 In briefing the Department of Defense (DoD) the then Secretary of Defense, Donald Rumsfeld stated, “Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns -- the ones we don't know we don't know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.” (citation).
Irrespective of your feelings about the Foreign Intelligence Surveillance Act of ‘78 (FISA) or the U.S. Patriot Act, I would argue that the most misunderstood concepts in discussing FISA and the Patriot Act concerns the idea of the “lone wolf” that is, the nongovernmental, non-affiliated, independent, international terrorist, waging a “personal war” against the United States.
To begin, I’m a theorist so I’m not going to get bogged down in the legalistic jargon and bore you to death by complicating the discussion. However, it’s important to recognize, in attempting to understand the connection between the lone wolf and Rumsfeld’s notion of the unknown unknowns, is to understand that much of the debate surrounds the conflict between implementing FISA or a traditional title iii criminal warrant in pursuing an alleged independent international terrorist, aka the lone wolf.
If, after attaining a federal judge’s approval, a terrorist investigation unit decides to begin electronic surveillance of a possible terrorist, the laws governing how that investigation should be conducted are stipulated within the 1978 Foreign Intelligence Surveillance Act, which expands judicial oversight in those matters concerning the acquisition of foreign intelligence.
Simple enough.
Now, the goal is to, “ensure that procedures established in FISA are reasonable and in relation to legitimate foreign counterintelligence requirements and the protective rights of individuals. Their reasonableness depends, in part, upon an assessment of the difficulties of investigating activities planned, directed and supported from abroad by foreign intelligence services and foreign-based international terrorist groups” (emphasis added) (citation). Note, probable affiliation is sufficient and proof of actual affiliation is not required.
Here’s what all the fuss is about…if, after there is just cause to seek federal approval to initiate electronic surveillance under FISA, which is then granted by a federal judge, the investigative unit links a particular terrorist to the “group” all the better, evidence is gathered, a case is made and hopefully arrests are made. If, however, based on the assumption that the potential terrorist is connected to a larger terrorist organization, in collecting their evidence, the investigators fail to associate the individual potential terrorist with a group of terrorists, then many argue simply to arrest the individual under a title iii criminal warrant and all is good.
The argument, then, becomes if he (the potential terrorist) is affiliated with a group the FISA order will govern how that evidence will be collected. Once additional members are exposed and cells identified, infiltration becomes increasingly possible. However, if no connection is established, the argument is to simply arrest him as usual. In either case, a lone wolf amendment to the ’78 FISA is superfluous.
As a justification in denying the validity of the lone wolf amendment, Suzanne E. Spaulding stated, “Individuals acting entirely on their own simply do not implicate the level of ''foreign and military affairs'' that justify the use of this extraordinary foreign intelligence tool.” (citation).
Here’s where it gets complicated, if in an attempt to obtain a FISA order the investigative unit has probable cause to believe that the individual is connected to an international terrorist group, only to discover that the individual is not, it is not simply that a title iii criminal warrant can be used to arrest the individual, the question surrounding the lone wolf provision speaks more to the condition with which the investigative unit acquired federal approval in granting FISA electronic surveillance orders, than it does to the individuals arrest.
If the merit for surveillance is based on the probable association with an international terrorist group and it is later discovered that that connection cannot be empirically established, then as the old adage goes, “it is the theory that conforms to the facts and not the facts to the theory.” The fact is there are instances in which probable cause, which lead to the FISA order is undermined by the fact that the probable cause was misguided. The target has no connections to any international terrorist bodies.
Clearly, this is not so much a discussion about the warrantableness of using “extraordinary foreign intelligence” with reference to an individual terrorist, as it is a discussion about safeguarding the rights of individuals alleged to have been engaged with international terrorist groups. I do not view the lone wolf provision as superfluous or as giving the individual as much credit as a sovereign body, rather, at least in my understanding of the amendment, I view the provision as a nod to caution. Individual rights should be protected, even the rights of alleged terrorists. The lone wolf amendment does not hamper FISA’s effectiveness and discussing title iii criminal warrants misses the discussion entirely, as the discussion about the lone wolf and FISA pertains to the justificatory mechanisms in place to breach privacy, especially in relation to electronic surveillance and foreign intelligence. Thus, all discussions about title iii criminal warrants are completely off base since privacy has already been breached and we should instead focus on the issue at hand, namely, answering the following question:
“What are the justificatory mechanisms in place to warrant the issuance of a FISA order on the basis of probable international terrorist affiliation, when after gathering empirical evidence, no connections to others have been established?” That is the question.
Thus, to use Rumsfeld’s phrase, the unknown unknown manifests in this discussion of FISA and the lone wolf amendment because we do not know, at least I haven’t clearly heard anyone articulate, what the justificatory mechanisms are to account for this gap between probability and actuality, and we also don’t know how one justifies the issuance of a FISA order, which is substantiated by probable links to international terrorism once investigative units fail to establish the necessary links. Thus, on what basis were those links originally sufficient to warrant the FISA order but insufficient to prove terrorist group activity?
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