USA PATRIOT Act: Background and Comparison of House- and Senate-Approved Reauthorization and Related Legislative Action
CRS Report for Congress
USA PATRIOT Act: Background and Comparison
of House- and Senate-Approved Reauthorization
and Related Legislative Action
Updated September 15, 2005
Charles Doyle
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress
USA PATRIOT Act: Background and Comparison of
House- and Senate-Approved Reauthorization and
Related Legislative Action
Summary
The House and Senate have each passed USA PATRIOT Reauthorization Acts,
H.R. 3199 and S. 1389. Both make permanent most of the expiring USA PATRIOT
Act sections, occasionally in modified form. After amending two of the more
controversial expiring sections, 206 (roving Foreign Intelligence Surveillance Act
(FISA) wiretaps) and 215 (FISA tangible item access orders (business records-library
records)), they postpone their expiration date, S. 1389 until December 31, 2009;
H.R. 3199 until December 31, 2015. Both address questions raised as to the
constitutionality of various “national security letter” (NSL) statutes by providing for
review, enforcement and exceptions to the attendant confidentiality requirements in
more explicit terms. S. 1389 limits its NSL adjustments to the statute that affords
federal foreign intelligence investigators access to communications records; H.R.
3199 amends the communications, and the financial institution and credit bureau
NSL statutes.
H.R. 3199 contains a substantial number of sections that have no counterpart in
S. 1389, although many of them have been passed or reported by committee in one
House or the other. Its treatment of seaport security, for example, is similar in many
respects to that of S. 378, the Reducing Crime and Terrorism at America’s Seaports
Act of 2005, as reported by the Senate Judiciary Committee. Its first responder grant
program sections are virtually identical to legislation which the House sent to the
Senate as H.R. 1544. And its death penalty sections are reminiscent of sections
found in H.R. 10 in the 108th Congress as reported the House Judiciary Committee.
H.R. 3199 alone permits wiretapping in the investigation of a greater range of
federal crimes. It alone expands the use of forfeiture authority against money
laundering particularly in terrorism cases. An abbreviated version of this report is
available as CRS Report RS22216, USA PATRIOT Act Reauthorization in Brief.
Contents
In troduction ..................................................1
Expiring Law Enforcement Sections...............................3
Section 201 (ECPA Terrorism Predicates)......................3
Section 202 (ECPA Computer Crime Predicates).................4
Section 203(b) (Disclosure of Wiretap Information)...............4
Section 203(d) (Disclosure of Law Enforcement Information).......4
Section 209 (Voice Mail Seizures)............................4
Section 212..............................................5
Section 213..............................................5
Section 217 (Computer Trespassers)...........................6
Section 220 (Service of Electronic Evidence Warrants)............7
Section 6603 (Terrorist Support)..............................7
Expiring FISA Sections.........................................7
Section 204 (ECPA and FISA)...............................7
Section 206 (FISA Roving Wiretaps)..........................8
Section 207 (Duration of FISA Orders).........................9
Section 214 (FISA Pen Register/Trap and Trace Orders)...........9
Section 215 (FISA Tangible Item)............................10
Section 218 (The”Wall”)...................................11
Section 223 (Sanctions for FISA/ECPA Violations)..............12
Section 225 (Immunity for FISA Assistance)...................12
Section 6001 (Lone Wolf Agents of a Foreign Power)............12
National Security Letters.......................................13
Provisions in S. 1389 With No Counterpart in H.R. 3199..............14
Rules ..................................................14
Reports .................................................15
Sections in H.R. 3199 With No Counterpart in S. 1389...............15
Attacks on Mass Transit....................................15
Crime There Forfeiture Here................................16
Federal Crimes of Terrorism................................16
Wiretapping Predicates....................................16
Forfeiture for Acts of Terrorism.............................17
Cigarette Smuggling......................................17
Narco-Terrorism .........................................18
Interfering With the Operation of An Aircraft...................18
Investigation of Political Activities...........................18
First Responder Funding...................................18
Federal Data Mining Report................................20
Victims Access Forfeiture Funds.............................20
Terrorist Death Penalty Enhancement.........................20
Seaport Terrorism............................................26
Seaport Entry by False Pretenses.............................26
Obstructing Maritime Inspections............................26
Terrorist Attacks on Passenger Vessels........................26
Interference with Maritime Commerce........................27
Transporting Dangerous Materials or Terrorists.................27
Interference With Maritime Navigation........................28
Theft From Maritime Commerce.............................29
Stowaways ..............................................29
Port Security Bribery......................................30
Smuggling Goods Into the United States.......................30
Smuggling Goods From the United States......................30
Terrorism Financing...........................................31
Emergency Economic Powers Act Penalties....................31
Terrorist Money Laundering................................31
Forfeiture for Foreign Crimes...............................31
Application of the Money Laundering Statute to Dependent
Transactions .........................................33
Sundry Technical and Substantive Amendments.................33
Technical Amendments....................................34
Laundering the Proceeds Foreign Terrorist Training..............34
USA PATRIOT Act: Background
and Comparison of House- and
Senate-Approved Reauthorization
and Related Legislative Action
Introduction
The House and Senate have each approved legislation that would among other
things make permanent most of the USA PATRIOT Act sections now subject to the
act’s sunset provision. The House passed H.R. 3199 on July 21, 2005, 151
Cong.Rec. H6307. The Senate passed S. 1389 on July 29, 2005, 151 Cong.Rec.1
S9559-562. The bills differ. This is a brief description of what they say and how
they differ. It builds upon and borrows from earlier reports.2
Title II of the USA PATRIOT Act, P.L. 107-56, amended existing law relating
primarily to the collection of communications-related information during law
enforcement and national security investigations. In a law enforcement context such
matters are governed generally by the Electronic Communications Privacy Act
(ECPA); in a national security context they lie principally within the realm of the
Foreign Intelligence Surveillance Act (FISA). ECPA consists of three chapters
which general prohibitions and procedures for judicially supervised law enforcement
exceptions. They involve:
- the interception of wire, oral or electronic communications (wiretapping), 18
U.S.C. ch. 119 (18 U.S.C. 2510-2522);
- access to the content of stored electronic communications and to
communications transaction records, 18 U.S.C. ch. 121 (18 U.S.C. 2701-2712);
and
- the use of trap and trace devices and pen registers (essentially in and out secret
caller id devices), 18 U.S.C. ch. 206 (18 U.S.C. 3121-3127).
1 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. 3199, 151
Cong.Rec. S9559, S9562 (daily ed. July 29, 2005). The Record, however, reprints the
House-passed bill and identifies it as H.R. 3199 as passed by the Senate, 151 Cong.Rec.
S9562-579 (daily ed. July 29, 2005). For purposes of convenience, we assume that Senate-
passed version of H.R. 3199 is S. 1389 as reported and will refer to it as S. 1389.
2 E.g., CRS Report RL32186, USA PATRIOT Act Sunset: Provisions That Expire on
December 31, 2005; and CRS Report RL31377, The USA PATRIOT Act: A Legal Analysis.
FISA is concerned with gathering information, under FISA court supervision,
about foreign powers and their agents including international terrorists; it has four
parts devoted to:
- electronic surveillance (wiretapping), 50 U.S.C. 1801-1811;
- physical searches, 50 U.S.C. 1821-1829;
- pen registers and trap and trace devices, 50 U.S.C. 1841-1846; and
- production of tangible items (access to business records), 50 U.S.C. 1861-1862.
Most of the sections in Title II of the USA PATRIOT Act are temporary
amendments to FISA or ECPA. By operation of section 224 of the act, 115 Stat. 295
(18 U.S.C. 2510 note), they expire on December 31, 2005 unless they are
reauthorized or their expiration date postponed. Their expiration has been closely
linked in public debate with two other temporary provisions, both enacted as part of
the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458 (2004).
One, section 6001 of that act, relates to so-called lone wolf agents of a foreign power
under FISA, 50 U.S.C. 1801(b)(1)(C), and expires on December 31, 2005, 50 U.S.C.
1801 note. The other, section 6603, relates to the criminal law sections including
those proscribing material support of terrorists and terrorist organizations, 18 U.S.C.
2339A, 2339B, and expires a year later on December 31, 2006, 18 U.S.C. 2332b
note.
The USA PATRIOT Act sections scheduled to expire on December 31, 2005
are:
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 use)
Sec. 206 (assistance in conducting roving FISA wiretaps)
Sec. 207 (duration of FISA wiretap and search orders involving agents of a
foreign power)
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. 215 (FISA tangible items access orders)
Sec. 217 (law enforcement access to computer trespassers’ communications
within the intruded system)
Sec. 218 (FISA wiretap or search orders with an accompanying law enforcement
purpose (removal of the wall of separation between criminal catchers and spy
catchers))
Sec. 220 (nation-wide 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).
The Senate-passed bill, S. 1389, makes the material support amendments and
each of these temporary sections permanent except for sections 206 and 215 and the
lone wolf amendment whose expiration it postpones until December 31, 2009. It also
makes substantive changes in sections 206 (roving FISA wiretaps), 207 (duration of
FISA orders), 212 (emergency ISP disclosures), 213 (delayed notice of sneak and
peek searches), 214 (FISA pen register/trap and trace orders), 215 (FISA orders for
access to tangible items), 505 (national security letters), and in the law relating to
“enhanced FISA sunshine.”
The House-passed bill, H.R. 3199, eliminates the temporary status of the lone
wolf, material support and each of the USA PATRIOT Act temporary sections
except for sections 206 and 215 whose expiration it postpones until December 31,
2015. H.R. 3199 has a more extensive inventory of substantive changes both to the
USA PATRIOT Act and to related provisions of law. It amends in its own way the
USA PATRIOT Act sections amended in the Senate bill, except section 214 (FISA
pen register/trap and trace orders). In addition it changes USA PATRIOT sections
203(b)(wiretap information sharing), 801 (attacks on mass transit), 806 (forfeiture of
terrorist assets), and 1014 (first responder grants). It also includes provisions dealing
with terrorist death penalty enhancement and terrorism financing reminiscent of
proposals in S. 2679 (108th Cong.) and H.R. 10 (108th Cong.)(as reported by the
House Judiciary Committee, H.Rept. 108-724, pt.5 (2004). Its seaport security
provisions are comparable to those of S. 378 in this Congress as reported in the
Senate.
Expiring Law Enforcement Sections
Seven of the temporary USA PATRIOT Act sections and the material witness
amendments from the Intelligence Reform and Terrorism Prevention Act deal with
substantive criminal and procedure, most often with ECPA.
Section 201 (ECPA Terrorism Predicates). ECPA authorizes federal
courts to approve law enforcement requests to intercept wire, oral or electronic
communications as a last resort in the investigation of certain serious federal crimes
(predicate offenses), 18 U.S.C. 2516-2581. By virtue of section 201 the ECPA
predicate offense list temporarily includes violations of:
- 18 U.S.C. 229 (chemical weapons)
- 18 U.S.C. 2332 (violence committed against Americans overseas)
- 18 U.S.C. 2332a (weapons of mass destruction)
- 18 U.S.C. 2332b (multinational terrorism)
- 18 U.S.C. 2332d (financial transactions with a nation designated a sponsor of
terrorism
- 18 U.S.C. 2339A (material support of a terrorist)
- 18 U.S.C. 2339B (material support of a foreign terrorist organization), 18
U.S.C. 2516(1).
P.L. 107-197, 116 Stat. 728 (2002), adds two more crimes to the temporary
ECPA predicate offense list, violations of 18 U.S.C. 2332f (bombing public buildings
or places) and 18 U.S.C. 2339C (financing terrorism). Both H.R. 3199 (sec.102) and
S. 1389 (sec.9) make the section and its additions permanent.
Section 202 (ECPA Computer Crime Predicates). Section 202
temporarily adds violations of 18 U.S.C. 1030 (computer fraud and abuse) to the
ECPA predicate offense list, 18 U.S.C. 2516(1). Both H.R. 3199 (sec.102) and S.
Section 203(b) (Disclosure of Wiretap Information). Section 203(b)
authorizes federal officials to disclose “foreign intelligence, counterintelligence, or
foreign intelligence information”3 obtained through a ECPA wiretap with various
federal officials (law enforcement, protective, immigration, national defense and
national security officials), 18 U.S.C. 2517(6).
Section 203(b) aside, ECPA allows federal officials to share wiretap information
with other law enforcement officials, 18 U.S.C. 2517(1); with foreign law
enforcement officials, 18 U.S.C. 2517(7); and in order to prevent or investigate
terrorism, sabotage or espionage, with federal, state, local and foreign officials, 18
U.S.C. 2517(8) — under authority that does not expire.
Both bills make section 203(b) permanent, H.R. 3199 (sec.102) and S. 1389
(sec.9). H.R. 3199 alone requires notification to the issuing court of the recipient
departments, agencies, or entities with whom wiretap information has been shared
under the section (sec. 105), 18 U.S.C. 2518(6).
Section 203(d) (Disclosure of Law Enforcement Information). Section
203(d) of the USA PATRIOT Act permits law enforcement to share foreign
intelligence, counterintelligence or foreign intelligence information unearthed in a
criminal investigation with certain other federal officials “notwithstanding any other
law.” It is unclear what other law the drafters had in mind.
Both bills make section 203(c) permanent, H.R. 3199 (sec.102) and S. 1389
(sec.9).
Section 209 (Voice Mail Seizures). The interception of a telephone
conversation in progress requires an ECPA court order, 18 U.S.C. 2511, 2516-2518.
E-mail stored with a provider can be seized under a search warrant, 18 U.S.C. 2703.
3 The term “foreign intelligence” means “information relating to the capabilities, intentions,
or activities of foreign governments or elements thereof, foreign organizations, or foreign
persons, or international terrorist activities,” 50 U.S.C. 401a(2). The term
“counterintelligence” means “information gathered and activities conducted to protect
against espionage, other intelligence activities, sabotage, or assassinations conducted by or
on behalf of foreign governments or elements thereof, foreign organizations, or foreign
persons, or international terrorist activities,” 50 U.S.C. 401a(3). The term “foreign
intelligence information” means: “(a) information, whether or not it concerns a United
States person, that relates to the ability of the United States to protect against — actual or
potential attack or other grave hostile acts of a foreign power or its agent; sabotage or
international terrorism by a foreign power or its agent; or clandestine intelligence activities
by an intelligence service or network of a foreign power or by its agent; or (b) information,
whether or not it concerns a United States person, with respect to a foreign power or foreign
territory that relates to — the national defense or the security of the United States; or the
conduct of the foreign affairs of the United States,” 18 U.S.C. 2510(19).
Some courts have held that prior to retrieval voice mail messages stored with a
service provider could only be seized under an ECPA court order (that is until
retrieved they could be “intercepted”), United States v. Smith, 155 F.3d 1051 (9th Cir.
Both bills make section 209 permanent, H.R. 3199 (sec.102) and S. 1389
(sec.9).
Section 212. Law enforcement officials who wish access to the content of
stored electronic communications or to the records of communications transactions
are generally required to get a search warrant or a court order, 18 U.S.C. 2703.
Section 212 allowed service providers to disclose contents and records in an
emergency situation, 115 Stat. 284-85. Later amendments repealed that portion of
section 212 that related to disclosure of stored communications and replaced it with
a permanent provision, 18 U.S.C. 2702(b)(8), which authorizes voluntary provider
disclosure to federal, state or local authorities in emergency cases involving a risk of
serious injury. The portion of section 212 relating to voluntary emergency disclosure
of communications records remains unchanged, 18 U.S.C. 2702(c)(4) and is
scheduled to expire on December 31, 2005.
Both bills make the section (or as much as still survives) permanent, H.R. 3199
(sec.102) and S. 1389 (sec.9). Both require annual reports on the extent of voluntary
good faith disclosures of stored communications under 18 U.S.C. 2702(b)(8), H.R.
3199 (sec.108) and S. 1389 (sec.4(a)). The Senate bill alone removes from the
emergency communications record disclosure provisions of 18 U.S.C. 2702(c)(4) the
requirement that the danger be immediate, S. 1389 (sec. 4(b)).
Section 213. The Fourth Amendment only applies where there is a reasonable
expectation of privacy, Smith v. Maryland, 442 U.S. 735, 740 (1979). The Supreme
Court has held that there is no reasonable expectation of privacy in commercial
transaction records maintained by third parties, United States v. Miller, 425 U.S. 435,
443 (1976). Federal law, however, provides a procedure for delayed notification of
governmental acquisition of customer transaction records from communications
service providers, 18 U.S.C. 2703-2706.
Where the Fourth Amendment applies, it requires that law enforcement officers
announce their presence and purpose before entering to execute a search warrant, but
recognizes that under certain exigent circumstances (flight of a suspect, destruction
of evidence, risk of injury) the requirement may be excused, Wilson v. Arkansas, 514
U.S. 927, 934-36 (1996). ECPA permits delayed notification of the existence of a
wiretap until after the order authorizing the tap has expired, 18 U.S.C. 2518(8)(d),
under the exigent circumstance that the evidence sought will never be created if its
authors are aware of the tap. In all other cases prior to the USA PATRIOT Act the
Federal Rules of Criminal Procedure required that a copy of the search warrant and
a receipt for property seized (tangible and intangible) be presented or left at the place
searched and that an inventory of the property seized be part of the return to the
issuing magistrate, F.R.Crim.P. 41(d)(2000 ed.). The lower courts were divided over
whether sneak and peek warrants with delayed notification constituted a violation of
the Rule or the Fourth Amendment and extent of the delay that might be authorized
should the magistrate find exigent circumstances.4
Section 213 permits delayed notification of the execution of a “sneak and peek”
search warrant for a reasonable period of time if contemporaneous notice might have
adverse consequences, 18 U.S.C. 3103a(b). The definition of adverse consequences
comes from the statutory procedure for law enforcement seizures of records in which
the subject has no Fourth Amendment interest, 18 U.S.C. 2705. The consequences
mentioned there are both those whose status as exigent circumstances is clear (flight,
destruction of evidence, risk of injury) and those whose status is at best unclear
(jeopardize an investigation or delay a trial).
Section 213 is not scheduled to expire, but both bills amend it to provide more
specific limits on the extent of permissible delays and to require reports by the
Administrative Office of the United States Courts on its use, as noted below.
S. 1389H.R. 3199
No comparable provision.Eliminates trial delay as an adverse result
justifying delayed notice (sec. 121),
proposed 18 U.S.C. 3103a(b)(1).
Requires notice not later than seven daysRequires notice not later than 180 days
after execution or on a later date certainafter execution (sec. 114(1)), proposed 18
if the facts justify a longer delay (sec,U.S.C. 3103a(b)(3).
Permits extensions of up 90 days orPermits extensions of up to 90 days (sec.
longer if the facts justify (sec. 4(b)),114(2)), proposed 18 U.S.C. 3103a(b)(3).
proposed 18 U.S.C. 3103a(c).
Requires the Administrative Office ofRequires the Administrative Office of the
the United States Courts to annuallyUnited States Courts to annually report to
report to Congress the number of delaythe Judiciary Committees the number of
notice warrants requested, granted, andwarrants and of delayed notices
denied during the year (sec. 4(c)),authorized indicating the triggering
proposed 18 U.S.C. 3103a(c).adverse result (sec. 121), proposed
Authorizes the Administrative Office inNo comparable provision.
consultation with the Attorney General
to promulgate regulations implementing
the reporting requirements (sec. 4(c)),
proposed 18 U.S.C. 3103a (c).
Section 217 (Computer Trespassers). As a general rule ECPA requires
a court order or consent of one of the parties to a conversation before it can be
intercepted, 18 U.S.C. 2511. Section 217 permits law enforcement officials to
4 United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Pangburn, 983
F.2d 449 (2d Cir. 1993); United States v. Simmons, 206 F.3d 392 (4th Cir. 2000).
intercept the communications of a computer trespasser within the invaded computer
system if they have the consent of the system owner or operator, 18 U.S.C.
2511(2)(i). Both bills make section 217 permanent, H.R. 3199 (sec.102) and S. 1389
(sec.9).
Section 220 (Service of Electronic Evidence Warrants). As a general
rule, federal magistrates may only issue search warrants to be executed within the
judicial district in which they sit, F.R.Crim.P. 41. Section 220 permits federal courts
in the district in which an offense occurs to issue search warrants and court orders for
access to relevant stored electronic communications or communications transaction
records wherever the evidence are located, 18 U.S.C. 2703, 3127. Both bills make
section 220 permanent, H.R. 3199 (sec.102) and S. 1389 (sec.9).
Section 6603 (Terrorist Support). Section 6603 of the Intelligence Reform
and Terrorism Prevention Act made several temporary changes in the federal law
relating to the support of terrorists and terrorist organization, primarily in 18 U.S.C.
2339A and 2339B. Section 2339A outlaws providing material support for the
commission of certain designated terrorist offenses (predicate offenses); section
2339B outlaws providing material support to a designated foreign terrorist
organization. Section 6603 modifies the definition of “material support” used in the
two statutes in an attempt to bolster their ability to survive constitutionally-based
vagueness challenges.5 It also more precisely describes the level of knowledge
required for a conviction under section 2339B to avoid judicial decisions suggesting
that conviction requires either knowledge of the grounds upon which an organization
was designated a foreign terrorist organization or knowledge that the assistance
provided would be used for terrorist purposes.6 In addition, section 6603 expands the
list of 2339A predicate offenses to include any “federal crime of terrorism” (18
U.S.C. 2332b(g)(5) (B)), and permits federal prosecution of a violation of 2339B
committed overseas by a foreign national, 18 U.S.C. 2339B(d).
Section 6603 is scheduled to expire on December 31, 2006; both bills make
section 6603 permanent, H.R. 3199 (sec.104) and S. 1389 (sec.9).
Expiring FISA Sections
Section 204 (ECPA and FISA). Pre-existing federal law made it clear that
the general prohibitions against wiretapping, 18 U.S.C. 2511, and against the
5 See A Review of the Tools to Fight Terrorism Act: Hearing Before the Senate Comm. on
the Judiciary, 108th Cong., 2d Sess. (2004)(joint prepared statement of Assistant Attorney
General Daniel J. Bryant and Counterterrorism Section Chief Barry Sabin), describing the
rationale behind identical language contained in earlier legislation and citing Humanitarianth
Law Project v. U.S. Dept. of Justice, 352 F.3d 382 (9 Cir. 2003) and Humanitarian Law
Project v. Ashcroft, 309 F.Supp.2d 1218 (C.D.Cal. 2004). In the view of at least one federal
court the effort proved only partially successful, Humanitarian Law Project v. Gonzales,
380 F.Supp.2d 1134 (C.D.Cal. 2005), discussed in CRS Report RL33035, Material Support
of Terrorists and Foreign Terrorist Organizations: Sunset Amendments.
6 Id. citing Humanitarian Law Project v. U.S. Dept. of Justice, 352 F.3d 382 (9th Cir. 2003)
and United States v. Al-Arian, 308 F.Supp.2d 1322 (M.D.Fla. 2004).
acquisition of communications and stored electronic communications, 18 U.S.C.
2701, do not preclude federal foreign intelligence gathering activities in international
or foreign communications systems, 18 U.S.C. 2511(2)(f) (2000 ed.). Section 204
amends paragraph 2511(2)(f) to make it clear that the general prohibitions against the
installation and use of pen registers and trap and trace devices are equally
inapplicable.
Section 204 is scheduled to expire on December 31, 2005; both bills make it
permanent, H.R. 3199 (sec.102) and S. 1389 (sec.9).
Section 206 (FISA Roving Wiretaps). FISA authorizes roving wiretaps;
section 206 forgives under some circumstances the need to specifically identify the
communications carriers or landlords who will be directed to help execute the roving
wiretap. FISA courts may issue FISA surveillance orders that describe but do not
identify the target and that do not specifically identify the nature and location of the
places or facilities targeted for surveillance, 50 U.S.C. 1805(c)(1)(A),(B). If 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,
ECPA roving wiretaps likewise do not insist that assistants be specifically
identified, 18 U.S.C. 2518(4). They do, however, require that the target be identified,
18 U.S.C. 2518(11)(b)(ii), that intercept be limited to times when the target is
proximate to the targeted instrument, 18 U.S.C. 2518(11)(b)(iv), and that the
communications provider be allowed to petition the court to modify or quash the
order because the interception cannot be performed in a timely or reasonable manner,
Section 206 is scheduled to expire on December 31, 2005; both bills postpone
its expiration date and make other adjustments:
S. 1389H.R. 3199
Postpones sunset until December 31,Postpones sunset until December 31, 2015
Requires that the target of a FISA Requires that the FISA court’s finding
surveillance order be described withthat the target’s action may thwart
particularity when the target’s identityidentification of assistants be based on
and the nature and location of the targetspecific facts in the application (sec.
place or facilities are unknown (sec.109(a)).
Within 10 days of when the target’sWithin 15 days of when the target’s action
action requires relocation of therequires relocation of the surveillance’s
surveillance’s focus, the issuing FISAfocus, the issuing FISA court must be
court must be advised and provided withadvised and provided with additional
additional justification and minimizationjustification and information on the
information (sec. 2(b)). number of surveillances conducted or
planned (sec. 109(b)).
S. 1389H.R. 3199
Directs that required FISA reports toNo comparable provision.
Congressional Intelligence Committees
be expanded to include roving wiretap
information and be provided to the
Judiciary Committees as well (sec.2(c)).
Section 207 (Duration of FISA Orders). FISA surveillance orders directed
at the agent of a foreign power were good for 90 days with the possibility of 90 day
extensions prior to the USA PATRIOT Act, 50 U.S.C. 1805(e)(2000 ed.). At the
same time, FISA physical search orders directed against agents of a foreign power
were good for 45 days, again with the possibility of 90 day extensions, 50 U.S.C.
1824(d)(2000 ed.). Section 207 temporarily changed the time lines so that both FISA
surveillance orders and FISA physical search orders are good for 120 days with the
possibility of one year extensions, when they are directed at agents of a foreign power
who are officers or employees of a foreign power or members of an international
terrorist group, 50 U.S.C. 1805(e), 1824(d), 1801(b)(1)(A).
Section 207 is schedule to expire on December 31, 2005; both bills make it
permanent, H.R. 3199 (sec.102) and S. 1389 (sec.9), but modify its provisions.
Under both bills the 120 day/1year tenure of surveillance and search orders and
extensions apply to all agents of a foreign power (who are not U.S. persons) not
merely to those who are officers or employees or members of an international
terrorist group, H.R. 3199 (sec.106) and S. 1389 (sec.3), proposed 50 U.S.C. 1805(e),
They change the tenure of FISA pen register/trap and trace device orders as well.
Under present law, those orders and their extensions are good for 90 days, 50 U.S.C.
1842(e). Both bills give them a life time of one year with one year extensions upon
certification that the information likely to be secured is foreign intelligence
information not concerning a U.S. person, H.R. 3199 (sec.106) and S. 1389 (sec.3),
proposed 50 U.S.C. 1842(e).
Section 214 (FISA Pen Register/Trap and Trace Orders). As originally
enacted, the FISA pen register/trap and trace provisions permitted orders for their
installation and use in investigations to gather foreign intelligence information or
information concerning international terrorism, and were issued on the basis of
information giving reason to believe that the targeted telephone line had been, was,
or would be, used either by an individual engaged in criminal acts of international
terrorism or espionage or by the agent of foreign power discussing criminal acts of
international terrorism or espionage, 50 U.S.C. 1842(a),(c) (2000 ed.).
Section 214 temporarily makes the procedure available for electronic
communications (e-mail, Internet use); eliminates the required close nexus to
criminal activity; and permits issuance upon the certification that the information
likely to be secured is foreign intelligence information not concerning a U.S. person
or is relevant to an investigation to protect against international terrorism or
espionage, 50 U.S.C. 1842(a), (c).
Section 214 is scheduled to expire on December 31, 2005; the bills make it
permanent, H.R. 3199 (sec.102) and S. 1389 (sec.9). S. 1389 (sec. 6) alone modifies
its provisions by authorizing FISA pen register/trap and trace orders that direct
service providers to supply the intelligence investigators with related customer
information and by requiring the Attorney General to provide the Judiciary
Committees with full reports on the use of the FISA pen register/trap and trace
authority, proposed 50 U.S.C. 1842(d)(2)(C), 1846(a).
Section 215 (FISA Tangible Item). Prior to the USA PATRIOT Act, FISA
authorized orders giving the FBI access to the business records of vehicle rental,
storage locker rental, travel, and lodging business that pertained to foreign powers
or the agents of foreign powers, 50 U.S.C. 1861, 1862 (2000 ed.). Section 215
temporarily permits FISA orders for the production of any tangible item sought for
an investigation to obtain foreign intelligence information (not concerning a U.S.
person) or to protect against international terrorism or espionage, as long as the
investigation is not based solely on the First Amendment protected activities of a
U.S. person, 50 U.S.C. 1861.
Section 215 is scheduled to expire on December 31, 2005; the bills postpone its
expiration date and make several other modifications:
S. 1389H.R. 3199
Postpones expiration until December 31,Postpones expiration until December 31,
Predicates issuance upon a court findingPredicates issuance upon a court finding
of relevancy and that the things soughtthat the application requirements are met
pertain to, or are relevant to the(i.e., specification that the records concern
activities of, a foreign power or agent ofan authorized investigation, not basedst
foreign power, or pertain to ansolely on 1 Amendment protected
individual in contact with or known to aactivities of a U.S. person, to obtain
suspected agent of a foreign power.foreign intelligence information (not
(Sec. 7(a), (c)).concerning a U.S. person) or to protect
against international terrorism or
espionage. (Sec. 107(a), (b)).
Requires that the order describe the No comparable provision.
items sought with particularity and
provide a reasonable time for them to be
assembled and made available. (Sec.
Requires the Director or DeputyRequires the Director of the FBI approve
Director of the FBI approve applicationsapplications for orders seeking access to
for orders seeking access to library,library or book store records. (Sec.
book store, firearm sales, or medical107(e)).
records. (Sec. 7(c)).
S. 1389H.R. 3199
Recognizes exceptions toRecognizes exceptions to confidentiality
confidentiality restrictions for disclosurerestrictions for disclosure to the recipient’s
to the recipient’s attorney, thoseattorney, and those necessary to comply
necessary to comply with the order, andwith the order, all of whom are bound the
others approved by the FBI, all of whomconfidentiality requirements of which they
are bound the confidentialitymust be advised upon disclosure. (Sec.
requirements of which they must be107(c)).
advised upon disclosure. (Sec. 7(d)).
Allows recipients to challenge FISA Allows recipients to challenge FISA
tangible item orders and confidentialitytangible item orders in the FISA court; the
orders in the FISA court with thePresiding Judge may dismiss frivolous
opportunity of appeal to the FISApetitions and assigns others to one of the 3
review court and of certiorari to theFISA court judges assigned to a review
Supreme Court. (Sec. 7(e)).panel; with the opportunity of appeal to
the FISA review court and of certiorari to
the Supreme Court. (Sec.10 7(d)).
Unlawful orders or confidentialityUnlawful orders may be modified or set
requirements and orders requiringaside. (Sec. 107(d)).
production that could be quashed in the
case of a grand jury subpoena
(unreasonable, oppressive, or
privileged) may be modified or set
aside. (Sec. 7(b),(e)).
Review petitions are filed under seal; Review petitions are filed under seal;
government material may be reviewedgovernment material may be reviewed ex
ex parte and in camera. (Sec. 7(e)).parte and in camera. (Sec.107(d)).
The Chief Justice in consultation with The Chief Justice in consultation with the
the Attorney General and Director ofAttorney General and Director of National
National Intelligence is to establishIntelligence is to establish security
security measures; and the FISA court ismeasures. (Sec. 107(d)).
to establish review procedures. (Sec.
Requires inclusion of statisticalNo comparable provision.
information concerning orders for the
production of library, book store,
firearm sales, medical or tax records
with the statistical report to Congress.
(Sec. 7(f)).
Adds the Judiciary Committees to theNo comparable provision.
list of recipients of full reports on the
use of FISA tangible item orders. (Sec. 7
(f)).
Section 218 (The”Wall”). FISA once authorized issuance of surveillance and
search orders upon certification that the quest for foreign intelligence information
was the purpose for an application, 50 U.S.C. 1804(a)(7)(B), 1823(a)(7)(B)(2000
ed.). The provision was one of the reasons frequently cited for the need to isolate
criminal and national security investigators from one another. Section 218
temporarily amends the provision to permit certification where the request for foreign
intelligence information is a significant purpose for the application. Permanent
provisions elsewhere in FISA make it clear that cooperation between law
enforcement and intelligence investigators does not preclude certification, 50 U.S.C.
Section 218 expires on December 31, 2005; both bills make the section
permanent, S. 1389 (sec. 102), H.R. 3199 (sec. 9).
Section 223 (Sanctions for FISA/ECPA Violations). Prior federal law
established criminal and civil sanctions for various violations of FISA or ECPA, 18
U.S.C. 2511, 2520, 2707, 3121; 50 U.S.C. 1809, 1810, 1827, 1828 (2000 ed.), but
there were gaps. For instance, it was a federal crime to disclose unlawfully
intercepted conversations, 18 U.S.C. 2511(c), (d), but it is not to a federal crime to
leak conversations lawfully intercepted under a court order. Section 223 confirms
the authority of agency heads to discipline federal officers and employees who
willfully violate electronic surveillance and stored communications chapters of
ECPA, 18 U.S.C. 2520(f), 2707(d). It also imposes civil liability for any willful use
or disclosure of information beyond that authorized by those two statutory schemes,
18 U.S.C. 2520(g), 2707(g). Finally, it creates a cause of action against the United
States for the benefit of victims of willful violations of federal wiretap law, the stored
communications proscriptions, or the FISA limitations relating to surveillance,
physical searches or the use or installation of pen registers or trap and trace devices,
Section 223 expires on December 31, 2005; both bills make the section
permanent, S. 1389 (sec. 102), H.R. 3199 (sec. 9).
Section 225 (Immunity for FISA Assistance). FISA authorizes orders
commanding the assistance of landlords, communication service providers, and
others in the execution of its orders. Section 225 temporarily affords them immunity
from civil liability for good faith compliance with orders to assist, 50 U.S.C. 1805(h).
Section 225 expires on December 31, 2005. Both bills make the section
permanent, S. 1389 (sec. 102), H.R. 3199 (sec. 9).
Section 6001 (Lone Wolf Agents of a Foreign Power). FISA authorizes
surveillance, searches, the use of pen registers and trap and trace devices, and
tangible item orders, all in relation to the investigation of the activities of foreign
powers (including international terrorist groups) and the agents of foreign powers,
50 U.S.C. 1801-1862. Agents of a foreign power include those who “knowingly
engage[] in sabotage or international terrorism, or activities that are in preparation
therefor on behalf of a foreign power,” 50 U.S.C. 1801(b)(2)(C). Section 6001 of the
Intelligence Reform and Terrorism Prevention Act, 118 Stat. 3742 (2004),
temporarily amends FISA so that agents of a foreign power include foreign nationals
(non U.S. persons) who without the necessity of their acting on behalf of a foreign
power, “engage[] in international terrorism or activities that are in preparation
therefor,” 50 U.S.C. 1801(b)(1)(C).
Section 6001 is scheduled to expire on December 31, 2005; H.R. 3199 makes
the section permanent (sec. 103); S. 1389 postpones its expiration date until
December 31, 2009 (sec. 9(b)).
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 customer information relating to a
national security investigation, 12 U.S.C. 3414; 15 U.S.C.1681u, 1681v; 18 U.S.C.
2709; 50 U.S.C. 436. Section 358 of the USA PATRIOT Act created one of these
NSL statutes, 15 U.S.C. 1681v. Section 505 of the act enlarged the scope of most of
the others in several ways including elimination of the requirement that the records
sought pertain to a foreign power or the agent of a foreign power, a permanent
section of the act, 12 U.S.C. 3414(a)(5)(A); 15 U.S.C.1681u; 18 U.S.C. 2709(b).
A federal court in the Southern District of New York subsequently held that the
FBI’s practices and procedure surrounding the exercise of its authority under one of
these national security letter (NSL) statutes, 18 U.S.C. 2709, violated the Fourth and
First Amendments, Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 2004). In the
mind of the court, the difficulty stemmed from the effective absence of judicial
review before or after the issuance of an NSL under section 2709 and from the
facially absolute, permanent confidentiality restrictions enshrined in the statute, 334
F.Supp.2d at 526-27.
The bills address the issues raised by Doe in similar if distinctive ways. The
most obvious difference is that Senate amendments address only 18 U.S.C. 2709,
while the House amendments deal with the procedure under each of the NSL statutes.
Other similarities and differences are noted below:
S. 1389H.R. 3199
Amends 18 U.S.C. 2709 to permitAuthorizes judicial enforcement of the
judicial enforcement in U.S. districtNSLs in a new judicial review section (18
court. (Sec. 8(c)).U.S.C.3511); disobedience of the court’s
order is punishable as contempt of court.
(Sec. 116).
Amends the confidentiality provisions ofAmends the confidentiality provisions of
18 U.S.C. 2709 to permit disclosure tothe NSL statutes to permit disclosure to
those necessary for compliance and to anthose necessary for compliance and to an
attorney for legal advice. (Sec. 8(d) (2)).attorney for legal advice. (Sec. 117).
S. 1389H.R. 3199
No comparable provision. Amends the NSL statutes to provide for
nondisclosure orders only when the
investigative agency determines that the
disclosure may endanger any individual
or national security, or interfere with
diplomatic relations or a criminal or
intelligence investigation. (Sec. 117).
No comparable provision.Violations of a confidentiality
requirement are punishable by
imprisonment for not more than one year
(imprisonment for not more than five
years if committed with an intent to
obstruct). (Sec. 118).
Amends 18 U.S.C. 2709 to permit aCreates a new section (18 U.S.C. 3511)
motion to quash or modify in districtestablishing district court review
court. (Sec. 8). procedures for NSLs. (Sec. 116).
Permits the court to modify or quashPermits the court to modify NSLs if
NSLs under 18 U.S.C. 2709 ifcompliance would be unreasonable or
compliance would be unreasonable,oppressive. (Sec. 116).
oppressive, or violate any constitutional
or other legal right or privilege. (Sec. 8).
The court may modify NSLRecipients may petition the court to have
confidentiality restrictions under 18NSL confidentiality restrictions modified
U.S.C. 2709 if there is no reason toonce a year and the petition may be
believe disclosure will endanger nationalgranted upon a finding that there is no
security, or interfere with an investigationreason to believe disclosure will endanger
or diplomatic relations, or endanger anational security, or interfere with an
life. (Sec. 8).investigation or diplomatic relations, or
endanger a life. Good faith government
certification of such a danger is
conclusive. (Sec. 116).
No comparable provision.Requires that any report to a
Congressional committee on NSLs shall
also be provided to the Judiciary
Committees. (Sec. 119).
Provisions in S. 1389 With No Counterpart in H.R. 3199
Rules. FISA is silent as to the rule making authority of the FISA court or the
FISA court of review. Section 10 of S. 1389 authorizes the FISA courts to establish
rules and procedures for the administration of the act, and to transmit them in
unclassified form (possibly with a classified annex) to the judges of the FISA courts,
the Chief Justice, and the Congressional Judiciary and Intelligence Committees,
proposed 50 U.S.C. 1803(e).
Reports. FISA directs the Attorney General to report statistical information
concerning FISA surveillance orders to the Administrative Office of the United
States Courts, 50 U.S.C. 1807. Section 10 of S. 1389 asks that the report include
statistical information on the use of FISA emergency surveillance authority, proposed
The Attorney General must submit complete reports concerning the use of FISA
physical search authority to the Congressional Intelligence Committees and statistical
reports concerning the same authority to the Congressional Judiciary Committees, 50
U.S.C. 1826. Section 10 of S. 1389 requires complete reports be provided to the
Congressional Judiciary Committees as well, proposed 50 U.S.C. 1826.
FISA requires the Attorney General to provide the House and Senate Judiciary
Committees with statistical reports on the use of FISA pen register/trap and trace
authority, 50 U.S.C. 1846. Section 10 of S. 1389 expands the requirement to include
statistical information on the use of emergency pen register/trap and trace authority,
proposed 18 U.S.C. 1946.
Sections in H.R. 3199 With No Counterpart in S. 1389
Attacks on Mass Transit. It is a federal crime to wreck a train, 18 U.S.C.
1992. Attacking mass transit is a separate crime, 18 U.S.C. 1993. The two have
roughly the same penalty structure:
18 U.S.C. 199218 U.S.C. 1993
Generally: imprisonment for not moreGenerally: imprisonment for not more
than 20 years.than 20 years.
Imprisonment for any term of years butNo comparable provision.
not less than 30 or for life if the train is
carrying high-level radioactive waste or
spent nuclear fuel.
No comparable provision.Imprisonment for any term of years or for
life if there are passengers aboard the
vehicle or ferry at the time of the attack.
Death or imprisonment for life, if deathImprisonment for any term of years or for
results. life, if death results.
Attempts and conspiracies are subject toAttempts, conspiracies and threats are
the same penalties.subject to the same penalties.
Section 115 merges the two sections into a single composite 18 U.S.C. 1992
with a penalty structure under which the previous more severe penalty applies
regardless of the form of transit involved, e.g., violations where death results are
punishable by death or imprisonment for life, violations involving trains or other
forms of mass transit carrying passengers are punishable by imprisonment for any
term of years or for life; attempts, conspiracies and threats are punishable to the same
extent as the underlying offense whether they involve trains or other forms of mass
transit.
The same approach applies with regard to federal jurisdiction over the offense.
Section 1992 now bases federal jurisdiction on the fact that the train is used or
operated in interstate or foreign commerce; while section 1993 now bases federal
jurisdiction on the fact the victimized transit provider is engaged in or affects
interstate or foreign commerce, or the offender travels, communicates, or transports
material across a state line during the course of the offense. The broader jurisdiction
base of 18 U.S.C. 1993 is used in the new section, 18 U.S.C. 1992.
A second earlier section amends 18 U.S.C. 1993 to make it a federal crime to
collect information with the intent to plan or assist in a violation of 1993 or to
attempt, conspire or threaten to do so, section 110. Presumably, the amendment in
section 110 will be added to the new 18 U.S.C. 1992, since otherwise it will be
repealed when in section 115 the provision section 110 amends (18 U.S.C. 1993) is
repealed. Section 304 presents a variation of the same theme when it amends the no
longer existing section 1993 to specifically include passenger vessels among those
forms of transportation protected by terrorist attack.
Crime There Forfeiture Here. Federal law permits the confiscation of
property, within the jurisdiction of the United States, which is derived from or used
to facilitate overseas drug trafficking or certain other overseas crimes that are
punishable as felonies under the laws of the country in which they were committed
and that would be punishable as felonies if they had been committed in the United
States, 18 U.S.C. 981(a)(1)(B).
Section 111 of the H.R. 3199 amends 18 U.S.C. 981(a)(1)(B)(i) to allow for
U.S. confiscation of property, within the jurisdiction of the United States, which is
derived from or used to facilitate felonious trafficking in “nuclear, chemical,
biological, or radiological weapons technology or material” committed in violation
of foreign law.
Federal Crimes of Terrorism. Federal law affords special treatment to
crimes listed as “federal crimes of terrorism” in 18 U.S.C. 2332b(g)(5). Among other
things, there are longer statutes of limitation for their prosecution, 18 U.S.C. 3286;
more stringent bail provisions for those charged with them, 18 U.S.C. 3142; they
carry the possibility of being on supervised release for life after conviction and
service of sentence, 18 U.S.C. 3583(j); they are automatically predicate offenses
under 18 U.S.C. 2339A(material support to terrorist), racketeering predicate (RICO)
offenses, 18 U.S.C. 1961(1)(G), and money laundering predicates, 18 U.S.C.
Section 112 designates as federal crimes of terrorism, 18 U.S.C. 2339D (receipt
of military training from a foreign terrorist organization) and 18 U.S.C. 832 (material
support to a foreign program for nuclear weapons or weapons of mass destruction).
Wiretapping Predicates. ECPA permits federal courts to authorize law
enforcement wiretapping (interception of wire, oral or electronic communications)
as a last resort in the investigation of certain serious crimes (predicate offenses), 18
U.S.C. 2510-2518.
Together sections 113 and 122 add the following crimes to the wiretapping
predicate offense list:
sec. 122 adds 18 U.S.C. 930(c)((firearm assault in federal facilities)
49 U.S.C. 46504 (2d sentence)(assault on a flight crew member with a dangerous
weapon)
Forfeiture for Acts of Terrorism. 18 U.S.C. 981(a)(1)(G) calls 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 ) among other things as 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 picket sign swinging melee with
counter demonstrators. 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.
Section 120 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.
Cigarette Smuggling. Federal law proscribes trafficking in contraband
cigarettes (i.e., trafficking in more than 60,000 cigarettes without the required tax
stamps), 18 U.S.C. 2341-2346.
Section 123 recasts the federal statute lowering the threshold definition to
10,000 cigarettes and to 500 cans or packages of smokeless tobacco; and creates a
federal cause action against violators (other than Indian tribes or Indians in Indian
country) for manufacturers, exporters, and state and local authorities, proposed 18
U.S.C. 2341-2346.
Narco-Terrorism. Federal law prohibits drug trafficking with severe penalties
calibrated according to the kind and volume of drugs and the circumstances involved,
21 U.S.C. 841-971 (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, 21 U.S.C. 841, 844). Providing material
support for the commission of a terrorist crime or to a designated foreign terrorist
organization is likewise a federal crime, punishable by imprisonment for not more
than 15 years, 18 U.S.C. 2339A, 2339B.
Section 124 of H.R. 3199 outlaws drug trafficking for the benefit of a foreign
terrorist organization or of a person planning or committing a terrorist offense
including a crime recognized as such in one of our several anti-terrorist treaties
(identified in 18 U.S.C. 2339C(e)(7)). Violations are punishable by imprisonment
for not less than 20 years nor more than life, proposed 21 U.S.C. 960A.
Interfering 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, id. 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 term of years or for life in the case of assault with a dangerous weapon), 49
U.S.C. 46504.
Section 125 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)(to
be 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 126 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.
First Responder Funding. Section 1014 of the USA PATRIOT Act
establishes a grant program for state and local domestic preparedness support, 42
U.S.C. 3714. The 108th Congress ended before proponents for adjustment in the
grant effort were able to reach consensus,7 although the sense of Congress statement
in section 7401 of the Intelligence Reform and Terrorism Prevention Act bespeaks
a resolution to do so during the 109th Congress.8 The provisions of sections 127
through 131 of H.R. 3199 have passed the House separately as H.R. 1544, 151
Cong.Rec. H3236-237 (daily ed. May 12, 2005).9
Section 127 of H.R. 3199 repeals subsection 1014(c) of the USA PATRIOT
Act. Other than H.R. 1544’s inclusion of a statement of findings, this is the only
apparent difference between H.R. 1544 and the treatment of the same provisions in
H.R. 3199. Instead of repealing all of subsection 1014(c), H.R. 1544 repeals only
paragraph 1014(c)(3), leaving in place the authorization of appropriations, sec.
Section 128 of H.R. 3199 creates a new Title XVIII in the Homeland Security
Act relating to funding for first responders. It identifies the programs that are
covered by the Title — the State Homeland Security Grant Program, the Urban Area
Security Initiative, and the Law Enforcement Terrorism Prevention Program — and
those that are not — federal grant programs administered by departments or agencies
other than the Department of Homeland Security, fire grant programs under the
Federal Fire Prevention and Control Act, and certain emergency management
planning and assistance account grants, proposed sec. 1802.
States that submit a three-year homeland security plan, certain regional
applicants (regions covering the jurisdiction of two or more governmental entities
and either home to more than 1.65 million people or consisting of 20,000 or more
square miles) and certain tribes are eligible grant applicants, proposed secs. 1801,
1803. Grant applications are to be evaluated and given priority based on the extent
to which they contribute to the prevention and recovery from the consequences of
acts of terrorism for the population and the critical infrastructure of the United States,
proposed sec. 1804. Each state with an approved three-year plan is assured of no less
7 See CRS Report RL32634, First Responder Grant Formulas: A Comparison of Formula
Provisions in S. 2845 and H.R. 10, 108th Congress.
8 “It is the sense of Congress that Congress must pass legislation in the first session of the
109th Congress to reform the system for distributing grants to enhance State and local
government prevention of, preparedness for, and response to acts of terrorism,” 118 Stat.
9 See also H.Rept. 109-65 (2005).
10 Subsection 1014(c) as amended provides: (c) Authorization of appropriations. (1) In
general. There is authorized to be appropriated to carry out this section such sums as
necessary for each of fiscal years 2002 through 2007. (2) Of the amount made available to
carry out this section in any fiscal year not more than 3 percent may be used by the Attorney
General for salaries and administrative expenses. (3) Each State shall be allocated in each
fiscal year under this section not less than 0.75 percent of the total amount appropriated in
the fiscal year for grants pursuant to this section, except that the Untied States Virgin
Islands, American Samoa, Guam, and the Northern Mariana Islands each shall be allocated
not less than 0.25 percent,” 42 U.S.C. 3714(c).
id. An advisory Task Force on Terrorism Preparedness for First Responders is to be
assembled to study and make periodic recommendations to the Secretary of
Homeland Security on the essential capacities for terrorism preparedness, proposed
sec. 1805. Grants may be used in a variety of ways consistent with the grant
application but may not be used to purchase land, construct buildings, supplant state
or local funds or to cover state or local government cost sharing obligations,
proposed sec. 1806. The Department of Homeland Security is to support the
development, promulgation, and currency of voluntary first responder equipment and
training standards, proposed. sec. 1807.
Section 129 of H.R. 3199 instructs the Secretary of Homeland Security to
establish an Office of the Comptroller within the Office of Domestic Preparedness
to oversee the grant and financial management process.
Section 130 of H.R. 3199 calls for an Office of Government Accountability
report on federal first responder training programs.
Section 131 grants immunity from civil liability to the donors (other than
manufacturers) of fire equipment to volunteer fire organizations.
Federal Data Mining Report. Section 132 directs the Attorney General to
prepare a report to Congress on data mining activities of federal agencies and
departments including the legal authority for such activities and their privacy and
civil liberties implications.
Victims Access Forfeiture Funds. 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 133 expresses the sense of Congress that under section 981 victims of
terrorists should have access to the assets forfeited.
Terrorist Death Penalty Enhancement. Title II of the H.R. 3199 enhances
the consequence of conviction of various terrorists crimes that result in death.
New Capital Offenses. Some federal crimes of violence are punishable by
death if death results from the commission of the offense, e.g., 18 U.S.C. 34
(destruction of aircraft, motor vehicles or their facilities); some are punishable by
imprisonment for any term of years or for life when a death results from commission
of the offense, but the death penalty is not a sentencing option, e.g., 18 U.S.C. 2339A
(material support of a terrorist crime); still others are punishable by imprisonment but
impose no greater penalty if death results from their commission, e.g., 18 U.S.C.
Section 211 creates a new federal offense which outlaws committing a terrorist
offense resulting in death and which is punishable by death or imprisonment for any
term of years or for life, proposed 18 U.S.C. 2339E. The underlying “terrorist
offenses” are the commission, attempt to commit, or conspiracy to commit (1) any
federal crime of terrorism committed for terrorist purposes as defined by 18 U.S.C.
2332b(g)(except 18 U.S.C. 1363 relating to the destruction of property in federal
enclaves); or (2) any violation of 18 U.S.C. ch. 113B (terrorism), 175 (biological
weapons), 175b (biological materials), 229 (chemical weapons) 831 (nuclear
material), or 42 U.S.C. 2284 (sabotage of nuclear facilities).
Several of these underlying crimes are already capital offenses; those which are
not are:
18 U.S.C. 832 (participation in foreign nuclear weapons or weapons of mass
destruction programs)(sec. 112 of H.R. 3199 adds this section to 2332b(g)(5)(B))
18 U.S.C. 842(m), (n) (transportation of plastic explosives without detection
agents)
18 U.S.C. 2339D (receipt of military training from a foreign terrorist
organization) (sec. 112 of H.R. 3199 adds this section to 2332b(g)(5)(B))
The new section 18 U.S.C. 2339E only makes a life taking federal crime of
terrorism a capital offense if it is a federal crime of terrorism as defined in 18 U.S.C.
2332b(g)(5) that is, if it is one of the crimes listed in 18 U.S.C. 2332b(g)(5)(B) and
if it satisfies the requirements of 18 U.S.C. 2332b(g)(5)(A)(“is calculated to influence
or affect the conduct of government by intimidation or coercion or to retaliate against
government conduct”). Section 221 of H.R. 3199 takes four of these life taking
federal crimes of terrorism (that under existing law are punishable only by
imprisonment) and makes them punishable by death or imprisonment regardless of
whether they satisfy 18 U.S.C. 2332b(g)(5)(A): 18 U.S.C. 172c (small pox virus),
832 (participation in a foreign nuclear weapons or weapons of mass destruction
program), 2332g (anti-aircraft missiles), and 2332h (radiological dispersal devices).
The same is true, if somewhat less obvious, of a fifth life taking statute that section
221 makes punishable by death or imprisonment. Section 92 of the Atomic Energy
Act, 42 U.S.C. 2122, prohibits production, transfer, or possession of atomic weapons.
Section 222 of the Atomic Energy Act, 42 U.S.C. 2272, establishes the penalties for
anyone who willfully violates section 92 (42 U.S.C. 2122). Section 92 is a federal
crime of terrorism and so like the other four is punishable by death under section 211
of H.R. 3199 (new 18 U.S.C. 2339E) when 18 U.S.C. 2332b(g)(5)(A) is satisfied.
Here too, section 221 makes life-taking violations of section 222 (42 U.S.C. 2272)
punishable by death or imprisonment regardless of whether 2332b(g)(5)(A) is
satisfied or not.
Denial of Benefits for Potential Capital Offenses. When federal courts
sentence a defendant for a violation of the Controlled Substances Act, they may
include a sentence for a term of ineligibility for certain federal benefits, 21 U.S.C.
862; in the case of certain other federal benefits, ineligibility is a consequence of a
Controlled Substance conviction, 21 U.S.C. 862a.
Section 212 of H.R. 3199 authorizes federal courts sentencing a defendant for
a terrorist offense, as defined in 18 U.S.C. 2339E, to a term of federal benefit
ineligibility11 for any term of years or for life, proposed 18 U.S.C. 2339F. The12
terrorist offenses in section 2339E are the federal crimes of terrorism, the crimes
11 Federal benefits for purposes of proposed 18 U.S.C. 2339F include the food stamp
program, the temporary assistance to needy families program, and “any grant, contract,
loan, professional license, or commercial license provided by an agency of the United States
or by appropriated funds of the United States;” but “does not include any retirement,
welfare, Social Security, health, disability, veterans benefit, public housing, or other similar
benefit, or any other benefit for which payments or services are required for eligibility,” 21
U.S.C. 862, 862a.
12 The federal crimes of terrorism, adjusted to reflect other changes elsewhere in H.R. 3199
are: 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), 229 (chemical weapons), subsection (a), (b), (c),
or (d) of section 351 (congressional, cabinet, and Supreme Court assassination and
kidnaping), 831 (nuclear materials), 832 (participation in nuclear and weapons of mass
destruction threats to the United States), 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 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 (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
in the 18 U.S.C. ch. 113B that are not federal crimes of terrorism, i.e., violations of
18 U.S.C. 2332d (financial transactions with terrorism sponsoring countries), and
attempts or conspiracies to commit them.
Pre-1994 Capital Air Piracy Cases. In the late 1960’s and early 1970’s the
Supreme Court held imposition of capital punishment under the procedures then13
employed by the federal government and most of the states unconstitutional. In
in certain air piracy cases. 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.15 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
Section 213 adds an explicit provision to the end of the 1994 legislation.17 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 and18
aggravating factors in place prior to the 1994 revival. Section 213 also includes a
definition of “especially heinous, cruel, or depraved” used as an aggravating factor
in section 46503, to avoid the vagueness problems that might otherwise attend the
use of such an aggravating factor.19
(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), 2339D(receipt of military
training from foreign terrorist organization), 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).
13 Furman v. Georgia, 408 U.S. 238 (1972).
14 P.L. 93-366, 88 Stat. 409 (1974), 49 U.S.C. 1473 (1976 ed.)
15 P.L. 103-322, 108 Stat. 1796, 1970 (1994), 18 U.S.C. 3591-3598.
16 United States v. Safarini., 257 F.Supp.2d 191, 202-3 (D.D.C. 2003).
17 Proposed subsection 60003(c), amending P.L. 103-322, 108 Stat.1970 (1994).
18 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
(1988 ed.).
19 See e.g., Maynard v. Cartwright, 486 U.S. 356, 359-61 (1988).
Death-Resulting Capital Terrorist Offenses. Existing federal death
penalty provisions recognize the death penalty as a sentencing option in three
categories of cases: (1) certain controlled substance offense, 18 U.S.C. 3591(b); (2)
certain homicides, 18 U.S.C. 3591(a)(2); and (3) treason and certain espionage
offenses, 18 U.S.C. 3591(a)(1). The homicides covered by 18 U.S.C. 3591(a)(2)
include those that involve, “intentionally and specifically engaged in an act of
violence, knowing that the act created a grave risk of death to a person, other than
one of the participants in the offense, such that participation in the act constituted a
reckless disregard for human life and the victim died as a direct result of the act,” 18
U.S.C. 3591(a)(2)(D).
The death penalty may only be imposed upon the finding of at least one
aggravating factor, 18 U.S.C. 3593(d); and only if the aggravating factors found
outweigh any mitigating factors, 18 U.S.C. 3593(e). Each category comes with its
own set of aggravating circumstances, 18 U.S.C. 3592(b)(espionage and treason),
3592(c)(homicide), and 3592(d)(controlled substance offenses). Numbered among
the homicide aggravating factors is the fact that “the defendant committed the offense
after substantial planning and premeditation to . . . commit an act of terrorism,” 1820
U.S.C. 3592(c)(9). Another is the fact the homicide was committed during the
course of any of more than a dozen federal crimes of terrorism, 18 U.S.C. 3592(c)(1).
The short collection of treason/espionage aggravating factors consists of four: (1) a
prior espionage or treason conviction; (2) a grave risk to national security; (3) “in the
commission of the offense the defendant knowingly created a grave risk of death to
another person;” and (4) a catch-all “any other aggravating factor,” 18 U.S.C.21
Section 214 adds violations of the new 18 U.S.C. 2339E (“whoever, in the
course of committing a terrorist offense, engages in conduct that results in the death
of a person”) to the treason/espionage category, proposed 18 U.S.C. 3591(a)(1), and
creates an additional aggravating factor applicable to the category’s offenses, i.e.,
“the defendant committed the offense after substantial planning,” proposed 18 U.S.C.
Life Time Supervised Release Regardless of Risks. A federal court
may impose 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).
Section 215 of H.R. 3199 amends section 3583 to eliminate the requirement that
the defendant be convicted of a crime involving a foreseeable risk of injury. As
proposed, conviction of any federal crime of terrorism is sufficient, proposed 18
U.S.C. 3583(j).
20 Chapter 228 does not define “act of terrorism,” however, it is defined elsewhere in title
18, 18 U.S.C. 3077(1) (for purposes of the Attorney General’s authority to offer and pay
rewards it means “an act of domestic or international terrorism as defined in section 2331”).
21 The homicide and controlled substance collection of aggravating factors have identical
catch-alls, 18 U.S.C. 3592(c), (d).
Modification of Various Death Penalty Procedures. Section 231
modifies federal death penalty procedures in several ways, some limited to terrorists,
others of more general application.
Congress created a separate procedure for imposition of the death penalty for
murders associated with various drug offenses in 1988, 21 U.S.C. 848. In 1994, it
established procedures for federal capital cases generally which differ slightly from
the procedure established for the drug cases. Section 231 eliminates the duplicate
drug procedures, 21 U.S.C. 848(g)-(p), (q)(1-3), (r).
Section 231 changes the wording of one of the mitigating factors in the federal
capital punishment statute from, “Another defendant or defendants, equally culpable
in the crime, will not be punished by death,” 18 U.S.C. 3592(a)(4), to “The
Government could have, but has not, sought the death penalty against another
defendant or defendants, equally culpable in the crime,” proposed 18 U.S.C. 3592
(a)(4). The change appears to remove from the factor, cases in which co-defendants
are tried separately, the first is not sentenced to death, and the second claim
mitigation. It is not clear, however, whether this and other mitigating circumstances
eliminated by the change in language might be claimed under the catch-all factor of
18 U.S.C. 3592(a)(8)(“. . . any other circumstance of the offense that mitigate against
imposition of the death sentence”).
Section 231 makes three aggravating factor changes. It amends the “hired the
killer” factor to include situations the defendant merely created the expectation that
the killer would be paid, proposed 18 U.S.C. 3592(c)(7). It adds all other federal
crimes of terrorism to the homicide aggravating factor that already mentions
homicide committed during the course of over a dozen crimes of terrorism as an
aggravating circumstance, proposed 18 U.S.C. 3592(c)(1). Finally, it creates a new
obstruction of justice aggravating factor for those homicides committed “to obstruct
investigation or prosecution of any offense,” proposed 18 U.S.C. 3592(c)(17).
“A finding with respect to any aggravating factor must be unanimous. If no
aggravating factor . . . is found to exist, the court shall impose a sentence other than
death. . .” 18 U.S.C. 3593(d). Based on consideration of the aggravating and
mitigation factors in a case, the jury is to unanimously recommend the sentence to
be imposed, 18 U.S.C. 3593(e). Section 231 permits impaneling a new jury if the
jury is unable to reach a unanimous penalty verdict under subsection 3593(e),
proposed 18 U.S.C. 3593(b)(2)(E), 3594.
Present law permits the parties, with the approval of the court, to stipulate a
sentencing jury of less than 12 in capital cases, 18 U.S.C. 3593(b). Section 231
amends subsection 3593(b) to permit sentencing juries of less than 12 when “the
court finds good cause” as well, proposed 18 U.S.C. 3593(b).
As a general rule in federal felony cases, the government is allowed 6
peremptory challenges to prospective regular jurors (the defendants or defendants
jointly are entitled to 10), and regardless of the seriousness of the crime to be tried,
each side is allowed 3 additional peremptory challenges to alternate jurors when
either 5 or 6 alternate jurors are selected, F.R.Crim.P. 24(b)(2), (c)(4)(C). Section
permits each side 4 addition peremptory alternate juror challenges when either 7, 8
or 9 alternates are impaneled, proposed F.R.Crim.P. 25(b)(2), (c)(4)(C) [proposed
(c)(4)(C) probably should be proposed (c)(4)(D)].
Seaport Terrorism
Title III of H.R. 3199, Reducing Crime and Terrorism at America’s Seaports
Act of 2005, is identical in many respects to S. 378, a bill of the same popular name,
reported by the Senate Judiciary Committee earlier this year, 151 Cong. Rec. 4108
(daily ed. April 21, 2005).
Seaport Entry by False Pretenses. 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, id.
Section 302 expands 18 U.S.C. 1036 to cover seaports and increases the penalty
for violations committed with intent to commit a felony from imprisonment for not
more than five years to imprisonment for not more than 10 years, proposed 18 U.S.C.
Obstructing Maritime Inspections. Various federal laws prohibit the
failure to heave to or otherwise obstruct specific maritime inspections under various
ci rcum st ances.23
Section 303 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, proposed 18 U.S.C. 2237. The crime is punishable by imprisonment for not
more than five years.
Terrorist Attacks on Passenger Vessels. Federal law condemns terrorist
attacks on mass transit including a “ferry” and its facilities, 18 U.S.C. 1993.
Section 304 adds “passenger vessels” to the forms of mass transit protected
under section 1993. At this point in the bill, 18 U.S.C.1993 has already been
22 “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,” proposed 18 U.S.C.
23 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).
repealed in favor of new 18 U.S.C. 1992, sec. 115 of H.R. 3199. Corresponding
changes may well ultimately be made in the newly constructed 18 U.S.C. 1992.
Interference with Maritime Commerce. Existing 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,
id.
Section 305 establishes a new crime, 18 U.S.C. 2282A under which it is 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.
Section 305 creates a second new crime, 18 U.S.C. 2282B, under which it is a
federal crime punishable by imprisonment for not more than 20 years to tamper in
manner likely to endanger navigation with any navigational aid maintained by the
Coast Guard or St. Lawrence Seaway Development Corporation.
Transporting Dangerous Materials or Terrorists.
Transporting Dangerous Materials. It is a federal crime to possess
biological agents, chemical weapons, atomic weapons, and nuclear material, each
punishable by imprisonment for any term of year or for life.24 And although the
penalties vary, it is likewise a federal crime to commit any federal crime of
terrorism.25 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 and coconspirators incur
comparable liability in any event.26
Section 306 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 high 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, id.
24 18 U.S.C. 175, 229, 831; 42 U.S.C. 2272.
25 Each crime designated in 18 U.S.C. 2332b(g)(5)(B) carries its own penalty.
26 18 U.S.C. 2; United States v. Pinkerton, 328 U.S. 640, 647-48 (1946).
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 in27
the penalties available for committing many of them.
Section 306 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 305, neither of the
section 306 offenses have an explicit exception for official activities. Of course,
even though facially the new section 2284 forbids transportation terrorists for
purposes of extradition or prisoner transfer, it would never likely to be read or
applied to prevent or punish such activity.
Interference With Maritime Navigation. Chapter 111 of title 18 outlaws
causing damage to a vessel or to maritime facilities;28 other statutes supply parallel
coverage under some circumstances;29 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 307 establishes a new chapter 111A in title 18 relating to the destruction
of, or interference with, vessels or maritime facilities which among others things:
makes violence — committed, attempted or conspired — against vessels or their
facilities punishable by imprisonment for not more than 30 years (by imprisonment
for any term of years or for life if the offense involves a vessel carrying high level
radioactive waste or spent nuclear fuel; if death results, by imprisonment for any term
of years or by death). It makes related hoaxes punishable by a civil fine of not more
than $5,000 or imprisonment for not more than five years, proposed 18 U.S.C. 2292.
It establishes U.S. jurisdiction over these offenses when they are committed overseas
if the offender, victim, or vessel is an American, 18 U.S.C. 2290.
27 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, less a death results; and same penalties apply to computer fraud and abuse 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.
28 E.g., 18 U.S.C. 2280 (violence against maritime navigation), 2275 (burning or bombing
vessels).
29 E.g., 18 U.S.C. 1363 (damage or destruction of property in U.S. special maritime and
territorial jurisdiction), 81 (arson in the U.S. special maritime and territorial jurisdiction),
Theft From 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 308 increases the penalty from not more than 10 years imprisonment to
not more than 15 years imprisonment (and from not more than one year to not more
than five years if the value of the stolen property is $1000 or less). It 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, proposed 18
U.S.C. 659.
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
U.S.C. 2313.
Section 308 expands the coverage of federal law to cover the interstate or
foreign transportation of a stolen vessel and receipt of stolen vessel that has been
transported in interstate or overseas, proposed 18 U.S.C. 2311. It increases the
penalties for violations of sections 2312 and 2313 from imprisonment for not more
than 10 years to not more than 15 years. 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.
Penalties for Noncompliance With Manifest Requirements. Violations
of vessel or aircraft arrival, reporting entry and clearance requirements, imposed for
customs purposes, are punishable by imprisonment for not more than one year and
a fine of not more than $2,000 (not more than five years imprisonment and fine of not
more than $10,000 if there is contraband aboard), 19 U.S.C. 1436. Offenders may
also be subject to a civil penalty of not more than $5,000 (not more than $10,000 for
a subsequent offense), id. The fines for false or inadequate shipping manifests are
not more than $1,000, 19 U.S.C. 1584.
Section 309 makes the sanctions more compatible; it increases the fine under
section 1584 to not more than $10,000; the civil penalty under section 1436 to not
more than $10,000 (not more $25,000 for subsequent offenses); and the criminal fine
under section 1436 to not more than $10,000).
Stowaways. 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 310 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 death or imprisonment for any term of years
or for life, proposed 18 U.S.C. 2199.
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.30 Those who aid and abet or conspire for the commission of such crimes are31
subject to sanctions.
Section 311 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.
Smuggling Goods Into the United States. As a general rule, smuggling
is punishable by imprisonment for not more than five years, 18 U.S.C. 545.
Section 312 increases the penalty for smuggling to imprisonment for not more
than 20 years, proposed 18 U.S.C. 545.
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. The same penalty applies
to smuggling goods into the United States (although the symmetry would disappear
when section 312 makes smuggling into the U.S. a 20 year felony). Other penalties
apply for smuggling or unlawfully exporting specific goods or materials out of the
U.S. or into other countries.32
Section 313 creates a new federal crime which outlaws smuggling goods out of
the United States; offenders face imprisonment for not more than 10 years, proposed
Federal law proscribes laundering the proceeds of various federal crimes
(predicate offenses), 18 U.S.C. 1956, 1957. The proceeds involved in financial
transactions in violation of the money laundering statutes are generally subject to
confiscation, 18 U.S.C. 981(a)(1)(A). Section 313 adds the new overseas smuggling
crime, 18 U.S.C. 554, to the money laundering predicate offense list, proposed 18
U.S.C. 1956(c)(7)(D).
30 E.g., 18 U.S.C. 32 (destruction of aircraft, 20 years), 81 (arson, 25 years), 2332a
(weapons of mass destruction, life imprisonment).
31 18 U.S.C. 2; United States v. Pinkerton, 340 U.S. 640 (1946).
32 E.g., 31 U.S.C. 5332 (bulk cash), 21 U.S.C. 953 (controlled substances), 18 U.S.C. 553
(stolen motor vehicles).
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 313 calls
for the confiscation of goods smuggled out of the U.S. and of any property used to
facilitate the smuggling, proposed 19 U.S.C. 1595a(d).
It is a federal crime to remove property from the custody of the Customs
Service. Offenders are punishable by imprisonment for not more than two years, 18
U.S.C. 549. Section 313 increases the penalty to imprisonment for not more than 10
years, proposed 18 U.S.C. 549.
Terrorism Financing
Emergency Economic Powers Act Penalties. Violations of the
Emergency Economic Powers Act which outlaws violations of presidential orders
issued under the act including but not limited to those that bar financial dealings with
designated terrorists and terrorist groups are punishable by a civil penalty of not more
than $10,000 and by imprisonment for not more than 10 years, 50 U.S.C. 1705.
Section 402 increases the maximum term of imprisonment to 20 years and
changes the maximum civil penalty to $50,000, proposed 50 U.S.C. 1705.
Terrorist Money Laundering. 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 (predicate offenses), 18 U.S.C. 1661-1965. In addition, the crimes designated
RICO predicate offenses are as such money laundering predicate offenses, 18 U.S.C.
1956(c)(7)(A). 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.
Section 403 adds 18 U.S.C. 1960 (money transmitters) and 8 U.S.C. 1324a
(employing aliens) to the RICO predicate offense list and consequently in the case
of 8 U.S.C. 1324a to the money laundering predicate offense list (18 U.S.C. 1960 is
already there). It also makes 18 U.S.C. 2339C (terrorist financing) and 42 U.S.C.
408 (misuse of a social security number) money laundering predicate offenses. In
doing so it duplicates the presence of 18 U.S.C. 2339C on the money laundering list,
since as a federal criminal of terrorism it is a RICO predicate offense and thus is
already a money laundering predicate offense, 18 U.S.C. 2332b(g)(5)(B), 1961(1),
The proceeds from federal forfeitures are generally available proportionately to
the arresting and prosecuting agencies, see e.g., 18 U.S.C. 981(e).
Section 403 amends the money laundering statutes to provide a clear statement
of the relative investigating jurisdiction of various federal agencies, 18 U.S.C.
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. 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 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.33 The assumption must 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.34 Subparagraph 981(a)(1)(G) calls for the
confiscation the property of individuals and entities that engage in acts of terrorism
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 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; for with respect to property located outside of the United States, it
requires an act in furtherance of the terrorism to “have occurred within the
33 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”).
34 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).
jurisdiction of the United States,” proposed 18 U.S.C. 981(a)(1)(G) (iv). 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.
Application of the Money Laundering Statute to Dependent
Transactions. Money laundering constitutes engaging in financial transactions
with the proceeds of predicate offenses either generally, 18 U.S.C. 1957, or for
laundering or other statutorily condemned purposes, 18 U.S.C. 1956. The proceeds
involved in such transactions are subject to confiscation, 18 U.S.C. 981(a)(1)(A).
Section 405 amends 18 U.S.C. 1956 so as to outlaw each of any “dependent
transactions” related to a money laundering transaction forbidden by the section,
proposed 18 U.S.C. 1956(j)(1). “Dependent transactions” are those that complement,
complete, or would not have occurred but for the otherwise proscribed laundering
financial transaction, proposed 18 U.S.C. 1956(j)(2).
Sundry Technical and Substantive Amendments.
Bulk Cash Smuggling. It is a federal crime to transport or transfer more than
$10,000 in cash out of the United States concealed in any conveyance, merchandise,
container, luggage or on one’s person, 31 U.S.C. 5332. Subsection 406(a) amends
section 5332 to outlaw transporting or transfer of more than $10,000 in cash
concealed in “any mail,” proposed 31 U.S.C. 5332.
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. 981(j). In money
laundering cases, it also permits restraining orders and the appointment of receivers
under somewhat different procedures with respect to the property of foreign financial
institutions with interbank accounts in this country, which is subject to a collection
or forfeiture proceeding, 18 U.S.C. 1956(b). Section 406(a) removes the requirement
that the property be that of a foreign financial institution, proposed 18 U.S.C.
Codification of Section 316 of the USA PATRIOT Act. Section 316 of
the USA PATRIOT Act allows property owners to challenge the government’s
assertion of terrorism related forfeitures, 115 Stat. 309 (2001). Section 406 of H.R.
Conspiracy Penalties. 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, id. 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, id. In
both cases as in the case of any federal felony, conspiracy to commit such offenses
in punishable under the general federal conspiracy statute by imprisonment for not
more than five years, 18 U.S.C. 371.
Subsection 406(c) amends both 18 U.S.C. 33 and 18 U.S.C. 1366 so that
conspiracy to violate their provisions carries the same penalty as the underlying
offense, proposed 18 U.S.C. 33(a), 1366(a).
Technical Amendments. Section 407 corrects a purely technical,
typographical omission in 2332b(g)(5)(B). Section 408 completes a technically
incomplete cross reference in 31 U.S.C. 5318(n)(4)(A). Section 409 corrects purely
technical, typographical errors in section 6604 of the Intelligence Reform and
Terrorism Prevention Act of 2004.
Laundering the Proceeds 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 H.R. 3199 makes 18 U.S.C. 2339 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 410 confirms the
status of 18 U.S.C. 2339D as a money laundering predicate offense, 18 U.S.C.