Almost four years ago, I wrote the following in a post on lone shooters:
“If the violent events and subsequent reactions to those events in recent years are any indication, the law and policy communities would much prefer to mourn the dead, look for missed signs and signals, and then quickly move on to something---anything---else. Why? Because tackling the lone offender represents a very hard problem, possibly a futile one. It spans the international-domestic terrorism divide, as well as the terrorism-law enforcement divide. It involves rethinking the labels that we place on activity. Is it an act of international terrorism? (arguably Ft. Hood). Mental illness? (probably Aurora, Arizona and Virginia Tech). Domestic terrorism? (most likely the Sikh Temple in Wisconsin). Simply defies explanation or categorization? (Columbine). The results are the same; the origins, motives and causes, all different, and therefore the law enforcement and investigative methods need to be different, too.”
With the Orlando massacre, one might argue that any or all of the above causes or motives were present: the assailant appears to have claimed ISIS inspiration, and the recently released transcripts of his calls with law enforcement during the attack (redactions notwithstanding) seem to lend strong support the conclusion that he viewed his own actions as through the terrorism lens. There are many reports of mental instability or dangerous behavior, dating, perhaps, back to childhood or teenage years. He targeted a gay nightclub, adding an additional possible motive of hate.
This post intends to focus on the terrorism angle, only. Separately, there are questions about the FBI’s investigations into the assailant that require additional scrutiny from a prevention standpoint. And questions should also be asked regarding the law enforcement emergency response, and whether it followed post-Columbine active shooter protocols.
But one question, from a policy perspective, is, if investigators had wanted to obtain authorization to conduct electronic surveillance or physical search, could they have?
As I have previously described:
“[F]ollowing the September 11, 2001 attacks, and the ineffectiveness of the federal government in fully investigating Zacarias Moussaoui, Congress amended the Foreign Intelligence Surveillance Act intending to address so called "lone wolf" terrorists who could not be tied to a particular international terrorist organization. However, this provision is only available for non-U.S. person subjects, and it still requires that there be probable cause that the target of the surveillance is engaged in international terrorism activities, not a purely domestic violent act---even if that act were reasonably characterized as domestic terrorism. Accordingly, the federal statutes do not provide for authority to obtain a court order for electronic surveillance or a physical search against a potential violent offender unless there is probable cause that a crime is about to be committed. So there's one angle for further discussion and consideration: assessing whether there needs to be an electronic surveillance and/or physical search provision that is more useful in the domestic terrorism context when a threatening picture is emerging, but the crime is not yet clear. I am not at the point of suggesting that there is a good way to do this that would both provide a useful authority while maintaining appropriate protections for U.S. persons, but it certainly is worth thinking more about.”
In short, the provision was intended to address a situation where facts indicated the individual might be a potential terrorist, but investigators did not have enough facts to establish probable cause that the target was an agent of a group.
To be clear, based on the facts released publicly so far, it is not at all clear that the investigation would have been able to use a modified lone-wolf provision, even if extended to U.S. persons. Most reports so far have stated that the investigation was conducted as a preliminary investigation, not a full investigation. According to guidelines issued by the Attorney General, electronic surveillance or physical search may only be conducted if a full investigation is open.
However, ISIS of 2016 is not al Qaeda of 2004. ISIS makes greater use of the Internet, social media plays an enhanced role in recruitment and inspiration, and ISIS encourages individuals to act on its behalf, regardless of “formal” affiliation or training. Taking into account these developments - and from the perspective not of advocacy but one of discussion - if there is legislative interest in expanding the lone wolf provision of FISA in order to provide an additional investigative option for the ISIS “inspired” American-would-be terrorist, an amended provision could follow along these lines:
- The provision could be expanded to cover not just non-U.S. persons, but also U.S. persons (which includes both U.S. citizens and permanent resident aliens.)
- For U.S. persons, the duration of the surveillance authority could be shorter, requiring more frequent renewal requests to the FISC than any other provision of FISA. Currently, a U.S. person for whom there is probable cause to believe is an agent of an international terrorist group may have surveillance authorized against him for 90 days, at which point re-authorization must be provided by a judge of the FISC. A U.S. person lone wolf provision could include a shorter duration, perhaps 45 days.
- It could be worth considering whether the provision should require the matter to be presented to the same judge repeatedly, for consistency and continuity of oversight purposes. This would pose logistic issues, since FISC judges hear matters on a rotating basis, but perhaps those obstacles could be overcome if the consistency and continuity provided for more effective management of the case from the judiciary.
- Relatedly, minimization requirements could be enhanced to be more similar to federal criminal electronic surveillance matters, such as more frequent reports to the court.
Notably, amending this provision as outlined here would not address individuals suspected of plotting an act of mass killing if they are inspired by some purely domestic issue. A statutory framework addressing that type of threat would not fall under FISA. The key in amending the provision would be to enable investigators to conduct the surveillance (or search, under similar restrictions), with the purpose of possibly preventing an act of international terrorist group-inspired activity inside the U.S., but with significant judicial oversight spelled out in the law.