Tuesday, October 6, 2009

What's Wrong with the Patriot Act's "Lone Wolf" Provision?

There are a whole bunch of reasons Congress should not renew the PATRIOT Act's "lone wolf" provision. Over the past week I've been honing in on the deliberations going on in the Senate regarding whether to renew - as has been requested by the Obama Administration - three key sunsetting provisions of the Patriot Act.

One is continuing to allow FISA to authorize broad warrants for most any type of records, including those held by banks, libraries and doctors.

Another is the so-called “roving wiretap” provision which allows the FBI to obtain wiretaps without identifying the target or what method of communication is to be tapped.

And the third, which I want to discuss in detail today, is the "lone wolf" provision, which allows FISA court warrants for the electronic monitoring of a person even without showing that the suspect is an agent of a foreign power or a terrorist. Needless to say, this is an INCREDIBLY broad interpretation that theoretically could endanger the rights of nearly anyone for nearly any reason.

But just on the merits alone, how often or likely is it that there will be an international terrorist acting independently of any organization or country?

Before I get to an excellent op-ed from the libertarian monthly magazine Reason, let me cite a related passage from the ACLU's seminal report called Reclaiming Patriotism. In the section on "Relaxed FISA Standards", it reads:

Section 218 of the Patriot Act amended FISA to eliminate the requirement that the primary purpose of a FISA search or surveillance must be to gather foreign intelligence. Under the Patriot Act’s amendment, the government needs to show only that a significant purpose of the search or surveillance is to gather foreign information in order to obtain authorization from the FISC. This seemingly minor change allows the government to use FISA to circumvent the basic protections of the Fourth Amendment, even where criminal prosecution is the government’s primary purpose for conducting the search or surveillance.

This amendment allows the government to conduct intrusive investigations to gather evidence for use in criminal trials without establishing probable cause of illegal activity before a neutral and disinterested magistrate, and without providing notice required with ordinary warrants. Instead, the government can obtain authorization for secret searches from a secret and unaccountable court based on an assertion of probable cause that the target is an "agent of a foreign power," a representation the court must accept unless "clearly erroneous." An improperly targeted person has no way of knowing his or her rights have been violated, so the government can never be held accountable.

Lowering evidentiary standards does not make it easier for the government to spy on the guilty. Rather, it makes it more likely that the innocent will be unfairly ensnared in overzealous investigations.

Now to the article in Reason entitled "Keepng Lone Wolves from the Door":

The extraordinary tools available to investigators under the Foreign Intelligence Surveillance Act (FISA), passed over 30 years ago in response to revelations of endemic executive abuse of spying powers, were originally designed to cover only "agents of foreign powers." The PATRIOT Act's "lone wolf" provision severed that necessary link for the first time, authorizing FISA spying within the United States on any "non-U.S. person" who "engages in international terrorism or activities in preparation therefor," and allowing the statute's definition of an "agent of a foreign power" to apply to suspects who, well, aren't. Justice Department officials say they've never used that power, but they'd like to keep it the arsenal just in case.

As with so many of the post-9/11 intelligence reforms, the lone wolf provision has its genesis in the misguided assumption that every intelligence failure is evidence that investigators need more power. In the aftermath of the attacks, it was initially alleged that FBI investigators who had wanted to obtain a warrant to search the belongings of so-called "20th hijacker" Zacarias Moussaoui were unable to do so because FISA lacked a "lone wolf" provision. But a blistering 2003 report from the Senate Judiciary Committee tells a very different story. It notes that on 9/11, investigators were able to obtain a conventional warrant using the exact same evidence that had previously been considered insufficient.

Worse, the Committee found that supervisors at FBI Headquarters had failed to link related reports from different field offices, or to pass those reports on to the lawyers tasked with determining when a FISA warrant should be sought. Officials in charge, the Senate discovered, fundamentally misunderstood such crucial legal standards as "probable cause" and falsely believed that they could not seek a FISA order unless a target could specifically be tied to a particular, already-recognized terror group.


While it's difficult to be an unwitting "member" of a terror group, nothing in the law requires that the contribution a lone wolf makes to terror activities be a knowing one. And while definitions of an "agent of a foreign power" applicable to citizens explicitly prohibit investigations conducted wholly on the basis of protected First Amendment activities, PATRIOT appears to permit "lone wolves" to be targeted merely on the basis of advocacy. Finally, while the criminal law requires "preparation" for terrorism to include a "substantial step" in the direction of carrying out an attack, the Justice Department has suggested that FISA's definition does not. Thus, not only may lone wolf suspects be monitored despite the absence of ties to a terror group, they may not even need to be engaged in criminal conduct.


All of these significant differences make sense in the context of spying aimed at a member of an international terrorist conspiracy. But the lone wolf provision effectively aims a Howitzer at a gnat, allowing souped-up tools designed for Al Qaeda and the KGB to be used against people more reasonably seen as criminal suspects-and in the process, against any Americans who happen to have interactions with them.

Click here to read the article in its entirety.

What's important about the "Lone Wolf" provision to keep in mind for the purposes of the debate taking place in the Senate is that of the two competing reform proposals offered up by Sen. Patrick Leahy and Sen. Russ Feingold, it is only Feingold's that allows this authority to expire entirely.

To read more about Senator Feingold's Justice Act, and how he proposes to deal with so many of the Patriot Act's inherently unconstitutional provisions, go here.

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