Office of the Inspector General U.S. Department of Justice OVERSIGHT ★ INTEGRITY ★ GUIDANCE Management Advisory Memorandum for the Director of the Federal Bureau of Investigation Regarding the Execution of Woods Procedures for Applications Filed with the Foreign Intelligence Surveillance Court Relating to U.S. Persons Audit Division 20-047 March 2020 U.S. Department of Justice Office of the Inspector General March 30, 2020 MANAGEMENT ADVISORY MEMORANDUM FOR: CHRISTOPHER WRAY DIRECTOR FEDERAL BUREAU OF INVESTIGATION FROM: MICHAEL E. HOROWITZ INSPECTOR GENERAL SUBJECT: Audit of the Federal Bureau of Investigation’s Execution of its Woods Procedures for Applications Filed with the Foreign Intelligence Surveillance Court Relating to U.S. Persons As you are aware, in December 2019 my office issued a report examining four Foreign Intelligence Surveillance Act (FISA) applications—an initial application and three renewal applications—targeting a U.S. Person and other aspects of the Federal Bureau of Investigation’s (FBI) “Crossfire Hurricane” investigation (“December 2019 FISA Report”).1 As detailed in our report, among other things, we identified fundamental and serious errors in the agents’ conduct of the FBI’s factual accuracy review procedures (“Woods Procedures”) with regard to all four FISA applications. We found, for example, numerous instances where the Woods File did not include supporting documentation for factual assertions contained in the FISA applications, as required by FBI policy. Additionally, we determined that the Woods File did not contain, as also required by FBI policy, documentation from the Confidential Human Source’s (CHS) handling agent stating that the handling agent had reviewed the facts presented in the FISA application regarding the CHS's reliability and background, and that the facts presented were accurate. We further found that the FBI had failed to follow its policies for re-verifying factual 1 DOJ OIG’s Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation, Oversight & Review Division Report 20-012 (December 2019), https://oig.justice.gov/reports/2019/o20012.pdf. 1 assertions made in the initial FISA application that were also included in the three FISA renewal applications. As a result of these findings, in December 2019, my office initiated an audit to examine more broadly the FBI’s execution of, and compliance with, its Woods Procedures relating to U.S. Persons covering the period from October 2014 to September 2019. As an initial step in our audit, over the past 2 months, we visited 8 FBI field offices of varying sizes and reviewed a judgmentally selected sample of 29 applications relating to U.S. Persons and involving both counterintelligence and counterterrorism investigations. This sample was selected from a dataset provided by the FBI that contained more than 700 applications relating to U.S. Persons submitted by those 8 field offices over a 5-year period. The proportion of counterintelligence and counterterrorism applications within our sample roughly models the ratio of the case types within that total of FBI FISA applications. Our initial review of these applications has consisted solely of determining whether the contents of the FBI’s Woods File supported statements of fact in the associated FISA application; our review did not seek to determine whether support existed elsewhere for the factual assertion in the FISA application (such as in the case file), or if relevant information had been omitted from the application. For all of the FISA applications that we have reviewed to date, the period of courtauthorized surveillance had been completed and no such surveillance was active at the time of our review. We reviewed these applications, and met with available case agents or supervisors who were responsible for them, to assess whether the FBI complied with its Woods Procedures for FISA applications submitted to the Foreign Intelligence Surveillance Court (FISC). We also obtained and reviewed information from the FBI and the Department of Justice’s (Department or DOJ) National Security Division (NSD) about their FISA application oversight mechanisms. Specifically, in addition to interviewing FBI and NSD officials, we reviewed 34 FBI and NSD accuracy review reports covering the period from October 2014 to September 2019—which originated from the 8 field offices we have visited to date and addressed a total of 42 U.S. Person FISA applications, only one of which was also included among the 29 FISA applications that we reviewed. As a result of our audit work to date and as described below, we do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy. Specifically, the Woods Procedures mandate compiling supporting documentation for each fact in the FISA application. Adherence to the Woods Procedures should result in such documentation as a means toward achievement of the FBI’s policy that FISA applications be “scrupulously accurate.” Our lack of confidence that the Woods Procedures are working as intended stems primarily from the fact that: (1) we could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not 2 been able to locate them and, in 3 of these instances, did not know if they ever existed; (2) our testing of FISA applications to the associated Woods Files identified apparent errors or inadequately supported facts in all of the 25 applications we reviewed, and interviews to date with available agents or supervisors in field offices generally have confirmed the issues we identified; (3) existing FBI and NSD oversight mechanisms have also identified deficiencies in documentary support and application accuracy that are similar to those that we have observed to date; and (4) FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures. During this initial review, we have not made judgments about whether the errors or concerns we identified were material. Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application. In addition, our review was limited to assessing the FBI’s execution of its Woods Procedures, which are not focused on affirming the completeness of the information in FISA applications. Nevertheless, we believe that a deficiency in the FBI’s efforts to support the factual statements in FISA applications through its Woods Procedures undermines the FBI’s ability to achieve its “scrupulously accurate” standard for FISA applications. We are providing you with this management advisory memorandum because we believe this information about our preliminary results will help inform the FBI in its ongoing efforts to address the recommendations included in our December 2019 FISA Report, and because we believe our audit work to date warrants additional OIG recommendations, which we have included in this memorandum. FBI Woods Procedures, “Woods Files,” and Certain Oversight Mechanisms The FBI implemented its Woods Procedures in 2001 following errors in numerous FISA applications submitted to the FISC in FBI counterterrorism investigations. The stated purposes of the Woods Procedures are to minimize factual inaccuracies in FISA applications and to ensure that statements contained in applications are "scrupulously accurate." FBI policy requires the case agent who will be requesting the FISA application to create and maintain an accuracy sub-file (known as a "Woods File") that contains: (1) supporting documentation for every factual assertion contained in a FISA application, and (2) supporting documentation and the results of required database searches and other verifications. Following the creation of the Woods File, the case agent signs the “FD-1079 FISA Verification Form” (Woods Form) to affirm “the accuracy of each and every factual assertion… and that back-up 3 documentation for each such fact has been retained” in the Woods File. The supervisory special agent is also required to sign the form, confirming that the supervisory special agent has reviewed the Woods File and determined that it contains supporting documentation for every factual assertion within the FISA application. This form must be completed prior to an application being submitted to the FISC. FBI policy also states that the FBI and DOJ’s NSD “have instituted two broad oversight mechanisms designed to ensure that FISA applications contain accurate and verified information.” Specifically, the FBI requires its Chief Division Counsel (CDC) in each FBI field office to perform each year an accuracy review of at least one FISA application from that field office. Similarly, NSD’s Office of Intelligence (OI) conducts its own accuracy review each year of at least 1 FISA application originating from each of approximately 25 to 30 different FBI field offices. Both the FBI’s and NSD’s accuracy reviews are performed on applications that have already been submitted to and approved by the FISC. The agreed-upon procedures for these accuracy reviews are memorialized in a 2009 joint FBI-NSD memorandum. Concerns Related to FBI and DOJ National Security Division Accuracy Reviews As part of our initial audit work, we met with FBI and NSD officials about the current mechanisms that each organization has in place to review the accuracy of FISA applications. As noted above, FBI policy requires the CDCs in each field office to conduct an accuracy review each year of at least one application for an active FISA surveillance order from that field office. According to FBI Office of General Counsel (OGC) officials, these FBI CDC accuracy reports are sent to the FBI OGC at FBI headquarters. NSD OI officials reported that they are not provided with the FBI CDC reports. Separately, as noted above, NSD OI conducts its own accuracy review each year of at least 1 FISA application originating from each of approximately 25 to 30 different FBI field offices. We requested that the FBI provide us with the reports from the FBI CDC and NSD OI accuracy reviews conducted from fiscal years 2015 through 2019. For the 8 field offices that we have visited to date, we received and reviewed a total of 34 FBI CDC and NSD OI reports addressing 42 separate U.S. Person FISA applications. According to interviews we conducted with FBI and NSD officials, the reviews these entities perform are not focused on assessing compliance with the Woods Procedures or the adequacy of the Woods File. Instead, these reviews are focused on determining whether support exists at the time of the FBI CDC or NSD OI review for each factual assertion in the FISA application under review. Thus, prior to the FBI CDC or NSD OI review, field offices are given advance notification of which FISA application(s) will be reviewed and are expected to compile documentary evidence to support the relevant FISA 4 application(s). While the field office can use, if available, a well-maintained and complete Woods File for this purpose, it is not required to do so. It follows that this method should identify fewer unsupported facts in the application than would result from only reviewing the Woods File (as the OIG has done in our audit) because the responsible personnel are aware of the upcoming review and given time to gather any existing documentation to support the factual assertions in the FISA applications. Our preliminary review of the 34 FBI CDC and NSD OI accuracy review reports covering the period from October 2014 to September 2019 for the 8 field offices we visited—which address a total of 42 U.S. Person FISA applications, 1 of which was also included among the 29 FISA applications that we reviewed—revealed that these oversight mechanisms routinely identified deficiencies in documentation supporting FISA applications similar to those that, as described in more detail below, we have observed during our audit to date. Although reports related to 3 of the 42 FISA applications did not identify any deficiencies, the reports covering the remaining 39 applications identified a total of about 390 issues, including unverified, inaccurate, or inadequately supported facts, as well as typographical errors. At this stage in our audit, we have not yet reviewed these oversight reports in detail. Our compilation of the issues identified was produced by reviewing available summary information and did not include examining the specifics of the issues or determining if or how individual issues may have been resolved or mitigated during the review, such as by the case agent providing additional supporting documentation from the case file or if there was coordination with NSD OI and a correction to the application text was made in a subsequent application. The 2009 joint FBI-NSD policy memorandum states that “OI determines, in consultation with the FBI, whether a misstatement or omission of fact identified during an accuracy review is material.” The 34 reports that we reviewed indicate that none of the approximately 390 identified issues were deemed to be material. However, we were told by NSD OI personnel that the FBI had not asked NSD OI to weigh in on materiality determinations nor had NSD OI formally received FBI CDC accuracy review results, which accounted for about 250 of the total issues in the reports we reviewed. We noted that the joint FBI-NSD policy memorandum does not specifically require that all misstatements or omissions identified during the FBI CDC accuracy reviews be reported to NSD and FBI officials, but rather only requires that CDCs report potentially material misstatements and omissions. According to FBI OGC personnel, FBI CDCs record their results in a standardized report template that is submitted to FBI OGC at FBI headquarters. However, these submissions are tracked by FBI OGC only to ensure CDC compliance with the requirement to perform the reviews. While FBI officials have told us that corrective action or training may occur at the individual field office level based upon the results of the CDC reviews, no 5 comprehensive, strategic analysis of the cumulative results is performed at the FBI headquarters level. For NSD OI accuracy reviews, the results are reported in formal correspondence distributed to the head of the local FBI field office and CDC, as well as FBI OGC personnel and other FBI headquarters officials. Therefore, the results of FBI CDC and NSD OI oversight mechanisms have been available to relevant FBI officials responsible for ensuring the integrity of the FBI’s FISA program. FBI OGC personnel told us, however, that the FBI CDC and NSD OI accuracy review reports had not been used in a comprehensive, strategic fashion by FBI Headquarters to assess the performance of individuals involved in and accountable for FISA applications, to identify trends in results of the reviews, or to contribute to an evaluation of the efficacy of quality assurance mechanisms intended to ensure that FISA applications were “scrupulously accurate.” That is, the accuracy reviews were not being used by the FBI as a tool to help assess the FBI’s compliance with its Woods Procedures. An NSD official informed us that NSD OI has used its FISA accuracy review results in “trends reports.” This official further informed us that these trends reports include observations on the categories and types of errors identified in the reviews and that the review results are used to train new and experienced NSD OI attorneys on FISA application writing and to communicate notable issues as well as best practices. Our audit to date has been focused solely on the FBI and its execution of its Woods Procedures, and we have not yet received or reviewed these NSD OI trends reports. Also, we note that to date we have not identified or been told about any use by the FBI of these OI trends reports to make modifications or enhancements to the FBI’s Woods Procedures or other efforts at the FBI to ensure the accuracy of FISA applications. While the FBI CDC and NSD OI accuracy reviews do not have the stated purpose of confirming the efficacy of the FBI’s execution of its Woods Procedures, we believe that the FBI’s comprehensive, strategic examination of the results of these reviews would have put the FBI on notice that the Woods Procedures were not consistently executed thoroughly and rigorously for applications submitted during our review period so as to help ensure the FBI’s FISA applications were “scrupulously accurate.” In addition, the results of these reviews provide a significant amount of information that could be used to assess the FBI’s performance of the critical quality assurance measures in its Woods Procedures, and we recommend below that the FBI conduct such an effort in coordination with NSD. FBI OGC informed us that in response to the OIG’s December 2019 FISA Report, the FBI started, among other actions, analyzing data contained in the accuracy reviews and coordinating with NSD OI to gain more insight into NSD OI’s reviews. As our audit continues, we intend to examine these FISA oversight mechanisms in more detail, including 6 the process for ensuring that adequate corrective action is taken on individual applications reviewed for accuracy. Concerns Identified to Date in the OIG Audit of the FBI’s Execution of its Woods Procedures Although all 29 FISA applications that we selected for review were required by FBI policy to have Woods Files created by the case agent and reviewed by the supervisory special agent, we have identified 4 applications for which, as of the date of this memorandum, the FBI either has been unable to locate the Woods File that was prepared at the time of the application or for which FBI personnel suggested a Woods File was not completed. We, therefore, make a recommendation below that the FBI take steps to ensure that a Woods File exists for every FISA application submitted to the FISC in all pending investigations. Additionally, for all 25 FISA applications with Woods Files that we have reviewed to date, we identified facts stated in the FISA application that were: (a) not supported by any documentation in the Woods File, (b) not clearly corroborated by the supporting documentation in the Woods File, or (c) inconsistent with the supporting documentation in the Woods File. While our review of these issues and follow-up with case agents is still ongoing—and we have not made materiality judgments for these or other errors or concerns we identified—at this time we have identified an average of about 20 issues per application reviewed, with a high of approximately 65 issues in one application and less than 5 issues in another application. Moreover, although there are specific requirements related to FISA applications that utilize CHS reporting, we have observed that these requirements are not being consistently followed. Specifically, the Woods Procedures require that when a FISA application contains reporting from an FBI CHS, the Woods File must include documentation from the handling agent or CHS coordinator (or either of their immediate supervisors) stating that: (1) this individual has reviewed the facts presented in the FISA application regarding the CHS's reliability and background; and (2) based on a review of the CHS file documentation, the facts presented in the FISA application are accurate. About half of the applications we reviewed contained facts attributed to CHSs, and for many of them we found that the Woods File lacked documentation attesting to these two requirements. For some of these applications, the case agent preparing the FISA application was also the handling agent of the CHS referenced in the application, and therefore would have been familiar with the information in CHS files. Nevertheless, the FBI's policy does not specifically annul the requirement in these situations, and the required documentation was not included in the Woods File. 7 Our preliminary results also indicate that FBI case agents are not consistently following Woods Procedures requirements related to renewal applications. If continued FISA coverage on a U.S. Person is deemed necessary, the FBI must request from the FISC a renewal of its authorization every 90 days. According to FBI policy, the case agent is required to re-verify that statements of fact repeated in a renewal application from an initial FISA application remain true and must obtain supporting documentation for any new statements of fact included in the renewal application that goes to the FISC for approval. However, based on the results of our review of two renewal files, as well as our discussions with FBI agents, it appears that the FBI is not consistently re-verifying the original statements of fact within renewal applications. In one instance, we observed that errors or unsupported information in the statements of fact that we identified in the initial application had been carried over to each of the renewal applications. In other instances, we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application. This practice directly contradicts FBI policy. We believe that the repeated weaknesses in the FBI’s execution of the Woods Procedures in each of the 29 FISA applications we reviewed to date— including the 4 applications for which the FBI could not furnish an original Woods File—raise significant questions about the extent to which the FBI is complying with its own requirement that FISA applications be supported by documentation in the Woods File as part of its efforts to ensure that applications are “scrupulously accurate.” Our concerns are supported by the fact that in four instances the FBI could not produce the original Woods File, that the Woods File deficiencies that we identified spanned all eight field offices in which we performed fieldwork, that case agents or supervisors whom we interviewed generally did not contest our results, and that the FBI CDC and NSD OI accuracy reviews conducted for the same period of our review identified similar deficiencies. As a result, we do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy, or that the process is working as it was intended to help achieve the “scrupulously accurate” standard for FISA applications. As noted earlier in this memorandum, we have not made materiality judgments for these or other errors or concerns we identified. Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application. Our review was limited to assessing whether the FBI’s Woods Files included documentation to support the factual statements in its FISA applications as required by FBI policy; we did not review case files or other documentation to confirm FISA application accuracy or identify any relevant omissions. As our audit continues, we intend to provide the FBI with the details of issues we observed in each of the FISA applications we reviewed to date so that the FBI 8 can coordinate with NSD to assess whether any of the observed deficiencies were material, and to take action they deem appropriate. Continued Audit Work In connection with our ongoing audit, the OIG will conduct further analysis of the deficiencies identified in our work to date and of FBI FISA renewals. In addition, we are expanding the audit’s objective to also include FISA application accuracy efforts performed within NSD. Consistent with the OIG’s usual practices, we will keep the Department and the FBI appropriately apprised of the scope of our audit, and we will prepare a formal report at the conclusion of our work. In addition, we understand that, as a result of the OIG’s December 2019 report on the Crossfire Hurricane investigation, the FBI is implementing changes to some of its FISA-related policies, procedures, and practices. The OIG’s assessment of whether those corrective actions are sufficient to address the recommendations in our December 2019 report will be conducted in accordance with the OIG’s usual practices for following up on recommendations. Recommendations We recommend that the FBI institute a requirement that it, in coordination with NSD, systematically and regularly examine the results of past and future accuracy reviews to identify patterns or trends in identified errors so that the FBI can enhance training to improve agents’ performance in completing the Woods Procedures, or improve policies to help ensure the accuracy of FISA applications. We recommend that the FBI perform a physical inventory to ensure that Woods Files exist for every FISA application submitted to the FISC in all pending investigations.    We provided a draft of this advisory memorandum to the FBI, and the FBI’s response can be found in Attachment 1. We intend to work with the FBI throughout our ongoing audit of the FBI’s execution of its Woods Procedures to monitor actions taken in response to the recommendations in this memorandum. Attachment cc: Honorable William P. Barr Attorney General 9 Honorable Jeffrey Rosen Deputy Attorney General William Levi Chief of Staff Office of the Attorney General Bradley Weinsheimer Associate Deputy Attorney General Jarad Hodes Senior Counsel to the Deputy Attorney General Honorable John C. Demers Assistant Attorney General National Security Division Patrick Findlay Special Counsel National Security Division Paul B. Murphy Chief of Staff Federal Bureau of Investigation Douglas A. Leff Assistant Director Inspection Division Federal Bureau of Investigation Scott B. Cheney Deputy Assistant Director Inspection Division Federal Bureau of Investigation Thomas G. Seiler Acting Section Chief External Audit and Compliance Section Inspection Division Federal Bureau of Investigation Louise Duhamel Acting Assistant Director Audit Liaison Group Internal Review and Evaluation Office Justice Management Division 10 ATTACHMENT 1 FEDERAL BUREAU OF INVESTIGATION RESPONSE TO THE DRAFT MANAGEMENT ADVISORY MEMORANDUM U.S. Department of Justice Federal Bureau oflnvestigation Office ofthe Associate Depllly Director Washington, D.C. 20535 - 0001 March 23, 2020 The Honorable Michael E. Horowitz Inspector Geµeral U.S. Department of Justice Washington, D.C. 20530 Dear Inspector General Horowitz: Thank you for the opportunity to respond to the Office of the Inspector General (OIG) Management Advisory Memorandum regarding the OIG's "Audit of the Federal Bureau of Investigation 's Execution of its Wood Procedures for Applications Filed with the Foreign Intelligence Surveillance Court Relating to US. Persons" (Memorandum). The FBI's work product and adherence to sound processes must meet the highest possible standard. Director Wray has emphasized that process rigor is at the core of the FBI's mission - to make sure that we always do the right thing, the right way. In December 2019, the OIG released a report titled, "Review of Four FISA Applications and Other Aspects of the FBI's Crossfire Hurricane Investigation." As you know, the FBI accepted all of the report' s findings and the recommendations to the FBI, and the Director announced sweeping corrective actions, including foundational Foreign Intelligence Surveillance Act (FISA) reforms. Many of the corrective actions went beyond those recommended by the OIG. These remedial steps were intended, above all other things, to ensure that the FBI undertakes its work with painstaking rigor and that the FISA applications submitted to the Foreign Intelligence Surveillance Court are scrupulously accurate. The Bureau therefore appreciates the ongoing efforts of the OIG to evaluate whether the FBI compiled and maintained accurate, complete Woods files. The "preliminary results" detailed in the OIG Memorandum pertain to a sample of29 applications covering the five-year period from October 2014 through September 2019 for which court-authorized surveillance had concluded. As noted in the Memorandum, the OIG expressly took no position on the materiality of any identified error. Nor did the OIG evaluate the accuracy and completeness of the FISA applications themselves by, for instance, determining whether support existed in the case file, but not in the 11 Woods file, for a factual assertion in the FISA application. Nevertheless, the OIG's :findings underscore the importance of the more than 40 corrective actions that Director Wray ordered late last year. Since that time, the FBI has been intensely focused on implementing these remedial measures with the goal of ensuring that our FISA authorities are exercised with objectivity and integrity. Among many other changes, we revised FISA request and verification (Woods) forms, developed a new confidential human source checklist, developed and released training on this checklist, developed and provided new training on revised FISA forms, and developed new FISA process rigor training. The revised Woods form now requires agents and supervisors to attest to their diligence in re-verifying facts from prior applications. All Woods forms, both for initial applications and renewals, must now be scanned and maintained in the electronic case file. These already-implemented changes will drive accountability, accuracy, and completeness in the FISA process. While we believe that the proce.ss errors identified in the OIG's preliminary findings will be addressed by Director Wray's previously ordered corrective actions, the FBI fully accepts the two recommendations set forth in the OIG's Memorandum. First, the FBI will, in coordination with the Department of Justice's National Security Division (NSD), build on existing FBI and NSD accuracy reviews to improve the results of those reviews and enhance compliance with the Woods Procedures. We agree that the lessons learned from accuracy reviews should be used to evaluate and enhance the FBI's adherence to the Woods Procedures, even though the OIG acknowledges that such reviews did not have that stated purpose. Indeed, the FBI formed a team to analyze accuracy and minimization review data as part of the corrective actions announced after the December 2019 OIG report. This team, led by the FBI's Office of Integrity and Compliance, is required to identify and propose audit, review, and compliance mechanisms related to the FBI's FISA processes, including Woods Procedures. This work will, as the OIG recommends, be used to enhance training to improve employee performance or improve policies as appropriate. Second, the FBI's General Counsel has directed every relevant division to account for and ensure the proper maintenance of all FISA Accuracy Subfiles for all dockets (including renewals) beginning on or after January 1, 2015. This action exceeds the OIG's recommendation that these steps be taken for pending cases. Divisions are required to identify and complete any remedial steps associated with these Accuracy Subfiles. 2 12 As Director Wray has stressed, FISA is an indispensable tool to guard against national security threats, but we must ensure that these authorities are carefully exercised and that FISA applications are scrupulously accurate. The FBI remains grateful to the OIG for its independent, professional oversight. We look forward to continuing our commitment to strengthen the FBI as we uphold the Constitution and protect the American people. Sincerely, ~ o OC2e::t::,, Paul Abbate Associate Deputy Director 3 13 ATTACHMENT 2 DEPARTMENT OF JUSTICE RESPONSE TO THE DRAFT MANAGEMENT ADVISORY MEMORANDUM U.S. Department of Justice Office of the Deputy Attorney General IVashi11g1011, D.C. 20530 B radley Wei11sheimer Associate Deputy Attorney General MEMORANDUM TO: The Honorable Michael E . Horowitz Inspector General U.S. Department of Justice FROM: Bradley Weinsheimer Associate Deputy Attorney General Office of the Deputy Attorney General DATE: March 27, 2020 SUBJECT: Response to the Office of the Inspector General Management Advisory Memorandum on the Federal Bureau of Investigation' s Woods Procedures g. BretJle!j w ~ The Department of Justice (Department) appreciates the steps undertaken by the Office of the Inspector General (OIG) as part of its "Audit of the Federal Bureau of Investigation' s Execution of its Woods Procedures for Applications Filed with the Foreign Intelligence Surveillance Court (FISC) Relating to U.S. Persons." The audit's initial review and work to date are described in a Management Advisory Memorandum (Memorandum) that the OIG has provided in final draft to the Federal Bureau of Investigation (FBI) and the Department. The Memorandum contains two recommendations, with which the Department and FBI both fully agree. The Department is committed to ensuring that Foreign Intelligence Surveillance Act (FISA) applications the Government submits to the FISC are complete and accurate. The OIG rightly identified the importance of the FBI's Woods Procedures to its FISA application process. The FBI's Woods Procedures require FBI personnel to compile supporting documentation for each fact included in a FISA application for electronic surveillance or physical search that is submitted to the FISC. This process is an important part of the FBI's internal procedures designed to faci litate accuracy in FISA applications. As the FBI noted in its response to the draft Memorandum, the FBI has already undertaken many changes to improve FISA application processing. For example, the FBI revised its Woods Procedures form, developed a new confidential human source checklist, developed and released training on this checklist, developed and is working to provide new training on revised FISA fonns, and developed new FISA process rigor training. The revised Woods Procedures form now requires agents and supervisors to attest to their diligence in re- 14 verifying facts from prior applications. AJI Woods Procedures fo1ms must now be scanned and maintained in the electronic case file. Th e Depa1tment understands that your audit examined a sample of FISA applications targeting U.S. persons between October 2014 and September 2019 to determine whether the contents of the Woods files suppo11ed factual statements in the associat ed FISA applications. Your audit found deficiencies in the FBI's adherence to its Woods Procedures. Specifically, the audit work to date identified instances of missing Woods fi les, unsupported facts based on review of the Woods files, a nd other possible errors. TI1e audit did not examine any FISA applications fi led after implementation of the refonns described above. Although the audit is ongoing, the Memorandum sets forth two recommendations t o the FBI. Those recommendations are that: (i) the FBI institute a requirement that it, in coordination with the Department's National Security Division (NSD), systematically and regularly examine the results of past and future accuracy reviews to identify patterns or trends in identified errors so that the FBI can enhance training to improve agents' performance in completing the Woods Procedures, or improve policies t o help ensure the accuracy of FISA applications; and (ii) tl1e FBI perfom1 a physical inventory to ensure that Woods files exist for every FISA application submitted to the FISC in all pending investigations. As noted in the FBl's response to the Memorandum, the FBI has agreed to adopt these recommendations and has already taken steps to implement them. The De pa11ment also concurs with these recomme ndations. As set forth in the FBI's response to the draft Memorandum, the FBI already has fonned a team to analyze accuracy and minimization review data as part of the co1Tective actions announced after the December 2019 OIG repo1t. This team, led by the FBJ's Office oflntegrity and Compliance, is required to identify and propose audit, review, and compliance mechanisms related to the FBI' s FISA processes, including its Woods Procedures. In addition, the FBI's General Com1sel has directed every relevant divis ion to account for and ensure the proper maintenance of all FISA Accuracy Subfiles for all dockets (including renewals) beginning on or after Januar y l , 2015. This action, as the FBI stated in its response to the draft Memorandum, exceeds the OIG's recommendation that these steps be taken only for pending investigations. NSD conducts analysis of trends based on its oversight work and has incorporated lessons team ed from accuracy reviews in how it drafts FISA applications and in training. Consistent with the draft Memorandum' s recommendation, NSD will continue to systematically and regularly examine the results of past and future accm-acy reviews to identify patterns or trends in identified errors and will work with the FBI so that it can enhance training to improve compliance with the Woods Procedures and shape policies to help ens ure the accuracy of FISA applications. FISA is an essential tool to guard against terrorism and other n ational security threat s. The Department and FBI are committed to taking whatever steps are necessary to ensure the integrity of the FISA process, including strengthening existing policies, procedures, and training to facilitate accuracy in FISA applications. 2 15 The Department of Justice Office of the Inspector General (DOJ OIG) is a statutorily created independent entity whose mission is to detect and deter waste, fraud, abuse, and misconduct in the Department of Justice, and to promote economy and efficiency in the Department’s operations. To report allegations of waste, fraud, abuse, or misconduct regarding DOJ programs, employees, contractors, grants, or contracts please visit or call the DOJ OIG Hotline at oig.justice.gov/hotline or (800) 869-4499. U.S. DEPARTMENT OF JUSTICE OFFICE OF THE INSPECTOR GENERAL 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Website Twitter YouTube oig.justice.gov @JusticeOIG JusticeOIG Also at Oversight.gov