Sex and the Single Wolf

Are there really any “lone wolves” engaging in dangerous terrorist liaisons? That’s what some opponents of section 6001(b) of the USA PATRIOT Act are asking.

Lots of Democrats now concede that Congress overreacted a bit after the 9/11 terrorist attacks to give sweeping authority to the FBI to conduct various kinds of sneaky searching and snooping without the usual kinds of reasonable suspicion of criminal wrongdoing normally required. But Democratic lawmakers can’t seem to agree whether the terrorists ever really act alone.

The whole idea of lone wolves prowling the forest seeking to attack innocent Americans apparently sprang up after some Republicans claimed that the FBI hadn’t been able to access the computer of Zacharias Moussaoui, the alleged 20th hijacker, because it couldn’t connect him to a known terrorist group. The Foreign Intelligence Surveillance Act, or FISA, requires the government to show that the target of surveillance has some connection to a foreign terrorist group in order to obtain a warrant. In response, the “lone wolf” theory — together with section 6001(b) of the Patriot Act — was born.

But in 2003, as Julian Sanchez writes in Reason magazine, the Senate Judiciary Committee revealed that in fact, the FBI’s failure to get a warrant wasn’t because Congress hadn’t believed in and adequately prepared for lone wolves, but because the FBI had failed to connect the dots: related reports from different FBI field offices that should have alerted any reasonably informed FBI agent that Moussaoui was linked to terrorism were ignored, and the FBI failed to use the powers it had. Still, Congress went ahead and granted it more.

Now, under its “lone wolf” provision, the Patriot Act “appears to permit ‘lone wolves’ to be targeted merely on the basis of advocacy,” writes Sanchez. “Finally, while the criminal law requires ‘preparation’ for terrorism to include a ‘substantial step’ in the direction of carrying out an attack, the Justice Department has suggested that FISA’s definition does not. Thus, not only may lone wolf suspects be monitored despite the absence of ties to a terror group, they may not even need to be engaged in criminal conduct.”

At a recent Senate Judiciary Committee hearing, Justice Department official David Kris acknowledged that the FBI has never actually used the “lone wolf” provision, but insisted that it’s necessary in case it decides it needs it in the future.

The purpose of FISA, of course, is to expand law enforcement’s surveillance powers beyond what they can usually use to monitor ordinary criminal suspects. But Sanchez argues that the “lone wolf” provision seems to blur that distinction: “The lone wolf provision effectively aims a Howitzer at a gnat, allowing souped-up tools designed for Al Qaeda and the KGB to be used against people more reasonably seen as criminal suspects-and in the process, against any Americans who happen to have interactions with them.”