Keeping Lone Wolves from the Door

Keeping Lone Wolves from the Door
Why Congress should not renew the PATRIOT Act's "lone wolf" provision

Julian Sanchez
October 5, 2009

The USA PATRIOT Act, a vast expansion of the American intelligence community's search and surveillance powers, was passed in haste in the wake of the 9/11 terror attacks. Now a new administration may finally have given Congress the leisure to repent. Last month, lawmakers on both sides of Capitol Hill held hearings to consider three important surveillance provisions slated to "sunset" at the end of the year. The Obama administration has requested that all three be renewed, but also announced its willingness to consider "modifications to provide additional protection for the privacy of law abiding Americans."  Some prominent Democrats see the coming legislative tussle over whether and how to renew those provisions as an opportunity to finally halt the runaway expansion of executive snooping authority, from National Security Letters to secret "sneak-and-peek" searches.

Competing reform proposals have been offered up by Sen. Patrick Leahy (D-Vt.) and Sen. Russ Feingold (D-Wis). While Feingold's bill is by far the more sweeping; like Leahy's it provides for the renewal of roving wiretap authority and expansive powers to acquire business records and other "tangible things," albeit with extensive modifications to strengthen oversight. But unlike Leahy's bill, Feingold's wisely allows the PATRIOT Act's so-called "lone wolf" authority to expire entirely.

The extraordinary tools available to investigators under the Foreign Intelligence Surveillance Act (FISA), passed over 30 years ago in response to revelations of endemic executive abuse of spying powers, were originally designed to cover only "agents of foreign powers." The PATRIOT Act's "lone wolf" provision severed that necessary link for the first time, authorizing FISA spying within the United States on any "non-U.S. person" who "engages in international terrorism or activities in preparation therefor," and allowing the statute's definition of an "agent of a foreign power" to apply to suspects who, well, aren't. Justice Department officials say they've never used that power, but they'd like to keep it the arsenal just in case.

Courts have generally been extraordinarily deferential to the executive in the realm of foreign intelligence, and have suggested that the Fourth Amendment's protections against warrantless searches apply only weakly, if at all, in this context. But when it comes to domestic national security investigations, a unanimous Supreme Court has ruled that the usual restrictions remain largely intact. The court clearly saw the involvement of a "foreign power" as providing the distinction between the world of the criminal law's Fourth Amendment protections and the hazy arena where the executive enjoys far greater latitude. The "lone wolf" provision recklessly blurs that line, defying the common sense meaning of an "agent of a foreign power," and giving investigations that belong in the first world a dubious statutory foothold in the second.

Julian Sanchez is a research fellow at the Cato Institute and a contributing editor of Reason.

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