Cushman: FBI Earned an F for FISA

Cushman: FBI Earned an F for FISA

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While COVID-19 is taking up much of the news cycle, there are other things that must be attended to as well. This week’s report by the FBI Office of the Inspector General gives the FBI a zero for its performance in reviewing 29 Foreign Intelligence Surveillance Act (FISA) applications.

The bottom line is that the FBI is not following procedures for FISA applications, which allow the bureau to surveil U.S. citizens. As U.S. citizens, we should demand that the procedures be followed completely. The sad part is that this is not the first time such failures have been revealed — and that the rules and regulations that were put together to prevent such abuse are not being followed.

It’s important to review background information to understand the importance of this report.

In 2001, Michael Woods, then the head of the FBI Office of General Counsel National Security Law Unit, put together rules to “ensure accuracy with regard to ... the facts supporting probable cause” for applications to the FISA court. According to FBI testimony to Congress in 2003, these procedures were put in place because “(i)ncorrect information was repeated in subsequent and related FISA packages.”

This FISA application process was used to start the 2016 investigation into the presidential campaign of Donald Trump. The investigation turned up nothing on Trump, but the investigation itself was reviewed to see if FBI procedure had been followed.

Last December, the Justice Department inspector general, Michael Horowitz, released a report on the FBI investigation. It found numerous issues and resulted in FBI Director Christopher Wray ordering “more than 40 corrective steps to address the Report’s recommendations.”

Horowitz then reviewed a sample of 29 FISA applications from between October 2014 and September 2019. This report was released this week. None of the 29 applications correctly followed FBI procedures.

These cases involved “both counterintelligence and counterterrorism investigations,” according to the IG report. Of the 29, the FBI could not find four of the supporting Woods files. According to the report, “in 3 of these instances, (they) did not know if they ever existed.” The other 25 cases all had “apparent errors or inadequately supported facts.”

All 29 failed.

While the review has not determined the materiality of the errors, it did tally the number of errors. “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,” it said.

The report noted, “we do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy.” No doubt!

The FBI had also implemented review procedures for FISA compliance in 2009. “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,” the report noted. Similarly, the National Security Division (NSD) 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.”

During its review, the IG office interviewed both FBI and NSD officials “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.”

They found that the field offices had been given notice before the review of what case would be reviewed so they could compile the documentation.

The report released this week included recommendations for “a physical inventory to ensure that Woods Files exist for every FISA application submitted to the FISC” — Foreign Intelligence Surveillance Court — “in all pending investigations.” And for the FBI and NSD to “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.”

Sadly, with no clear pattern of procedures and policy being followed, I am not sure what good these recommendations will do. My guess is that many in Congress will feel the same. Get set for congressional testimony.



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For future historians and artists who'll chronicle today's health and economic crisis, one humble item will stand out as the chief cultural emblem of the times: wearing a mask. Or not.

A small outbreak of coronavirus at a Fry Foods plant in Weiser gives a prime example of the importance of testing for COVID-19. More than that, it represents a warning shot across the bow of potential pitfalls if we don’t reopen our economy the right way.

As we tiptoe through Stage 2 of Gov. Brad Little’s phased reopening plan and approach a more robust Stage 3, it’s going to become even more important that we take the necessary steps to prevent future outbreaks.

And there will be future outbreaks.

The fact remains that the novel coronavirus that causes COVID-19 is still out there. It’s ready to strike again, and without a vaccine, it remains a potentially destructive and fatal disease.

Aggressive and quick testing remains one of the key elements — perhaps the most important element — of controlling outbreaks at this point.

Fry Foods offers an early case study.

The Weiser food processing plant employs 260 people to make onion rings and other food products. It shut down earlier this month when at least seven employees tested positive for the coronavirus.

Fry Foods initially didn’t test all 260 employees at the Weiser facility — only the 50 or 60 who likely came in contact with the employees who tested positive. Other employees were able to get tested on their own.

The Idaho Bureau of Laboratories (state run-laboratories) tested all that they had the capacity to do in one day, according to Kelly Petroff, director of communications for the Idaho Department of Health and Welfare. The state lab can do about has a testing capacity of approximately 200 tests per day.

“We are not prepared to handle this,” Doug Wold, human resources manager for Fry Foods, told the Idaho Statesman, referring to the lack of coordinated response. “If you don’t have an employer who’s willing to be proactive, we’re just going to fail.”

Fortunately, Crush the Curve Idaho, a private, business-led initiative established during the outbreak to increase testing, stepped in and tested every employee at Fry Foods.

By Tuesday of this week, 20 employees — about 8% of the plant’s workforce — had tested positive for the coronavirus, along with at least two of their family members. Nearly all were asymptomatic.


That’s what needs to happen: rapid-response testing. If you have an outbreak at your workplace, get everyone tested. For those who test positive, keep them home and isolated. For those who test negative, they can keep on working and you’re back in business.

When the outbreak hit Fry Foods, company officials made the decision to shut the plant down.

Without adequate testing, that’s unfortunately the right thing to do. Without testing, you have no idea whether you have seven infected employees, 70 or 270.

We applaud Fry Foods company officials for making the tough call to shut down, even though they were given the green light by the Southwest District Health Department to resume operations.

Coronavirus is stealthy. A person can carry coronavirus longer without symptoms, potentially spreading to others unwittingly. Some people who carry coronavirus have no symptoms at all.

We are encouraged that Crush the Curve Idaho stepped up and stepped in here.

But Idaho needs a more concerted and organized plan to do rapid-response testing.

We are a fragmented health system. Health providers include Saint Alphonsus, St. Luke’s, Primary Health, Saltzer, among others. Then think about all the entities who pay for health care: Blue Cross of Idaho, Regence BlueShield, PacificSource, SelectHealth, etc. Throw in Medicare, Medicaid and those who are uninsured.

Even our own government health management system is fragmented, with the Idaho Department of Health and Welfare and seven independent health districts not operated by the state.

And, in the case of Fry Foods, situated in a city bordering Oregon, workers were from two states.


No wonder Fry Foods officials were at a loss for where to turn for help. Without some sort of coordinated effort to test all employees and somehow pay for those tests, shutting down the plant was the best option.

It’s worth noting that the Fry Foods employee who initially had coronavirus was at a family gathering of a larger number than outlined in the governor’s reopening plan and was with visitors from out of state, two violations of the governor’s guidelines. That’s why we have the guidelines, and that’s why it’s important to follow the guidelines. Otherwise, this is what you get: an outbreak that shuts down an entire food manufacturing plant.

Unfortunately, shutting down operations every time there’s an outbreak is not going to get the job done.

And there will be more outbreaks as we reopen our economy, reopen factories and workplaces.

Idaho has a lot to be optimistic about, and we have a golden opportunity to lead the nation in reopening our economy in the face of the coronavirus pandemic. We have had relatively few cases (around 2,300) and few deaths (77). Our early efforts to shut down parts of our social interactions and Little’s quick call to issue a statewide stay-home order clearly have paid off. Idahoans’ adherence to the stay-home order has helped to flatten the curve and control the number of new cases. Residents and businesses, alike, have done their part to make this happen.

Our hope is that Idaho can chug along through the stages of reopening. Our fear is that if we don’t do this the right way, we’ll have a surge and we’ll be back to a statewide stay-home order. Nobody wants that.

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