A Summaryby Mary DeRosa
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, known as the "lone wolf" amendment, broadens FISA to allow surveillance of a new category of individuals. The provision amends FISA's definition of "agent of a foreign power" to include any person, other than a U.S. person, who "engages in international terrorism or activities in preparation therefore." Previously, that definition required a nexus to a foreign power or entity, such as a foreign government or an international terrorist organization. The expanded definition allows the government to use FISA for surveillance of a non-U.S. person who has no known ties to a group or entity. Congress passed this "lone wolf" provision because it was concerned that the previous FISA definitions did not cover unaffiliated individuals—or those for whom no affiliation can be established—who nonetheless engage or are preparing to engage in international terrorism.
The standards and procedures for FISA collection are different, more secretive, and in some cases less rigorous than those for law enforcement surveillance. But FISA is limited by its requirement that the target of surveillance be a foreign power or its agent. After this "lone wolf" provision, a target can be considered an "agent of a foreign power" without any evidence that they are acting with a group. But there must be probable cause that the target is engaging or preparing to engage in "international terrorism," which FISA defines to be activities that involve violent, criminal acts intended to intimidate or coerce a population or a government and that occur totally outside of the United States or transcend national boundaries.
Section 6001(b) of the Intelligence Reform Act subjects the "lone wolf" amendment to the PATRIOT Act's sunset provision. Therefore, unless reauthorized, the expanded authority will expire on December 31, 2005.
Critics of FISA's new "lone wolf' provision argue it is a dangerous expansion of authority, allowing the application of FISA to individuals lacking any connection to foreign powers. The language actually enacted, however, integrates a definition of "international terrorism' that preserves a sufficiently strong foreign nexus requirement. Therefore, the statute's parts, taken together and read in context, contain adequate safeguards to ensure that the lone wolf provision will be used against its intended targets—international terrorists.
Before the lone wolf provision, there were two principal paths to obtain FISA surveillance of an international terrorist: first, by demonstrating probable cause that the target acts in the U.S. as a "member' of an international terrorist group (found in FISA section 101(b)(1)(A)); and second, by demonstrating probable cause that the target "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power' (section 101(b)(2)(C)). The first option is difficult to establish given the informality of terrorist organizations and is not available where the target is a U.S. person. The second is the stock from which the present "lone wolf' provision is cut, and provides the conceptual foundation for the new provision.
The legislative history of those two original FISA provisions, found primarily in House Report 95-1283, Senate Report 95-701 and House Conference Report 95-1720, reveals that the drafters' chief concern here was to avoid application of the FISA to purely domestic terrorists or political dissidents. Congress was reacting to the Supreme Court's 1972 holding in United States v. United States District Court (found at 407 U.S. 297, and commonly called the "Keith case') that "domestic security surveillance' was subject to the warrant and reasonableness requirements of the Fourth Amendment. The group at issue in Keith was a radical organization (the White Panther Party) that had bombed a number of federal facilities to draw attention to the group's domestic social/political agenda. (See The Court Legacy, Vol. XI, No. 4 (Nov. 2003).) The Court emphasized that its Keith holding addressed only "the domestic aspects of national security' and did not reach "the activities of foreign powers or their agents.' FISA was the legislative approach to the area beyond Keith: the field of foreign intelligence surveillance. In addressing terrorism as a national security threat, the FISA drafters needed to draw a line between the purely domestic variety covered by the Keith ruling, and the activities of international terrorist organizations (which could take place in the United States).
The common wisdom -- "if it ain't broke, don't fix it' -- was ignored when Congress enacted the "lone wolf' amendment to the Foreign Intelligence Surveillance Act (FISA), allowing its use against an individual acting totally alone, with no connection to any foreign power, so long as they are "engaged in international terrorism or activities in preparation therefor.' The result needlessly undermines the policy and constitutional justification for this very important national security tool.
The lone wolf provision is often referred to as the "Moussaoui fix.' Although it had been floating around previously, the amendment came to the forefront only after the attacks of September 11, 2001, when the misperception took hold that FISA's requirements prevented the FBI from gaining access to a computer used by Zacharias Moussaoui, who was alleged at one time to be the 20th hijacker. In fact, the problem was not with the FISA statute but with the FBI's misinterpretation of the statute. This conclusion is supported by the findings of the Joint Congressional Intelligence Committee Inquiry into the 9/11 Attacks, an exhaustive Senate Judiciary Committee inquiry, and the 9/11 Commission.
In order to obtain a FISA order authorizing access to Moussaoui's computer, the FBI needed to show probable cause to believe that Moussaoui was acting "for or on behalf of a foreign power.' A foreign power is defined to include a group engaged in international terrorism. As the Senate Judiciary Committee Report explained, the FBI misunderstood the FISA requirement:
[K]ey FBI personnel responsible for protecting our country against terrorism did not understand the law. The SSA [Supervisory Special Agent] at FBI Headquarters responsible for assembling the facts in support of the Moussaoui FISA application testified before the Committee in a closed hearing that he did not know that "probable cause' was the applicable legal standard for obtaining a FISA warrant. In addition, he did not have a clear understanding of what the probable cause standard meant. ... In addition to not understanding the probable cause standard, the SSA's supervisor (the Unit Chief) responsible for reviewing FISA applications did not have a proper understanding of the legal definition of the "agent of a foreign power' requirement. Specifically, he was under the incorrect impression that the statute required a link to an already identified or "recognized' terrorist organization, an interpretation that the FBI and the supervisor himself admitted was incorrect.
FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures, An Interim Report by Senators Patrick Leahy, Charles Grassley, & Arlen Specter (February 2003) at p. 17.
Ms. Spaulding argues that we should reject the "lone wolf' amendment because it is allegedly unnecessary, and it would undermine the "policy and constitutional justification for FISA' to create a provision applicable to future terrorists that cannot be proved to be affiliated with a terrorist group. But wait, the purpose of FISA is the collection of foreign intelligence information, defined as "information that relates to . . . the ability of the United States to protect against actual or potential attacks' and "sabotage or international terrorism.' See 50 U.S.C. 1801. The new "lone wolf' FISAs, like all FISAs, are available only if the government can certify that the information sought is foreign intelligence. If the government can meet the "international terrorism' and "foreign intelligence information' requirements, how could the "level of foreign or military affairs' not be implicated? And why should the government then forego its purpose-made intelligence capability (FISA) in favor of ad hoc criminal tools? Whom does such a limitation actually protect?
As for the constitutional foundations of FISA, Ms. Spaulding cites the Truong decision, which, despite its date, addresses a pre-FISA case. The quoted Truong language refers not to FISA, but to fully warrantless activities conducted at the sole discretion of the Executive Branch. FISA, of course, does not fall into that category, as the Foreign Intelligence Court of Review explained at length in its 2002 opinion (and as the Truong court itself recognized in footnote 4). The "lone wolf' provision just allows the government to obtain foreign intelligence about a non-U.S. person who is engaged in international terrorism, and to do this under the authority and direct supervision of a court expressly created to keep the domestic collection of foreign intelligence within constitutional limits.
Criminal warrants are poor substitutes for FISA. The criminal justice system has a very limited, and highly contingent, ability to protect classified information. The Classified Information Procedures Act, for example, applies only after criminal charges have been filed, and thus doesn't help with getting search warrants. Relying on a judge to seal records is, at best, a temporary solution, unsuited to the long term protection of intelligence sources. Sometimes those sources are foreign governments unwilling to expose their own intelligence information to the unpredictability of our criminal courts. FISA was designed to accommodate all of these concerns, and functions very well in this regard.
Ms. Spaulding also argues that the lone wolf provision is unnecessary because we could have used FISA on Moussaoui anyway (since it turns out he really wasn't a lone wolf). Of course, some of the key information relied on by the Judiciary Committee in reaching its conclusion was not actually before the relevant FBI officials prior to 9/11. Unlike post-event investigators, counterterrorism agents don't have the benefit of flawless hindsight. Uncertainty is their natural habitat and their tools should be built to function in that environment. Moreover, the lone wolf amendment isn't about Moussaoui. Counterterrorism agents need the tools to stop the next would-be terrorist, not the last one.
The FISA Court of Review (FISCR) cited the statute's purpose, "to protect the nation against terrorists and espionage threats directed by foreign powers,' to conclude that FISA searches, while not clearly meeting "minimum Fourth Amendment warrant standards,' are nevertheless reasonable. Because the definitions of "foreign intelligence' and "international terrorism' do not include this necessary nexus to a foreign power, they do not solve the constitutional and policy issues raised when applying FISA to a true lone wolf. Nor should we rely upon FISA judges to ensure that an overly broad standard is only applied in ways that are sensible; the law makes clear that their role is simply ensuring that the standards set forth in the statute are met.
Congress should let the lone wolf provision sunset and instead address perceived (although unproven) concerns about having to show foreign power connections by creating a permissive presumption that if there is probable cause to believe that a non-US person is engaged in or preparing for international terrorist activities, they can be considered an agent of a foreign power. If it ultimately becomes clear that the target is acting alone, a criminal warrant should be sought. Who does this constitutional safeguard protect? All of us.