USA PATRIOT Improvement and Reauthorization Act of 2005 (H.R. 3199): A Legal Analysis of the Conference Bill
CRS Report for Congress
USA PATRIOT Improvement and Reauthorization
Act of 2005 (H.R. 3199): Section-by-Section
Analysis of the Conference Bill
Updated February 3, 2006
Brian T. Yeh
American Law Division
American Law Division
Congressional Research Service ˜ The Library of Congress
USA PATRIOT Improvement and Reauthorization Act
of 2005 (H.R. 3199): Section-by-Section Analysis
of the Conference Bill
The USA PATRIOT Improvement and Reauthorization Act of 2005, H.R. 3199,
as reported by the Conference Committee, H.Rept. 109-333 (2005), consists of seven
Among other things, Title I makes permanent 14 USA PATRIOT Act sections
scheduled to expire on March 10, 2006, as well as the terrorism support amendments
scheduled to expire on December 31, 2006. It amends and postpones until December
31, 2009, the expiration of the act’s sections 206 and 215 relating to Foreign
Intelligence Surveillance Act (FISA) orders for roving wiretaps and access to
business records. It extends the temporary FISA “lone wolf” provision to the same
date. It clarifies and amends the “National Security Letter” statutes in a manner
designed to ensure their constitutional viability and for other purposes. It authorizes
court orders approving wiretapping in the course of investigations of a number of
As for other proposals reported out of conference, Title II revives the death
penalty as a sentencing option for air piracy murders committed between 1974 and
1994, permits certain terrorists to be sentenced to a lifetime of supervision following
their release from prison, and eliminates the redundant capital punishment procedures
found in the Controlled Substances Act. It does not include the other capital
punishment adjustments found in the bill which the House sent to conference. Title
III carries forward the anti-terrorism, anti-crime proposals found in a separate free-
standing seaport protection bill. Title IV reflects in modified form House and Senate
suggestions for amending federal confiscation laws and other money laundering
Titles V and VI of the Conference bill contain provisions added in conference
and not previously included in either House or Senate version of H.R. 3199, some of
which — like the habeas amendments in the case of state death row inmates, the
adjustments in the role of the Office of Intelligence Policy and Review in the FISA
process, or the new Secret Service offenses — may prove controversial. Title VII,
likewise inserted by the conferees, follows the course of separate bills considered in
the House and Senate that seek to curtail illicit methamphetamine production and its
consequences through grant programs, enhanced criminal penalties, and preventing
the diversion of over-the-counter cold remedies and other sources of precursor
chemicals for use in illegal manufacturing.
In troduction ..................................................1
Section 1. Short Title and Table of Contents....................1
Title I: USA PATRIOT Improvement and Reauthorization Act .........1
Section 101. References to, and Modification of Short Title for,
USA PATRIOT Act....................................1
Section 102. USA PATRIOT Act Sunset Provisions..............2
Section 103. Extension of Sunset Relating to Individual
Terrorists as Agents of Foreign Powers.....................2
Section 104. Section 2332b and the Material Support Sections
of Title 18, U.S. Code..................................2
Section 105. Duration of FISA Surveillance of Non-U.S.
Persons Under Section 207 of the USA PATRIOT Act........3
Section 106. Access to Certain Business Records Under Section
215 of the USA PATRIOT Act...........................3
Section 106A. Audit on Access to Certain Business Records for
Foreign Intelligence Purposes............................7
Section 107. Enhanced Oversight of Good-Faith Emergency
Disclosures Under Section 212 of the USA PATRIOT Act.....7
Section 108. Multipoint Electronic Surveillance Under Section
206 of the USA PATRIOT Act...........................8
Section 109. Enhanced Congressional Oversight................11
Section 110. Attacks Against Railroad Carriers and Mass
Section 111. Forfeiture.....................................12
Section 112. Section 2332b(g)(5)(B) Amendments Relating
to the Definition of Federal Crime of Terrorism.............12
Section 113. Amendments to Section 2516(1) of Title 18,
United States Code....................................13
Section 114. Delayed Notice Search Warrants..................13
Section 115. Judicial Review of National Security Letters.........15
Section 116. Confidentiality of National Security Letters..........18
Section 117. Violations of Nondisclosure Provisions of National
Section 118. Reports on National Security Letters...............18
Section 119. Audit of Use of National Security Letters............19
Section 120. Forfeiture for Acts of Terrorism...................19
Section 121. Cigarette Smuggling............................20
Section 122. Narco-Terrorism...............................20
Section 123. Interfering With the Operation of An Aircraft........22
Section 124. Investigation of Political Activities................22
Section 125. Immunity for Fire Equipment Donors...............22
Section 126. Federal Data Mining Report......................22
Section 127. Victims Access Forfeiture Funds..................23
Section 128. Information Related to FISA Pen Register...........23
Title I House Proposals Dropped in Conference.................25
Title II: Terrorist Death Penalty Enhancement......................26
Section 201. Short Title....................................26
Section 211. Pre-1994 Capital Air Piracy Cases.................26
Section 221. Capital Procedures in Drug Cases..................28
Section 222. Appointment of Counsel in Capital Cases...........29
Title II House Proposals Dropped in Conference................29
Title III: Seaport Terrorism.....................................30
Section 301. Short Title....................................30
Section 302. Seaport Entry by False Pretenses..................30
Section 303. Obstructing Maritime Inspections..................32
Section 304. Interference with Maritime Commerce..............32
Section 305. Transporting Dangerous Materials or Terrorists.......33
Section 306. Interference With Maritime Navigation.............34
Section 307. Theft From Maritime Commerce..................37
Section 308. Stowaways...................................38
Section 309. Port Security Bribery............................38
Section 310. Smuggling Goods Into the United States............38
Section 311. Smuggling Goods From the United States...........38
Title III House Proposals Dropped in Conference................39
Title IV: Terrorism Financing...................................39
Section 401. Short Title....................................40
Section 402. International Emergency Economic Powers
Section 403. Terrorist Money Laundering......................40
Section 404. Forfeiture for Foreign Crimes.....................42
Section 405. Application of the Money Laundering Statute to
Sections 406-408. Technical Amendments.....................44
Section 406. Civil Forfeiture Pre-trial Freezes and
Section 406. Conspiracy Penalties............................45
Section 409. Laundering the Proceeds Foreign Terrorist Training...45
Section 410. Uniform Procedures for Criminal Forfeitures.........46
Title V: Miscellanea...........................................47
Section 501. Justice Department Residency Requirements.........48
Section 502. Appointment of U.S. Attorneys...................48
Section 503. Presidential Succession: Homeland
Section 504. Confirmation of the Director of BATFE.............48
Section 505. Qualifications for U.S. Marshals..................48
Section 506. New Assistant Attorney General for
Section 507. Habeas Corpus in State Capital Cases..............52
Title VI: Secret Service........................................54
Section 601. Short Title....................................54
Protection of the President and Certain Other Federal Officials.....55
Special Events of National Significance.......................56
Title VII: Methamphetamine....................................61
Subtitle VII A: Precursors..................................61
Subtitle VII B: International Regulation of Precursors............65
Subtitle VII C: Enhanced Penalties...........................66
Subtitle VII D: Enhanced Cleanup Regulation..................67
Subtitle VII E: Drug Courts and Grant Programs................68
USA PATRIOT Improvement and
Reauthorization Act of 2005 (H.R. 3199):
Section-by-Section Analysis of the
This report provides a section-by-section summary and analysis of the seven
titles of the Conference bill accompanying the USA PATRIOT Improvement and
Reauthorization Act of 2005 (H.R. 3199).1
Section 1. Short Title and Table of Contents.
The short title of the act may be cited as the “USA PATRIOT Improvement and
Reauthorization Act of 2005.”
Title I: USA PATRIOT Improvement and Reauthorization Act
Title I is in many ways the heart of the Conference bill. It makes permanent
most of the USA PATRIOT Act sections initially scheduled to expire on December
31, 2005 and extended until March 10, 2006. To several, like section 215, it adds
safeguards. It addresses issues raised by USA PATRIOT Act sections other than
those for which the sun is setting. It more clearly states the “National Security
Letter” provisions of law, in ways perhaps necessary to make them constitutionally
viable. Elsewhere it looks at the issues faced in the USA PATRIOT Act four years
after the fact. In some instances it adds to the tools available; in others it adds further
checks against abuse.
Section 101. References to, and Modification of Short Title for, USA
This section explains that references contained in this act are deemed to refer
to P.L. 107-56, the “Uniting and Strengthening America by Providing Appropriate
1 Related CRS Reports by the authors from which portions of this report have been drawn
include CRS Report RL33210, USA PATRIOT Improvement and Reauthorization Act of
and H.R. 3199 (Senate Passed); CRS Report RS22348, USA PATRIOT Improvement and
Reauthorization Act of 2005(H.R. 3199): A Brief Look, both by Brian T. Yeh and Charles
Doyle; and CRS Report RL33027, USA PATRIOT Act: Background and Comparison of
House- and Senate-Approved Reauthorization and Related Legislative Action, by Charles
Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of
Section 102. USA PATRIOT Act Sunset Provisions.
This section repeals section 224 of the USA PATRIOT Act that had mandated2
certain sections of the act to expire on December 31, 2005. The section adopts a
sunset of December 31, 2009, for section 206 (regarding Foreign Intelligence
Surveillance Act (FISA) court orders for multipoint, or “roving,” wiretaps) and
section 215 (access to business records requested under FISA).
Section 103. Extension of Sunset Relating to Individual Terrorists
as Agents of Foreign Powers.
This section postpones the expiration of section 6001(b) of the Intelligence
Reform and Terrorism Prevention Act (IRTPA) from December 31, 2005 until
December 31, 2009.3 Section 6001(b) defines an “agent of a foreign power” to
include any person, other than a United States person, who “engages in international
terrorism or activities in preparation therefore.”4 Thus, so-called “lone wolf”
terrorists may be subjected to foreign intelligence surveillance despite not being an
agent of a foreign power or an international terrorist organization.5
Section 104. Section 2332b and the Material Support Sections of
Title 18, U.S. Code.
Section 6603 of the IRTPA is made permanent by repealing a sunset provision
that would have caused the section to be ineffective on December 31, 2006. Section
6603 of IRTPA amends federal law regarding material support of terrorists and
terrorist organizations, primarily in 18 U.S.C. 2339A6 and 2339B.7 Briefly,8 section
2 On December 22, 2005, Congress enacted P.L. 109-160 (S. 2167), which amended section
224(a) of the USA PATRIOT Act to extend the sunset to February 3, 2006. On February
3 H.R. 4659 also extended the original sunset of the lone wolf provision of the IRTPA to
March 10, 2006.
4 50 U.S.C. 1801(b)(1)(C).
5 For more information on the “lone wolf” amendment, see CRS Report RS22011,
Intelligence Reform and Terrorism Prevention Act of 2004: “Lone Wolf” Amendment to the
Foreign Intelligence Surveillance Act, by Elizabeth B. Bazan.
6 Section 2339A outlaws providing, attempting to provide, or conspiring to provide,
material support or resources for the commission of any of several designated federal crimes
that a terrorist might commit.
7 Section 2339B outlaws providing, attempting to provide, or conspiring to provide,
material support or resources to a designated foreign terrorist organization.
8 For more information regarding section 6603 of IRTPA, see CRS Report RL33035,
Material Support of Terrorists and Foreign Terrorist Organizations: Sunset Amendments,
by Charles Doyle.
“expert advice or assistance” as those terms are used in 18 U.S.C. 2339A and 2339B,
and of “personnel” as used in section 2339B; (2) adds a more explicit knowledge
requirement to section 2339B; (3) expands the extraterritorial jurisdiction reach of
section 2339B; (4) enlarges the list of federal crimes of terrorism, 18 U.S.C.
2332b(g)(5); (5) adds the enlarged list to the inventory of predicate offenses for 18
U.S.C. 2339A (material support for the commission of certain terrorist crimes) and
consequently for 18 U.S.C. 2339B (material support for designated terrorist
organizations); and (6) precludes prosecution for certain violations committed with
the approval of the Secretary of State and concurrence of the Attorney General.
Section 105. Duration of FISA Surveillance of Non-U.S. Persons
Under Section 207 of the USA PATRIOT Act.
This section extends the maximum duration of FISA surveillance and search
orders against any agent of a foreign power who is not a U.S. person (e.g., a lone
wolf terrorist), by amending section 105(e) of FISA.9 Initial orders authorizing such
searches may be for a period of up to 120 days, with renewal orders permitted to
extend the period for up to one year. In addition, this section extends the life time
for both initial and extension orders authorizing installation and use of FISA pen
registers, and trap and trace surveillance devices from a period of 90 days to one year,
in cases where the government has certified that the information likely to be obtained
is foreign intelligence information not concerning a U.S. person.
Section 106. Access to Certain Business Records Under Section
Section 215 amended the business record sections of FISA to authorize the
Director of the Federal Bureau of Investigations (FBI) or a designee of the Director,
to apply to the FISA court to issue orders granting the government access to any
tangible item (including books, records, papers, and other documents), no matter who
holds it, in foreign intelligence, international terrorism, and clandestine intelligence
cases. Section 215 authority appears to have been relatively little used. In April
as of March 31, 2005, only 35 orders have been issued under section 215 authority,
none of which involved library, book store, medical, or gun sale records.10 At the
same time, they argue against the creation of a safe haven in public services that
9 Codified at 50 U.S.C. 1805(e) and 50 U.S.C. 1824(d).
10 Oversight Hearing on the “Implementation of the USA PATRIOT Act: Foreign
Surveillance Intelligence Act (FISA)”: Hearings Before the Subcomm. on Crime, Terrorism,
and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 1st Sess. (2005)
(statement of Kenneth L. Wainstein, U.S. Attorney for the District of Columbia), at 8,
available on Jan. 13, 2006 at [http://judiciary.house.gov/media/pdfs/wainstein042805.pdf].
terrorists have been known to use.11 The Conference bill contains several provisions
to guard against abuses of section 215 authority.
Enhanced Oversight. Section 106(a)(2) of the Conference bill adds 50
U.S.C. 1861(a)(3), requiring that an application for a section 215 FISA order (“215
order”) for the production of certain sensitive categories of records, such as library,
bookstore, firearm sales, tax return, educational, and medical records, must be
personally approved by one of the following three high-level officials: the FBI
Director, the FBI Deputy Director, or the Executive Assistant Director for National
Security. This provision was included as an attempt to allay concerns over federal12
authorities abusing section 215 authority to obtain sensitive types of records.
In addition, the Attorney General must submit to Congress an annual report
regarding the use of section 215 authority. This report is to be filed with the House
and Senate Committees on the Judiciary, the House Permanent Select Committee on
Intelligence, and the Senate Select Committee on Intelligence. Section 106(h)(2) of
the Conference bill amends 50 U.S.C. 1862 to require that the annual report contain
the following information regarding the preceding year:
!the total number of applications made for 215 orders approving
requests for the production of tangible things,
!the total number of such orders granted as requested, granted as
modified, or denied, and
!the number of 215 orders either granted, modified, or denied for the
production of each of the following: library circulation records,
library patron lists, book sales records, or book customer lists;
firearms sales records; tax return records; educational records; and
medical records containing information that would identify a person.
Current law requires public disclosure of only the first two items above; by adding
the third reporting requirement, the Conference bill provides for a more detailed
11 Oversight Hearing on the “Implementation of the USA PATRIOT Act: Foreign
Surveillance Intelligence Act (FISA)”: Hearings Before the Subcomm. on Crime, Terrorism,
and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 1st Sess. (2005)
(statement of James A. Baker, Counsel for Intelligence Policy, Office of Intelligence Policy
and Review, U.S. Dep’t of Justice), at 3, available on Jan. 13, 2006 at
[http://judiciary.house.gov/media/pdfs/baker042805.pdf] (“While section 215 has never
been used to obtain such records, last year, a member of a terrorist group closely affiliated
with al Qaeda used Internet service provided by a public library to communicate with his
confederates. Furthermore, we know that spies have used public library computers to do
research to further their espionage and to communicate with their co-conspirators ... . A
terrorist using a computer in a library should not be afforded greater privacy protection that
a terrorist using a computer in his home.”).
12 50 U.S.C. 1861(a)(2)(B) already prohibits the government from seeking a section 215
order in an investigation of a U.S. person solely upon the basis of activities protected by the
First Amendment to the U.S. Constitution. For more information about section 215 under
existing law and its potential use against libraries or their patrons, see CRS Report
RS21441, Libraries and the USA PATRIOT Act, by Charles Doyle and Brian T. Yeh.
account of whether and when section 215 authority has been used to request these
categories of sensitive information.
Minimization Procedures. Not later than 180 days after the date of the
enactment of the act, the Attorney General is required to promulgate specific
minimization standards that apply to the collection and dissemination of information13
obtained through the use of the section 215 authority. These procedures are
intended to limit the retention, and regulate the dissemination, of nonpublicly
available information concerning unconsenting U.S. persons, consistent with the need
of the United States to obtain, produce, and disseminate foreign intelligence14
information. Federal authorities are directed to observe these minimization
procedures regarding the use or disclosure of information received under a 215 order;
furthermore, they may not use or disclose such information except for lawful
purposes.15 Finally, section 106(g) of the Conference bill clarifies that otherwise
privileged information does not lose its privileged character simply because it was
acquired through a 215 order.
Application Requirements. Current law only requires that an application
for a 215 order state that the requested records are sought for an authorized
investigation. The Conference bill amends 50 U.S.C. 1861(b)(2) to clarify that such
an application must include a “statement of facts” demonstrating that there are
reasonable grounds to believe that the tangible things sought are “relevant” to an
authorized or preliminary investigation to protect against international terrorism or
espionage, or to obtain foreign intelligence information not concerning a U.S. person.
Section 106(b)(2)(A) of the Conference bill also provides that certain tangible items
are “presumptively relevant” to an investigation if the application’s statement of facts
shows that the items sought pertain to:
!a foreign power or an agent of a foreign power,
!the activities of a suspected agent of a foreign power who is the
subject of such authorized investigation, or
!an individual in contact with, or known to, a suspected agent of a
foreign power who is the subject of such authorized investigation.
The “relevancy” standard set forth in the Conference bill has been criticized.
The Senate-passed version of the USA PATRIOT Improvement and Reauthorization
13 Proposed 50 U.S.C. 1861(g)(1).
14 Proposed 50 U.S.C. 1861(g)(2)(A).
15 Proposed 50 U.S.C. 1861(h).
16 151 CONG. REC. S13475-476 (daily ed. Dec. 13, 2005) (statement of Sen. Feingold)
(“The additional item put in the conference report is the loophole, the exception, that
swallows that three-part test. It does not require the connection to the terrorist or spy, even
though this legislation, from the very outset, was supposed to be a response to what
happened on 9/11, to terrorism. This does gut the changes to section 215 that are in the
Act, S. 1389,17 requires that the statement of facts show that the records or things
sought are relevant to an authorized investigation and that the things sought pertain
to, or are relevant to the activities of, a foreign power or agent of foreign power, or
pertain to an individual in contact with or known to a suspected agent of a foreign
power. The Conference bill does not require such a connection.
The application for a 215 order must also include an enumeration of the
minimization procedures applicable to the retention and dissemination of the tangible
Approval of 215 Orders. The FISA court judge shall approve an application
for a 215 order as requested or as modified, upon a finding that the application19
complies with statutory requirements. The order must contain a particularized
description of the items sought, provide for a reasonable time to assemble them,
notify recipients of nondisclosure requirements, and be limited to things subject to
a grand jury subpoena or order of a U.S. court for production.20 The ex parte order
shall also direct that the retention and dissemination of the tangible things obtained
under the order must adhere to the minimization procedures.
Judicial Review and Enforcement. Section 106(f) establishes a judicial
review process for recipients of 215 orders to challenge their legality with a specified
pool of FISA court judges. If the judge determines that the petition is not frivolous
after an initial review, the judge has discretion to modify or set aside a FISA order
upon a finding that it does not comply with the statute or is otherwise unlawful.21
However, if the judge does not modify or rescind the 215 order, then the judge must
immediately affirm the order and direct the recipient to comply with it.
The FISA Court of Review and the Supreme Court are granted jurisdiction to
consider appeals of the FISA court judge’s decision to affirm, modify, or set aside a
215 order.22 The Chief Justice of the United States, in consultation with the Attorney
General and the Director of National Intelligence, is directed to establish security
measures for maintaining the record of the 215 order judicial review proceedings.23
17 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 the
Senate-passed version of H.R. 3199 is S. 1389 as reported and will refer to it as S. 1389.
18 Proposed 50 U.S.C. 1861(b)(2)(B).
19 Proposed 50 U.S.C. 1861(c)(1).
20 Proposed 50 U.S.C. 1861(c)(2).
21 Proposed 50 U.S.C. 1861(f)(1). The review of a petition challenging a 215 order shall
be conducted in camera, proposed 50 U.S.C. 1803(e)(2).
22 Proposed 50 U.S.C. 1861(f)(2).
23 Proposed 50 U.S.C. 1861(f)(3).
Nondisclosure Requirement. Federal law currently prohibits the recipient
of a 215 order to disclose to any other person that the FBI has sought the tangible24
things described in the order, except to those persons necessary for compliance.
The Conference bill expressly clarifies that a recipient of a 215 order may disclose
its existence to an attorney to obtain legal advice, as well as to other persons
approved by the FBI.25 Although the recipient may be required to notify the FBI of
those to whom they intend to disclose, the recipient is not required to inform the FBI
of an intent to consult with an attorney to obtain legal assistance.26
The Conference bill does not provide an express, statutory right for a recipient
of a 215 order to petition a FISA court judge to modify or quash the nondisclosure
requirement. By contrast, section 115 of the Conference bill establishes the right of
recipients of “national security letters” to challenge both the legality of the request
as well as the gag order imposed in connection with the request.27
Section 106A. Audit on Access to Certain Business Records for
Foreign Intelligence Purposes.
This section is a new provision which provides for the Inspector General of the
Department of Justice to conduct a comprehensive audit to determine the
effectiveness, and identify any abuses, concerning the use of section 215 authority,
for calendar years 2002-2006. The audit is to be performed in accordance with the
detailed requirements set forth in this section. The results of the audit are to be
submitted in an unclassified report to the House and Senate Committees on the
Judiciary and Intelligence.
Section 107. Enhanced Oversight of Good-Faith Emergency
Disclosures Under Section 212 of the USA PATRIOT Act.
Section 212 of the PATRIOT Act permits electronic communications service
providers to disclose voluntarily the contents of stored electronic communications to
a Federal, State, or local governmental entity in emergency situations involving a risk
or danger of death or serious physical injury to any person.28 Service providers are
also permitted to disclose customer records to governmental entities in emergencies
involving an immediate risk of serious physical injury or danger of death to any29
To provide congressional oversight over the use of this authority, section 107(a)
of the Conference bill requires the Attorney General annually to report to the
24 50 U.S.C. 1861(d).
25 Proposed 50 U.S.C. 1861(d)(1)(B), (C).
26 Proposed 50 U.S.C. 1861(d)(2)(C).
27 Compare 50 U.S.C. 1861(f) (the section 215 FISA order judicial review provisions) with
28 18 U.S.C. 2702(b)(8).
29 18 U.S.C. 2702(c)(4).
Judiciary Committees of the House and Senate concerning the number of service
providers’ voluntary emergency disclosures of the contents of electronic
communications to the Department of Justice. The report must also summarize the
basis for the voluntary disclosure in circumstances where the investigation pertaining
to the disclosure was closed without the filing of criminal charges. In addition,
section 107(b) removes the immediacy requirement from the customer records
provision and defines “governmental entity” to mean a department or agency of the
United States or any State or political subdivision thereof.
Section 108. Multipoint Electronic Surveillance Under Section 206
of the USA PATRIOT Act.
Unlike a criminal wiretap order issued under Title III of the Omnibus Crime
Control and Safe Streets Act of 1968,30 which may be approved if a judge finds
probable cause for believing that an individual is committing, has committed, or is
about to commit a particular enumerated offense,31 a FISA wiretap may be issued
upon a finding of probable cause to believe that the target of the electronic
surveillance is a foreign power or agent of a foreign power.32 Section 206 of the
PATRIOT Act amended FISA to authorize the installation and use of multipoint, or
“roving,” wiretaps, for foreign intelligence investigations.33 A roving wiretap order
applies to the suspect rather than a particular phone or computer that the target might
use, and thus allows law enforcement officials to use a single wiretap order to cover34
any communications device that the target uses or may use. Without this authority,
investigators must seek a new FISA court order each time they need to change the
name of the location to be monitored, as well as the specified person or entity that is
needed to assist in facilitating the wiretap.35
A FISA roving surveillance order must specify the identity of the target, but only36
if it is known; otherwise, it is sufficient for the order to describe the target.
Furthermore, a roving wiretap order need not identify the nature and location of the37
places or facilities targeted for surveillance if they are unknown. Since roving
30 18 U.S.C. 2510 et seq.
31 See list of predicate offenses at 18 U.S.C. 2516(1)(a)-(r).
32 50 U.S.C. 1805(a).
33 50 U.S.C. 1805(c)(2)(B).
34 According to the Department of Justice, “This new authority has put investigators in a
better position to avoid unnecessary cat-and- mouse games with terrorists, who are trained
to thwart surveillance.” U.S. Dep’t of Justice, Report from the Field, The USA PATRIOT Act
at Work, 22 (July 2004), available on Jan. 13, 2006 at [http://www.lifeandliberty.gov/
35 Oversight Hearing on “Reauthorization of the USA PATRIOT Act”: Hearings Before
the House Comm. on the Judiciary, 109th Cong., 1st Sess. (2005) (statement of James B.
Comey, Deputy Attorney General, U.S. Dep’t of Justice), at 9-10, available on Jan. 13, 2006
36 50 U.S.C. 1805(c)(1)(A).
37 50 U.S.C. 1805(c)(1)(B).
surveillance orders in foreign intelligence investigations may be approved when the
government describes, rather than specifically identifies, the target of surveillance,
critics of the PATRIOT Act question whether this kind of “John Doe” wiretap
authority may be a “recipe for abuse.”38 A Department of Justice official in
testimony before Congress responded to this criticism: “It is critical, however, to
keep in mind that the government’s description of the target must be sufficiently
specific to convince the FISA Court that there is probable cause to believe that the
target is a foreign power or agent of a foreign power.”39
Section 206 of the PATRIOT Act also permits a general command for the
assistance of third parties (for example, common carriers and Internet service
providers) for the installation and use of these multipoint wiretaps, where the target
of the surveillance has taken steps to thwart the identification of a communications
company or other person whose assistance may be needed to carry out the
surveillance. Thus, if the FISA court finds that the target’s actions may have the
effect of thwarting specific identification, section 206 temporarily authorizes FISA
orders that need not specifically identify the communications carriers, landlords or
others whose assistance the order commands.40
Critics of section 206 assert that the roving wiretap authority is too sweeping,41
places unfair burdens upon those called upon to provide assistance,42 and might raise
38 Electronic Frontier Foundation, Let the Sun Set on PATRIOT - Section 206: “Roving
Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978,” available
Jan. 13, 2006 at [http://www.eff.org/patriot/sunset/206.php].
39 Oversight Hearing on the “Implementation of the USA PATRIOT Act: Foreign
Surveillance Intelligence Act (FISA)”: Hearings Before the Subcomm. on Crime, Terrorism,
and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 1st Sess. (2005)
(statement of Kenneth L. Wainstein, U.S. Attorney for the District of Columbia), at 3,
available on Jan. 13, 2006 at [http://judiciary.house.gov/media/pdfs/wainstein042805.pdf].
40 50 U.S.C. 1805(c)(2)(B).
41 See, e.g., Electronic Privacy Information Center, The USA PATRIOT Act (“EPIC
Report”), available on Jan. 13, 2006 at [http://www.epic.org/privacy/terrorism/usapatriot]
(“Such ‘generic’ orders could have a significant impact on the privacy rights of large
numbers of innocent users, particularly those who access the Internet through public
facilities such as libraries, university computer labs and cybercafes. Upon the suspicion that
an intelligence target might use such a facility, the FBI can now monitor all communications
transmitted at the facility. The problem is exacerbated by the fact that the recipient of the
assistance order (for instance, a library) would be prohibited from disclosing the fact that
monitoring is occurring.”).
42 See, e.g., John W. Whitehead & Steven H. Aden, Forfeiting “Enduring Freedom” for
“Homeland Security”: A Constitutional Analysis of the USA PATRIOT Act and the Justice
Department’s Anti-Terrorism Initiatives, 51 AM. U. L. REV. 1081, 1105 (2002) (“This
provision is problematic in that it distorts two extremely important checks in the legal
system that historically have provided a measure of accountability for the validity of a
warrant. First, the amendment allows the issuance of so-called ‘blank warrants,’ by which
the parties required to respond to the order need not be listed on the face of the document.
This places such communications providers in the position of having to accept the validity
of the warrant and its application to them virtually without question... Second, the order may
not have been issued in the responding party’s jurisdiction, creating hindrances of geography
constitutional concerns.43 In part to address these concerns, section 108 of the
Conference bill provides greater judicial and congressional oversight and other
procedural requirements for multipoint electronic surveillance orders. The section
amends the FISA roving surveillance authority to require that an application for an
order, as well as the wiretap order itself, describe the specific target of the electronic
surveillance if the target’s identity is not known.44 It also clarifies that the FISA court
must find that the prospect of a target thwarting surveillance is based on specific facts
in the application.45 Furthermore, if the government begins to direct surveillance at
a new facility or place, the nature and location of which were unknown at the time
the original surveillance order was issued, the government must notify the FISA court
within 10 days46 after such change, of the following information:
!the nature and location of each new facility or place at which the
surveillance is directed,
!the facts and circumstances relied upon by the applicant to justify the
applicant’s belief that each new facility or place is or was being
used, or is about to be used, by the target of the surveillance,
!an explanation of any proposed minimization procedures that differ
from those contained in the original application or order, if such
change is necessitated by the new facility or place, and
!the total number of electronic surveillances that have been or are
being conducted under the roving surveillance order.47
The Conference bill also enhances congressional oversight over the use of all
foreign intelligence electronic surveillance authority, by adding the Senate Judiciary
Committee as a recipient of the semi-annual FISA reports that the Attorney General
currently must submit to the House and Senate Intelligence committees,48 and by
modifying the FISA report requirements to include a description of the total number
of applications made for orders approving roving electronic surveillance.49
and expense for a party that desires to challenge the order in court.”).
43 See, e.g., EPIC Report (“The ‘generic’ roving wiretap orders raise significant
constitutional issues, as they do not comport with the Fourth Amendment’s requirement that
any search warrant ‘particularly describe the place to be searched.’ That deficiency
becomes even more significant where the private communications of law-abiding American
citizens might be intercepted.”).
44 Proposed 50 U.S.C. 1804(a)(3), proposed 50 U.S.C. 1805(c)(1)(A).
45 Proposed 50 U.S.C. 1805(c)(2)(B).
46 The 10 day period may be extended up to 60 days if the court finds good cause to justify
the longer period.
47 Proposed 50 U.S.C. 1805(c)(3).
48 Proposed 50 U.S.C. 1808(a)(1).
49 Proposed 50 U.S.C. 1808(a)(2).
Section 109. Enhanced Congressional Oversight.
Section 109(a) enhances congressional oversight over the use of physical
searches under FISA, by requiring, on a semi-annual basis, the Attorney General:
!to make full reports concerning all physical searches to the Senate
Judiciary Committee in addition to the House and Senate
Intelligence committees, and
!to submit to the House Judiciary Committee a report with statistical
information concerning the number of emergency physical search50
orders authorized or denied by the Attorney General.
Section 109(b) requires that the report the Attorney General submits to the
House and Senate Judiciary Committees semi-annually concerning the number of51
applications and orders for the FISA use of pen registers or trap and trace devices,
must include statistical information regarding the emergency use52 of such devices.
Section 109(c) directs the Secretary of Homeland Security to report to the House
and Senate Judiciary Committees semi-annually regarding the internal affairs
operations and investigations of the U.S. Citizenship and Immigration Services. The
first such report is to be submitted no later than April 1, 2006.
Section 109(d) requires the FISA court to publish its rules and procedures and
transmit them in unclassified form to all judges on the FISA court, the FISA Court
of Review, the Chief Justice of the United States, and the House and Senate Judiciary
and Intelligence Committees.
Section 110. Attacks Against Railroad Carriers and Mass
Section 110 of the Conference bill merges 18 U.S.C. 1992 (outlawing train
wrecking) and 18 U.S.C. 1993 (outlawing attacks on mass transportation system) into
a new 18 U.S.C. 1992 intended to provide uniform offense elements and penalties
for attacks on all transportation systems on land, on water, or through the air. In
addition, current federal law does not explicitly provide criminal punishment for the
planning of terrorist attacks and other acts of violence against railroads and mass
transportation systems, although it does make it a crime to commit them or to
attempt, threaten, or conspire to do so.53 Section 110 addresses this omission by
making it a crime to surveil, photograph, videotape, diagram, or otherwise collect
50 Proposed 50 U.S.C. 1826.
51 Proposed 50 U.S.C. 1846. These surveillance devices are used to intercept non-content
transactional information which reveals the source and destination of wire and electronic
communications, such as telephone dialing information, Internet IP addresses, and e-mail
routing and addressing. See definitions of these terms, 18 U.S.C. 3127(3), 18 U.S.C.
52 Proposed 50 U.S.C. 1843.
53 18 U.S.C. 1993.
information with the intent to plan or assist in planning, an attack against mass
transportation systems.54 Punishment for the crime is imprisonment for not more
than 20 years, but if the offense results in the death of any person, then imprisonment
of any years or for life or the death penalty, although the death penalty is not
available for inchoate forms of the offense (planning, conveying false information,
attempting, threatening, or conspiring).55 Furthermore, the new 18 U.S.C. 1992
enhances the penalties for committing these criminal acts in circumstances that
constitute an aggravated offense, by authorizing imprisonment for any term of years
or life, or where death results, the death penalty. Finally incorporating an amendment
found in section 304 of the House bill the new 18 U.S.C. 1992 defines covered
conveyances and their systems to include passenger vessels.56
Section 111. Forfeiture.
Federal law permits U.S. confiscation of property derived from certain drug
offenses committed in violation of foreign law,57 and also permits U.S. confiscation58
of all assets, foreign or domestic, associated with certain terrorist offenses. Section
111 amends the general civil forfeiture statute to authorize seizure of property within
U.S. jurisdiction constituting, derived from, or traceable to, any proceeds obtained
in (or any property used to facilitate) an offense that involves trafficking in nuclear,
chemical, biological, or radiological weapons technology or material, if such offense
is punishable under foreign law by death or imprisonment for a term exceeding one59
year or would be so punishable if committed within U.S. jurisdiction.
Section 112. Section 2332b(g)(5)(B) Amendments Relating to the
Definition of Federal Crime of Terrorism.
Crimes designated as federal crimes of terrorism under 18 U.S.C. 2332b(g)(5)
trigger the application of other federal laws, for example, 18 U.S.C. 1961(1)(g)
(RICO predicates), 18 U.S.C. 3142 (bail), 18 U.S.C. 3286 (statute of limitations), and
18 U.S.C. 3583 (supervised release). Section 112 of the Conference bill adds two
additional offenses to the current definition of federal crimes of terrorism: receiving
military-type training from a foreign terrorist organization,60 and drug trafficking in
support of terrorism (the “narco-terrorism” provisions of Section 1010A of the
Controlled Substances Import and Export Act).61
54 Proposed 18 U.S.C. 1992(a)(8).
55 Proposed 18 U.S.C. 1992(a).
56 Proposed 18 U.S.C. 1992(d)(7). Here and hereafter “the House bill” refers to the version
of H.R. 3199 which the House sent to conference.
57 18 U.S.C. 981(a)(1)(B).
58 18 U.S.C. 981(a)(1)(G).
59 Proposed 18 U.S.C. 981(a)(1)(B)(i).
60 18 U.S.C. 2339D.
61 Proposed 21 U.S.C. 960A created in section 122 of the Conference bill.
Section 113. Amendments to Section 2516(1) of Title 18, United
Generally, federal law requires the government to obtain a court order
authorizing the interception of wire, oral or electronic communications in the
investigation of certain crimes (“predicate offenses”) specifically enumerated in 18
U.S.C. 2516(1). Section 113 expands the list of predicate offenses in which law
enforcement may seek wiretap orders to include crimes relating to biological
weapons, violence at international airports, nuclear and weapons of mass destruction
threats, explosive materials, receiving terrorist military training, terrorist attacks
against mass transit, arson within U.S. special maritime and territorial jurisdiction,
torture, firearm attacks in federal facilities, killing federal employees, killing certain
foreign officials, conspiracy to commit violence overseas, harboring terrorists, assault
on a flight crew member with a dangerous weapon, certain weapons offenses aboard
an aircraft, aggravated identity theft, “smurfing” (a money laundering technique
whereby a large monetary transaction is separated into smaller transactions to evade
federal reporting requirements on large transactions), and criminal violations of
certain provisions of the Sherman Antitrust Act.
Section 114. Delayed Notice Search Warrants.
A delayed notice search warrant, or “sneak and peek” warrant, is one that
authorizes law enforcement officers to secretly enter a home or business, either
physically or virtually, conduct a search, and depart without taking any tangible
evidence or leaving notice of their presence. The Department of Justice has defended
the necessity and legality of delayed notification search warrants:
This tool can be used only with a court order, in extremely narrow circumstances
when immediate notification may result in death or physical harm to an
individual, flight from prosecution, evidence tampering, witness intimidation, or
serious jeopardy to an investigation. The reasonable delay gives law
enforcement time to identify the criminal’s associates, eliminate immediate
threats to our communities, and coordinate the arrests of multiple individuals
without tipping them off beforehand. In all cases, law enforcement must give62
notice that property has been searched or seized.
Until the Patriot Act was enacted, the Federal Rules of Criminal Procedure63
required contemporaneous notice in most instances. At the time, the courts were
divided over whether the failure to provide contemporaneous notice, in the absence
of exigent circumstances, constituted a constitutional violation or a violation of the
Rule, and over the extent of permissible delay in cases presenting exigent64
circumstances. Section 213 of the PATRIOT Act created an express statutory
authority for delayed notice search warrants in any criminal investigation, not just
62 U.S. Dep’t of Justice, Dispelling Some of the Major Myths about the USA PATRIOT Act,
available on Jan. 13,2006 at [http://www.lifeandliberty.gov/subs/u_myths.htm].
63 FED. R. CRIM. P. 41(d), 18 U.S.C. App. (2000 ed.).
64 See United States v. Pangburn, 983 F.2d 449 (2d Cir. 1993); United States v. Freitas,
those involving suspected terrorist activity.65 Delayed notification of the execution
of a sneak and peek search warrant is permissible for a reasonable period of time
(with the possibility of court-approved extensions for good cause shown), if:
!the court that issued the warrant finds reasonable cause to believe
that contemporaneous notice of the search may result in adverse
consequences (flight, destruction of evidence, intimidation of a
witness, danger to an individual, serious jeopardy to an
investigation, or undue trial delay), and
!the warrant prohibits the seizure of any tangible property, any wire
or electronic communication, and any stored wire or electronic
information, except where the court finds reasonable necessity for
Responding to concerns that the “reasonable period” for delaying notification
of a search warrant is an undefined and indefinite standard under current law, section
requiring notice to be given no more than 30 days after the date of the warrant’s
execution, with the possibility for 90 day extensions if the facts of a case justify.66
In addition, it removes “unduly delaying a trial” as one of the “adverse
consequences” that justifies delayed notification. Some commentators have noted
that “seriously jeopardizing an investigation,” which is retained by the Conference
bill as a ground for permitting delayed notice, is an overly broad “catch-all” provision
that law enforcement officials could abuse.67 There may also be some question of
whether it qualifies as a constitutionally acceptable exigent circumstance. However,
Justice Department officials defend this provision, observing that before the delayed
notice can be approved, a federal judge must agree with the government’s evaluation
of the circumstances that indicate that contemporaneous notice of a search might
seriously jeopardize an ongoing investigation.68
65 18 U.S.C. 3103a. Critics have expressed concerns about the constitutionality of delayed
notice search warrants as well as potential abuse of the power. See, e.g., EPIC Report (“The
expansion of this extraordinary authority to all searches constitutes a radical departure from
Fourth Amendment standards and could result in routine surreptitious entries by law
enforcement agents.”); American Civil Liberties Union (ACLU), Surveillance Under the
USA PATRIOT Act (April 3, 2003), available on Jan. 13, 2006 at
[http://www.aclu.org/safefree/general/17326res20030403.html] (“Notice is a crucial check
on the government’s power because it forces the authorities to operate in the open, and
allows the subjects of searches to protect their Fourth Amendment rights. For example, it
allows them to point out irregularities in a warrant ... Search warrants often contain limits
on what may be searched, but when the searching officers have complete and unsupervised
discretion over a search, a property owner cannot defend his or her rights.”).
66 Proposed 18 U.S.C. 3103a(b)(3).
67 See ACLU, ACLU Letter to Congress Urging A “No” Vote On the USA PATRIOT
Improvement and Reauthorization Act Conference Report (Dec. 12, 2005), available on Jan.
68 Oversight Hearing on the “Implementation of the USA PATRIOT Act: Sections 201, 202,
223 of the Act that Address Criminal Wiretaps, and Section 213 of the Act that Addresses
Delayed Notice”: Hearings Before the Subcomm. on Crime, Terrorism, and Homeland
Finally, section 114 enhances oversight of delayed notice search warrants, by
requiring that no later than 30 days after the expiration or denial of such a warrant,
the issuing or denying judge must notify the Administrative Office of the U.S. Courts
!the fact that the delayed notice search warrant was applied for,
!the fact that the warrant was either granted, modified, or denied,
!the length of time of the delay in giving notice, and
!the offense specified in the warrant or the application.69
The Director of the Administrative Office is required to transmit a detailed, annual
report to Congress that summarizes the use and number of warrants authorizing
Section 115. Judicial Review of 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.70 A federal court in the Southern District of New
York has held that the FBI’s practices and procedure surrounding the exercise of its
authority under one of these national security letter (NSL) statutes, 18 U.S.C. 2709,71
violate the Fourth and First Amendments. In the opinion of the court, the
constitutional problem stems 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 (“gag order”) that the statute places on NSL72
Section 115 of the Conference bill attempts to address these potential
constitutional deficiencies by authorizing judicial review of a NSL.73 The recipient
of a NSL request may petition a U.S. district court for an order modifying or setting
Security of the House Comm. on the Judiciary, 109th Cong., 1st Sess. (2005) (statement of
Chuck Rosenberg , Chief of Staff to Deputy Attorney General, U.S. Dep’t of Justice), at 3-4,
available Jan. 13, 2006 at [http://judiciary.house.gov/media/pdfs/rosenberg050305.pdf]
(stating that “[t]here are a variety of ways in which investigators and prosecutors should not
be precluded from obtaining a delayed notice search warrant simply because their request
does not fall into one of the other four circumstances listed in the statute”).
69 Proposed 18 U.S.C. 3103a(d)(1).
70 12 U.S.C. 3414; 15 U.S.C.1681u, 1681v; 18 U.S.C. 2709; 50 U.S.C. 436. For more
information concerning national security letters, see CRS Report RL32880, Administrative
Subpoenas and National Security Letters in Criminal and Foreign Intelligence
Investigations: Background and Proposed Adjustments, by Charles Doyle.
71 Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 2004); see also, Doe v. Gonzalez, 386
F.Supp.2d 66 (D.Conn. 2005)(reaching a similar conclusion on First Amendment grounds).
72 Ashcroft, 334 F.Supp.2d at 526-27.
73 Proposed 18 U.S.C. 3511.
aside the request. The federal court may modify or quash the NSL request if
compliance would be unreasonable, oppressive, or otherwise unlawful.
In addition to providing the right to challenge the validity of the NSL request,
section 115 expressly grants NSL recipients the power to petition a federal district
court to modify or quash the nondisclosure requirement imposed in connection with
the request.74 By contrast, a recipient of a section 215 FISA order for tangible items
is not provided an explicit statutory right to challenge in court the gag order that
attaches to a 215 order. However, section 115 creates a bifurcated procedure for
handling petitions for judicial review of the nondisclosure requirement:75
1) If the petition is filed within one year of the NSL request, the U.S. district
court may modify or set aside the gag order if it finds no reason to believe that
!endanger the national security of the United States,
!interfere with a criminal, counterterrorism, or counterintelligence
!interfere with diplomatic relations, or
!endanger the life or physical safety of any person.
If, at the time of the petition, a high-ranking government official76 certifies that
!endanger the national security of the United States, or
!interfere with diplomatic relations,
then the court must treat the government certification as conclusive unless the court
finds that the certification was made in bad faith.
2) If the petition challenging the gag order is filed one year or more after the
NSL issuance, a high-ranking government official must, within 90 days of the
petition, either terminate the gag order or re-certify that disclosure may:
!endanger the national security of the United States,
!interfere with a criminal, counterterrorism, or counterintelligence
!interfere with diplomatic relations, or
!endanger the life or physical safety of any person.
If such recertification occurs, then a court may modify or quash the gag order
if it finds no reason to believe that disclosure may:
74 Proposed 18 U.S.C. 3511(b)(1).
75 Proposed 18 U.S.C. 3511(b)(2)-(3).
76 If the NSL is issued by the Department of Justice, this person must be the Attorney
General, Deputy AG, or the Director of the FBI; if the NSL information is requested by any
agency, department, or instrumentality other than the Justice Department, then the individual
must be its head or deputy. Proposed 18 U.S.C. 3511(b)(2).
!endanger the national security of the United States,
!interfere with a criminal, counterterrorism, or counterintelligence
!interfere with diplomatic relations, or
!endanger the life or physical safety of any person.
However, if the recertification was made by the Attorney General, Deputy Attorney
General, an Assistant Attorney General, or the Director of the FBI, and if such
recertification stated that disclosure may:
!endanger the national security of the United States, or
!interfere with diplomatic relations
then such certification is to be treated by the court as conclusive unless it was made
in bad faith.
If court denies the petition for an order to modify the nondisclosure requirement,
the NSL recipient is precluded from filing another such petition for one year.
Although the Conference bill provides a process to challenge the nondisclosure
requirement, critics believe that this right is “illusory”: “A recipient would
technically be given a right to challenge the gag order but if the government asserted
national security, diplomatic relations or an ongoing criminal investigation the court
would be required to treat that assertion as conclusive, making the ‘right’ an
Judicial Enforcement of a NSL. In addition to authorizing judicial review
of NSLs, section 115 also provides the government with the means to enforce the
NSL through court action. If a NSL recipient fails to respond to the request for
information, the Attorney General may seek a federal district court order to compel
compliance with the request.78 Disobedience of the U.S. district court’s order to
respond to a NSL is punishable as contempt of court.
Closed Proceedings. Section 115 also directs that any court proceedings
concerning NSL matters must be closed, subject to any right to an open hearing in a79
contempt proceeding, to prevent unauthorized disclosure of the NSL request. In
addition, all petitions, filings, records, orders, and subpoenas must be kept under seal
77 ACLU, ACLU Letter to Congress Urging A “No” Vote On the USA PATRIOT
Improvement and Reauthorization Act Conference Report (Dec. 12, 2005), available Jan.
78 Proposed 18 U.S.C. 3511(c). Critics of this new provision claim that it effectively
transforms NSLs into national security subpoenas. See ACLU, ACLU Letter to Congress
Urging A “No” Vote On the USA PATRIOT Improvement and Reauthorization Act
Conference Report (Dec. 12, 2005), available on Jan. 13, 2006 at
[ ht t p: / / www.acl u.or g/ saf e f r e e/ ge ner a l / 22394l eg20051207.ht ml ] .
79 Proposed 18 U.S.C. 3511(d).
to prevent unauthorized disclosure. Finally, the government may request that its
evidence be considered ex parte and in camera.80
Section 116. Confidentiality of National Security Letters.
Section 116 of the Conference bill amends all five NSL statutes to prohibit
communications service providers from disclosing to any person that the FBI has
sought or obtained access to the information sought through the NSL, if the
investigative agency has certified that disclosure may endanger any individual or the
national security of the United States, interfere with diplomatic relations, or interfere
with a criminal or intelligence investigation. However, disclosure is permitted to any
person whose assistance is needed to comply with the NSL request or to an attorney81
to obtain legal advice or legal assistance concerning the NSL. Although a person
making or intending to make a disclosure may be required to notify the FBI of those
to whom they intend to disclose, the person is not required to inform the FBI of an
intent to consult with an attorney to obtain legal assistance.82
Section 117. Violations of Nondisclosure Provisions of National
This section punishes a person who was notified of a NSL nondisclosure
requirement but nevertheless knowingly and willfully violates that directive, with
imprisonment of not more than one year, or not more than five years if committed
with the intent to obstruct an investigation or judicial proceeding.83 Current law does
not provide a felony charge for such disclosure to an unauthorized person.
Section 118. Reports on National Security Letters.
Section 118 of the Conference bill requires that any reports to a Congressional
committee regarding NSLs shall also be provided to the House and Senate Judiciary
Committees. In addition, the Attorney General must submit a report semiannually
on all NSL requests made under the Fair Credit Reporting Act, to the House and
Senate Judiciary Committees, the House and Senate Intelligence Committees, and the
House Committee on Financial Services and the Senate Committee on Banking,
Housing, and Urban Affairs.84
80 Proposed 18 U.S.C. 3511(e).
81 Proposed 18 U.S.C. 2709(c)(1); proposed 15 U.S.C. 1681u(d)(1); proposed 15 U.S.C.
proposed 50 U.S.C. 436(b)(1).
82 Proposed 18 U.S.C. 2709(c)(4); proposed 15 U.S.C. 1681u(d)(4); proposed 15 U.S.C.
proposed 50 U.S.C. 436(b)(4).
83 Proposed 18 U.S.C. 1510(e).
84 Proposed 15 U.S.C. 1681v(f).
The Attorney General is also instructed to submit to Congress an annual report
describing the total number of requests made by the Department of Justice under the
NSL statutes. This report is to be unclassified, in order to permit public scrutiny.
Section 119. Audit of Use of National Security Letters.
The Inspector General of the Department of Justice is to perform a
comprehensive audit of the effectiveness and use of NSLs, including any improper
or illegal use, for submission to the House and Senate Judiciary and Intelligence
Committees for calendar years 2003-2006. This report is to be unclassified.
Section 119 also requires the Attorney General and Director of National
Intelligence to analyze the feasibility of applying minimization procedures to NSL
to ensure the protection of the constitutional rights of U.S. persons. This feasibility
study is to be submitted to the House and Senate Judiciary and Intelligence
Committees by February 1, 2007, or upon completion of the audit of the use of NSLs
for calendar years 2003 and 2004, whichever is earlier.
Section 120. 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 ), and includes acts dangerous
to human life in violation of state or federal law committed to influence the policy
of a government or civilian population by intimidation or coercion, 18 U.S.C.
2331(5). Critics might suggest that the juxtaposition of the definition and the
confiscation provisions of section 981(a)(1)(G) could result in the confiscation of the
property of political action organizations whose members became involved in a
picket sign swinging melee with counter demonstrators.85 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.
85 151 CONG. REC. H6262 (daily ed. July 21, 2005)(statement of Rep. Delahunt) (“This is
about domestic terrorism and the definition of domestic terrorism. And while it does not
create a new crime under the PATRIOT Act, the definition triggers an array of expanded
governmental authorities, including enhanced civil asset seizure powers. It is so broadly
defined that it could include acts of civil disobedience because they may involve acts that
endanger human life...”); 151 CONG. REC. H6262-263 (daily ed. July 21, 2005) (statement
of Rep. Sensenbrenner)(“There are various definitions of terrorism under Federal law. In
title XVIII there has been a confusion over a new definition created in the USA PATRIOT
Act for domestic terrorism. That provision is supposed to be used for administrative
procedures such as nationwide searches, but another part of the PATRIOT Act, section 806,
uses the reference for asset forfeiture, which is more of a penalty. This has raised concerns
about those who exercise their first amendment rights. As a result, groups from both sides
of the political spectrum have wanted to change the definition for domestic terrorism. This
amendment fixes the problem...”).
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.
Section 121. Cigarette Smuggling.
Federal law proscribes trafficking in contraband cigarettes (i.e., trafficking in more86
than 60,000 cigarettes without the required tax stamps). Violations are punishable
by imprisonment for up to five years,87 and constitute racketeering predicate88
During debate on the House floor several members pointed to the fact that in at
least one instance terrorists had resorted to cigarette smuggling as a financing89
Section 121, modeled closely after section 123 of the House bill, 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,90
and state and local authorities.
Section 122. Narco-Terrorism.
Federal law prohibits drug trafficking with severe penalties calibrated according
to the kind and volume of drugs and the circumstances involved91 (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)92. Drug
offenses that involved additional egregious circumstances are often subject to
86 18 U.S.C. 2341-2346
87 18 U.S.C. 2344.
88 18 U.S.C. 1961(1). Federal racketeer influenced and corrupt organization laws (RICO)
proscribe the acquisition or operation of an enterprise, whose activities affected interstate
or foreign commerce, through the patterned commission of other specifically designated
crimes (predicate offenses); offenders face imprisonment for up to 20 years and confiscation
of offense related property, 18 U.S.C. 1961-1963.
89 151 CONG. REC. H6284 (daily ed. July 21, 2005) (statements of Reps. Coble,
Sensenbrenner, Cantor, and Kildee).
90 Proposed 18 U.S.C. 2341-2346
91 21 U.S.C. 841-971.
92 21 U.S.C. 841, 844.
multiples of the sanctions for the underlying offense.93 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.94
The Conference bill in section 122 adopts the language of section 124 of the
House bill. There were no comparable provisions in S. 1389. It outlaws drug
trafficking — for the benefit of a foreign terrorist organization as defined in the
immigration laws, 8 U.S.C. 1182(a)(3)(B), or of a person who has or is engaged in
terrorism as defined in 22 U.S.C. 2656f(d)(2) (politically motivated violence against
civilian targets) — under a wide range of jurisdictional circumstances.95 The offense
can only be committed with the knowledge of the terrorist misconduct of its
beneficiaries.96 Violators face imprisonment for not less than twice the minimum
penalty for drug trafficking under 21 U.S.C. 841(b)(1) nor more than life, and period
of supervised release of not less than five years.97 The Conference bill, unlike its
House predecessor, expressly prohibits attempts and conspiracies to violate the new
section. The difference is more a matter emphasis than substance since 21 U.S.C.
93 See, e.g., 21 U.S.C. 859 (sale of drugs to a child: twice the normal penalty); 861 (use a
child in drug trafficking: twice the normal penalty); 861(f) (sale of drugs to a pregnant
woman: twice the normal penalty).
94 18 U.S.C. 2339A, 2339B.
95 Proposed 21 U.S.C. 960A(b) (“There is jurisdiction over an offense under this section
if — (1) the prohibited drug activity or the terrorist offense is in violation of the criminal
laws of the United States; (2) the offense, the prohibited drug activity, or the terrorist
offense occurs in or affects interstate for foreign commerce; (3) an offender provides
anything of pecuniary value for a terrorist offense that causes or is designed to cause death
or serious bodily injury to a national of the United States while that national is outside the
United States, or substantial damage to the property of a legal entity organized under the
laws of the United States (including any of its States, districts, commonwealths, territories,
or possessions) while that property outside of the United States; (4) the offense or the
prohibited drug activity occurs in whole or in part outside of the United States including on
the high seas), and a perpetrator of the offense or the prohibited drug activity is a national
of the United States or a legal entity organized under the laws of the United States
(including any of its States, districts, commonwealths, territories, or possessions); or (5)
after the conduct required for the offense occurs an offender is brought into or found in the
United States, even if the conduct required for the offense occurs outside the United
States.”) In cases where neither the support, the drug offense, nor the terrorism have any
connection to the U.S. other than the later presences of the offender here, paragraph
960A(b)(5) may exceed Congress’ legislative reach unless the benefit of a treaty obligation
can be claimed. The House bill defined terrorism in part by reference to our terrorism treaty
obligations listed in 18 U.S.C. 2339C(e)(7) and thus might invoke Congress’ authority to
enact legislation to define and punish offenses against the law of nations, U.S. CONST. art.
I, §8, cl.10, a feature and benefit the Conference bill does not enjoy.
96 Proposed 21 U.S.C. 960A(c).
97 Proposed 21 U.S.C. 960A.
Section 123. 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,
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 123, in the language of section 125 of the House bill before it, amends
18 U.S.C. 32 to make it a federal crime to interfere or disable the operator of an
aircraft or aircraft facility with reckless disregard for human safety or with the intent
to endanger, subject to the same sanctions that apply to other violations of the
section. By operation of section 32 the new prohibition extends to attempts and
conspiracies to engage in such conduct, 18 U.S.C. 32(a)(7)(redesignated 18 U.S.C.
Section 124. 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),
Section 124, like section 126 in the House bill, 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.
Section 125. Immunity for Fire Equipment Donors.
Section 125, like section 131 in the House bill, grants immunity from civil
liability to the donors (other than manufacturers) of fire equipment to volunteer fire
organizations and resembles legislation introduced earlier in each house, H.R.
Section 126. Federal Data Mining Report.
When 126 came out of the House as section 132 it directed the Attorney General
to prepare a report to Congress on all data mining activities of all federal agencies
and departments including the legal authority for such activities and their privacy and
civil liberties implications. When section 126 came out of conference it was limited
to a report on the “pattern-based” data mining activities of the Department of Justice.
The Conference bill does not define “pattern-based” nor does the conference report
discuss the limitations on the House bill which the conferees felt appropriate.98 The
Senate bill had no similar provision.
Section 127. 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 127 of the Conference bill, like section 133 of the House bill before it,
expresses the sense of Congress that under section 981 victims of terrorists should
have access to the assets forfeited. The Senate bill had no comparable provision.
Section 128. Information Related to FISA Pen Register.
Law enforcement officials may secure an order authorizing the installation and
use of a pen register or trap and trace device to obtain information relevant to a
criminal investigation, 18 U.S.C. 3122, 3123. They are also entitled to a court order
directing a communications provider to supply certain customer information when
98 The want of definition may be significant because the terms are not hermetically sealed
legal concepts, see, e.g., Safeguarding Privacy in the Fight Against Terrorism, Report of
the Technology and Privacy Advisory Committee, 45 (March 2004)(“data mining includes
‘pattern-based’ searches . . . These [might] involve developing models of what terrorist
behavior might look like and then examining databases for similar patterns. This is similar
to commercial data mining techniques — businesses develop a pattern of attributes or
behaviors that their good customers have in common, and then search databases to find
people meeting those patterns — but potentially far more powerful given the range of data
to which the government has access and the capacity of data mining to eliminate the need
to aggregate data before searching them. As we use the term, data mining may also include
‘subject-based’ searches, which look for information about a specific individual or links to
known terrorist suspects. This has long been a basic tool of criminal investigators
everywhere: start with known suspects and, with proper authorization (in many cases, a
warrant or a subpoena), look for information about them and the people with whom they
interact. However, the power of data mining technology and the range of data to which the
government has access have contributed to blurring the line between subject- and pattern-
based searches. The broader the search criteria, and the more people other than actual
terrorist who will be identified by those criteria, the more pattern-like these searches
become. Even when a subject-based search starts with a known suspect, it can be
transformed into a pattern-based search as investigators target individuals for investigation
solely because of their connection with the suspect. The more tenuous the connection, the
more like a pattern-based search it becomes. Searches that lack specific focus on identified
suspects do pose greater risk for U.S. persons and should be subject to greater scrutiny and
relevant to a criminal investigation, 18 U.S.C. 2703.99 Foreign intelligence officials
are entitled to secure a FISA order for installation and use of a pen register or trap
and trace device in connection with certain foreign intelligence investigations, 50
U.S.C. 1841-1846. Under its national security letter authority the FBI may request
communications providers to supply customer name, address, length of service and
local and long distance toll billing records, 18 U.S.C. 2709. Under section 215 of the
USA PATRIOT Act, the FBI may obtain a FISA tangible item order for customer
records held by a communications provider, 50 U.S.C. 1861.
Section 128 of the Conference bill carries forward a provision found in section
6 of the Senate bill under which the FISA court may, in its pen register/trap and trace
order, direct a service provider to supply customer information relating to use of the
device, proposed 50 U.S.C. 1842(d)(2)(C).100 The information to be made available
is more extensive that what is available under 18 U.S.C. 2709, or to law enforcement
officials, but not as extensive as the scope of information under a FISA section 215
“tangible item” order, i.e.:
(i) in the case of the customer or subscriber using the service covered by the
order (for the period specified by the order) —
(I) the name of the customer or subscriber;
(II) the address of the customer or subscriber;
(III) the telephone or instrument number, or other subscriber number or
identifier, of the customer or subscriber, including any temporarily assigned
network address or associated routing or transmission information;
(IV) the length of the provision of service by such provider to the customer or
subscriber and the types of services utilized by the customer or subscriber;
(V) in the case of a provider of local or long distance telephone service, any local
or long distance telephone records of the customer or subscriber;
(VI) if applicable, any records reflecting period of usage (or sessions) by the
customer or subscriber; and
(VII) any mechanisms and sources of payment for such service, including the
number of any credit card or bank account utilized for payment for such service;
(i) if available, with respect to any customer or subscriber of incoming or
outgoing communications to or from the service covered by the order —
(I) the name of such customer or subscriber;
(II) the address of such customer or subscriber;
(III) the telephone or instrument number, or other subscriber number or
identifier, of the customer or subscriber, including any temporarily assigned
network address or associated routing or transmission information;
(IV) the length of the provision of service by such provider to the customer or
subscriber and the types of services utilized by the customer or subscriber,
proposed 50 U.S.C. 1842(d)(2)(C).
99 The information available under section 2703 includes “the — (A) name; (B) address;
(C) local and long distance telephone connection records, or records of session times and
durations; (D) length of service (including start date) and types of service utilized; (E)
telephone or instrument number or other subscriber number or identity, including any
temporarily assigned network address; and (F) means and source of payment for such
service (including any credit card or bank account number), of a subscriber to or customer
of such service),” 18 U.S.C. 2703(c)(2).
100 The House bill had no comparable provision.
The Senate Select Committee on Intelligence observed with respect to an
identically worded section in S. 1266, “the FISA audit staff was informed that when
a federal court issues an order for criminal pen register or trap and trace device, the
court has the authority under 18 U.S.C. 2703(d) to routinely require the service
provider to supply subscriber information in its possession for the numbers or e-mail
addresses captured by the devices. The FISA pen register/trap and trace provision
has no comparable authority. Section 215 of this bill addresses this discrepancy,”
S.Rept. 109-85, at 8 (2005).
The amendment would likely simplify the process, but critics might ask why it
is necessary since information already seems to be available through use of the
national security letter authority under 18 U.S.C. 2709 or the FISA business records
“tangible item” authority when used in conjunction with the FISA pen register/trap
and trace authority.
Like the Senate bill, the conferees amended the FISA oversight reporting
requirements so that Judiciary Committees receive full reports on the use of the
FISA’s pen register and trap and trace authority every six months, proposed 50
Title I House Proposals Dropped in Conference.
Title I of the Conference bill is a melding of modified proposals from the House
bill and S. 1389. Due to the relative expanse of its coverage and unlike its Senate
counterpart there are entire sections of the House bill which here and in other titles
disappeared in conference. In the case of Title I of the Conference bill these fall into
one of two categories. Individual sections in the House bill which the conferees
combined and sections like first responder funding and notification provisions which
they put aside.
Court Notification of Information Sharing. Section 105 of the House bill
amended a criminal wiretap section, 18 U.S.C. 2517(6) to require that the court
which authorized a wiretap be advised when the resulting information was shared
with other agencies.101 Other provisions have rendered the underlying section largely
First Responder Funding. Section 1014 of the USA PATRIOT Act
establishes a grant program for state and local domestic preparedness support, 42th
U.S.C. 3714. The 108 Congress ended before proponents for adjustment in the
grant effort were able to reach consensus,102 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.103 Sections 127 through 131 of the
101 S. 1389 had no similar provision.
102 See CRS Report RL32634, First Responder Grant Formulas: A Comparison of Formula
Provisions in S. 2845 and H.R. 10, 108th Congress, by Shawn Reese.
103 “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.
House bill passed the House separately as H.R. 1544, 151 Cong. Rec. H3236-237
(daily ed. May 12, 2005).104 They are not included in the Conference bill.105
Mergers. Section 110 of the Conference bill encompasses the proposals found
in sections 110 and 115 of the House bill relating to attacks on mass transit. Section
113 of the Conference bill absorbs the proposals to enlarge the wiretap predicate
offense list found in sections 113 and 122 of the House bill. Finally, in section 114
the Conference bill addresses the sneak and peek proposals which the House
advanced in its sections 114 and 121.
Title II: Terrorist Death Penalty Enhancement
Title II in the House bill proposed a substantial number of adjustments in federal
death penalty law. The Senate bill had none. The conferees accepted only three of
the House proposals, one that involves air piracy cases arising before 1996, a second
that eliminates a redundant procedural mechanism in federal capital drug cases, and
a third addressed to supervised release for terrorism offenses. The conferees,
however, added a new section to Title II and another to Title V. The new section in
Title II accomplished a technical transfer of the law governing the appointment of
counsel in capital cases. The section in Title V concerns replacing the courts with
the Attorney General as a gatekeeper for state access to expedited habeas procedures
in capital cases.
Section 201. Short Title.
Section 201 styles Title II, the “Terrorist Death Penalty Enhancement Act of
Section 211. 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 then employed by the federal government and most
of the states unconstitutional.106 In 1974, Congress established a revised procedure107
for imposition of the death penalty 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.108 At least one court, however, held that
the new procedures could not be applied retroactively to air piracy cases occurring
104 See also H.Rept. 109-65 (2005).
105 S. 1389 had no comparable first responder funding provisions.
106 Furman v. Georgia, 408 U.S. 238 (1972).
107 P.L. 93-366, 88 Stat. 409 (1974), 49 U.S.C. 1473 (1976 ed.)
108 P.L. 103-322, 108 Stat. 1796, 1970 (1994), 18 U.S.C. 3591-3598.
after the 1974 fix but before the 1994 legislation, in the absence of an explicit
Section 211 adds an explicit provision to the end of the 1994 legislation.110 The
amendment provides for the application of the existing federal capital punishment
procedures, 18 U.S.C. ch.228, in addition to consideration of the mitigating and
aggravating factors in place prior to the 1994 revival.111 Section 211 also provides
for severance should any of the 1994 factors be found constitutionally invalid, and
includes a definition of “especially heinous, cruel, or depraved” used as an
aggravating factor in section 46503, to avoid the vagueness problems that might
otherwise attend the use of such an aggravating factor.112
The conference report notes that the changes apply to a relative small group of
individuals responsible for murders committed during the course of hijackings in the
mid 1980’s who would otherwise be eligible for parole within 10 years of sentencing
and could not be effectively sentenced to more than 30 years in prison.113
109 United States v. Safarini, 257 F.Supp.2d 191, 202-3 (D.D.C. 2003).
110 Proposed subsection 60003(c), amending P.L. 103-322, 108 Stat.1970 (1994).
111 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
112 See, e.g., Maynard v. Cartwright, 486 U.S. 356, 359-61 (1988).
113 “This provision is particularly important for several reason. In the absence of a death
penalty that could be implemented for pre-FDPA hijacking offenses resulting in death that
also occurred before the effective date of the Sentencing Guidelines on November 1, 1987,
the maximum penalty available would be life imprisonment. Under the pre-Sentencing
Guidelines structure, even prisoners sentenced to life imprisonment were eligible for a
parole hearing after serving only ten years. While there is a split in the Circuit Courts of
Appeals as to whether a sentencing judge can impose a sentence that could avert the 10-year
parole hearing requirement, the current position of the Bureau of Prisons is that a prisoner
is eligible for a parole hearing after serving ten years of a life sentence. Even if parole is
denied on that first occasion, such prisoners are eligible to have regularly scheduled parole
hearings every two years thereafter. Moreover, in addition to parole eligibility after ten
years, the old sentencing and parole laws incorporated a presumption that even persons
sentenced to life imprisonment would be released after no more than 30 years.
“In the context of the individuals responsible for the hijacking incidents described
above, most of th perpetrators were no older than in their twenties when they committed
their crimes. The imposition of a pre-Guidelines sentence of life imprisonment for these
defendants means that many, if not all of them, could be expect to be released from prison
well within their lifetime. Given the gravity of these offenses, coupled with the
longstanding Congressional intent to have a death penalty available for the offense of air
piracy resulting in death, such a result would be at odds with the clear directive of
Congress,” H.Rept. 109-333, at 101 (2005).
Section 212. 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).114
Section 212 amends section 3583 to eliminate the requirement that the
defendant be convicted of a crime involving a foreseeable risk of injury; conviction
of any federal crime of terrorism is sufficient, proposed 18 U.S.C. 3583(j).
Section 221. Capital Procedures in Drug Cases.
Federal law provides two sets of death penalty procedures for capital drug cases,
the procedures applicable in federal capital cases generally, 18 U.S.C. 3591-3598,
and the procedures specifically applicable in federal capital drug cases, 21 U.S.C.
114 The federal crimes of terrorism are violations of: 18 U.S.C. 32 (destruction of aircraft
or aircraft facilities), 37 (violence at international airports), 81 (arson within special
maritime and territorial jurisdiction), 175 or 175b (biological weapons), 175c (variola virus),
cabinet, and Supreme Court assassination and kidnaping), 831 (nuclear materials), 842(m)
or (n) (plastic explosives), 844(f)(2) or (3) (arson and bombing of Government property
risking or causing death), 844(i) (arson and bombing of property used in interstate
commerce), 930(c) (killing or attempted killing during an attack on a Federal facility with
a dangerous weapon), 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad),
1030(a)(1) (protection of computers), 1030(a)(5)(A)(i) resulting in damage as defined in
1030(a)(5)(B) (ii) through (v) (protection of computers), 1114 (killing or attempted killing
of officers and employees of the United States), 1116 (murder or manslaughter of foreign
officials, official guests, or internationally protected persons), 1203 (hostage taking), 1361
(government property or contracts), 1362 (destruction of communication lines, stations, or
systems), 1366(a) (destruction of an energy facility), 1751(a), (b), (c), or (d) (Presidential
and Presidential staff assassination and kidnaping), 1992 (train wrecking), 1993 (terrorist
attacks and other acts of violence against mass transportation systems), 2155 (destruction
of national defense materials, premises, or utilities), 2156 (national defense material,
premises, or utilities), 2280 (violence against maritime navigation), 2281 (violence against
maritime fixed platforms), 2332 (certain homicides and other violence against United States
nationals occurring outside of the United States), 2332a (use of weapons of mass
destruction), 2332b (acts of terrorism transcending national boundaries), 2332f (bombing
of public places and facilities), 2332g (missile systems designed to destroy aircraft), 2332h
(radiological dispersal devices), 2339 (harboring terrorists), 2339A (providing material
support to terrorists), 2339B (providing material support to terrorist organizations), 2339C
(financing of terrorism), 2340A (torture); 42 U.S.C. 2122 (prohibitions governing atomic
weapons), 2284 (sabotage of nuclear facilities or fuel); 49 U.S.C. 46502 (aircraft piracy),
the second sentence of 46504 (assault on a flight crew with a dangerous weapon),
46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of human life by
means of weapons, on aircraft), 46506 if homicide or attempted homicide is involved
(application of certain criminal laws to acts on aircraft), and 60123 (b) (destruction of
interstate gas or hazardous liquid pipeline facility). Section 112 of the Conference bill adds
18 U.S.C. 2339D(foreign military training) and 21 U.S.C. 1010A (narco-terrorism) to the
list, proposed 18 U.S.C. 2332b(g)(5)(B).
141 (N.D.N.Y. 2002). Section 221 eliminates the specific drug case procedures so
that only the general procedures apply in such cases. From the perspective of the
conferees, it “eliminates duplicative death procedures under title 21 of the United
States code, and consolidates procedures governing all Federal death penalty
prosecutions in existing title 18 of the United States Code, thereby eliminating
confusing requirements that trial courts provide two separate sets of jury
instructions,” H.Rept. 109-333, at 102 (2005).
Section 222. Appointment of Counsel in Capital Cases.
The federal capital drug provisions now house provisions for the appointment
of counsel to assist indigents facing federal capital charges and indigent federal and
state death row inmates during federal habeas proceedings, 21 U.S.C. 848(q)(4)-(10).
Section 222 transfers the provisions to title 18, proposed 18 U.S.C. 3599.
Title II House Proposals Dropped in Conference.
The conferees declined to carry forward several proposals found in the House
bill. Thus, the Conference bill has no provision comparable to:
- Section 211 of the House bill which created a new federal offense which
outlawed committing a terrorist offense resulting in death and which was
punishable by death or imprisonment for any term of years or for life, proposed
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).
- Section 212 of the House bill which authorized federal courts sentencing a
defendant for a terrorist offense, as defined in 18 U.S.C. 2339E, to a term of
federal benefit ineligibility for any term of years or for life, proposed 18 U.S.C.
- Section 214 of the House bill would have added 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 created 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. 3592(b)(4).
- Section 231 of the House bill which changed 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). Then, it made three
aggravating factor changes: (a) amending the “hired the killer” factor to include
situations where the defendant merely created the expectation that the killer
would be paid, proposed 18 U.S.C. 3592(c)(7); (b) adding 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); and (c) creating 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). Finally, it made changes in capital juries by: (a) permitting the
court to impanel a new sentencing jury if the initial panel was unable to reach
a unanimous death penalty verdict, proposed 18 U.S.C. 3593(b)(2)(E), 3594; (b)
allowing sentencing by juries of less than 12 members without the consent of the
accused when the court found good cause, proposed 18 U.S.C. 3593(b); (c)
increasing the number of regular government peremptory challenges to 9 and
permitting each side 4 additional peremptory alternate juror challenges when
either 7, 8 or 9 alternates jurors were impaneled, proposed F.R.Crim.P. 25(b)(2),
Title III: Seaport Terrorism
Title III of the Conference bill mirrors provisions in the House passed bill
offered the conferees; it has no counterpart in the Senate bill. But it does reflect the
provisions of S. 378, Reducing Crime and Terrorism at America’s Seaports Act of
2005. S. 378, reported by the Senate Judiciary Committee without written report
earlier this year, 151 Cong. Rec. 4108 (daily ed. April 21, 2005), dating in part from
earlier legislative proposals115 including the Clinton Administration’s proposed 21stth
Century Law Enforcement and Public Safety Act, introduced as S. 2783 in the 106
Congress and endorsed in some its particulars by the pre-9/11, Interagency116
Commission on Crime and Security in U.S. Seaports.
Section 301. Short Title.
Section 301 designates Title III the “Reducing Crime and Terrorism at
America’s Seaports Act of 2005.”
Section 302. Seaport Entry by False Pretenses.
The Maritime Transportation Security Act requires the submission to the
Department of Homeland Security of vessel and facility security plans that include
provisions for establishing and controlling secure areas, 46 U.S.C. 70103(c). The act
also calls for issuance of transportation security cards in order to regulate access to
secure areas, 46 U.S.C. 70105. The act contains no specific provisions regarding
trespassing upon security areas, but the Coast Guard and Maritime Transportation
Act amended its provisions in a manner that suggests the application of state criminal
laws as well as criminal sanctions found in the Deepwater Port Act, 33 U.S.C. 1514
(imprisonment for not more than one year); the Ports and Waterways Safety Act, 33
115 See, e.g., S. 899, the 21st Century Justice Act of 1999.
116 Report of the Interagency Commission on Crime and Security in U.S. Seaports (Fall
2000), available on Jan. 13, 2006 at [http://www.securitymanagement.com
U.S.C. 1232 (imprisonment for not more than 10 years); and the act of June 15, 1917,
As a general matter, it is a federal crime to use fraud or false pretenses to enter
federal property, a vessel or aircraft of the United States, or the secured area in an
airport, 18 U.S.C. 1036. The offense is punishable by imprisonment for not more
than five years if committed with the intent to commit a felony and imprisonment for
not more six months in other cases, id. The same maximum penalty applies to
making a false statement to federal officials or in any matter within the jurisdiction
of a federal agency or department, 18 U.S.C. 1001. Possession of phony government
identification to defraud the U.S. is a one year felony absent further aggravating
circumstances under which the sanctions are increased, 18 U.S.C. 1028 (a)(4), (b)(6).
Moreover, except to the extent covered by 18 U.S.C. 1036 or 18 U.S.C. 1863
(trespassing in the national forests), unlawful entry to property (federal or otherwise)
with the intent to commit a second crime is punishable under the laws of the state in
which it occurs, cf., 18 U.S.C. 13.
Section 302 expands 18 U.S.C. 1036 to cover seaports and increases the penalty,
for violations with respect to any of the protected areas committed with the intent to
commit a felony, from imprisonment for not more than five years to imprisonment
for not more than 10 years, proposed 18 U.S.C. 1036.118 The section also provides
a definition of “seaport,” proposed 18 U.S.C. 26.119
117 46 U.S.C. 70119 expressly authorizes state and local law enforcement officers to make
arrests for violations of these Acts, and notes that the authority is in addition and should not
be construed to limit any other authority they may possess.
118 “(a)Whoever, by any fraud or false pretense, enters or attempts to enter — (1) any real
property belonging in whole or in part to, or leased by, the United States; (2) any vessel or
aircraft belonging in whole or in part to, or leased by, the United States; (3) any secured or
restricted area of any seaport, designated as secure in an approved security plan, as
required under section 70103 of title 46, United States Code, and the rules and regulations
promulgated under that section; or (4) any secure area of any airport, shall be punished as
provided in subsection (b) of this section.
“(b) The punishment for an offense under subsection (a) of this section is — (1) a fine
under this title or imprisonment for not more than [5 years] 10 years, or both, if the offense
is committed with the intent to commit a felony; or (2) a fine under this title or
imprisonment for not more than 6 months, or both, in any other case,” proposed 18 U.S.C.
119 “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.
The term “seaport” does not appear to have been used in any other section of title 18;
elsewhere in federal law the term “port” is more commonly used, see, e.g., 6 U.S.C. 468
(Coast Guard’s homeland security mission), 18 U.S.C. 2199(stowaways), perhaps to make
clear that ports such as those on Great Lakes are covered notwithstanding the fact they may
not ordinarily be thought of as “seaports.”
The conference report quotes the Interagency Commission report and describes
the problems the amendments are designed to address:
According to the Report of the Interagency Commission . . . ‘[c]ontrol of access
to the seaport or sensitive areas within the seaport is often lacking.’ Such
unauthorized access is especially problematic, because inappropriate controls
may result in the theft of cargo and more dangerously, undetected admission of
terrorists. In addition to establishing appropriate physical, procedural, and
personnel security for seaports, it is important that U.S. criminal law adequately
reflect the seriousness of the offense. H.Rept. 109-333, at 103 (2005).
But, critics might point out, the section does not deal with all “unauthorized
access” only access accomplished by fraud. And even if the seriousness of such
unauthorized access to seaport restricted areas with criminal intent might warrant
imprisonment for up to 10 years, there is nothing in conference or Commission
reports to explain the necessity for the comparable penalty increase for the other
forms of trespassing upon the other areas covered under section 1036. Or so critics
Section 303. Obstructing Maritime Inspections. Various federal laws
prohibit the failure to heave to or otherwise obstruct specific maritime inspections120
under various circumstances.
Section 303 replicates section 303 of the House bill and 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.
Section 304. 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.121
Section 304, like section 305 of the House bill creates two new federal crimes,
One makes it a federal crime punishable by imprisonment for any term of years or for
life (or the death penalty if death results) to place a dangerous substance or device in
120 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).
121 For example, section 2280, which among other things, “prohibits destroy[ing] a ship or
caus[ing] damage to a ship or to its cargo which is likely to endanger the safe navigation of
that ship” or attempting or conspiring to do so is punishable by imprisonment for not more
than 20 years or if death results by death or imprisonment for life or any term of years, 18
the navigable waters of the United States with the intent to damage a vessel or its
cargo or to interfere with maritime commerce, proposed 18 U.S.C. 2282A. Critics
may wonder why the existing penalty structure was considered insufficient.
The second of section 304’s provisions makes it a federal crime punishable by
imprisonment for not more than 20 years to tamper with any navigational aid
maintained by the Coast Guard or St. Lawrence Seaway Development Corporation
in manner likely to endanger navigation, proposed 18 U.S.C. 2282B. Opponents may
find the sanctions a bit stiff, but in the words of the conference report, “the Coast
Guard maintains over 50,000 navigational aids on more than 25,000 miles of
waterways. These aids . . are inviting targets for terrorists,” H.Rept. 109-333, at 103
(2005). There may also be some question why the new section is necessary if 18
U.S.C. 2291(a)(3) as proposed in section 306 of the Conference bill is enacted, since
that subsection states, “Whoever knowingly . . . damages, destroys, or disables . . .
any aid to navigation . . . shall be . . . imprisoned not more than 20 years;” see also,
proposed 18 U.S.C. 2291(a)(4)(“Whoever knowingly interferes by force or violence
with the operation of . . . any aid to navigation . . ., if such action is likely to endanger
the safety of any vessel in navigation”).
Section 305. Transporting Dangerous Materials or Terrorists.
Like section 306 of the House bill before it, section 305 of the Conference bill
establishes two other federal terrorism-related transportation offenses, one for
transporting dangerous materials and the other for transporting 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 years or for life.122 And although the
penalties vary, it is likewise a federal crime to commit any federal crime of
terrorism.123 Morever, it is a federal crime to provide material support, including
transportation, for commission of various terrorist crimes or for the benefit of a
designated terrorist organization, 18 U.S.C. 2339A, 2339B, or to transport explosives
in interstate or foreign commerce with the knowledge they are intended to be used
in injure an individual or damage property, 18 U.S.C. 844(d). Most of these offenses
condemn attempts and conspiracies to commit them, and accomplices and
coconspirators incur comparable liability in any event.124
Section 305 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, proposed 18 U.S.C. 2283. 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.
122 18 U.S.C. 175, 229, 831; 42 U.S.C. 2272.
123 Each crime designated in 18 U.S.C. 2332b(g)(5)(B) carries its own penalty.
124 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 in125
the penalties available for committing many of them.
Section 305 creates a new federal offense, proposed 18 U.S.C. 2284, punishable
by imprisonment for any term of years or for life for transporting an individual
knowing he intends to commit, or is fleeing from the commission of, a federal crime
of terrorism. Unlike the new 18 U.S.C. 2282A(c), created in section 304, neither of
the section 305 offenses have an explicit exception for official activities. Of course,
even though facially the new section 2284 forbids transportation terrorists for
purposes of extradition or prisoner transfer, it would never likely be read or applied
to prevent or punish such activity.
Section 306. Interference With Maritime Navigation.
Chapter 111 of title 18 of the United States Code relates to shipping and by and
large outlaws violence in various forms committed against vessels within U.S.
jurisdiction.126 Other sections of the Code proscribe the use of fire, explosives or
violence with sufficient breath of protect shipping under some circumstances. For
example, one section condemns the use fire or explosives against property used in (or
used in an activity affecting) interstate or foreign commerce, 18 U.S.C. 844(i).
Another prohibits destruction of property within the maritime jurisdiction of the
Untied States, 18 U.S.C. 1363, and a third, arson within the maritime jurisdiction, 18
U.S.C. 81. Hoaxes relating to violations of chapter 111 are punishable by
imprisonment for not more than five years (not more than 20 years if serious injury
results and if death results, by imprisonment for any term of years or for life or by
death), 18 U.S.C. 1038.
Section 306 of the Conference bill follows the lead of section 307 of the House
bill by enacting a new chapter 111A supplementing chapter 111 as well as section
proscribing hoaxes and the destruction of vessels or maritime facilities, proposed 18
U.S.C. 2291, 2292; and two procedural, one providing the jurisdictional base for the
125 For example, destruction of aircraft or violence at international airports in violation of
18 U.S.C. 32 and 73 respectively are punishable by imprisonment for not more than 20
years, unless a death results; and the same penalties apply to computer fraud and abuse
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.
126 The offenses include 18 U.S.C. 2271 (conspiracy to destroy vessels), 2272 (destruction
of vessel by owner); 2273 (destruction of vessel by nonowner); 2274 (destruction or misuse
of vessel by person in charge); 2275 (firing or tampering with vessel), 2276 (breaking and
entering a vessel); 2277 (explosives or dangerous weapons aboard vessels); 2278
(explosives on vessels carrying steerage passengers); 2279 (boarding vessels before arrival);
2280 (violence against maritime navigation); and 2281 (violence against maritime fixed
substantive offenses, proposed 18 U.S.C. 2290, and the other barring prosecution of
certain misdemeanor or labor violations, proposed 18 U.S.C. 2993.
According to the conference report, “this section harmonizes the somewhat
outdated maritime provisions with the existing criminal sanctions for destruction or
interference with an aircraft or aircraft facilities in 18 U.S.C. 32, 34, and 35,” H.Rept.
109-333, at 104 (2005). It is not surprising therefore that the new destruction offense
mirrors the substantive provisions for the destruction of aircraft and their facilities,
First, it has exceptions for lawful repair and salvage operations and for the lawful
transportation of hazardous waste, proposed 18 U.S.C. 2291(b). Second, in the
manner of 18 U.S.C. 1993 (attacks on mass transit), it pushes up the penalty
violations involving attacks on conveyances carrying certain hazardous materials to
life imprisonment, proposed 18 U.S.C. 2291(c). Third, it tightens the “death results”
sentencing escalator so that a sentence of death or imprisonment for life or any term
of years is only warranted if the offender intended to cause the resulting death,
proposed 18 U.S.C. 2291(d).128
127 “Whoever knowingly — (1) sets fire to, damages, destroys, disables, or wrecks any
vessel; (2) places or causes to be placed a destructive device or substance, as defined in
section 31(a)(3), or explosive, as defined in section 844(j) in, upon, or near, or otherwise
makes or causes to be made unworkable or unusable or hazardous to work or use, any vessel,
or any part or other materials used or intended to be used in connection with the operation
of a vessel; (3) sets fire to, damages, destroys, disables or places a destructive device or
substance in, upon, or near, any maritime facility, including any aid to navigation, lock,
canal, or vessel traffic service facility or equipment; (4) interferes by force or violence with
the operation of any maritime facility, including any aid to navigation, lock, canal, or vessel
traffic service facility or equipment, if such action is likely to endanger the safety of any
vessel in navigation; (5) sets fire to, damages, destroys, or disables or places a destructive
device or substance in, upon, or near, any appliance, structure, property, machine, or
apparatus, or any facility or other material used, or intended to be used, in connection with
the operation, maintenance, loading, unloading or storage of any vessel or any cargo carried
or intended to be carried on any vessel; (6) performs an act of violence against or
incapacitates any individual on any vessel, if such act of violence or incapacitation is likely
to endanger the safety of the vessel or those on board; (7) performs an act of violence
against a person that causes or is likely to cause serious bodily injury, as defined in section
1365(h)(3), in, upon, or near, any appliance, structure, property, machine, or apparatus, or
any facility or other material used, or intended to be used, in connection with the operation,
maintenance, loading, unloading or storage of any vessel or any cargo carried or intended
to be carried on any vessel; (8) communicates information, knowing the information to be
false and under circumstances in which such information may reasonably be believed,
thereby endangering the safety of any vessel in navigation; or (9) attempts or conspires to
do anything prohibited under paragraphs (1) through (8) of this subsection, shall be fined
under this title or imprisoned not more than 20 years, or both,” proposed 18 U.S.C. 2291(a).
Section 2280 carries the same basic 20 year maximum sanction; the House bill set the
maximum at 30 years, the sanction that applies to attacks on mass transit, 18 U.S.C. 1993
(proposed 18 U.S.C. 1992). The other sections cited in the report refer to the death penalty
(18 U.S.C. 34) and hoax (18 U.S.C. 35) provisions relating to violations of 18 U.S.C. 32.
128 This last difference is the work of the conferees, it did not appear in the House passed
In addition to these, the substantive prohibitions of proposed section 2291 differ
from the otherwise comparable prohibitions of 18 U.S.C. 2280 in two major respects.
The proscriptions in section 2280 and those of section 32 generally require that the
prohibited damage adversely impact on safe operation;129 proposed section 2291 is
less likely to feature a comparable demand.
On the other hand, because it is treaty-based, section 2280 enjoys a broader
jurisdictional base than proposed section 2290 is able to provide for proposed section
2291. By virtue of proposed section 2290, a violation of proposed section 2291 is
only a federal crime if it is committed within the United States, or the offender or
victim is a U.S. national, or the vessel is a U.S. vessel, or a U.S. national is aboard
the vessel involved.130 In the case of subsection 32(b) or section 2280 there need be
no more connection to the United States than that the offender is subsequently found
or brought here, 18 U.S.C. 32(b), 2280(b)(1)(c). Like section 2280, however,
proposed section 2291 is subject to exceptions for misdemeanor offenses and labor
Proposed section 2292 creates a hoax offense in the image of 18 U.S.C. 35
which relates to hoaxes in an aircraft context. It sets a basic civil penalty of not more
than $5000 for hoaxes involving violations of the new proposed section 2291 or of
chapter 111, the existing shipping chapter.132 If the misconduct is committed
129 “A person who unlawfully and intentionally — (A) seizes or exercises control over a
ship by force or threat thereof or any other form of intimidation; (B) performs an act of
violence against a person on board a ship if that act is likely to endanger the safe navigation
of that ship; (C) destroys a ship or causes damage to a ship or to its cargo which is likely to
endanger the safe navigation of that ship; (D) places or causes to be placed on a ship, by any
means whatsoever, a device or substance which is likely to destroy that ship, or cause
damage to that ship or its cargo which endangers or is likely to endanger the safe navigation
of that ship; (E) destroys or seriously damages maritime navigational facilities or seriously
interferes with their operation, if such act is likely to endanger the safe navigation of a ship;
(F) communicates information, knowing the information to be false and under circumstances
in which such information may reasonably be believed, thereby endangering the safe
navigation of a ship; (G) injures or kills any person in connection with the commission or
the attempted commission of any of the offenses set forth in subparagraphs (A) through (F);
or (H) attempts or conspires to do any act prohibited under subparagraphs (A) through (G),
shall be fined under this title, imprisoned not more than 20 years, or both; and if the death
of any person results from conduct prohibited by this paragraph, shall be punished by death
or imprisoned for any term of years or for life,”18 U.S.C. 2280(a)(1).
130 The conferees added this last jurisdictional basis; it has no counterpart in the House bill.
131 “It is a bar to prosecution under this chapter if — (1) if the conduct in question occurred
within the United States in relation to a labor dispute, and such conduct is prohibited as a
felony under the law of the State in which it was committed; or (2) such conduct is
prohibited as a misdemeanor, and not a felony, under the law of the State in which it was
committed,” proposed 18 U.S.C. 2293(a). The conferees added this section; the House bill
has no such provision.
132 “Whoever imparts or conveys or causes to be imparted or conveyed false information,
knowing the information to be false, concerning an attempt or alleged attempt being made
or to be made , to do any act that would be a crime prohibited by this chapter or by chapter
111 of this title, shall be subject to a civil penalty of not more than $5,000, which shall be
“knowingly, intentionally, maliciously, or with reckless disregard for the safety of
human life” it is punishable by imprisonment for not more than five years.133 The
conferees added a requirement that in both instances jurisdiction over the offense is
governed by the jurisdiction of the offense that is the subject to the hoax.134
In the case of hoaxes involving violations of chapter 111, the proposed new
section affords the government an alternative ground for prosecution to that offered
by 18 U.S.C. 1038.
Section 307. Theft From Maritime Commerce.
Section 307 is one area where the text of the Conference bill and the Conference
report diverge. The House bill and the Conference report describe a series of
amendments that do essentially two things: they expand or at least clarify the
application of various criminal provisions particularly in the case of maritime
commerce and they increase the maximum penalties for two of the offenses to 15
years. The text of the Conference bill carries forward the first objective but
maintains maximum penalties ceiling at 10 years.
Theft From Interstate Commerce. Federal law prohibits theft from
shipments traveling in interstate or foreign commerce; violations are punishable by
imprisonment for not more than 10 years (not more than one year if the value of the
property stolen is $1000 or less), 18 U.S.C. 659.
Section 307 increases the penalty for theft of property valued at $1000 or less
to imprisonment for not more than three years, proposed 18 U.S.C. 659. It also
makes it clear that theft from trailers, cargo containers, freight stations, and
warehouses are covered, and that the theft of goods awaiting transshipment is also
covered, 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
recoverable in a civil action brought in the name of the United States,” proposed 18 U.S.C.
133 “Whoever knowingly, intentionally, maliciously, or with reckless disregard for the
safety of human life, imparts or conveys or causes to be imparted or conveyed false
information, knowing the information to be false, concerning an attempt or alleged attempt
being made or to be made, to do any act that would be a crime prohibited by this chapter or
by chapter 111 of this title, shall be fined under this title or imprisoned not more than 5
years,” proposed 18 U.S.C. 2292(b).
134 “Jurisdiction over an offense under this section shall be determined in accordance with
the provisions applicable to the crime prohibited by this chapter, or by chapter 111 of this
title, to which the imparted or conveyed false information relates, as applicable,” proposed
Section 307 expands the coverage of federal law to cover the interstate or
foreign transportation of a stolen vessel and receipt of a stolen vessel that has been
transported in interstate or overseas, proposed 18 U.S.C. 2311. 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.
Section 308. 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 308 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. Unlike the House bill, the “death results” capital punishment
provision of the Conference bill is only triggered if the offender intended to cause a
death, proposed 18 U.S.C. 2199(3).
Section 309. 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.135 Those who aid and abet or
conspire for the commission of such crimes are subject to sanctions.136
Section 309 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.
Section 310. 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 310 increases the penalty for smuggling to
imprisonment for not more than 20 years, proposed 18 U.S.C. 545.
Section 311. 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
135 See, e.g., 18 U.S.C. 32 (destruction of aircraft, 20 years), 81 (arson, 25 years), 2332a
(weapons of mass destruction, life imprisonment).
136 18 U.S.C. 2; United States v. Pinkerton, 340 U.S. 640 (1946).
(although the symmetry would disappear when section 310 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.137
Section 311 creates a new federal crime which outlaws smuggling goods out of
the United States; offenders face imprisonment for not more than 10 years, proposed
corresponding changes in federal forfeiture and custom laws become a possibility.
Federal law proscribes laundering the proceeds of various federal crimes
(predicate offenses), 18 U.S.C. 1956, 1957. Smuggling goods into the U.S. in
violation of 18 U.S.C. 545 is a money laundering predicate offense, 18 U.S.C.
1956(c)(7)(D). The proceeds involved in financial transactions in violation of the
money laundering statutes are generally subject to confiscation, 18 U.S.C.
981(a)(1)(A). Section 311 adds the new overseas smuggling crime, proposed 18
U.S.C. 554, to the money laundering predicate offense list, proposed 18 U.S.C.
Federal law calls for the confiscation of goods smuggled into the United States
and of the conveyances used to smuggle them in, 19 U.S.C. 1595a. Section 311 calls
for the confiscation of goods smuggled out of the U.S. and of any property used to
facilitate the smuggling, 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 311 increases the penalty to imprisonment for not more than 10
years, proposed 18 U.S.C. 549.
Title III House Proposals Dropped in Conference.
Two sections found in the House bill do not appear in the Conference bill.
Section 309 of the House bill that increased sanctions for failure to comply with
shipping manifest request requirements was dropped. Section 304 of the House bill
that made it clear that the prohibition on attacks on mass transit covered attacks on
passenger vessels became part of section 111 of Conference bill that rewrites 18
U.S.C. 1992 (train wrecking) and merges it with 18 U.S.C. 1993 (attacks on mass
Title IV: Terrorism Financing
The bill the Senate sent to conference had no money laundering provisions; the
bill the House sent had several which appear in the Conference bill either as amended
or as passed by the House prior to conference. The conferees inserted a new
provision, unknown to either of the bills that entered conference, that might be
construed to permit pre-trial asset freezes in certain civil forfeiture cases made part
of the property owner’s criminal trial.
137 See, e.g., 31 U.S.C. 5332 (bulk cash), 21 U.S.C. 953 (controlled substances), 18 U.S.C.
Section 401. Short Title.
The short title of Title IV is the “Combating Terrorism Financing Act of 2005.”
Section 402. International Emergency Economic Powers Act
The International Emergency Economic Powers Act, 50 U.S.C. 1701-1707,
grants the President the power to impose economic restrictions “to deal with unusual
and extraordinary [external] threats to the national security, foreign policy, or
economy of the United States,” 50 U.S.C. 1701(a). The authority has been invoked
among other instances to block Iranian assets, Exec. Order No. 12170, 44 Fed.Reg.
Order No. 12543, 51 Fed.Reg. 875 (Jan. 7, 1986); to impose economic sanctions on
countries found to be contributing to the proliferation of weapons of mass
destruction, Exec. Order No. 12938, 59 Fed. Reg. 59099 (Nov. 14, 1994); to block
the assets and prohibit financial transactions with significant narcotics traffickers, 60
Fed.Reg. 54579 (Oct. 21, 1995); and to block the property and prohibit transactions
with persons who commit, threaten to commit, or support terrorism, Exec. Order No.
Violations of presidential orders or related regulations 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.
The Conference bill carries forward the provisions of the House bill which
increased the maximum term of imprisonment to 20 years and changed the maximum
civil penalty to $50,000, proposed 50 U.S.C. 1705.
Section 403. Terrorist Money Laundering.
RICO. The federal Racketeer Influenced and Corrupt Organizations (RICO) law
imposes severe penalties (up to 20 years imprisonment) for acquiring or operating an
enterprise through the commission of a pattern of other crimes (predicate offenses),
18 U.S.C. 1961-1965. One federal money laundering statute, prohibits, among other
things, using the funds generated by the commission of a predicate offense in a
financial transaction designed to conceal the origin of the funds or promote further
predicate offenses, 18 U.S.C. 1956. A second statute condemns financial
transactions involving more than $10,000 derived from a predicate offense, 18 U.S.C.
1957. Crimes designated RICO predicate offenses automatically qualify as money
laundering predicate offenses, 18 U.S.C. 1956(c)(7)(A), 1957(f)(3). Property
associated with either a RICO or money laundering violation is subject to
confiscation, but RICO forfeiture requires conviction of the property owner, 18
U.S.C. 1963, money laundering forfeiture does not, 18 U.S.C. 1956, 1957, 981.
It is a federal crime to operate a business that transmits money overseas either
directly or indirectly, without a license, or for a licensed business to either fail to
comply with applicable Treasury Department regulations or to transmit funds that it
knows will be used for, or were generated by, criminal activities, 18 U.S.C. 1960.
The Conference bill, like the House bill, adds 18 U.S.C. 1960 (money
transmitters) to the RICO predicate offense list and consequently to the money
laundering predicate offense list, proposed 18 U.S.C. 1961(1). The House version
also added 8 U.S.C. 1324a (employing aliens) to the RICO list; the Conference bill
Direct Money Laundering Predicates. Nor did the conferees accept
addition of 42 U.S.C. 408 (misuse of a social security number) to the money
laundering predicate offense list as the House version had proposed. The conferee’s
handling of related House proposals is less clear. Section 403(b) of the House bill
reenacted two provisions of prior law. The Conference bill reenacts only one; the
Conference report states that the bill reenacts both.
Section 403(b) of the House bill stated, “Section 1956(c)(7)(D) of title 18,
United States Code, is amended by — (1) inserting, ‘, or section 2339C (relating to
financing of terrorism)’ before ‘of this title’; and (2) striking ‘or any felony violation
of the Foreign Corrupt Practices Act’ and inserting “any felony violation of the
Foreign Corrupt Practices Act, or any violation of 208 of the Social Security Act [42
U.S.C. 408] (relating to obtaining funds through misuse of a social security
Both the addition of section 2339C and the grammatical charge relating to the
Foreign Corrupt Practices Act (dropping the “or” before the reference) are redundant.
The Intelligence Reform and Terrorism Prevention Act made the Foreign Corrupt
Practices related grammatical fix, 118 Stat. 3774 (2004). Section 2339C is already
among the offenses found in the definition of federal crimes of terrorism, 18 U.S.C.
2332b(g)(5)(B), all of which are automatically RICO predicates and thus money
laundering predicates as well, 18 U.S.C. 1961(1)(G).
The Conference bill states, “Section 1956(c)(7)(D) of title 18, United States
Code, is amended by striking ‘or any felony violation of the Foreign Corrupt
Practices Act’ and inserting “any felony violation of the Foreign Corrupt Practices
Act,” proposed 18 U.S.C. 1956(c)(7)(D). Thus, in its text the Conference bill drops
the House proposal regarding the Social Security offense, 42 U.S.C. 408, and the
redundant terrorism offense, 18 U.S.C. 2339C, from the proposal to amend the
money laundering list but carries forward the redundant grammatical fix. The
Conference report indicates, however, that the conferees intended to carry forward
the terrorism offense as well, “Subsection (b) directly adds as money laundering
predicates the new terrorist-financing offense in 18 U.S.C. 2339C,” H.Rept. 109-333,
at 106 (2005).
Investigative Jurisdiction. The Conference bill carries forward the House
language concerning the money laundering investigative jurisdiction of various
components of the Department of Homeland Security, proposed 18 U.S.C. 1956(e),138
138 “Violations of this section may be investigated by such components of the Department
of Justice as the Attorney General may direct, and by such components of the Department
of the Treasury as the Secretary of the Treasury may direct, as appropriate and, with respect
avoid duplication of efforts, and because investigative agencies share in the
distribution of forfeited property to the extent of their participation in the
investigation that led to confiscation, 18 U.S.C. 981(d), (e); 19 U.S.C. 1616a.
Section 404. Forfeiture for Foreign Crimes.
The property of individuals and entities that prepare for or commit acts of
international terrorism against the United States or against Americans is subject to
federal confiscation, 18 U.S.C. 981(a)(1)(G). Criminal forfeiture is confiscation that
occurs upon conviction for a crime for which forfeiture is a consequence, e.g., 18
U.S.C. 1963 (RICO). Civil forfeiture is confiscation accomplished through a civil
proceeding conducted against the “offending” property based on its relation to a
crime for which forfeiture is a consequence, e.g., 18 U.S.C. 981. Criminal forfeiture
is punitive; civil forfeiture is remedial, Calderon-Toledo v. Pearson Yacht Leasing,
416 U.S. 663, 683-88 (1974). A convicted defendant may be required to surrender
substitute assets if the property subject to criminal forfeiture is located overseas or
otherwise beyond the reach of the court, 18 U.S.C. 853(p). Civil forfeiture ordinarily
requires court jurisdiction over the property, but when forfeitable property is held
overseas in a financial institution that has a correspondent account in this country the
federal government may institute and maintain civil forfeiture proceedings against
the funds in the interbank account here, 18 U.S.C. 9871(k).
Article III, section 2 of the 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.139 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
to offenses over which the Department of Homeland Security has jurisdiction, by such
components of the Department of Homeland Security as the Secretary of Homeland Security
may direct, and, with respect to offenses over which the United States Postal Service has
jurisdiction, by the Postal Service. Such authority of the Secretary of the Treasury, the
Secretary of Homeland Security, and the Postal Service shall be exercised in accordance
with an agreement which shall be entered into by the Secretary of the Treasury, the
Secretary of Homeland Security, the Postal Service, and the Attorney General. Violations
of this section involving offenses described in paragraph (c)(7)(E) may be investigated by
such components of the Department of Justice as the Attorney General may direct, and the
National Enforcement Investigations Center of the Environmental Protection
Agency,”proposed 18 U.S.C. 1956(e)(language added by the Conference bill in italics);
proposed 18 U.S.C. 1957(e) has similar language.
139 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”).
beyond mere ownership by the defendant.140 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.
The Conference bill, like the House bill, 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.141 The section contemplates forfeiture of
property located both here and abroad; for in refers to “all assets, foreign and
domestic, but with respect to property located outside of the United States, it requires
an act in furtherance of the terrorism to “have occurred within the jurisdiction of the
United States,” 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.
Section 405. Application of the Money Laundering Statute to
Money laundering in violation of 18 U.S.C. 1956 may take either of two forms
(1) engaging in a prohibited financial transaction involving the proceeds of a
predicate offense, 18 U.S.C. 1956(a)(1), or (2) internationally transporting,
transmitting, or transferring the proceeds of a predicate offense, 18 U.S.C.
1956(a)(2). The House bill presented to the conferees extended both the financial
transaction and the international transmission offenses to include related, parallel
transactions and transmissions, proposed 18 U.S.C. 1956(j)(1), (2). The Conference
140 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).
141 “The following property is subject to forfeiture to the United States . . . (G) All assets,
foreign or domestic . . . (iv) of any individual, entity, or organization engaged in planning
or perpetrating any act of international terrorism (as defined in section 2331) against any
international organization (as defined in section 209 of the State Department Basic
Authorities Act of 1956 (22 U.S.C. 4309(b) or against any foreign Government. Where the
property sought forfeiture is located beyond the territorial boundaries of the United States,
an act in furtherance of such planning or perpetration must have occurred within the
jurisdiction of the United States,” proposed 18 U.S.C. 981(a)(1)(G)(iv).
bill enlarges only the financial transaction proscription, proposed 18 U.S.C.
As the Conference report explains, the amendment addresses a feature of the
often informal networks for transfer money overseas.
Alternative remittance systems are utilized by terrorists to move and
launder large amounts of money around the globe quickly and secretly. These
remittance systems, also referred to as “hawala” networks, are used throughout
the world, including the Middle East, Europe, North American and South Asia.
These systems are desirable to criminals and non-criminals alike because of the
anonymity, low cost, efficiency, and access to underdeveloped regions. The
United States has take steps to combat the”hawala” networks by requiring all
money transmitters, informal or form, to register as money service businesses.
Under current Federal law, a financial transaction constitutes a money laundering
offense only if the funds involved in the transaction represent the proceeds of
some criminal offense. . . There is some uncertainty, however, as to whether the
“proceeds element” is satisfied with regard to each transaction in a money
laundering scheme that involves two or more transactions conducted in parallel,
only one of which directly makes use of the proceeds from unlawful activity. For
example, consider the following transaction: A sends drug proceeds to B, who
deposits the money in Bank Account 1. Simultaneously or subsequently, B takes
an equal amount of money from Bank Account 2 and sends it to A, or to a person
designated by A. The first transaction from A to B clearly satisfies the proceeds
element of the money laundering statute, but there is some question as to whether
the second transaction — the one that involves only funds withdrawn form Bank
Account 2 does so as well. The question has become increasingly important
because such parallel transactions are the technique used to launder money
through the Black Market Peso Exchange and “hawala” network, H.Rept. 109-
Sections 406-408. Technical Amendments.
As suggested in the bill the House sent to conference, the Conference bill
corrects a number of typographical and grammatical errors in existing law including
changing the reference in section 322 of the USA PATRIOT Act, 115 Stat. 315
(2001), from 18 U.S.C. 2466(b) to 28 U.S.C. 2466(b); changing the phrase “foreign
bank” to “foreign financial institution” in 18 U.S.C. 981(k)(relating to forfeiture and
interbank accounts); correcting a reference to the Intelligence Reform and Terrorism
Prevention Act, proposed 31 U.S.C. 5318(n)(4)(A); capitalizing a reference in the
Intelligence Reform and Terrorism Prevention Act (amending 18 U.S.C. 2339C
rather than 18 U.S.C. 2339c); and codifying the forfeiture procedure passed as
section 316 of the USA PATRIOT Act, 115 Stat. 309 (2001), proposed 18 U.S.C.
142 “For purposes of this paragraph, a financial transaction shall be considered to be one
involving the proceeds of specified unlawful activity if it is party of a set of parallel or
dependent transactions, any one of which involves the proceeds of specified unlawful
activity, and all of which are part of a single plan or arrangement,” proposed 18 U.S.C.
Section 406. Civil Forfeiture Pre-trial Freezes and Restraining
Federal law permits pre-trial restraining orders to freeze property sought in
criminal forfeiture cases, 21 U.S.C. 853(e), and pre-trial restraining orders or the
appointment of receivers or conservators in civil forfeiture cases, 18 U.S.C. 983(j).
In money laundering civil penalty and forfeiture cases, it also permits restraining
orders and the appointment of receivers under somewhat different, less demanding
procedures with respect to the property of foreign parties held in this country, 18
U.S.C. 1956(b). The Conference bill, like the House version of the bill before it,
removes the requirement that the property be that of a foreign party, proposed 18
Section 406. 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. As a general rule, conspiracy to
commit these or any other federal crime is punishable by imprisonment for not more
than five years, 18 U.S.C. 371, and conspirators are liable for the underlying offense
and any other offense committed by any of co-conspirators in the foreseeable
furtherance of the criminal scheme, United States v. Pinkerton, 340 U.S. 640 (1946).
For several federal crimes, instead of the general five-year penalty for
conspiracy, section 811 of the USA PATRIOT Act used the maximum penalty for the
underlying offense as the maximum penalty for conspiracy to commit the underlying
offense, 115 Stat. 381-82 (2001). House bill suggested that the same should be done
with conspiracies to violate 18 U.S.C. 33 (destruction of motor vehicles) and 18
U.S.C. 1366 (damage an energy facility), and the conferees agree, proposed 18
U.S.C. 33, 1366.
Section 409. 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 the Conference bill makes 18 U.S.C. 2339D a federal crime
of terrorism under 18 U.S.C. 2332b(g)(5)(B). Federal crimes of terrorism are RICO
predicate offenses by definition, 18 U.S.C. 1961(1)(G). RICO predicate offenses are
by definition money laundering predicate offenses, 18 U.S.C. 1956(c)(7)(A). Section
409 of the Conference bill makes 18 U.S.C. 2339D a money laundering predicate
offense directly, 18 U.S.C. 1956(c)(7)(D). It is not clear why the duplication was
Section 410. Uniform Procedures for Criminal Forfeitures.
The Conference bill contains an amendment to 28 U.S.C. 2461(c), for which
there is no explanation in the conference report. Nor does the amendment appear in
either the two versions of H.R. 3199 sent to conference. Nor does the amendment
appear to have been included in other legislative proposals and thus has not
heretofore been the beneficiary of examination in committee or on the floor. The
change is captioned “uniform procedures for criminal forfeitures,” but it is not
facially apparent precisely how the procedures for various criminal forfeitures are
disparate or how the amendment makes them more uniform. Part of the difficulty
flows from the fact that both the section 2461(c) and the Conference bill amendment
are somewhat cryptic. Nevertheless, it seems crafted to make a default procedure
into an exclusive procedure.
In its present form 28 U.S.C. 2461(c) states:
If a forfeiture of property is authorized in connection with a violation of an Act
of Congress, and any person is charged in an indictment or information with such
violation but no specific statutory provision is made for criminal forfeiture upon
conviction, the Government may include the forfeiture in the indictment or
information in accordance with the Federal Rules of Criminal Procedure, and
upon conviction, the court shall order the forfeiture of the property in accordance
with the procedures set forth in section 413 of the Controlled Substances Act (21
U.S.C. 853), other than subsection (d) of that section.
The Conference bill amends the section 2461(c) to read:
If a person is charged in a criminal case with a violation of an Act of Congress
for which the civil or criminal forfeiture of property is authorized, the
Government may include notice of the forfeiture in the indictment or information
pursuant to the Federal Rules of Criminal Procedure. If the defendant is
convicted of the offense giving rise to the forfeiture, the court shall order the
forfeiture of the property as part of the sentence in the criminal case pursuant to
the Federal Rules of Criminal Procedure and section 3554 of title 18, United
States Code. The procedures in section 413 of the Controlled Substances Act (21
U.S.C. 853) apply to all stages of a criminal forfeiture proceeding, except that
subsection (d) of such section applies only in cases in which the defendant is
convicted of a violation of such Act, proposed 18 U.S.C. 2461(c).
A casual reading of the section 2461(c) might suggest that it only applies in the
case of a criminal forfeiture statute which fails to indicate what procedure should be
used to accomplish confiscation. In fact, as the conference amendment states more
clearly, section 2461(c) allows for confiscation under its criminal forfeiture
procedures where civil forfeiture is authorized by statute but criminal forfeiture
otherwise is not.143 On its face, however, it does not allow the government to merge
every civil forfeiture with the criminal prosecution of the property owner. In its
143 United States v. Razmilovic, 419 F.3d 134,136 (2d Cir. 2005)(“Section 2461(c) thus
authorizes criminal forfeiture as a punishment for any act for which civil forfeiture is
authorized, and allows the government to combine criminal conviction and criminal
forfeiture as a consolidated proceeding”).
present form, section 2461(c) is only available if there is no other criminal forfeiture
counterpart for the civil forfeiture.144 Under the Conference bill the distinction no
Moreover, since section 2461(c) speaks of treating civil forfeitures as criminal
forfeitures after conviction, some courts have held that pre-trial freeze orders
available in other criminal forfeiture cases may not be invoked in the case of a
section 2461(c) “gap filler.”145 It is unclear whether the conferees intended the bill
change this result as well. On one hand, the language of conviction still remains. On
the other hand, the description of the role of 21 U.S.C. 853 (which authorizes pre-
trial restraining orders) may signal a different result. The current language is fairly
clear, the procedures of section 853 come into play after conviction: “upon
conviction, the court shall order the forfeiture of the property in accordance with the
procedures set forth in section 413 of the Controlled Substances Act (21 U.S.C.
“The procedures in section 413 of the Controlled Substances Act (21 U.S.C. 853)
apply to all stages of a criminal forfeiture proceeding,” proposed 28 U.S.C. 2461(c).
The change in language suggests that a change in construction may have been
Critics might suggest that a more thorough consideration or at least more
complete explanation of the full ramifications of the proposal would have been
Title V: Miscellanea
Title V of the Conference bill contains provisions added in conference and not
previously included in either House or Senate version of H.R. 3199, some of which
— like the habeas amendments in the case of state death row inmates, or the
adjustments in the role of the Office of Intelligence Policy and Review in the FISA
process, or the new Secret Service offenses with unstated constitutional foundations
— may prove controversial.
144 18 U.S.C. 2461(c)(“If a forfeiture of property is authorized in connection with a
violation of an act of Congress, ..an act. but no specific statutory provision is made for
criminal forfeiture upon conviction . . .”); United States v. Causey, 309 F.Supp.2d 917, 920
(S.D. Tex. 2004)(“Section 981 [relating to civil forfeiture] forms the basis for criminal
forfeiture through the application of 28 U.S.C. 2461(c), which allows criminal forfeiture to
be sought anytime there is a civil forfeiture provision but no corresponding criminal
forfeiture statute”); United States v. Schlesinger, 396 F.Supp.2d 267, 275 (E.D.N.Y. 2005)
(“Constructing the statute in this manner makes §2461(c) a broad ‘gap filler’ that applies
whenever civil forfeiture is permitted. In sum, when there is no provision for criminal
forfeiture, the government may use a civil forfeiture provision if it includes such allegation
in the indictment. In instances where there is a specific criminal forfeiture provision — that
specific provision and the procedures that it sets forth — and not the civil forfeiture
provision will apply”).
145 United States v. Razmilovic, 419 F.3d 134,137 (2d Cir. 2005). Note that in some civil
forfeiture cases, the government is entitled to a pre-trial freeze order, 18 U.S.C. 983(j).
Section 501. Justice Department Residency Requirements.
United States Attorneys and Assistant United States Attorneys must live within
the district for which they are appointed, except in the case of the District of
Columbia and the Southern and Eastern Districts of New York, 28 U.S.C. 545. The
Attorney supervises and directs litigation in which the United States has an interest,
employees, or agencies of the Department of Justice to this end, 28 U.S.C. 509, 510,
547. The Conference bill allows the Attorney General to waive the residency
requirement with respect to U.S. Attorneys or Assistant U.S. Attorneys who have
been assigned additional duties outside the districts for which they were appointed.146
The conference report notes that amendment will allow Justice Department personnel
to be assigned to Iraq, H.Rept. 109-333 at 109 (2005), but does not explain why the
authority is made retroactive to February 1, 2005.
Section 502. Appointment of U.S. Attorneys.
Existing law permits the Attorney General to temporarily fill vacancies in the
office of United States Attorney, 28 U.S.C. 546. If a replacement has not been
confirmed and appointed within 120 days, the district court is authorized to make a
temporary appointment, 28 U.S.C. 546(d). The Conference bill repeals the authority
of the court and permits the Attorney General’s temporary designee to serve until the
vacancy is filled by confirmation and appointment, proposed 28 U.S.C. 546(c).
Section 503. Presidential Succession: Homeland Security
The heads of the various federal departments come within the line of
presidential succession, 3 U.S.C. 19(d)(1). The Conference bill adds the Secretary
of the Department of Homeland Security to the list following the Secretary of
Veterans Affairs, id.
Section 504. Confirmation of the Director of BATFE.
The Attorney General appoints the Director the Bureau of Alcohol, Tobacco,
Firearms and Explosives (BATFE), 6 U.S.C. 531(a)(2). The Conference bill vests
his appointment in the President with the advice and consent of the Senate, proposed
Section 505. Qualifications for U.S. Marshals.
The President appoints the marshal in each federal judicial district with the
advice and consent of the Senate, 28 U.S.C. 561. There are no statutory
146 Proposed 28 U.S.C. 545(a) (“ . . .Pursuant to an order from the Attorney General or his
designee, a United States attorney or an assistant United States attorney may be assigned
dual or additional responsibilities that exempt such officer from the residency requirement
in this subsection for a specific period of time established by the order and subject to
qualifications. The Conference bill describes a fairly demanding set of minimum
qualifications that each marshal “should have,”147 which the report characterizes as
clarifications.148 Some may consider this an intrusion upon the constitutional
prerogatives of the President. The Constitution does confer upon him the power to
nominate and, with the advice and consent of the Senate, to appoint officers of the
United States, U.S. Const. art. II, §2. It might be thought that to impose minimum
qualifications for appointment impermissibly limits the President’s power to
nominate. But with few exceptions, the offices in question are creatures of statute.
They exist by exercise of Congress’ constitutional authority “to make all laws
necessary and proper for carrying into execution” the constitutional powers of the
Congress, the President or Government of the United States, U.S. Const. art. I, §8,
cl.18. The imposition of minimum qualifications is consistent with long practice as
to which the Supreme Court has observed:
Article II expressly and by implication withholds from Congress power to
determine who shall appoint and who shall remove except as to inferior offices. To
Congress under its legislative power is given the establishment of offices, the
determination of their functions and jurisdiction, the prescribing of reasonable and
relevant qualifications and rules of eligibility of appointees, and the fixing of the
term for which they are to be appointed, and their compensation — all except as
otherwise provided by the Constitution. Myers v. United States, 272 U.S. 52, 129
147 “Each marshal appointed under this section should have — (1) a minimum of 4 years
of command-level law enforcement management duties, including personnel, budget, and
accountable property issues, in a police department, sheriff’s office or Federal law
enforcement agency; (2) experience in coordinating with other law enforcement agencies,
particularly at the State and local level; (3) college-level academic experience; and (4)
experience in or with county, State, and Federal court systems or experience with protection
of court personnel, jurors, and witnesses,” proposed 28 U.S.C. 561(i).
148 H.Rept. 109-333 at 109 (2005)(“Section 505 of the conference report is a new section.
This section clarifies the qualifications individuals should have before joining the United
149 See also, Corwin, Tenure of Office and the Removal Power Under the Constitution, 27
COLUMBIA LAW REVIEW 353, 391 (1927)(“From the first Congress has exercised it s power
under the ‘necessary and proper’ clause to fix the qualifications of officers, not only in
respect to inferior offices but also in respect to superior offices, and this notwithstanding
that in so doing it has obviously restricted the President’s power of nomination”); 2
ROTUNDA & NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE
35 (3d ed. 1999)(“Congress can limit the President’s power to nominate by imposing
qualifications that the appointee for the office must possess”); Eldred v. Ashcroft, 537 U.S.
186, 213 (2003)(“This Court has repeatedly laid down the principle that a contemporaneous
legislative exposition of the Constitution when the founders of our Government and framers
of our Constitution were actively participating in public affairs, acquiesced in for a long
term of years, fixes the construction to be given the Constitution’s provisions”). Justice
Brandeis in Myers footnotes literally hundreds of instances dating from the First Congress
that in Congress set minimum qualifications for various public office holders, 272 U.S. at
The bill’s terminology leaves some doubt whether it is intended to require or
merely encourage the nomination of candidates exhibiting the statutory qualifications
(“each marshal appointed under this section should have . . .”). Perhaps more
perplexing is why the conferees deemed this particular office and not others
appropriate for such treatment. The office has existed since the dawn of the
Republic, 1 Stat. 87 (1789), without statement of required or preferred qualifications.
Arguably comparable or more significant offices within the Department of Justice
face no similar provisions. No such provisions attend the appointment of U.S.
Attorneys, 28 U.S.C. 541; the Director the Federal Bureau of Investigation, 28 U.S.C.
532; the Director of the Marshals Service, 28 U.S.C. 561; or even the Attorney
General himself, 28 U.S.C. 503. Even when the bill puts its hand anew to the
appointment of an arguable comparable position — the appointment of the Director
of BATFE, proposed 6 U.S.C. 531, supra — it says nothing of minimum
qualifications. Of course, the requirements seem relevant and it is difficult to argue
that any federal office should not be filled with the most highly qualified individual
Section 506. New Assistant Attorney General for National Security.
Background. The presidential Commission on the Intelligence Capabilities
of the United States Regarding Weapons of Mass Destruction recommended that
“[t]he Department of Justice’s primary national security elements — the Office of
Intelligence Policy and Review, and the Counterterrorism and Counterespionage
sections [of the Criminal Division] — should be placed under a new Assistant150
Attorney General for National Security.” The Commission felt the organizational
scheme might be awkward and that perhaps the system would benefit from a check
on Office of Intelligence Policy and Review’s rejection of FISA applications as
i n suffi ci ent . 151
150 The Commission on the Intelligence Capabilities of the United States Regarding
Weapons of Mass Destruction, Report to the President of the United States, 471-73 (Mar.
151 “The Justice Department’s three primary national security components are located in
different divisions, with no individual below the Deputy Attorney General who can
supervise all three. The Office of Intelligence Policy and Review (OIPR) is responsible for
FISA requests, representing the Department of Justice on intelligence-related committees,
and advising the Attorney General on ‘all matters relating to the national security activities.’
It is independent of any division and reports directly to the Deputy Attorney General. In
contrast, both the Counterterrorism and Counterespionage sections are located in the
Criminal Division, but they each report to two different Deputy Assistant Attorney Generals.
If there is method to this madness, neither we, nor any other official with whom we spoke,
could identify it.
“There is reason to believe that the this awkward (and outdated) organizational scheme
has created problems between the Justice Department and the Intelligence Community. In
our classified report we describe one such problem that cannot be discussed in our
“We believe that bringing the Office of Intelligence Policy and Review closer to its
operational counterparts like the Counterespionage and Counterterrorism sections would
give the office better insight into actual intelligence practices and make it better attuned to
operational needs. Attorneys in the Counterterrorism and Counterespionage sections
Critics might suggest that curtailing the independence of the Office of
Intelligence Policy and Review (OIPR) with an eye to less rigorous examination of
FISA applications is likely to have an adverse impact. They might argue that adding
another layer of review to the FISA application process can only bring further delays
to a process the Administration has continuously sought to streamline. In the same
vein, should the judges of the FISA Court conclude that the OIPR has been shackled
and ceased to function as an independent gatekeeper for the Court, they might
examine applications more closely and feel compelled to modify or reject a greater
number; further contributing to delay or so it might be said.
Be that as it may, the President has notified various administration officials that
he concurs in the Commission’s recommendation.152 Section 441 of the Intelligence
Authorization Act for Fiscal Year 2006, S. 1803, as reported by the Senate Select
Committee on Intelligence, contained similar provisions.153
The Conference bills makes the following provisions for the new Assistant
- Assistant Attorney General (AAG) is to be designated by the President and
presented to the Senate for its advice and consent, proposed 28 U.S.C. 507A(a);
cf., H.Rept. 109-142 at 31;
- AAG serves as head of the DoJ National Security Division, as primary DoJ
liaison with DNI, and performs other duties as assigned, proposed 28 U.S.C.
- the Attorney General is to consult with the DNI before recommending a
nominee to be AAG, proposed 50 U.S.C. 403-6(c)(2)(C);
- the Attorney General may authorize the AAG to perform the Attorney
General’s FISA-related duties, proposed 50 U.S.C. 1801(g);
routinely work alongside FBI agents and other intelligence officers. By contrast, OIPR is
largely viewed within the Department as an ‘assembly line operation not requiring any
special grounding in the facts of a particular matter.’ OIPR’s job is to process and
adjudicate FISA requests — not to follow a case from start to completion. One of the
advantages of placing all three national security components under a single Assistant
Attorney General is that they will see themselves as acting in concert to serve a common
“The Bellows Report [Final Report of the Attorney General’s Review Team on the
Handling of the Los Alamos National Laboratory Investigation] identifies a further reason
to have a single individual below the Deputy Attorney General to supervise the OIRP: the
need to have a single individual who is knowledgeable about FISA to review RISA
applications that are rejected by OIPR. Id. at pp.767-768. The lack of such an individual in
the Wen Ho Lee investigation caused serious problems. An Assistant Attorney General for
National Security would fit the bill perfectly,”Id. at 472, 482 n.94 (the last paragraph quoted
above appears as footnote 94 in the Report).
152 S.Rept. 109-142, at 31 (2005)(“The President endorsed this recommendation in a June
Attorney General, Secretary of Homeland Security, Director of OMB, DNI, Assistant to the
President for National Security Affairs, and Assistant to the President for Homeland
Security and Counterterrorism”).
153 See generally, H.Rept. 109-333, at 109 (2005); H.Rept. 109-142, at 31-33 (2005).
- AAG may approve application for a communications interception (wiretap)
order under the Electronic Communications Privacy Act (Title III), proposed 18154
- the Attorney General may authorize the AAG to approve admission into the
witness protection program, proposed 18 U.S.C. 3521(d)(3);*
- AAG must provide briefings for the DoJ officials or their designee of Division
cases involving classified information, proposed 18 U.S.C. App. III 9A(a);*
- AAG replaces OIPR for purposes of advising the Attorney General on the
development of espionage charging documents and related matters, proposed 28
U.S.C. 519 note;*
- the Attorney General may authorize the AAG to approve certain undercover
operations, proposed 28 U.S.C. 533 note;*
- AAG joins those whom the Attorney General consult concerning a state
application of emergency law enforcement assistance, proposed 42 U.S.C.
- the National Security Division headed by the AAG consists of the OIPR, the
counterterrorism and counterespionage sections, and any other entities the
Attorney General designates, proposed 28 U.S.C. 509A;
- Division employees are barred from engaging in political management or
political campaigns, proposed 5 U.S.C. 7323(b)(3);*
- subject to a rule change by the Senate, the Senate Select Committee on
Intelligence enjoys 20 day sequential referral of AAG nominees, proposed
section 17 of S.Res. 94-400 of the Standing Rules of the Senate, Senate Manual
Section 507. Habeas Corpus in State Capital Cases.
Federal law provides expedited habeas corpus procedures in the case of state
death row inmates in those states that qualify for application and have opted to take
advantage of the procedures, 28 U.S.C. ch. 154. As the Supreme Court stated,
“Chapter 154 will apply in capital cases only if the State meets certain conditions.
A state must establish ‘a mechanism for the appointment, compensation, and
payment of reasonable litigation expenses of competent counsel’ in state
postconviction proceedings, and ‘must provide standards of competency for the
appointment of such counsel,’” Calderon v. Ashmus, 523 U.S. 740, 743 (1998). Thus
far apparently, few if any states have sought and been found qualified to opt in.155
154 * Provisions not found in S. 1803.
155 At least for a short period of time Arizona was qualified to opt in, cf., Spears v. Stewart,
determined that although (a) the question whether Arizona had opted-in to the short-fuse
habeas scheme provided in Chapter 154. . . was entirely irrelevant to the outcome of the case
before it; (b) the linchpin provision for the procedures by which Arizona had once sought
to opt-in under Chapter 154 had already been repealed by the state; (c) the state did not even
comply with its own procedures in the case before the panel; (d) Arizona was
unquestionably not in compliance with Chapter 154 at the time the appeal was heard; (e) in
fact, the state had never at any time effectively complied with its short-lived procedures; and
(f) no other state in the nation has ever been held to have successfully opted-in under
Chapter 154, the panel would seize this opportunity to issue an advisory opinion stating that
the no-longer-existent Arizona procedures were in compliance with Chapter 154’s
requirements”)(citing, Ashmus v. Woodford, 202 F.3d 1160, 1160 (9th Cir. 2000)(California
has not opted-in); Harris v. Bowersox, 184 F.3d 744, 7848 (8th Cir. 1999)(Missouri has not
The proposals in the Conference bill are reminiscent of some of the features of more
general habeas proposals introduced by both the House and Senate under the title, the
“Streamlined Procedures Act,” H.R. 3035 and S. 1088. Both free standing bills have
been the subject of Congressional hearings, but have yet to clear committee.
Critics of existing law imply that the states have been unable to take advantage
of the expedited capital procedures only because the courts have a personal stake in
the outcome. The solution, they contend, is the amendment found in the Conference
bill and in slightly different form in the free standing bills — allowing the Attorney
General to determine whether a state qualifies, permit the determination to have
retroactive effect, and allow review by the federal appellate court least likely to have
an interest in the outcome, the U.S. Court of Appeals for the D.C. Circuit, proposed
28 U.S.C. 2261(b), 2265.156 Opponents of the proposal raise separation of powers
issues and question whether the chief federal prosecutor or the courts are more likely
to make an even handed determination of whether the procedures for providing
capital defendants with qualified defense counsel are adequate.157
opted-in); Duvall v. Reynolds, 139 F.3d 768, 776 (10th Cir. 1998)(Oklahoma has not opted-
in); Hill v. Butterworth, 941 F.Supp. 1129, 1146-147 (N.D.Fla. 1996), vac’d on other
grounds, 147 F.3d 1333 (11th Cir. 1998)(Florida has not opted in); Mata v. Johnson, 99
F.3d 1261, 1267 (5th Cir. 1996), vac’d on other grounds, 105 F.3d 209 (5th Cir.th
1997)(Tennessee has not opted-in); Holloway v. Horn, 161 F.Supp.2d 452, 478 n.11
(E.D.Pa. 2001), rev’d on other grounds, 355 f.3d 707 (3d Cir. 2004)(Pennsylvania has not
opted- in); Smith v. Anderson, 104 F.Supp. 2d 773, 786 (S.D.Ohio 2000)(Ohio has not
opted-in); Oken v. Nuth, 30 F.Supp.2d 877, 879 (D.Md. 1998)(Maryland has not opted-in);
Tillman v. Cook, 25 F.Supp.2d 1245, 1253 (D.Utah 1998)(Utah has not opted-in); Weeks v.
Angelone,4 F.Suppl2d 467, 506 n.4 (E.D.Va. 1998)(Virginia has not opted-in); Ryan v.
Hopkins, 1996 WL 539220, at *3-4 (D.Neb. 1969)(Nebraska has not opted-in)). Related
cases include, Grayson v. Epps, 338 F.Supp.2d 699, 700-704 (S.D. Miss. 2004)(Mississippi
has not opted-in); Keel v. French, 162 F.3d 263, 267 n.1 (4th Cir. 1998)(North Carolina has
not opted-in); High v. Head, 209 F.3d 1257, 1262 n.4 (11th Cir. 2000)(Georgia does not
claim to have opted-in); Allen v. Lee, 366 F.3d 319, 353 (4th Cir. 2004)(Luttig, J.
dissenting)(noting that the Fourth Circuit has adopted by rule the section 2266 time lines).
156 “The SPA [Streamlined Procedures Act] also expands and improves the special
expedited habeas procedures authorized in chapter 154 of the United States Code. The
procedure are available to States that establish a system for providing high-quality legal
representation to capital defendants. Chapter 154 sets strict time limits on Federal court
action and places limits claims. Currently, however, the court that decides whether a State
is eligible for chapter 154 is the same court that would be subject to its time limits.
Unsurprisingly, these courts have proven resistant to chapter 154. The SPA would place the
eligibility decision in the hands of a neutral party — the U.S. Attorney General, with review
of his decision in the D.C. Circuit, which does not hear habeas appeals,” 151 CONG. REC.
S554-41 (daily ed. May 19, 2005).
157 “[T]he SPA intimates that courts can’t objectively evaluate whether states meet the ‘opt-
in’ provisions detailed in the AEDPA because their dockets are implicated in the timelines
created by opt-in status. The legislation attempts to resolve this by empowering the chief
prosecutor in the United States, the Attorney General, to make these decisions. Giving
federal prosecutors control over even part of the federal judiciary’s docket and
decisionmaking authority would have serious implications for the separation of powers
necessary for fair administration of criminal justice,” Habeas Corpus Proceedings and
Under the Conference bill, states would opt-in or would have opted-in as of the
date, past or present, upon which the Attorney General determines they established
or have established qualifying assistance of counsel mechanism, proposed 28 U.S.C.
to instances in which “counsel was appointed pursuant to that mechanism [for the
death row habeas petitioner], petitioner validly waived counsel, petitioner retained
counsel, or petitioner was found not to be indigent,” proposed 28 U.S.C. 2261(b)(2).
The standards of qualifying mechanism remain the same except that the Conference
bill drops that portion of subsection 2261(d) which bars an attorney from serving as
habeas counsel if he represented the prisoner during the state appellate process,
proposed 28 U.S.C. 2261(d).
The bill establishes a different standard of review than the Streamlined
Procedures bills would have. It subjects the Attorney General’s determination to de
novo review before the D.C. Circuit, proposed 28 U.S.C. 2265(c)(3), whereas S. 1088
(§9) and H.R. 3035 (§9) would have permitted the Court to overturn the Attorney
General’s determination only if it were “manifestly contrary to the law and an abuse
of discretion.” All three bills extend the expedited time deadline for U.S. district
court action on a habeas petition from a state death row inmate from 6 to 15 months
(180 days to 450 days)(although the 60 days permitted the court for decision
following completion of all pleadings, hearings, and submission of briefs remains the
same), proposed 28 U.S.C. 2266(b).
In McFarland v. Scott, 512 U.S. 849, 859 (1994), the Supreme Court held that
federal district courts might stay the execution of a state death row inmate upon the
filing of a petition for the appointment of counsel but prior to the filing of a federal
habeas petition in order to allow for the assistance of counsel in the filing the
In an amendment described as overruling McFarland, H.Rept. 109-333, at 109
(2005), the Conference bill amends federal law to permit a stay in such cases of no
longer than 90 days after the appointment of counsel or the withdrawal or denial of
a request for the appointment of counsel, proposed 28 U.S.C. 2251(b).
Title VI: Secret Service
The Secret Service provisions of the Conference bill closely resemble S. 1967
and were added to the bill during conference. They have several intriguing aspects
including two proposals whose constitutional footings may be somewhat uncertain.
Section 601. Short Title.
Section 601 designates Title VI the “Secret Service Authorization and Technical
Modification Act of 2005.”
Issues of Actual Innocence: Hearings Before the Senate Comm. on the Judiciary, 109th
Cong., 1st sess. (2005) (testimony of Bryan Stevenson, Executive Director of Equal Justice
Initiative of Alabama, available on Jan. 6, 2006, at [http://judiciary.
Protection of the President and Certain Other Federal Officials.
Section 602. Part I. It is a federal crime:
(1) to willfully and knowingly trespass in areas designated as temporary
offices or residences for (or as restricted areas in places visited by or to be
visited by) those under Secret Service protection, 18 U.S.C. 1752(a)(1);
(2) to engage in disorderly conduct in or near such areas or places with the
intent to and result of impeding or disrupting the orderly conduct of
governmental business or functions there, 18 U.S.C. 1752(a)(2);
(3) to willfully and knowingly block passage to and from such areas or
places, 18 U.S.C. 1752(a)(3);
(4) to willfully and knowingly commit an act of violence in such area or
place, 18 U.S.C. 1752(a)(4); or
(5) to attempt of conspire to do so, 18 U.S.C. 1752(a),(b).
Offenders are punishable by imprisonment for not more than six months and/or
a fine of not more than $5,000 (not more than $10,000 for organizations), 18 U.S.C.
1752(b). Obstructing Secret Service officers in the performance of their protective
duties is also a federal crime and is punishable by imprisonment for not more than
one year and/or a fine of not more than $1,000, 18 U.S.C. 3056(d).
The Conference bill increases the penalties for violation of section 1752 from
imprisonment for not more than six months to imprisonment for not more than one158
year; unless the offense results in significant bodily injury or the offender uses or
carries a deadly or dangerous weapon during and in relation to the offense, in which
case the offense is punishable by imprisonment for not more than 10 years, proposed
18 U.S.C. 1752(b). As a general rule applicable here, crimes punishable by
imprisonment for not more than six months are subject as an alternative to a fine of
not more than $5,000; crimes punishable by imprisonment for not more than one year
by a fine of not more than $100,000 as an alternative; crimes punishable by
imprisonment for more than one year by a fine of not more than $250,000; and in
each case organizations are subject to maximum fines that are twice the amount to
which an individual might be fined, 18 U.S.C. 3571, 3559.
The bill also amends section 1752 to provide a uniform scienter element
(willfully and knowingly) for each of the offenses prescribed there, proposed 18
U.S.C. 1752; only the disorderly conduct subsection now features a scienter element
— with the intent to disrupt — other than willfully and knowingly, 18 U.S.C.
158 “‘Significant bodily injury’ means bodily injury which involves a risk of death,
significant physical pain, protracted and obvious disfigurement, or a protracted loss or
impairment of the function of a bodily member, organ, or mental or sensory faculty,” 18
U.S.C. 2118(e)(3), proposed 1752(b)(1)(B).
Special Events of National Significance.
Section 602. Part II — Trespassing. The Conference bill creates a new
federal crime relating to misconduct concerning “special events of national
significance.” It amends 18 U.S.C. 1752 to make it a federal crime to “willfully and
knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area
of a building or grounds so restricted in conjunction with an event designated as a
special event of national significance,” proposed 18 U.S.C. 1752(a)(2). The bill
provides no definition of “special event of national significance.” Nor is the term
defined elsewhere in federal law, although it is used in 18 U.S.C. 3056 which
authorizes the Secret Service to participate in the coordination of security
arrangements for such activities.159 The Conference report explains that the
provisions relate to misconduct at events at which individuals under Secret Service
protection are not attendees and by implication are not anticipated to be attendees.160
This seems to raise questions about the constitutional basis upon which the other
criminal prohibitions in section 1752 rely.
Congress and the federal government enjoy only those powers which the
Constitution provides; all other powers are reserved to the states and to the people,
U.S. Const. Amends. X, IX. The Constitution does not vest primary authority to
enact and enforce criminal law in the federal government. The Constitution does
grant Congress explicit legislative authority in three instances — treason, piracy and
offenses against the law of nations, U.S.Const. Art.III, §3; Art.I, §8, cl.10. And it
vests Congress with other more general powers which may be exercised through the
enactment of related criminal laws, such as the power to regulate commerce or to
enact laws for the District of Columbia, U.S.Const. Art.I, §8, cls.3, 17. Nevertheless,
“[e]very law enacted by Congress must be based on one or more of its powers
enumerated in the Constitution,” United States v. Morrison, 529 U.S. 598, 607
(2000). It is not clear which of Congress’ enumerated powers individually or in
concert supports under all circumstances the creation of a trespassing offense relating
to “restricted areas” temporarily cordoned off or established for a “special event of
159 “(1) When directed by the President, the United States Secret Service is authorized to
participate, under the direction of the Secretary of Homeland Security, in the planning,
coordination, and implementation of security operations at special events of national
significance, as determined by the President.
“(2) At the end of each fiscal year, the President through such agency or office as the
President may designate, shall report to the Congress — (A) what events, if any, were
designated special events of national significance for security purposes under paragraph (1);
and (B) the criteria and information used in making each designation,” 18 U.S.C. 3056(e).
160 H.Rept. 109-333, at 110 (2005)(“Section 602 of the conference report is a new section.
18 U.S.C. 1752 authorizes the Secret Service to charge individuals who breach established
security perimeters or engage in other disruptive or potentially dangerous conduct at
National Special Security Events (NSSEs) if a Secret Service protectee is attending [or will
be attending] the designated event. Section 602 of the conference report expands 18 U.S.C.
1752 to criminalize such security breaches at NSSEs that occur when the Secret Service
protectee is not in attendance [and will not be in attendance]”)(language in brackets added
to reflect the current reach of section 1752 and the breadth of the proposed amendment).
Of course, the protection of such events under limited circumstances may fall
within one or more of Congress’ enumerated powers. For instance, Congress may
may enact a trespassing law protecting special events held in the District of Columbia
by virtue of its power to enact laws for the District, U.S. Const. Art.I, §8, cl.17. Even
here, however, the First Amendment may impose impediments when in a particular
case the governmental interest in the special event is minimal and significant access
restrictions are imposed on use of the streets or other public areas to prevent peaceful
Interpretative regulations that limit the amendment’s application to areas within
the scope of Congress’ legislative authority and consistent with the demands of the
First Amendment offer the prospect of passing constitutional muster, but the bill
repeals the subsection of 1752 which in amended form might authorize curative
Section 603. Phony Passes. Questions as to the source of Congress’
legislative authority might also be raised about the bill’s proposal to bring special
event tickets and credentials within the folds of the statute that outlaws misuse of
governmentally issued identification documents, 18 U.S.C. 1028. The structure of
section 1028 makes the point more obviously than might otherwise be the case. In
its present form, section 1028 prohibits eight particular varieties of unauthorized
possession or trafficking in identification documents163 when committed under one
161 Boos v. Barry, 485 U.S. 312, 318 (1988)(“public streets and sidewalk” are “traditional
public fora that time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. In such places, which occupy
a special position in terms of First Amendment protection, the government’s ability to
restrict expressive activity is very limited”)(internal quotation marks and citations omitted).
162 “The Secretary of the Treasury is authorized — (1) to designate by regulations the
buildings and grounds which constitute the temporary residences of the President or other
person protected by the Secret Service and the temporary offices of the President and his
staff or of any other person protected by the Secret Service, and (2) to prescribe regulations
governing ingress or egress to such buildings and grounds and to posted, cordoned off, or
otherwise restricted areas where the President or other person protected by the Secret
Service is or will be temporarily visiting,” 18 U.S.C. 1752(d). The authority vested in the
Secretary of the Treasury passed to the Secretary of Homeland Security when the Secret
Service was transferred to that Department, 6 U.S.C. 381. Of course, a conforming
amendment to subsection 1752(d) would be required to implement the expanded “special
event” area coverage.
163 “Whoever, in a circumstance described in subsection (c) of this section — (1)
knowingly and without lawful authority produces an identification document, authentication
feature, or a false identification document; (2) knowingly transfers an identification
document, authentication feature, or a false identification document knowing that such
document was stolen or produced without lawful authority; (3) knowingly possesses with
intent to use unlawfully or transfer unlawfully five or more identification documents (other
than those issued lawfully for the use of the possessor), authentication feature, or false
identification documents; (4) knowingly possesses an identification document (other than
one issued lawfully for the use of the possessor), authentication feature, or a false
identification document, with the intent such document or feature be used to defraud the
United States; (5) knowingly produces, transfers, or possesses a document-making
implement or authentication feature with the intent such document-making implement or
of three jurisdictional circumstances: the documents are issued or purport to be issued
by a federal entity, the documents are used to defraud the United States, or the
offense involves transportation in, or affects, interstate or foreign commerce, 18
U.S.C. 1028(a), (c).
The bill makes three changes in the scheme. First, it amends one of the eight
prohibition subsections, that which outlaws unlawful possession of U.S. documents
or facsimiles thereof, when committed under one of three jurisdictional
circumstances. The change adds the documents of special event sponsors to the
protected class, if the one jurisdictional predicates is satisfied.164 Second, it amends
the definition of “identification document” to include special events documents,165
so that each of the other eight prohibition subsections applies as long as one of the
three jurisdictional predicates is satisfied. Third, it amends one of the jurisdictional
predicates, that which is based on issuance by a federal agency. It treats sponsors of
special events as federal agencies within the jurisdictional subsection of section
authentication feature will be used in the production of a false identification document or
another document-making implement or authentication feature which will be so used; (6)
knowingly possesses an identification document or authentication feature that is or appears
to be an identification document or authentication feature of the United States which is
stolen or produced without lawful authority knowing that such document or feature was
stolen or produced without such authority; (7) knowingly transfers or uses, without lawful
authority, a means of identification of another person with the intent to commit, or to aid or
abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a
felony under any applicable State or local law; or (8) knowingly traffics in false
authentication features for use in false identification documents, document-making
implements, or means of identification; shall be punished as provided in subsection (b) of
this section,” 18 U.S.C. 1028(a).
164 “Whoever, in a circumstance described in subsection (c) of this section. . . knowingly
possesses an identification document or authentication feature that is or appears to be an
identification document or authentication feature of the United States or a sponsoring entity
of an event designated as a special event of national significance which is stolen or
produced without lawful authority knowing that such document was stolen or produced
without such authority. . shall be punished as provided in subsection (b) of this section,” 18
U.S.C. 1028(a)(6)(proposed amendment in italics).
165 “In this section . . . the term ‘identification document’ means a document made or issued
by or under the authority of the United States Government, a State, political subdivision of
a State, a sponsoring entity of an event designated as a special event of national significance
a foreign government, political subdivision of a foreign government, an international
governmental or an international quasi-governmental organization which, when completed
with information concerning a particular individual, is of a type intended or commonly
accepted for the purpose of identification of individuals,” 18 U.S.C. 1028(d)(3)(proposed
amendment in italics).
166 “The circumstance referred to in subsection (a) of this section is that — (1) the
identification document, authentication feature, or false identification document is or
appears to be issued by or under the authority of the United States or a sponsoring entity of
an event designated as a special event of national significance or the document-making
implement is designed or suited for making such an identification document, authentication
feature, or false identification document,” 18 U.S.C. 1028(c)(1)(proposed amendment in
It is this third amendment that raises the issue. There is no doubt that Congress
has the constitutional power to enact legislation prohibiting possession or trafficking
in special event identification documents, if the third jurisdictional predicate is
satisfied, i.e., the offense involves transportation in, or affects, interstate or foreign
commerce.167 Nor is there any dispute Congress enjoys such authority, if the second
jurisdiction predicate is satisfied, i.e., the offense involves defrauding the United
States.168 There may be a very real question, however, as to whether Congress may
prohibit unlawful possession or trafficking in special event identification documents
predicated solely upon the fact they were issued by a special event sponsor.
“National significance” is not a term that by itself conjures up reference to any of
Congress’ constitutionally enumerated powers. Legislation that cannot be traced to
one or more of Congress’ enumerated powers lies beyond its reach, United States v.
Morrison, 529 U.S. 598, 607 (2000).
Section 604. Missing Children. The PROTECT Act authorizes “officers
and agents of the Secret Service” to provide state and local authorities and the
National Center for Missing Exploited Children with investigative and forensic
services in missing and exploited children cases, 18 U.S.C. 3056(f). Within the
Secret Service, officers and agents conduct investigations, but employees provide
forensic services. The Conference bill changes “officers and agents of the Secret
Service” to simply “the Secret Service” to reflect this reality, proposed 18 U.S.C.
Sections 605 and 606. Secret Service Uniformed Division. The
Conference bill amends and transfers the organic authority for the Secret Service
Uniformed Division. The Conference report’s explanation is terse and in some
Section 605 of the conference report is a new section. This section places all
authorities of the Uniformed Division, which are currently authorized under title
3, in a newly created 18 U.S.C. §3056A, following the core authorizing statute
of the Secret Service (18 U.S.C. §3056), thereby organizing the Uniformed
Division under title 18 of the United States Code with other Federal law
enforcement agencies. H.Rept. 109-333, at 111 (2005).
167 “[M]odern Commerce Clause jurisprudence has identified three broad categories of
activity that Congress may regulate under its commerce power. First, Congress may
regulate the use of the channels of interstate commerce. Second, Congress is empowered
to regulate and protect the instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from intrastate activities.
Finally, Congress’ commerce authority includes the power to regulate those activities having
a substantial relation to interstate commerce, i.e., those activities that substantially affect
interstate commerce,” United States v. Morrison, 529 U.S. 598, 608-609 (2000)(internal
quotation marks and citations omitted); United States v. Lopez, 514 U.S. 549, 558-59 (1995).
168 “Congress has authority under the Spending Clause to appropriate federal moneys to
promote the general welfare, and it has corresponding authority under the Necessary and
Proper Clause, to see to it that taxpayer dollars appropriated under that power are in fact
spent for the general welfare, and not frittered away in graft or on projects undermined when
funds are siphoned off or corrupt public officers are derelict about demanding value for
dollars,” Sabri v. United States, 541 U.S. 600, 605 (2004).
What makes the statement curious is that the organic authority for most federal
law enforcement agencies is not found in title 18. For example, the Federal Bureau
of Investigation (FBI) and the Marshals Service provisions appear not in title 18 but
in title 28, 28 U.S.C. 531-540, 561-569; the Inspectors General Offices in appendices
to title 5, 5 U.S.C. App. III; the Coast Guard in title 14, 14 U.S.C. chs.1-25; the
Customs Service in title 19, 19 U.S.C. 2071-2083.
What is also somewhat curious is what is not said. There is no further
explanation of the additions, modifications, deletions or apparent duplications
associated with the transfer. Existing law lists a series of protective duties the
Uniformed Division is authorized to perform, 3 U.S.C. 202. Although it is more
geographically specific, it essentially reflects a similar list of some of the duties of
the Secret Service as a whole found in 18 U.S.C. 3056.169 The Conference bill adds
four protective duties to the list: protection of former presidents and their spouses,
protection of presidential and vice presidential candidates, protection of visiting
heads of state, and security for special events of nation significance, proposed 18
U.S.C. 3056A(a)(10)-(13). All but the special event provisions are already part of
the general Secret Service authority under section 3056 (18 U.S.C. 3056(a)(3),(7),
(5)). The bill also explicitly authorizes members of the Division to carry firearms,
make arrests under certain situations, and perform other duties authorized by law,
proposed 18 U.S.C. 3056A(b)(1) — authority they are likely to already enjoy by
operation of section 3056, 18 U.S.C. 3056(c)(1)(B), (C), (F), or by virtue of the fact
they are vested with “powers similar to those of members of the Metropolitan Police
of the District of Columbia,” 3 U.S.C. 202.
Unlike section 202 which is silent on the matter, the Conference bill specifically
permits the Secretary of Homeland Security to contract out protection of foreign
missions and foreign officials outside of the District of Columbia, proposed 18
The bill also repeals 3 U.S.C. 203 (relating to personnel, appointment and
vacancies), 204 (relating to grades, salaries, and transfers), 206 (relating to privileges
of civil-service appointees), 207 (relating to participation in police and firemen’s
relief fund),170 and 208(b)(relating to authorization of appropriations).
Section 607. Secret Service as a Distinct Entity. The conference report
statutorily declares the Secret Service a distinct entity within the Department of
Homeland Security, reporting directly to the Secretary.171
169 For example, while both 3 U.S.C. 202 and 18 U.S.C. 3056 authorize protection of the
President, Vice President and their families, section 202 authorizes the Uniformed Division
to protect the White House, any building housing presidential offices, the Treasury building
and certain foreign diplomatic missions located outside of the District of Columbia, 3 U.S.C.
170 Section 606 of the Conference bill, however, states the changes do “not affect the
retirement benefits of current employees or annuitants that existed on the day before the
effective date of this Act.”
171 “The United States Secret Service shall be maintained as a distinct entity within the
Department of Homeland Security and shall not be merged with any other Department
Section 608. Advisory Act Exceptions. Major presidential and vice
presidential candidates are entitled to Secret Service protection, 18 U.S.C.
3056(a)(7). The Secretary of Homeland Security identifies who qualifies as a
“major” candidate and therefore is entitled to protection after consulting with
advisory committee consisting of House Speaker and minority leader, the Senate
majority and minority leader and fifth member whom they select, id. The Secret
Service’s electronic crime task forces consist of federal and state law enforcement
members as well as representatives from academia and industry who share
information concerning computer security and abuse, 18 U.S.C. 3056 note.
The Federal Advisory Commission Act imposes notice, open meeting, record
keeping, and reporting requirements on groups classified as federal advisory
committees, 5 U.S.C. App. II. Advisory committees are committees, task forces, and
other groups established by the statute, the President, or an executive agency “in the
interest of obtaining advice and recommendations for” the President or federal
agencies, 5 U.S.C. App. II 3(2). No group consisting entirely of officers or
employees of the United States is considered an advisory committee for purposes of
the act, id.
It is not clear that either the candidates protection committee or the electronic
crimes task forces would be considered advisory committees for purposes of the act.
Even if the committee were not exempt because it consists entirely of federal
“officers or employees,” it seems highly unlikely that it is the type of committee
envisioned by Congress when it enacted the act.172 As for the task forces, it is not
clear that their function is to provide advice and recommendations for agency action.
In any event, the Conference bill exempts electronic crimes task forces and the
candidates protection advisory committee from provisions of the Federal Advisory
Committee Act, 18 U.S.C. 3056 note, 3056(a)(7).
Title VII: Methamphetamine
Section 701. Short Title. The short title for Title VII is “Combating
Methamphetamine Epidemic Act of 2005.”
Subtitle VII A: Precursors.
Neither the House nor the Senate bill passed with a methamphetamine title in
it; the conferees added Title VII, the Combat Methamphetamine Epidemic Act of
function. No personnel and operational elements of the United States Secret Service shall
report to an individual other than the Director of the Untied States Secret Service, who shall
report directly to the Secretary of Homeland Security without being required to report
through any other official fo the Department,” 18 U.S.C. 3056(g).
172 Public Citizen v. Department of Justice, 491 U.S. 440, 451-67(1989)(holding the act
inapplicable to American Bar Association committee whose advice the Department sought
regarding the qualifications of candidates for judicial appointment).
matters covered in Title VII.173 In many of its particulars, Title VII resembles H.R.
3889, the Methamphetamine Epidemic Elimination Act, as amended by the House
Committees on Energy and Commerce and on the Judiciary, H.Rept. 109-299 (pts.
1 & 2)(2005).174 It contains subtitles concerning regulation of domestic and
international commerce in three methamphetamine precursor chemicals: ephedrine,
pseudoephedrine, and phenylpropanolamine (EPP); increased penalties for
methamphetamine offenses; expanded environmentally related regulations; and
adjusted grant programs.
Sections 711-712. Sales Regulation — “Scheduled Listed
Chemicals”. The first part of the Title addresses the fact that certain cold and
allergy medicines — widely and lawfully used for medicinal purposes and readily
available in news stands, convenience stores, grocery stores, and drugstores — when
collected in bulk can be used to manufacture methamphetamine. At the federal level,
the Food and Drug Administration (FDA) regulates the commercial drug market to
ensure the public of safe and effective medicinal products pursuant to the Federal
Food Drug and Cosmetic Act, 21 U.S.C. 301-397. The Attorney General through the
Drug Enforcement Administration regulates the commercial drug market with respect
to drugs with a potential for addiction and abuse, pursuant to the Controlled
Substances Act, 21 U.S.C. 801- 904, and the Controlled Substances Import and
Export Act, 21 U.S.C. 951-971.
The degree of regulatory scrutiny afforded a particular drug classified as a
controlled substance and sometimes certain of the chemicals essential for its
production (precursor chemicals, also known as “list chemicals”) depends upon the
drug’s potential for abuse weighed against its possible beneficial uses.175 Those who
lawfully import, export, produce, prescribe, sell or otherwise dispense drugs
classified as controlled substances must be registered, 21 U.S.C. 958, 822. In the
case of controlled substances susceptible to abuse and therefore criminal diversion
and for certain of their precursor chemicals, the Attorney General may impose
production and import/export quotas, security demands, inventory control measures,
and extensive registration, record keeping and inspection requirements, 21 U.S.C.
821-830, 954-71. A wide range of civil and criminal sanctions, some of them quite
severe, may be imposed for violation of the Controlled Substances Act, the
Controlled Substances Import and Export Act, or of the regulations promulgated for
their implementation, 21 U.S.C. 841-863, 959-967.176
173 Related CRS Reports include, CRS Report RS22325, Methamphetamine: Legislation
and Issues in the 109th Congress, by Celinda Franco and CRS Report RS22177, The Legal
Regulation of Sales of Over-the-Counter Cold Medication, by Jody Feder.
174 In many respects, it is also compatible with S. 103 as reported by the Senate Committee
on the Judiciary without written report.
175 For example, the so-called “schedule I controlled substances” are those drugs that have
“high potential for abuse,” that have “no currently accepted medical use in treatment in the
United States,” and for which there are no “accepted safety for use . . . under medical
supervision,” 21 U.S.C. 812(b)(1).
176 See generally, CRS Report 97-141, Drug Smuggling, Drug Dealing and Drug Abuse:
Background and Overview of the Sanctions Under the Federal Controlled Substances Act
and Related Statutes, by Charles Doyle.
The Controlled Substances Act, in a dizzying array of criss-crossing exceptions
and definitions, permits the over-the-counter sale, without regulatory complications,
of cold remedies containing ephedrine, pseudoephedrine or phenlypropanolamine
(EPP) — methamphetamine precursors — in packages containing less than 3 grams
of EPP base (and in amounts not in excess of 9 grams of pseudoephedrine or
phenlypropanolamine base per transaction).177 Title VII eliminates the criss-
crossing178 and replaces it with a new regulatory scheme for “scheduled listed
chemical products,” i.e., EPP products,179 which:
- limits drugstore, convenience store, grocery store, news stand, lunch wagon
(mobile retailer), and other retail sales of EPP products to 3.6 grams of EEP base
per customer per day (down from 9 grams per transaction), proposed 21 U.S.C.
- limits mobile retail sales to 7.5 grams of EPP base per customer per month,
proposed 21 U.S.C. 830(e)(1)(A);
- insists that EPP products be displayed “behind the counter” (locked up in the
case of mobile retailers), proposed 21 U.S.C. 830(e)(1)(A);
- (other than for sales involving 60 milligrams or less of pseudoephedrine)
requires sellers to maintain a logbook (for at least two years) recording for every
purchase, the time and date of sale, the name and quantity of the product sold,
and name and address of the purchaser, proposed 21 U.S.C. 830(e)(1)(A);
- (other than for sales involving 60 milligrams or less of pseudoephedrine)
demands that purchasers present a government-issued photo identification, sign
the logbook for the sale noting their name and address, and the date and time of
the sale, proposed 21 U.S.C. 830(e)(1)(A);
177 All three chemicals are defined as “list I chemicals,” 21 U.S.C. 802(34)(C),(I),(K). List
I and List II chemicals are defined as “listed chemicals,” 21 U.S.C. 802(33). Several of the
act’s regulatory provisions apply to “regulated transactions” described as including the
distribution, receipt, sale, import or export of listed chemicals, 21 U.S.C. 802(39)(A).
Regulated transactions, however, do not include transactions involving FDA approved
drugs, 21 U.S.C. 802(39)(A)(iv), unless the drug contains EPP (except “ordinary over-the-
counter products” defined as products containing not more than 3 grams of an EPP base and
unless in liquid form are packaged in blister packs where feasible, 21 U.S.C. 802(45)), 21
U.S.C. 802(39)(iv)(I)(aa), or unless the drug is one the Attorney General has determined is
subject to diversion, 21 U.S.C. 802(39)(iv)(I)(bb), and the drug is one with a EPP base in
amounts in excess of a threshold established by the Attorney General (except that the
threshold for pseudoephedrine and phenylpropanolamine products may be no more than 9
grams of base per transaction and in packages containing no more than 3 grams of base), 21
178 Section 711 of the Conference bill replaces 20 U.S.C. 802(45); section 712 replaces 20
179 The bill defines a “scheduled listed chemicals product” as one “that contains ephedrine,
pseudoephedrine, or phenylpropanolamine” and “may be marketed or distributed lawfully
in the United States under the Federal, Food Drug, and Cosmetic Act as a nonprescription
drug,” proposed 21 U.S.C. 802(45)
- provides that the logbook must include a warning that false statements are
punishable under 18 U.S.C. 1001 with a term of imprisonment of not more than
five years and/or a fine of not more than $250,000 (not more than $500,000 for
organizations), proposed 21 U.S.C. 830(e)(1)(A), 830(e)(1)(D);
- states that sellers must provide, document, and certify training of their
employees on the EPP product statutory and regulatory requirements, proposed
- directs the Attorney General to promulgate regulations to protect the privacy
of the logbook entries (except for access for federal, state and local law
enforcement officials), proposed 21 U.S.C. 830(e)(1)(C);
- affords sellers civil immunity for good faith disclosure of logbook information
to law enforcement officials (unless the disclosure constitutes gross negligence
or intentional, wanton, or willful misconduct), proposed 21 U.S.C. 830(e)(1)(E);
- requires sellers take measures against possible employee theft or diversion and
preempts any state law which precludes them asking prospective employees
about past EPP or controlled substance convictions, proposed 21 U.S.C.
- sets September 30, 2006 as the effective date for the regulatory scheme (but the
Existing law imposes monthly reporting requirements on mail order sales of
EPP products, 21 U.S.C. 830(b)(3). Under the Conference bill those subject to the
reporting requirement must confirm the identity of their customers under procedures
established by the Attorney General, and sales are limited to 7.5 grams of EPP base
per customer per month, proposed 21 U.S.C. 830(e)(2). If the Attorney General
determines that an EPP product cannot be used to produce methamphetamine, he may
waive the 3.6 gram limit on retail sales and 7.5 gram limits on mail order and mobile
retail sales, proposed 21 U.S.C. 830(e)(3).
Sellers who knowingly violate the mail order regulations, or knowingly or
recklessly violate the sales regulations, or unlawfully disclose or refuse to disclose
EPP logbook sales information, or continue to sell after being prohibited from doing
so as a result of past violations, are subject to imprisonment for not more than one
year, and/or a fine of not more than $100,000 (not more than $200,000 for
organizations), and to a civil penalty of not more than $25,000, proposed 21 U.S.C.
842. During the 30 days after enactment but before the new purchase limits become
effective, knowing or intentional retail purchases more than 9 grams of EPP base (7.5
grams in the case of mail order purchases) are punishable by imprisonment for not
more than one year and/or a fine of not less than $1,000 nor more than $100,000 (not
more than $200,000 for an organization), proposed 21 U.S.C. 844(a).
Sections 713-714. Production Quotas. The Controlled Substances Act
allows the Attorney General to assess the total annual requirements for various
controlled substances and to impose manufacturing quotas accordingly, 21 U.S.C.
826. The Conference bill extends that authority to reach EPP production, proposed
21, U.S.C. 826. For violations, manufacturers face imprisonment for not more than
one year, and/or a fine of not more than $100,000 (not more than $200,000 for
organizations), and to a civil penalty of not more than $25,000, proposed 21 U.S.C.
Sections 715-718. Imports/Exports. The Attorney General enjoys broad
general authority to regulate controlled substances imported and exported for
legitimate purposes, 21 U.S.C. 952, 953 (neither section mentions listed chemicals).
Importers and exporters of list I chemicals (which includes EPP), however, must
register with the Attorney General, 21 U.S.C. 958. And they must notify the
Attorney General 15 days in advance of any anticipated shipment of listed chemicals
to or from the U.S. involving anyone other than a regular source or customer, 21
The Conference bill expands the statutory statement of the Attorney General’s
authority to regulate controlled substance imports to include EPP, proposed 21
U.S.C. 952. Moreover, it provides implicit statutory confirmation of the Attorney
General’s authority to set import quotas for EPP by authorizing him to increase the
quantity of chemicals importer’s registration permits him to bring into the country,
proposed 21 U.S.C. 952(d). Here and its other adjustments concerning imports and
exports, the Conference bill instructs the Attorney General to confer with the U.S.
Trade Representative in order to ensure continued compliance with our international
Subtitle VII B: International Regulation of Precursors.
Section 721. Foreign Distribution Chains. The Conference bill also
affords the Attorney General renewed notification when the listed chemical
transaction, for which approval was initially sought and granted, “falls through,” and
the importer or exporter substitutes a new subsequent purchaser, proposed 21 U.S.C.180
971. The Attorney General may require EPP importers to include “chain of
distribution” information in their notices that traces the distribution trial from foreign
manufacturers to the importer, proposed 21 U.S.C. 971(h). The Attorney General
may seek further information from foreign participants in the chain and refuse to
approve transactions involving uncooperative participants, proposed 21 U.S.C.
971(h)(2), (h)(3). Failure to comply with these expanded notice requirements or the
bills’s EPP import registration and quota provisions is punishable by imprisonment
for not more than 10 years and /or a fine of not more than $250,000 (not more than
$500,000 for organizations), proposed 21 U.S.C. 960(d)(6).
Sections 722-723. Foreign Assistance to Source Countries. The
Foreign Assistance Act calls for an annual report on the drug trafficking and related
money laundering activities taking place in countries receiving assistance, 22 U.S.C.
180 H.Rept. 109-333 (2005)(“A problem can arise, however, when the sale that the importer
or exporter originally planned falls through. When this happens the importer or exporter
must quickly find a new buyer for the chemicals on what is called the “spot marker” —
wholesale market. Sellers are often under pressure to find a buyer in a short amount of time,
meaning that they may be tempted to entertain bids from companies without a strong record
of preventing diversion. More importantly, the Department of Justice has no opportunity
to review such transactions in advance and suspend them if there is a danger of diversion
to illegal drug production”).
2291h. Major illicit drug-producing and drug-transit countries are subject to a
procedure featuring presidential certification of cooperative corrective efforts, 22
U.S.C. 2291j. The Conference bill amends the reporting and certification
requirements to cover the five largest EPP exporting and the five largest EPP
importing countries with the highest rates of diversion, proposed 22 U.S.C. 2291h,
2291j.181 It also directs the Secretary of State in consultation of the Attorney General
to report to Congress on a plan to deal with the diversion. The Secretary is further
instructed to take diplomatic action to prevent methamphetamine smuggling from
Mexico into the United States and to report to Congress on results of the efforts.
Subtitle VII C: Enhanced Penalties.
Section 731. Smuggling Using Commuter Lanes. Unlawful possession
of methamphetamine is punishable by imprisonment for terms ranging from not more
than 20 years to imprisonment for life depending upon the amount involved and the
offender’s criminal record, 21 U.S.C. 841(b), 848. Unlawful possession of EPP is
punishable by imprisonment for terms ranging from not more than five years to
imprisonment for life depending upon the amount involved and the offender’s
criminal record, 21 U.S.C. 841(c), 848. Similar penalties follow smuggling
methamphetamine or EPP, 21 U.S.C. 960, 848. The Conference bill establishes a
consecutive term of imprisonment of not more than 15 years to be added to the
otherwise applicable sentence when the methamphetamine or EPP offense is
committed in connection with quick entry border procedures.
Section 732. Cooking on Federal Property. The fines for controlled
substance offenses that involve cultivation of a controlled substance on federal
property are not more than $500,000 individuals and $1 million for organizations, 21
U.S.C. 841(b)(5). The Conference bill establishes the same fine levels for
manufacturing a controlled substance on federal property, proposed 21 U.S.C.
Section 733. Drug King-Pins. The Controlled Substances Act punishes
major drug traffickers (those guilty of continuing criminal enterprise offenses
sometimes known as “drug king-pins”), 21 U.S.C. 848. Drug king-pins, whose
offenses involve 300 or more times the amount of controlled substance necessary to
trigger the sentencing provisions of 21 U.S.C. 841(b)(1)(B) or whose offenses
generate more than $10 million in gross receipts a year, face sentences of mandatory
life imprisonment. In the case of a drug king-pin trafficking in methamphetamine,
the Conference bill lowers the thresholds to 200 or more times the trigger amounts
or $5 million in gross receipts a year, proposed 21 U.S.C. 848(s).
Section 734: Cooking or Dealing Near Children. The Controlled
Substances Act doubles the otherwise applicable penalties for the distribution or
181 Similar provisions appear in the House-passed Foreign Relations Authorization Act,
Fiscal Years 2006 and 2007 (H.R. 2601)(§1007).
182 It is not clear why the amended provision refers to “cultivating or manufacturing,” rather
than simply “manufacturing” when for purposes of the Controlled Substances Act,
“manufacturing” includes “cultivating,” 21 U.S.C. 802(15), (22).
manufacture of controlled substances near schools, playgrounds, video arcades and
other similarly designated places likely to be frequented by children, 21 U.S.C. 860.
The Conference bill adds a penalty of imprisonment for not more than 20 years to the
otherwise applicable penalties for distributing, possessing with the intent to
distribute, or manufacturing methamphetamine anywhere where a child under 18
years of age is in fact present or resides, 21 U.S.C. 860a.
Section 735. Reports to the Sentencing Commission. The United
States Sentencing Commission establishes and amends federal sentencing guidelines,
which must be considered when federal courts impose sentence in a criminal case,
Every federal judicial district must provide the Commission with detailed reports on
each criminal sentence imposed by the district’s judges, 28 U.S.C. 994(w). The
Conference bill authorizes the Commission to establish the forms for such reports
and emphasizes the need for a written statement of reasons for the sentence imposed
including the reasons for any departure from the sentence advised the by the
guidelines, proposed 28 U.S.C. 994(w).
Section 736. Reports to Congress. The bill also requires the Attorney
General to report twice a year — to the Judiciary Committees; the House Energy and
Commerce Committee; the Senate Commerce, Science and Transportation
Committee; the House Government Reform Committee; and the Senate Caucus on
International Narcotics Control — on the Drug Enforcement Administration’s and
the Federal Bureau of Investigation’s allocation of resources to the investigation and
prosecution of methamphetamine offenses.
Subtitle VII D: Enhanced Cleanup Regulation.
Section 741. Transportation of Hazardous Materials. Under the
Hazardous Material Transportation Act, the Secretary of Transportation enjoys
regulatory authority over the transportation of certain explosive, toxic or otherwise
hazardous material, 49 U.S.C. 5103. The Conference bill instructs the Secretary to
report every two years to the House Committee on Transportation and Infrastructure
and to the Senate Committee on Commerce, Science, and Transportation on whether
he has designated as hazardous materials for purposes of the act, all
methamphetamine production by-products, proposed 49 U.S.C. 5103(d).
Section 742. Solid Waste Disposal. Under the Solid Waste Disposal Act,
the Administration of the Environmental Protection Agency identifies and lists toxic,
flammable, corrosive and otherwise hazardous waste, 42 U.S.C. 6921. The bill
requires the Administrator to report within two years of enactment, to the House
Committee on Energy and Commerce and the Senate Committee on Environment
and Public Works, on the information received from law enforcement agencies and
others identifying the by-products of illicit methamphetamine product and on which
of such by-products the Administrator considers hazardous waste for purposes of the
act, 42 U.S.C. 6921(j).
Section 743. Restitution for Methamphetamine Possession. The
Conference bill amends the provision, under which offenders convicted of violations
of the Controlled Substances Act or the Controlled Substances Import and Export
Act involving the manufacture of amphetamine or methamphetamine may be ordered
pay restitution and to reimburse governmental entities for cleanup costs, to
specifically include restitution and reimbursement in the case of offenses involving
simple possession or possession with intent to distribute, 21 U.S.C. 853(q).183 United
States v. Lachowski, 405 F.3d 696, 700 (8th Cir. 2005), held that the “offenses
involving the manufacture of amphetamine or methamphetamine” upon which a
restitution or reimbursement order might be based did not include unlawful
possession with intent to distribute methamphetamine. The conferees felt that
Lachowski “undermined the ability of the Federal government to seek cleanup costs
from methamphetamine traffickers who are convicted only of methamphetamine
possession — even when the methamphetamine lab in question was on the
defendant’s own property,” H.Rept. 109-333, at 116.
Subtitle VII E: Drug Courts and Grant Programs.
Sections 751-753. Drug Courts. The Attorney General may make grants
to state, local and tribal governments for the operation of drug courts, 42 U.S.C.
3797u. The Conference bill instructs the Attorney General to prescribe guidelines
or regulations to ensure that such programs feature mandatory drug testing and
mandatory graduated sanctions for test failures, proposed 42 U.S.C. 3797u(c), and
authorizes appropriations for FY2006 of $70 million, proposed 42 U.S.C.
3793(25)(A)(v)[inadvertently cited as 42 U.S.C. 2591(25)(A)(v)]. The Attorney
General is also directed to study the feasibility of a drug court program for low-level,
non-violent federal offenders and to report on the results by June 30, 2006.
Sections 754-756. Grant Programs. The conferees also agreed to create
three methamphetamine-related grant programs. One, section 754 of the Conference
bill, addresses public safety as well as methamphetamine manufacturing, trafficking
and use in “hot spots.” Appropriations of $99 million for each of the next five fiscal
years (2006-2010) are authorized for grants to the states under the program. The
second, section 755 of the Conference bill, authorizes appropriations of $20 million
for fiscal years 2006 and 2007 in order to provide grants to the states for programs
for drug-endangered children. The third program (services relating to
methamphetamine use by pregnant and parenting women offenders), section 756 of
the Conference bill, is available to state, local, and tribal governments and supported
an authorization of such appropriations as are necessary.
183 “The court, when sentencing a defendant convicted of an offense under this subchapter
or subchapter II of this chapter involving the manufacture, the possession, or the possession
with the intent to distribute, of amphetamine or methamphetamine, shall — (1) order
restitution as provided in sections 3612 and 3664 of Title 18; (2) order the defendant to
reimburse the United States, the State or local government concerned, or both the United
States and the State or local government concerned for the costs incurred by the United
States or the State or local government concerned, as the case may be, for the cleanup
associated with the manufacture of amphetamine or methamphetamine by the defendant, or
on premises or in property that the defendant owns, resides, or does business in; and (3)
order restitution to any person injured as a result of the offense as provided in section 3663A
of Title 18,” 21 U.S.C. 853(q)(Conference bill amendments in italics).