USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
USA PATRIOT Improvement and Reauthorization
Act of 2005: A Legal Analysis
Updated December 21, 2006
Brian T. Yeh
American Law Division
American Law Division
USA PATRIOT Improvement and Reauthorization
Act of 2005: A Legal Analysis
Several sections of the USA PATRIOT Act and one section of the Intelligence
Reform and Terrorism Prevention Act of 2004 were originally scheduled to expire
on December 31, 2005. In July 2005, both Houses approved USA PATRIOT
reauthorization acts, H.R. 3199 and S. 1389, and the conference committee filed a
report, H.Rept. 109-333. A separate bill, the USA PATRIOT Act Additional
Reauthorizing Amendments Act of 2006 (S. 2271), provided civil liberties safeguards
not included in the conference report. Both H.R. 3199 and S. 2271 were signed into
law (P.L. 109-177 and P.L. 109-178) by the President on March 9, 2006.
This report describes the USA PATRIOT Improvement and Reauthorization Act
of 2005 (the Act) and, where appropriate, discusses the modifications to law made
by the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006.
Consisting of seven titles, the Act, among other things:
!Makes permanent 14 of the 16 expiring USA PATRIOT Act sections
as well as the material support of terrorism amendments scheduled
to expire on December 31, 2006.
!Creates a new sunset of December 31, 2009, for USA PATRIOT Act
sections 206 and 215 (“roving” FISA wiretaps and FISA orders for
business records), and for the “lone wolf” amendment to FISA.
!Provides for greater congressional and judicial oversight of section
!Requires high-level approval for section 215 FISA orders for library,
bookstore, firearm sale, medical, tax return, and educational records.
!Enhances procedural protections and oversight concerning delayed
notice, or “sneak and peek” search warrants.
!Expands the list of predicate offenses in which law enforcement may
obtain wiretap orders to include more than 20 federal crimes.
!Revises criminal penalties and procedures concerning criminal and
terrorist activities committed at seaports or aboard vessels.
!Reenforces federal money laundering and forfeiture authority,
particularly in connection with terrorist offenses.
!Allows the Attorney General to determine whether a state qualifies
for expedited habeas corpus procedures for state death row inmates.
!Establishes a new National Security Division within the Department
of Justice (DOJ), supervised by a new Assistant Attorney General.
!Creates a new federal crime relating to misconduct at an event
designated as a “special event of national significance,” whether or
not a Secret Service protectee is in attendance.
!Intensifies federal regulation of foreign and domestic commerce in
Much of the information contained in this report may also be found under a
different arrangement in CRS Report RL33239, USA PATRIOT Improvement and
Reauthorization Act of 2005: Section-by-Section Analysis of the Conference Bill.
In troduction ..................................................1
Title I: USA PATRIOT Improvement and Reauthorization Act .........2
Temporary USA PATRIOT Act Sections Made Permanent.........3
USA PATRIOT Act Sections Still Subject to Sunset..............3
Extension of the “Lone Wolf” Amendment, and the Material Support
of Terrorism Amendments Made Permanent.................3
Section 215 FISA Orders for “Business Records”.................4
National Security Letters...................................10
Section 206 FISA “Roving” Wiretaps.........................16
Delayed Notice Search Warrants.............................18
Emergency Disclosures by Service Providers...................21
Duration of FISA Surveillance and Physical Search Orders
and Congressional Oversight Of Their Usage...............21
Information Related to FISA Pen Register and Trap & Trace
Additions to the Definition of Federal Crime of Terrorism.........24
Expanded List of Predicate Offenses For Wiretaps...............24
Attacks Against Railroad Carriers and Mass Transportation
Title II: Terrorist Death Penalty Enhancement Act of 2005............30
Pre-1994 Capital Air Piracy Cases............................30
Life Time Supervised Release Regardless of Risks...............31
Capital Procedures in Drug Cases............................32
Appointment of Counsel in Capital Cases......................32
Title III: Reducing Crime and Terrorism at America’s Seaports Act
Seaport Entry by False Pretenses.............................33
Obstructing Maritime Inspections............................35
Interference with Maritime Commerce........................35
Transporting Dangerous Materials or Terrorists.................36
Interference With Maritime Navigation........................37
Theft From Maritime Commerce.............................40
Port Security Bribery......................................41
Smuggling Goods Into the United States.......................41
Smuggling Goods From the United States......................41
Title IV: Combating Terrorism Financing Act of 2005................42
International Emergency Economic Powers Act Penalties.........42
Terrorist Money Laundering................................42
Forfeiture for Foreign Crimes...............................44
Money Laundering Through “Hawalas”.......................45
Civil Forfeiture Pre-trial Freezes and Restraining Orders..........46
Laundering the Proceeds of Foreign Terrorist Training............47
Uniform Procedures for Criminal Forfeitures...................47
Justice Department Residency Requirements...................49
Appointment of U.S. Attorneys..............................49
Presidential Succession: Homeland Security Secretary............49
Confirmation of the Director of BATFE.......................50
Qualifications for U.S. Marshals.............................50
New National Security Division of the DOJ and new Assistant
Habeas Corpus in State Capital Cases.........................54
Title VI: Secret Service Authorization and Technical Modification Act
Protection of the President and Certain Other Federal Officials.....56
Special Events of National Significance.......................57
Use of False Credentials to National Special Security Events.......59
Forensic and Investigative Support of Missing and Exploited
Secret Service Uniformed Division...........................61
Secret Service as a Distinct Entity............................62
Exemptions from the Federal Advisory Committee Act...........62
Title VII: Combat Methamphetamine Epidemic Act of 2005...........63
Domestic Regulation of Precursor Chemicals...................63
International Regulation of Precursors........................67
Enhanced Criminal Penalties for Meth Production and Trafficking..67
Enhanced Environmental Regulation of Methamphetamine
Drug Courts and Grant Programs.............................70
USA PATRIOT Improvement and
Reauthorization Act of 2005:
A Legal Analysis
By operation of section 224 of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA1
PATRIOT Act) of 2001, several of the USA PATRIOT Act’s amendments to the
Foreign Intelligence Surveillance Act (FISA)2 and the Electronic Communications3
Privacy Act (ECPA) concerning law enforcement and intelligence investigative
tools, were originally scheduled to expire on December 31, 2005.4 Section 6001(a)
of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004
(concerning “lone wolf” terrorists) was also scheduled to sunset on that date.
Without any legislative action, these provisions as well as amendments to them
would have ceased to exist after the sunset date, and most of the pre-existing
provisions of law would have been revived automatically.
During the 109th Congress, the House and Senate each passed USA PATRIOT
Reauthorization Acts, H.R. 3199 and S. 1389 respectively,5 which made permanent
14 of the 16 expiring USA PATRIOT Act sections and extended the sunset on
section 206 (regarding FISA court orders for multipoint, or “roving,” wiretaps) and
section 215 (access to business records requested under FISA), as well as the sunset
on section 6001(a) of IRTPA. The two bills differed in several respects, including
the new sunset date (under S. 1389, December 31, 2009, while H.R. 3199 offered a
ten-year extension to December 31, 2015). On December 8, 2005, House and Senate
1 P.L. 107-56, 115 Stat. 272 (2001).
2 50 U.S.C. 1801-1862.
3 18 U.S.C. 2510-2522, 2701-2712, 3121-3127.
4 115 Stat. 295 (2001).
5 H.R. 3199 was introduced by Representative Sensenbrenner; S. 1389 by Senator Specter
for himself and Senators Feinstein and Kyl. H.R. 3199 was reported by committee, H.Rept.
109-174, and initially passed the House on July 21, 2005, 151 CONG. REC. H6308-309 (daily
ed. July 21, 2005). The Senate by unanimous consent substituted the text of S. 1389, as
reported by the Judiciary Committee, after striking all but the enacting clause from H.R.
reprints the House-passed bill and identifies it as H.R. 3199 as passed by the Senate, 151
CONG. REC. S9562-9579 (daily ed. July 29, 2005). For purposes of convenience, we assume
that the Senate-passed version of H.R. 3199 is S. 1389 as reported and will refer to it as S.
conference committee members filed a report representing a compromise between
the Senate version and the version passed by the House, H.Rept. 109-333 (2005).
The House agreed to the conference report accompanying H.R. 3199 on
December 14, 2005. However, with several Members of the Senate raising concerns
about the sufficiency of the conference report’s safeguards for civil liberties, the
Senate voted to reject a motion to invoke cloture on the conference report, thus
taking no action before the end of 2005. To provide the Senate with additional time
to consider the conference report, Congress enacted legislation to postpone the
expiration of the USA PATRIOT Act provisions and of IRTPA’s “lone wolf”
amendment,6 until February 3, 2006,7 and thereafter further extended the sunset until
March 10, 2006.8
On March 1, 2006, the Senate passed a separate bill, the USA PATRIOT Act
Additional Reauthorizing Amendments Act of 2006 (S. 2271), that provides three
civil liberties safeguards not included in the conference report.9 Passage of S. 2271
helped to pave the way for the Senate to invoke cloture on the conference report upon
reconsideration, and the Senate agreed to the conference report on March 2. Under
suspension of the rules, the House passed S. 2271 on March 7, and both H.R. 3199
and S. 2271 were signed into law by the President on March 9.
This report provides a summary and legal analysis of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (the “Act” or the “Reauthorization
Act”), P.L. 109-177, 120 Stat. 192 (2006), and, where appropriate, discusses the
modifications to law made by the USA PATRIOT Act Additional Reauthorizing
Amendments Act of 2006, P.L. 109-178, 120 Stat. 278 (2006). For organizational
purposes, the report is divided according to the seven titles of the Act and, within
those titles, arranged by topic headings.
Title I: USA PATRIOT Improvement and Reauthorization Act
Title I is in many ways the heart of the Act. It makes permanent most of the
USA PATRIOT Act sections that were scheduled to expire. To several, like section
215, it adds substantive changes such as civil liberties safeguards. It addresses issues
raised by USA PATRIOT Act sections other than those for which the sun was setting.
It more clearly states the “National Security Letter” provisions of law, in ways
perhaps necessary to make them constitutionally viable. Elsewhere, it looks at the
issues faced in the USA PATRIOT Act four years after the fact. In some instances
it adds to the tools available; in others it adds further checks against abuse.
6 P.L. 108-458, 118 Stat. 3742 (2004).
7 P.L. 109-160, 119 Stat. 2957 (2005).
8 P.L. 109-170, 120 Stat. 3 (2006).
9 Technically, these provisions were not amendments to the conference report itself, but
rather the bill amended specified sections of FISA and the national security letter statutes
after they have been amended by H.R. 3199.
Temporary USA PATRIOT Act Sections Made Permanent.
Section 102(a) of the Act repeals section 224 of the USA PATRIOT Act that
had mandated 16 of its sections to expire initially on December 31, 2005, and later
extended to March 10, 2006 by P.L. 109-170, 120 Stat. 3 (2006). Although the Act
adopts a new sunset date on two of the sections, as discussed below, it makes
permanent the following 14 sections:
Sec. 201 (ECPA wiretapping in certain terrorism investigations)
Sec. 202 (ECPA wiretapping in computer fraud and abuse investigations)
Sec. 203(b) (law enforcement sharing of court-ordered wiretap-generated foreign
intelligence information wiretap information)
Sec. 203(d) (law enforcement sharing of foreign intelligence information
notwithstanding any other legal restriction)
Sec. 204 (technical exception for foreign intelligence pen register/trap & trace device
Sec. 207 (duration of FISA wiretap and search orders involving agents of a foreign
Sec. 209 (seizure of stored voice mail by warrant rather than ECPA order)
Sec. 212 (communications providers emergency disclosures of communications
content or related records to authorities)
Sec. 214 (FISA pen register order amendments including extension to electronic
communications, e.g., Internet use)
Sec. 217 (law enforcement access to computer trespassers’ communications within the
Sec. 218 (FISA wiretap or search orders with an accompanying law enforcement
purpose [removal of “the wall” of separation between criminal catchers and spy
Sec. 220 (nationwide service of court orders directed to communication providers)
Sec. 223 (civil liability and disciplinary action for certain ECPA or FISA violations)
Sec. 225 (civil immunity for assistance in executing a FISA order)
USA PATRIOT Act Sections Still Subject to Sunset.
The Act adopts a sunset of December 31, 2009, for USA PATRIOT Act sections
206 (regarding FISA court orders for multipoint, or “roving,” wiretaps) and 215
(access to business records requested under FISA).10
Extension of the “Lone Wolf” Amendment, and the Material Support
of Terrorism Amendments Made Permanent.
The Act makes two changes to the Intelligence Reform and Terrorism
Prevention Act (IRTPA) of 2004, P.L. 108-458, 118 Stat. 3638 (2004). First, it
postpones the expiration of section 6001(a) of IRTPA, 118 Stat. 3742 (2004), until
December 31, 2009.11 Section 6001(a) defines an “agent of a foreign power” to
include any person, other than a United States person, who “engages in international
10 § 102(b), P.L. 109-177, 120 Stat. 195 (2006).
11 § 103, P.L. 109-177, 120 Stat. 195 (2006).
terrorism or activities in preparation therefore.”12 Thus, so-called “lone wolf”
terrorists may be subjected to foreign intelligence surveillance despite not being an
agent of a foreign power or an international terrorist organization.13
Second, the Act makes permanent section 6603 of IRTPA by repealing the
sunset provision (section 6603(g)) that would have caused the section to be
ineffective on December 31, 2006.14 Section 6603 of IRTPA amends federal law
regarding material support of terrorists and terrorist organizations, primarily in 18
U.S.C. 2339A15 and 2339B.16 Briefly, section 6603: (1) amends the definitions of
“material support or resources,” “training,” and “expert advice or assistance” as those
terms are used in 18 U.S.C. 2339A and 2339B, and of “personnel” as used in section
expands the extraterritorial jurisdiction reach of section 2339B; (4) enlarges the list
of federal crimes of terrorism, 18 U.S.C. 2332b(g)(5); (5) adds the enlarged list to the
inventory of predicate offenses for 18 U.S.C. 2339A (material support for the
commission of certain terrorist crimes) and consequently for 18 U.S.C. 2339B
(material support for designated terrorist organizations); and (6) precludes
prosecution for certain violations committed with the approval of the Secretary of
State and concurrence of the Attorney General.17
Section 215 FISA Orders for “Business Records”.
Section 215 of the USA PATRIOT Act amended the business record sections
of FISA to authorize the Director of the Federal Bureau of Investigation (FBI) or a
designee of the Director, to apply to the FISA court to issue orders granting the
government access to any tangible item (including books, records, papers, and other
documents), no matter who holds it, in foreign intelligence, international terrorism,
and clandestine intelligence cases.18 The Act contains several provisions to guard
12 50 U.S.C. 1801(b)(1)(C).
13 For more information on the “lone wolf” amendment, see CRS Report RS22011,
Intelligence Reform and Terrorism Prevention Act of 2004: “Lone Wolf” Amendment to the
Foreign Intelligence Surveillance Act, by Elizabeth B. Bazan and Brian T. Yeh.
14 § 104, P.L. 109-177, 120 Stat. 195 (2006).
15 Section 2339A outlaws providing, attempting to provide, or conspiring to provide,
material support or resources for the commission of any of several designated federal crimes
that a terrorist might commit.
16 Section 2339B outlaws providing, attempting to provide, or conspiring to provide,
material support or resources to a designated foreign terrorist organization.
17 For more information regarding section 6603 of IRTPA, see CRS Report RL33035,
Material Support of Terrorists and Foreign Terrorist Organizations: Sunset Amendments,
by Charles Doyle.
18 Section 215 authority appears to have been relatively little used. In April 2005, Justice
Department officials testified to the House Judiciary Committee that, as of March 31, 2005,
only 35 orders have been issued under section 215 authority, none of which involved library,
book store, medical, or gun sale records. Oversight Hearing on the “Implementation of the
USA PATRIOT Act: Foreign Surveillance Intelligence Act (FISA)”: Hearings Before the
against abuses of section 215 authority, including greater congressional oversight,
enhanced procedural protections, more elaborate application requirements, and a
judicial review process.
Greater Congressional Oversight. Section 106(h) of the Act directs the
Attorney General to submit to Congress an annual report regarding the use of section
215 authority. This report is to be filed with the House and Senate Committees on
the Judiciary, the House Permanent Select Committee on Intelligence, and the Senate
Select Committee on Intelligence. The annual report, due every April, must contain
the following information regarding the preceding year:
!the total number of applications made for section 215 production
orders (“215 orders”) approving requests for the production of
!the total number of such orders granted as requested, granted as
modified, or denied, and
!the number of 215 orders either granted, modified, or denied for the
production of each of the following: library circulation records,
library patron lists, book sales records, or book customer lists;
firearms sales records; tax return records; educational records; and
medical records containing information that would identify a
Prior to the Act, the law had required public disclosure of only the first two
items listed above; by adding the third reporting requirement, the Act provides for
a more detailed account of whether and when section 215 authority has been used to
request these categories of sensitive information.
Section 106A of the Act provides for the Inspector General of the Department
of Justice to conduct a comprehensive audit to determine the effectiveness, and
Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the
Judiciary, 109th Cong., 1st Sess. (2005) (statement of Kenneth L. Wainstein, U.S. Attorney
for the District of Columbia), at 8, available on Jan. 13, 2006 at
[http://judiciary.house.gov/media/pdfs/wainstein042805.pdf]. At the same time, the Justice
Department argues against the creation of a safe haven in public services that terrorists have
been known to use. Oversight Hearing on the “Implementation of the USA PATRIOT Act:
Foreign Surveillance Intelligence Act (FISA)”: Hearings Before the Subcomm. on Crime,
Terrorism, and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 1st
Sess. (2005) (statement of James A. Baker, Counsel for Intelligence Policy, Office of
Intelligence Policy and Review, U.S. Dep’t of Justice), at 3, available on Jan. 13, 2006 at
[http://judiciary.house.gov/media/pdfs/baker042805.pdf] (“While section 215 has never
been used to obtain such records, last year, a member of a terrorist group closely affiliated
with al Qaeda used Internet service provided by a public library to communicate with his
confederates. Furthermore, we know that spies have used public library computers to do
research to further their espionage and to communicate with their co-conspirators ... . A
terrorist using a computer in a library should not be afforded greater privacy protection that
a terrorist using a computer in his home.”).
19 §106(h)(2), P.L. 109-177, 120 Stat. 200 (2006), adding new 50 U.S.C. 1862(b)(3).
identify any abuses, concerning the use of section 215 authority, for calendar years
2002-2006. The audit is to be performed in accordance with the detailed
requirements set forth in this section. The results of the audit are to be submitted in
an unclassified report to the House and Senate Committees on the Judiciary and
Intelligence; for calendar years 2002, 2003, and 2004, the report is due not later than
March 9, 2007; for calendar years 2005 and 2006, the report is due not later than
December 31, 2007.
Enhanced Procedural Protections. Section 106(a)(2) of the Act adds 50
U.S.C. 1861(a)(3), requiring that an application for a 215 order for the production of
certain sensitive categories of records, such as library, bookstore, firearm sales, tax
return, educational, and medical records, must be personally approved by one of the
following three high-level officials: the FBI Director, the FBI Deputy Director, or the
Executive Assistant Director for National Security. This provision was included as
an attempt to allay concerns over federal authorities abusing section 215 authority to
obtain sensitive types of records.20
The Act also instructs the Attorney General to promulgate specific minimization
standards that apply to the collection and dissemination of information obtained
through the use of the section 215 authority.21 These procedures are intended to limit
the retention, and regulate the dissemination, of nonpublicly available information
concerning unconsenting U.S. persons, consistent with the need of the United States
to obtain, produce, and disseminate foreign intelligence information. Federal
authorities are required to observe these minimization procedures regarding the use
or disclosure of information received under a 215 order; furthermore, they may not
use or disclose such information except for lawful purposes. Finally, the Act clarifies
that otherwise privileged information does not lose its privileged character simply
because it was acquired through a 215 order.
Application Requirements and Orders. Prior to the Act’s enactment, an
application for a 215 order to be submitted to the FISA court for approval only
needed to state that the requested records were sought for an authorized investigation.
The Act amends 50 U.S.C. 1861(b)(2) to require that such an application must
include a “statement of facts” demonstrating that there are reasonable grounds to
believe that the tangible things sought are “relevant” to an authorized or preliminary
investigation to protect against international terrorism or espionage, or to obtain22
foreign intelligence information not concerning a U.S. person. Section
20 50 U.S.C. 1861(a)(2)(B) already prohibits the government from seeking a section 215
order in an investigation of a U.S. person solely upon the basis of activities protected by the
First Amendment to the U.S. Constitution. For more information about section 215 under
existing law and its potential use against libraries or their patrons, see CRS Report
RS21441, Libraries and the USA PATRIOT Act, by Charles Doyle and Brian T. Yeh.
21 §106(g), P.L. 109-177, 120 Stat. 198, 199 (2006), adding new 50 U.S.C. 1861(g).
22 The “relevancy” standard set forth in the Act was criticized by several Members of
Congress during the floor debate on the conference report. See, e.g., 152 CONG. REC. S1382
(daily ed. Feb. 16, 2006) (statement of Sen. Feingold) (“Relevance is a very broad standard
that could arguably justify the collection of all kinds of information about law-abiding
106(b)(2)(A) of the Act also provides that certain tangible items are “presumptively
relevant” to an investigation if the application’s statement of facts shows that the
items sought pertain to:
!a foreign power or an agent of a foreign power,
!the activities of a suspected agent of a foreign power who is the
subject of such authorized investigation, or
!an individual in contact with, or known to, a suspected agent of a
foreign power who is the subject of such authorized investigation.
Finally, the application for a 215 order must include an enumeration of the
minimization procedures applicable to the retention and dissemination of the tangible
The FISA court judge shall approve an application for a 215 order as requested
or as modified, upon a finding that the application complies with statutory
requirements. The order must contain a particularized description of the items
sought, provide for a reasonable time to assemble them, notify recipients of
nondisclosure requirements, and be limited to things subject to a grand jury subpoena
or order of a U.S. court for production.24 The ex parte order shall also direct that the
retention and dissemination of the tangible things obtained under the order must
adhere to the minimization procedures.
Judicial Review and Enforcement. Section 106(f) of the Act establishes
a detailed judicial review process for recipients of 215 orders to challenge their
legality before a judge selected from a pool of FISA court judges. If the judge
determines that the petition is not frivolous after an initial review, the judge has
discretion to modify or set aside a FISA order upon a finding that it does not comply25
with the statute or is otherwise unlawful. However, if the judge does not modify
or rescind the 215 order, then the judge must immediately affirm the order and direct
the recipient to comply with it.
Americans.”). The Senate-passed version of the USA PATRIOT Improvement and
Reauthorization Act, S. 1389, required that the statement of facts show that the records or
things sought are relevant to an authorized investigation and that the things sought pertain
to, or are relevant to the activities of, a foreign power or agent of foreign power, or pertain
to an individual in contact with or known to a suspected agent of a foreign power. The Act
does not require such a connection. For more information about the Senate-passed version
of the Act, see CRS Report RL33027, USA PATRIOT Act: Background and Comparison of
House- and Senate-Approved Reauthorization and Related Legislative Action, by Charles
23 §106(b), P.L. 109-177, 120 Stat. 196 (2006), adding new 50 U.S.C. 1861(b)(2)(B).
24 §106(d), P.L. 109-177, 120 Stat. 197 (2006), amending 50 U.S.C. 1861(c)(2).
25 §106(f)(2), P.L. 109-177, 120 Stat. 198 (2006), adding new 50 U.S.C. 1861(f)(1). The
review of a petition challenging a 215 order shall be conducted in camera, new 50 U.S.C.
The FISA Court of Review and the U.S. Supreme Court are granted jurisdiction
to consider appeals of the FISA court judge’s decision to affirm, modify, or set aside
a 215 order. The Chief Justice of the United States, in consultation with the Attorney
General and the Director of National Intelligence, is directed to establish security
measures for maintaining the record of the 215 order judicial review proceedings.
Nondisclosure Requirement for 215 Orders. A section 215 order is
accompanied by a nondisclosure requirement that prohibits the recipient from
disclosing to any other person that the FBI has sought the tangible things described
in the order. Prior to the Act’s enactment, the only exception to this “gag order” was26
for disclosure to those persons necessary for compliance with the production order.
The Act expands the list of exceptions, expressly permitting a recipient of a 215
order to disclose its existence to an attorney to obtain legal advice, as well as to other
persons approved by the FBI.27
Under the Act, the recipient is not required to inform the FBI or the authorized
government agency of the intent to consult with an attorney to obtain legal assistance;
however, upon the request of the FBI Director (or his designee), the recipient must
disclose to the FBI the identity of the person to whom the disclosure will be or was
made, which could include the name of the attorney.28 During the Senate debate over
the conference report, some Members of Congress raised concerns that this provision
of the Act might have an unintended “chilling effect” on the individual’s right to seek29
legal counsel regarding the Section 215 order. Thus, section 4 of the USA
PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178,
120 Stat. 280 (2006), amends FISA to exempt explicitly from the identification
disclosure requirement the name of the attorney sought to obtain legal advice with30
respect to the Section 215 production order.
26 50 U.S.C. 1861(d).
27 §106(e), P.L. 109-177, 120 Stat. 197 (2006), adding new 50 U.S.C. 1861(d)(1)(B), (C).
28 §106(e), P.L. 109-177, 120 Stat. 197 (2006), adding new 50 U.S.C. 1861(d)(2)(C).
29 See, e.g., 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu)
(“[W]e feel the provision in the conference report that required the recipient ... to disclose
the name of their attorney to the FBI was punitive and might have the result of discouraging
an individual from seeking legal advice.”).
30 Under the Act, the recipient of a Section 215 order is prohibited from disclosing to any
other person that the FBI has sought the tangible things described in the order, except to the
(A) those persons necessary for compliance with the order,
(B) an attorney to obtain legal advice with respect to the order, or
(C) other persons as permitted by the FBI Director or his designee.
The USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 amends FISA
to provide that the FBI Director or his designee may require anyone to disclose the identity
of persons falling within categories A and C only. It notably omits B, which effectively
removes from the identity disclosure requirement attorneys sought for legal assistance.
While the Act provided a judicial review process for recipients of 215 orders to
challenge their legality, the Act does not expressly grant the right to petition the FISA
court to modify or quash the nondisclosure requirement imposed in connection with
the production order. The Act was criticized for its lack of an express right to
challenge the nondisclosure order during the Senate debate over the conference
Section 3 of the USA PATRIOT Act Additional Reauthorizing Amendments
Act of 2006, P.L. 109-178, 120 Stat. 278 (2006), addresses this omission by
establishing a judicial review procedure for a section 215 nondisclosure orders. For
one year after the date of the issuance of a 215 production order, the nondisclosure
requirement remains in full effect and may not be challenged.32 During the floor
debates over S. 2271, this one-year mandatory moratorium and automatic gag order
had been criticized and defended by Members of Congress.33
After the one-year waiting period has expired, the recipient of the production
order may petition the FISA court to modify or set aside the nondisclosure
requirement. Within 72 hours, if the judge assigned to consider the petition
determines after an initial review that the petition is frivolous, the judge shall
immediately deny the petition and affirm the nondisclosure order. If, after the initial
review, the judge determines that the petition is not frivolous, the judge shall
promptly consider the petition under procedural measures that the FISA court has
established to protect national security, including conducting the review in camera.34
The FISA court judge has discretion to modify or set aside a nondisclosure order
upon a finding that there is no reason to believe that disclosure may endanger the
national security of the United States; interfere with a criminal, counterterrorism, or
counterintelligence investigation; interfere with diplomatic relations; or endanger the
life or physical safety of any person. If, at the time the individual files the petition
for judicial review of a nondisclosure order, the Attorney General, Deputy Attorney
General, an Assistant Attorney General, or the Director of the FBI certifies that
31 See, e.g., 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu)
(“I think it is important that we stand for the principle that a restriction on free speech such
as a gag order can be objected to in a court of law before a judge. You can at least have
your case heard. That does not mean you will win, necessarily, but you can at least have
your case heard.”).
32 By contrast, the Act does not impose a one-year moratorium on challenging the
nondisclosure order accompanying a NSL, § 115, P.L. 109-177, 120 Stat. 211 (2006), adding
new 18 U.S.C. 3511(b)(1).
33 Compare 152 CONG. REC. S1496 (daily ed. Feb. 27, 2006) (statement of Sen. Specter)
(“My own view is it is preferable there not be a waiting period at all, that the court have the
discretion to enter the orders [modifying or quashing a gag order] immediately if it finds
cause to do so.”) with 152 CONG. REC. S1559 (daily ed. Mar. 1, 2006) (statement of Sen.
Kyl) (“The delay is perfectly appropriate and necessary to preserve valuable personnel
resources — these orders are approved by judges before issuance, so it makes little sense
to allow recipients to challenge the non-disclosure requirement only a week or even a day
after the court issues them.”).
34 § 3, P.L. 109-178, 120 Stat. 178 (2006), amending new 50 U.S.C. 1861(f)(2)(A)(ii).
disclosure may endanger the national security of the United States or interfere with
diplomatic relations, then the FISA judge must treat such government certification
as conclusive unless the judge finds that the certification was made in bad faith.35
If the judge grants a petition to quash the nondisclosure requirement, upon the
request of the government, such order is stayed pending review of the decision to the
FISA Court of Review. If the judge denies the petition to modify or set aside the
nondisclosure requirement, the recipient of the 215 order is precluded from filing
another such petition for one year.36 The FISA Court of Review has jurisdiction to
consider a petition by the government or by the recipient of a 215 order and to review
a FISA judge’s decision to affirm, modify, or set aside such production order or the
nondisclosure order imposed in connection with it. The U.S. Supreme Court has
jurisdiction to review a decision of the FISA Court of Review concerning this matter.
National Security Letters.
Five federal statutes, in roughly the same terms, authorize federal intelligence
investigators (generally the FBI) to request that communications providers, financial
institutions and credit bureaus provide certain types of customer business records,
including subscriber and transactional information related to Internet and telephone
usage, credit reports, and financial records.37 Unlike a section 215 production order
for tangible items, a national security letter (NSL) need not receive prior approval
of a judge. However, NSLs are more limited in scope compared to a section 215
order, in terms of the types of information that can be obtained. For example, NSLs
cannot be used to receive “content information” — the content of a telephone
communication or e-mail message is unavailable through a NSL, but a NSL could
request the phone number dialed or the e-mail addresses used.
A federal court in the Southern District of New York has held that the FBI’s
practices and procedure surrounding the exercise of its authority under one of these
NSL statutes, 18 U.S.C. 2709, violate the Fourth and First Amendments.38 In the
35 Id., amending new 50 U.S.C. 1861(f)(2)(C)(ii).
36 Id., amending new 50 U.S.C. 1861(f)(2)(C)(iii).
37 12 U.S.C. 3414; 15 U.S.C.1681u, 1681v; 18 U.S.C. 2709; 50 U.S.C. 436. For more
information concerning national security letters, see CRS Report RL33320, National
Security Letters in Foreign Intelligence Investigations: Legal Background and Recent
Amendments, by Charles Doyle.
38 Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 2004), vacated by sub nom. Doe I v.
Gonzales, 449 F. 3d 415 (2d Cir. 2006)(The U.S. Court of Appeals for the Second Circuit
noted that the Reauthorization Act, passed during the pendency of the appeal of this case,
“dramatically altered § 2709” and “substantially shifted the legal footing” on which John
Doe I stood. Because the Reauthorization Act added 18 U.S.C. 3511(a), permitting NSL
recipients to challenge the legality of the NSL in federal court, John Doe I no longer pursued
the Fourth Amendment claim. Thus, the appellate court vacated as moot the Fourth
Amendment portion of the Southern District of New York opinion. The plaintiffs argued,
however, that the revised § 2709(c), as amended by the Reauthorization Act, still violates
John Doe I’s First Amendment rights. The appellate court remanded the case for the district
opinion of the court, the constitutional problem stems from the effective absence of
judicial review before or after the issuance of a NSL under section 2709 and from the
facially absolute, permanent confidentiality restrictions (“gag order”) that the statute
places on NSL recipients.39 Another federal court in the District of Connecticut
enjoined enforcement of a NSL gag order on First Amendment grounds.40
Section 115 of the Act attempts to address these potential constitutional
deficiencies by authorizing judicial review of a NSL.41 In addition to providing the
right to challenge the validity of the NSL request, section 115 expressly grants NSL
recipients the power to petition a federal district court to modify or quash a
nondisclosure requirement that may be imposed in connection with the request.
Judicial Review and Enforcement of NSL requests. Under the Act, the
recipient of a NSL request may petition a U.S. district court for an order modifying
or setting aside the request. The federal court may modify or quash the NSL request
if compliance would be unreasonable, oppressive, or otherwise unlawful.
Section 115 also provides the government with the means to enforce the NSL
through court action. If a NSL recipient fails to respond to the request for
information, the Attorney General may seek a federal district court order to compel42
compliance with the request. Disobedience of the U.S. district court’s order to
respond to a NSL is punishable as contempt of court.
Section 115 directs that any court proceedings concerning NSL matters must be
closed, subject to any right to an open hearing in a contempt proceeding, to prevent
unauthorized disclosure of the NSL request. In addition, all petitions, filings,
records, orders, and subpoenas must be kept under seal to prevent unauthorized
disclosure. Finally, the government may request that its evidence be considered ex
parte and in camera.
court to consider whether the revised version of 18 U.S.C. 2709(c) violates the First
Amendment either on its face or as applied to John Doe I. Doe I, 449 F. 3d at 418-19.).
39 Ashcroft, 334 F.Supp.2d at 526-27.
40 Doe v. Gonzalez, 386 F.Supp.2d 66 (D.Conn. 2005), dismissed as moot by Doe II v.
Gonzales, 449 F. 3d 415 (2d Cir. 2006) (On appeal, the Government conceded that John Doe
II may reveal its identity under new procedures established by the Reauthorization Act, set
forth in 18 U.S.C. 3511(b), and the Government informed the appellate court that it would
no longer oppose the preliminary injunction issued by the district court. The U.S. Court of
Appeals for the Second Circuit thus concluded that “the Government has effectively
rendered this appeal moot by its own voluntary actions.” Doe II, 449 F. 3d at 420.).
41 § 115, P.L. 109-177, 120 Stat. 211 (2006), adding new 18 U.S.C. 3511.
42 § 115, P.L. 109-177, 120 Stat. 212 (2006), adding new 18 U.S.C. 3511(c). Critics of this
new provision claim that it effectively transforms NSLs into national security subpoenas.
See ACLU, ACLU Letter to Congress Urging A “No” Vote On the USA PATRIOT
Improvement and Reauthorization Act Conference Report (Dec. 12, 2005), available on Jan.
Nondisclosure Orders for NSLs. Section 116 of the Act amends all five
NSL statutes to prohibit service providers from disclosing to any person that the FBI
has sought or obtained access to the information sought through the NSL, only if the
investigative agency has certified that disclosure may endanger any individual or the
national security of the United States, interfere with diplomatic relations, or interfere
with a criminal or intelligence investigation. Thus, a nondisclosure order does not
automatically attach to the NSL, as it does in the case of a Section 215 order under
Assuming that this certification occurs and the gag order is in place, disclosure
by the NSL recipient is permitted to any person whose assistance is needed to comply
with the NSL request or to an attorney to obtain legal advice or legal assistance43
concerning the NSL. Although the individual is not required to inform the FBI or
the authorized government agency of the intent to consult with an attorney to obtain
legal assistance, upon the request of the FBI Director (or his designee), or upon the
request of the government agency authorized to issue the NSL, the recipient must
disclose to the FBI or the government agency the identity of the person to whom the
disclosure will be or was made.44 According to the sponsor of H.R. 3199, “without
this safeguard, a recipient could disclose the government’s investigative efforts to a
person with ties to hostile foreign governments or entities.”45
However, the potential that this identity disclosure requirement may chill the
right to seek legal counsel was reduced by Section 4 of the USA PATRIOT Act
Additional Reauthorizing Amendments Act of 2006, P.L. 109-178, 120 Stat. 280
(2006). (Section 4 also had removed a similar disclosure requirement concerning a
Section 215 production order under FISA.) Section 4 amends the five NSL statutes
by adding language expressly exempting the identity of attorneys from the disclosure
requirement established by the Act:
At the request of the Director of the Federal Bureau of Investigation or the
designee of the Director, any person making or intending to make a disclosure
under this section shall identify to the Director or such designee the person to
whom such disclosure will be made or to whom such disclosure was made prior
to the request, except that nothing in this section shall require a person to inform
the Director or such designee of the identity of an attorney to whom disclosure
was made or will be made to obtain legal advice or legal assistance with respect46
to the [NSL] request...
43 § 116, P.L. 109-177, 120 Stat. 213-217 (2006), amending 18 U.S.C. 2709(c)(1); 15
U.S.C. 1681u(d)(1); 15 U.S.C. 1681v(c)(1); 12 U.S.C. 3414(a)(3)(A); 12 U.S.C.
44 § 116, P.L. 109-177, 120 Stat. 213-217 (2006), amending 18 U.S.C. 2709(c)(4); 15
U.S.C. 1681u(d)(4); 15 U.S.C. 1681v(c)(4); 12 U.S.C. 3414(a)(3)(D); 12 U.S.C.
45 152 Cong. Rec. H583 (daily ed. Mar. 7, 2006) (statement of Rep. Sensenbrenner).
46 § 4, P.L. 109-178, 120 Stat. 280 (2006), amending 18 U.S.C. 2709(c)(4) (emphasis
added). The language used to describe this exception in 18 U.S.C. 2709(c)(4) is
substantially similar to that used in the amendments to the other NSL statutes.
Section 117 of the Act punishes a person who was notified of a NSL
nondisclosure requirement but nevertheless knowingly and willfully violates that
directive, with imprisonment of not more than one year, or not more than five years
if committed with the intent to obstruct an investigation or judicial proceeding.47 The
law prior to the Act’s enactment did not provide a felony charge for such disclosure
to an unauthorized person.
Section 115 of the Act grants a NSL recipient with an explicit statutory right to
challenge in court the gag order that may attach to the NSL request — a right that a
recipient of a section 215 FISA production order lacks under the Act but which was
subsequently provided by the USA PATRIOT Act Additional Reauthorizing
Amendments Act of 2006. Section 115 creates a bifurcated procedure for handling
petitions for judicial review of the nondisclosure requirement accompanying a NSL:
(1) If the petition is filed within one year of the NSL request, the U.S. district
court may modify or set aside the gag order if it finds no reason to believe that
!endanger the national security of the United States,
!interfere with a criminal, counterterrorism, or counterintelligence
!interfere with diplomatic relations, or
!endanger the life or physical safety of any person.
If, at the time of the petition, a high-ranking government official48 certifies that
!endanger the national security of the United States, or
!interfere with diplomatic relations,
then the court must treat the government certification as conclusive unless the court
finds that the certification was made in bad faith.
(2) If the petition challenging the gag order is filed one year or more after the
NSL issuance, a high-ranking government official must, within 90 days of the
petition, either terminate the gag order or re-certify that disclosure may:
!endanger the national security of the United States,
!interfere with a criminal, counterterrorism, or counterintelligence
!interfere with diplomatic relations, or
!endanger the life or physical safety of any person.
47 § 117, P.L. 109-177, 120 Stat. 217 (2006), adding new 18 U.S.C. 1510(e).
48 If the NSL is issued by the Department of Justice, this person must be the Attorney
General, Deputy AG, or the Director of the FBI; if the NSL information is requested by any
agency, department, or instrumentality other than the Justice Department, then the individual
must be its head or deputy. New 18 U.S.C. 3511(b)(2).
If such recertification occurs, then a court may modify or quash the gag order
if it finds no reason to believe that disclosure may:
!endanger the national security of the United States,
!interfere with a criminal, counterterrorism, or counterintelligence
!interfere with diplomatic relations, or
!endanger the life or physical safety of any person.
However, if the recertification was made by the Attorney General, Deputy Attorney
General, an Assistant Attorney General, or the Director of the FBI, and if such
recertification stated that disclosure may:
!endanger the national security of the United States, or
!interfere with diplomatic relations
then such certification is to be treated by the court as conclusive unless it was made
in bad faith.
If court denies the petition for an order to modify the nondisclosure requirement,
the NSL recipient is precluded from filing another such petition for one year.
Although the Act provides a process to challenge the nondisclosure requirement,
critics believe that this judicial review is not meaningful, in light of the “conclusive
presumption” provision: “A recipient would technically be given a right to challenge
the gag order but if the government asserted national security, diplomatic relations
or an ongoing criminal investigation the court would be required to treat that
assertion as conclusive, making the ‘right’ an illusion.”49 In addition, some Members
of Congress have raised First Amendment and due process concerns over the
indefinite gag order and the conclusive presumption.50 However, others have
defended the conclusive presumption as necessary to ensure that sensitive
information is not publicly disclosed:
Only the FBI, the people who are investigating the matter, not individual district
judges, are in a position to determine when the disclosure of classified
information would harm national security. Obviously, that is not something that
a Federal district judge has any expertise on. ... It is also important that the FBI
make the final determination whether the disclosure would harm national
security. And only the agents in charge of these counterterrorism investigations
will be able to evaluate how the disclosure of a particular piece of information
49 ACLU, ACLU Letter to Congress Urging A “No” Vote On the USA PATRIOT
Improvement and Reauthorization Act Conference Report (Dec. 12, 2005), available Jan.
50 See, e.g., 152 CONG. REC. S1567 (daily ed. Mar. 1, 2006) (statement of Sen. Leahy); 152
CONG. REC. H588 (daily ed. Mar. 7, 2006) (statement of Rep. Nadler); 152 CONG. REC.
S1382, 1383 (daily ed. Feb. 16, 2006) (statement of Sen. Feingold).
could potentially, for example, reveal sources and methods of intelligence and51
who, therefore, might be tipped off as a result of the disclosure.
NSLs Not Applicable to Libraries. Section 5 of the USA PATRIOT Act
Additional Reauthorizing Amendments Act of 2006, P.L. 109-178, 120 Stat. 281
(2006), entitled “Privacy Protections for Library Patrons,” addresses the concern that
a library could potentially be subject to an NSL issued under 18 U.S.C. 2709 to52
obtain certain transactional and subscriber records pertaining to its patrons.
Because libraries often offer patrons the ability to access the Internet, the law prior
to the Act was unclear as to whether libraries might be considered “electronic
communication service providers” for purposes of 18 U.S.C. 2709. Section 5
amends 18 U.S.C. 2709 by adding the following section:
“A library ..., the services of which include access to the Internet ..., is not a wire
or electronic communication service provider for purposes of this section, unless53
the library is providing the services defined in section 2510(15) of this title...”
This provision “makes very clear that libraries operating in their traditional role,
including the lending of books, including making books available in digital form,
including providing basic Internet access, are not subject to National Security54
Letters.” However, if the library “provides” the services described in 18 U.S.C.
2510(15), which are “electronic communication services,” then such library would
still be subject to NSLs. 18 U.S.C. 2510(15) defines “electronic communication
service” to mean any service that provides to users the ability to send or receive wire
or electronic communications. A reasonable interpretation of this definition suggests
that to be considered an electronic communication service provider under 18 U.S.C.
routing, and connection of digital communication occurs.55 In contrast, a local
county library likely has a service contract with an Internet Service Provider (ISP) to
furnish the library with the electronic communication service, as many businesses
and individuals do; the fact that the library has set up a computer with Internet access
for the use of its patrons probably does not, by itself, turn the library into a
communications service “provider.” Under this characterization, the actual
51 152 CONG. REC. S1394, 1395 (daily ed. Feb. 16, 2006) (statement of Sen. Kyl).
52 However, a library could still be subject to a Section 215 order under FISA for the
production of tangible items such as loan records. S. 2271 does not carve out any exception
for libraries under Section 215. For more information on this issue, see CRS Report
RS21441, Libraries and the USA PATRIOT Act, by Charles Doyle and Brian T. Yeh.
53 18 U.S.C. 2709(f) as amended by P.L. 109-178, 120 Stat. 281 (emphasis added).
54 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu).
55 See 152 CONG. REC. S1558 (daily ed. Mar. 1, 2006) (statement of Sen. Leahy) (“[A]
library may be served with an NSL only if it functions as a true internet service provider,
as by providing services to persons located outside the premises of the library. I expect that
this will occur rarely or never and that in most if not all cases, the Government will need a
court order to seize library records for foreign intelligence purposes.”).
“provider” of Internet access is the ISP, not the library.56 Therefore, a public library
offering “basic” Internet access would likely not be considered an electronic
communication service provider, at least for purposes of being an entity subject to
the NSL provisions in 18 U.S.C. 2709.57
Congressional Oversight of NSLs. Section 118 of the Act requires that
any reports to a Congressional committee regarding NSLs shall also be provided to
the House and Senate Judiciary Committees. In addition, the Attorney General must
submit a report semiannually on all NSL requests made under the Fair Credit
Reporting Act, to the House and Senate Judiciary Committees, the House and Senate
Intelligence Committees, and the House Committee on Financial Services and the
Senate Committee on Banking, Housing, and Urban Affairs.58
The Attorney General is also instructed to submit to Congress an annual report
describing the total number of requests made by the Department of Justice under the
NSL statutes. This report is to be unclassified, in order to permit public scrutiny.
Section 119 of the Act directs the Inspector General of the Department of Justice
to perform a comprehensive audit of the effectiveness and use of NSLs, including any
improper or illegal use, for submission to the House and Senate Judiciary and
Intelligence Committees for calendar years 2003-2006. This report is to be
unclassified. Section 119 also requires the Attorney General and Director of
National Intelligence to analyze the feasibility of applying minimization procedures
to NSL to ensure the protection of the constitutional rights of U.S. persons. This
feasibility study is to be submitted to the House and Senate Judiciary and Intelligence
Committees by February 1, 2007, or upon completion of the audit of the use of NSLs
for calendar years 2003 and 2004, whichever is earlier.
Section 206 FISA “Roving” Wiretaps.
Unlike a criminal wiretap order issued under Title III of the Omnibus Crime
Control and Safe Streets Act of 1968,59 which may be approved if a judge finds
probable cause for believing that an individual is committing, has committed, or is
56 See 152 CONG. REC. S1390 (daily ed. Feb. 16, 2006) (statement of Sen. Sununu) (“Some
have noted or may note that basic Internet access gives library patrons the ability to send and
receive e-mail by, for example, accessing an Internet-based e-mail service. But in that case,
it is the website operator who is providing the communication service — the Internet
communication service provider itself — and not the library, which is simply making
available a computer with access to the Internet.”). Thus, the NSL request could be served
on the ISP rather than the library.
57 See 152 CONG. REC. S1390 (daily ed. Feb. 16, 2006) (statement of Sen. Durbin) (“By
way of comparison, a gas station that has a pay phone isn’t a telephone company. So a
library that has Internet access, where a person can find an Internet e-mail service, is not a
communications service provider; therefore, it would not fall under the purview of the NSL
provision in 18 U.S.C. 2709. It is a critically important distinction.”).
58 § 118(b), P.L. 109-177, 120 Stat. 217, 218 (2006), adding new 15 U.S.C. 1681v(f).
59 18 U.S.C. 2510 et seq.
about to commit a particular enumerated offense,60 a FISA wiretap may be issued
upon a finding of probable cause to believe that the target of the electronic
surveillance is a foreign power or agent of a foreign power.61 Section 206 of the
USA PATRIOT Act amended FISA to authorize the installation and use of
multipoint, or “roving,” wiretaps, for foreign intelligence investigations.62 A roving
wiretap order applies to the suspect rather than a particular phone or computer that
the target might use, and thus allows law enforcement officials to use a single wiretap
order to cover any communications device that the target uses or may use.63 Without
this authority, investigators must seek a new FISA court order each time they need
to change the name of the location to be monitored, as well as the specified person
or entity that is needed to assist in facilitating the wiretap.64
Section 206 of the USA PATRIOT Act permits a general command for the
assistance of third parties (for example, common carriers and Internet service
providers) for the installation and use of these multipoint wiretaps, where the target
of the surveillance has taken steps to thwart the identification of a communications
company or other person whose assistance may be needed to carry out the
surveillance. Thus, if the FISA court finds that the target’s actions may have the
effect of thwarting specific identification, section 206 temporarily authorizes FISA
orders that need not specifically identify the communications carriers, landlords or
others whose assistance the order commands.65
Prior to the enactment of the Act, a FISA roving surveillance order had to
specify the identity of the target only if it was known; otherwise, it was sufficient for
the order to describe the target.66 Section 108 of the Act amends the FISA roving
surveillance authority to require that an application for an order, as well as the
wiretap order itself, describe the specific target of the electronic surveillance if the
target’s identity is not known.67 It also clarifies that the FISA court must find that the
60 See list of predicate offenses at 18 U.S.C. 2516(1)(a)-(r).
61 50 U.S.C. 1805(a).
62 50 U.S.C. 1805(c)(2)(B).
63 According to the Department of Justice, “This new authority has put investigators in a
better position to avoid unnecessary cat-and- mouse games with terrorists, who are trained
to thwart surveillance.” U.S. Dep’t of Justice, Report from the Field, The USA PATRIOT Act
at Work, 22 (July 2004), available on Jan. 13, 2006 at
[ ht t p: / / www.l i f eandl i ber t y.gov/ docs/ 071304_r epor t _f r om_t he_f i el d.pdf ] .
64 Oversight Hearing on “Reauthorization of the USA PATRIOT Act”: Hearings Before
the House Comm. on the Judiciary, 109th Cong., 1st Sess. (2005) (statement of James B.
Comey, Deputy Attorney General, U.S. Dep’t of Justice), at 9-10, available on Jan. 13, 2006
65 50 U.S.C. 1805(c)(2)(B).
66 50 U.S.C. 1805(c)(1)(A). Furthermore, a roving wiretap order need not identify the
nature and location of the places or facilities targeted for surveillance if they are unknown.
67 § 108(a), P.L. 109-177, 120 Stat. 203 (2006), amending 50 U.S.C. 1804(a)(3) and 50
prospect of a target thwarting surveillance is based on specific facts in the
application. Furthermore, if the government begins to direct surveillance at a new
facility or place, the nature and location of which were unknown at the time the
original surveillance order was issued, the government must notify the FISA court
within 10 days68 after such change, of the following information:69
!the nature and location of each new facility or place at which the
surveillance is directed,
!the facts and circumstances relied upon by the applicant to justify the
applicant’s belief that each new facility or place is or was being
used, or is about to be used, by the target of the surveillance,
!an explanation of any proposed minimization procedures that differ
from those contained in the original application or order, if such
change is necessitated by the new facility or place, and
!the total number of electronic surveillances that have been or are
being conducted under the roving surveillance order.
The Act also enhances congressional oversight over the use of all foreign
intelligence electronic surveillance authority, by adding the Senate Judiciary
Committee as a recipient of the semi-annual FISA reports that the Attorney General
currently must submit to the House and Senate Intelligence committees,70 and by
modifying the FISA report requirements to include a description of the total number
of applications made for orders approving roving electronic surveillance.71
Delayed Notice Search Warrants.
A delayed notice search warrant, or “sneak and peek” warrant, is one that
authorizes law enforcement officers to secretly enter a home or business, either
physically or virtually, conduct a search, and depart without taking any tangible
evidence or leaving notice of their presence. The Department of Justice has defended
the necessity and legality of delayed notification search warrants:
This tool can be used only with a court order, in extremely narrow circumstances
when immediate notification may result in death or physical harm to an
individual, flight from prosecution, evidence tampering, witness intimidation, or
serious jeopardy to an investigation. The reasonable delay gives law
enforcement time to identify the criminal’s associates, eliminate immediate
threats to our communities, and coordinate the arrests of multiple individuals
68 The 10 day period may be extended up to 60 days if the court finds good cause to justify
the longer period.
69 § 108(b)(4), P.L. 109-177, 120 Stat. 203 (2006), adding new 50 U.S.C. 1805(c)(3).
70 § 108(c)(1), P.L. 109-177, 120 Stat. 204 (2006), amending 50 U.S.C. 1808(a)(1).
71 § 108(c)(2), P.L. 109-177, 120 Stat. 204 (2006), amending 50 U.S.C. 1808(a)(2).
without tipping them off beforehand. In all cases, law enforcement must give72
notice that property has been searched or seized.
Until the USA PATRIOT Act was enacted, the Federal Rules of Criminal
Procedure required contemporaneous notice in most instances.73 At the time, the
courts were divided over whether the failure to provide contemporaneous notice, in
the absence of exigent circumstances, constituted a constitutional violation or a
violation of the Rule, and over the extent of permissible delay in cases presenting
exigent circumstances.74 Section 213 of the USA PATRIOT Act created an express
statutory authority for delayed notice search warrants in any criminal investigation,
not just those involving suspected terrorist activity.75 Delayed notification of the
execution of a sneak and peek search warrant is permissible for a reasonable period
of time (with the possibility of court-approved extensions for good cause shown), if:
!the court that issued the warrant finds reasonable cause to believe
that contemporaneous notice of the search may result in adverse
consequences (flight, destruction of evidence, intimidation of a
witness, danger to an individual, serious jeopardy to an
investigation, or undue trial delay), and
!the warrant prohibits the seizure of any tangible property, any wire
or electronic communication, and any stored wire or electronic
information, except where the court finds reasonable necessity for
Responding to concerns that the “reasonable period” for delaying notification
of a search warrant is an undefined and indefinite standard under current law, section
114 of the Act establishes a specific limitation on the length of the delay, requiring
notice to be given no more than 30 days after the date of the warrant’s execution,
with the possibility for 90 day extensions if the facts of a case justify.76 Several
Members of Congress have criticized this 30-day delayed notice provision, arguing
72 U.S. Dep’t of Justice, Dispelling Some of the Major Myths about the USA PATRIOT Act,
available on Jan. 13,2006 at [http://www.lifeandliberty.gov/subs/u_myths.htm].
73 FED. R. CRIM. P. 41(d), 18 U.S.C. App. (2000 ed.).
74 See United States v. Pangburn, 983 F.2d 449 (2d Cir. 1993); United States v. Freitas,
75 18 U.S.C. 3103a. Critics have expressed concerns about the constitutionality of delayed
notice search warrants as well as potential abuse of the power. See, e.g., EPIC Report (“The
expansion of this extraordinary authority to all searches constitutes a radical departure from
Fourth Amendment standards and could result in routine surreptitious entries by law
enforcement agents.”); American Civil Liberties Union (ACLU), Surveillance Under the
USA PATRIOT Act (April 3, 2003), available on Jan. 13, 2006 at
[http://www.aclu.org/safefree/general/17326res20030403.html] (“Notice is a crucial check
on the government’s power because it forces the authorities to operate in the open, and
allows the subjects of searches to protect their Fourth Amendment rights. For example, it
allows them to point out irregularities in a warrant. ... Search warrants often contain limits
on what may be searched, but when the searching officers have complete and unsupervised
discretion over a search, a property owner cannot defend his or her rights.”).
76 § 114, 109-177, 120 Stat. 210 (2006), amending 18 U.S.C. 3103a(b)(3).
instead for notice to be given to the target of the search warrant within 7 days.77
However, it should be noted that the Act’s 30-day delay period was itself a
compromise between the House and Senate-passed versions of the Reauthorization
Act; the House bill allowed 180 days, while the Senate limited the delay to 7 days.
In addition, section 114 removes “unduly delaying a trial” as one of the “adverse
consequences” that justifies delayed notification. Some commentators have noted
that “seriously jeopardizing an investigation,” which is retained by the Act as a
ground for permitting delayed notice, is an overly broad “catch-all” provision that
law enforcement officials could abuse.78 There may also be some question of
whether it qualifies as a constitutionally acceptable exigent circumstance. However,
Justice Department officials defend this provision, observing that before the delayed
notice can be approved, a federal judge must agree with the government’s evaluation
of the circumstances that indicate that contemporaneous notice of a search might
seriously jeopardize an ongoing investigation.79
Finally, section 114 enhances oversight of delayed notice search warrants, by
requiring that no later than 30 days after the expiration or denial of such a warrant,
the issuing or denying judge must notify the Administrative Office of the U.S. Courts
!the fact that the delayed notice search warrant was applied for,
!the fact that the warrant was either granted, modified, or denied,
!the length of time of the delay in giving notice, and
!the offense specified in the warrant or the application.80
77 See, e.g., 152 CONG. REC. S1384 (daily ed. Feb. 16, 2006) (statement of Sen. Feingold)
(asserting that seven days is what courts have previously approved), and 152 CONG. REC.
S1495 (daily ed. Feb. 27, 2006) (statement of Sen. Specter) (stating that, in his view, seven
days is “the best requirement”). However, other Members of Congress have challenged the
argument that seven days is the constitutionally-permissible limit. See 152 CONG. REC.
S1397 (daily ed. Feb. 16, 2006) (statement of Sen. Sessions) (claiming that the Court of
Appeals for the Fourth Circuit has previously allowed a 45-day period for delayed notice
of a search warrant, although the court did not suggest that this was necessarily a
constitutional upper limit).
78 See ACLU, ACLU Letter to Congress Urging A “No” Vote On the USA PATRIOT
Improvement and Reauthorization Act Conference Report (Dec. 12, 2005), available on Jan.
79 Oversight Hearing on the “Implementation of the USA PATRIOT Act: Sections 201, 202,
223 of the Act that Address Criminal Wiretaps, and Section 213 of the Act that Addresses
Delayed Notice”: Hearings Before the Subcomm. on Crime, Terrorism, and Homeland
Security of the House Comm. on the Judiciary, 109th Cong., 1st Sess. (2005) (statement of
Chuck Rosenberg , Chief of Staff to Deputy Attorney General, U.S. Dep’t of Justice), at 3-4,
available Jan. 13, 2006 at [http://judiciary.house.gov/media/pdfs/rosenberg050305.pdf]
(stating that “[t]here are a variety of ways in which investigators and prosecutors should not
be precluded from obtaining a delayed notice search warrant simply because their request
does not fall into one of the other four circumstances listed in the statute”).
80 § 114, 109-177, 120 Stat. 210, 211 (2006), amending 18 U.S.C. 3103a(d)(1).
Beginning with the fiscal year ending September 30, 2007, the Director of the
Administrative Office is required to transmit a detailed, annual report to Congress
that summarizes the use and number of warrants authorizing delayed notice.
Emergency Disclosures by Service Providers.
Section 212 of the USA PATRIOT Act permits electronic communications
service providers to disclose voluntarily the contents of stored electronic
communications to a Federal, State, or local governmental entity in emergency
situations involving a risk or danger of death or serious physical injury to any
person.81 Service providers are also permitted to disclose customer records to
governmental entities in emergencies involving an immediate risk of serious physical
injury or danger of death to any person.82
To provide congressional oversight over the use of this authority, section 107(a)
of the Act requires the Attorney General annually to report to the Judiciary
Committees of the House and Senate concerning the number of service providers’
voluntary emergency disclosures of the contents of electronic communications to the
Department of Justice. The report must also summarize the basis for the voluntary
disclosure in circumstances where the investigation pertaining to the disclosure was
closed without the filing of criminal charges. In addition, section 107(b) of the Act
removes the immediacy requirement from the customer records provision and defines
“governmental entity” to mean a department or agency of the United States or any
State or political subdivision thereof.
Duration of FISA Surveillance and Physical Search Orders and
Congressional Oversight Of Their Usage.
The Act extends the maximum duration of FISA electronic surveillance and
physical search orders against any agent of a foreign power who is not a U.S. person
(e.g., a lone wolf terrorist), by amending section 105(e) of FISA.83 Initial orders
authorizing such searches may be for a period of up to 120 days, with renewal orders
permitted to extend the period for up to one year.
In addition, the Act extends the life time for both initial and extension orders
authorizing installation and use of FISA pen registers, and trap and trace surveillance
devices84 from a period of 90 days to one year, in cases where the government has
81 18 U.S.C. 2702(b)(8).
82 18 U.S.C. 2702(c)(4).
83 § 105, P.L. 109-177, 120 Stat. 195 (2006), amending 50 U.S.C. 1805(e) and 50 U.S.C.
84 These surveillance devices are used to intercept non-content transactional information
which reveals the source and destination of wire and electronic communications, such as
telephone dialing information, Internet IP addresses, and e-mail routing and addressing. See
definitions of these terms, 18 U.S.C. 3127(3), 18 U.S.C. 3127(4).
certified that the information likely to be obtained is foreign intelligence information
not concerning a U.S. person.85
Section 109(a) of the Act enhances congressional oversight over the use of
physical searches under FISA, by requiring, on a semi-annual basis, the Attorney
!to make full reports concerning all physical searches to the Senate
Judiciary Committee in addition to the House and Senate
Intelligence committees, and
!to submit to the three committees listed above and to the House
Judiciary Committee a report with statistical information concerning
the number of emergency physical search orders authorized or
denied by the Attorney General.86
Section 109(b) requires that the report the Attorney General submits to the
House and Senate Judiciary Committees semi-annually concerning the number of
applications and orders for the FISA use of pen registers or trap and trace devices,
must include statistical information regarding the emergency use of such devices.87
Information Related to FISA Pen Register and Trap & Trace
Law enforcement officials may secure an order authorizing the installation and
use of a pen register or trap and trace device to obtain information relevant to a
criminal investigation, 18 U.S.C. 3122, 3123. They are also entitled to a court order
directing a communications provider to supply certain customer information when
relevant to a criminal investigation, 18 U.S.C. 2703.88 Foreign intelligence officials
are entitled to secure a FISA order for installation and use of a pen register or trap
and trace device in connection with certain foreign intelligence investigations, 50
U.S.C. 1841-1846. Under its national security letter authority the FBI may request
communications providers to supply customer name, address, length of service and
local and long distance toll billing records, 18 U.S.C. 2709. Under section 215 of the
USA PATRIOT Act, the FBI may obtain a FISA tangible item order for customer
records held by a communications provider, 50 U.S.C. 1861.
85 § 105(c), P.L. 109-177, 120 Stat. 195, 196 (2006), adding new 50 U.S.C. 1842(e)(2).
86 § 109(a), P.L. 109-177, 120 Stat. 204 (2006), amending 50 U.S.C. 1826.
87 § 109(b), P.L. 109-177, 120 Stat. 204, 205 (2006), amending 50 U.S.C. 1846.
88 The information available under section 2703 includes “the — (A) name; (B) address;
(C) local and long distance telephone connection records, or records of session times and
durations; (D) length of service (including start date) and types of service utilized; (E)
telephone or instrument number or other subscriber number or identity, including any
temporarily assigned network address; and (F) means and source of payment for such
service (including any credit card or bank account number), of a subscriber to or customer
of such service),” 18 U.S.C. 2703(c)(2).
Section 128(a) of the Act provides that the FISA court may, in its pen
register/trap and trace order, direct a service provider to supply customer information
relating to use of the device.89 The information to be made available is more
extensive than what is available under 18 U.S.C. 2709, or to law enforcement
officials, but it is not as extensive as the scope of information under a FISA section
(I) in the case of the customer or subscriber using the service covered by the
order (for the period specified by the order) —
(I) the name of the customer or subscriber;
(II) the address of the customer or subscriber;
(III) the telephone or instrument number, or other subscriber number or
identifier, of the customer or subscriber, including any temporarily assigned
network address or associated routing or transmission information;
(IV) the length of the provision of service by such provider to the customer or
subscriber and the types of services utilized by the customer or subscriber;
(V) in the case of a provider of local or long distance telephone service, any local
or long distance telephone records of the customer or subscriber;
(VI) if applicable, any records reflecting period of usage (or sessions) by the
customer or subscriber; and
(VII) any mechanisms and sources of payment for such service, including the
number of any credit card or bank account utilized for payment for such service;
(I) if available, with respect to any customer or subscriber of incoming or
outgoing communications to or from the service covered by the order —
(I) the name of such customer or subscriber;
(II) the address of such customer or subscriber;
(III) the telephone or instrument number, or other subscriber number or
identifier, of the customer or subscriber, including any temporarily assigned
network address or associated routing or transmission information;
(IV) the length of the provision of service by such provider to the customer or
subscriber and the types of services utilized by the customer or subscriber.
The Senate Select Committee on Intelligence observed with respect to an
identically worded section in S. 1266, “the FISA audit staff was informed that when
a federal court issues an order for criminal pen register or trap and trace device, the
court has the authority under 18 U.S.C. 2703(d) to routinely require the service
provider to supply subscriber information in its possession for the numbers or e-mail
addresses captured by the devices. The FISA pen register/trap and trace provision
has no comparable authority. Section 215 of this bill addresses this discrepancy.”90.
The amendment would likely simplify the process, but critics might ask why it
is necessary since information already seems to be available through use of the
national security letter authority under 18 U.S.C. 2709 or the FISA business records
“tangible item” authority when used in conjunction with the FISA pen register/trap
and trace authority.
89 § 128(a), P.L. 109-177, 120 Stat. 228 (2006), adding new 50 U.S.C. 1842(d)(2)(C).
90 S.Rept. 109-85, at 8 (2005).
Section 128(b) of the Act amends the FISA oversight reporting requirements so
that Judiciary Committees receive full reports on the use of the FISA’s pen register
and trap and trace authority every six months.91
Additions to the Definition of Federal Crime of Terrorism.
Crimes designated as federal crimes of terrorism under 18 U.S.C. 2332b(g)(5)
trigger the application of other federal laws, for example, 18 U.S.C. 1961(1)(g)
(RICO predicates), 18 U.S.C. 3142 (bail), 18 U.S.C. 3286 (statute of limitations), and
18 U.S.C. 3583 (supervised release). Section 112 of the Act adds two additional
offenses to the definition of federal crimes of terrorism: receiving military-type
training from a foreign terrorist organization,92 and drug trafficking in support of
terrorism (the “narco-terrorism” provisions of Section 1010A of the Controlled
Substances Import and Export Act).93
Expanded List of Predicate Offenses For Wiretaps.
Generally, federal law requires the government to obtain a court order
authorizing the interception of wire, oral or electronic communications in the
investigation of certain crimes (“predicate offenses”) specifically enumerated in 18
U.S.C. 2516(1). Section 113 of the Act expands the list of predicate offenses in
which law enforcement may seek wiretap orders to include crimes relating to
biological weapons, violence at international airports, nuclear and weapons of mass
destruction threats, explosive materials, receiving terrorist military training, terrorist
attacks against mass transit, arson within U.S. special maritime and territorial
jurisdiction, torture, firearm attacks in federal facilities, killing federal employees,
killing certain foreign officials, conspiracy to commit violence overseas, harboring
terrorists, assault on a flight crew member with a dangerous weapon, certain weapons
offenses aboard an aircraft, aggravated identity theft, “smurfing” (a money laundering
technique whereby a large monetary transaction is separated into smaller transactions
to evade federal reporting requirements on large transactions), and criminal violations
of certain provisions of the Sherman Antitrust Act.
Attacks Against Railroad Carriers and Mass Transportation
Section 110 of the Act merges 18 U.S.C. 1992 (outlawing train wrecking) and
18 U.S.C. 1993 (outlawing attacks on mass transportation system) into a new 18
U.S.C. 1992 intended to provide uniform offense elements and penalties for attacks
on all transportation systems on land, on water, or through the air. In addition, the
Act explicitly provides criminal punishment for the planning of terrorist attacks and
91 § 128(b), P.L. 109-177, 120 Stat. 229 (2006), amending 50 U.S.C. 1846(a).
92 18 U.S.C. 2339D.
93 § 122, P.L. 109-177, 120 Stat. 225 (2006) adds new 21 U.S.C. 960A concerning “narco-
other acts of violence against railroads and mass transportation systems;94 previous
law had only criminalized committing such attacks or attempting, threatening, or
conspiring to do so.
Punishment under this new criminal statute is imprisonment for not more than
20 years, but if the offense results in the death of any person, then imprisonment of
any years or for life or the death penalty, although the death penalty is not available
for inchoate forms of the offense (planning, conveying false information, attempting,
threatening, or conspiring). Furthermore, the new 18 U.S.C. 1992 enhances the
penalties for committing these criminal acts in circumstances that constitute an
aggravated offense, by authorizing imprisonment for any term of years or life, or
where death results, the death penalty. Finally, the new 18 U.S.C. 1992 defines
covered conveyances and their systems to include passenger vessels.95
Federal law permits U.S. confiscation of property derived from certain drug
offenses committed in violation of foreign law,96 and also permits U.S. confiscation
of all assets, foreign or domestic, associated with certain terrorist offenses.97 Section
111 of the Act amends the general civil forfeiture statute to authorize seizure of
property within U.S. jurisdiction constituting, derived from, or traceable to, any
proceeds obtained in (or any property used to facilitate) an offense that involves
trafficking in nuclear, chemical, biological, or radiological weapons technology or
material, if such offense is punishable under foreign law by death or imprisonment
for a term exceeding one year or would be so punishable if committed within U.S.
In addition, the Act changes the reference for the definition of terrorism as used
in the asset forfeiture provision under section 806 of the USA PATRIOT Act. Prior
to the Act, 18 U.S.C. 981(a)(1)(G) called for the confiscation of property of those
planning or engaged in acts of domestic or international terrorism (as defined in 18
U.S.C. 2331) against the United States or its citizens. Domestic terrorism is defined
in 18 U.S.C. 2331 (section 802 of the USA PATRIOT Act), and includes acts
dangerous to human life in violation of state or federal law committed to influence
the policy of a government or civilian population by intimidation or coercion, 18
U.S.C. 2331(5). Critics might suggest that the juxtaposition of the definition and the
confiscation provisions of section 981(a)(1)(G) could result in the confiscation of the
property of political action organizations whose members became involved in a
94 § 110(a), P.L. 109-177, 120 Stat. 206 (2006), adding new 18 U.S.C. 1992(a)(8) (making
it a crime to surveil, photograph, videotape, diagram, or otherwise collect information with
the intent to plan or assist in planning, an attack against mass transportation systems).
95 § 110(a), P.L. 109-177, 120 Stat. 207, 208 (2006), adding new 18 U.S.C. 1992(d)(7).
96 18 U.S.C. 981(a)(1)(B).
97 18 U.S.C. 981(a)(1)(G).
98 §111, P.L. 109-177, 120 Stat. 209 (2006), amending 18 U.S.C. 981(a)(1)(B)(I).
picket sign swinging melee with counter-demonstrators.99 In contrast, 18 U.S.C.
2332b(g)(5)(B) seems less susceptible to such challenges since it defines terrorism
by reference to violations of specific federal terrorist offenses rather than the generic,
violation of state or federal law found in section 2331.
Thus, section 120 of the Act replaces terrorism defined in 18 U.S.C. 2331 with
terrorism defined in 18 U.S.C. 2332b(g)(5)(B) as the ground for confiscation under
section 981(a)(1)(G). It does so by amending 18 U.S.C. 981(a)(1)(G) so that it calls
for the confiscation of property of those planning or engaged acts of domestic or
international terrorism (as defined in 18 U.S.C. 2332b(g)(5)(B)) against the United
States or its citizens.
Victims Access Forfeiture Fund. Section 981 of title 18 of the United
States Code describes various forms of property that are subject to confiscation by
the United States because of their proximity to various federal crimes. The proceeds
from the confiscation of crime-related property are generally available for law
enforcement purposes to the law enforcement agencies that participate in the
investigation and prosecution that results in the forfeiture, e.g., 18 U.S.C. 981(e).
The funds realized from the collection of criminal fines are generally available for
victim compensation and victim assistance purposes, 42 U.S.C. 10601. Victims of
violent federal crimes are entitled to restitution, 18 U.S.C. 3663A, and victims of
other federal crimes are eligible for restitution, 18 U.S.C. 3663.
Section 127 of the Act expresses the sense of Congress that under section 981
victims of terrorist attacks should have access to the assets of terrorists that have been
This section of the report discusses miscellaneous provisions of Title I of the
Act which are not easily classifiable within the subheadings above.
FISA Court Rules and Procedures. Section 109(d) of the Act requires the
FISA court to publish its rules and procedures and transmit them in unclassified form
99 151 CONG. REC. H6262 (daily ed. July 21, 2005)(statement of Rep. Delahunt) (“This is
about domestic terrorism and the definition of domestic terrorism. And while it does not
create a new crime under the PATRIOT Act, the definition triggers an array of expanded
governmental authorities, including enhanced civil asset seizure powers. It is so broadly
defined that it could include acts of civil disobedience because they may involve acts that
endanger human life...”); 151 CONG. REC. H6262-263 (daily ed. July 21, 2005) (statement
of Rep. Sensenbrenner)(“There are various definitions of terrorism under Federal law. In
title XVIII there has been a confusion over a new definition created in the USA PATRIOT
Act for domestic terrorism. That provision is supposed to be used for administrative
procedures such as nationwide searches, but another part of the PATRIOT Act, section 806,
uses the reference for asset forfeiture, which is more of a penalty. This has raised concerns
about those who exercise their first amendment rights. As a result, groups from both sides
of the political spectrum have wanted to change the definition for domestic terrorism. This
amendment fixes the problem...”).
to all judges on the FISA court, the FISA Court of Review, the Chief Justice of the
United States, and the House and Senate Judiciary and Intelligence Committees.
The U.S. Citizenship and Immigration Services. The Act directs the
Secretary of Homeland Security to report to the House and Senate Judiciary
Committees semi-annually regarding the internal affairs operations and investigations
of the U.S. Citizenship and Immigration Services. The first such written report is to
be submitted no later than April 1, 2006.100
Cigarette Smuggling. Federal law proscribes trafficking in contraband101102
cigarettes. Violations are punishable by imprisonment for up to five years, and
constitute racketeering predicate offenses.103 During debate on the House floor,
several Members pointed to the fact that in at least one instance terrorists had
resorted to cigarette smuggling as a financing mechanism.104
Section 121 amends federal law by lowering the threshold definition of
contraband cigarettes, from “a quantity in excess of 60,000 cigarettes” to 10,000
cigarettes, and adds a new provision for contraband smokeless tobacco, defined as
a quantity in excess of 500 cans or packages of smokeless tobacco. Additionally, the
Act creates a federal cause action against violators (other than Indian tribes or Indians105
in Indian country) for manufacturers, exporters, and state and local authorities.
Narco-Terrorism. The federal Controlled Substances Act prohibits drug
trafficking with severe penalties calibrated according to the kind and volume of drugs
and the circumstances involved106 (e.g., trafficking in 50 grams or more of crack
cocaine is punishable by imprisonment for not less than 10 years and for not more
than life; distributing a small amount of marijuana for no remuneration is punishable
by imprisonment for not more than one year).107 Drug offenses that involved
additional egregious circumstances are often subject to multiples of the sanctions for
the underlying offense.108 Providing material support for the commission of a
100 § 109(c), P.L. 109-177, 120 Stat. 205 (2006).
101 18 U.S.C. 2341-2346
102 18 U.S.C. 2344.
103 18 U.S.C. 1961(1). Federal racketeer influenced and corrupt organization laws (RICO)
proscribe the acquisition or operation of an enterprise, whose activities affected interstate
or foreign commerce, through the patterned commission of other specifically designated
crimes (predicate offenses); offenders face imprisonment for up to 20 years and confiscation
of offense related property, 18 U.S.C. 1961-1963.
104 151 CONG. REC. H6284 (daily ed. July 21, 2005) (statements of Reps. Coble,
Sensenbrenner, Cantor, and Kildee).
105 § 121(f), P.L. 109-177, 120 Stat. 223, 224 (2006), adding new 18 U.S.C. 2346(b).
106 21 U.S.C. 841-971.
107 21 U.S.C. 841, 844.
108 See, e.g., 21 U.S.C. 859 (sale of drugs to a child: twice the normal penalty); 861 (use
terrorist crime or to a designated foreign terrorist organization is likewise a federal
crime, punishable by imprisonment for not more than 15 years.109
Section 122 of the Act outlaws drug trafficking — for the benefit of a foreign
terrorist organization as defined in the immigration laws, 8 U.S.C. 1182(a)(3)(B), or
of a person who has or is engaged in terrorism as defined in 22 U.S.C. 2656f(d)(2)
(politically motivated violence against civilian targets) — under a wide range of
jurisdictional circumstances.110 The offense can only be committed with the
knowledge of the terrorist misconduct of its beneficiaries. Violators face
imprisonment for not less than twice the minimum penalty for drug trafficking under
21 U.S.C. 841(b)(1) nor more than life, and period of supervised release of not less
than five years.111 The Act also expressly prohibits attempts and conspiracies to
violate the new section. It may be that 21 U.S.C. 963 would have produced the same
result in the absence of an express provision, since it punishes attempts and
conspiracies to commit any offense defined in the Controlled Substances Act. It may
also be that in conjunction, section 963 and the new section outlaw conspiracies to
attempt a substantive violation of the new section.
Interference With the Operation of an Aircraft. It is a federal crime to
destroy an aircraft or its facilities under various circumstances giving rise to federal
jurisdiction or to attempt, or conspire to do so, 18 U.S.C. 32. Violations are
punishable by imprisonment for not more than 20 years. It is likewise a federal crime
to interfere with a member of a flight crew in the performance of their duties; this too
is punishable by imprisonment for not more than 20 years (or imprisonment for any
a child in drug trafficking: twice the normal penalty); 861(f) (sale of drugs to a pregnant
woman: twice the normal penalty).
109 18 U.S.C. 2339A, 2339B.
110 § 122, P.L. 109-177, 120 Stat. 225 (2006), adding new 21 U.S.C. 960A(b) (“There is
jurisdiction over an offense under this section if — (1) the prohibited drug activity or the
terrorist offense is in violation of the criminal laws of the United States; (2) the offense, the
prohibited drug activity, or the terrorist offense occurs in or affects interstate for foreign
commerce; (3) an offender provides anything of pecuniary value for a terrorist offense that
causes or is designed to cause death or serious bodily injury to a national of the United
States while that national is outside the United States, or substantial damage to the property
of a legal entity organized under the laws of the United States (including any of its States,
districts, commonwealths, territories, or possessions) while that property outside of the
United States; (4) the offense or the prohibited drug activity occurs in whole or in part
outside of the United States including on the high seas), and a perpetrator of the offense or
the prohibited drug activity is a national of the United States or a legal entity organized
under the laws of the United States (including any of its States, districts, commonwealths,
territories, or possessions); or (5) after the conduct required for the offense occurs an
offender is brought into or found in the United States, even if the conduct required for the
offense occurs outside the United States.”) In cases where neither the support, the drug
offense, nor the terrorism have any connection to the U.S. other than the later presences of
the offender here, paragraph 960A(b)(5) may exceed Congress’s legislative reach unless the
benefit of a treaty obligation can be claimed.
111 § 122, P.L. 109-177, 120 Stat. 225 (2006), adding new 21 U.S.C. 960A.
term of years or for life in the case of assault with a dangerous weapon), 49 U.S.C.
Section 123 of the Act amends 18 U.S.C. 32 to make it a federal crime to
interfere or disable the operator of an aircraft or aircraft facility with reckless
disregard for human safety or with the intent to endanger, subject to the same
sanctions that apply to other violations of the section. By operation of section 32, the
new prohibition extends to attempts and conspiracies to engage in such conduct, 18
U.S.C. 32(a)(7)(redesignated 18 U.S.C. 32(a)(8)).
Investigation of Political Activities. FISA bars the use of various
information collection techniques in the course of a foreign intelligence investigation,
if the investigation is based solely on the exercise of First Amendment protected
rights, 50 U.S.C. 1805(a)(3)(A), 1824(a)(1)(A), 1942(a)(1).
Section 124 of the Act expresses the sense of Congress that the federal
government should not conduct criminal investigations of Americans based solely
on their membership in non-violent political organizations or their participation in
other lawful political activity.
Immunity for Fire Equipment Donors. Section 125 grants immunity from
civil liability to the donors (other than manufacturers) of fire equipment to volunteer
Federal Data Mining Report. Section 126 directs the Attorney General to
submit a report to Congress within a year after the date of the Act’s enactment,
concerning the Department of Justice’s use or development of “pattern-based” data
mining technologies. While the Act provides a definition of “data-mining,”112 it does
not define “pattern-based.”113
112 § 126, P.L. 109-177, 120 Stat. 228 (2006).
113 The want of definition may be significant because the terms are not hermetically sealed
legal concepts, see, e.g., Safeguarding Privacy in the Fight Against Terrorism, Report of
the Technology and Privacy Advisory Committee, 45 (March 2004)(“data mining includes
‘pattern-based’ searches . . . These [might] involve developing models of what terrorist
behavior might look like and then examining databases for similar patterns. This is similar
to commercial data mining techniques — businesses develop a pattern of attributes or
behaviors that their good customers have in common, and then search databases to find
people meeting those patterns — but potentially far more powerful given the range of data
to which the government has access and the capacity of data mining to eliminate the need
to aggregate data before searching them. As we use the term, data mining may also include
‘subject-based’ searches, which look for information about a specific individual or links to
known terrorist suspects. This has long been a basic tool of criminal investigators
everywhere: start with known suspects and, with proper authorization (in many cases, a
warrant or a subpoena), look for information about them and the people with whom they
interact. However, the power of data mining technology and the range of data to which the
government has access have contributed to blurring the line between subject- and pattern-
based searches. The broader the search criteria, and the more people other than actual
terrorist who will be identified by those criteria, the more pattern-like these searches
Title II: Terrorist Death Penalty Enhancement Act of 2005
Title II of the Act makes several adjustments in federal death penalty law, which
concern air piracy cases arising before 1994, a redundant procedural mechanism in
federal capital drug cases, supervised release for terrorism offenses, and a transfer
of the law governing the appointment of counsel in capital cases.
Pre-1994 Capital Air Piracy Cases.
In the late 1960s and early 1970s, the U.S. Supreme Court held unconstitutional
the imposition of capital punishment under the procedures then employed by the
federal government and most of the states.114 In 1974, Congress established a revised
procedure for imposition of the death penalty in certain air piracy cases.115 In 1994,
when Congress made the procedural adjustments necessary to revive the death
penalty as a sentencing option for other federal capital offenses, it replaced the air
piracy procedures with those of the new regime.116 At least one court, however, held
that the new procedures could not be applied retroactively to air piracy cases
occurring after the 1974 fix but before the 1994 legislation, in the absence of an
explicit statutory provision.117
Section 211 of the Act adds an explicit provision to the end of the 1994
legislation.118 The amendment provides for the application of the existing federal
capital punishment procedures, 18 U.S.C. ch.228, in addition to consideration of the
mitigating and aggravating factors in place prior to the 1994 revival.119 Section 211
also provides for severance should any of the 1994 factors be found constitutionally
invalid, and includes a definition of “especially heinous, cruel, or depraved” used as
become. Even when a subject-based search starts with a known suspect, it can be
transformed into a pattern-based search as investigators target individuals for investigation
solely because of their connection with the suspect. The more tenuous the connection, the
more like a pattern-based search it becomes. Searches that lack specific focus on identified
suspects do pose greater risk for U.S. persons and should be subject to greater scrutiny and
114 Furman v. Georgia, 408 U.S. 238 (1972).
115 P.L. 93-366, 88 Stat. 409 (1974), 49 U.S.C. 1473 (1976 ed.)
116 P.L. 103-322, 108 Stat. 1796, 1970 (1994), 18 U.S.C. 3591-3598.
117 United States v. Safarini, 257 F.Supp.2d 191, 202-3 (D.D.C. 2003).
118 § 211(a), P.L. 109-177, 120 Stat. 230 (2006), adding subsection 60003(c) to P.L. 103-
119 P.L. 103-272, 108 Stat. 1242 (1994). Because the 1994 legislation was enacted almost
immediately after recodification of title 49, 49 U.S.C. 46503 never appeared in the official
United States Code or any of its supplements. The predecessor to 49 U.S.C. 46503 as
repealed in the 1994 capital punishment revival statute appears in 49 U.S.C. App. 1473
an aggravating factor in section 46503, to avoid the vagueness problems that might
otherwise attend the use of such an aggravating factor.120
The conference report accompanying H.R. 3199 notes that the changes apply to
a relative small group of individuals responsible for murders committed during the
course of hijackings in the mid 1980’s who would otherwise be eligible for parole
within 10 years of sentencing and could not be effectively sentenced to more than 30
years in prison.121
Life Time Supervised Release Regardless of Risks.
Prior to the Act, a federal court could have imposed a sentence of supervised
release, to be served upon release from prison, of any term of years or life if the
defendant has been convicted of a federal crime of terrorism (18 U.S.C.
2332b(g)(5)(B)) involving the foreseeable risk of physical injury of another, 18
U.S.C. 3583(j).122 Section 212 of the Act amends section 3583(j) to eliminate the
120 See, e.g., Maynard v. Cartwright, 486 U.S. 356, 359-61 (1988).
121 H.Rept. 109-333, at 101 (2005) ( “This provision is particularly important for several
reasons. In the absence of a death penalty that could be implemented for pre-FDPA
hijacking offenses resulting in death that also occurred before the effective date of the
Sentencing Guidelines on November 1, 1987, the maximum penalty available would be life
imprisonment. Under the pre-Sentencing Guidelines structure, even prisoners sentenced to
life imprisonment were eligible for a parole hearing after serving only ten years. While
there is a split in the Circuit Courts of Appeals as to whether a sentencing judge can impose
a sentence that could avert the 10-year parole hearing requirement, the current position of
the Bureau of Prisons is that a prisoner is eligible for a parole hearing after serving ten years
of a life sentence. Even if parole is denied on that first occasion, such prisoners are eligible
to have regularly scheduled parole hearings every two years thereafter. Moreover, in
addition to parole eligibility after ten years, the old sentencing and parole laws incorporated
a presumption that even persons sentenced to life imprisonment would be released after no
more than 30 years. In the context of the individuals responsible for the hijacking incidents
described above, most of the perpetrators were no older than in their twenties when they
committed their crimes. The imposition of a pre-Guidelines sentence of life imprisonment
for these defendants means that many, if not all of them, could be expect to be released from
prison well within their lifetime. Given the gravity of these offenses, coupled with the
longstanding Congressional intent to have a death penalty available for the offense of air
piracy resulting in death, such a result would be at odds with the clear directive of
122 The federal crimes of terrorism are violations of: 18 U.S.C. 32 (destruction of aircraft
or aircraft facilities), 37 (violence at international airports), 81 (arson within special
maritime and territorial jurisdiction), 175 or 175b (biological weapons), 175c (variola virus),
cabinet, and Supreme Court assassination and kidnaping), 831 (nuclear materials), 842(m)
or (n) (plastic explosives), 844(f)(2) or (3) (arson and bombing of Government property
risking or causing death), 844(I) (arson and bombing of property used in interstate
commerce), 930(c) (killing or attempted killing during an attack on a Federal facility with
a dangerous weapon), 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad),
1030(a)(1) (protection of computers), 1030(a)(5)(A)(I) resulting in damage as defined in
1030(a)(5)(B) (ii) through (v) (protection of computers), 1114 (killing or attempted killing
requirement that the defendant be convicted of a crime involving a foreseeable risk
of injury; conviction of any federal crime of terrorism is sufficient.
Capital Procedures in Drug Cases.
Prior to the Act, federal law provided two sets of death penalty procedures for
capital drug cases, the procedures applicable in federal capital cases generally, 18
U.S.C. 3591-3598, and the procedures specifically applicable in federal capital drug
cases, 21 U.S.C. 848. The two procedures are virtually identical according to United
States v. Matthews, 246 F.Supp.2d 137, 141 (N.D.N.Y. 2002). Section 221 of the
Act eliminates the specific drug case procedures so that only the general procedures
apply in such cases. According to the conference report accompanying H.R. 3199,
this “eliminates duplicative death procedures under title 21 of the United States code,
and consolidates procedures governing all Federal death penalty prosecutions in
existing title 18 of the United States Code, thereby eliminating confusing
requirements that trial courts provide two separate sets of jury instructions.”123
Appointment of Counsel in Capital Cases.
Prior to the Act, the federal capital drug provisions housed provisions for the
appointment of counsel to assist indigents facing federal capital charges and indigent
of officers and employees of the United States), 1116 (murder or manslaughter of foreign
officials, official guests, or internationally protected persons), 1203 (hostage taking), 1361
(government property or contracts), 1362 (destruction of communication lines, stations, or
systems), 1366(a) (destruction of an energy facility), 1751(a), (b), (c), or (d) (Presidential
and Presidential staff assassination and kidnaping), 1992 (train wrecking), 1993 (terrorist
attacks and other acts of violence against mass transportation systems), 2155 (destruction
of national defense materials, premises, or utilities), 2156 (national defense material,
premises, or utilities), 2280 (violence against maritime navigation), 2281 (violence against
maritime fixed platforms), 2332 (certain homicides and other violence against United States
nationals occurring outside of the United States), 2332a (use of weapons of mass
destruction), 2332b (acts of terrorism transcending national boundaries), 2332f (bombing
of public places and facilities), 2332g (missile systems designed to destroy aircraft), 2332h
(radiological dispersal devices), 2339 (harboring terrorists), 2339A (providing material
support to terrorists), 2339B (providing material support to terrorist organizations), 2339C
(financing of terrorism), 2340A (torture); 42 U.S.C. 2122 (prohibitions governing atomic
weapons), 2284 (sabotage of nuclear facilities or fuel); 49 U.S.C. 46502 (aircraft piracy),
the second sentence of 46504 (assault on a flight crew with a dangerous weapon),
46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of human life by
means of weapons, on aircraft), 46506 if homicide or attempted homicide is involved
(application of certain criminal laws to acts on aircraft), and 60123 (b) (destruction of
interstate gas or hazardous liquid pipeline facility). Section 112 of the Act adds 18 U.S.C.
2339D(foreign military training) and 21 U.S.C. 1010A (narco-terrorism) to the list, 18
U.S.C. 2332b(g)(5)(B) as amended by the Act.
123 H.Rept. 109-333, at 102 (2005).
federal and state death row inmates during federal habeas proceedings, 21 U.S.C.
Title III: Reducing Crime and Terrorism at America’s Seaports
Act of 2005
Title III of the Act, among other things, creates more severe criminal penalties
concerning criminal and terrorist activities committed at U.S. seaports or aboard
Seaport Entry by False Pretenses.
The Maritime Transportation Security Act requires the submission to the
Department of Homeland Security of vessel and facility security plans that include
provisions for establishing and controlling secure areas, 46 U.S.C. 70103(c). It also
calls for issuance of transportation security cards in order to regulate access to secure
areas, 46 U.S.C. 70105. It contains no specific provisions regarding trespassing upon
security areas, but the Coast Guard and Maritime Transportation Act amended its
provisions in a manner that suggests the application of state criminal laws as well as
criminal sanctions found in the Deepwater Port Act, 33 U.S.C. 1514 (imprisonment
for not more than one year); the Ports and Waterways Safety Act, 33 U.S.C. 1232
(imprisonment for not more than 10 years); and the act of June 15, 1917, 50 U.S.C.
As a general matter, it is a federal crime to use fraud or false pretenses to enter
federal property, a vessel or aircraft of the United States, or the secured area in an
airport, 18 U.S.C. 1036. The offense is punishable by imprisonment for not more
than five years if committed with the intent to commit a felony and imprisonment for
not more six months in other cases. The same maximum penalty applies to making
a false statement to federal officials or in any matter within the jurisdiction of a
federal agency or department, 18 U.S.C. 1001. Possession of phony government
identification to defraud the U.S. is a one-year felony, absent further aggravating
circumstances under which the sanctions are increased, 18 U.S.C. 1028 (a)(4), (b)(6).
Moreover, except to the extent covered by 18 U.S.C. 1036 or 18 U.S.C. 1863
(trespassing in the national forests), unlawful entry to property (federal or otherwise)
with the intent to commit a second crime is punishable under the laws of the state in
which it occurs, cf., 18 U.S.C. 13.
Section 302 of the Act expands 18 U.S.C. 1036 to cover seaports and increases
the penalty for violations with respect to any of the protected areas committed with
the intent to commit a felony, from imprisonment for not more than five years to
124 § 222, P.L. 109-177, 120 Stat. 231 (2006), adding new 18 U.S.C. 3599.
125 46 U.S.C. 70119 expressly authorizes state and local law enforcement officers to make
arrests for violations of these Acts, and notes that the authority is in addition and should not
be construed to limit any other authority they may possess.
imprisonment for not more than 10 years, amended 18 U.S.C. 1036.126 The section
also provides a definition of “seaport.”127
The conference report accompanying H.R. 3199 quotes the Interagency
Commission report and describes the problems the amendments are designed to
According to the Report of the Interagency Commission ... ‘[c]ontrol of access
to the seaport or sensitive areas within the seaport is often lacking.’ Such
unauthorized access is especially problematic, because inappropriate controls
may result in the theft of cargo and more dangerously, undetected admission of
terrorists. In addition to establishing appropriate physical, procedural, and
personnel security for seaports, it is important that U.S. criminal law adequately128
reflect the seriousness of the offense.
However, critics might point out that the section does not deal with all
“unauthorized access,” only access accomplished by fraud. And, they argue, even if
the seriousness of such unauthorized access to seaport restricted areas with criminal
intent might warrant imprisonment for up to 10 years, there is nothing in conference
or Commission reports to explain the necessity for the comparable penalty increase
for the other forms of trespassing upon the other areas covered under section 1036.
126 “(a)Whoever, by any fraud or false pretense, enters or attempts to enter — (1) any real
property belonging in whole or in part to, or leased by, the United States; (2) any vessel or
aircraft belonging in whole or in part to, or leased by, the United States; (3) any secured or
restricted area of any seaport, designated as secure in an approved security plan, as
required under section 70103 of title 46, United States Code, and the rules and regulations
promulgated under that section; or (4) any secure area of any airport, shall be punished as
provided in subsection (b) of this section.
“(b) The punishment for an offense under subsection (a) of this section is — (1) a fine
under this title or imprisonment for not more than [5 years] 10 years, or both, if the offense
is committed with the intent to commit a felony; or (2) a fine under this title or
imprisonment for not more than 6 months, or both, in any other case,” 18 U.S.C. 1036(a),(b)
as amended by the Act (changes are in italics - deletions in bold).
127 “As used in this title, the term ‘seaport’ means all piers, wharves, docks, and similar
structures, adjacent to any waters subject to the jurisdiction of the United States, to which
a vessel may be secured, including areas of land, water, or land and water under and in
immediate proximity to such structures, buildings on or contiguous to such structures, and
the equipment and materials on such structures or in such buildings,” new 18 U.S.C. 26 as
added by the Act. The term “seaport” does not appear to have been used in any other
section of title 18; elsewhere in federal law the term “port” is more commonly used, see,
e.g., 6 U.S.C. 468 (Coast Guard’s homeland security mission), 18 U.S.C. 2199(stowaways),
perhaps to make clear that ports such as those on Great Lakes are covered notwithstanding
the fact they may not ordinarily be thought of as “seaports.”
128 H.Rept. 109-333, at 103 (2005).
Obstructing Maritime Inspections.
Various federal laws prohibit the failure to heave to or otherwise obstruct
specific maritime inspections under various circumstances.129
Section 303 of the Act establishes a new, general federal crime that outlaws, in
the case of vessel subject to the jurisdiction of the United States, the failure to heave
to, or to forcibly interfere with the boarding of the vessel by federal law enforcement
or resist arrest, or to provide boarding federal law enforcement officers with false
information concerning the vessel’s cargo, origin, destination, registration,
ownership, nationality or crew.130 The crime is punishable by imprisonment for not
more than five years.
Interference with Maritime Commerce.
Federal law prohibits violence against maritime navigation, 18 U.S.C. 2280,
burning or bombing vessels, 18 U.S.C. 2275, burning or bombing property used in
or whose use affects interstate or foreign commerce, 18 U.S.C. 844(I), destruction of
property within the special maritime and territorial jurisdiction of the United States,
18 U.S.C. 1363. None of them are punishable by life imprisonment unless death
results from their commission.131
Section 304 of the Act creates two new federal crimes. The first makes it a
federal crime punishable by imprisonment for any term of years or for life (or the
death penalty if death results) to place a dangerous substance or device in the
navigable waters of the United States with the intent to damage a vessel or its cargo
or to interfere with maritime commerce.132
The second of section 304’s provisions makes it a federal crime punishable by
imprisonment for not more than 20 years to tamper with any navigational aid
maintained by the Coast Guard or St. Lawrence Seaway Development Corporation
in manner likely to endanger navigation, new 18 U.S.C. 2282B as added by the Act.
Opponents may find the sanctions a bit stiff, but in the words of the conference
report, “the Coast Guard maintains over 50,000 navigational aids on more than
25,000 miles of waterways. These aids ... are inviting targets for terrorists.”133 There
may also be some question why the new section is necessary given that section 306
of the Act provides, “Whoever knowingly ... damages, destroys, or disables ... any
129 See, e.g., 16 U.S.C. 2435, 2438 (enforcement of the Antarctic Marine Living Resources
Convention); 16 U.S.C. 5505, 5508 (high seas fishing compliance).
130 § 303(a), P.L. 109-177, 120 Stat. 233, 234, adding new 18 U.S.C. 2237.
131 For example, section 2280, which among other things, “prohibits destroy[ing] a ship or
caus[ing] damage to a ship or to its cargo which is likely to endanger the safe navigation of
that ship” or attempting or conspiring to do so is punishable by imprisonment for not more
than 20 years or if death results by death or imprisonment for life or any term of years, 18
132 § 304, P.L. 109-177, 120 Stat. 235, adding new 18 U.S.C. 2282A
133 H.Rept. 109-333, at 103 (2005).
aid to navigation ... shall be ... imprisoned not more than 20 years,” new 18 U.S.C.
2291(a)(3) as added by the Act; see also, new 18 U.S.C. 2291(a)(4) as added by
section 306 of the Act (“Whoever knowingly interferes by force or violence with the
operation of ... any aid to navigation ..., if such action is likely to endanger the safety
of any vessel in navigation”).
Transporting Dangerous Materials or Terrorists.
Section 305 of the Act establishes two other federal terrorism-related
transportation offenses, one for transporting dangerous materials and the other for
Transporting Dangerous Materials. It is a federal crime to possess
biological agents, chemical weapons, atomic weapons, and nuclear material, each134
punishable by imprisonment for any term of years or for life. And although the
penalties vary, it is likewise a federal crime to commit any federal crime of135
terrorism. Morever, it is a federal crime to provide material support, including
transportation, for commission of various terrorist crimes or for the benefit of a
designated terrorist organization, 18 U.S.C. 2339A, 2339B, or to transport explosives
in interstate or foreign commerce with the knowledge they are intended to be used
in injure an individual or damage property, 18 U.S.C. 844(d). Most of these offenses
condemn attempts and conspiracies to commit them, and accomplices and136
coconspirators incur comparable liability in any event.
Section 305 of the Act establishes a new federal offense which prohibits
transporting explosives, biological agents, chemical weapons, radioactive or nuclear
material knowing it is intended for use to commit a federal crime of terrorism —
aboard a vessel in the United States, in waters subject to U.S. jurisdiction, on the high137
seas, or aboard a vessel of the United States. The crime is punishable by
imprisonment for any term of years or for life and may be punishable by death if
death results from commission of the offense.
Transporting Terrorists. While it is a crime to harbor a terrorist, 18 U.S.C.
2339, or to provide material support, including transportation, for the commission of
a terrorist offense or for the benefit of a foreign designated terrorist organization, 18
U.S.C. 2339A, 2339B, such offenses are only punishable by imprisonment for not
more than 15 years. The same perceived defect may appear to some in the penalties
for aiding and abetting commission of the various federal crimes of terrorism and in138
the penalties available for committing many of them.
134 18 U.S.C. 175, 229, 831; 42 U.S.C. 2272.
135 Each crime designated in 18 U.S.C. 2332b(g)(5)(B) carries its own penalty.
136 18 U.S.C. 2; United States v. Pinkerton, 328 U.S. 640, 647-48 (1946).
137 §305(a), P.L. 109-177, 120 Stat. 236 (2006), adding new 18 U.S.C. 2283.
138 For example, destruction of aircraft or violence at international airports in violation of
18 U.S.C. 32 and 73 respectively are punishable by imprisonment for not more than 20
years, unless a death results; and the same penalties apply to computer fraud and abuse
Section 305 creates a new federal offense, 18 U.S.C. 2284, punishable by
imprisonment for any term of years or for life for transporting an individual knowing
he intends to commit, or is fleeing from the commission of, a federal crime of
terrorism. Unlike the new 18 U.S.C. 2282A(c), created in section 304, neither of the
section 305 offenses have an explicit exception for official activities. Of course,
even though facially the new section 2284 forbids transporting terrorists for purposes
of extradition or prisoner transfer, it would never likely be read or applied to prevent
or punish such activity.
Interference With Maritime Navigation.
Chapter 111 of title 18 of the United States Code relates to shipping and by and
large outlaws violence in various forms committed against vessels within U.S.
jurisdiction.139 Other sections of the Code proscribe the use of fire, explosives or
violence with sufficient breath of protect shipping under some circumstances. For
example, one section condemns the use fire or explosives against property used in (or
used in an activity affecting) interstate or foreign commerce, 18 U.S.C. 844(I).
Another prohibits destruction of property within the maritime jurisdiction of the
Untied States, 18 U.S.C. 1363, and a third, arson within the maritime jurisdiction, 18
U.S.C. 81. Hoaxes relating to violations of chapter 111 are punishable by
imprisonment for not more than five years (not more than 20 years if serious injury
results and if death results, by imprisonment for any term of years or for life or by
death), 18 U.S.C. 1038.
Section 306 of the Act enacts a new chapter 111A supplementing chapter 111
as well as section 1038 and consists of four sections. Of the four sections, two are
substantive, proscribing hoaxes and the destruction of vessels or maritime facilities,
new 18 U.S.C. 2291, 2292; and two procedural, one providing the jurisdictional base
for the substantive offenses, new 18 U.S.C. 2290, and the other barring prosecution
of certain misdemeanor or labor violations, new 18 U.S.C. 2993.
According to the conference report accompanying H.R. 3199, “this section
harmonizes the somewhat outdated maritime provisions with the existing criminal
sanctions for destruction or interference with an aircraft or aircraft facilities in 18
U.S.C. 32, 34, and 35.”140 It is not surprising, therefore, that the new destruction
offense mirrors the substantive provisions for the destruction of aircraft and their
violations considered federal crimes of terrorism, 18 U.S.C. 1030(a)(5), (c)(4). Aiding and
abetting carries the same penalties as the underlying offense, 18 U.S.C. 2.
139 The offenses include 18 U.S.C. 2271 (conspiracy to destroy vessels), 2272 (destruction
of vessel by owner); 2273 (destruction of vessel by nonowner); 2274 (destruction or misuse
of vessel by person in charge); 2275 (firing or tampering with vessel), 2276 (breaking and
entering a vessel); 2277 (explosives or dangerous weapons aboard vessels); 2278
(explosives on vessels carrying steerage passengers); 2279 (boarding vessels before arrival);
2280 (violence against maritime navigation); and 2281 (violence against maritime fixed
140 H.Rept. 109-333, at 104 (2005).
facilities, 18 U.S.C. 32,141 although it differs from the aircraft prohibition in several
respects. First, it has exceptions for lawful repair and salvage operations and for the
lawful transportation of hazardous waste, new 18 U.S.C. 2291(b). Second, in the
manner of 18 U.S.C. 1993 (attacks on mass transit), it increases the penalty for
violations involving attacks on conveyances carrying certain hazardous materials to
life imprisonment, new 18 U.S.C. 2291(c). Third, it tightens the “death results”
sentencing escalator so that a sentence of death or imprisonment for life or any term
of years is only warranted if the offender intended to cause the resulting death, new
In addition to these, the substantive prohibitions of the new section 2291 differ
from the otherwise comparable prohibitions of 18 U.S.C. 2280 (concerning violence
against maritime navigation) in two major respects. The proscriptions in section
141 “Whoever knowingly — (1) sets fire to, damages, destroys, disables, or wrecks any
vessel; (2) places or causes to be placed a destructive device or substance, as defined in
section 31(a)(3), or explosive, as defined in section 844(j) in, upon, or near, or otherwise
makes or causes to be made unworkable or unusable or hazardous to work or use, any vessel,
or any part or other materials used or intended to be used in connection with the operation
of a vessel; (3) sets fire to, damages, destroys, disables or places a destructive device or
substance in, upon, or near, any maritime facility, including any aid to navigation, lock,
canal, or vessel traffic service facility or equipment; (4) interferes by force or violence with
the operation of any maritime facility, including any aid to navigation, lock, canal, or vessel
traffic service facility or equipment, if such action is likely to endanger the safety of any
vessel in navigation; (5) sets fire to, damages, destroys, or disables or places a destructive
device or substance in, upon, or near, any appliance, structure, property, machine, or
apparatus, or any facility or other material used, or intended to be used, in connection with
the operation, maintenance, loading, unloading or storage of any vessel or any cargo carried
or intended to be carried on any vessel; (6) performs an act of violence against or
incapacitates any individual on any vessel, if such act of violence or incapacitation is likely
to endanger the safety of the vessel or those on board; (7) performs an act of violence
against a person that causes or is likely to cause serious bodily injury, as defined in section
1365(h)(3), in, upon, or near, any appliance, structure, property, machine, or apparatus, or
any facility or other material used, or intended to be used, in connection with the operation,
maintenance, loading, unloading or storage of any vessel or any cargo carried or intended
to be carried on any vessel; (8) communicates information, knowing the information to be
false and under circumstances in which such information may reasonably be believed,
thereby endangering the safety of any vessel in navigation; or (9) attempts or conspires to
do anything prohibited under paragraphs (1) through (8) of this subsection, shall be fined
under this title or imprisoned not more than 20 years, or both,” 18 U.S.C. 2291(a) as added
by the Act. Section 2291 carries a 20 year maximum sanction for violations. The other
sections cited in the report refer to the death penalty (18 U.S.C. 34) and hoax (18 U.S.C. 35)
provisions relating to violations of 18 U.S.C. 32.
impact on safe operation;142 new section 2291 is less likely to feature a comparable
On the other hand, because it is treaty-based, section 2280 enjoys a broader
jurisdictional base than new section 2290 is able to provide for new section 2291.
By virtue of new section 2290, a violation of new section 2291 is only a federal crime
if it is committed within the United States, or the offender or victim is a U.S.
national, or the vessel is a U.S. vessel, or a U.S. national is aboard the vessel
involved. In the case of subsection 32(b) or section 2280, there need be no more
connection to the United States than that the offender is subsequently found or
brought here, 18 U.S.C. 32(b), 2280(b)(1)(c). Like section 2280, however, new
section 2291 is subject to exceptions for misdemeanor offenses and labor disputes.143
New section 2292 creates a hoax offense in the image of 18 U.S.C. 35 which
relates to hoaxes in an aircraft context. It sets a basic civil penalty of not more than
$5000 for hoaxes involving violations of the new section 2291 or of chapter 111, the
existing shipping chapter.144 If the misconduct is committed “knowingly,
intentionally, maliciously, or with reckless disregard for the safety of human life,” it
is punishable by imprisonment for not more than five years.145 The Act also requires
142 “A person who unlawfully and intentionally — (A) seizes or exercises control over a
ship by force or threat thereof or any other form of intimidation; (B) performs an act of
violence against a person on board a ship if that act is likely to endanger the safe navigation
of that ship; (C) destroys a ship or causes damage to a ship or to its cargo which is likely to
endanger the safe navigation of that ship; (D) places or causes to be placed on a ship, by any
means whatsoever, a device or substance which is likely to destroy that ship, or cause
damage to that ship or its cargo which endangers or is likely to endanger the safe navigation
of that ship; (E) destroys or seriously damages maritime navigational facilities or seriously
interferes with their operation, if such act is likely to endanger the safe navigation of a ship;
(F) communicates information, knowing the information to be false and under circumstances
in which such information may reasonably be believed, thereby endangering the safe
navigation of a ship; (G) injures or kills any person in connection with the commission or
the attempted commission of any of the offenses set forth in subparagraphs (A) through (F);
or (H) attempts or conspires to do any act prohibited under subparagraphs (A) through (G),
shall be fined under this title, imprisoned not more than 20 years, or both; and if the death
of any person results from conduct prohibited by this paragraph, shall be punished by death
or imprisoned for any term of years or for life,”18 U.S.C. 2280(a)(1).
143 “It is a bar to prosecution under this chapter if — (1) if the conduct in question occurred
within the United States in relation to a labor dispute, and such conduct is prohibited as a
felony under the law of the State in which it was committed; or (2) such conduct is
prohibited as a misdemeanor, and not a felony, under the law of the State in which it was
committed,” new 18 U.S.C. 2293(a) as added by § 306 of the Act, 120 Stat. 239 (2006).
144 “Whoever imparts or conveys or causes to be imparted or conveyed false information,
knowing the information to be false, concerning an attempt or alleged attempt being made
or to be made , to do any act that would be a crime prohibited by this chapter or by chapter
111 of this title, shall be subject to a civil penalty of not more than $5,000, which shall be
recoverable in a civil action brought in the name of the United States,” new 18 U.S.C.
145 § 306, P.L. 109-177, 120 Stat. 239 (2006), adding new 18 U.S.C. 2292(b).
that in both instances, jurisdiction over the offense is governed by the jurisdiction of
the offense that is the subject to the hoax.146
In the case of hoaxes involving violations of chapter 111, the new section
affords the government an alternative ground for prosecution to that offered by 18
Theft From Maritime Commerce.
Section 307 of the Act expands or clarifies the application of various criminal
provisions particularly in the case of maritime commerce.
Theft From Interstate Commerce. Federal law prohibits theft from
shipments traveling in interstate or foreign commerce; violations are punishable by
imprisonment for not more than 10 years (not more than one year if the value of the
property stolen is $1000 or less), 18 U.S.C. 659.
Section 307 increases the penalty for theft of property valued at $1000 or less
to imprisonment for not more than three years, 18 U.S.C. 659 as amended by the Act.
It also makes it clear that theft from trailers, cargo containers, freight stations, and
warehouses are covered, and that the theft of goods awaiting transshipment is also
covered, 18 U.S.C. 659 as amended by the Act.
Interstate or Foreign Transportation of Stolen Vessels. Interstate or
foreign transportation of a stolen vehicle or aircraft is punishable by imprisonment
for not more than 10 years, 18 U.S.C. 2312; receipt of a stolen vehicle or aircraft that
has been transported in interstate or foreign commerce carries the same penalty, 18
Section 307 expands the coverage of federal law to cover the interstate or
foreign transportation of a stolen vessel and receipt of a stolen vessel that has been
transported in interstate or overseas, 18 U.S.C. 2311 as amended by the Act. The
United States Sentencing Commission is to review the sentencing guidelines
application to violations of 18 U.S.C. 659 and 2311. The Attorney General is to see
that cargo theft information is included in the Uniform Crime Reports and to report
annually to Congress on law enforcement activities relating to theft from interstate
or foreign shipments in violations of 18 U.S.C. 659.
Stowing away on a vessel or an aircraft is a federal crime; offenders are subject
to imprisonment for not more than one year, 18 U.S.C. 2199. Section 308 of the Act
increases the penalty for stowing away from imprisonment for not more than one year
to not more than five years (not more than 20 years if the offense is committed with
the intent to inflict serious injury upon another or if serious injury to another results;
or if death results, by imprisonment for any term of years or for life), 18 U.S.C. 2199
as amended by the Act. The “death results” capital punishment provision of the Act
146 § 306, P.L. 109-177, 120 Stat. 239 (2006), adding new 18 U.S.C. 2292(c).
is only triggered if the offender intended to cause a death, 18 U.S.C. 2199(3) as
amended by the Act.
Port Security Bribery.
Bribery of a federal official is punishable by imprisonment for not more than 15
years, 18 U.S.C. 201; many federal crimes of terrorism carry maximum penalties of
imprisonment for not more than 20 years or more.147 Those who aid and abet or
conspire for the commission of such crimes are subject to sanctions.148
Section 309 of the Act makes it a federal crime to bribe any individual (private
or public) with respect to various activities within any secure or restricted area or
seaport — with the intent to commit international or domestic terrorism (as defined
in 18 U.S.C. 2331). Offenders face imprisonment for not more than 15 years, new
Smuggling Goods Into the United States.
Section 310 increases the sentence of imprisonment for smuggling into the
United States from not more than five years to not more than 20 years, 18 U.S.C. 545
as amended by the Act.
Smuggling Goods From the United States.
The penalty for smuggling goods into a foreign country by the owners,
operators, or crew of a U.S. vessel is imprisonment for not more than five years, 18
U.S.C. 546. Other penalties apply for smuggling or unlawfully exporting specific
goods or materials out of the U.S. or into other countries.149
Section 311 of the Act creates a new federal crime which outlaws smuggling
goods out of the United States; offenders face imprisonment for not more than 10
years, new 18 U.S.C. 554 as added by the Act. Once smuggling from the U.S. is
made a federal offense, corresponding changes in federal forfeiture and custom laws
become a possibility.
Federal law proscribes laundering the proceeds of various federal crimes
(predicate offenses), 18 U.S.C. 1956, 1957. Smuggling goods into the U.S. in
violation of 18 U.S.C. 545 is a money laundering predicate offense, 18 U.S.C.
1956(c)(7)(D). The proceeds involved in financial transactions in violation of the
money laundering statutes are generally subject to confiscation, 18 U.S.C.
147 See, e.g., 18 U.S.C. 32 (destruction of aircraft, 20 years), 81 (arson, 25 years), 2332a
(weapons of mass destruction, life imprisonment).
148 18 U.S.C. 2; United States v. Pinkerton, 340 U.S. 640 (1946).
149 See, e.g., 31 U.S.C. 5332 (bulk cash), 21 U.S.C. 953 (controlled substances), 18 U.S.C.
to the money laundering predicate offense list, 18 U.S.C. 1956(c)(7)(D) as amended
by the Act.
Federal law calls for the confiscation of goods smuggled into the United States
and of the conveyances used to smuggle them in, 19 U.S.C. 1595a. Section 311 calls
for the confiscation of goods smuggled out of the U.S. and of any property used to
facilitate the smuggling, new 19 U.S.C. 1595a(d) as added by the Act.
It is a federal crime to remove property from the custody of the Customs
Service. Section 311 increases the penalty for violation of this crime to
imprisonment for not more than 10 years, 18 U.S.C. 549 as amended by the Act.
Title IV: Combating Terrorism Financing Act of 2005
Title IV of the Act strengthens penalties for money laundering, particularly
related to financing terrorism, and makes changes to forfeiture authority. There is
also a provision that might be construed to permit pre-trial asset freezes in certain
civil forfeiture cases made part of the property owner’s criminal trial.
International Emergency Economic Powers Act Penalties.
The International Emergency Economic Powers Act (IEEPA), 50 U.S.C. 1701-
1707, grants the President the power to impose economic restrictions “to deal with
unusual and extraordinary [external] threats to the national security, foreign policy,
or economy of the United States,” 50 U.S.C. 1701(a). The authority has been
invoked among other instances to block Iranian assets, Exec. Order No. 12170, 44
Fed.Reg. 65729 (Nov. 1979); to prohibit trade and certain other transactions with
Libya, Exec. Order No. 12543, 51 Fed.Reg. 875 (Jan. 7, 1986); to impose economic
sanctions on countries found to be contributing to the proliferation of weapons of
mass destruction, Exec. Order No. 12938, 59 Fed. Reg. 59099 (Nov. 14, 1994); to
block the assets and prohibit financial transactions with significant narcotics
traffickers, 60 Fed.Reg. 54579 (Oct. 21, 1995); and to block the property and prohibit
transactions with persons who commit, threaten to commit, or support terrorism,
Exec. Order No. 13224, 66 Fed.Reg. 49079 (Sept. 23, 2001).
The Act increases the imprisonment and civil penalty for violations of
presidential orders or related regulations issued under IEEPA, including but not
limited to those that bar financial dealings with designated terrorists and terrorist
groups. Violations are now punishable by a civil penalty of not more than $50,000
(previously $10,000) and by imprisonment for not more than 20 years (previously 10
Terrorist Money Laundering.
RICO. The federal Racketeer Influenced and Corrupt Organizations (RICO)
law imposes severe penalties (up to 20 years imprisonment) for acquiring or
operating an enterprise through the commission of a pattern of other crimes
150 §402, P.L. 109-177, 120 Stat. 243 (2006), amending 50 U.S.C. 1705.
(predicate offenses), 18 U.S.C. 1961-1965. One federal money laundering statute
prohibits, among other things, using the funds generated by the commission of a
predicate offense in a financial transaction designed to conceal the origin of the funds
or promote further predicate offenses, 18 U.S.C. 1956. A second statute condemns
financial transactions involving more than $10,000 derived from a predicate offense,
18 U.S.C. 1957. Crimes designated RICO predicate offenses automatically qualify
as money laundering predicate offenses, 18 U.S.C. 1956(c)(7)(A), 1957(f)(3).
Property associated with either a RICO or money laundering violation is subject to
confiscation, but RICO forfeiture requires conviction of the property owner, 18
U.S.C. 1963, money laundering forfeiture does not, 18 U.S.C. 1956, 1957, 981.
It is a federal crime to operate a business that transmits money overseas either
directly or indirectly, without a license, or for a licensed business to either fail to
comply with applicable Treasury Department regulations or to transmit funds that it
knows will be used for, or were generated by, criminal activities, 18 U.S.C. 1960.
The Act adds 18 U.S.C. 1960 (illegal money transmissions) to the RICO
predicate offense list and consequently to the money laundering predicate offense list,
18 U.S.C. 1961(1) as amended by the Act. The House-passed version of the
Reauthorization Act also added 8 U.S.C. 1324a (employing aliens) to the RICO list;
however, this provision was not included in the conference bill and consequently is
not part of the Act as enacted.
Direct Money Laundering Predicates. Section 403(b) of the Act states,
“Section 1956(c)(7)(D) of title 18, United States Code, is amended by striking ‘or
any felony violation of the Foreign Corrupt Practices Act’ and inserting ‘any felony
violation of the Foreign Corrupt Practices Act.’” However, this grammatical change
relating to the Foreign Corrupt Practices Act (dropping the “or” before the reference)
is redundant. The Intelligence Reform and Terrorism Prevention Act already made
this grammatical fix, 118 Stat. 3774 (2004).
Investigative Jurisdiction. The Act makes conforming amendments to 18
U.S.C. 1956(e), 1957(e) concerning the money laundering investigative jurisdiction
of various components of the Department of Homeland Security.151 Procedures for
151 “Violations of this section may be investigated by such components of the Department
of Justice as the Attorney General may direct, and by such components of the Department
of the Treasury as the Secretary of the Treasury may direct, as appropriate and, with respect
to offenses over which the Department of Homeland Security has jurisdiction, by such
components of the Department of Homeland Security as the Secretary of Homeland Security
may direct, and, with respect to offenses over which the United States Postal Service has
jurisdiction, by the Postal Service. Such authority of the Secretary of the Treasury, the
Secretary of Homeland Security, and the Postal Service shall be exercised in accordance
with an agreement which shall be entered into by the Secretary of the Treasury, the
Secretary of Homeland Security, the Postal Service, and the Attorney General. Violations
of this section involving offenses described in paragraph (c)(7)(E) may be investigated by
such components of the Department of Justice as the Attorney General may direct, and the
National Enforcement Investigations Center of the Environmental Protection Agency,”18
U.S.C. 1956(e) as amended by the Act (language added by the Act in italics); the Act
coordination, to avoid duplication of efforts, and because investigative agencies share
in the distribution of forfeited property to the extent of their participation in the
investigation that led to confiscation, may prove necessary in implementing these
provisions, 18 U.S.C. 981(d), (e); 19 U.S.C. 1616a.
Forfeiture for Foreign Crimes.
The property of individuals and entities that prepare for or commit acts of
international terrorism against the United States or against Americans is subject to
federal confiscation, 18 U.S.C. 981(a)(1)(G). Criminal forfeiture is confiscation that
occurs upon conviction for a crime for which forfeiture is a consequence, e.g., 18
U.S.C. 1963 (RICO). Civil forfeiture is confiscation accomplished through a civil
proceeding conducted against the “offending” property based on its relation to a
crime for which forfeiture is a consequence, e.g., 18 U.S.C. 981. Criminal forfeiture
is punitive; civil forfeiture is remedial, Calderon-Toledo v. Pearson Yacht Leasing,
416 U.S. 663, 683-88 (1974). A convicted defendant may be required to surrender
substitute assets if the property subject to criminal forfeiture is located overseas or
otherwise beyond the reach of the court, 18 U.S.C. 853(p). Civil forfeiture ordinarily
requires court jurisdiction over the property, but when forfeitable property is held
overseas in a financial institution that has a correspondent account in this country the
federal government may institute and maintain civil forfeiture proceedings against
the funds in the interbank account here, 18 U.S.C. 9871(k).
Article III, section 2 of the United States Constitution declares in part that, “no
attainder of treason shall work corruption of blood, or forfeiture of estate except
during the life of the person attainted,” U.S.Const. Art.III, §3, cl.2. Forfeiture of
estate is the confiscation of property simply because it is the property of the
defendant, without any other connection to the crime for which gives rise to the
forfeiture. The constitutional provision applies only in cases of treason, but due
process would seem likely to carry the ban to forfeiture of estate incurred as a result
of other crimes, particularly lesser crimes.152 The assumption may be hypothetical
because with a single Civil War exception, until very recently federal law only called
for the forfeiture of property that had some nexus to the confiscation-triggering crime
beyond mere ownership by the defendant.153 Subparagraph 981(a)(1)(G) calls for the
confiscation the property of individuals and entities that engage in acts of terrorism
amends 18 U.S.C. 1957(e) with similar language.
152 United States v. Grande, 620 F.2d 1026,1038 (4th Cir. 1980)(“We would agree. . . that
if §1963 revives forfeiture of estate as that concept was expressed in the Constitution it is
almost certainly invalid because of the irrationality of a ruling that forfeiture of estate cannot
be imposed for treason but can be imposed for a pattern of lesser crimes”).
153 Under the Confiscation Act all the property of Confederate army and naval officers was
forfeited, 12 Stat. 589 (1862), but owing to the constitutional reservations of President
Lincoln, the forfeiture statute was followed by another declaring that confiscation would
only apply during the life time of a member of the Confederate armed forces, 12 Stat. 627
(1862). The Supreme Court read the two together and as a matter statutory construction
held that a life estate in the property of the former Confederate naval officer at issue was all
that was subject to confiscation, Bigelow v. Forest, 76 U.S. 339, 350 (1869).
against the United States or Americans, 18 U.S.C. 981(a)(1)(G)(i), and under
separate clauses any property derived from or used to facilitate such misconduct, 18
U.S.C. 981(a)(1)(G)(ii),(iii). As yet, there no reported cases involving 18 U.S.C.
Section 404 of the Act authorizes the federal government to confiscate under
civil forfeiture procedures all property of any individual or entity planning or
committing an act of international terrorism against a foreign nation or international
organization without any further required connection of the property to the terrorist
activity other than ownership. The section contemplates forfeiture of property
located both here and abroad, since it refers to “all assets, foreign or domestic,” but
with respect to property located outside of the United States, it requires an act in
furtherance of the terrorism to have “occurred within the jurisdiction of the United
States.”154 It is unclear whether the jurisdiction referred to is the subject matter
jurisdiction or territorial jurisdiction of the United States or either or both. The due
process shadow of Article III, section 3, clause 2 may limit the reach of the proposal
to property with some nexus other than ownership to the terrorist act.
Money Laundering Through “Hawalas”.
Money laundering in violation of 18 U.S.C. 1956 may take either of two forms
(1) engaging in a prohibited financial transaction involving the proceeds of a
predicate offense, 18 U.S.C. 1956(a)(1), or (2) internationally transporting,
transmitting, or transferring the proceeds of a predicate offense, 18 U.S.C.
1956(a)(2). Section 405 of the Act extends the financial transaction offense to
include related, parallel transactions and transmissions.155
As the conference report accompanying H.R. 3199 explains, the amendment
addresses a feature of the often informal networks called “hawalas,” for transfer
Alternative remittance systems are utilized by terrorists to move and
launder large amounts of money around the globe quickly and secretly. These
remittance systems, also referred to as “hawala” networks, are used throughout
the world, including the Middle East, Europe, North American and South Asia.
These systems are desirable to criminals and non-criminals alike because of the
anonymity, low cost, efficiency, and access to underdeveloped regions. The
United States has taken steps to combat the”hawala” networks by requiring all
money transmitters, informal or form, to register as money service businesses.
Under current Federal law, a financial transaction constitutes a money laundering
offense only if the funds involved in the transaction represent the proceeds of
154 § 404(3), P.L. 109-177, 120 Stat. 244 (2006), adding new subsection 18 U.S.C.
155 “For purposes of this paragraph, a financial transaction shall be considered to be one
involving the proceeds of specified unlawful activity if it is party of a set of parallel or
dependent transactions, any one of which involves the proceeds of specified unlawful
activity, and all of which are part of a single plan or arrangement,” 18 U.S.C. 1956(a)(1) as
amended by § 405, P.L. 109-177, 120 Stat. 244 (2006).
some criminal offense. . . There is some uncertainty, however, as to whether the
“proceeds element” is satisfied with regard to each transaction in a money
laundering scheme that involves two or more transactions conducted in parallel,
only one of which directly makes use of the proceeds from unlawful activity. For
example, consider the following transaction: A sends drug proceeds to B, who
deposits the money in Bank Account 1. Simultaneously or subsequently, B takes
an equal amount of money from Bank Account 2 and sends it to A, or to a person
designated by A. The first transaction from A to B clearly satisfies the proceeds
element of the money laundering statute, but there is some question as to whether
the second transaction — the one that involves only funds withdrawn form Bank
Account 2 does so as well. The question has become increasingly important
because such parallel transactions are the technique used to launder money156
through the Black Market Peso Exchange and “hawala” network.
Section 406 of the Act corrects a number of typographical and grammatical
errors in existing law including changing the reference in section 322 of the USA
PATRIOT Act, 115 Stat. 315 (2001), from 18 U.S.C. 2466(b) to 28 U.S.C. 2466(b);
changing the phrase “foreign bank” to “foreign financial institution” in 18 U.S.C.
981(k)(relating to forfeiture and interbank accounts); correcting a reference to the
Intelligence Reform and Terrorism Prevention Act in 31 U.S.C. 5318(n)(4)(A);
capitalizing a reference in the Intelligence Reform and Terrorism Prevention Act
(amending 18 U.S.C. 2339C rather than 18 U.S.C. 2339c); and codifying the
forfeiture procedure passed as section 316 of the USA PATRIOT Act, 115 Stat. 309
(2001), new 18 U.S.C. 987.
Civil Forfeiture Pre-trial Freezes and Restraining Orders.
Federal law permits pre-trial restraining orders to freeze property sought in
criminal forfeiture cases, 21 U.S.C. 853(e), and pre-trial restraining orders or the
appointment of receivers or conservators in civil forfeiture cases, 18 U.S.C. 983(j).
In money laundering civil penalty and forfeiture cases, federal law also permits
restraining orders and the appointment of receivers under somewhat different, less
demanding procedures with respect to the property of foreign parties held in this
country, 18 U.S.C. 1956(b). Section 406 of the Act removes the requirement that the
property be that of a foreign party, by amending 18 U.S.C. 1956(b)(3),(4).
It is a federal crime to destroy or attempt to destroy commercial motor vehicles
or their facilities, 18 U.S.C. 33. Offenders face imprisonment for not more than 20
years. It is also a federal crime to cause or to attempt to cause more than $100,000
worth of damage to an energy facility, 18 U.S.C. 1366. Again, offenders face
imprisonment for not more than 20 years. As a general rule, conspiracy to commit
these or any other federal crime is punishable by imprisonment for not more than five
years, 18 U.S.C. 371, and conspirators are liable for the underlying offense and any
156 H.Rept. 109-333, at 107 (2005).
other offense committed by any of co-conspirators in the foreseeable furtherance of
the criminal scheme, United States v. Pinkerton, 340 U.S. 640 (1946).
For several federal crimes, instead of the general five-year penalty for
conspiracy, section 811 of the USA PATRIOT Act used the maximum penalty for the
underlying offense as the maximum penalty for conspiracy to commit the underlying
offense, 115 Stat. 381-82 (2001). Section 406(c) of the Act allows for the same
penalty scheme for conspiracies to violate 18 U.S.C. 33 (destruction of motor
vehicles) and 18 U.S.C. 1366 (damage an energy facility).
Laundering the Proceeds of Foreign Terrorist Training.
Federal law prohibits laundering the proceeds of various predicate offenses, 18
U.S.C. 1956; in addition to other criminal penalties, property associated with such
laundering is subject to confiscation, 18 U.S.C. 981(a)(1)(A). Receipt of military
training from a foreign terrorist organization is also a federal crime, 18 U.S.C.
2339D. Section 112 of the Act makes 18 U.S.C. 2339D a federal crime of terrorism
under 18 U.S.C. 2332b(g)(5)(B). Federal crimes of terrorism are RICO predicate
offenses by definition, 18 U.S.C. 1961(1)(G). RICO predicate offenses are by
definition money laundering predicate offenses, 18 U.S.C. 1956(c)(7)(A). Section
409 of the Act makes 18 U.S.C. 2339D a money laundering predicate offense
directly, 18 U.S.C. 1956(c)(7)(D). It is not clear why the duplication was thought
Uniform Procedures for Criminal Forfeitures.
The Act contains an amendment to 28 U.S.C. 2461(c), for which there is no
explanation in the conference report accompanying H.R. 3199. Nor does the
amendment appear in either of the two versions of H.R. 3199 sent to conference. Nor
does the amendment appear to have been included in other legislative proposals and
thus has not heretofore been the beneficiary of examination in committee or on the
floor. The change is captioned “uniform procedures for criminal forfeitures,” but it
is not facially apparent precisely how the procedures for various criminal forfeitures
are disparate or how the amendment makes them more uniform. Part of the difficulty
flows from the fact that both section 2461(c) and the Act’s amendment are somewhat
cryptic. Nevertheless, it seems crafted to make a default procedure into an exclusive
In its original form, 28 U.S.C. 2461(c) states:
If a forfeiture of property is authorized in connection with a violation of an Act
of Congress, and any person is charged in an indictment or information with such
violation but no specific statutory provision is made for criminal forfeiture upon
conviction, the Government may include the forfeiture in the indictment or
information in accordance with the Federal Rules of Criminal Procedure, and
upon conviction, the court shall order the forfeiture of the property in accordance
with the procedures set forth in section 413 of the Controlled Substances Act (21
U.S.C. 853), other than subsection (d) of that section.
The Act amends section 2461(c) to read:
If a person is charged in a criminal case with a violation of an Act of Congress
for which the civil or criminal forfeiture of property is authorized, the
Government may include notice of the forfeiture in the indictment or information
pursuant to the Federal Rules of Criminal Procedure. If the defendant is
convicted of the offense giving rise to the forfeiture, the court shall order the
forfeiture of the property as part of the sentence in the criminal case pursuant to
the Federal Rules of Criminal Procedure and section 3554 of title 18, United
States Code. The procedures in section 413 of the Controlled Substances Act (21
U.S.C. 853) apply to all stages of a criminal forfeiture proceeding, except that
subsection (d) of such section applies only in cases in which the defendant is
convicted of a violation of such Act.
A casual reading of the original section 2461(c) might suggest that it only
applies in the case of a criminal forfeiture statute which fails to indicate what
procedure should be used to accomplish confiscation. In fact, section 2461(c)
originally allowed confiscation under its criminal forfeiture procedures where civil
forfeiture was authorized by statute but criminal forfeiture otherwise was not.157 On
its face, however, it did not allow the government to merge every civil forfeiture with
the criminal prosecution of the property owner. In its original form, section 2461(c)
was only available if there was no other criminal forfeiture counterpart for the civil
forfeiture.158 Under the Act, the distinction no longer exists.
Moreover, since section 2461(c) speaks of treating civil forfeitures as criminal
forfeitures after conviction, some courts have held that pre-trial freeze orders
available in other criminal forfeiture cases may not be invoked in the case of a159
section 2461(c) “gap filler.” It is unclear whether the Act is intended to change
this result as well. On the one hand, the language of conviction still remains. On the
other hand, the description of the role of 21 U.S.C. 853 (which authorizes pre-trial
restraining orders) may signal a different result. The statutory language prior to
amendment is fairly clear, the procedures of section 853 come into play after
conviction: “upon conviction, the court shall order the forfeiture of the property in
157 United States v. Razmilovic, 419 F.3d 134,136 (2d Cir. 2005)(“Section 2461(c) thus
authorizes criminal forfeiture as a punishment for any act for which civil forfeiture is
authorized, and allows the government to combine criminal conviction and criminal
forfeiture as a consolidated proceeding”).
158 18 U.S.C. 2461(c)(“If a forfeiture of property is authorized in connection with a
violation of an act of Congress, ..an act. but no specific statutory provision is made for
criminal forfeiture upon conviction . . .”); United States v. Causey, 309 F.Supp.2d 917, 920
(S.D. Tex. 2004)(“Section 981 [relating to civil forfeiture] forms the basis for criminal
forfeiture through the application of 28 U.S.C. 2461(c), which allows criminal forfeiture to
be sought anytime there is a civil forfeiture provision but no corresponding criminal
forfeiture statute”); United States v. Schlesinger, 396 F.Supp.2d 267, 275 (E.D.N.Y. 2005)
(“Constructing the statute in this manner makes §2461(c) a broad ‘gap filler’ that applies
whenever civil forfeiture is permitted. In sum, when there is no provision for criminal
forfeiture, the government may use a civil forfeiture provision if it includes such allegation
in the indictment. In instances where there is a specific criminal forfeiture provision — that
specific provision and the procedures that it sets forth — and not the civil forfeiture
provision will apply”).
159 United States v. Razmilovic, 419 F.3d 134,137 (2d Cir. 2005). Note that in some civil
forfeiture cases, the government is entitled to a pre-trial freeze order, 18 U.S.C. 983(j).
accordance with the procedures set forth in section 413 of the Controlled Substances
Act (21 U.S.C. 853),” 28 U.S.C. 2461(c). The statement in the Act is less
conclusive: “The procedures in section 413 of the Controlled Substances Act (21
U.S.C. 853) apply to all stages of a criminal forfeiture proceeding.” This change in
language suggests that a change in construction may have been intended.
Title V: Miscellaneous Provisions
Title V of the Act contains miscellaneous provisions added in conference and
not previously included in either the House or Senate version of H.R. 3199, some of
which — like the habeas amendments in the case of state death row inmates, or the
adjustments in the role of the Office of Intelligence Policy and Review in the FISA
process — may be of special interest.
Justice Department Residency Requirements.
United States Attorneys and Assistant United States Attorneys must live within
the district for which they are appointed, except in the case of the District of
Columbia and the Southern and Eastern Districts of New York, 28 U.S.C. 545. The
Attorney supervises and directs litigation in which the United States has an interest,
employees, or agencies of the Department of Justice to this end, 28 U.S.C. 509, 510,
547. Section 501 of the Act allows the Attorney General to waive the residency
requirement with respect to U.S. Attorneys or Assistant U.S. Attorneys who have
been assigned additional duties outside the districts for which they were appointed.160
The conference report accompanying H.R. 3199 notes that the amendment will allow
Justice Department personnel to be assigned to Iraq, but does not explain why the
authority is made retroactive to February 1, 2005.161
Appointment of U.S. Attorneys.
The Attorney General has the authority to temporarily fill vacancies in the office
of United States Attorney, 28 U.S.C. 546. Prior to the Act, if a replacement had not
been confirmed and appointed within 120 days, the district court was authorized to
make a temporary appointment. The Act repeals the authority of the court and
permits the Attorney General’s temporary designee to serve until the vacancy is filled
by confirmation and appointment.162
Presidential Succession: Homeland Security Secretary.
The heads of the various federal departments come within the line of
presidential succession, 3 U.S.C. 19(d)(1). Section 503 of the Act adds the Secretary
of the Department of Homeland Security to the list following the Secretary of
160 § 501, P.L. 109-177, 120 Stat. 246 (2006), amending 28 U.S.C. 545(a).
161 H.Rept. 109-333 at 109 (2005).
162 § 502, P.L. 109-177, 120 Stat. 246 (2006), amending 28 U.S.C. 546(c).
Confirmation of the Director of BATFE.
Prior to the Act, the Attorney General had the responsibility of appointing the
Director the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE).
Section 504 of the Act removes this power from the Attorney General, and vests the
appointment in the President with the advice and consent of the Senate, amending
section 1111(a)(2) of the Homeland Security Act of 2002, P. L. 107-296, 116 Stat.
Qualifications for U.S. Marshals.
The President appoints the marshal in each federal judicial district with the
advice and consent of the Senate, 28 U.S.C. 561. There are no statutory
qualifications. The Act describes a fairly demanding set of minimum qualifications
that each marshal “should have,”163 which the conference report characterizes as
clarifications.164 Some may consider this an intrusion upon the constitutional
prerogatives of the President. The Constitution does confer upon him the power to
nominate and, with the advice and consent of the Senate, to appoint officers of the
United States, U.S. Const. art. II, §2. It might be thought that to impose minimum
qualifications for appointment impermissibly limits the President’s power to
nominate. But with few exceptions, the offices in question are creatures of statute.
They exist by exercise of Congress’s constitutional authority “to make all laws
necessary and proper for carrying into execution” the constitutional powers of the
Congress, the President or Government of the United States, U.S. Const. art. I, §8,
cl.18. The imposition of minimum qualifications is consistent with long practice as
to which the Supreme Court has observed:
Article II expressly and by implication withholds from Congress power to
determine who shall appoint and who shall remove except as to inferior offices.
To Congress under its legislative power is given the establishment of offices, the
determination of their functions and jurisdiction, the prescribing of reasonable
and relevant qualifications and rules of eligibility of appointees, and the fixing
of the term for which they are to be appointed, and their compensation — all165
except as otherwise provided by the Constitution.
163 “Each marshal appointed under this section should have — (1) a minimum of 4 years
of command-level law enforcement management duties, including personnel, budget, and
accountable property issues, in a police department, sheriff’s office or Federal law
enforcement agency; (2) experience in coordinating with other law enforcement agencies,
particularly at the State and local level; (3) college-level academic experience; and (4)
experience in or with county, State, and Federal court systems or experience with protection
of court personnel, jurors, and witnesses,” 28 U.S.C. 561(I) as amended by the Act.
164 H.Rept. 109-333 at 109 (2005)(“Section 505 of the conference report is a new section.
This section clarifies the qualifications individuals should have before joining the United
165 Myers v. United States, 272 U.S. 52, 129 (1926)(emphasis added). See also, Corwin,
Tenure of Office and the Removal Power Under the Constitution, 27 COLUMBIA LAW
REVIEW 353, 391 (1927)(“From the first Congress has exercised its power under the
‘necessary and proper’ clause to fix the qualifications of officers, not only in respect to
The terminology used in section 505 of the Act leaves some doubt whether it is
intended to require or merely encourage the nomination of candidates exhibiting the
statutory qualifications (“each marshal appointed under this section should have ...”).
Perhaps more intriguing is why the conferees deemed this particular office and not
others appropriate for such treatment. The office has existed since the dawn of the
Republic, 1 Stat. 87 (1789), without a statement of required or preferred
qualifications. Arguably comparable or more significant offices within the
Department of Justice face no similar provisions. No such provisions attend the
appointment of U.S. Attorneys, 28 U.S.C. 541; the Director the Federal Bureau of
Investigation, 28 U.S.C. 532; the Director of the Marshals Service, 28 U.S.C. 561;
or even the Attorney General himself, 28 U.S.C. 503. Even when the Act puts its
hand anew to the appointment of an arguably comparable position — the
appointment of the Director of BATFE, supra — it says nothing of minimum
qualifications. Of course, the requirements seem relevant and it is difficult to argue
that any federal office should not be filled with the most highly qualified individual
New National Security Division of the DOJ and new Assistant
Section 506 of the Act creates a new National Security Division within the
Department of Justice (DOJ), headed by a new Assistant Attorney General,
comprising prosecutors from the DOJ’s Criminal Division’s Counterespionage and
Counterterrorism sections and attorneys from the DOJ’s Office of Intelligence Policy
and Review, the office that is responsible for reviewing wiretapping operations under
Background. The presidential Commission on the Intelligence Capabilities
of the United States Regarding Weapons of Mass Destruction recommended that
“[t]he Department of Justice’s primary national security elements — the Office of
Intelligence Policy and Review, and the Counterterrorism and Counterespionage
sections [of the Criminal Division] — should be placed under a new Assistant166
Attorney General for National Security.” The Commission felt the then-existing
inferior offices but also in respect to superior offices, and this notwithstanding that in so
doing it has obviously restricted the President’s power of nomination”); 2 ROTUNDA &
NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE 35 (3d ed.
1999)(“Congress can limit the President’s power to nominate by imposing qualifications that
the appointee for the office must possess”); Eldred v. Ashcroft, 537 U.S. 186, 213
(2003)(“This Court has repeatedly laid down the principle that a contemporaneous
legislative exposition of the Constitution when the founders of our Government and framers
of our Constitution were actively participating in public affairs, acquiesced in for a long
term of years, fixes the construction to be given the Constitution’s provisions”). Justice
Brandeis in Myers footnotes literally hundreds of instances dating from the First Congress
wherein Congress set minimum qualifications for various public office holders, 272 U.S. at
166 The Commission on the Intelligence Capabilities of the United States Regarding
Weapons of Mass Destruction, Report to the President of the United States, 471-73 (Mar.
organizational scheme might be awkward and that perhaps the system would benefit
from a check on Office of Intelligence Policy and Review’s rejection of FISA
applications as insufficient.167
Critics might suggest that curtailing the independence of the Office of
Intelligence Policy and Review (OIPR) with an eye to less rigorous examination of
FISA applications is likely to have an adverse impact. They might argue that adding
another layer of review to the FISA application process can only bring further delays
to a process the Administration has continuously sought to streamline. In the same
vein, should the judges of the FISA Court conclude that the OIPR has been shackled
and ceased to function as an independent gatekeeper for the Court, they might
examine applications more closely and feel compelled to modify or reject a greater
number; further contributing to delay, or so it might be said. On the other hand, both
the Act and the USA PATRIOT Act vest oversight on the exercise of sensitive
investigative authority in senior officials in order to guard against abuse.
167 “The Justice Department’s three primary national security components are located in
different divisions, with no individual below the Deputy Attorney General who can
supervise all three. The Office of Intelligence Policy and Review (OIPR) is responsible for
FISA requests, representing the Department of Justice on intelligence-related committees,
and advising the Attorney General on ‘all matters relating to the national security activities.’
It is independent of any division and reports directly to the Deputy Attorney General. In
contrast, both the Counterterrorism and Counterespionage sections are located in the
Criminal Division, but they each report to two different Deputy Assistant Attorney Generals.
If there is method to this madness, neither we, nor any other official with whom we spoke,
could identify it.
“There is reason to believe that the this awkward (and outdated) organizational scheme
has created problems between the Justice Department and the Intelligence Community. In
our classified report we describe one such problem that cannot be discussed in our
“We believe that bringing the Office of Intelligence Policy and Review closer to its
operational counterparts like the Counterespionage and Counterterrorism sections would
give the office better insight into actual intelligence practices and make it better attuned to
operational needs. Attorneys in the Counterterrorism and Counterespionage sections
routinely work alongside FBI agents and other intelligence officers. By contrast, OIPR is
largely viewed within the Department as an ‘assembly line operation not requiring any
special grounding in the facts of a particular matter.’ OIPR’s job is to process and
adjudicate FISA requests — not to follow a case from start to completion. One of the
advantages of placing all three national security components under a single Assistant
Attorney General is that they will see themselves as acting in concert to serve a common
“The Bellows Report [Final Report of the Attorney General’s Review Team on the
Handling of the Los Alamos National Laboratory Investigation] identifies a further reason
to have a single individual below the Deputy Attorney General to supervise the OIRP: the
need to have a single individual who is knowledgeable about FISA to review FISA
applications that are rejected by OIPR. Id. at pp.767-768. The lack of such an individual in
the Wen Ho Lee investigation caused serious problems. An Assistant Attorney General for
National Security would fit the bill perfectly,”Id. at 472, 482 n.94 (the last paragraph quoted
above appears as footnote 94 in the Report).
Be that as it may, the President notified various administration officials that he
concurred in the Commission’s recommendation.168 Section 441 of the Intelligence
Authorization Act for Fiscal Year 2006, S. 1803, as reported by the Senate Select
Committee on Intelligence, contained similar provisions.169
The Act makes the following provisions for the new Assistant Attorney General:
!Assistant Attorney General (AAG) is to be designated by the
President and presented to the Senate for its advice and consent,
adding new section 28 U.S.C. 507A(a); cf., H.Rept. 109-142 at 31;
!AAG serves as head of the DOJ National Security Division, as
primary DOJ liaison with DNI, and performs other duties as
assigned, new 28 U.S.C. 507A(b);
!the Attorney General is to consult with the DNI before
recommending a nominee to be AAG, adding new subsection 50
!the Attorney General may authorize the AAG to perform the
Attorney General’s FISA-related duties, amending 50 U.S.C.
!AAG may approve application for a communications interception
(wiretap) order under the Electronic Communications Privacy Act
(Title III), amending 18 U.S.C. 2516(1);
!the Attorney General may authorize the AAG to approve admission
into the witness protection program, amending 18 U.S.C.
!AAG must provide briefings for the DOJ officials or their designee
of Division cases involving classified information, amending 18
U.S.C. App. III 9A(a);
!AAG replaces OIPR for purposes of advising the Attorney General
on the development of espionage charging documents and related
matters, amending 28 U.S.C. 519 note;
!the Attorney General may authorize the AAG to approve certain
undercover operations, amending 28 U.S.C. 533 note;
!AAG joins those whom the Attorney General consult concerning a
state application of emergency law enforcement assistance,
amending 42 U.S.C. 10502(2)(L);
!the National Security Division headed by the AAG consists of the
OIPR, the counterterrorism and counterespionage sections, and any
other entities the Attorney General designates, adding new section
!Division employees are barred from engaging in political
management or political campaigns, amending 5 U.S.C. 7323(b)(3);
168 S.Rept. 109-142, at 31 (2005)(“The President endorsed this recommendation in a June
Attorney General, Secretary of Homeland Security, Director of OMB, DNI, Assistant to the
President for National Security Affairs, and Assistant to the President for Homeland
Security and Counterterrorism”).
169 See generally, H.Rept. 109-333, at 109 (2005); H.Rept. 109-142, at 31-33 (2005).
!subject to a rule change by the Senate, the Senate Select Committee
on Intelligence enjoys 20 day sequential referral of AAG nominees,
amending section 17 of S.Res. 94-400 of the Standing Rules of the
Senate, Senate Manual §94 (2002).
Habeas Corpus in State Capital Cases.
Federal law provides expedited habeas corpus procedures in the case of state
death row inmates in those states that qualify for application of the procedures and
have opted to take advantage of them, 28 U.S.C. ch. 154. As the Supreme Court
stated, “Chapter 154 will apply in capital cases only if the State meets certain
conditions. A state must establish ‘a mechanism for the appointment, compensation,
and payment of reasonable litigation expenses of competent counsel’ in state
postconviction proceedings, and ‘must provide standards of competency for the
appointment of such counsel,’” Calderon v. Ashmus, 523 U.S. 740, 743 (1998). Thus
far apparently, few if any states have sought and been found qualified to opt in.170
Critics implied that the states have been unable to take advantage of the
expedited capital procedures only because the courts have a personal stake in the
outcome. The solution, they contend, is the amendment found in section 507 of the
170 At least for a short period of time Arizona was qualified to opt in, cf., Spears v. Stewart,
determined that although (a) the question whether Arizona had opted-in to the short-fuse
habeas scheme provided in Chapter 154. . . was entirely irrelevant to the outcome of the case
before it; (b) the linchpin provision for the procedures by which Arizona had once sought
to opt-in under Chapter 154 had already been repealed by the state; (c) the state did not even
comply with its own procedures in the case before the panel; (d) Arizona was
unquestionably not in compliance with Chapter 154 at the time the appeal was heard; (e) in
fact, the state had never at any time effectively complied with its short-lived procedures; and
(f) no other state in the nation has ever been held to have successfully opted-in under
Chapter 154, the panel would seize this opportunity to issue an advisory opinion stating that
the no-longer-existent Arizona procedures were in compliance with Chapter 154’s
requirements”)(citing, Ashmus v. Woodford, 202 F.3d 1160, 1160 (9th Cir. 2000)(California
has not opted-in); Harris v. Bowersox, 184 F.3d 744, 7848 (8th Cir. 1999)(Missouri has not
opted-in); Duvall v. Reynolds, 139 F.3d 768, 776 (10th Cir. 1998)(Oklahoma has not opted-
in); Hill v. Butterworth, 941 F.Supp. 1129, 1146-147 (N.D.Fla. 1996), vac’d on other
grounds, 147 F.3d 1333 (11th Cir. 1998)(Florida has not opted-in); Mata v. Johnson, 99
F.3d 1261, 1267 (5th Cir. 1996), vac’d on other grounds, 105 F.3d 209 (5th Cir.th
1997)(Tennessee has not opted-in); Holloway v. Horn, 161 F.Supp.2d 452, 478 n.11
(E.D.Pa. 2001), rev’d on other grounds, 355 f.3d 707 (3d Cir. 2004)(Pennsylvania has not
opted- in); Smith v. Anderson, 104 F.Supp. 2d 773, 786 (S.D.Ohio 2000)(Ohio has not
opted-in); Oken v. Nuth, 30 F.Supp.2d 877, 879 (D.Md. 1998)(Maryland has not opted-in);
Tillman v. Cook, 25 F.Supp.2d 1245, 1253 (D.Utah 1998)(Utah has not opted-in); Weeks v.
Angelone,4 F.Suppl2d 467, 506 n.4 (E.D.Va. 1998)(Virginia has not opted-in); Ryan v.
Hopkins, 1996 WL 539220, at *3-4 (D.Neb. 1969)(Nebraska has not opted-in)). Related
cases include, Grayson v. Epps, 338 F.Supp.2d 699, 700-704 (S.D. Miss. 2004)(Mississippi
has not opted-in); Keel v. French, 162 F.3d 263, 267 n.1 (4th Cir. 1998)(North Carolina has
not opted-in); High v. Head, 209 F.3d 1257, 1262 n.4 (11th Cir. 2000)(Georgia does not
claim to have opted-in); Allen v. Lee, 366 F.3d 319, 353 (4th Cir. 2004)(Luttig, J.
dissenting)(noting that the Fourth Circuit has adopted by rule the section 2266 time lines).
Act,171 which allows the Attorney General to determine whether a state qualifies,
permits the determination to have retroactive effect, and allows review by the federal
appellate court least likely to have an interest in the outcome, the U.S. Court of
Appeals for the D.C. Circuit.172 Opponents of the proposal raised separation of
powers issues and questioned whether the chief federal prosecutor or the courts are
more likely to make an even handed determination of whether the procedures for
providing capital defendants with qualified defense counsel are adequate.173
Under the Act, states would opt-in or would have opted-in as of the date, past
or present, upon which the Attorney General determines they established or have
established qualifying assistance of counsel mechanism. Opting-in to the expedited
procedures of chapter 154 only applies, however, to instances in which “counsel was
appointed pursuant to that mechanism [for the death row habeas petitioner],
petitioner validly waived counsel, petitioner retained counsel, or petitioner was found
not to be indigent.”174 The standards of qualifying mechanism remain the same
except that the Act drops that portion of subsection 2261(d) which bars an attorney
from serving as habeas counsel if he represented the prisoner during the state
appellate process, amending 28 U.S.C. 2261(d).
The Act establishes a de novo standard of review for the Attorney General’s
determination before the D.C. Circuit, new 28 U.S.C. 2265(c)(3). It also extends the
expedited time deadline for U.S. district court action on a habeas petition from a state
death row inmate from 6 to 15 months (180 days to 450 days)(although the 60 days
permitted the court for decision following completion of all pleadings, hearings, and
submission of briefs remains the same), new 28 U.S.C. 2266(b).
171 § 507, P.L. 109-177, 120 Stat. 250 (2006), amending 28 U.S.C. 2261(b), 2265.
172 See 151 CONG. REC. S5540, 5541 (daily ed. May 19, 2005) (statement of Sen. Kyl)(“The
SPA [Streamlined Procedures Act] also expands and improves the special expedited habeas
procedures authorized in chapter 154 of the United States Code. The procedures are
available to States that establish a system for providing high-quality legal representation to
capital defendants. Chapter 154 sets strict time limits on Federal court action and places
limits claims. Currently, however, the court that decides whether a State is eligible for
chapter 154 is the same court that would be subject to its time limits. Unsurprisingly, these
courts have proven resistant to chapter 154. The SPA would place the eligibility decision
in the hands of a neutral party — the U.S. Attorney General, with review of his decision in
the D.C. Circuit, which does not hear habeas appeals.”)
173 “[T]he SPA intimates that courts can’t objectively evaluate whether states meet the ‘opt-
in’ provisions detailed in the AEDPA because their dockets are implicated in the timelines
created by opt-in status. The legislation attempts to resolve this by empowering the chief
prosecutor in the United States, the Attorney General, to make these decisions. Giving
federal prosecutors control over even part of the federal judiciary’s docket and
decisionmaking authority would have serious implications for the separation of powers
necessary for fair administration of criminal justice,” Habeas Corpus Proceedings and
Issues of Actual Innocence: Hearings Before the Senate Comm. on the Judiciary, 109th
Cong., 1st sess. (2005) (testimony of Bryan Stevenson, Executive Director of Equal Justice
Initiative of Alabama, available on Jan. 6, 2006, at [http://judiciary.senate.gov/print_
174 28 U.S.C. 2261(b)(2) as amended by the Act.
In McFarland v. Scott, 512 U.S. 849, 859 (1994), the Supreme Court held that
federal district courts might stay the execution of a state death row inmate upon the
filing of a petition for the appointment of counsel but prior to the filing of a federal
habeas petition in order to allow for the assistance of counsel in the filing the
In an amendment described as overruling McFarland, H.Rept. 109-333, at 109
(2005), the Act amends federal law to permit a stay in such cases of no longer than
90 days after the appointment of counsel or the withdrawal or denial of a request for
the appointment of counsel, new 28 U.S.C. 2251(b) as added by section 507(f) of the
Title VI: Secret Service Authorization and Technical
Modification Act of 2005
The Secret Service provisions of the Act were added to H.R. 3199 during
conference. They have several intriguing aspects although the constitutional reach
of two provisions may be somewhat limited.
Protection of the President and Certain Other Federal Officials.
Under 18 U.S.C. 1752, it is a federal crime:
(1) to willfully and knowingly trespass in areas designated as temporary offices
or residences for (or as restricted areas in places visited by or to be visited by) those
under Secret Service protection, 18 U.S.C. 1752(a)(1);
(2) to engage in disorderly conduct in or near such areas or places with the intent
to and result of impeding or disrupting the orderly conduct of governmental business
or functions there, 18 U.S.C. 1752(a)(2);
(3) to willfully and knowingly block passage to and from such areas or places,
(4) to willfully and knowingly commit an act of violence in such area or place,
18 U.S.C. 1752(a)(4); or
(5) to attempt of conspire to do so, 18 U.S.C. 1752(a),(b).
Obstructing Secret Service officers in the performance of their protective duties
is also a federal crime and is punishable by imprisonment for not more than one year
and/or a fine of not more than $1,000, 18 U.S.C. 3056(d).
Section 602 of the Act increases the penalties for violation of 18 U.S.C. 1752
from imprisonment for not more than six months to imprisonment for not more than175
one year; unless the offense results in significant bodily injury or the offender uses
175 “‘Significant bodily injury’ means bodily injury which involves a risk of death,
or carries a deadly or dangerous weapon during and in relation to the offense, in
which case the offense is punishable by imprisonment for not more than 10 years, 18
U.S.C. 1752(b) as amended by the Act. As a general rule applicable here, crimes
punishable by imprisonment for not more than six months are subject as an
alternative to a fine of not more than $5,000; crimes punishable by imprisonment for
not more than one year by a fine of not more than $100,000 as an alternative; crimes
punishable by imprisonment for more than one year by a fine of not more than
$250,000; and in each case organizations are subject to maximum fines that are twice
the amount to which an individual might be fined, 18 U.S.C. 3571, 3559.
The Act also amends section 1752 to provide a uniform scienter element
(willfully and knowingly) for each of the offenses prescribed there.
Special Events of National Significance.
Section 602 of the Act also creates a new federal crime relating to misconduct
concerning “special events of national significance.” It amends 18 U.S.C. 1752 to
make it a federal crime “willfully and knowingly to enter or remain in any posted,
cordoned off, or otherwise restricted area of a building or grounds so restricted in
conjunction with an event designated as a special event of national significance,” 18
U.S.C. 1752(a)(2) as amended. The Act provides no definition of “special event of
national significance.” Nor is the term defined elsewhere in federal law, although it
is used in 18 U.S.C. 3056, which authorizes the Secret Service to participate in the
coordination of security arrangements for such activities.176 The conference report
accompanying H.R. 3199 explains that the provisions relate to misconduct at events
at which individuals under Secret Service protection are not attendees and by
implication are not anticipated to be attendees.177 This may raise questions about the
constitutional basis upon which the other criminal prohibitions in section 1752 rely.
significant physical pain, protracted and obvious disfigurement, or a protracted loss or
impairment of the function of a bodily member, organ, or mental or sensory faculty,” 18
U.S.C. 2118(e)(3), 1752(b)(1)(B) as amended by the Act.
176 “(1) When directed by the President, the United States Secret Service is authorized to
participate, under the direction of the Secretary of Homeland Security, in the planning,
coordination, and implementation of security operations at special events of national
significance, as determined by the President.
“(2) At the end of each fiscal year, the President through such agency or office as the
President may designate, shall report to the Congress — (A) what events, if any, were
designated special events of national significance for security purposes under paragraph (1);
and (B) the criteria and information used in making each designation,” 18 U.S.C. 3056(e).
177 H.Rept. 109-333, at 110 (2005)(“Section 602 of the conference report is a new section.
18 U.S.C. 1752 authorizes the Secret Service to charge individuals who breach established
security perimeters or engage in other disruptive or potentially dangerous conduct at
National Special Security Events (NSSEs) if a Secret Service protectee is attending [or will
be attending] the designated event. Section 602 of the conference report expands 18 U.S.C.
1752 to criminalize such security breaches at NSSEs that occur when the Secret Service
protectee is not in attendance [and will not be in attendance]”)(language in brackets added
to demonstrate the reach of section 1752 prior to the Act, and the breadth of the Act’s
Congress and the federal government enjoy only those powers which the
Constitution provides; all other powers are reserved to the states and to the people,
U.S. Const. Amends. X, IX. The Constitution does not vest primary authority to
enact and enforce criminal law in the federal government. The Constitution does
grant Congress explicit legislative authority in three instances — treason, piracy and
offenses against the law of nations, U.S.Const. Art.III, §3; Art.I, §8, cl.10. And it
vests Congress with other more general powers which may be exercised through the
enactment of related criminal laws, such as the power to regulate commerce or to
enact laws for the District of Columbia, U.S.Const. Art.I, §8, cls.3, 17. Nevertheless,
“[e]very law enacted by Congress must be based on one or more of its powers
enumerated in the Constitution,” United States v. Morrison, 529 U.S. 598, 607
(2000). It is not clear which of Congress’s enumerated powers individually or in
concert supports under all circumstances the creation of a trespassing offense relating
to “restricted areas” temporarily cordoned off or established for a “special event of
Of course, the protection of such events under many circumstances may fall
within one or more of Congress’s enumerated powers. For instance, Congress may
enact a trespassing law protecting special events held in the District of Columbia by
virtue of its power to enact laws for the District, U.S. Const. Art.I, §8, cl.17. Even
here, however, the First Amendment may impose impediments when in a particular
case the governmental interest in the special event is minimal and significant access
restrictions are imposed on use of the streets or other public areas to prevent peaceful
protest demonstrations.178 Subject to some considerations, events which have an
impact on interstate or foreign commerce seem to fall within Congress’s power to
regulate such commerce, U.S. Const. Art.I, §8, cl. 3.
Interpretative regulations that limit the amendment’s application to areas within
the scope of Congress’s legislative authority and consistent with the demands of the
First Amendment offer the prospect of passing constitutional muster. Although the
bill repeals the subsection of 1752 which in amended form might authorize curative
implementing regulations, such regulatory authority is likely implicit.179
178 Boos v. Barry, 485 U.S. 312, 318 (1988)(“public streets and sidewalk” are “traditional
public fora that time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. In such places, which occupy
a special position in terms of First Amendment protection, the government’s ability to
restrict expressive activity is very limited”)(internal quotation marks and citations omitted).
179 “The Secretary of the Treasury is authorized — (1) to designate by regulations the
buildings and grounds which constitute the temporary residences of the President or other
person protected by the Secret Service and the temporary offices of the President and his
staff or of any other person protected by the Secret Service, and (2) to prescribe regulations
governing ingress or egress to such buildings and grounds and to posted, cordoned off, or
otherwise restricted areas where the President or other person protected by the Secret
Service is or will be temporarily visiting,” 18 U.S.C. 1752(d). The authority vested in the
Secretary of the Treasury passed to the Secretary of Homeland Security when the Secret
Service was transferred to that Department, 6 U.S.C. 381. Of course, a conforming
amendment to subsection 1752(d) would be required to implement the expanded “special
event” area coverage.
Use of False Credentials to National Special Security Events.
Questions as to the breadth of the exercise of Congress’s legislative authority
might also be raised about section 603 of the Act, which brings special event tickets
and credentials within the folds of the statute that outlaws misuse of governmentally
issued identification documents, 18 U.S.C. 1028. The structure of section 1028
makes the point more obviously than might otherwise be the case. In its form prior
to the Act, section 1028 prohibited eight particular varieties of unauthorized
possession or trafficking in identification documents180 when committed under one
of three jurisdictional circumstances: the documents are issued or purport to be issued
by a federal entity, the documents are used to defraud the United States, or the
offense involves transportation in, or affects, interstate or foreign commerce, 18
U.S.C. 1028(a), (c).
The Act makes three changes in the scheme. First, it amends one of the eight
prohibition subsections, that which outlaws unlawful possession of U.S. documents
or facsimiles thereof, when committed under one of three jurisdictional
circumstances. The change adds the documents of special event sponsors to the
protected class, if the one jurisdictional predicates is satisfied.181 Second, it amends
180 “Whoever, in a circumstance described in subsection (c) of this section — (1)
knowingly and without lawful authority produces an identification document, authentication
feature, or a false identification document; (2) knowingly transfers an identification
document, authentication feature, or a false identification document knowing that such
document was stolen or produced without lawful authority; (3) knowingly possesses with
intent to use unlawfully or transfer unlawfully five or more identification documents (other
than those issued lawfully for the use of the possessor), authentication feature, or false
identification documents; (4) knowingly possesses an identification document (other than
one issued lawfully for the use of the possessor), authentication feature, or a false
identification document, with the intent such document or feature be used to defraud the
United States; (5) knowingly produces, transfers, or possesses a document-making
implement or authentication feature with the intent such document-making implement or
authentication feature will be used in the production of a false identification document or
another document-making implement or authentication feature which will be so used; (6)
knowingly possesses an identification document or authentication feature that is or appears
to be an identification document or authentication feature of the United States which is
stolen or produced without lawful authority knowing that such document or feature was
stolen or produced without such authority; (7) knowingly transfers or uses, without lawful
authority, a means of identification of another person with the intent to commit, or to aid or
abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a
felony under any applicable State or local law; or (8) knowingly traffics in false
authentication features for use in false identification documents, document-making
implements, or means of identification; shall be punished as provided in subsection (b) of
this section,” 18 U.S.C. 1028(a).
181 “Whoever, in a circumstance described in subsection (c) of this section. . . knowingly
possesses an identification document or authentication feature that is or appears to be an
identification document or authentication feature of the United States or a sponsoring entity
of an event designated as a special event of national significance which is stolen or
produced without lawful authority knowing that such document was stolen or produced
without such authority. . shall be punished as provided in subsection (b) of this section,” 18
the definition of “identification document” to include special events documents,182
so that each of the other eight prohibition subsections applies as long as one of the
three jurisdictional predicates is satisfied. Third, it amends one of the jurisdictional
predicates, that which is based on issuance by a federal agency. It treats sponsors of
special events as federal agencies within the jurisdictional subsection of section
It is this third amendment that raises the issue. There is no doubt that Congress
has the constitutional power to enact legislation prohibiting possession or trafficking
in special event identification documents, if the third jurisdictional predicate is
satisfied, i.e., the offense involves transportation in, or affects, interstate or foreign
commerce.184 Nor is there any dispute Congress enjoys such authority, if the second
jurisdiction predicate is satisfied, i.e., the offense involves defrauding the United
States.185 There may be some question, however, as to the extent to which Congress
may prohibit unlawful possession or trafficking in special event identification
documents predicated solely upon the fact they were issued by a special event
sponsor. “National significance” is not a term that by itself conjures up reference to
any of Congress’s constitutionally enumerated powers, although the commerce clause
U.S.C. 1028(a)(6)(amendment in italics).
182 “In this section . . . the term ‘identification document’ means a document made or issued
by or under the authority of the United States Government, a State, political subdivision of
a State, a sponsoring entity of an event designated as a special event of national significance
a foreign government, political subdivision of a foreign government, an international
governmental or an international quasi-governmental organization which, when completed
with information concerning a particular individual, is of a type intended or commonly
accepted for the purpose of identification of individuals,” 18 U.S.C. 1028(d)(3)(amendment
183 “The circumstance referred to in subsection (a) of this section is that — (1) the
identification document, authentication feature, or false identification document is or
appears to be issued by or under the authority of the United States or a sponsoring entity of
an event designated as a special event of national significance or the document-making
implement is designed or suited for making such an identification document, authentication
feature, or false identification document,” 18 U.S.C. 1028(c)(1)(amendment in italics)
184 “[M]odern Commerce Clause jurisprudence has identified three broad categories of
activity that Congress may regulate under its commerce power. First, Congress may
regulate the use of the channels of interstate commerce. Second, Congress is empowered
to regulate and protect the instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from intrastate activities.
Finally, Congress’ commerce authority includes the power to regulate those activities having
a substantial relation to interstate commerce, i.e., those activities that substantially affect
interstate commerce,” United States v. Morrison, 529 U.S. 598, 608-609 (2000)(internal
quotation marks and citations omitted); United States v. Lopez, 514 U.S. 549, 558-59 (1995).
185 “Congress has authority under the Spending Clause to appropriate federal moneys to
promote the general welfare, and it has corresponding authority under the Necessary and
Proper Clause, to see to it that taxpayer dollars appropriated under that power are in fact
spent for the general welfare, and not frittered away in graft or on projects undermined when
funds are siphoned off or corrupt public officers are derelict about demanding value for
dollars,” Sabri v. United States, 541 U.S. 600, 605 (2004).
might provide an arguably adequate foundation, particularly if regulations confined
enforcement to events with an obvious impact on interstate or foreign commerce. Of
course, legislation that cannot be traced to one or more of Congress’s enumerated
powers lies beyond its reach, United States v. Morrison, 529 U.S. 598, 607 (2000).
Forensic and Investigative Support of Missing and Exploited
The PROTECT Act186 authorizes “officers and agents of the Secret Service” to
provide state and local authorities and the National Center for Missing Exploited
Children with investigative and forensic services in missing and exploited children
cases, 18 U.S.C. 3056(f). Within the Secret Service, officers and agents conduct
investigations, but employees provide forensic services. Section 604 of the Act
changes “officers and agents of the Secret Service” to simply “the Secret Service” to
reflect this reality.
Secret Service Uniformed Division.
The Act amends and transfers the organic authority for the Secret Service
Uniformed Division. The conference report’s explanation is terse:
Section 605 of the conference report is a new section. This section places all
authorities of the Uniformed Division, which are currently authorized under title
3, in a newly created 18 U.S.C. §3056A, following the core authorizing statute
of the Secret Service (18 U.S.C. §3056), thereby organizing the Uniformed
Division under title 18 of the United States Code with other Federal law187
What makes the statement interesting is that the organic authority for most
federal law enforcement agencies is not found in title 18. For example, the FBI and
the Marshals Service provisions appear not in title 18 but in title 28, 28 U.S.C. 531-
III; the Coast Guard in title 14, 14 U.S.C. chs.1-25; the Customs Service in title 19,
What is also somewhat intriguing is what is not said. There is no further
explanation of the additions, modifications, deletions or apparent duplications
associated with the transfer. Existing law lists a series of protective duties the
Uniformed Division is authorized to perform, 3 U.S.C. 202. Although it is more
geographically specific, it essentially reflects a similar list of some of the duties of
the Secret Service as a whole found in 18 U.S.C. 3056.188 The Act adds four
186 P.L. 108-21, 117 Stat. 650 (2003).
187 H.Rept. 109-333, at 111 (2005).
188 For example, while both 3 U.S.C. 202 and 18 U.S.C. 3056 authorize protection of the
President, Vice President and their families, section 202 authorizes the Uniformed Division
to protect the White House, any building housing presidential offices, the Treasury building
and certain foreign diplomatic missions located outside of the District of Columbia, 3 U.S.C.
protective duties to the list: protection of former presidents and their spouses,
protection of presidential and vice presidential candidates, protection of visiting
heads of state, and security for special events of nation significance, new 18 U.S.C.
3056A(a)(10)-(13) as added by the Act. All but the special event provisions are
already part of the general Secret Service authority under section 3056 (18 U.S.C.
3056(a)(3),(7), (5)). The Act also explicitly authorizes members of the Division to
carry firearms, make arrests under certain situations, and perform other duties
authorized by law, 18 U.S.C. 3056A(b)(1) as added by the Act — authority they are
likely to already enjoy by operation of section 3056, 18 U.S.C. 3056(c)(1)(B), (C),
(F), or by virtue of the fact they are vested with “powers similar to those of members
of the Metropolitan Police of the District of Columbia,” 3 U.S.C. 202.
Section 605(b) of the Act specifically permits the Secretary of Homeland
Security to contract out protection of foreign missions and foreign officials outside
of the District of Columbia, amending 18 U.S.C. 3056(d).
The Act also repeals 3 U.S.C. 203 (relating to personnel, appointment and
vacancies), 204 (relating to grades, salaries, and transfers), 206 (relating to privileges
of civil-service appointees), 207 (relating to participation in police and firemen’s
relief fund),189 and 208(b)(relating to authorization of appropriations).
Secret Service as a Distinct Entity.
Section 607 of the Act statutorily declares the Secret Service a distinct entity
within the Department of Homeland Security, reporting directly to the Secretary,
adding new subsection 18 U.S.C. 3056(g).
Exemptions from the Federal Advisory Committee Act.
Major presidential and vice presidential candidates are entitled to Secret Service
protection, 18 U.S.C. 3056(a)(7). The Secretary of Homeland Security identifies who
qualifies as a “major” candidate and therefore is entitled to protection after consulting
with an advisory committee consisting of House Speaker and minority leader, the
Senate majority and minority leader and fifth member whom they select, id. The
Secret Service’s electronic crime task forces consist of federal and state law
enforcement members as well as representatives from academia and industry who
share information concerning computer security and abuse, 18 U.S.C. 3056 note.
The Federal Advisory Commission Act imposes notice, open meeting, record
keeping, and reporting requirements on groups classified as federal advisory
committees, 5 U.S.C. App. II. Advisory committees are committees, task forces, and
other groups established by the statute, the President, or an executive agency “in the
interest of obtaining advice and recommendations for” the President or federal
189 However, section 606 of the Act, 120 Stat. 256 (2006), states that the changes do “not
affect the retirement benefits of current employees or annuitants that existed on the day
before the effective date of this Act.”
agencies, 5 U.S.C. App. II 3(2). No group consisting entirely of officers or
employees of the United States is considered an advisory committee for purposes of
the act, id.
It is not clear that either the candidates protection committee or the electronic
crimes task forces would be considered advisory committees for purposes of the
advisory act. Even if the committee were not exempt because it consists entirely of
federal “officers or employees,” it seems highly unlikely that it is the type of
committee envisioned by Congress when it enacted the act.190 As for the task forces,
it is not clear that their function is to provide advice and recommendations for agency
action. In any event, section 608 of the Act exempts electronic crimes task forces
and the candidates protection advisory committee from provisions of the Federal
Advisory Committee Act, amending 18 U.S.C. 3056 note, 3056(a)(7).
Title VII: Combat Methamphetamine Epidemic Act of 2005
Title VII of the Act contains subtitles concerning regulation of domestic and
international commerce in three methamphetamine (meth) precursor chemicals:
ephedrine, pseudoephedrine, and phenylpropanolamine (EPP); increased penalties
for methamphetamine offenses; expanded environmentally-related regulations; and
adjusted grant programs.191 In many of its particulars, Title VII resembles H.R. 3889,
the Methamphetamine Epidemic Elimination Act, as amended by the House
Committees on Energy and Commerce and on the Judiciary, H.Rept. 109-299 (pts.
Domestic Regulation of Precursor Chemicals.
Sales Regulation of “Scheduled Listed Chemicals”. The first part of
Title VII addresses the fact that certain cold and allergy medicines — widely and
lawfully used for medicinal purposes and readily available in news stands,
convenience stores, grocery stores, and drugstores — when collected in bulk can be
used to manufacture methamphetamine. At the federal level, the Food and Drug
Administration (FDA) regulates the commercial drug market to ensure the public of
safe and effective medicinal products pursuant to the Federal Food Drug and
Cosmetic Act, 21 U.S.C. 301-397. The Attorney General through the Drug
Enforcement Administration regulates the commercial drug market with respect to
drugs with a potential for addiction and abuse, pursuant to the Controlled Substances
Act, 21 U.S.C. 801- 904, and the Controlled Substances Import and Export Act, 21
190 Public Citizen v. Department of Justice, 491 U.S. 440, 451-67(1989)(holding the act
inapplicable to American Bar Association committee whose advice the Department sought
regarding the qualifications of candidates for judicial appointment).
191 Related CRS Reports include CRS Report RS22325, Methamphetamine: Legislation
and Issues in the 109th Congress, by Celinda Franco, and CRS Report RL33385, The Legal
Regulation of Sales of Over-the-Counter Cold and Allergy Medication, by Jody Feder.
192 In many respects, it is also compatible with S. 103 as reported by the Senate Committee
on the Judiciary without written report.
The degree of regulatory scrutiny afforded a particular drug classified as a
controlled substance and sometimes certain of the chemicals essential for its
production (precursor chemicals, also known as “list chemicals”) depends upon the
drug’s potential for abuse weighed against its possible beneficial uses.193 Those who
lawfully import, export, produce, prescribe, sell or otherwise dispense drugs
classified as controlled substances must be registered, 21 U.S.C. 958, 822. In the
case of controlled substances susceptible to abuse and therefore criminal diversion
and for certain of their precursor chemicals, the Attorney General may impose
production and import/export quotas, security demands, inventory control measures,
and extensive registration, record keeping and inspection requirements, 21 U.S.C.
821-830, 954-71. A wide range of civil and criminal sanctions, some of them quite
severe, may be imposed for violation of the Controlled Substances Act, the
Controlled Substances Import and Export Act, or of the regulations promulgated for
their implementation, 21 U.S.C. 841-863, 959-967.194
Prior to the Act, the Controlled Substances Act, in a dizzying array of criss-
crossing exceptions and definitions, permitted the over-the-counter sale, without
regulatory complications, of cold remedies containing ephedrine, pseudoephedrine
or phenlypropanolamine (EPP) — methamphetamine precursors — in packages
containing less than 3 grams of EPP base (and in amounts not in excess of 9 grams
of pseudoephedrine or phenlypropanolamine base per transaction).195 Title VII
eliminates the criss-crossing196 and replaces it with a new regulatory scheme for
“scheduled listed chemical products,” i.e., EPP products,197 which:
193 For example, the so-called “schedule I controlled substances” are those drugs that have
“high potential for abuse,” that have “no currently accepted medical use in treatment in the
United States,” and for which there are no “accepted safety for use . . . under medical
supervision,” 21 U.S.C. 812(b)(1).
194 See generally, CRS Report 97-141, Drug Smuggling, Drug Dealing and Drug Abuse:
Background and Overview of the Sanctions Under the Federal Controlled Substances Act
and Related Statutes, by Charles Doyle.
195 All three chemicals are defined as “list I chemicals,” 21 U.S.C. 802(34)(C),(I),(K). List
I and List II chemicals are defined as “listed chemicals,” 21 U.S.C. 802(33). Several of the
act’s regulatory provisions apply to “regulated transactions” described as including the
distribution, receipt, sale, import or export of listed chemicals, 21 U.S.C. 802(39)(A).
Regulated transactions, however, do not include transactions involving FDA approved
drugs, 21 U.S.C. 802(39)(A)(iv), unless the drug contains EPP (except “ordinary over-the-
counter products” defined as products containing not more than 3 grams of an EPP base and
unless in liquid form are packaged in blister packs where feasible, 21 U.S.C. 802(45)), 21
U.S.C. 802(39)(iv)(I)(aa), or unless the drug is one the Attorney General has determined is
subject to diversion, 21 U.S.C. 802(39)(iv)(I)(bb), and the drug is one with a EPP base in
amounts in excess of a threshold established by the Attorney General (except that the
threshold for pseudoephedrine and phenylpropanolamine products may be no more than 9
grams of base per transaction and in packages containing no more than 3 grams of base), 21
196 Section 711 of the Act replaces 20 U.S.C. 802(45); section 712 replaces 20 U.S.C.
197 The bill defines a “scheduled listed chemicals product” as one “that contains ephedrine,
!limits drugstore, convenience store, grocery store, news stand, lunch
wagon (mobile retailer), and other retail sales of EPP products to 3.6
grams of EEP base per customer per day (down from 9 grams per
transaction), 21 U.S.C. 830(d), 802(46), 802(47);
!limits mobile retail sales to 7.5 grams of EPP base per customer per
month, 21 U.S.C. 830(e)(1)(A);
!insists that EPP products be displayed “behind the counter” (locked
up in the case of mobile retailers), 21 U.S.C. 830(e)(1)(A);
!(other than for sales involving 60 milligrams or less of
pseudoephedrine) requires sellers to maintain a logbook (for at least
two years) recording for every purchase, the time and date of sale,
the name and quantity of the product sold, and name and address of
the purchaser, 21 U.S.C. 830(e)(1)(A);
!(other than for sales involving 60 milligrams or less of
pseudoephedrine) demands that purchasers present a government-
issued photo identification, sign the logbook for the sale noting their
name and address, and the date and time of the sale, 21 U.S.C.
!provides that the logbook must include a warning that false
statements are punishable under 18 U.S.C. 1001 with a term of
imprisonment of not more than five years and/or a fine of not more
than $250,000 (not more than $500,000 for organizations), 21
U.S.C. 830(e)(1)(A), 830(e)(1)(D);
!states that sellers must provide, document, and certify training of
their employees on the EPP product statutory and regulatory
requirements, 21 U.S.C. 830(e)(1)(A), (B);
!directs the Attorney General to promulgate regulations to protect the
privacy of the logbook entries (except for access for federal, state
and local law enforcement officials), 21 U.S.C. 830(e)(1)(C);
!affords sellers civil immunity for good faith disclosure of logbook
information to law enforcement officials (unless the disclosure
constitutes gross negligence or intentional, wanton, or willful
misconduct), 21 U.S.C. 830(e)(1)(E);
!requires sellers take measures against possible employee theft or
diversion and preempts any state law which precludes them asking
prospective employees about past EPP or controlled substance
convictions, 21 U.S.C. 830(e)(1)(G);
!sets September 30, 2006 as the effective date for the regulatory
scheme (but the 3.6 gram limit on sales would become effective 30
days after enactment).
Federal law imposes monthly reporting requirements on mail order sales of EPP
products, 21 U.S.C. 830(b)(3). Under the Act, those subject to the reporting
requirement must confirm the identity of their customers under procedures
pseudoephedrine, or phenylpropanolamine” and “may be marketed or distributed lawfully
in the United States under the Federal, Food Drug, and Cosmetic Act as a nonprescription
drug,” new 21 U.S.C. 802(45) as added by the Act.
established by the Attorney General, and sales are limited to 7.5 grams of EPP base
per customer per month.198 If the Attorney General determines that an EPP product
cannot be used to produce methamphetamine, he may waive the 3.6 gram limit on
retail sales and 7.5 gram limits on mail order and mobile retail sales.199
Sellers who knowingly violate the mail order regulations, or knowingly or
recklessly violate the sales regulations, or unlawfully disclose or refuse to disclose
EPP logbook sales information, or continue to sell after being prohibited from doing
so as a result of past violations, are subject to imprisonment for not more than one
year, and/or a fine of not more than $100,000 (not more than $200,000 for
organizations), and to a civil penalty of not more than $25,000, 21 U.S.C. 842 as
amended by section 711(f) of the Act. During the 30 days after enactment but before
the new purchase limits become effective, knowing or intentional retail purchases
more than 9 grams of EPP base (7.5 grams in the case of mail order purchases) are
punishable by imprisonment for not more than one year and/or a fine of not less than
$1,000 nor more than $100,000 (not more than $200,000 for an organization), 21
U.S.C. 844(a) as amended by section 711(e)(1) of the Act.
Authority to Establish Production Quotas. The Controlled Substances
Act allows the Attorney General to assess the total annual requirements for various
controlled substances and to impose manufacturing quotas accordingly, 21 U.S.C.
826. Section 713 of the Act extends that authority to reach EPP production. For
violations, manufacturers face imprisonment for not more than one year, and/or a fine
of not more than $100,000 (not more than $200,000 for organizations), and to a civil
penalty of not more than $25,000.
Imports/Exports. The Attorney General enjoys broad general authority to
regulate controlled substances imported and exported for legitimate purposes, 21
U.S.C. 952, 953 (neither section mentions listed chemicals). Importers and exporters
of list I chemicals (which includes EPP), however, must register with the Attorney
General, 21 U.S.C. 958. And they must notify the Attorney General 15 days in
advance of any anticipated shipment of listed chemicals to or from the U.S. involving
anyone other than a regular source or customer, 21 U.S.C. 971.
Section 715 of the Act expands the statutory statement of the Attorney General’s
authority to regulate controlled substance imports to include EPP, amending 21
U.S.C. 952. Moreover, it provides implicit statutory confirmation of the Attorney
General’s authority to set import quotas for EPP by authorizing him to increase the
quantity of chemicals importer’s registration permits him to bring into the country,
new subsection 21 U.S.C. 952(d) as added by the Act. Here and its other adjustments
concerning imports and exports, the Act instructs the Attorney General to confer with
the U.S. Trade Representative in order to ensure continued compliance with our
international trade obligations.
198 § 711(c)(1), P.L. 109-177, 120 Stat. 261 (2006), adding 21 U.S.C. 830(e)(2).
199 § 711(d), P.L. 109-177, 120 Stat. 261, 262 (2006), adding 21 U.S.C. 830(e)(3).
International Regulation of Precursors.
Foreign Distribution Chains. The Act also affords the Attorney General
renewed notification when the listed chemical transaction, for which approval was
initially sought and granted, “falls through,” and the importer or exporter substitutes
a new subsequent purchaser, 21 U.S.C. 971 as amended.200 The Attorney General
may require EPP importers to include “chain of distribution” information in their
notices that traces the distribution trial from foreign manufacturers to the importer,
new subsection 21 U.S.C. 971(h) as added by section 721 of the Act. The Attorney
General may seek further information from foreign participants in the chain and
refuse to approve transactions involving uncooperative participants, 21 U.S.C.
971(h)(2), (h)(3). Failure to comply with these expanded notice requirements or the
bills’s EPP import registration and quota provisions is punishable by imprisonment
for not more than 10 years and /or a fine of not more than $250,000 (not more than
$500,000 for organizations), 21 U.S.C. 960(d)(6) as amended by section 717 of the
Foreign Assistance to Source Countries. The Foreign Assistance Act
calls for an annual report on the drug trafficking and related money laundering
activities taking place in countries receiving assistance, 22 U.S.C. 2291h. Major
illicit drug-producing and drug-transit countries are subject to a procedure featuring
presidential certification of cooperative corrective efforts, 22 U.S.C. 2291j. The Act
amends the reporting and certification requirements to cover the five largest EPP
exporting and the five largest EPP importing countries with the highest rates of201
diversion, 22 U.S.C. 2291h, 2291j as amended by section 722 of the Act. It also
directs the Secretary of State in consultation with the Attorney General to report to
Congress on a plan to deal with the diversion. Section 723 of the Act further
instructs the Secretary to take diplomatic action to prevent methamphetamine
smuggling from Mexico into the United States and to report to Congress on results
of the efforts; the first such report is due not later than one year after the Act’s
enactment, and every year thereafter.
Enhanced Criminal Penalties for Meth Production and Trafficking.
Smuggling Using Commuter Lanes. Unlawful possession of
methamphetamine is punishable by imprisonment for terms ranging from not more
than 20 years to imprisonment for life depending upon the amount involved and the
offender’s criminal record, 21 U.S.C. 841(b), 848. Unlawful possession of EPP is
200 H.Rept. 109-333 (2005)(“A problem can arise, however, when the sale that the importer
or exporter originally planned falls through. When this happens the importer or exporter
must quickly find a new buyer for the chemicals on what is called the “spot marker” —
wholesale market. Sellers are often under pressure to find a buyer in a short amount of time,
meaning that they may be tempted to entertain bids from companies without a strong record
of preventing diversion. More importantly, the Department of Justice has no opportunity
to review such transactions in advance and suspend them if there is a danger of diversion
to illegal drug production”).
201 Similar provisions appear in the House-passed Foreign Relations Authorization Act,
Fiscal Years 2006 and 2007 (H.R. 2601)(§1007).
punishable by imprisonment for terms ranging from not more than five years to
imprisonment for life depending upon the amount involved and the offender’s
criminal record, 21 U.S.C. 841(c), 848. Similar penalties follow smuggling
methamphetamine or EPP, 21 U.S.C. 960, 848. Section 731 of the Act establishes
a consecutive term of imprisonment of not more than 15 years to be added to the
otherwise applicable sentence when the methamphetamine or EPP offense is
committed in connection with quick entry border procedures.
Manufacturing Controlled Substances on Federal Property. The
fines for controlled substance offenses that involve cultivation of a controlled
substance on federal property are not more than $500,000 individuals and $1 million
for organizations, 21 U.S.C. 841(b)(5). The Act establishes the same fine levels for
manufacturing a controlled substance on federal property, 21 U.S.C. 841(b)(5) as
amended by section 732 of the Act.202
Increased Penalties for Drug Kingpins. The Controlled Substances Act
punishes major drug traffickers (those guilty of continuing criminal enterprise
offenses sometimes known as “drug kingpins”), 21 U.S.C. 848. Drug kingpins,
whose offenses involve 300 or more times the amount of controlled substance
necessary to trigger the sentencing provisions of 21 U.S.C. 841(b)(1)(B) or whose
offenses generate more than $10 million in gross receipts a year, face sentences of
mandatory life imprisonment. In the case of a drug kingpin trafficking in
methamphetamine, section 733 of the Act lowers the thresholds to 200 or more times
the trigger amounts or $5 million in gross receipts a year, new subsection 21 U.S.C.
Cooking or Dealing Near Children. The Controlled Substances Act
doubles the otherwise applicable penalties for the distribution or manufacture of
controlled substances near schools, playgrounds, video arcades and other similarly
designated places likely to be frequented by children, 21 U.S.C. 860. Section 734 of
the Act adds a penalty of imprisonment for not more than 20 years to the otherwise
applicable penalties for distributing, possessing with the intent to distribute, or
manufacturing methamphetamine anywhere where a child under 18 years of age is
in fact present or resides, new section 21 U.S.C. 860a as added by the Act.
Reports to the Sentencing Commission. The United States Sentencing
Commission establishes and amends federal sentencing guidelines, which must be
considered when federal courts impose sentence in a criminal case, 28 U.S.C. 994;
18 U.S.C. 3553; United States v. Booker, 543 U.S. 220, 245 (2005). Every federal
judicial district must provide the Commission with detailed reports on each criminal
sentence imposed by the district’s judges, 28 U.S.C. 994(w). Section 735 of the Act
authorizes the Commission to establish the format for such reports and emphasizes
the need for a written statement of reasons for the sentence imposed including the
reasons for any departure from the sentence advised the by the guidelines, 28 U.S.C.
202 The change confirms existing law since for purposes of the Controlled Substances Act,
“manufacturing” includes “cultivating,” 21 U.S.C. 802(15), (22).
Reports to Congress. Section 736 of the Act requires the Attorney General
to report twice a year — to the Judiciary Committees; the House Energy and
Commerce Committee; the Senate Commerce, Science and Transportation
Committee; the House Government Reform Committee; and the Senate Caucus on
International Narcotics Control — on the Drug Enforcement Administration’s and
the Federal Bureau of Investigation’s allocation of resources to the investigation and
prosecution of methamphetamine offenses.
Enhanced Environmental Regulation of Methamphetamine
Transportation of Hazardous Materials. Under the Hazardous Material
Transportation Act, the Secretary of Transportation enjoys regulatory authority over
the transportation of certain explosive, toxic or otherwise hazardous material, 49
U.S.C. 5103. Section 741 of the Act instructs the Secretary to report every two years
to the House Committee on Transportation and Infrastructure and to the Senate
Committee on Commerce, Science, and Transportation on whether he has designated
as hazardous materials for purposes of the act, all methamphetamine production by-
products, 49 U.S.C. 5103(d) as added by the Act.
Solid Waste Disposal. Under the Solid Waste Disposal Act, the
Administrator of the Environmental Protection Agency identifies and lists toxic,
flammable, corrosive and otherwise hazardous waste, 42 U.S.C. 6921. Section 742
of the Act requires the EPA Administrator to report within two years of enactment,
to the House Committee on Energy and Commerce and the Senate Committee on
Environment and Public Works, on the information received from law enforcement
agencies and others identifying the by-products of illicit methamphetamine product
and on which of such by-products the Administrator considers hazardous waste for
purposes of the act, new subsection 42 U.S.C. 6921(j) as added by the Act.
Restitution for Methamphetamine Possession. The Act amends the
provision under which offenders convicted of violations of the Controlled Substances
Act or the Controlled Substances Import and Export Act involving the manufacture
of amphetamine or methamphetamine may be ordered to pay restitution and to
reimburse governmental entities for cleanup costs, to specifically include restitution
and reimbursement in the case of offenses involving simple possession or possession
with intent to distribute, 21 U.S.C. 853(q) as amended by section 743 of the Act.203
This change was prompted by United States v. Lachowski, 405 F.3d 696, 700 (8th
203 “The court, when sentencing a defendant convicted of an offense under this subchapter
or subchapter II of this chapter involving the manufacture, the possession, or the possession
with the intent to distribute, of amphetamine or methamphetamine, shall — (1) order
restitution as provided in sections 3612 and 3664 of Title 18; (2) order the defendant to
reimburse the United States, the State or local government concerned, or both the United
States and the State or local government concerned for the costs incurred by the United
States or the State or local government concerned, as the case may be, for the cleanup
associated with the manufacture of amphetamine or methamphetamine by the defendant, or
on premises or in property that the defendant owns, resides, or does business in; and (3)
order restitution to any person injured as a result of the offense as provided in section 3663A
of Title 18,” 21 U.S.C. 853(q)(amendments in italics).
Cir. 2005), which had held that the “offenses involving the manufacture of
amphetamine or methamphetamine” upon which a restitution or reimbursement order
might be based did not include unlawful possession with intent to distribute
methamphetamine. The conferees felt that Lachowski “undermined the ability of the
Federal government to seek cleanup costs from methamphetamine traffickers who
are convicted only of methamphetamine possession — even when the
methamphetamine lab in question was on the defendant’s own property.”204
Drug Courts and Grant Programs.
Improvements to the DOJ Drug Court Program. The Attorney General
may make grants to state, local and tribal governments for the operation of drug
courts, 42 U.S.C. 3797u. The Act instructs the Attorney General to prescribe
guidelines or regulations to ensure that such programs feature mandatory drug testing
and mandatory graduated sanctions for test failures, new subsection 42 U.S.C.
3797u(c) as added by section 751 of the Act, and authorizes appropriations for
FY2006 of $70 million, new subsection 42 U.S.C. 3793(25)(A)(v)[inadvertently
cited in the Act as 42 U.S.C. 2591(25)(A)(v)] as added by section 752 of the Act.
The Attorney General is also directed to study the feasibility of a drug court program
for low-level, non-violent federal offenders and to report on the results by June 30,
Grant Programs. The Act also creates three methamphetamine-related grant
programs. One, provided by section 754 of the Act, addresses public safety as well
as methamphetamine manufacturing, trafficking and use in “hot spots.”
Appropriations of $99 million for each of the next five fiscal years (2006-2010) are
authorized for grants to the states under the program. The second, section 755 of the
Act, authorizes appropriations of $20 million for fiscal years 2006 and 2007 in order
to provide grants to the states for programs for drug-endangered children. The third
program (services relating to methamphetamine use by pregnant and parenting
women offenders), section 756 of the Act, is available to state, local, and tribal
governments and supported an authorization of such appropriations as are necessary.
204 H.Rept. 109-333, at 116 (2005).