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(U) IN RE ACCURACY CONCERNS REGARDING FBI

MATTERS SUBMITTED TO THE FISC. Docket No. Misc. 19-02

(U) RESPONSE TO THE COURT'S

ORDER DATED DECEMBER 17,2019

(U) The United States respectfully submits this response to the Order of the Foreign

Intelligence Surveillance Court (FISC or the Court) entered on December 17, 2019.

I. (U) INTRODUCTION

(U) The Court' s December 17, 2019 Order responded to the findings of the Office of

Inspector General's (OIG's) December 9, 2019, report, Review ofFour FISA Applications and

Other Aspects of the FBI's Crossfire Hurricane Investigation (the OIG Report). The OIG Report

and accompanying investigation concerned applications submitted to the Court targeting Carter

W. Page (Page - in docket numbers 2016-1182, 2017-0052, 2017-03T5, and 2017-0679.1 The

1
(U) Prior to the issuance of the OIG Report, on July 12, 2018, the National Security Division
(NSD) submitted a letter pursuant to Rule 13(a) of the FISC Rules of Procedure advising the Court of
certain omissions that were identified by NSD ' s Office of Intelligence (OI) during the course of the OIG's
investigation and which should have been brought to the Court's attention in connection with these
applications. The Government filed a supplemental Rule 13(a) letter on December 9, 2019, describing
additional omissions or misstatements in the above applications that NSD discovered as a result of the
OIG's investigation.
(U) Additionally, on October 25, 2019 and November 27, 2019, the Government filed
supplemental Rule 13(a) notices with the Court that provided details regarding information discovered ·
during the course of the OIG's investigation. These notices discussed Page's prior reporting relationship
with another U.S. government agency which was not included in the applications targeting Page, despite
being known to a limited number of FBI personnel, as well as an FBI Office of General Counsel
attorney' s alteration of an e-mail message from that government agency to state incorrectly that Page was

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OIG Report found multiple omissions and misstatements regarding the applications filed in these

docket numbers. The Court's December 17, 2019, Order directed the Government to identify

actions that have been, or will be, taken to ensure the accuracy and completeness of applications

submitted by the Federal Bureau of Investigation (FBI). The Court's Order also directed the

Government to explain why the FBI's applications should continue to be regarded as reliable in

light of the OIG Report, pending implementation of any remaining improvements.

(U) A declaration from Director Christopher A. Wray of the FBI ("the FBI Declaration")

is attached to this filing as Exhibit A and identifies actions the FBI has taken, or plans to take, in

order to address the findings of the OIG Report as they relate to the accuracy and completeness

of factual assertions in applications submitted to the Court by the FBI. The FBI Declaration also

provides a timetable for the implementation of the actions which the FBI will undertake. In

addition, the Department of Justice (DOJ) is actively considering whether additional measures

are warranted in light of the findings of the OIG Report and the corrective measures identified by

Director Wray. DOJ will provide further updates to the Court on any such additional measures.

(U) The Government through this response and the attached FBI Declaration also sets

forth the reasons why the Court should continue to have confidence in the reliability of

information contained in applications submitted to the Court by the FBI.Z In particular, the

not a source for that agency. In connection with these notices, the Court issued an Order on December 5,
2019, requiring a written submission (1) identifying all other matters currently or previously before the
Court that involved the participation of the FBI attorney; (2) describing any steps taken to verify that the
Government's submissions in those matters completely and fully described the material facts and
circumstances; and (3) advising whether the conduct of the FBI attorney has been referred to the
appropriate bar association for investigation or disciplinary action. The Government' s response to that
Order was submitted on December 20, 2019.
2
(U) The Court's Order directed the Government to respond in writing regarding steps that have
been, or will be, taken with regard to applications filed by the FBI. The internal accuracy procedures
described herein, i.e., the Woods Procedures, apply to applications for electronic surveillance pursuant to

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Government respectfully submits that (i) FBI's existing accuracy procedures, (ii) OI's oversight

and reporting practices when errors or omissions are identified during the application drafting

process, and (iii) the corrective actions and interim measures identified in the FBI Declaration

and the additional steps identified in this filing combine to substantiate the reliability of

information contained in applications submitted by the FBI. These policies and measures will

continue to be supplemented through prompt notification by OI to the Court of any material

misstatements or omissions at the time they are identified. Collectively, the Government submits

that these policies and procedures, and the manner in which they are implemented, provide

grounds to rely on the accuracy and completeness of the FBI's submissions to the Court.

(U) The Government further notes that the OIG is conducting an audit of FBI's process

for the verification of facts included in FISA applications that FBI submits to the Court,

including an evaluation of whether the FBI is in compliance with its Woods Procedures

requirements. The Department will work with the OIG to address any issues identified in this

audit.

Title' I of the Act, 50U.S.C. § 1801 et seq., and applications for physical search pursuant to Title III, 50
U.S.C. § 182 1, et seq. The Woods Procedures are also applied by the FBI in applications for the
acquisition of foreign intelligence information targeting United States persons outside the United States
pursuant to 50 U. S.C. § 1881c. The Government uses the term application in this response to refer to
applications for Court-authorized electronic surveillance or physical search, or for authorization to target
a U. S. person overseas pursuant to 50 U. S.C. § 1881c.
(U) Currently, the accuracy of facts contained in applications for pen register and trap and trace
surveillance pursuant to 50 U.S .C. § 1841 , et seq. , or applications for business records pursuant to 50
U.S.C. § 1861 , et seq. , must, prior to submission to the Court, be reviewed for accuracy by the case agent
and must be verified as true and correct under penalty ofpeijury pursuant to 28 U.S.C. § 1746 by the
Supervisory Special Agent or other designated federal official submitting the application. Historically,
the Woods Procedures described herein have not been formally applied by the FBI to applications for pen
register and trap and trace surveillance or business records. As discussed in the FBI Declaration, FBI will
begin to formally apply accuracy procedures to such applications and proposes to update the Court on this
action by March 27, 2020.

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II. (U) PROCEDURES TO ENSURE ACCURACY AND COMPLETENESS

A. (U) Background Regarding FBI's Accuracy Procedures

(U) The Foreign Intelligence Surveillance Act mandates that, "[e]ach application for an

order [seeking Court-authorized electronic surveillance or physical search] under this title shall

be made by a Federal officer in writing upon oath or affirmation .... " 50 U.S.C. §§ 1804(a),

1823(a). In matters submitted by the FBI in counterterrorism, counterintelligence, and other

national security investigations, applications for Court-authorized electronic surveillance or

physical search are submitted by FBI Supervisory Special Agents who verify the truth and

correctness of the application's factual statements under penalty ofpetjury pursuant to 28 U.S .C.

§ 1746. 3

(U) Historically, the FBI has adopted and implemented a variety of procedures to ensure

that factual information contained in initial and renewal applications is accurate and complete.

In April2001 , the FBI implemented procedures, known as the Woods Procedures, that must be

followed by FBI personnel to ensure the accuracy of specific facts supporting probable cause, the

existence and nature of any related criminal investigations involving the target of the FISA, and

the nature of any prior or ongoing reporting relationship between the target and the FBI. Foreign

Intelligence Surveillance Act Procedures to Ensure Accuracy, Electronic Communication from

3
(U) Agents from other federal law enforcement agencies or state or local law enforcement
officers serving on a Joint Terrorism Task Force with the FBI may, in some cases, act as the declarants
for applications submitted by the FBI after rec;eiving the necessary training. In the case of state or local
law enforcement officers, such officers are deputized as Special Deputy United States Marshals for this
purpose. The accuracy procedures which must be followed prior to the verification of an application' s
accuracy and described herein are unchanged in cases where agents from other federal law enforcement
agencies or Special Deputy United States Marshals serve as a declarant. This submission therefore uses
the term declarant to refer to the Supervisory Special Agent or other federal law enforcement officer,
including Special Deputy U.S. Marshals, responsible for signing a verified application submitted to the
Court on behalf of the FBI.

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Office of the General Counsel to all Field Offices (Apr. 5, 2001). In pertinent part, the

procedures require that the application be reviewed for accuracy by the case agent, the FBI

headquarters supervisor for the case, and any other personnel who may need to review the

application for factual accuracy.

(U) On February 2, 2006, the FBI issued additional guidance to its personnel, reminding

agents and analysts involved in submitting FISA applications that "accuracy can only be insured

by carefully cross-checking assertions which appear in the FISA declaration with source

documentation." Foreign Intelligence Surveillance Act Change in Procedures to Ensure

Accuracy in Documents Submitted to the Foreign Intelligence Surveillance Court, Electronic

Communication from Executive Assistant Director, National Security Branch, to all Field

Offices, at 2 (Feb. 2, 2006). This guidance required that case agents create, maintain, and update

a sub-file that contains all materials that document the support for each factual assertion

contained in FISA applications. !d. at 2-3.

(U) On March 24, 2006, the Office of Intelligence Policy and Review ("OIPR"),

predecessor to OI, filed a letter advising the Court of the efforts undertaken by the FBI and other

members of the Intelligence Community "to ensure that we include in our applications all of the

information that is material to the case, and that all of the information reported in our

applications is accurate." Letter from James A. Baker, Counsel for Intelligence Policy, to the

Presiding Judge of the Foreign Intelligence Surveillance Court, dated March 24, 2006 (March

2006 letter). The March 2006 letter explained the requirement that FBI maintain a separate sub-

file to the main case file that must contain "appropriate source documentation for each factual

assertion in a FISA declaration . . . [and that] such a system will focus the attention of the case

agent on ensuring that there is adequate documentation for every factual assertion contained

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within a FISA declaration." !d. In addition, the March 2006 letter explained that, effective April

15, 2006, "prior to the filing of any application that relies in whole or in part on human source

information, the OIPR attorney responsible for the case will specifically verify that the FBI

Special Agent or Supervisory Special Agent responsible for the case has confirmed with the

federal official currently handling the source (or the federal official who is responsible for liaison

to another entity who is handling the source) that the source remains reliable, and that all

material information regarding the reliability of the source is reported accurately in the FISA

application. The description ofthe reliability of the source that will be included in the FISA

application must be transmitted (orally or in writing) to the above-referenced federal official to

ensure that it is accurate[.]" !d. at 3.

(U) In February 2009, NSD and FBI issued guidance ("the 2009 Memorandum") to FBI

and OI personnel that mandated specific practices and documentary requirements to ensure

accuracy of facts in FISA applications, certain procedures that should be followed during the

drafting of FISA applications to ensure accuracy, and the parameters of subsequent reviews for

accuracy by OI personnel. Guidance to Ensure the Accuracy ofFederal Bureau ofInvestigation

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Applications under the Foreign Intelligence Surveillance Act, Memorandum from Matthew G.

Olsen & Valerie Caproni to all Office ofIntelligence Attorneys, All National Security Law

Branch Attorneys, and All ChiefDivision Counsels (Feb. 11, 2009). Among other provisions,

the 2009 Memorandum requires that if there is a lack of documentation, any undocumented

material facts should be removed from the application, and if mistakenly included in the prior

application, notice of the lack of documentation should be brought to the Court's attention in any

renewal application. The 2009 Memorandum also memorialized processes for conducting

accuracy reviews of a subset ofFISAs on an animal basis by OI and by the FBI Chief Division

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Counsels (CDCs) on a quarterlybasis. Currently, the Woods Procedures and 2009

Memorandum are implemented internally by the FBI through more specific policy guidance,

which was updated and re-issued most recently in August 2016.

B. (U) 01 Oversight and Reporting Practices When Errors or Omissions are

Identified During the Application Drafting Process

i. (U) Accuracy Reviews

(U) OI's Oversight Section conducts oversight reviews at approximately 25-30 FBI field

offices annually. During those reviews, OI assesses compliance with Court-approved

minimization and querying procedures, as well as the Court orders. Pursuant to the 2009

Memorandum, OI also conducts accuracy reviews of a subset of cases as part of these oversight

reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts

in the applicable FISA application. 5 OI may conduct more than one accuracy review at a

particular field office, depending on the number ofFISA applications submitted by the office and

factors such as whether there are identified cases where errors have previously been reported or

where there is potential for use of FISA information in a criminal prosecution. OI has also, as a

matter of general practice,_conducted accuracy reviews ofFISA applications for which the FBI

has requested affirmative use ofFISA-obtained or -derived information in a proceeding against

an aggrieved person. See 50U.S.C. §§ 1806(c), 1825(d).

4
(U) FBI advises that since the 2009 Memorandum was signed, the FBI changed the
requirements for the number of accuracy reviews to be completed; currently, with limited exceptions, they
are conducted on a semi-annual basis.
5
(U) OI's accuracy reviews cover four areas: (1) facts establishing probable cause to believe that
the target is a foreign power or an agent of a foreign power; (2) the fact and manner of FBI's verification
that the target uses or is about to use each targeted facility and that property subject to search is or is
about to be owned, used, possessed by, or in transit to or from the target; (3) the basis for the asserted
U.S. person status of the target(s) and the means of verification; and (4) the factual accuracy of the related
criminal matters section, such as types of criminal investigative techniques used (e.g., subpoenas) and
dates of pertinent actions in the criminal case. See 2009 Memorandum at 3.

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(U) During these reviews, OI attorneys verify that every factual statement in the

categories of review described in footnote 5 is supported by a copy of the most authoritative

document that exists or, in enumerated exceptions, by an appropriate alternate document. With

regard specifically to human source reporting included in an application, the 2009 Memorandum

requires that the accuracy sub-file include the reporting that is referenced in the application and

further requires that the FBI must provide the reviewing attorney with redacted documentation

from the confidential human source sub-file substantiating all factual assertions regarding the

source's reliability and background.6

(U) Consistent with Rule 13(a) of this Court's Rules ofProcedure, the 2009

Memorandum requires that any material misstatement or omission of fact that is discovered

during an OI accuracy review be reported to the Court immediately. Further, the 2009

Memorandum requires that the Government clarify or correct any non-material misstatement or

omission that is identified through an OI accuracy review in any subsequent application to the

Court for renewed authority for that target. 7 Similarly, if an OI accuracy review reveals that a

case agent lacks documentation to support a particular factual assertion, and cannot obtain that

documentation, the Government is required to notify the Court.

6
(U) If production of redacted documents from the confidential human source sub-file would be
unduly burdensome, compromise the identity of the source, or otherwise violate the Attorney General
Guidelines for Confidential Human Sources or the FBI's Confidential Human Source Manual, FBI
personnel may request that the attorney use a human source sub-file request form. Upon receipt of that
form, the relevant FBI confidential human source coordinator will verify the accuracy of the source' s
reliability and background that was used in the application, and transmit the results of that review to the
reviewing or attorney.
7
(U) If the Government does not seek to renew authority for that target, the 2009 Memorandum
requires that the Government should still notify the Court of any identified non-material misstatements or
omissions, unless NSD management determines that they do not need to be reported.

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(U) Admittedly, these accuracy reviews do not check for the completeness of the facts

included in the application. That is, if additional, relevant information is not contained in the

accuracy sub-file and has not been conveyed to the OI attorney, these accuracy reviews would

not uncover the problem. Many of the most serious issues identified by the OIG Report were of

this nature. Accordingly, OI is considering how to expand at least a subset of its existing

accuracy reviews at FBI field offices to check for the completeness of the factual information

contained in the application being reviewed. NSD will provide a further update to the Court on

any such expansion of the existing accuracy reviews.

ii. (U) Accuracy and Completeness During the Drafting Process

(U) During the drafting process, attorneys and supervisory attorneys in OI work closely

with the case agent or agents submitting a FISA request to elicit, articulate, and provide full

factual context for those facts which are relevant to a material element in the application. 8 These

include facts or negative inferences that may lead the Court to conclude that an element of

probable cause does not exist. This iterative process relies on the candidness of the agent, as

well as the proactiveness of the OI attorney. The OIG investigation uncovered several

significant instances in which the agents involved with the Page FISAs did not share material

information with OI. Several of the corrective measures discussed in the FBI Director's

declaration are designed to address this problem.

8
(U) Close coordination between FBI personnel and the NSD attorney who drafted a particular
FISA application is not limited solely to the drafting process. For example, section V.C of the FBI PG
requires that, following the Court's authorization of electronic surveillance or physical search, the OI
attorney shall conduct a briefmg with appropriate FBI personnel who are responsible for that surveillance
or search. These briefings instruct FBI personnel on the generally applicable rules for the authorities in
that case, as well as any particularized rules for that case. These briefmgs remind case personnel to notify
and work closely with OI throughout the pendency of the FISA authorities regarding, among other things,
significant changes in circumstances about the target or the targeted facilities.

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(U) At all stages of drafting initial or renewal applications, NSD attorneys are expected

to look for errors and omissions in prior submissions to the Court, and, if any are found, to

correct the non-material errors or omissions in the subsequent renewal application and to bring

any material misstatements or omissions immediately to the attention of the Court, as required by

Rule 13 of the FISC Rules of Procedure. The OIG Report reiterated the practice ofOI as set

forth by supervisors interviewed in connection with that OIG investigation, which is to consider

a fact or omission material if the information is capable of influencing the Court's probable

cause determination and to err in favor of disclosing information that OI believes the Court

would want to know. OIG Report at 230.

III. (U) ADDITIONAL ACTIONS TO ENSURE FACTUAL ACCURACY AND

COMPLETENESS OF INFORMATION IN APPLICATIONS SUBMITTED BY THE FBI

A. (U) Corrective Actions by the FBI

(U) In response to the OIG Report, the FBI identified multiple corrective actions to

supplement its processes both for initial applications and renewals filed with the Court in order

to enhance accuracy and completeness. These actions were initially identified in Director

Wril)''s December 6, 2019, response to the OIG Report, OIG_Report Appendix 2, and are

described in greater detail in the FBI Declaration. Pending the implementation of corrective

actions 1, 3-7, and 9 that are discussed in the FBI Declaration, the FBI has identified specific

interim measures that will be implemented as of January 13, 2020, to help to mitigate the

weaknesses identified by the OIG Report. The FBI will communicate directly to the entire FBI

workforce through a message from the FBI Director on January 13, 2020, describing these

actions and emphasizing both the importance of adhering to the accuracy procedures and the

commitment of the FBI to ensure factual accuracy and completeness in all submissions to the

Court.
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(U) As discussed in the FBI Declaration, these corrective measures include revisions to

the form used by FBI personnel to request initial or renewed Court authorization to conduct

electronic surveillance or physical search ("the request form"), as well as revisions to the form

used by case agents and supervisors to certify their compliance with the Woods Procedures

during the verification of an application's accuracy ("the verification form") . The revisions to

the request form are designed, for example, to elicit information that may undermine probable

cause. The revisions to the verification form are intended to safeguard factual accuracy and

completeness through additional certifications that must occur during the case agent's review of

the application and accuracy sub-file prior to submitting a proposed application to the declarant

and filing with the Court. The FBI Declaration also sets forth the FBI's time line for training

personnel regarding these modified or additional forms and the timeline for requiring that FBI

personnel use the modified request and verification forms.

(U) In addition to the modification of these existing forms, FBI and OI are developing a

checklist to be completed by FBI personnel during the drafting process to ensure that all relevant

information regarding a source's reliability, including the bias or motivation of the source, as

well as the accuracy or basis of a source' s reporting, is provided to OI. The FBI Declaration also

describes the accuracy training and case study that will be developed by FBI for its personnel

and the timeframe for delivery of this training.

(U) Finally, as noted above, the FBI Declaration identifies interim requirements that will

be implemented effective January 13, 2020, until completion of corrective actions 1, 3-7, and 9.

These measures include a review for each initiation and renewal of the case file by case agents

and field supervisors to ensure that all relevant information has been included in the applications

submitted to the Court. This review will be supplemented by an attorney-assisted accuracy

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review by FBI of each FISA application that targets a U.S. person. These interim measures

would also supplement existing requirements by obliging confidential human source handlers to

confirm the accuracy of any representations regarding an FBI source's reporting that is included

in an application. 9

B. (U) Training Delivered by the Office of Intelligence

(U) As the Court is aware, NSD also conducts FISA-related training during reviews at

FBI field offices in the form of one-on-one trailling with case agents and other personnel

involved in accuracy reviews, as well as in office-wide training sessions during the reviews. In

response to the OIG Report, NSD has updated its existing training on accuracy and completeness

delivered by OI attorneys during these oversight reviews at FBI field offices to reemphasize and

ensure that all relevant information is brought to the attention of 01 during the FISA application

drafting process. This updated training has been informed both by the OIG Report and OI's

experience and includes, for example, training on the need to bring inconsistent details, the full

context of relevant conversations or correspondence, and relevant information from other law

enforcement or government agencies to the attention of OI in order to evaluate such information

and bring all relevant information to the attention of the Court. 10

(U) OI is also developing training to be delivered during January 2020 to all OI attorneys

responsible for preparing FISA applications to be submitted to the Court. This training will

address the findings of the OIG Report by emphasizing specific steps that can be taken to present

9
(U) Currently, the accuracy sub-file must include documentary confirmation from a
confidential human source handler or coordinator for the appropriate field office stating that the facts
presented in the FISA application regarding the source's reliability and background are accurate. 2009
Memorandum at 4-5.
10
(U) NSD delivered this revised training for the first time at FBI field offices on January 9,
2020, at the conclusion of an OJ field office review of FBI's Phoenix Division.

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all relevant material facts for the Court' s consideration, and will reemphasize the need to elicit

all information that may be inconsistent with the FBI's theory of a case to allow OI to evaluate

that information. This training will also inform OI attorneys of the additional information that

will be collected by the FBI through the newly-updated FISA request and verification forms and

the human source checklist, and which must be evaluated by OI before an application will be

submitted to the Court.

C. (U) Revisions to the 2009 Memorandum

(U) In light of the OIG findings, NSD and FBI have determined that the 2009

Memorandum needs to be revised to more clearly explain the processes required to ensure

accurate and complete FISA applications. To this end, NSD and the FBI are in the process of

revising this memorandum. The updated memorandum will be issued to all personnel both at

NSD and FBI who are involved in the FISA process. NSD will update the Court when the

revised memorandum has been issued.

D. (U) Ol's Accuracy Reviews at FBI field offices

(U) As noted above, OI will continue to conduct accuracy reviews at FBI field offices.

In addition, NSD is considering whether to supplement its existing accuracy reviews with

additional oversight measures designed to determine the completeness of applications subject to

review and will provide a further update to the Court if such measures are implemented.

IV. (U) CONCLUSION

(U) The protocols and procedures used by the FBI to ensure that all applications

submitted to the Court fully and accurately present all information relevant to the Court's

decision have evolved in response to accuracy and completeness issues identified by FBI,

NSD, and the Court. These policies are implemented with the assistance of, and

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oversight by, OI and are •supplemented by OI's ongoing efforts to bring all material

misstatements or omissions to the Court's prompt attention. The OIG Report has

nonetheless identified lapses in the implementation and, in some cases, sufficiency of

existing procedures, which the Government is taking steps to rectify. To address these

findings, the FBI has taken, and will be taking, specific steps identified in the FBI

Declaration that will reinforce compliance with existing requirements and implement new

procedures that must be satisfied before FBI applications may be presented to the Court.

NSD believes that these additional measures will help to mitigate the errors identified by

the OIG Report. In addition, as discussed above, the Department is actively considering

whether additional measures need to be taken to facilitate the accuracy and completeness

ofFISA applications submitted to the Court.

(U) The above includes the Government's response to the Court's December 17,

2019 Order. Attached to this submission is a Declaration frorn the Director of the FBI.

The FBI has also reviewed this response and confirmed its accuracy.

Respectfully submitted,

Dated:
Gabriel Sanz-Rexach
Acting Deputy Assistant Attorney General
National Security Division
U.S. Department of Justice

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(U) VERIFICATION

(U) I declare under penalty of perjury that the foregoing response to the Court' s

Order dated December 17, 2019, is true and correct with regard to the Federal Bureau of

Investigation' s policies and practices based upon my best information, knowledge, and

belief

(U) Executed pursuant to 28 U.S.C. § 1746 on January / t?~020.

General Counsel
Federal Bureau of Investigation

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UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.

(U) IN RE ACCURACY CONCERNS REGARDING Docket No. Misc. 19-02

FBI MATTERS SUBMITTED TO THE FISC

(U) DECLARATION OF CHRISTOPHER W. WRA Y,

DIRECTOR, FEDERAL BUREAU OF INVESTIGATION,
IN SUPPORT OF RESPONSE TO THE COURT'S
ORDER DATED DECEMBER 17,2019

(U) I, Christopher A. Wray, hereby declare the following:

1. (U) Since August 2, 2017, I have been the Director of the Federal Bureau of

Investigation (FBI), United States Department of Justice (DOJ), a component of an Executive

Department of the United States Government (USG). I am responsible for, among other things,

the national security operations of the FBI, including those conducted by the FBI's

Counterterrorism Division (CTD), Counterintelligence Division (CD), and Cyber Division

(CyD) , all of which submit applications to the Foreign Intelligence Surveillance Court (the

Court) .

2. (U) The matters stated herein are based on my personal knowledge, my review

and consideration of documents and information available to me in my official capacity, and

information obtained from FBI personnel in the course of their official duties. My conclusions

have .been reached in accordance therewith.

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3. (U) I am submitting this declaration in support of the Government's Response to

the Court's Order dated December 17, 2019, which directed the government to " inform the Court

in a sworn written submission of what it has done, and plans to do, to ensure that the statement of

facts in each FBI application accurately and completely reflects information possessed by the

FBI that is material to any issue presented by the application." As required by the Court's Order,

to the extent that this submission precedes implementation of some of the corrective actions I

have directed, I am including a proposed timetable and an outline of the immediate actions we

are taking in the interim to ensure the information in FBI applications is reliable.

I. (U) CORRECTIVE ACTIONS

TO IMPROVE FISA ACCURACY

4. (U) In connection with the Office oflnspector General's Report, Review of Four

FISA Applications and Other Aspects of the FBI's Crossfire Hurricane Investigation ("OIG

Report" or "Report"), I directed FBI personnel to undertake more than forty Corrective Actions,

twelve of which relate to the FISA process. Through these Corrective Actions, the FBI will

implement all of the OIG ' s recommendations pertaining to accuracy and completeness in FISA

applications and indeed make additional changes beyond those rec.ommended by the OIG. While

these Corrective Actions I have directed - including those that address the FBI's policies

surrounding the use of Confidential Human Sources (CHS) - represent significant and

meaningful improvements to how the FBI conducts and manages national security investigations,

I am outlining below the implementation plan for the twelve FISA-specific Corrective Actions.

The FISA-specific Corrective Actions that I directed the Bureau to undertake are as follows :

• (U) (#1) Supplementing the FISA Request form with new questions,
including a checklist of relevant information, which will direct agents to

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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;
• (U) (#2) Requiring that all information known at the time of the request and
bearing on the reliability of a CBS whose information is used to support the
FISA application is captured in the FISA Request Form and verified by the
CBS handler;
• (U) (#3) Adding reverification directives to th~ FISA Verification Form,
known as the Woods Form, which will require agents and their supervisors to
attest to their diligence in re-verifying facts from prior factual applications and
to confirm that any changes or clarifying facts, to the extent needed, are in the
FISA renewal application;
• (U) (#4) Improving the FISA Verification Form by adding a section devoted
to CBSs, including a new certification related to the CBS -originated content
in the FISA application by the CBS handler, and CBS-related information that
requires confirmation by the CBS handler, which will be maintained in the
CBS's file;
• (U) (#5) Adding an affirmation to the FISA Verification Form that, to the
best of the agent's and supervisor' s knowledge, OI 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;
• (U) (#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;
• (U) (#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;
• (U) (#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 cornrnunication breakdowns, and to instruct where new or revised
policies and procedures will apply, so that mistakes of the past are not
repeated;
• (U) (#9) Requiring serialization of completed FISA Verification Forms in the
FBI's case management system to increase accountability and transparency;
• (U) (#10) Developing and requiring new training focused on FISA process
rigor and the steps FBI personnel must take, at all levels, to make sure that OI
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;

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• ~U) (# 11) Ident.ifying and pursuing short- and long-term technological

Improvements, m partnership with DOJ, that will aid in consistency and
accountability; and,
• (U) (#12) Directing the FBI' s recently expanded Office oflntegrity and
Compliance to work with the FBI's Resource Planning Office to identify and
propose audit, review, and compliance mechanisms to ensure the above
changes to the FISA process are effective.

5. (U) The FBI is committed to implementing the Corrective Actions as

expeditiously as possible, while also ensuring that they are accomplished thoughtfully and

effectively. The FBI will implement the Corrective Actions, and further actions deemed

appropriate, with enhanced communication and training to the workforce, so that we may all

internalize the lessons learned and ensure that FBI personnel adhere to the highest standards.

Critically, the FBI must also balance the implementation of these actions with its ongoing

responsibility to protect the American people and uphold the Constitution of the United States,

during a time of ever-present threats to our national security. The leadership of the FBI has

devoted - and will continue to devote - a substantial amount of time, thought, and effort to

striking this balance, while paying scrupulous attention to its duty of candor to the Court and

maintaining the trust of the American people.

6. (U) The FBI has already made substantial progress toward the development and

implementation of some of the FISA-related Corrective Actions identified above. For example,

in mid-November 2019, weeks before the release of the OIG Report, a working group that

includes field and FBI Headquarters attorneys, Special Agents, and attorneys from the Office of

Intelligence (OI), National Security Division (hereinafter "working group") began meeting

weekly to revise the FISA Request Form, as outlined in Corrective Action #1. Pursuant to

Corrective Action #1, this form has been significantly revised in an effort to elicit a fulsome

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picture of the FBI's case in any instance in which the Bureau seeks FISA authority, including

any information that might undermine the requested probable cause findings. The revised FISA

Request Form has been finalized as of the date ofthis filing. I will require agents to begin using

the new FISA request form on February 14, 2020, following a brief period of training.

7. (U) The second FISA-related Corrective Action I have directed will require that

all information known at the time of a FISA request and bearing on the reliability of a CHS

whose information is used to support the FISA application is captured as part of the FISA

Request Form and verified by the CHS handler. In coordination with the FBI's Directorate of

Intelligence, the working group is developing a new CHS Questionnaire, which will be used as

an addendum to the FISA Request Form, identifying the categories of source information (e.g.,

payment information, criminal history) that OI should be informed of when preparing FISA

applications that rely on CHS reporting. Completion of this Corrective Action will require

consultation with external partners, finalization of the CHS Questionnaire, and the training of

FBI personnel. The FBI proposes to update the Court on the status of the implementation of this

Corrective Action by February 28, 2020.

8. (U) Corrective Actions #3, #4, #5, and #6 require an1plification of the FISA

Verification Form to require agents and supervisors to attest to their diligence in re-verifying

facts from prior factual applications and to confirm that any required changes or clarifying facts

are in the FISA renewal application (Corrective Action #3); provide a new certification that the

case agent has conferred with all relevant CHS handlers to confirm that all source descriptions

and source-originated content is accurate and complete, and that all source reporting in the

application is supported by documentation included in the FISA Accuracy sub-file (Corrective

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Action #4); include affirmations by the case agent and supervisor that to the best of their

knowledge, OI 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 (Corrective Action #5); and add 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 and accuracy review (Corrective Action #6). Additionally, Corrective Action #9

requires the serialization of completed FISA Verification Forms in the FBI ' s case management

system to increase accountability and transparency. More specifically, serialization will create a

permanent record of the additional affirmations agents and supervisors will be required to make

through implementation of Corrective Actions #3, #4, #5, and #6. I have instructed FBI

personnel to complete the aforementioned revisions to the Verification Form by January 17,

2020, and to begin using the form beginning February 14, 2020, following a brief period of

training.

9. (U) The training referenced in paragraphs 6, 7, and 8 will be provided jointly by

FBI and OI attorneys . It will be delivered through in-person instruction at the field offices that

process the majority of FISA applications, and offered virtually for all other FBI personnel. In

addition to providing instruction on the new forms, this training will include an overview of

lessons learned from the FISA applications and associated FBI actions examined in the OIG

Report, with an emphasis on the critical importance of ensuring accuracy, transparency, and

completeness in all FISA applications. This training will be an interim measure; pending the

completion of more comprehensive training discussed in paragraph 11 below, and it will be

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completed before February 14, 2020, to enable use of the new FISA Request Form and FISA

Verification Form beginning February 14, 2020.

10. (U) Corrective Action #7 requires the formalization of 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 reviewer. Through this

Corrective Action, the FBI seeks to encourage legal engagement throughout the FISA process,

while still ensuring that case agents and field supervisors maintain ownership of their

contributions. I directed the Bureau to implement this Corrective Action in response to the more

narrow OIG recommendations that the FBI revise its FISA Verification (or Woods) Form "to

specify what steps must be taken and documented during the legal review performed by an FBI

Office of General Counsel (OGC) line attorney and SES-level supervisor before submitting the

FISA application package to the FBI Director for certification[,]" and "to clari fy which positions

may serve as the supervisory legal reviewer for OGC[.]" I have instructed FBI perso1mel to

revise the FISA Verification Form to address the OIG documentation recommendations by

January 17, 2020, and to begin using that form beginning February 14, 2020, following a brief

period of training. FBI OGC is currently reviewing its internal processes to address the

remaining elements of. Corrective Action #7 and to determine what changes it can make to

introduce additional rigor into the FISA legal review process. The FBI proposes to update the

Court on its implementation of the remaining elements of Corrective Action #7 in a filing made

with the Court by March 27, 2020.

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11. (U) Corrective Action #8 requires the creation and teaching of a case study based

on the OIG Report findings, wherein FBI personnel will be instructed on the errors and

omissions that were made in the Carter Page FISA applications and associated processes, and

taught the updated procedures, policies, and protocols designed to avoid similar mistakes in the
/

future. Relatedly, Corrective Action #10 requires the development of new training focused on

FISA process rigor, and the steps all FBI personnel who work on FISAs must take to ensure that

OI and the FISC are apprised of all information in FBI holdings that might be relevant to the

requested probable cause findings in a given application. I have instructed FBI personnel to

develop two specific trainings: ( 1) a virtual case study (hereinafter "case study training")

delivered as mandatory training to all FBI operational personnel, regardless of the program they

are assigned to, and (2) a focused virtual or in-person mandatory FISA process training

(hereinafter, "FISA process training") tailored to FBI personnel who work on FISA applications,

to explain the need to be rigorous during each part of the FISA process. I am determined that

operational personnel understand , holistically, what occurred during the activities reflected in the

OIG ' s Report, and that, in addition, personnel working on FISA applications understand the

importance of rigor during each and every phase of the application process. Both trainings will

include testing to confirm that personnel understand the expectations and the materials, and a

certification that personnel have completed the training. I have instructed the relevant FBI

divisions to complete the case study training not later than April 30, 2020, and I will require all

operational personnel to complete that training by June 30, 2020. Similarly, I have instructed the

relevant FBI divisions to complete the FISA process training instructional materials not later

than April 30, 2020, and I will require all personnel working on FISA applications to complete

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the FISA process training not later than June 30, 2020. While converting the lessons of the

Report into effective training will take time, the FBI's goal is to ensure that these trainings are

impactful, and that they ingrain in our workforce the absolute necessity for accuracy,

transparency, and completeness in all FISA applications and, more broadly, the need to learn

from our past. As explained above, while these trainings are being developed, FBI and OI

attorneys will be engaged simultaneously in other training efforts to reemphasize to FBI

personnel the importance of accuracy and completeness in FISA applications.

12. (U) Corrective Action #11 requires the identification and pursuit of short- and

long-term technological improvements, in partnership with DOJ, that aid in consistency and

accountability. I have already directed executives in the FBI's Information Technology Branch

leadership to work with our National Security Branch leadership and other relevant stakeholders

to identify technological improvements that will advance these goals. To provide one example

of a contemplated improvement, the FBI is considering the conversion of the revised FISA

Request Form into a workflow document that would require completion of every question before

it could be sent to OI. The FBI proposes to update the Court on its progress with respect to this

Corrective Action in a filing made by March 27, 2020.

13 . (U) The final FISA-related Corrective Action I directed (#12) requires the FBI's

Office of Integrity and Compliance ("OIC") to work with our Resource Planning Office to

identify and propose audit, review, and compliance mechanisms to ensure that all changes to the

FISA process are effective in achieving the identified goals, and to evaluate whether other

compliance mechanisms would be beneficial. I have already directed OIC to begin this work.

This responsibility will be ongoing and last the duration of the enhancement of our FISA

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processes. The FBI proposes to update the Court on its progress with respect to this Corrective

Action in a filing made by May 22, 2020.

II. (U) INTERIM MEASURES TO ENSURE

RELIABILITY OF FISA INFORMATION

14. (U) I understand that the institutionalization of these Corrective Actions will take

time, and that in the interim, the Court deserves additional assurances that the information

presented in all FISA applications from the FBI is complete and accurate. As noted above, the

FBI's goal is to implement the Corrective Actions as expeditiously as possible, without

compromising effectiveness or sacrificing the operational agility and vigilance needed to

continue protecting our country from national security threats. In contemplating interim

measures to provide assurance to the Court between now and the completion of the FISA -related

Corrective Actions, FBI leadership endeavors to strike the balance between its absolute

commitment to improving its processes and maintaining the Court's trust, and meeting its

continued obligation to conduct national security investigations and operations effectively. Both

responsibilities require personnel with specialized knowledge, skills, and training. With this

delicate_balance in mind , I propose the interim measures outline_d below.

15. (U) By way of background, and as was described in the Response to the Court' s

Order Dated December 5, 2019, filed with this Court on December 20, 2019 (hereinafter

"December 20 Response"),

"the FBI, and other members of the Intelligence Community engage in various
efforts to ensure that we include in our applications all ofthe information that is
material to the case, and that all of the information reported in our applications is
accurate." See March 24, 2006 Letter in Response to FISC letter dated December
12, 2005. On April 5, 2001, the FBI issued an Electronic Communication (EC) to
FBI personnel known as the "Woods procedures ." These procedures set forth

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various processes that must be followed by the FBI to ensure accuracy in FISA
applications. The procedures require that the application be reviewed for
accuracy by the case agent, the Headquarters supervisor for the case, and any
other personnel those individuals determine need to review the application for
factual accuracy. See April 5, 2001 Woods Procedures. On January 24, 2006, the
FBI issued additional guidance to FBI personnel, reminding them that "strict
compliance with the Woods procedures is mandatory for all FBI personnel
involved in the FISA process" and that " [t]he facts and statements presented in
the FBI ' s requests for electronic surveillance and searches must be accurate and
complete ... ." See FBI EC dated January 24, 2006. On February 2, 2006, the FBI
issued additional guidance to its personnel, requiring that case agents create,
maintain, and update a sub-file that contains all materials that document the
support for each factual assertion contained in a FISA application. See FBI EC
dated February 2, 2006. On February 11, 2009, NSD and FBI issued guidance to
FBI and OI personnel that memorialized practices developed to ensure accuracy
of facts in FISA applications, as well as certain procedures that should be
followed during the drafting of FISA applications to ensure accuracy. This 2009
guidance also memorialized processes for conducting accuracy reviews of a
limited number ofFISAs on an annual basis by OI, and by the FBI Chief Division
Counsels on a quarterly basis.

December 20 Response at 5-6.

16. (U) The requirements referenced in the paragraph above still apply to all FBI

personnel who prepare FISA applications, and I have already reemphasized the importance of

strict compliance with them in a video I distributed to the entire FBI workforce via email on

December 9, 2019 . On January 13 , 2020, I will send an EBl-wide email that will inform the

workforce of our impending implementation of the interim measures and Corrective Actions

described above. Beginning January 13 , 2020, I will also require case agents and field

supervisors to begin conducting two additional steps during their accuracy reviews, pending

implementation of Corrective Actions# 1, #3-7, and #9 by February 14, 2020. These two

additional interim steps are as follows:

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a. (U) First, case agents and their supervisors will be required to complete a review

of the relevant case file for all applications submitted to the Court (including

initiations and renewals) to ensure that there is no information omitted from their

FISA applications that may bear on the requested probable cause findings . If

agents are unsure of the materiality of particular information, that information

should be discussed with the assigned 01 attorney. After February 14, 2020,

because personnel will be using the revised FISA Verification Form, this

requirement will effectively become permanent in that agents and supervisors will

be affirming that, to the best of their knowledge, OI 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 (i.e. , through implementation of Corrective Action #5).

b. (U) Second, once a final draft of a FISA application has been prepared, the case

agent will send any language relating to a CHS - including not only the

reliability statement but also any representation of the CHS' s reporting- to the

CHS ' s handler, the CHS Coordinator, or either individual's direct supervisor, for

review and verification of accuracy. The CHS ' s handler will then confirm the

information's accuracy in a written response back to the case agent. This

requirement will likewise become permanent when personnel begin using the

revised FISA Verification Form beginning February 14,2020 (i.e., through

implementation of Corrective Action #4).

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(U) Until Corrective Actions # 1, #3-7, and #9 are fully implemented, I will require case

agents to attest that they have completed these steps by sending an email to the Headquarters-

based Program Manager who is serving as the declarant for the application. This email will then

be included in the package of materials circulated at Headquarters for review, approval, and

certification.

17. (U) The FBI will also bolster its existing validation procedures by requiring an

attorney-assisted accuracy review for every FISA application targeting a U.S. person submitted

to the Court during the interim period (i.e., between January 13, 2020, and February 14, 2020).

Currently, both the case agent and the field supervisor are required to validate that each factual

statement included in the application is supported by documentation. During this interim phase,

I will mandate an enhanced review of each application targeting a U.S. person, which will mirror

the existing accuracy review process used by OI on its oversight visits.

18. (U) FBI leadership believes that the interim measures outlined above - an

attorney-assisted accuracy review in all U. S. person target cases, file reviews in every case to

identify material omissions in applications, and affirmations by CHS handlers of all source

reliability descriptions and source-originated content in applications- will introduce immediate

safeguards to promote accuracy and completeness in all FISAs applications. Additionally, FBI

leadership believes that the repeated messaging to its workforce of the absolute need for

accuracy and completeness in all FISA applications (i.e. , through the video message I distributed

to all FBI personnel on December 9, 2019, the all-employee email I will send on January 13,

2020, and the training on new forms that will be provided virtually and at field offices), and the

implementation ofCorrective Actions # 1, #3-7, and #9 by February 14, 2020, will result in a

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substantially renewed institutional focus on ensuring accuracy, transparency, and completeness

in all FISA applications. As noted above, implementation of Corrective Actions # 1, #3-7, and #9

will include use of the new FISA Request Form, which has been significantly revised to elicit a

fulsome picture of the FBI's cases, including information that might undermine the requested

probable cause findings in FISA applications, and use of the revised FISA Accuracy Form,

which will require agents and supervisors to confirm their diligence in re-verifying facts from

past applications, affirm that CHS handlers have confirmed CHS-related information in

applications, and affirm that OI has, to the best of the agent's and supervisor' s knowledge, been

apprised of all information that is material to a given application. Finally, FBI leadership

believes that the implementation of the remaining five FISA-related Corrective Actions,

including the above-referenced training and the continued monitoring of the efficacy of these

Corrective Actions, will bring about the institutional reform in its FISA process that the FBI

seeks to effect.

19. (U) In addition to the measures I have outlined above, I have decided the FBI

will enhance its protocols to ensure the accuracy of applications brought under Titles IV (relating

to pen register and trap and trace surveillance) and V (relating to the acquisition of business

records) of FISA. As the Court is aware, the authorities obtained pursuant to Titles IV and V of

FISA are far Jess intrusive than electronic surveillance and physical search authorities, which

have been subject to accuracy procedures since 2001. Pen register and business records

applications, moreover, were not at issue in the OIG investigation. Nevertheless, I have decided,

out of an abundance of caution, that the FBI will enhance accuracy protocols for these additional

less intrusive authorities . This effort will require changes in workflow processes, and the

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development of accuracy procedures and FISA accuracy forms that are specific to pen register

and trap and trace and business records applications. The FBI proposes to update the Court on

its progress with respect to this effort in a filing made by March 27, 2020.

III. (U) CONCLUSION

20 . (U) The FBI has the utmost respect for this Court, and deeply regrets the errors

and omissions identified by the OIG. The OIG Report and the affiliated Rule 13(a) letters

describe conduct that is unacceptable and unrepresentative of the FBI as an institution. FISA is

an indispensable tool in national security investigations, and in recognition of our duty of candor

to the Court and our responsibilities to the American people, the FBI is committed to working

with the Court and DOJ to ensure the accuracy and completeness of the FISA process.

(U) Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is

true and correct.

January l~020
1stopher A. Wray
Director
Federal Bureau of Investigation

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