fctk ral 8 11rc.1 u of l111·cstigati on Olh,c ol the 0 1ra;tur December 6, 20 19 The Honorable Michae l I lorowit7 lnSJX."CIOr General U.S. Department of Justice Washington. D.C. 20530 Dear Inspector General Horowitz: lbank you for the opponunity to respond to the Onicc of the Inspector Ucnc:ral (OIG) Report titled , " R<'View of Four FISA Applicotio,rs and Othu Aspects ofthe FBJ's Crossfire Hu" icane /111-estigation" (Report). The Federal Bureau of Investigation (FBI) appreciates the OIG's crucial independent oversight role and the thoroughness and professionalism your nffice brought to this work. The Report's findings and recommendations n.1>rescnt constructive criticism that will make us stronger as an organization. We also appreciate the Report's recognition that the FBT cooperated fully with this review and provided broad and timely access to all information requested by the OIG, incl uding highly classified and sensitive material involving national security. The Report concludes that the FBl' s Crossfi re Hurricane investigation and related investigations of certain individuals were opened in 2016 for an authorized purpose and with adequate factual predication. The Rcpon also details instances in which certain !'Bl personnel. al times during the 2016-2017 period reviewed by the OJG, did not comply with existing policics. neglected to exercise appmpriatc diligence. or othcrnise failed to meet the standard of conduct that the FBI el(JX.'Cts of ii!! employees - and that our country expects of the FBI. We are vested with significant authorities. and it is our obl igation as public scrvnnts to ensure that 424 APPENDIX 2 these authorities are exercised with objectivity and inteb'rity. Anything less falls short of the FBl's duty to the American people. Accordingly, the FBI accepts the Report's findings and embraces the need for thoughtful, meaningful remedial action. I have ordered more than 40 corrective steps to address the Report's recommendations. Because our credibility and brand are central to fulfilling our mission, we are also making improvements beyond those recommended by the OIG. And where cenain individuals have been referred by the OIG for review of their conduct, the FBI will not hesitate to take appropriate disciplinary action if warranted at the completion of the required procedures for disciplinary review. Below is a summary of the actions we are taking, which we describe in more detail in the attachment to this letter. First, we are modifying our processes under the Foreign Intelligence Surveillance Act (FISA), both for initial applications and renewals, to enhance accuracy and completeness. The FBI relies on FISA every day in national security investigations to prevent terrorists and foreign intelligence services from banning the United States. We are making concrete changes to ensure that our FISA protocols, verifications, layers of review, record-keeping requirements, and audits are more stringent and less susceptible to mistake or inaccuracy. These new processes will also ensure that the FISA Court and the Department of Justice (DOJ) are apprised of all information in the FBl's holdings relevant to a determination of probable cause. Second, we undertook an extensive review of investigative activity based out of FBI Headquarters. The FBI is a field-based law enforcement organization, and the vast majority of our investigations should continue to be worked by our field offices. Moving forward, in the very rare instance when FBI Headquarters runs a sensitive investigation, we arc requiring prior approval by the FBI Deputy Director and consultation with the Assistant Director in Charge or Special Agent in Charge of the affected field offices. 2 425 APPENDIX 2 Third, we arc making significant changes to how the FBI manages its Confidential Human Source (CHS) Program. Many FBI investigations rely on human sources. but the investigative value derived from CHS-provided infonnation rests in pan on the CHS's credibility, which demands rigorous assessment of the source. The modifications we are making to how the FBI collects, documents, and shares information about CHSs will strengthen our assessment of the infonnation these sources arc providing. Fourth, I am establishing new protocols for the FB('s participation in Office of the Director of National Intelligence (ODNl)-led counterintelligence transition briefings (i.e., strategic intelligence briefings) provided to presidential nominees. The FBl's role in these briefings should be for national security purposes and not for investigative purposes. Continued participation by the FBI in these transition briefings is critical to ensuring continuity in the event of a change in administrations. The new FBI protocols about transition briefings will complement procedures already implemented by the FBI earlier this year to govern the separate category of defensive briefings. The FBI gives defensive briefings, which are based on specific threat information, in a wide variety of contexts and for myriad fcderal. state, and other public and private individuals and entities. The procedures we recently established for defensive briefings regarding malign foreign influence effons have brought a new rigor and discipline to whether and how such briefings should proceed. Fifth, I am mandating a specialized, semiannual training requirement for FBI personnel at all levels who handle FISA and CHS matters. This training will be experience-based, and it will cover specific lessons learned from this Repon, along with other new and revised material. Earlier in my tenure as Director, I reinstated an annual ethics training program for all FRI employees, because I learned the training had been discontinued in prior years. While that training was not introduced in response to this Repon, all current FBI employees involved in the 2016-2017 events reviewed by the OIG have since completed this additional training in ethics and professional responsibility. Finally, we will review the performance and conduct of cenain FBI employees who were referenced in the Report's recommendations - including managers, supervisors, and senior 3 426 APPENDIX 2 officials at the timc. The FA! wil l take appropriate disciplinary action where warranted. Notably. man) of the cmplO)Ct:S described in the repon are no longer employed at the FBI. I "ant to emphasize 1hat the FB l' s panicipation in this process was undenaken with m) express direction to be as transparent as pos~ihk. while honoring our duty to protect sources and methods that. if disclosed. might make Americans kss safe. Where protection of cenain sensitive information is wdl-founded. I remain cornrnined to upholding the laws and longstanding policies govcming classification and public release. I am j ust as cornmined to the principle that possible embarrassment and chagri n to the!· Bl or its employees is not, and should never he. the hasis ofa decision not to divulge FB I information. The FBI has worked closely with the OIG and DOJ on the classi lication is~ucs implicated by the Rcpon. Our joint process with the OIG and DOJ has ensured all material facts could be presented in this Rcpon. with redactions carefully limited and narrowly tailored to specifi c national securit) and operational concerns. I am grateful for the rnutuul assistance uf the O!G and DOJ in rcsponsihle prest:ntation or this extremely sensitive information. Since becoming r-BI Director in August 2017. I have emphasized to FBI agents, analysts. and staff the importance of doing things the right way. by the book. I am humbled to serve alongside these dedicated men and women. and I am confident that the actions we are taking will strengthen our histonc institution. ensure that we continue to discharge our responsibili ties objectively and free from political bias, and bcuer posit ion us to proleL:l the Am~rican p<::opk against threats whi le uphold ing the Constitution. ·~ (, Enclosure 427 ,/ ~ ISlOphcr A. wr{y Director APPENDIX 2 The 1-'ederal Bureau or Investigation's Response to the Report December 6, 2019 [Recommendations from the OIG appear verbatim in italics. l I. The Department and the FBI should ensure that adequate procedures are in place for the Office of Intelligence (01) to obtain all relevant and accurate information, including access to Confidential Human Source (CHS) information, needed to prepare FISA applications and renewal applications. This effort should include revising: a. the F/SA Request Form: lo ensure information is identified for OJ: {i) that rends to disprove, does not support. or is inconsistent with a finding or an a/legation that the target is a foreign power or an agent of a foreign power, or (ii) that bears on the reliability of every CHS whose information is relied upon in the FJSA application, including all information from the derogatory sub-file, recommended below; b. the Woods Form: {i) to emphasize to agents and their supervisors the obligation to re-verify factual assertions repeated from prior applications and to obtain wrillen approval from CHS handling agents ofall CHS source characterization statements in applications, and (ii) to specify what steps mu.'il be laken and documented during the legal review performed by 011 FBI Office ofGeneral Counsel (OGC) line allorney and SES-level supervisor before submirring the FJSA application package to the FBI Director for certification; c. the FISA Procedures: to clarify which positions may serve as the supervisory reviewer for OGC: a11d d. taking any other steps deemed appropriate to ensure the accuracy and completeness of information provided to OL The FBI fully accepts these recommendations and is taking the following actions, many of which exceed the OIG's specific recommendations: 1. Supplementing the FISA Request Fann with new questions, including a checklist of relevant information, which will direct agents to provide additional information and to collect all details relevant to the consideration of a probable cause finding, emphasizing the need to err on the side of disclosure; 2. Requiring that all information known at the time of the request and bearing on the reliability of a CHS whose information is used to support the FJSA application is captured in the FISA Request Form and verified by the CHS handler; 3. Adding reverification directives to the FISA Verification Form. known as the Woods Form, which will require agents and their supervisors to attest to their diligence in reverifying facts from prior factual applications and to confirm that any changes or clarifying facts, to the extent needed, are in the FISA renewal application; 4. Improving the FISA Verification Fann by adding a section devoted to CHSs, including a new cenification related to the CHS-originated content in the FISA application by the CHS handler, and CHS-related information that requires confirmation by the CHS handler, which will be maintained in the CIIS's file; 5. Adding an affirmation to the FISA Verification Form that, to the best of the agent's and supervisor•s knowledge, 01 has been apprised of all information that might reasonably 428 APPENDIX 2 The Federal Bureau of lovestigatioo's Response to the Report, co11tinuedfrom previous page December 6, 2019 call into question the accuracy of the information in the application or otherwise raise doubts about the requested probable cause finding or the theory of the case; 6. Adding a checklist to the FISA Verification Form that walks through the new and existing steps for the supervisor who is affirming the case agent's accuracy review prior to his or her signature, affirming the completeness of the accuracy review; 7. Formalizing the role of FBI attorneys in the legal review process for FISA applications, to include identification of the point at which SES-level FBI OGC personnel will be involved, which positions may serve as the supervisory legal reviewer, and establishing the documentation required for the legal review; 8. Creating and teaching a case study based on the OIG Report findings, analyzing all steps of that particular FISA application and its renewals to show FBI personnel the errors, omissions, failures to follow policy, and communication breakdowns, and to instruct where new or revised policies and procedures will apply, so that mistakes of the past are not repeated; 9. Requiring seriali7..ation of completed FISA Verification Forms in the FBl's case management system to increase accountability and transparency; I 0. Developing and requiring new training focused on FISA process rigor and the steps FBI personnel must take, at all levels, to make sure that 01 and the FISC are apprised of all information in the FBI's holdings at the time of an application that would be relevant to a determination of probable cause; 11. Identifying and pursuing shon- and long-term technological improvements, in partnership with DOJ, that will aid in consistency and accountability; and, 12. Directing the FBl's recently expanded Office of Integrity and Compliance to work with the FBl's Resource Planning Office to identify and propose audit, review, and compliance mechanisms to ensure the above changes to the FISA process are effective. In addition, OIC has been directed to evaluate whether other compliance mechanisms would be beneficial to the implementation of the changes detailed below. l. The Deparrment and FBI should evaluate which lypes ofSensitive lnvestigarive Mailers (SIM) require advance notification 10 a senior Department official. such as the Deputy Auorney General, in addition to the notifications currently required for SfMs, especially for case openings thar implicate core First Amendment activity, and establish implementing policies and guidance, as necessary. The FBI fully accepts this recommendation and is taking the following actions: I. Identifying, in consultation with the DOJ, which types of SI Ms warrant coordination with a senior Department official, implementing heightened FBI approval requirements for the opening of these SI Ms, and establishing related processes; and, 2. Training FBI personnel on the changes to ensure that the FBI workforce is consistc:ntly recognizing and applying the new requirements and processes for the identified types of SIMs. 2 429 APPENDIX 2 The Federal Bureau of Investigation's Response to the Report. conlinuedfron, previous page December 6, 2019 3. The FBI should develop protocols and guidelines/or staffing and administrating any future sensitive investigative matters from FBI Headquarters. The FBI fully accepts this recommendation. Prior to receiving this recommendation, the FBI established a working group that reviewed all FBI Headquarters investigations. This review resulted in the closing of those investigations not falling within certain limited exceptions or transferring those cases to the appropriate field offices. In addition, the FBI is taking the following actions, affecting all potential FBI Headquarters investigations: I. Establishing protocols and guidelines for the rare circumstance when a FBI Headquarters-led investigation might be appropriate; 2. Requiring consultation with the Assistant Director(s) in Charge or Special Agent(s) in Charge of all affected field offices prior to the opening of any FBI Headquarters investigation; 3. Requiring FBI Deputy Director approval prior to opening any FBI Headquarters SIM; 4. Developing and implementing protocols to ensure FBl Headquarters-led investigations follow the structure of field-led investigations, apply the same investigative rigor, and engage in timely and relevant infonnation sharing with the appropriate field offices; and, 5. Instituting an annual audit of investigative files opened at FBI Headquarters during the previous year. The purpose of the audit will be to detennine whether each investigation complies with policy and if it should remain an FBI Headquarters-run investigation. 4. The FBI should address the problems with the administration and assessment ofCHSs identified in this report and, at a minimum, should: a. revise its standard CHS admonishment form to include a prohibition on the disclosure ofthe CHS 's relationship with the FBI to third parties absent lhe FB/'s permission, and assess the need to include other admonishments in the standard CHS admonishments; b. develop enhanced procedures to en.rnre that CHS informal/on is documented in Delta, including information generated from Headquarters-led investigations. substantive contacts with closed CHSs (directly or through third parties). and derogatory information. We renew our recommendation that the FBI create a derol(atory sub-file in Delta; c. assess VMU's praclices regarding reporting source validation findings and nonfindings; d. eslablish guidance for sharing sensitive information with CHSs; e. establish guidance to handling agents/or inquiring whether their CHS participates in the types ofgroups or activities that would bring the CHS within the definition ofa "sensitive source, "and ensure handling agents document (and update as needed) those affiliations and any other voluntarily provided lo them by the CHS in the Source Opening Communications, the "Sensitive Categories" portion ofeach CHS's Quarterly Supervisory Source Report, the "Life Changes" portion of the CHS Contact Reports, or a... otherwise directed by the FBI so that the FBI can assess whether active CHSs are engaged in activities (such a.'i political campaigns) at a level that might require re-designa1ion as a ".'ienJ·i1ive source" or necessitate closure ofthe CHS; and 3 430 APPENDIX 2 The Federal Bureau of Investigation's Response to the Report, co11tinuedfrom previous page December 6, 2019 f revise ils CHS policy 10 address the considerations thal should be taken into the account and 1he stepJ that should be followed before and after accepting information from a closed CJIS indirectly thro11gh a third party. The FBI fully accepts these recommendation and is taking the following actions, which also include improvements separately identified in the OIG's parallel review of CHS validation or by the FBl's own analysis: I. Creating a new admonishment to sources relating to the confidential nature of the FBICHS relationship; 2. Adopting additional admonishments, as necessary, to manage the FBI's relationship with the CHS and to improve the FBl's ability to identify when the CHS's status has changed or should be reevaluated; 3. Creating a new subfile, which will supplement the existing Validation subfile created tn 2013, specifically dedicated to holding certain infonnation, including derogatory infonnation, necessary for consideration when CHS-originated infonnation is relied on; 4. Creating a mandatory checklist for CHS handlers so that, in instances where CHSoriginated infonnation is used in legal process, relevant infonnation from the new subfile is properly disclosed to the attorneys relying on such CHS-originated information; 5. Adding new documentation requirements to ensure that CHS-originated information and contact with a CHS is captured in the correct FBI recordkeeping system(s), even when it occurs in an atypical circumstance or as part of a separate investigation; 6. Updating and modifying the Validation Management Unit's current practices regarding reponing source validation findings and non-findings to ensure all relevant information is shared with FBI and DOJ personnel; 7. Modifying policy and clarifying guidance for both new and long-term CHSs with a focus on source validation; 8. Revising the policy related to potentially higher-risk CHSs to enhance the scrutiny of those CHSs, including periodic reevaluation for potential closure of the CHS; 9. Establishing guidance and mandatory training for FBI personnel on sharing sensitive information or classified information with CHSs; I0. Expanding the definition of a sensitive source that requires additional approval, scrutiny, and oversight to include CHSs who may have access to cenain categories of individuals, such as national-level campaign staff, or who repon on subjects in a SIM investigation; 11. Revising policy and adding guidance for handling agents so they know when to ask a CHS about participation in the types of groups or activities that would bring the CHS within the newly expanded definition of a sensitive source" or require their closure; 12. Requiring agents to update the designation of the CHS to a sensitive CHS if, over the course of the CHS relationship with the FBI, the CHS's position or access changes, triggering a need for additional approvals and oversight; 13. Clarifying documentation and updating requirements related to a CHS's status; 14. Clarifying and enhancing guidance on how to respond in the situation where a CHS, acting independently and not in response to an FBI tasking, provides information about a sensitive target or operation; 0 4 431 APPENDIX 2 The Federal Bureau of Investigation's Response to 1be Report, continuedfrom previous page December 6, 2019 15. Revising policy to establish the requirements and procedures for receiving infonnation from a closed source, whether directly or through a third party, and the necessary approvals and processes to pennit or preclude acceptance of such infonnation; and, 16. Creating a CHS Management Working Group directed to identify and deliver additional improvements to FBI CHS policies and procedures. 5. The Department and FBI should clarify the following terms in their policies: a. assess the definition of a "Sensitive Monitoring Circumstance" in the AG Guidelines and the FBI's DIOG to determine whether to expand its scope to include consensual monitoring of a domestic political candidate or an individual prominent within a domestic political organization, or a subset of these persons, so that consensual monitoring of such individuals would require consultation with or advance notification to a senior Department official, such as the Deputy Attorney General; and b. establish guidance, and include examples in the DIOG, to belier define the meaning of the phrase ''prominent in a domestic political organization" so that agents undersrand which campaign officials fall wirhin that definition as it relates to "Sensitive Investigative Mailers, " "Sensitive UDP, " and the designation of "sensitive sources." Further, if the Department expands the scope of "Sensitive Monitoring Circumstance, "as recommended above. the FBI should apply the guidance on ''prominent in a domestic political organization" to "Sensitive Monitoring Circumstance" as well. The FBI fuUy accepts these recommendation and is taking the following actions: 1. Assessing, in consultation with the DOJ, the cUJTent definition of a "Sensitive Monitoring Circumstance" and detennining whether to expand the definition; 2. Identifying, in consultation with the DOJ, the appropriate level of coordination for a Sensitive Monitoring Circumstance; 3. Establishing guidance and, to the extent necessary, adding or modifying the DIOG, including by introducing examples, to better define and explain the phrase "prominent in a domestic political organization"; 4. Making any further changes to FBJ policy that are required upon an expansion of the definition of a Sensitive Monitoring Circumstance; and, 5. Ensuring that training and guidance are enhanced and provided to FBI personnel pursuant to any revised or expanded definitions. 6. The FBI should ensure that appropriate training on DIOG § 4 is provided to emphasize the constitutional implications ofcertain monitoring ~-ituations and to ensure that agenls account for these concerns, both in the tasking of CHSs and in rhe way they document interac1ions with and tasking ofCHSs. The FBI fully accepts this recommendation and is taking the following actions: I. Establishing and providing at least semiannual, mandatory training for all relevant personnel on CHS handling, source sensitivities, and other source-related topics, such 5 432 APPENDIX 2 The Federal Bureau of Investigation's Response to the Report, continuedfrom previous page December 6, 2019 as the constitutional implications of certain monitoring situations. Part of this training will include discussion of the constitutional implications of cenain monitoring situations, how to approach these considerations, and how to document situations where core constitutional issues, such as First Amendment activity, may be present; and, 2. Instituting regular and mandatory continuing legal training for FBI personnel at all levels and in all investigative roles, in addition to already existing legal and ethics training, to make sure that FBI personnel fully understand and apply their obligations as required by policy and law, including an emphasis on privacy and civil liberties. 7. The FBI should establish a policy regarding the use ofdefenslw and transition briefings for investigative purposes, including the factors to be considered and approval by seniur leaders at the FBI with notice to a senior Department official. such as the Deputy Allorney General. The FBI fully accepts this recommendation and is takin2 the following actions: 1. Instituting a policy that the FBl's counterintelligence and security portion of the Office of the Director of National Intelligence-led strategic intelligence briefings (also known transition briefings) arc solely intended to provide candidates and elected officials with relevant intelligence and threat awareness, and thus FBI briefers will not be associated with any ongoing FBI investigation related to any reasonably foreseeable attendee at the strategic intelligence briefing, will be selected based on their knowledge of the threat or threats to be briefed, and to the extent feasible, the same team of briefers will be used for all recipients of a particular strategic intelligence briefing; and, 2. Continuing to refine the FBI's newly implemented review process for malign foreign influence defensive briefings, and in particular briefings to Legislative and Executive Branch officials. This will encompass actions taken after receipt of specific threat infonnation that identifies malign foreign influence operations - that is, foreign operations that are subversive, undeclared, coercive, or criminal - including convening the FBI's Foreign Influence Defensive Briefing Board (FIDBB) to evaluate whether and how to provide defensive briefings to affected parties. To determine whether notification is warranted and appropriate in each case, the FIDBB uses consistent, standardized criteria guided by principles that include, for example, the protection of sources and methods and the integrity and independence of ongoing criminal investigations and prosecutions. 8. The Department's Office of Professional Responsibility should review our findings related lo the conduct of Departmem allorney Bruce Ohr for any action it deems appropriate. Ohr 's supervisors in the Department 's Criminal Divisio11 should also review our findings related to Ohr 's performance for any action they deem appropriate. This recommendation is directed to the DOJ, thus the FBI is taking the following action: With regards to Mr. Ohr, an employee of the DOJ, the FBI respectfully defers to the DOJ for addressing the Olffs recommendation. 6 433 APPENDIX 2 The Federal Bureau orlnvestigation's Response to the Report, continued/romprtvious page December 6, 2019 9. The FBI should review rhe performance ofall employees who had responsibility for the preparation, Woods review, or approval of the FISA applications, as well as the managers, supervisors, and senior officials in the chain of command of the Carter Page investigation, and take any action deemed appropriate. The FBI fully accepts this recommendation and is taking the following actions: Recognizing that many of the individuals involved in this matter are no longer with the FBI, undertaking the review of FBI personnel and taking actions as appropriate. 7 434