In another example of what has become business as usual, Congress and the Obama administration have abdicated their responsibilities to actually address a difficult issue. After much posturing and lengthy, meaningless rhetoric, they essentially did nothing regarding the Patriot Act.
Most of the verbal heat concerned the National Security Agency’s collection of telephone meta data, but three specific provisions of the USA Patriot Act have expired. In addition to losing the ability to collect bulk telephone data, law enforcement also lost ordinary court orders for business records, “roving” wiretaps and wiretaps of “lone wolf” terrorists. Because of their inaction, we are at greater risk.
Our leaders fail to understand the difference between a criminal investigation and an intelligence investigation, specifically a counterintelligence or counterterrorism investigation. A routine criminal investigation is conducted after a specific crime has occurred and seeks to prove who committed the crime and often, to a lesser extent, why the crime was committed.
The purpose of an intelligence investigation is to gather information without the knowledge of the entity who “owns” the information so that information can help our leaders make decisions. There is sometimes a degree of specificity in targeting the information sought, but it generally deals with the unknown. A counterterrorism investigation starts from the premise that a danger exists, but little more is known. The goal is to prevent the harm from happening. Initially, more stringent targeting is impossible. Information must be collected and analyzed with the hope that more definitive targeting can be determined. It is by necessity a vacuum cleaner on a fishing expedition.
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Of course. Innocent people are sometimes touched by criminal investigations, too, but due to the necessity “to fish” it may happen more frequently in intelligence investigations. Conducting an intelligence investigation is like building a mosaic without knowing what the final piece is supposed to look like.
The Foreign Intelligence Surveillance Act of 1978 was specifically written to address the procedures available to conduct physical and electronic surveillance to gather intelligence information and the legal standard that must be met. The U.S. Congress recognized the need to collect such information and also recognized the differences between intelligence investigations and criminal investigations. The lawful standards established for surveillance in an intelligence investigation are different and less stringent from those required to authorize the same techniques in a criminal investigation. FISA also established the FISA Court to authorize and oversee the use of collection techniques by law enforcement and intelligence agencies.
The National Security Agency collected the telephone number called from, telephone number called, date of call and duration of call. No identifying data were listed. No conversations were recorded or listened to. A very limited number of U.S. government employees had supervised access to this information. Not a single instance of misuse of this data has occurred. While not needed in every intelligence investigation, this information can be invaluable in discovering patterns and additional associations. We no longer have this capability.
Roving wiretaps were authorized and commonly used in criminal investigations. This allowed for court-authorized electronic surveillance to continue on subjects even if they changed phones. This was not authorized in intelligence investigations until the Patriot Act was passed. It’s easy to see the value in this tool. We no longer have this tool.
The original FISA authorized surveillance only against a foreign power or agent of a foreign power. This did not cover “lone wolf” types of subjects, so the problem was fixed. With the rise of ISIS and its continued attempts to recruit lone wolf terrorists, it is apparent that we are now at greater risk because we lost this tool.
The questions people should ask themselves are: What would I do if I were in charge? Would I use every technological tool available?
The 9/11 Commission in its findings stated, “The most important failure was one of imagination. We do not believe leaders understood the gravity of the threat.”
Stephen C. Miller is a retired special agent with the U.S. Department of Defense. From September 2001 to 2005, he was a member of the FBI Joint Terrorism Task Force in Raleigh.