Tag: lone wolf

Patriot Reauthorization Vote Fails… Now What?

First, the good news: Last night, civil libertarians had a rare excuse to pop champagne when an effort to fast-track a one-year reauthorization of three controversial Patriot Act provisions–set to expire at the end of the month–failed in the House of Representatives. As Slate’s Dave Weigel notes, the vote had been seen as such a sure thing that Politico headlined its story on the pending vote “Congress set to pass Patriot Act extension.” Around this time last year, a similar extension won House approval by a lopsided 315-97 vote.

Now the reality check: The large majority of representatives also voted for reauthorization last night: 277 for, 148 against. The vote failed only because GOP leadership had sought to ram the bill through under a “suspension of the rules”–a streamlined process generally used for the most uncontroversial bills, limiting debate and barring the introduction of amendments–which required a two-thirds majority for passage. Given last week’s developments in the Senate, it’s still a near certainty that the expiring provisions will be extended again before the end of the month. In fact, there’s a Rules Committee meeting today to get the bill back on the House floor. Also, while the defection of 26 Republicans who voted against reauthorization is the first real pushback against leadership we’ve seen since the GOP took the House, some of the talk that’s circulated about a Tea Party backlash against the surveillance state seems premature. As Weigel notes, just eight of the 26 Republican “no” votes were incoming freshmen, and many representatives prominently associated with the Tea Party were on the other side. Some of the resistance seems to have been generated by the fast-track approach, as there haven’t been any hearings or mark-ups on Patriot legislation.

That said, the tide does seem to be shifting somewhat. The failure of the fast-track vote means that we may see the reauthorization introduced under rules that would allow amendments aimed at remedying the civil liberties problems with the three expiring provisions, or with the still more controversial Patriot expansion of National Security Letter authority, which under current law does not expire. For those just tuning in, the sunsetting Patriot provisions are:

Lone Wolf

So-called “lone wolf” authority allows non-citizens in the U.S. who are suspected of involvement in terrorist activities to be monitored under the broad powers afforded by the Foreign Intelligence Surveillance Act (FISA), even if they are not connected to any overseas terror group or other “foreign power.” It was passed after FBI claimed the absence of “lone wolf” authority stymied efforts to monitor the infamous “20th 9/11 Hijacker”–but a bipartisan Senate report found that this failure was actually the result of a series of gross errors by the FBI, not any gap in government surveillance powers. Moreover, Lone Wolf blurs the traditional–and constitutionally significant–distinction between foreign intelligence, where the executive enjoys greater latitude, and domestic national security investigations. The way the statute is written, Lone Wolf authority is only available in circumstances where investigators would already be able to obtain a criminal terrorism wiretap. Given of the sweeping nature of FISA surveillance, that more narrow criminal surveillance authority should be employed when the special needs imposed by the involvement of a “foreign power” are not present.

Roving Wiretaps

Roving wiretap authority allows intelligence wiretap orders to follow a target across multiple phone lines or online accounts. Similar authority has been available in criminal investigations since 1986, but Patriot’s roving wiretaps differ from the version available in criminal cases, because the target of an order may be “described” rather than identified. Courts have stressed this requirement for identification of a named target as a feature that enables criminal roving wiretaps to satisfy the “particularity” requirement of the Fourth Amendment. Patriot’s roving taps, by contrast, raise the possibility of “John Doe” warrants that name neither a person nor a specific “place” or facility–disturbingly similar to the “general warrants” the Founders were concerned to prohibit when they crafted the Fourth Amendment. Given the general breadth of FISA surveillance and the broad potential scope of online investigations, John Doe warrants would pose a high risk of “overcollecting” innocent Americans’ communications. Most civil liberties advocates would be fine with making this authority permanent if it were simply modified to match the criminal authority and foreclose the possibility of “John Doe” warrants by requiring either a named individual target or a list of specific facilities to be wiretapped.

Section 215

Section 215 expanded the authority of the FISA Court to compel the production of business records or any other “tangible thing.” While previously such orders were limited to narrow classes of businesses and records, and required a showing of “specific and articulable facts” that the records sought pertain to an agent of a foreign power, Patriot stripped away those limits. The current law requires only a showing of “reasonable grounds” to believe records are “relevant” to an investigation, not probable cause, and has no requirement that people whose information is obtained be even suspected of any connection to terrorism. And the recipients of these orders are barred from Proposals to restore some of the previous checks on this power–requiring some demonstrable connection to terroris–initially received bipartisan support last year, but were torpedoed when the Justice Department objected that this limitation would interfere with a secret “sensitive collection program.” Several senators briefed on the program have expressed concern that this sweeping collection authority was being reauthorized without adequate public understanding of its true purpose.

So those are the sunsetting provisions–though a lot of the debate last year very justifiably centered on the need to reform National Security Letters, which we know to be constitutionally defective, and which have already been subject to serious abuses. One reason reform keeps getting postponed is that Congress is busy and tends not to make time for these issues until the sunset deadlines are right around the corner–at which point a reliable band of pundits and legislators imply that absolute bedlam will ensue unless every single surveillance authority is extended–meaning reform will have to wait until later, at which point it will be an emergency all over again. Once you start looking at the numbers, though, all these Chicken Littles begin to look faintly ridiculous.

The Lone Wolf provision is such an essential intelligence tool that it has never been used. Not a single time. And again, by the terms of the statute, it only applies under circumstances where a criminal wiretap warrant would already be available if Lone Wolf authority didn’t exist. Roving authority is granted by the FISA Court an average of 22 times per year, and in many (if not most) of those cases it never actually has to be used–surveillance is limited to named facilities. To put that in context, the FISA court issued 1,320 electronic surveillance orders in 2009, and that was the first time in 5 years the number fell below 2,000. So we’re talking about maybe 1 percent of FISA surveillance, which judging by internal oversight reports, is a good deal less than the portion that ends up sitting untranslated for months anyway. Similarly, there were 21 business records orders under §215 issued in 2009–and remember, that authority doesn’t disappear if this provision sunsets, it just reverts to its narrower, pre–Patriot version, where the court needs to see actual evidence that the records have some connection to a suspected terrorist. Surveys by the Inspector General’s office found no instances in which a major case development resulted from 215 information. The idea that we’d somehow be in grave danger if these provisions lapsed for a few months just doesn’t hold up, but there’s no reason Congress can’t pass a two-month extension while they consider some of the reforms already on the table, just as they did last year.

So let’s stop living in a state of perpetual panic. Some of these provisions we’d be better off without. Some, like roving wiretaps, just need minor tweaks to close loopholes for misuse. Some–I’m looking at you, National Security Letters–require substantial reform. Many of these changes ought to be common sense, and have attracted bipartisan support in the past. But let’s stop kicking the can down the road and saying we’ll debate the proper limits on the surveillance state when there’s time. It’s important enough that Congress can make time.

Every Time I Say “Terrorism,” the Patriot Act Gets More Awesome

Can I send Time magazine the bill for the new crack in my desk and the splinters in my forehead? Because their latest excretion on the case of Colleen “Jihad Jane” LaRose and its relation to Patriot Act surveillance powers is absolutely maddening:

The Justice Department won’t say whether provisions of the Patriot Act were used to investigate and charge Colleen LaRose. But the FBI and U.S. prosecutors who charged the 46-year-old woman from Pennsburg, Pa., on Tuesday with conspiring with terrorists and pledging to commit murder in the name of jihad could well have used the Patriot Act’s fast access to her cell-phone records, hotel bills and rental-car contracts as they tracked her movements and contacts last year. But even if the law’s provisions weren’t directly used against her, the arrest of the woman who allegedly used the moniker “Jihad Jane” is a boost for the Patriot Act, Administration officials and Capitol Hill Democrats say. That’s because revelations of her alleged plot may give credibility to calls for even greater investigative powers for the FBI and law enforcement, including Republican proposals to expand certain surveillance techniques that are currently limited to targeting foreigners.

Sadly, this is practically a genre resorted to by lazy writers whenever a domestic terror investigation is making headlines. It consists of indulging in a lot of fuzzy speculation about how the Patriot Act might have been crucial—for all we know!—to a successful  investigation, even when every shred of available public evidence suggests otherwise.  My favorite exemplar of this genre comes from a Fox News piece penned by journalist-impersonator Cristina Corbin after the capture of some Brooklyn bomb plotters last spring, with the bold headline: “Patriot Act Likely Helped Thwart NYC Terror Plot, Security Experts Say.” The actual article contains nothing to justify the headline: It quotes some lawyers saying vague positive things about the Patriot Act, then tries to explain how the law expanded surveillance powers, but mostly botches the basic facts.  From what we know thanks to the work of real reporters,  the initial tip and the key evidence in that case came from a human infiltrator who steered the plotters to locations that had been physically bugged, not new Patriot tools.

Of course, it may well be that National Security Letters or other Patriot powers were invoked at some point in this investigation—the question is whether there’s any good reason to suspect they made an important difference. And that seems highly dubious. LaRose’s indictment cites the content of private communications, which probably would have been obtained using a boring old probable cause warrant—and the standard for that is far higher than for a traditional pen/trap order, which would have enabled them to be getting much faster access to more comprehensive cell records. Maybe earlier on, then, when they were compiling the evidence for those tools?  But as several reports on the investigation have noted, “Jihad Jane” was being tracked online by a groups of anti-jihadi amateurs some three years ago. As a member of one group writes sarcastically on the site Jawa Report, the “super sekrit” surveillance tool they used to keep abreast of LaRose’s increasingly disturbing activities was… Google. I’m going to go out on a limb and say the FBI could’ve handled this one with pre-Patriot authority, and a fortiori with Patriot authority restrained by some common-sense civil liberties safeguards.

What’s a little more unusual is to see this segue into the kind of argument we usually see in the wake of an intelligence failure, where the case is then seen as self-evidently justifying still more intrusive surveillance powers, in this case the expansion of the “lone wolf” authority currently applicable only to foreigners, allowing extraordinarily broad and secretive FISA surveillance to be conducted against people with no actual ties to a terror group or other “foreign power.” Yet as Time itself notes:

In fact, Justice Department terrorism experts are privately unimpressed by LaRose. Hers was not a particularly threatening plot, they say, and she was not using any of the more challenging counter-surveillance measures that more experienced jihadis, let alone foreign intelligence agents, use.

Which, of course, is a big part of the reason we have a separate system for dealing with agents of foreign powers: They are typically trained in counterintelligence tradecraft with access to resources and networks far beyond those of ordinary nuts. What possible support can LaRose’s case provide for the proposition that these industrial-strength tools should now be turned on American citizens?  They caught her—and without much trouble, by the looks of it. Sure, this domestic nut may have invoked to Islamist ideology rather than the commands of Sam the Dog or anti-Semitic conspiracy theories… but so what? She’s still one more moderately dangerous unhinged American in a country that has its fair share, and has been dealing with them pretty well under the auspices of Title III for a good while now.

A Preemptive Word on “Lone Wolves”

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.

If You Can’t Trust a Spy, Who Can You Trust?

As I noted last week, it looks like top Democrats in the Senate are folding on even fairly mild PATRIOT Act reform for fear of disrupting ongoing investigations—and in particular a “sensitive collection program” involving Section 215 “tangible things” orders. The impulse to defer to executive branch claims of necessity is powerful, and even understandable, but it ought to be resisted. We normally impose neutral magistrates between law officers and search warrants precisely because we understand that the investigators, precisely because of the admirable vigor and single-mindedness we want and expect from them, are not necessarily the best judges of how much power they require.  The classic “not enough power” story used to justify the so-called “lone wolf” provision turned out not to hold up under scrutiny, but as I was mulling the current debate, I suddenly remembered a curious story from my days as a tech journalist.

In July of 2005, the Bureau was investigating Magdy Mahmoud Mostafa el-Nashar, a one-time associate of the men who had recently bombed London’s public transit system. (It was soon determined that el-Nashar had not been involved in the plot.) According to a 2007 summary of the investigation, an agent was sent with a grand jury subpoena to recover records from North Carolina State University at Raleigh on July 13.

But then, it appears, something odd happened.”After receiving the subpoena,” the documents recount, the agent “served the subpoena and had some records in hand when he received a call” from his supervisor, who “had been notified by FBIHQ… that we were not to utilize a Grand Jury subpoena and that we must obtain a National Security Letter (NSL).” The agent apparently returned the records (though there appears to be some confusion about whether the agent had actually finished serving the subpoena), and the Bureau’s Charlotte office got to work drafting an NSL.

That was an exceedingly odd thing to do, because the law is totally unambiguous about the kinds of records and institutions that are subject to National Security Letters. And while they’re extraordinarily broad tools, anyone even passingly familiar with them should know they don’t apply to educational records. The school’s lawyers, doubtless perplexed about why they were getting an invalid request for records they’d already happily turned over, nevertheless properly refused to honor the illicit NSL. Agents are supposed to voluntarily report any improper NSL requests, even accidental ones, to an oversight board within 14 days. This one, for some reason, took over a year to make its way up the chain. And yet within a week of the event, FBI Director Robert Mueller was conspicuously well informed about the little mishap with el-Nashar’s school records:

A July 21 e-mail to the North Carolina office explained: “The director would like to use this as an example tomorrow as to why we need administrative subpoenas’s [sic] to fight the war on terror. In particular, he would like to know how much extra time was spent having to get the Grand Jury subpoena.”

So to review, a legally proper request is issued, the records sought are in hand, when suddenly the call comes down to give them back and use an obviously inappropriate NSL request, costing several days. The head of the bureau is instantly aware of this—though apparently not of the flagrant impropriety—and eager to cite it as evidence that, of course, investigators need more power or their vital efforts to protect us from terrorists will be stymied.

Now, I’m happy to suppose that the initial mix-up was just an honest mistake. But it also very clearly wasn’t evidence to cite in favor of the proposition that the Bureau needed broader powers. Yet nobody, at the time—neither Mueller nor the legislators before whom he testified—seemed to have the time or inclination to get particular about the facts. It was, for the purposes of all concerned, one of those stories that’s “too good to check.” Now that it has been checked, it’s a story to bear in mind when the boys at Justice cry “necessity.”