Corrected Opinion and Order, In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC

After the government sent the Court an explanation of how future applications to the Court would be complete and accurate, the amici provided evaluations of those processes and additional recommendations, and the government replied to amici’s response, this opinion sets out a framework for holding the DOJ and FBI accountable to the heightened duties of probity and transparency that apply to ex parte proceedings. The Court explains the improvements that the government has made and what still needs to be further improved in regard to procedures for preparing FISA applications, training and other efforts to institutionalize importance of accuracy and completeness, and necessary oversight.

The Court orders the government to provide: 1) a copy of the CHS checklist and status on its implementation; 2) a description of the current responsibilities FBI OGC lawyers have throughout the FISA process; 3) planned and implemented technological improvements to the process of preparing FISA applications; 4) a report on suggested ways of improving DOJ proactiveness in ensuring the completeness in FISA applications; 5) description of steps taken to have FBI field agents to serve as declarants in FISA applications; 6) a description of DOJ’s Office of Intelligence Oversight Section’s process and methodology for conducting completeness reviews, and the results of such reviews presented every six months starting Sept. 1, 2020; 7) a summary description of the FBI case-study training and FISA-process training courses, and confirmation, by July 3, 2020, that FBI personnel involved in the FISA process have been trained and certified; 8) a description of any audit, review, or compliance mechanisms planned or implemented bearing on the efficacy of the aforementioned remedial measures; 9) no DOJ or FBI personnel under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, reviewing, or submitting such applications to the Court; and 10) each application submitted to the Court shall have representations or attestations indicating that all information that reasonably calls into question the accuracy of the information, the FBI assessment, and the requested findings.