Although new facts are emerging each day, and we can anticipate that the facts will continue to develop, I have been surprised by recent commentary (this for example), suggesting that the Paris attacks are indicative of the “lone wolf” phenomenon. In my view, it is too soon to tell whether the attacks were directed, controlled, sponsored and/or inspired by an international terrorism organization. But an attack must not necessarily be directed and controlled, in order to be conducted for or on behalf of a terrorist organization. And given that there were two separate attacks the same week, conducted by multiple people, with authorities quickly identifying the individuals involved and some of their international connections, the lone wolf label strikes me as significantly off-base.
- There were two assailants in the Charlie Hebdo attack, and one assailant and possibly one or more co-conspirators in the kosher market attack;
- The Kouachi brothers, who executed the Charlie Hebdo attack, received al Qaeda training in Yemen;
- An individual with possible connections to the Paris assailants was detained in Bulgaria; and
- Al Qaeda in the Arab Peninsula (AQAP) has claimed responsibility for the attack (whether this is an accurate claim, French or U.S. authorities have not confirmed).
As far as I know, there is no domestic statute defining what constitutes a “lone wolf.” The Foreign Intelligence Surveillance Act (FISA), however, was amended by the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, so as to add a provision enabling surveillance of a so-called lone wolf.
In summary, in order to conduct electronic surveillance or physical search within the United States of a suspected lone wolf, the government must make a showing of probable cause (among other things), that the individual “engages in international terrorism or activities in preparation therefore[.]” 50 USC §1801(b)(1)(C). The provision only applies to non-U.S. persons, and does not require a factual demonstration that the targeted individual is engaging in the international terrorism activities for or on behalf of a foreign power, such as a particular international terrorism organization. If there are facts demonstrating probable cause that a potential target is acting on behalf of an international terrorism organization, then the requested authority would be presented to the Foreign Intelligence Surveillance Court (FISC) under the provision that connects the international terrorism activities with a foreign power. See 50 U.S.C. 1801(b)(2)(C).
I would suggest that FISA’s pleading structure is instructive for how these types of investigations unfold more generally: if there are facts connecting an individual or group to an international terrorist organization, investigators identify and pursue them. Armed attacks with even just the four simple bulleted facts above, very quickly start to look like something awfully different than the actions of a single unaffiliated actor.