As Marcy Wheeler notes, the press seem to have settled on the term “lone wolf” to describe Fort Hood gunman Nidal Malik Hasan, which means it’s probably only a matter of time before we encounter a pundit or legislator who is cynical or befuddled enough (or both) to invoke the tragedy in defense of the PATRIOT Act’s constitutionally dubious Lone Wolf provision. (A “matter of time” apparently meaning the time it took me to write that sentence: We have a winner!) Though the Senate Judiciary Committee has approved a bill that would renew the measure, their counterparts in the House wisely—though narrowly—voted to permit it to expire last week.
To spare anyone tempted by this argument some embarrassment: The Lone Wolf provision is totally irrelevant to this case. It could not have been used to investigate Hasan, nor would it have been necessary.
The Lone Wolf provision permits the targeting of non-U.S. persons when there is probable cause to believe they’re preparing to engage in acts of international terrorism. Even if we assume the statutory definition of “international terrorism” could be stretched to cover the Fort Hood attack—and perhaps it could—the provision would have been inapplicable to the Virginia–born Hasan.
So were investigators powerless? Of course not. PATRIOT’s Lone Wolf clause relates only to whether the tools available under the Foreign Intelligence Surveillance Act can be invoked. Shooting people, however, is a crime even when committed for reasons having nothing to do with jihad, and the standard for obtaining a warrant—probable cause—is the same. The chief advantage of FISA tools is that they tend to be both highly secret and, in certain respects, broader than criminal investigative tools—features that are vital when dealing with trained terror agents who are working with an international network it’s important not to tip off, but not so much for “lone wolves,” who by definition lack any such network.
In fact, though, even if the most ambitious reforms proposed by Democrats had been in place, PATRIOT powers could have been brought to bear on Hasan had investigators chosen to do so. We are told, for instance, that investigators months ago became aware of Hasan’s efforts to contact al-Qaeda affiliates abroad. That alone would have provided grounds—again, under current law and under the most civil-liberties protective modifications being considered—for the issuance of National Security Letters seeking his financial and telecommunications records.
The truth is that the Lone Wolf provision didn’t help—and couldn’t have helped—stop this “lone wolf.” Indeed, it’s hard to imagine what additional powers would have been useful here given what it seems investigators already knew. As our recent history makes all too clear, what typically makes the difference between intelligence success and failure is not how much information you can get, at least past a certain point, but knowing what to do with the information you’ve got. But of course, that’s difficult to do, and doesn’t tend to be the kind of thing that can be fixed with a couple crude statutory provision you can brag about in press releases to your constituents. So pundits and legislators see a delicate information processing system failing to flag the right targets and conclude, every time, that the right solution is more juice! Turn up the voltage! Try that troubleshooting strategy with your laptop sometime and let me know how it works out.