The FBI’s quick decision Wednesday to investigate the New Orleans vehicle ramming on Bourbon Street as a terrorist attack demonstrates the importance of an FBI director with knowledge, experience and judgment.
Christopher Wray, the FBI’s director, made that decision after a man drove a pickup truck into a crowd of people during the early morning hours of New Year’s Day, killing at least 15 people and injuring dozens more. Law enforcement officials said the suspect, Shamsud-Din Jabbar, a 42-year-old U.S. Army veteran from Texas, was shot and killed at the scene by police.
The flag appears to be affiliated with the terrorist organization ISIS, giving the FBI a factual basis to investigate the crime as a terrorist act.
Authorities reported that a black flag was tied to the hitch of the truck. The flag appears to be affiliated with the terrorist organization ISIS, giving the FBI a factual basis to investigate the crime as a terrorist act. Under federal law, an international or domestic act of terrorism is defined as an unlawful act, dangerous to human life, that is intended to intimidate or coerce a civilian population or a government.
Designating an investigation as a terrorism probe is more than a symbolic act. It brings with it legal authorities that are urgently needed in this kind of investigation as law enforcement searches for potential accomplices and assesses any ongoing danger to the public. You can bet that dozens of FBI agents were called away from watching football on their couches to chase down leads to identify any criminal associates of the suspect as quickly as possible. By making the probe a terrorism case, the agents have access to investigative tools that might otherwise be unavailable.
In such quickly moving situations, sober leadership is essential. Ahead of his inauguration this month, President-elect Donald Trump has tapped Kash Patel to lead the FBI, nation’s premier law enforcement agency. But does Patel, who served a short stint as a trial lawyer in the Justice Department’s National Security Division, have the experience to understand that nuance and make these types of calls? It’s a fair question with serious national security implications.
When a federal crime is designated as an act of terrorism, the usual venue restrictions for search warrants do not apply. Ordinarily, magistrate judges may issue search warrants only for property located in the districts in which they sit. But for terrorism investigations, the Federal Rules of Criminal Procedure provide that the same judges “in any district in which activities related to the terrorism may have occurred” may also issue warrants to search property outside those districts. That procedural efficiency is important when FBI agents are urgently seeking to determine whether a suspect received assistance from any associates within the United States. In this case, the law would allow agents in New Orleans to obtain warrants to search the contents of the suspect’s phone found at the scene of the crime, as well as his home in Texas.
FISA, the Foreign Intelligence Surveillance Act, also comes into play when the FBI is investigating a case of international terrorism. If investigators can find probable cause that any associates of the New Orleans suspect are acting as agents of ISIS, FISA provides them authority to obtain warrants to search their premises, social media accounts and stored communications, such as email and text messages, which can provide a treasure trove of useful information and lead to other suspects. FISA also permits agents to conduct electronic surveillance in real time, such as wiretapping voice calls and text messages if associates are talking to one another or to associates overseas. FBI analysts may also query the collection of communications from ISIS targets overseas to see whether they have had contact with the suspect. An enterprise investigation brings with it the authority to use the full panoply of the FBI’s investigative techniques, including wiretap authority. Lastly, launching a terrorism investigation provides a basis for what is known under the Attorney General Guidelines for Domestic Operations as an “enterprise investigation.” FBI agents may investigate any group with which the suspect was associated for the purpose of engaging in international terrorism. In an enterprise investigation, agents may examine the “structure, scope, and nature of the group or organization including: its relationship, if any, to a foreign power; the identity and relationship of its members, employees, or other persons who may be acting in furtherance of its objectives; its finances and resources; its geographical dimensions; and its past and future activities and goals.” An enterprise investigation brings with it the authority to use the full panoply of the FBI’s investigative techniques, including wiretap authority. All of these tools will help the FBI ascertain whether Shamsud-Din Jabbar had any accomplices who might pose an ongoing threat to public safety — and apprehend them if necessary. And as senators consider whether to confirm Patel in the coming weeks, this case should reinforce the high stakes of the job he wishes to take on.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
