I remember the morning of April 19, 1995. I was seven years old and confused by the rubble that consistently flashed across my television. Words like “Oklahoma City Bombing” hung in the air, and Timothy McVeigh became synonymous with evil. I remember the morning of September 11, 2001. I was thirteen years old and confused by the rubble that consistently flashed across my television. Words like “9/11” hung in the air, and Osama Bin Laden became synonymous with evil.
Recent decades have forced the intelligence community to monitor pendulum shifts in various expressions of terrorism. The early nineties raised questions about foreign terrorism as Al-Qaeda took responsibility for attempted bombings at the World Trade Center. The mid-nineties raised questions of domestic terrorism with the Oklahoma City Bombing. The pendulum returned to foreign terrorism after Al-Qaeda attacked U.S. embassies in Kenya and Tanzania in 1998, and, of course, the World Trade Center in 2001.
However, in the last five years, the pendulum of concern has once again swung to domestic terrorism. Mass shootings dominate the news cycle. Each violent episode gives rise to riveting discussions concerning gun violence in the United States. But rarely do these discussions consider how the United States’ current law enforcement infrastructure could be used to identify and prevent such tragedies.
Recent testimony to the House Homeland Security Committee indicates an increase in domestic terrorism incidents in recent years. In 2013, Americans suffered twenty domestic terrorism incidents. In 2014, that number grew to twenty-nine. A smaller uptick occurred in 2015, reaching thirty-eight incidents. But by 2016, that number nearly doubled to sixty-seven. In 2017 and 2018, that number stayed nearly the same—sixty-six and sixty-seven, respectively.
As a result of the alarming rise in domestic terrorism, we must ask whether the Constitution provides room for more government action against it. Policy leaders should begin by looking at various tools available to the foreign intelligence community to determine what might be legally permissible and practical in a domestic context. Obviously, not all foreign tools would be permissible for domestic use. For example, drone strikes on U.S. soil would violate constitutional due process (though the Justice Department has permitted drone strikes against U.S. citizens on foreign soil). But what about material support statutes or enhanced interrogation techniques? Each tool in the foreign intelligence community must maintain an independent legal basis for domestic application. This paper evaluates the constitutional limits of employing foreign surveillance techniques against domestic terrorism suspects.
The Constitution shields the American citizen much differently than a foreign enemy combatant. Coupled with rapidly evolving technology, the prospect of enhanced government surveillance should cause discomfort and resistance. Americans have rightly favored their freedom over their security since the days of the American Revolution. But what if we could be slightly more secure without sacrificing freedoms? Is this possible?
This paper argues that it is possible to strike such a balance. Section 702 of the Foreign Intelligence Surveillance Act (FISA) already provides the structure for constitutionally enhancing surveillance against domestic terrorism suspects. However, while this proposal falls within the boundaries of the Constitution, political concerns likely prevent its adoption. Part II of this article provides an overview of Section 702 and outlines the proposed language for its domestic counterpart. Part III then analyzes the constitutional limits on that proposal. Finally, this article identifies and addresses the political limitations that likely prevent this reform in Part IV.
By way of preface, I do not argue that adopting Section 702 into the domestic context will solve the problem of domestic terrorism. Indeed, even if passed, its implementation would face significant practical challenges for the Federal Bureau of Investigation (FBI). Rather, the goal of this paper is to encourage the intelligence community to consider whether foreign intelligence tools are appropriate for combating domestic terrorism. It may be that federal criminal statutes already provide the needed tools to address the pendulum’s return to domestic terror. Be that as it may, the goal of this proposal is more than mere navel-gazing—I simply hope to inspire a fresh conversation on what our Constitution allows, despite our political reservations.