Why Is the Lone Wolf FISA Provision Never Used? And Just How Broad is the FISC Understanding of Group Agency?

By Robert Chesney
Wednesday, June 3, 2015, 2:13 PM

Enactment of the USA Freedom Act means, among other things, that the government will continue to have the option of seeking a FISA order for electronic surveillance in the “lone wolf” scenario–i.e., the situation in which the government has probable cause to believe that a non-U.S. person target is involved in “international terrorism or activities in preparation therefor,” yet cannot show the person actually is linked to a foreign terrorist organization or other foreign power (see 18 U.S.C. 1801(b)(1)(C), which was added to FISA in 2004 by the Intelligence Reform and Terrorism Prevention Act). The funny thing is, the government apparently has not used this authority one time in the decade since it was created. As Shane Harris recently reported:

And the lone-wolf provision? It has never been used, senior administration officials told reporters in a briefing Wednesday. … An FBI spokesman told The Daily Beast that while the bureau has not yet used the lone-wolf provision, “it remains a very important tool to have in our toolbox, and one we wish to keep.” … [T]o date, the FBI has been able to establish probable cause to show that every individual who was monitored under FISA was acting on behalf of a terrorist group, the spokesman said.

Should this surprise us, bearing in mind the extent to which we have concerns about “homegrown” and “unaffiliated-but-inspired” terrorist threats? Perhaps not; the Lone Wolf option is categorically unavailable if the target is a U.S. citizen or lawful permanent resident, and that of course narrows the range of relevant occasions considerably. And yet it still is a bit surprising that there have not been at least a few occasions involving non-U.S. persons present in the U.S. and falling under the unaffiliated-but-inspired heading. Unless, of course, the FISC has an understanding of agency that is so broad that it makes it relatively easy to depict such targets simply as agents of a foreign power (even if the precise identity of the terrorist group in question is TBD). Considering how much effort has been devoted in GTMO litigation, debates, and scholarship regarding the boundaries of functional membership in AUMF-covered groups, it’s rather interesting to consider that a somewhat analogous question must have arisen frequently over the years at the FISC, as the government established probable cause to show that individuals were acting for or on behalf of various terrorist groups.

Is there a body of FISC common law on the subject, developing conceptions of group membership/agency on a fact-intensive basis over time (i.e., interpreting 1801(b))? Stands to reason that there would be, at least in the sense that an understanding may develop over time (with FISC judges, with DOJ attorneys) as to what types of conduct or ties will suffice. But that doesn’t mean that there are written opinions elaborating such matters. If I had to bet, I’d bet that there is rarely if ever the sort of meta-discussion regarding what counts as agency in the FISA setting, in contrast to the extensive judicial writing on similar points in the GTMO habeas caselaw. Of course, if there is FISC caselaw of this kind, that’s a different matter. The USA Freedom Act is now law of the land, and it includes a provision requiring disclosure of significant interpretations of FISA language. This arguably would include significant interpretations of the scope of agency under 1801(f).