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).
After examining several different ways to describe terrorism, Congress drew that line by defining "international terrorism' in FISA (Section 101(c)). That definition has three elements: first, the activities in question must involve violent acts that are a violation of U.S. criminal law (or would be if committed in U.S. jurisdiction); second, that the apparent purpose of the activities is to intimidate civilian populations or governments; and third, that the activities either occur outside of the U.S. or "transcend national boundaries' in terms of their means of execution, intended targets, or location of the perpetrators. The legislative history shows that Congress acknowledged that domestic groups could meet this definition if they acted internationally, or "receive[d] direction or substantial support' from a foreign terrorist group, but FISA could not be used in the absence of such information. Moreover, the fact that domestic activities were "parallel to or consistent with the desires of a foreign power' was insufficient to satisfy the definition. Protected speech ("mere sympathy for, identity of interest with, or vocal support for' a foreign-based terrorist group) was also insufficient. Thus, a strong link to foreign power activity, as well as a required showing of preparation for violent criminal acts, is embedded in the FISA definition of "international terrorism.'
The new lone wolf provision descends from the existing definition of a U.S. person agent of a foreign power found in section 101(b)(2)(C) (a person who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power.'), but differs in two key ways. First, the lone wolf provision drops the "knowingly' requirement because the lone wolf definition applies only to non-U.S. persons (and non-U.S. person FISA provisions do not include a scienter requirement). Second, the lone wolf provision lacks the final phrase "for or on behalf of a foreign power.' The 1978 legislative history of that phrase (in sharp contrast to the detailed discussion of the "international terrorism' definition) only points out that it requires an explicit identification of the target's "knowing connection' to a group engaged in international terrorism. The elimination of this final phrase is less consequential than generally imagined because the "foreign nexus' requirement flows not just from the "for or on behalf of a foreign power' codicil but also (and perhaps more powerfully) from the "international terrorism' definition that remains incorporated into the lone wolf provisions. That definition continues to ensure that FISA is not applied to purely domestic political activity (even to domestic political violence). Therefore, the lone wolf provision addresses the fairly narrow factual scenario in which the government can demonstrate probable cause that the proposed FISA target is engaged in international terrorism but cannot demonstrate an agency relationship with an identifiable international terrorist group.
There are a number of situations in which this scenario might arise. The target could be espousing transnational approaches (like "universal jihad') without indicating allegiance to, or having contact with, any particular group. Perhaps the government's information links the target to a group, but those facts simply do not rise to the level of probable cause. The target could be linked to a previously unknown group for which government can not yet meet every element of the FISA "foreign power' definition. There might be old information associating the target with a foreign group, but uncertainty as to the target's current allegiance (a key fact, given that the use of the present tense in the definition implies currency). A target could have contacts with several groups, but with no one connection rising to the level of probable cause. None of these scenarios would seem to be commonplace; and it is easy to imagine that a few additional facts would push the matter into the scope of the existing definitions. However, the category defined in the lone wolf provision, though small, does represent a gap and raises the question of whether or not an expanded FISA definition tailored to this particular factual range is justified.
Although the Moussaoui case is named most often as the justification for the lone wolf provision, it is now nearly impossible to examine those facts without the distortion of post-9/11 hindsight. A better, and more enduring, case for the change arises from the evolving nature of al-Qaeda. Even a cursory reading of the FISA reveals its presumption for state or quasi-state foreign powers. Although the FISA materials acknowledge that international terrorist groups are less formal and more fluid than foreign intelligence services, the 1970s-era groups that pop up as examples in the legislative history (the Baader-Meinhof Group, the Japanese Red Army, various Palestinian groups) were all relatively structured, often quasi-military, organizations. Subsequent generations of terrorists have learned that hierarchical organizations are well-established targets for western-style intelligence and law enforcement. By eschewing such structures, the new terrorists deprive us of the familiar terrain and build up their asymmetric advantage. The development of al-Qaeda, from an initially traditional extremist group to a trans-cultural (and increasingly trans-sectarian) extremist movement is a sobering example of this evolution. Writing in Foreign Affairs (July/August 2003, "The Protean Enemy'), Jessica Stern described the rise of a "leaderless resistance' model in al-Qaeda, with extremist web sites now offering tips on creating "clandestine activity cells' and promoting a "culture of jihad.' In these conditions, it is more likely that situations falling within the factual band addressed by the lone wolf provision will occur. Rather than attempting to stretch outmoded definitions to cover these developments, the new language in FISA simply closes a definitional gap in our ability to deploy FISA in response to the present threat.
Finally, though often cited as an alternative, the availability of the criminal process to address the lone wolf scenario does not undermine the necessity of the new language. While the USA PATRIOT Act certainly removed barriers to the use of criminal investigative tools in the intelligence context, it did not alter the fundamental limitations of the criminal process regarding the protection of sensitive sources and methods. If the factual predication for a lone wolf scenario is drawn from sources that cannot be introduced into the criminal process (for example, information from a sensitive human source or from a foreign intelligence service), the criminal process is, in practical terms, unavailable. In such cases, FISA authority should be available, as it is for the other fact patterns addressed by its definitions. Given the required connection to a legitimate national security threat embedded in the FISA definition of "international terrorism,' the new lone wolf language is both appropriately tailored within the existing parameters of foreign intelligence surveillance, and justified by the evolving nature of our present adversary.
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.
The Judiciary Committee Report notes that while "a group' is not defined in FISA, "in common parlance, and using other legal principles, including criminal conspiracy, a group consists of two or more person whether identified or not.' Moreover, remember that the FBI does not have to "prove' the target's connection to a terrorist group. They must merely meet the "probable cause' standard, which, as the Judiciary Committee Report points out, does not mean "more likely than not' or "an over 51% chance,' but "only the probability and not a prima facie showing.' The Report concluded that "there appears to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application' (p. 23). Thus, no "fix' was required to search Moussaoui's computer.
Moreover, FBI could very likely have obtained a criminal warrant to search Moussaoui's computer. They did not pursue that because they were concerned that doing so would preclude them from getting a FISA warrant later if they were turned down for the criminal warrant or ultimately did develop what they thought was sufficient information linking him to a terrorist group. This concern was based on the "primary purpose' test—viewed as precluding the use of FISA if the primary purpose was criminal prosecution rather than intelligence collection—which was subsequently changed in the USA PATRIOT Act. With the PATRIOT Act change, and in light of a subsequent opinion by the Foreign Intelligence Surveillance Court of Review, this would no longer be a concern and the government could seek a criminal warrant without concern of precluding future use of FISA. Moreover, because of the post-9/11 enactment of broad criminal statutes related to terrorism, in virtually every case in which you could meet the probable cause standard for obtaining a FISA warrant for a lone wolf ("engages in international terrorism activities or activities in preparation therefore'), you could meet the probable cause standard for a criminal warrant. Nor would the need to use sensitive information in the application be a compelling concern, given that classified information is shared with judges in other criminal contexts, such as pursuant to the Classified Intelligence Procedures Act.
One might argue that no matter how rare the instances might be in which FISA may be the best way to go after a lone wolf, we should include this option in the law "just in case.' The problem with this reasoning is that it comes at a high cost. In addition to being unnecessary, the lone wolf provision undermines the policy and constitutional justification for FISA. When Congress enacted FISA, it carefully limited its application in order "to ensure that the procedures established in [FISA] are reasonable in relation to legitimate foreign counterintelligence requirements and the protected rights of individuals. Their reasonableness depends, in part, upon an assessment of the difficulties of investigating activities planned, directed, and supported from abroad by foreign intelligence services and foreign-based terrorist groups.' Senate Report 95-701, at 14-15.
The Congressional debate, and the court cases that informed and followed it, clearly reflect the sense that this limited exception from the normal criminal warrant requirements was justified only when dealing with foreign powers or their agents. The exception was not based simply on a foreign nexus; it did not apply to every non-US person whose potentially dangerous activity transcended US borders. The Fourth Circuit Court of Appeals has emphasized that the exception is justified "only when the object of the search or the surveillance is a foreign power, its agent or collaborators. In such cases, the government has the greatest need for speed, stealth, and secrecy, and the surveillance in such cases is most likely to call into play difficult and subtle judgments about foreign and military affairs.' (United States v. Truong Dinh Hung, 629 F.2d 908, cert. denied 454 U.S. 1144 (1982).)
Individuals acting entirely on their own simply do not implicate the level of "foreign and military affairs' that justify the use of this extraordinary foreign intelligence tool. Congress has authorized the use of military force against the terrorists who carried out the attacks of September 11 and those acting on their behalf—not against individuals acting alone with absolutely no connection to any terrorists. And while there are obvious foreign policy implications of targeting an individual with ties to an international terrorist group, it is not clear why an individual acting alone raises any more significant foreign policy concerns than would targeting any other foreign criminal inside the US.
The requirement that the lone wolf must be "engaged in international terrorism or acts in preparation therefore' does not solve this problem. Nowhere in FISA's definition of "international terrorism' is there any requirement for a connection to a foreign government or terrorist group. Nor is such a requirement "embedded' in the definition by virtue of the legislative history. In fact, report language emphasizing the need for a direct link to a foreign power simply further highlights the importance of that element in the overall legislative framework that Congress had carefully constructed.
Perhaps it was Congress' understanding that the legitimacy of FISA depends upon a nexus to a "foreign power' that led to their strange decision last year to "fix' FISA by slipping the "lone wolf' into the definition of "agents of a foreign power.' However, by defining an individual acting totally alone, with no connection to any other individual, group, or government, as "an agent of a foreign power,' Congress moved beyond Orwell into the logic of Humpty Dumpty: "When I use a word, it means just what I choose it to mean.' Unfortunately, this legislative legerdemain stretched the logic of this important statutory tool to a point that threatens its legitimacy. If its use against a true lone wolf is ever challenged in court, FISA, too, may have a great fall.
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.