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50 Vill. L. Rev. 425 (2005)


In December 2004, Congress adopted an important change to the statutory framework authorizing domestic surveillance of foreign powers and their agents, the Foreign Intelligence Surveillance Act (FISA). The change, directly prompted by the events of September 11, 2001, makes it easier for the government to conduct surveillance of so-called lone wolf terrorists - that is, terrorists who act in sympathy with the aims of an international terrorist group but not on its behalf, or terrorists whose link to an international terrorist group cannot be demonstrated.

Although the logic of the lone wolf amendment at first seems quite compelling, the amendment offers a fascinating lens through which to examine the current state of foreign intelligence surveillance law and highlights some of the critical questions facing Congress as the December 31, 2005, sunset date for many of the post-9/11 changes to surveillance law (including the lone wolf amendment itself) approaches. As a substantive matter, the lone wolf change goes to the heart of the constitutional issues that the foreign intelligence surveillance framework presents. More important, the lone wolf amendment underscores the critical need for Congress to rethink not only FISA's scope and substantive standards, but also its information structure - the institutional mechanisms designed to generate the information necessary for evaluation of how FISA is being implemented. This Article argues that maintaining a well-functioning - and publicly acceptable - framework for foreign intelligence gathering in the United States requires a careful focus on the framework's information structure. At the time of FISA's passage, Congress recognized that fact. As the foreign intelligence surveillance framework has shifted and expanded over nearly three decades, however, Congress's attention to FISA's information structure has been haphazard and episodic. This Article presents specific reforms to FISA's information structure that Congress should consider as the sunset date approaches.


Reprinted with permission of Villanova Law Review, 50 Vill. L. Rev. 425 (2005) .



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