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Accused terror-plotter Khalid Aldawsari will not have access to
classified materials detailing how and why he was monitored under the
Foreign Intelligence Surveillance Act, a federal judge in Texas ruled earlier this month.
Aldawsari had hoped to argue that the evidence against him derived from
electronic surveillance and physical searches should be surpressed,
either because the surveillance was improperly conducted or because the
FISA warrants authorizing it were improperly obtained.
Aldawsari’s argument was straightforward: The broad powers available
under FISA are only supposed to be used when the government is seeking
“foreign intelligence” about an “agent of a foreign power.” Since
Aldawsari is being accused of acting independently to plan an act of
strictly domestic terrorism, only the usual tools
available—under more stringent standards—for ordinary criminal
investigations should have been available. Judge Sam Cummings rejected
this argument following his own review of the classified evidence in
closed chambers: Not only did the FBI have probable cause at the time of
their investigation to believe Aldawsari was an “agent of a foreign
power,” the judge found that Aldawsari did in fact meet FISA’s definition of an “agent of a foreign power.” The mystery is: How?
The natural answer is is the controversial “Lone Wolf” provision,
allowing even a totally independent non-citizen who “engages in
international terrorism or activities in preparation therefore” to be
targeted under FISA as an “agent of a foreign power.” Aldawsari would
seem to be a natural. But there are a few big problems. First and most
importantly, the acting head of the Justice Department’s National
Security Division testified after
Aldawsari’s indictment that the provision had never been invoked.
Second, it would at least be a legally disputable point whether
Aldawsari’s alleged plot met the definition of international terrorism. Third, it would be unusual and arguably improper for the court to find not just that federal agents had probable cause to believe Aldawsari was engaged in international terrorism, but that he was engaged in international terrorism
when this is precisely what the trial is supposed to prove. However
damning the evidence, the court is not supposed to commit itself to
Aldawsari’s guilt at this stage of the process: It would have been
enough to rule that investigators had probable cause for this belief.
But if it’s not the Lone Wolf
provision that qualified Aldawsari for FISA surveillance, what did? All
the government’s public statements so far have hewed to the line that he
acted alone, after all. One possibility is the he was part of
some larger terror group, but the government is publicly pretending
ignorance about this fact in hopes that the other members will be lulled
into a false sense of security, under the mistaken belief that the
government never obtained Aldawsari’s communications with them. This
doesn’t seem likely—Aldawsari’s accomplices would have to be incredibly
stupid for this stratagem to work—but it’s possible.
The final possibility—and perhaps the most probable—is that Aldawsari really was acting alone, and qualifies as an “agent of a foreign power” for reasons completely unrelated
to his planned terrorism. Aldawsari was in the United States on a
student visa and his studies were sponsored by a Saudi corporation that
goes conspicuously unnamed in all the court documents surrounding this
case even though many other companies are specifically identified. The identify of that company is no mystery, though: Aldawsari noted on his blog, and it has been reported in the press, that the company in question is SABIC,
a petrochemicals giant run and substantially owned by the Saudi royal
family. SABIC almost certainly counts as a “foreign power” for FISA
purposes, since it is effectively controlled by a foreign state, even if
we assume everything the company does is legal and legitimate.
Aldawsari would then automatically qualify as an “agent of a foreign
power” himself if he were regarded as an “officer or employee” of
SABIC. Since he was receiving a stipend from the company to pursue
studies that would naturally prepare him to work for SABIC, this
characterization hardly seems like a stretch.
If this last scenario is correct, however, it ought to at least give
us a bit of pause: If the basis for classifying Aldawsari as an agent of
a foreign power susceptible to FISA is just that he was one of dozens
of SABIC-sponsored students, then that would sound rather like
finding a loophole to invoke FISA’s broad powers for what was ultimately
a straightforward criminal investigation. That’s precisely the sort of
thing many people worried about when the Patriot Act allowed FISA to be
used whenever there was a “significant” foreign intelligence purpose for
surveillance. The previous standard had required foreign
intelligence—as opposed to ordinary criminal investigation—to be the
“primary purpose.”
Obviously there’s a lot of missing information here: The judge and
the government have facts about this case that the rest of us don’t, and
there may well be a simple explanation for why this was a wholly
unobjectionable use of FISA. But it is a reminder that people outside
the government ultimately have no idea how surveillance
decisions under FISA are made in practice, and no opportunity to judge
whether the standards employed are adequate to a free society under the
rule of law. Nor are we likely to have any idea soon: As Judge
Cummings’ opinion notes, no court has ever allowed access to these
materials—and indeed, only an absurdly tiny fraction of the people
subject to FISA surveillance are ever indicted or tried at all. The
general citizenry simply has to trust that the government is using these
powers in a manner we would accept if it were subject to public
scrutiny.
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