Terrorism: Section by Section Analysis of the USA PATRIOT Act

Order Code RL31200

CRS Report for Congress

Received through the CRS Web

Terrorism: Section by Section Analysis

of the USA PATRIOT Act

Updated December 10, 2001

name redacted

Senior Specialist

American Law Division

Congressional Research Service ˜ The Library of Congress

Terrorism: Section by Section Analysis of the USA

PATRIOT Act

Summary

The Uniting and Strengthening America by Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, P. L. 107-56,

is part of the Congressional response to September 11. It is the merger of two similar

bills. S.1510 passed the Senate on October 11, 147 Cong.Rec. S10604, and

H.R.2975 passed the House on October 12 after substituting the language of

H.R.3108 for its text, 147 Cong.Rec. H6775. Having informally resolved their

differences, the House enacted the measure in final form on October 24, 147

Cong.Rec. H7282, and the Senate on October 25, 147 Cong.Rec. S11059.

The Act consists of ten titles which, among other things:

• give federal law enforcement and intelligence officers greater authority (at least

temporarily) to gather and share evidence particularly with respect to wire and

electronic communications;

• amend federal money laundering laws, particularly those involving overseas

financial activities;

• create new federal crimes, increase the penalties for existing federal crimes,

and adjust existing federal criminal procedure, particularly with respect to acts

of terrorism;

• modify immigration law, increasing the ability of federal authorities to prevent

foreign terrorists from entering the U.S., to detain foreign terrorist suspects, to

deport foreign terrorists, and to mitigate the adverse immigration consequences

for the foreign victims of September 11; and

• authorize appropriations to enhance the capacity of immigration, law

enforcement, and intelligence agencies to more effectively respond to the threats

of terrorism.

Several proposals, offered while the Act was under consideration, were not

among the provisions ultimately enacted, e.g., revision of the McDade-Murtha

Amendment (relating to the application of professional conduct standards to federal

prosecutors), measures to combat illegal Internet gambling, and are thus beyond the

scope of this report.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Title I – Enhancing Domestic Security Against Terrorism . . . . . . . . . . . . . 1

Title II – Enhanced Surveillance Procedures . . . . . . . . . . . . . . . . . . . . . . . . 4

Title III – International Money Laundering Abatement and

Anti-Terrorist Financing Act of 2001 . . . . . . . . . . . . . . . . . . . . . . . . 19

Subtitle A–International Counter Money Laundering and

Related Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Subtitle B–Bank Secrecy Act Amendments and Related Improvements . . 25

Subtitle C–Currency Crimes and Protection . . . . . . . . . . . . . . . . . . . . . . . 30

Title IV – Protecting the Border . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Subtitle A – Protecting the Northern Border . . . . . . . . . . . . . . . . . . . . . . 32

Subtitle B – Enhanced Immigration Provisions . . . . . . . . . . . . . . . . . . . . . 33

Subtitle C – Preservation of Immigration Benefits for

Victims of Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Title V – Removing Obstacles to Investigating Terrorism . . . . . . . . . . . . . 39

Title VI – Providing for Victims of Terrorism, Public Safety Officers,

and Their Families . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Subtitle A – Aid to Families of Public Safety Officers . . . . . . . . . . . . . . . . 42

Subtitle B – Amendments to the Victims of Crime Act of 1984 . . . . . . . . 43

Title VII – Increased Information Sharing for Critical

Infrastructure Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Title VIII – Strengthening the Criminal Laws Against Terrorism . . . . . . . 45

Title IX – Improved Intelligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Title X – Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Terrorism: Section by Section Analysis of the

USA PATRIOT Act

Introduction

The Uniting and Strengthening America by Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Public Law

107-56, is part of the Congressional response to September 11. It is the merger of

two similar bills. S.1510 passed the Senate on October 11, 147 Cong.Rec. S10604,

and H.R.2975 passed the House on October 12 after substituting the language of

H.R.3108 for its text, 147 Cong.Rec. H6775. Having informally resolving their

differences, the House enacted the measure in final form on October 24, 147

Cong.Rec. H7282, and the Senate on October 25, 147 Cong.Rec. S11059.

The report of the House Committee on the Judiciary, H.Rept. 107-236 on

H.R.2975, and the report of the House Committee on Financial Services, H.Rept.

107-250 on H.R. 3004, each explain some of the issues ultimately resolved in the Act.

This is a section by section analysis of the Act as enacted. The analysis borrows

the explanations of the House Committee of the Judiciary, in a number of those

instances where the language of the Committee bill and the language of the Act are

identical.

Section 1. Short Title and Table of Contents.

The Act may be cited as the “Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT

ACT) Act of 2001.”

Section 2. Construction; Severability.

Section 2 confirms that the Act’s provisions should be given maximum effect

and that should any provision be found invalid or unenforceable it should be severed

and the remainder the Act allowed to remain in effect.

Title I – Enhancing Domestic Security Against Terrorism

Section 101. Counterterrorism Fund.

Congress created a Counterterrorism Fund to reimburse the Department of

Justice for the costs of reestablishing operating capacity lost as a consequence of the

destruction of the Alfred P. Murrah Federal Building in Oklahoma City and for other

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counterterrorism expenditures, Public Law 104-19, 109 Stat. 249 (1995). This

section takes a similar course in order to reimburse the Justice Department for the

costs of (1) reestablishing the operating capacity of facilities damaged or destroyed

by terrorists; (2) preventing, investigating and prosecuting terrorism by various means

including the payment of rewards (without limitation); and (3) conducting terrorism

threat assessments of federal facilities. The Fund is also available to reimburse federal

agencies for costs associated with overseas detention of individuals accused of

terrorism in violation of United States law.

Section 102. Sense of Congress Condemning Discrimination Against Arab and

Muslim Americans.

It is the sense of Congress that the civil rights and civil liberties of all Americans,

including Arab Americans, Muslim Americans, and Americans from South Asia,

should be protected; that violence and discrimination against any American should be

condemned; and that the patriotism of Americans from every ethnic, racial, and

religious background should be acknowledged.

Section 103. Increased Funding for the Technical Support Center at the Federal

Bureau of Investigation.

This section authorizes appropriations of $200 million for each of fiscal years

2002, 2003, and 2004 for the FBI’s Technical Support Center, created by section 811

of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132,

110 Stat. 1314 (1996).

Section 104. Requests for Military Assistance to Enforce Prohibition in Certain

Emergencies.

The Posse Comitatus Act and its administrative auxiliaries, 18 U.S.C. 1385, 10

U.S.C. 375, ban the use of the armed forces to execute civilian law, absent explicit

statutory permission. Pre-existing statutory exceptions covered Department of Justice

requests for technical assistance in connection with emergencies involving biological,

chemical or nuclear weapons, 18 U.S.C. 2332e, 175a, 229E, 831(e), and 10 U.S.C.

382. This section amends section 2332e to include emergencies involving other

weapons of mass destruction.

Section 105. Expansion of National Electronic Crime Task Force Initiative.

In order to counter various forms of electronic crime including those directed

against the Nation’s critical infrastructure and financial systems, this section instructs

the Director of the United States Secret Service to establish a network of electronic

crime task forces modeled after the New York Electronic Crimes Task Force.

Section 106. Presidential Authority.

The International Emergency Economic Powers Act (IEEPA), 50 U.S.C. 1701

et seq., grants the President emergency economic powers when faced with

extraordinary threats to our national security, foreign policy or economic well being.

Under such conditions, for example, he may freeze the assets located in this country

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of a foreign nation or national responsible for the threat. During war time, the

Trading with the Enemy Act (TWEA) gives him the power to confiscate enemy

property located in the United States , 50 U.S.C. App. 1 et seq.

Section 106 amends section 703 of IEEPA, 50 U.S.C. 1702, to permit the

President to confiscate foreign property in response to foreign aggression. The

authority becomes available when the United States is engaged in armed hostilities or

has been attacked by a foreign country or its nationals. At that time, the property of

any foreign person, organization, or nation which planned, authorized, aided or

engaged in the hostilities or attack becomes forfeitable. The President or his delegate

may determine the particulars under which the property is confiscated, administered

and disposed of, subject to an innocent owner defense created by section 316 of the

USA PATRIOT Act. Elsewhere, the USA PATRIOT Act gives the President an

alternative means to confiscate the same property on similar grounds (section 806).

Section 106 is intriguing because on one hand it seems a logical extension of

IEEPA and TWEA, but on the other it appears to revive the constitutionally suspect

forfeiture of estate. Forfeiture of estate was a creature of the common law.1 Upon

conviction and attainder, a felon or traitor forfeited all of his property. Statutory

forfeiture, a more familiar feature of American law, consists of the confiscation of

contraband, the fruits of crimes, and the means to commit a crime – untaxed whiskey,

the drug dealer’s profits, and the rum runner’s ship.

Three distinguishing features characterize forfeiture of estate. The property is

lost solely by reason of its ownership by the felon or traitor; there need be no other

nexus to the crime. As a consequence, it works the confiscation of all of a felon’s

property, not just his crime-related property. Third, it extinguishes his future right to

hold property and no title to property may pass through him to his heirs.2

It is this last feature, this “corruption of the blood”, which the authors of the

Constitution found most distasteful. They decreed that “no attainder of treason shall

work corruption of blood, or forfeiture except during the life of the person attainted,”

U.S.Const. Art. III, §3, cl.2. And when first assembled in Congress, they extended

the ban to all federal crimes: “no conviction or judgment for any offences aforesaid,

shall work corruption of blood, or any forfeiture of estate,” 1 Stat. 117 (1790).3

1

“Three kinds of forfeiture were established in England at the time the Eighth Amendment

was ratified in the United States: deodand, forfeiture, and statutory forfeiture. . . . Of

England’s three kinds of forfeiture, only the third took hold in the United States,” Austin v.

United States, 509 U.S. 602, 611-12 (1993).

2

Statutory forfeitures have often been accomplished through civil proceedings conducted in

rem with the offending property treated as defendant. As a result, some came to believe that

the necessity of the property owner’s criminal conviction constituted the essential distinction

between forfeiture of estate and statutory forfeiture. Yet, occasional forfeiture statutes have

predicated confiscation upon the owner’s conviction throughout our history. Moreover, it

defies credibility to claim that forfeiture of estate’s only ameliorating attribute is its only

essential element.

3

The statutory ban, and its successors, remained in effect until 1984 when it was repealed

(continued...)

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During the Civil War, Congress authorized the confiscation of the property of

supporters of the Confederacy, 12 Stat. 589 (1862), but in deference to President

Lincoln’s constitutional doubts interest in the property reverted to the offender’s heirs

upon his death, 12 Stat. 627 (1862).

On the other hand, confiscation under the Trading With the Enemy Act

(TWEA), looks for all intents and purposes like the confiscation of estate of the

property of an enemy nation or national, 50 U.S.C. App. 5(b). Yet the Supreme

Court has upheld TWEA as a valid exercise of the war power without mentioning of

any obstacle interposed by constitutional reservations concerning forfeiture of estate,

Silesian American Corp. v. Clark, 332 U.S. 469 (1947).4

Section 106 also amends IEEPA to cover situations where either the covered

foreign person or the covered property are within this country or otherwise subject

to the jurisdiction of the United States. It allows the President to freeze assets during

the pendency any International Emergency Economic Act investigation rather than

await its outcome as was previously the case. Finally, it permits the government to

present, in secret (ex parte and in camera), any classified information upon which an

IEEPA decision has been based should the decision be subject to judicial review.

Title II – Enhanced Surveillance Procedures

Section 201. Authority to Intercept Wire, Oral, and Electronic Communications

Relating to Terrorism.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

2510 et seq. establishes a judicially supervised procedure under which law

enforcement authorities may intercept wire, oral, or electronic communications. The

procedure, however, is only available in connection with the investigations of

specifically designated serious crimes. Section 201 adds several terrorism offenses

to Title III’s list of designated offenses:

! chemical weapons offenses, 18 U.S.C. 229;

! use of weapons of mass destruction, 18 U.S.C. 2332a;

! violent acts of terrorism transcending national borders, 18 U.S.C. 2332b;

! financial transactions with countries which support terrorism, 18 U.S.C.

2332d;

! material support of terrorists, 18 U.S.C. 2339A; and

3

(...continued)

through misunderstanding as part of comprehensive revision of federal criminal law, 18

U.S.C. 3563 (1982 ed.).

4

Cf., Societe Internationale v. Rogers, 357 U.S. 197, 211 (1958)(“this summary power to

seize property which is believed to be enemy-owned is rescued from constitutional invalidity

under the Due Process and Just Compensation Clauses of the Fifth Amendment only by those

provisions of the Act which afford a non-enemy claimant a later judicial hearing as to the

propriety of the seizure”)(no suggestion that due process likewise condemns forfeiture of

estate in cases that do not involve treason).

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! material support of terrorist organizations, 18 U.S.C. 2339B.

The section makes a technical correction in 18 U.S.C. 2516 by designating as

18 U.S.C. 2516(1)(r) one of the two paragraphs previously identified as 18 U.S.C.

2516(1)(p). Section 201 is subject to the sunset provisions of section 224.

Section 202. Authority to Intercept Wire, Oral, and Electronic Communications

Relating to Computer Fraud and Abuse Offenses.

Section 202 adds computer fraud and abuse to the Title III predicate offense list.

This section is subject to the sunset provisions of section 224.

Section 203. Authority to Share Criminal Investigative Information.

Previously, federal law enforcement officers who uncovered details of the

activities of international terrorist organizations or of foreign agents in this country

were often not free to pass the information on to federal intelligence officers. This

section allows federal law enforcement officers to share a limited range of foreign

intelligence information, notwithstanding earlier limitations such as those involving

the use of grand jury information or Title III evidence.

Rule 6(e) of the Federal Rules of Criminal Procedure prohibits disclosure of

matters occurring before a federal grand jury. The Rule recognizes exceptions for

disclosures in other judicial proceedings, to prevent abuse of the grand jury process,

for presentation of evidence to other grand juries, and to state law enforcement

officials.

Section 203 creates an exception for intelligence matters. It covers information

(1) related to the protection of the United States against a foreign attack or other

foreign hostile action, against sabotage or international terrorism by a foreign power

or its agents, or against foreign clandestine intelligence activities; (2) concerning a

foreign power or territory related to the national defense, security, or foreign affairs

activities of the United States; or (3) constituting foreign intelligence or

counterintelligence as defined in section 3 of the National Security Act of 1947 (that

is, (a) “information relating to the capabilities, intentions, or activities of foreign

governments or elements thereof, foreign organizations, or foreign persons” or (b)

“information gathered and activities conducted to protect against espionage, other

intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign

governments or elements thereof, foreign organizations, or foreign persons,” 50

U.S.C. 401a(2), (3)).

Now when such information comes to light during the course of a federal grand

jury investigation, it may be passed on to other Federal law enforcement, intelligence,

protective, immigration, national defense, or national security officials, but only for

use in the official duties. Within a reasonable time thereafter, Federal prosecutors

must notify the court of the disclosure under seal. Prosecutors must also follow

disclosure procedures outlined by the Attorney General when sharing intelligence

information that identifies an American citizen or a permanent resident alien.

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When authorities executing a Title III interception order discover this same type

of intelligence evidence, they may reveal it to any of these same officers for use in

their official duties. Before the passage of section 203, such information could only

be shared for law enforcement purposes, 18 U.S.C. 2517. As in the case of grand jury

information, Title III intelligence information that identifies an American citizen or a

permanent resident alien can be divulged only pursuant to disclosure procedures

outlined by the Attorney General.

Finally, section 203 creates a generic exception to any other law which purports

to bar federal law enforcement officials from disclosing this type of intelligence

information to these federal officers for official use. The section’s amendments to

Title III are subject to the sunset provisions of section 224, the grand jury and generic

exceptions are not.

Section 204. Clarification of Intelligence Exceptions From Limitations on

Interception and Disclosure of Wire, Oral and Electronic Communications.

Title III at one time stated that the interception of wire or oral communications

for foreign intelligence purposes should be governed by the provisions of the Foreign

Intelligence Surveillance Act (FISA) rather than those of Title III or of chapter 121

of title 18 of the United States Code (relating to stored wire and electronic

communications and transactional records access) or of the Federal Communications

Act, 18 U.S.C. 2511(2)(f). Section 204 amends this instruction in 18 U.S.C.

2511(2)(f) to confirm that in foreign intelligence investigations, FISA governs the

interception of electronic communications and the use of pen registers and trap and

trace devices as well. This section is subject to the sunset provisions of section 224.

Section 205. Employment of Translators by the Federal Bureau of Investigation.

Existing law sometimes waives personnel requirements and limitations in order

to fill positions requiring foreign language skills, e.g., 22 U.S.C. 1474(1)(relating to

employment of translators with respect to United States Information and Educational

Exchange Programs); 22 U.S.C. 4024(a)(4)(B) (relating to the employment of

linguists in connection United States Foreign Service training).

Section 205 waives otherwise applicable personnel requirements and limitations

to permit the Federal Bureau of Investigation (FBI) to hire translators expeditiously

to support counterintelligence investigations and operations. The Director of the FBI

will see to the necessary security requirements. The Attorney General will report to

the Committees on the Judiciary on the number of translators employed by the FBI

and by the Department of Justice, on the impediments to using translators employed

by other government agencies, on the FBI’s needs, and on his recommendations to

meet the FBI’s needs for translation services. This section is not subject to the sunset

provisions of section 224.

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Section 206. Roving Surveillance Authority Under the Foreign Intelligence

Surveillance Act of 1978.

Speaking of identical language in an earlier bill, the House Committee on the

Judiciary explained: “Section 1805(c)(2)(B) of title 50, permits the FISA court to

order third parties, like common carriers, custodians, landlords and others, who are

specified in the order, (specified persons) to provide assistance and information to law

enforcement authorities in the installation of a wiretap or the collection of information

related to a foreign intelligence investigation.

“Section 152 amends 1805(c)(2)(B) to insert language that permits the FISA

court to direct the order to <other persons’ if the court finds that Section

1805(c)(2)(B) of title 50, permits the FISA court to order third parties, like common

carriers, custodians, landlords and others, who are specified in the order, (specified

persons) to provide assistance and information to law enforcement authorities in the

installation of a wiretap or the collection of information related to a foreign

intelligence investigation. Section 152 amends 1805(c)(2)(B) to insert language that

permits the FISA court to direct the order to <other persons’ if the court finds that

the `actions of the target of the application may have the effect of thwarting the

identification of a specified person,’ who would be required to assist in the installation

of any court-authorized intercept. This amendment is intended to expand the existing

authority to allow for circumstances where the court finds that the actions of a target

may thwart the identification of a specified person in the order. This is usually

accomplished by the target moving his location. The move necessitates the use of

third parties other than those specified in the original order to assist in installation of

the listening device.

“This amendment allows the FISA court to compel any such new necessary

parties to assist in the installation and to furnish all information, facilities, or technical

assistance necessary without specifically naming such persons. Nevertheless, the

target of the electronic surveillance must still be identified or described in the order

as under existing law.

“For example, international terrorists and foreign intelligence officers are trained

to thwart surveillance by changing hotels, cell phones, Internet accounts, etc. just

prior to important meetings or communications. Under present law, each time this

happens the government must return to the FISA court for a new order just to change

the name of the third party needed to assist in the new installation. The amendment

permits the court to issue a generic order that can be presented to the new carrier,

landlord or custodian directing their assistance to assure that the surveillance may be

undertaken as soon as technically feasible,” H.Rept. 107-256, at 59-60 (2001). This

section is subject to the sunset provisions of section 224.

Section 207. Duration of FISA Surveillance of Non-United States Persons Who are

Agents of a Foreign Power.

Prior to the USA PATRIOT Act, unless directed at a foreign power, FISA

surveillance orders and extensions expired after ninety days, and FISA physical search

orders and extensions were effective for no more forty-five days, 50 U.S.C. 1805(e),

1824(d)(2000 ed.). Section 207 extends the tenure of physical search orders to ninety

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days. Surveillance and physical search orders may now remain in effect for up to 120

days with extensions for up to a year, 50 U.S.C. 1805(e), 1824(d). This represents

a compromise over the Justice Department’s original proposal which would have set

the required expiration date for orders at one year instead of 120 days. This section

is subject to the sunset provisions of section 224.

Section 208. Designation of Judges.

FISA is in essence a series of procedures available to secure court orders in

certain foreign intelligence cases. It operates through a special court which before

passage of section 208 consisted of seven judges, scattered throughout the country,

two of whom are now from the Washington, D.C. area. Section 208 authorizes the

appointment of four additional judges and requires that three members of the court

reside within twenty miles of the District of Columbia, 50 U.S.C. 1803(a). This

section is not subject to the sunset provisions of section 224.

Section 209. Seizure of Voice-Mail Messages Pursuant to Warrants.

Section 209 treats voice mail like e-mail. Thus, Federal officers may gain access

with a warrant or court order. They need no longer resort to the more demanding

regime of Title III that applies in the case of live telephone conversations, United

States v. Smith, 155 F.3d 1050, 1055-56 (9th Cir. 1998). This section is subject to

the sunset provisions of section 224.

Section 210. Scope of Subpoenas for Records of Electronic Communications.

“Terrorists and other criminals often use aliases in registering for Internet and

telephone services. This creates a problem for law enforcement attempting to identify

the suspects of terrorist acts or criminal acts that often support the terrorists. While

the government currently can subpoena electronic communications or a remote

computing services provider for the name, address and length of service of a suspect,

this information does not help when the suspected terrorist or criminal lies about his

or her identity. Permitting investigators to obtain credit card and other payment

information by a subpoena, along with subscriber information (already permitted to

be obtained under current law), will help law enforcement track a suspect and

establish his or her true identity.

“This section amend[s] 18 U.S.C. 2703(c) to authorize a subpoena for

transactional records to include information regarding the form of payment in order

to assist law enforcement in determining the user’s identity,” H.Rept. 107-236, at 567 (2001). This section is not subject to the sunset provisions of section 224.

Section 211. Clarification of Scope.

Telephone and electronic communications providers may be required to provide

law enforcement officials with customer identifying information without notifying

their customers, 18 U.S.C. 2705(b). Cable companies are prohibited from disclosing

customer identifying information without customer approval, 47 U.S.C. 551 et. seq.

When cable companies began to offer communications services, uncertainty arose

over whether law enforcement access to their customers records was to be governed

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by the standards applicable to the communications industry or by the earlier cable

standards, see In re Application of U.S.A. for an Order Pursuant to 18 U.S.C.

2703(d), 158 F.Supp.2d 644 (D.Md. 2001)(holding the cable provisions implicitly

repealed and summarizing existing ambivalent case law).

Section 211 resolves the question by amending the Communications Act, 47

U.S.C. 551, to make it clear that when a cable company offers communications

services it is subject to the provisions of Title III, and chapters 121 and 206 of title

18 of the United States Code (relating to stored wire and electronic communications

and transactional records access and to pen registers and trap and trace devices,

respectively). Cable customer video subscription records, however, remain in the

shelter of the Communications Act protection. Section 211 is not subject to the

sunset provisions of section 224.

Section 212. Emergency Disclosure of Electronic Communications to Protect Life

and Limb.

As the House Committee on the Judiciary observed with respect to a

substantively identical provision: “This section amends 18 U.S.C. 2702 to authorize

electronic communications service providers to disclose the communications (or

records relating to such communications) of their customers or subscribers if the

provider reasonably believes that an emergency involving immediate danger of death

or serious physical injury to any person requires disclosure of the information without

delay.

“This section would also amend the law to allow communications providers to

disclose non-content information (such as the subscriber’s login records). Under

current law, the communications provider is expressly permitted to disclose content

information but not expressly permitted to provide non-content information. This

change would cure this problem and would permit the disclosure of the less-protected

information, parallel to the disclosure of the more protected information.” H.Rept.

107-236, at 58 (2001). This section is subject to the sunset provisions of section 224.

Section 213. Authority for Delaying Notice of the Execution of a Warrant.

Standing alone, Rule 41 of the Federal Rules of Criminal Procedure seems to

preclude delayed notification of the execution of “sneak and peek” warrants. A sneak

and peek warrant is one that authorizes officers to secretly enter (either physically or

electronically), conduct a search, observe, take measurements, conduct examinations,

smell, take pictures, copy documents, download or transmit computer files, and the

like; and depart without taking any tangible evidence or leaving notice of their

presence. The Rule on its face requires that after the execution of a federal search

warrant officers leave a copy of the warrant and an inventory of what they have seized

and advise the issuing court what they have done, F.R.Crim.P. 41(d).

The lower federal courts are divided over the extent to which the Rule reflects

Fourth Amendment requirements. The Ninth Circuit sees the Fourth Amendment in

Rule 41, United States v. Freitas, 800 F.2d 1451, 1453 (9th Cir. 1986). The Fourth

Circuit finds no Fourth Amendment offense in search warrants secretly executed and

seizures of intangible evidence that remain unannounced until weeks thereafter,

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United States v. Simons, 206 F.3d 392 (4th Cir. 2000). The Second Circuit, whose

views the Congress found persuasive, 147 Cong.Rec. H7197 (daily ed. Oct. 23,

2001), thinks the validity of sneak and peek warrants and of delayed notice are better

judged by Rule 41 standards, United States v. Pangburn, 983 F.2d 449 (2d Cir.

1993).

Section 213 rests on the belief that the Fourth Amendment does not condemn

either sneak and peek warrants or delayed notice. For searches conducted under a

warrant issued pursuant to Rule 41 or under a warrant or court order issued pursuant

to any other rule of law, it adopts the delayed notification standards of 18 U.S.C.

2705 (relating to delayed notification of the execution of a court order authorizing

government access to electronic communications held in third party storage for longer

than 180 days). An issuing court may order notice delayed for a reasonable period

of time and with good cause extensions, if it finds reasonable cause to believe that

contemporaneous notification may have any of the adverse consequences described

in section 2705. Section 2705 mentions “(A) endangering the life or physical safety

of an individual; (B) flight from prosecution; (C) destruction of or tampering with

evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously

jeopardize an investigation or unduly delay a trial” as the kinds of adverse

consequences that justify delay. Unless the court concludes seizure is reasonably

necessary, the section only permits delayed notification if the warrant prohibits the

seizure of any stored wire or electronic information (unless otherwise authorized), of

any tangible property, or of any wire or oral communications. Section 213 is not

subject to the sunset provisions of section 224.

Section 214. Pen Register and Trap and Trace Authority Under FISA.

Trap and trace devices and pen registers are devices which secretly identify the

source and destination of calls made to and from a particular telephone. Intelligence

officers may use them pursuant to a court order authorized in the Foreign Intelligence

Surveillance Act. Section 214 grants the request of the Department of Justice for

elimination of the requirements which limited FISA pen register and trap and trace

device orders to facilities used by foreign agents or those engaged in international

terrorist or clandestine intelligence activities, 50 U.S.C. 1842(c)(3)(2000 ed.).

Applicants must still certify that the devices are likely to reveal information relevant

to a foreign intelligence investigation.

Section 214 also adjusts the language of the FISA pen register-trap and trace

authority to permit its use to capture source and destination information for electronic

communications (e.g., e-mail) as well as telephone communications, 50 U.S.C.

1842(d). Finally, the section makes it clear that requests for a FISA pen register-trap

and trace order, like requests for other FISA orders, directed against Americans and

permanent resident aliens (U.S. persons) may not be based solely on activities

protected by the First Amendment, 50 U.S.C. 1842, 1843. Section 214 is subject to

the sunset provisions of section 224.

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Section 215. Access to Records and Other Items Under the Foreign Intelligence

Surveillance Act.

FISA previously allowed senior officials of the Federal Bureau of Investigation

to apply for a court order, in connection with a foreign intelligence investigation, for

access to the records of common carriers, public accommodation providers, physical

storage facility operators, and vehicle rental agencies, 50 U.S.C. 1861-1863 (2000

ed.).

Section 215 rewrites those provisions. Assistant Special Agents in Charge of the

FBI field offices may now also apply. The court orders extend to any tangible object

held by anyone. Items sought need not relate to an identified foreign agent or foreign

power as was once the case, but they may only be sought as part of an investigation

to protect the United States from international terrorism or clandestine intelligence

activities. Nor may they be sought in conjunction with the investigation of an

American or permanent resident alien predicated solely on the basis of activities

protected by the First Amendment. There is a good faith defense for anyone who

produces items in response to a court order under the section and production does not

constitute a waiver of applicable privilege. Section 215 is subject to the sunset

provisions of section 224.

Section 216. Modification of Authorities Relating to Use of Pen Registers and Trap

and Trace Devices.

With one critical exception, Section 216 tracks language in a similar section of

H.R. 2975. The House Committee on Judiciary’s description of that section is

instructive: “Under 18 U.S.C. 3121(b), law enforcement may obtain authorization

from a court, upon certification that the information to be obtained is relevant to a

pending criminal investigation, to install and use a <pen register’ device that identifies

the telephone numbers dialed or pulsed from (outgoing calls) or a <trap and trace’

device that identifies the telephone numbers to a particular telephone (incoming calls).

These court authorizations do not permit capturing or recording of the content of any

such communication under the terms of the court order.

“Currently, the government must apply for a new pen/trap order in every

jurisdiction where the target telephone is located. This can cause serious delays that

could be devastating to an investigation, particularly where additional criminal or

terrorist acts are planned.

“Section [216] does not change the requirement under 18 U.S.C. 3121 that law

enforcement seek a court order to install and use pen registers/trap and trace devices.

It does not change the law requiring that the attorney for the government certify to

the court that the information sought is relevant to an ongoing criminal investigation.

“This section does change the current law requiring the government to obtain the

order in the jurisdiction where the telephone (or its equivalent) is located. This section

authorizes the court with jurisdiction over the offense of the investigation to issue the

order, thus streamlining an investigation and eliminating the need to intrude upon the

resources of courts and prosecutors with no connection to the investigation.

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“Under the bill, 18 U.S.C. 3123(a) would authorize courts to issue a single pen

register/trap and trace order that could be executed in multiple jurisdictions anywhere

in the United States. The bill divides the existing 18 U.S.C. 3123(a) into two

paragraphs. The new subsection (a)(1) applies to Federal investigations and provides

that the order may be issued to any provider of communication services within the

United States whose assistance is appropriate to the effectuation of the order.

Subsection (a)(2) applies to State law enforcement and does not change the current

authority granted to State officials.

“This section updates the language of the statute to clarify that the pen/register

authority applies to modern communication technologies. Current statutory

references to the target <line,’ for example, are revised to encompass a <line or other

facility.’ Such a facility includes: a cellular telephone number; a specific cellular

telephone identified by its electronic serial number (ESN); an Internet user account

or e-mail address; or an Internet Protocol (IP) address, port number, or similar

computer network address or range of addresses. In addition, because the statute

takes into account a wide variety of such facilities, section 3123(b)(1)(C) allows

applicants for pen register or trap and trace orders to submit a description of the

communications to be traced using any of these or other identifiers.

“Moreover, the section clarifies that orders for the installation of pen register and

trap and trace devices may obtain any non-content information – <dialing, routing,

addressing, and signaling information’ – utilized in the processing or transmitting of

wire and electronic communications.5 Just as today, such an order could not be used

to intercept the contents of communications protected by the wiretap statute. The

amendments reinforce the statutorily prescribed line between a communication’s

contents and non-content information, a line identical to the constitutional distinction

drawn by the U.S. Supreme Court in Smith v. Maryland, 442 U.S. 735, 741 43

(1979).

“Thus, for example, an order under the statute could not authorize the collection

of email subject lines, which are clearly content. Further, an order could not be used

to collect information other than <dialing, routing, addressing, and signaling’

information, such as the portion of a URL (Uniform Resource Locator) specifying

Web search terms or the name of a requested file or article.

“This concept, that the information properly obtained by using a pen register or

trap and trace device is non-content information, applies across the board to all

communications media, and to actual connections as well as attempted connections

(such as busy signals and similar signals in the telephone context and packets that

merely request a telnet connection in the Internet context).

“Further, because the pen register or trap and trace <device’ is often incapable

of being physically <attached’ to the target facility due to the nature of modern

communication technology, section 101 makes two other related changes. First, in

“Thus, for example, non-content information contained in the <options field’ of a network

packet header constitutes <signaling’ information and is properly obtained by an authorized

pen register or trap and trace device.”

5

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recognition of the fact that such functions are commonly performed today by software

instead of physical mechanisms, the section allows the pen register or trap and trace

device to be <attached or applied’ to the target facility. Likewise, the definitions of

<pen register’ and <trap and trace device’ in section 3127 are revised to include an

intangible <process’ (such as a software routine) which collects the same information

as a physical device.

“Section [216](c) amends the definition section to include a new nexus standard

under 3127(2)(A) to provide that the issuing court must have jurisdiction over the

crime being investigated rather than the communication line upon which the device

is to be installed. This section is also amended to account for the new technologies

relating to the different modes of communication.

“Section [216](d) amends section 3124(d) to ensure that communication

providers continue to be covered under that section. Technology providers are

concerned that the single order provisions of section 101 of the bill eliminates the

protection of 3124(d) of title 18 that provides that <no cause of action shall lie in any

court against any provider of a wire or electronic communication service, its officers,

employees, agents, or other specified persons for providing information, facilities, or

assistance in accordance with the terms of a court order.’ Once there is a nation-wide

order it will not specify the provider and thus, the providers believe they could

become liable upon compliance with the order. The intent of the current statutory

language is to protect providers who comply with court orders, which direct them to

assist law enforcement in obtaining the non-content information. The bill removes the

phrase <the terms of’ so that the phrase reads <in accordance with a court order.’ This

will keep the requirement of a court order but protect the providers even when that

order does not specify the provider.

“Current practice includes compliance with pen registers and trap and trace

orders by the service provider using its systems and technologies to provide the

government all non-content information ordered by the order without the installation

of an additional device by the government to capture that order. It is intended that

these alternative compliance procedures should continue when the provider is willing

and technologically able to comply with the order by these means in an efficient,

complete and timely manner.

“Additionally, this section clarifies that upon request, those being served with the

generic pen/trap order created under this section shall receive written or electronic

certification from the serving officer or official stating that the assistance provided is

related to the order,” H.Rept. 107-236, at 52-4 (2001).

The critical difference in section 216 is its reporting feature. Federal agents

executing a pen register or trap and trace order involving an electronic

communications service to the public must report the details of the device’s

installation and use to the issuing court within 30 days of termination of the order.

This section is not subject to the sunset provisions of section 224.

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Section 217. Interception of Computer Trespasser Communications.

“Cyberattacks may be the work of terrorists or criminals. These attacks come in

many forms that cost companies and citizens millions of dollars and endanger public

safety. For instance, the denial-of-service attacks, where the objective of the attack

is to disable the computer system, can shut down businesses or emergency responders

or national security centers. This type of attack causes the target site’s servers to run

out of memory and become incapable of responding to the queries of legitimate

customers or users. The victims of these computer trespasser’s should be able to

authorize law enforcement to intercept the trespasser’s communications. Section

[217] amends current law to clarify that law enforcement may intercept such

communications when authorized by the victims, under limited circumstances.

“Section [217](1) of the bill adds to the definitions under 18 U.S.C. 2510 the

term: (1) <protected computer’ and provides that the term has the same meaning set

forth in 1030 of title 18; and (2) the term <computer trespasser’ means a person who

is accessing a protected computer without authorization and thus has no reasonable

expectation of privacy in any communication transmitted to, through, or from the

protected computer.

“Section [217](2) of the bill amends current law to allow victims of computer

intrusions to authorize law enforcement to intercept the communications of a

computer trespasser [that have been transmitted to, from or through the protected

computer], under limited circumstances. The circumstances are: (1) the owner or

operator of the protected computer must authorize the interception of the trespasser’s

communications; (2) the person who intercepts the communication must be lawfully

engaged in an investigation; (3) the person acting under color of law has reasonable

grounds to believe that the contents of the computer trespasser’s communication to

be intercepted will be relevant to the investigation; and (4) the investigator may only

intercept communications of the computer trespasser,” H.Rept. 107-236, at 55-6

(2001). This section is subject to the sunset provisions of section 224.

Section 218. Foreign Intelligence Information.

The USA PATRIOT Act contemplates a closer working relationship between

criminal and intelligence investigators than has previously been the case. As originally

enacted the application for a FISA surveillance order required certification of the fact

that “the purpose for the surveillance is to obtain foreign intelligence information,” 50

U.S.C. 1804(a)(7)(B)(2000 ed.)(emphasis added). From the beginning, defendants

have questioned whether authorities had used a FISA surveillance order against them

in order to avoid the predicate crime threshold for a Title III order. Out of these

challenges arose the notion that perhaps “the purpose” might not always mean the

sole purpose.6

6

In United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980), decided after

FISA became effective but on the basis of pre-existing law, the court declared, “as the district

court ruled, the executive should be excused from securing a warrant only when the

surveillance is conducted <primarily’ for foreign intelligence reasons. We think that the

district court adopted the proper test, because once surveillance becomes primarily a criminal

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The Justice Department sought FISA surveillance and physical search authority

on the basis of “a” foreign intelligence purpose. Section 218 instead demands

certification that foreign intelligence gathering is a “significant purpose” for the FISA

surveillance or physical search order application, 50 U.S.C. 1804(a)(7)(B),

1823(a)(7)(B). This a more exacting standard than the “a purpose” threshold

proposed by the Justice Department, but a clear departure from the original “the

purpose” entry point. FISA once described a singular foreign intelligence focus

prerequisite for any FISA surveillance application, a focus that implicitly discouraged

law enforcement participation. Section 218 encourages coordination between

intelligence and law enforcement officials. Section 504, discussed below, confirms

that such coordination is no impediment to a “significant purpose” certification, 50

U.S.C. 1806(k), 1825(k). Section 218 is subject to the sunset provisions of section

224.

Section 219. Single-Jurisdiction Search Warrants for Terrorism.

“Rule 41(a) of the Federal Rules of Criminal Procedure currently requires that

a search warrant be obtained within the judicial district where the property to be

searched is located. The only exception is where property or a person now in the

investigation, the courts are entirely competent to make the usual probable cause

determination, and because, importantly, individual privacy interests come to the fore and

government foreign policy concerns recede when the government is primarily attempted to

form the basis for a criminal prosecution.” Subsequent case law, however, is not as clear as

it might be: e.g., United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984)(“FISA permits

federal officials to obtain orders authorizing electronic surveillance for the purpose of

obtaining foreign intelligence information. The requirement that foreign intelligence

information be the primary objective of the surveillance is plain not only from the language

of Sec. 1802(b) but also from the requirements in Sec. 1804 as to what the application must

contain. The application must contain a certification by a designated official of the executive

branch that the purpose of the surveillance is to acquire foreign intelligence information, and

the certification must set forth the basis for the certifying officials’s belief that the information

sought is the type of foreign intelligence information described”); United States v. Pelton, 835

F.2d 1067, 1075-76 (4th Cir. 1987)(“We also reject Pelton’s claim that the 1985 FISA

surveillance was conducted primarily for the purpose of his criminal prosecution, and not

primarily for the purpose of obtaining foreign intelligence information. . . . We agree with the

district court that the primary purpose of the surveillance, both initially and throughout was

to gather foreign intelligence information. It is clear that otherwise valid FISA surveillance

is not tainted simply because the government can anticipate that the fruits of the surveillance

may later be used . . . as evidence in a criminal trial”); United States v. Sarkissian, 841 F.2d

959, 907-8 (9th Cir. 1988)(“Defendants rely on the primary purpose test articulated in United

States v. Truong Dinh Hung. . . . One other court has applied the primary purpose test.

Another court has rejected it . . . distinguishing Truong. A third court has declined to decide

the issue. We also decline to decide the issue”); United States v. Johnson, 952 F.2d 565, 572

(1st Cir. 1991)(“Appellants attack the government’s surveillance on the ground that it was

undertaken not for foreign intelligence purposes, but to gather evidence for a criminal

prosecution. FISA applications must contain, among other things, a certification that the

purpose of the requested surveillance is the gathering of foreign intelligence information. . .

.Although the evidence obtained under FISA subsequently may be used in criminal

prosecutions, the investigation of criminal activity cannot be the primary purpose of the

surveillance”).

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district might leave before the warrant is executed. This restriction often causes

unnecessary delays and burdens on law enforcement officers investigating terrorist

activities that have occurred across multiple judicial districts. These delays can have

serious adverse consequences on an ongoing terrorism investigation,” H.Rept. 107236, at 72 (2001).

Section 219 allows a magistrate in the district in which a domestic or

international terrorism investigation is being conducted to issue a warrant to be

executed either “within or outside the district,” F.R.Crim.P. 41(a)(3). Although most

useful in criminal investigations spanning a number of states within the United States,

nothing in the section expressly precludes its application overseas when the law of the

place permits such execution.

The Fourth Amendment does not apply to the overseas searches of the property

of foreign nationals, United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), but

it does reach the search of American property overseas by American authorities,

United States v. Barona, 56 F.3d 1087, 1092 (9th Cir. 1995). Yet neither Rule 41

nor any other provision of prior federal law apparently contemplated extraterritorial

execution of federal search warrants, cf., F.R.Crim.P.41, Advisory Committee Notes:

1990 Amendment (discussing a proposal for exterritorial execution that the Supreme

Court rejected).7 Section 219 is not subject to the sunset provisions of section 224.

Section 220. Nationwide Service of Search Warrants for Electronic Evidence.

“Title 18 U.S.C. 2703(a) requires a search warrant to compel service providers

to disclose unopened e-mails. This section does not affect the requirement for a search

warrant, but rather attempts to address the investigative delays caused by the

cross-jurisdictional nature of the Internet. Currently, Federal Rules of Criminal

Procedure 41 requires that the <warrant’ be obtained <within the district’ where the

property is located. An investigator, for example, located in Boston who is

investigating a suspected terrorist in that city, might have to seek a suspect’s

electronic e-mail from an Internet service provider (ISP) account located in California.

The investigator would then need to coordinate with agents, prosecutors and judges

in the district in California where the ISP is located to obtain a warrant to search.

These time delays could be devastating to an investigation, especially where additional

criminal or terrorist acts are planned.

“Section [220] amends 2703 to authorize the court with jurisdiction over the

investigation to issue the warrant directly, without requiring the intervention of its

7

The Code does still carry remnants of the consular courts which speak of the overseas

execution of arrest warrants in places where the United States has “extraterritorial

jurisdiction,” 18 U.S.C. 3042. The history of the provision makes it clear that the phrase

“extraterritorial jurisdiction” was intended to coincide with those places in which we had

consular courts, see, S.ReptNo. 73-217, at. 3 (1934), reprinted, 78 Cong.Rec. 4982-983

(1934)(“The countries to which the proposed bill, if enacted into law, would relate are the

following, in which the United States exercises extraterritorial jurisdiction: China, Egypt,

Ethiopia, Muscat, and Morocco”); 22 U.S.C. 141 (1926 ed.)(conferring judicial powers on

consular courts there identified as those located in China, Egypt, Ethiopia, Muscat, Morocco,

Siam and Turkey).

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counterpart in the district where the ISP is located,” H.Rept. 107-236, at 57 (2001).

Section 220 is subject to the sunset provisions of section 224.

Section 221. Trade Sanctions.

The Trade Sanctions Reform and Export Enhancement Act of 2000, Title IX of

Public Law 106-387, 114 Stat. 1549A-67, restricts the President’s authority to

impose unilateral agricultural and medical sanctions, subject to certain exceptions.

One of the exceptions permits an export ban on products that might be “used to

facilitate the development or production of a chemical or biological weapon or

weapon of mass destruction,Ӥ904(2)(C). Section 221 amends paragraph 904(2)(C)

to enlarge the ban to reach products that might facilitate the design, development or

production of such weapons. The section amends subsection 906(a) of the trade

sanctions act to allow for the sale of agricultural and medical products to entities in

Syria and North Korea and to permit such sales under license to areas of Afghanistan

controlled by the Taliban.

The section further declares that the trade sanctions act should not be construed

to curtail criminal or civil penalties available with respect to the export of agricultural

products, medicine, or medical devices in violation of restrictions on dealings with:

• a foreign individual or entity designated pursuant to Executive Order 12947,

50 U.S.C. 1701 note (Prohibiting Transactions With Terrorists);

• a foreign terrorist organization, 18 U.S.C. 2339B;

• a foreign individual or entity designated pursuant to Executive Order 13224,

66 Fed.Reg. 49077 (Sept. 25, 2001)(Blocking Property . . . [of] Persons Who

. . . Support Terrorism);

• a narcotics trafficker designated pursuant to Executive Order 12979, 50 U.S.C.

1701 note (Blocking Assets . . . With Significant Narcotics Traffickers) or to the

Foreign Narcotics Kingpin Designation Act, Public Law 106-120; or

• any foreign individual or entity subject to restriction for involvement in

weapons of mass destruction or missile proliferation.

This section is not subject to the sunset provisions of section 224.

Section 222. Assistance to Law Enforcement Agencies.

FISA, Title III, and the related provisions of law now compel communications

service providers to assist in the execution of court orders issued under those

authorities, e.g., 50 U.S.C. 1805(c)(2)(B), 18 U.S.C. 2518(4). The House Committee

on the Judiciary observed with regard to an earlier version of this section that, “this

Act is not intended to affect obligations under the Communications Assistance for

Law Enforcement Act, 47 U.S.C. 1001 et seq., nor does the Act impose any

additional technical obligation or requirement on a provider of wire or electronic

communication service or other person to furnish facilities or technical assistance,”

H.Rept. 107-236, at 62-3 (2001). In its final form, the section guarantees reasonable

reimbursement for the costs of service providers, landlords, custodians and others

who supply facilities and technical assistance pursuant to section 216 (relating to law

enforcement pen registers and trap and trace orders). This section is not subject to

the sunset provisions of section 224.

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Section 223. Civil Liability of Certain Unauthorized Disclosures.

Section 223 establishes a claim against the United States for not less than

$10,000 and costs for violations of Title III, chapter 121, or the Foreign Intelligence

Surveillance Act (FISA), and emphasizes the prospect of administrative discipline for

offending federal officials. This section is subject to the sunset provisions of section

224.

Section 224. Sunset.

Several of the amendments which grant federal law enforcement or intelligence

officers expanded interception powers expire with respect to any foreign intelligence

investigation initiated after January 1, 2006 and to any criminal investigation of

misconduct occurring only after that date. The provisions which expire are:

!section 201 (authority to intercept wire, oral, and electronic communications

relating to terrorism);

!section 202 (authority to intercept wire, oral, and electronic communications

relating to computer fraud and abuse offenses);

subsection 203(b) (authority to share electronic, wire, and oral interception

information);

!subsection 203(d) (general authority to share foreign intelligence

information);

!section 204 (clarification of intelligence exceptions from limitations on

interception and disclosure of wire, oral, and electronic communications);

!section 206 (roving surveillance authority under the Foreign Intelligence

Surveillance Act of 1978);

!section 207 (duration of FISA surveillance of non-United States persons who

are agents of a foreign power),

!section 209 (seizure of voice-mail messages pursuant to warrants);

!section 212 (emergency disclosure of electronic surveillance);

!section 214 (pen register and trap and trace authority under FISA);

!section 215 (access to records and other items under the Foreign Intelligence

Surveillance Act);

!section 217 (interception of computer trespasser communications);

!section 218 (foreign intelligence information);

!section 220 (nationwide service of search warrants for electronic evidence);

!section 223 (civil liability for certain unauthorized disclosures); and

!section 225 (immunity for compliance with FISA wiretap).

The permanent sections and subsections of title II, which do not expire, are:

!subsection 203(a) (sharing grand jury information);

!subsection 203(c) (Attorney General guidelines for sharing grand jury

information);

!section 205 (employment of FBI translators);

!section 208 (number and residence of FISA court judges);

!section 210 (nation wide subpoenas for electronic communications records),

!section 211 (clarification of scope of cable provider obligations);

!section 213 (delayed notification of sneak and peek warrant execution);

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!section 216 (modification of authorities relating to pen registers and trap and

trace devices);

!section 219 (single-jurisdiction search warrants for terrorism);

!section 221 (trade sanctions); and

!section 222 (assistance to law enforcement agencies).

Section 225. Immunity for Compliance With FISA Wiretap.

The Foreign Intelligence Surveillance Act orders may include instructions

requiring communications service providers and others to assist officers in the

execution of the order, 50 U.S.C. 1805(c)(2)(B), 1824(c)(2)(B), 1842(c)(2)(B).

Section 225 immunizes those who do from civil liability, 50 U.S.C. 1805(h). This

section is subject to the sunset provisions of section 224.

Title III – International Money Laundering Abatement and AntiTerrorist Financing Act of 20018

Section 301. Short Title.

The popular name for Title III of the USA PATRIOT Act is the International

Money Laundering Abatement and Financial Anti-Terrorism Act of 2001.

Section 302. Findings and Purposes.

Section 302 describes the findings and purposes for the enactment of the

International Money Laundering Abatement and Financial Anti-Terrorism Act.

Section 303. 4-Year Congressional Review; Expedited Consideration.

The International Money Laundering Abatement and Financial Anti-Terrorism

Act of this title will sunset after four years upon passage of joint resolution of

repealed. Any joint resolution of repeal is to be afforded “fact track” consideration.

Subtitle A–International Counter Money Laundering and

Related Measures

Section 311. Special Measures for Jurisdictions, Financial Institutions, or

International Transactions of Primary Money Laundering Concern.

Section 311 authorizes the Secretary of the Treasury (the Secretary) to impose

certain regulatory restrictions, known as “special measures,” upon finding that a

jurisdiction outside the U.S., a financial institution outside the U.S., a class of

transactions involving a jurisdiction outside the U.S., or a type of account, is “of

8

(name red acted),

a legislative attorney in the American Law Division prepared the

section by section analysis of Title III.

CRS-20

primary money laundering concern.” To make this finding, the Secretary must consult

with the Secretary of State and the Attorney General and consider certain factors

relating to the foreign jurisdiction or the particular institution targeted. Among the

factors relating to a jurisdiction are: involvement with organized crime or terrorists,

bank secrecy laws and regulations, the existence a mutual legal assistance treaty with

the U.S., and level of official corruption. The special measures generally involve

detailed record keeping and reporting requirements relating to underlying transactions

and beneficial ownership of accounts. Special measures could involve prohibiting the

maintenance of payable-through or correspondent accounts for such institutions or

jurisdictions, provided that there has been consultation with the Secretary of State,

the Attorney General, and the Chairman of the Federal Reserve Board, as well as with

other appropriate federal banking agencies and consideration has been given to

whether other nations have taken similar action, whether there would be a significant

competitive disadvantage on U.S. financial institutions, and effect upon the

international payment system. “Account” is defined for banks, with authority

delegated to the Secretary to define the term for other financial services businesses

upon consultation with the appropriate federal regulators. The Secretary is required

to issue a regulation defining “beneficial ownership” for purposes of this legislation.

Section 312. Special Due Diligence for Correspondent Accounts and Private

Banking Accounts.

Section 312 requires every financial institution with a private banking or

correspondent account for a foreign person or bank to establish policies and controls

designed to detect and report money laundering through the accounts. If a

correspondent account is maintained for a foreign bank that operates under an

offshore license–i.e., does not and may not do banking business in the chartering

country–or that is licensed by a jurisdiction designated for special measures or listed

as non-cooperative by an international organization in which the U.S. participates and

concurs, enhanced due diligence policies are required. For correspondent accounts

for foreign banks, U.S. banks, at the minimum, must secure ownership information

on the foreign bank, maintain enhanced scrutiny of the account, and ascertain due

diligence information on the foreign banks for which the target bank provides

correspondent banking services. For foreign private banking clients, i.e., those with

aggregated deposits of $1,000,000, information must be secured on the identity of the

owners of the accounts, including beneficial owners, and the source of the funds;

enhanced scrutiny is required for accounts held for senior foreign political figures.

This section becomes effective 9 months after enactment; regulations must be issued

within 6 months of enactment.

Section 313. Prohibition on United States Correspondent Accounts with Foreign

Shell Banks.

Section 313 prohibits U.S. banks, thrifts, private banks, foreign bank agencies

and branches operating in the U.S., and brokers and dealers licensed under the

Securities Exchanges Act of 1934, 15 U.S.C. 78a et seq., from maintaining

correspondent accounts for foreign shell banks–banks that have no physical presence

in any country. It requires that the covered institutions take reasonable steps to

preclude their providing services to such shell banks through other banks and requires

the Secretary to issue implementing regulations.

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Section 314. Cooperative Efforts to Deter Money Laundering.

Section 314 requires the Secretary to issue regulations within 120 days of

enactment to encourage further cooperation among financial institutions and

regulatory and law enforcement authorities to promote sharing information on

individuals, entities, and organizations engaged in or suspected of engaging in terrorist

acts or money laundering. In these regulations, the Secretary may require each

financial institution to designate persons to receive information and to monitor

accounts and to establish procedures to protect the shared information. No

information received by a financial institution under this provision may be used for any

purpose other than identifying and reporting activities involving terrorism or money

laundering. If a financial institution uses this information for those purposes, it may

not be held liable for unauthorized disclosure or failure to provide a notice under any

law or regulation, state or federal, or any contract or agreement. The Secretary is

required to provide a semiannual report analyzing suspicious activity reports.

Section 315. Inclusion of Foreign Corruption Offenses As Money Laundering

Crimes.

Section 315 adds to the list of offenses under foreign law, the proceeds of which

may form an element of a federal money laundering prosecution: any crime of

violence; bribery of a public official; theft, embezzlement, or misappropriation of

public funds; certain smuggling or export control violations; and, offenses for which

the U.S. would be obliged to extradite alleged offenders. Also added would be

certain offenses under the U.S. criminal code relating to customs, importation of

firearms, firearms trafficking, computer fraud and abuse, and felony violations of the

Foreign Agents Registration Act.

Section 316. Anti-Terrorist Forfeiture Protection.

Prior to enactment of the USA PATRIOT Act, the President had authority to

order the vesting of seized foreign assets under the Trading With the Enemy Act

§5(b), 50 U.S.C. App. 5(b), which applies when there has been a declaration of war,

but not under the International Emergency Economic Powers Act (IEEPA), 50 U.S.

C. 1702), which applies when the President has declared the existence of an unusual

or extraordinary threat to the U.S. national security, foreign policy, or economy

having its source, in whole or substantial part, outside the United States. Section 106

of the new law amends IEEPA to authorize the President, “when the United States

is engaged in armed hostilities or has been attacked by a foreign country or foreign

nationals,” to “confiscate any property, subject to the jurisdiction of the United States,

of any foreign person, foreign organization, or foreign country that he determines has

planned, authorized, aided, or engaged in such hostilities or attacks against the United

States.”

Section 316 authorizes judicial review of confiscation of terrorist related assets

and sets forth two defenses for those claiming the property that must be proven by a

preponderance of the evidence: (1) that the property is not subject to forfeiture under

the applicable law, and (2) the innocent owner defense detailed in the criminal

forfeiture provision of 18 U.S.C. 983(d). It also authorizes the government to offer

otherwise inadmissible evidence provided the court finds that complying with the

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Federal Rules of Evidence would jeopardize national security. There is also a clause

alluding to the right to raise Constitutional claims and claims under the Administrative

Procedure Act and a savings clause preserving other remedies.

Section 317. Long-Arm Jurisdiction Over Foreign Money Launderers.

Section 317 provides jurisdiction over foreign persons, including financial

institutions, for substantive money laundering offenses under 18 U.S.C. 1956 and

1957, provided there is a valid service of process and either the offense involved a

transaction in the U.S. or the property has been the subject of a forfeiture judgment

or a criminal sentence. The district courts are authorized to appoint a receiver to take

control of the property.

Section 318. Laundering Money Through a Foreign Bank.

Section 318 amends the substantive money laundering criminal statute, 18

U.S.C. 1956, to cover laundering money through a foreign bank.

Section 319. Forfeiture of Funds in United States Interbank Accounts.

Section 319 amends 18 U.S.C. 981 to permit forfeiture, including forfeiture

under the Controlled Substances laws, of accounts in offshore offices of foreign banks

by substituting funds in interbank accounts in U.S. financial institutions up to the

value of the funds in the targeted account. The section authorizes the Attorney

General to suspend or terminate such a forfeiture action on conflict-of-law grounds

or upon a finding that to do so would be in the interest of justice and would not harm

the national interests of the U.S.

Section 319, effective within 60 days of enactment, amends the Currency and

Transaction Reporting Act, 31 U.S.C. 5311, et seq., to require U.S. banks, thrifts,

private banks, foreign bank agencies and branches operating in the U.S., and brokers

and dealers licensed under the Securities Exchanges Act of 1934, 15 U.S.C. 78a et

seq., to provide federal regulators, upon request, information on the institution’s

compliance with anti-money laundering requirements or on a customer’s account,

within 120 hours. It also authorizes the Secretary of the Treasury or the Attorney

General to subpoena records from a foreign bank that has a correspondent account

in the U.S. that relate to that account, including records maintained abroad. It

requires U.S. institutions maintaining correspondent accounts for foreign banks to

maintain records identifying the owners of such foreign banks and indicating the name

and address of a U.S. resident authorized to accept service of legal process for

records relating to the correspondent account. U.S. institutions having such

correspondent accounts are required to provide federal law enforcement officers with

these names and addresses within 7 days of receiving a request and are required to

terminate correspondent accounts within 10 business days of receiving a notice from

the Secretary or the Attorney General that the foreign bank has failed to comply with

a subpoena or to contest its issuance. U.S. financial institutions are not to be held

liable for terminating such accounts and are subject to civil penalties of $10,000 per

day for failing to do so.

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This section also amends the criminal forfeiture provisions of the Controlled

Substances Act, 21 U.S.C. 853(p) and 853(e) to permit a court to order return to the

jurisdiction of substitute assets, property that may be substituted for unreachable

property subject to forfeiture, and to issue a pre-trial order to a defendant to

repatriate such substitute assets.

Section 320. Proceeds of Foreign Crimes.

Section 320 authorizes the forfeiture of property derived from or traceable to

violations of felonious foreign controlled substances laws, provided the offense is

punishable by death or a term of imprisonment of more than one year under the law

of the foreign nation and under U.S. law, had it occurred within the jurisdiction of the

U.S.

Section 321. Financial Institutions Specified in Subchapter II of Chapter 53 of Title

31, United States Code.

Section 321 adds credit unions and CFTC-regulated or registered futures

commission merchants, commodity trading advisors, and commodity pool operators

to the specific list of financial institutions subject to the requirements of the Currency

and Foreign Transaction Reporting Act. Pre-existing law did not specifically include

these entities although it delegated broad authority to the Secretary to apply the

requirements to “any other business ... whose cash transactions have a high degree of

usefulness in criminal, tax, or regulatory matters.”

Section 322. Corporation Represented by a Fugitive.

Section 322 amends 28 U.S.C. 2466 to include corporations having a majority

stockholder who is a fugitive, thus, disallowing such corporations to file innocent

owner to successfully pursue innocent owner claims in a civil or criminal forfeiture

cases.

Section 323. Enforcement of Foreign Judgments.

Section 323 amends 28 U.S.C. 2467 to extend authority for judicial enforcement

of foreign confiscation from the previous provisions limiting such enforcement to

confiscations related to drug trafficking offenses. Under the newly enacted provision

U.S. district courts may enforce foreign confiscations related to any offense under

foreign law that, if committed under U.S. law, would have permitted forfeiture.

Section 324. Report and Recommendation.

Section 324 requires the Secretary of the Treasury, within 30 months of

enactment, to report on operations respecting the provisions relating to international

counter-money laundering measures and any recommendations to Congress as to

advisable legislative action.

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Section 325. Concentration Accounts at Financial Institutions.

Section 325 authorizes the Secretary of the Treasury to prescribe regulations

governing maintenance of concentration accounts by financial institutions. If issued,

such regulations must prohibit financial institutions from allowing clients to direct

transactions through those accounts, prohibit financial institutions from informing

customers of the means of identifying such accounts, and require each financial

institution to establish written procedures to document all transactions involving a

concentration account that amounts belonging to each customer may be identified.

Section 326. Verification of Identification.

Section 326 requires the Secretary of the Treasury, jointly with appropriate

regulators of financial institutions, within a year of enactment, to prescribe minimum

standards for identifying customers opening accounts at financial institutions. These

are to include procedures to verify customer identity and maintain records of

information used to verify identity. They are also to require that government lists of

terrorists and terrorist organizations be consulted. Under this section, the Secretary

is required to submit a report to Congress within six months of enactment,

recommending a means of insuring similarly accurate identification of foreign

nationals, requiring an identification number similar to a Social Security number or a

tax identification number for foreign nationals opening accounts at financial

institutions, and setting up a system for financial institutions to review information

held by government agencies to verify identities of foreign nationals opening accounts.

Section 327. Consideration of Anti-Money Laundering Record.

Section 327 amends the Bank Holding Company Act and The Federal Deposit

Insurance Act, to require that, before approving certain acquisition or merger

applications under the Bank Holding Company Act or the Federal Deposit Insurance

Act, the Board of Governors of the Federal Reserve System and the Federal Deposit

Insurance Corporation must consider the institution’s effectiveness in combating

money laundering.

Section 328. International Cooperation on Identification of Originators of Wire

Transfers.

Section 328 requires the Secretary of the Treasury to encourage foreign

governments to require the name of the originator in wire transfer instructions and

include it from origination to disbursement. The Secretary is to report annually on

progress toward this end to House Financial Services Committee and Senate Banking,

Housing, and Urban Affairs Committee.

Section 329. Criminal Penalties.

Section 329 criminalizes the soliciting of a bribe by anyone acting on behalf of

an entity of the Federal Government in connection with the administration of the

International Money Laundering Abatement and Anti-Terrorist Financing Act of

2001, subject to a fine of up to three time the value of the thing of value constituting

the bribe, 15 years imprisonment, or both.

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Section 330. International Cooperation in Investigations of Money Laundering,

Financial Crimes, and the Finances of Terrorist Groups.

Section 330 states the sense of Congress that international negotiations should

be pursued for further cooperative efforts to insure that foreign financial institutions

maintain adequate records relating to foreign terrorist organizations and money

launderers and make such records available to U.S. law enforcement officials and

domestic financial institution supervisors.

Subtitle B–Bank Secrecy Act Amendments and Related

Improvements

Section 351. Amendments Relating to Reporting of Suspicious Activities.

Section 351 amends the Currency and Foreign Transactions Reporting Act, 31

U.S.C. 5318(g)(3), to extend the safe harbor provisions for financial institutions and

their employees who provide information as to possible law violations to cover all

voluntary disclosures of possible law violations made to any federal government

agency. Also covered are employees or agents of institutions who require others to

make such disclosures. The immunity provided under the legislation covers potential

liability under contracts and other legally enforceable agreements. Previously,

immunity was provided only for disclosures of violation of law or regulation pursuant

to law or regulation; there was no specific immunity for those requiring others to

make disclosures; and, immunity extended only to liability under laws or regulations

of the United States or constitution, law, or regulation of a state or political

subdivision thereof. The section makes it clear that the liability does not extend to

prosecutions brought by governmental entities. Disclosure to the subject of the tip-off

is prohibited. Information disclosed about potential law violations may be used in

employment references to other financial institutions as well as, under the rules of the

securities exchanges, in termination notices.

Section 352. Anti-Money Laundering Programs.

Section 352, effective 180 days after enactment, requires each financial

institution to develop an anti-money laundering program to include development of

internal policies, designation of a compliance officer, ongoing employee training, and

an independent audit function to test the programs. It authorizes the Secretary of the

Treasury to prescribe minimum standards for such programs and to exempt those

financial institutions that are not covered by the regulations promulgated under the

Currency and Foreign Transactions Reporting Act. It requires the Secretary to

prescribe regulations that consider the extent to which the requirements imposed

under this section comport with the size, location, and activities of the financial

institutions to which they apply.

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Section 353. Penalties for Violations of Geographic Targeting Orders and Certain

Recordkeeping Requirements, and Lengthening Effective Period of Geographic

Targeting Orders.

Section 353 extends the civil and criminal penalties under the Currency and

Foreign Transactions Reporting Act, 31 U.S.C. 5321(a) and 5322, to include

violations of geographic targeting orders issued under that Act and willful violations

of regulations prescribed under the record keeping requirements of the Bank Secrecy

Act, found in Section 21 of the FDIA, 12 U.S.C. 1829(b), or violations of regulations

covering uninsured financial institutions issued by Treasury under the authority of 12

U.S.C. 1951 - 1959. Before enactment of USA-PATRIOT, 12 U.S.C. 1829(b)

carried no criminal penalties and set civil penalties for violations of regulations issued

under 12 U.S.C. 1829(b) at up to $10,000. Section 1955 of Title 12, U.S.C. carried

civil penalties of up to $10,000; and, 12 U.S.C. 1956 carried a criminal penalty of up

to $1,000 and imprisonment for one year. 31 U.S.C. 5321(a) permits civil penalties

of $25,000 or the amount of the instrument (not to exceed $100,000); 31 U.S.C.

5322 permits criminal penalties of up to $250,000 in fines and imprisonment of up to

5 years for a single offense and enhancement for offenses committed in conjunction

with other offenses or as a pattern of criminal activity.

The section also extends the prohibitions on structuring transactions to avoid

reporting requirements, 31 U.S.C. 5324, to cover structuring to avoid geographic

targeting orders and record keeping requirements of the Bank Secrecy Act, found in

Section 21 of the FDIA, 12 U.S.C. 1829(b) and 12 U.S.C. 1951- 1959. It extends

the permissible length of geographic targeting orders from 60 to 180 days.

Section 354. Anti-Money Laundering Strategy.

Section 354 includes among the areas suggested for inclusion in the annual antimoney laundering strategy data regarding the funding of international terrorism acts.

Section 355. Authorization to Include Suspicions of Illegal Activity in Written

Employment References.

Section 355 authorizes depository institutions, “[n]otwithstanding any other

provision of law,” to disclose the possible involvement of institution-affiliated parties

in potentially unlawful activity. Such disclosures may be made to other insured

depository institutions requesting employment references, provided the disclosure is

not made with malicious intent.

Section 356. Reporting of Suspicious Activities Reports by Securities Brokers and

Dealers; Investment Company Study.

Section 356 requires the Secretary of the Treasury, by January 1, 2002, to

publish proposed regulations requiring registered brokers and dealers to file

suspicious activity reports under 31 U.S.C. 5318(g). It also authorizes the Secretary

to prescribe such regulations for futures commission merchants, commodity trading

advisors, and commodity pool operators registered under the Commodity Exchange

Act. It also requires a report, within one year of enactment, recommending effective

regulations under the Currency and Foreign Transactions Reporting Act for

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investment companies, as defined in the Investment Company Act of 1940, and to

evaluate the possibility of requiring trusts and personal holding companies to disclose

their beneficial owners when opening accounts at depository institutions.

Section 357. Special Report on Administration of Bank Secrecy Provisions.

Section 357 requires the Secretary of the Treasury to submit a report, within six

months of enactment, on the role of the Internal Revenue Service in administering the

Bank Secrecy Act’s Currency and Foreign Transactions Reporting Act. The report

is specifically to address such issues as whether processing of information is to be

shifted from the Internal Revenue Service and whether the Internal Revenue Service

is to retain authority for auditing money services and gaming businesses’ compliance.

Section 358. Bank Secrecy Provisions and Activities of United States Intelligence

Agencies to Fight International Terrorism.

Section 358 authorizes the Secretary of the Treasury to refer suspicious activity

reports to U.S. intelligence agencies for use in the conduct of intelligence or

counterintelligence activities to protect against international terrorism. It authorizes

the release of information under the Currency and Foreign Transactions Reporting

Act and other provisions of the Bank Secrecy Act, the Right to Financial Privacy Act,

and the Fair Credit Reporting Act, to U.S. intelligence agencies by amending 31

U.S.C. 5311, 5318(g)(4)(b), 5319; 12 U.S.C. 1829(b), 1953; 12 U.S.C. 3412(a); 15

U.S.C. 1681x.

Section 359. Reporting of Suspicious Activities by Underground Banking Systems.

Section 359 specifically includes “a licensed sender of money or any other person

who engages as a business in the transmission of funds, including any person who

engages as a business in an informal money transfer system or any network of people

who engage as a business in facilitating the transfer of money domestically or

internationally outside of the conventional financial institutions system” as a “financial

institution” subject to the requirements of the Currency and Foreign Transactions

Reporting Act. It subjects them to any regulations promulgated under the authority

of section 21 of the Federal Deposit Insurance Act, 12 U.S.C. 1829b. That section

of the law provides authority for the regulations issued under 31 C.F.R. Part 103,

requiring reports of currency and foreign transactions, including those requiring

suspicious activity reports from money services businesses, 31 C.F.R. § 103.20.

Section 359 also mandates a report by the Secretary, within a year of enactment, on

whether further legislation is needed with respect to these underground banking

systems, including whether the threshold for reporting suspicious activities ($2,000)

should be lowered for them.

Section 360. Use of Authority of United States Executive Directors.

Section 360 authorizes the President to direct the U. S. Executive Directors of

international financial institutions to use their voice and vote to support countries or

entities that have contributed to the U.S. anti-terrorism efforts and ensure that no

funds of their institutions are paid to persons who threaten to commit or support

terrorism. International financial institutions, as defined in 22 U.S.C. 262r(c)(2),

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include the International Monetary Fund, the International Bank for Reconstruction,

the European Bank for Reconstruction and Development, the International

Development Association, the International Finance Corporation, the Multilateral

Investment Guarantee Agency, the African Development Bank, the African

Development Fund, the Asian Development Bank, the Bank for Economic

Development and Cooperation in the Middle East and North Africa, and the

InterAmerican Investment Corporation.

Section 361. Financial Crimes Enforcement Network (FinCEN).

Section 361, by enacting 31 U.S.C. 310, transforms FinCEN from a Treasury

Department bureau established administratively to a statutory bureau in the Treasury

Department. It specifies that it is to be headed by a Director to be appointed by the

Secretary. It details its duties and powers, not all of which are summarized here.

Subject to applicable legal requirements and guidance by Treasury, FinCEN is to

maintain a government-wide data access service to information collected under the

anti-money laundering reporting laws, information on currency flows, and other

records maintained by other government offices as well as privately and publically

available information. It is to analyze and disseminate data : (1) to federal, state,

local, and foreign law enforcement officials to identify possible criminal activity; and

(2) to regulatory officials to identify possible violations of the anti-money laundering

reporting requirements. It is to determine emerging trends and methods in money

laundering, and support intelligence activities against international terrorism.

FinCEN is to establish and maintain a financial crimes communications center to

furnish law enforcement authorities with intelligence information relating to

investigations and undercover operations. It is to furnish informational services to

financial institutions, federal regulatory agencies, and law enforcement authorities, in

the interest of countering terrorism, organized crime, money laundering, and other

financial crimes. It is to assist law enforcement and regulatory authorities in

combating the use of informal nonbank networks permitting transfer of funds or the

equivalent of funds without records and in insuring compliance with criminal and tax

laws. It is to provide computer and data support and data analysis to the Secretary

of the Treasury for tracking and controlling foreign assets. It is to administer the antimoney laundering reporting requirements as delegated by the Secretary of the

Treasury.

Section 361 further specifies that the Secretary is to proscribe procedures with

respect to the government-wide data access service and the financial crimes

communications center maintained by FinCEN to provide efficient entry, retrieval,

and dissemination of information. This is to include a method for submitting reports

by Internet, cataloguing of information, and prompt initial review of suspicious

activity reports. Section 361 requires the Secretary to develop, in accordance with

the Privacy Act, 5 U.S.C. 552a, and the Right to Financial Privacy Act, 12 U.S.C.

3401, et seq., procedures for determining access, limits on use, and “how information

about activities or relationships which involve or are closely associated with the

exercise of constitutional rights are screened out.”

Appropriations of such sums as are necessary are authorized for fiscal years

through 2005.

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The Secretary is to study methods for improving compliance with the reporting

requirements under 31 U.S.C. 5314, relating to foreign currency transactions, and to

submit an annual report to Congress on the subject, beginning six months after

enactment.

Section 362. Establishment of Highly Secure Network.

Section 362 requires the Secretary to establish as operational within nine months,

a highly secure network in FinCEN to allow financial institutions to file electronically

reports required under the Bank Secrecy Act and to provide financial institutions with

alerts and other information regarding suspicious activities warranting immediate and

enhanced scrutiny.

Section 363. Increase in Civil and Criminal Penalties for Money Laundering.

Section 363 amends 31 U.S.C. 5321(a) and 5322 to permit the Secretary to

impose a civil money penalty and a court to impose a criminal penalty equal to 2 times

the amount of the transaction, but not more than $1,000,000 for violations of the

suspicious activity reporting requirements, under 31 U.S.C. 5318(i) and (j) or any

special measures imposed under 31 U.S.C. 5318A. Under pre-existing law, the

Secretary had authority to impose a civil money penalty of the amount of the

transaction, up to $100,000, or $25,000; and, a criminal fine for a violation of the

suspicious activity reporting requirement was set at not more than $250,000.

Section 364. Uniform Protection Authority for Federal Reserve Facilities.

Section 364 authorizes the Federal Reserve Board to issue regulations, subject

to the approval of the Attorney General, to authorize personnel to act as law

enforcement officers to protect the Board’s personnel, property, and operations,

including the Federal Reserve banks, and for such personnel to carry firearms and

make arrests. Pre-existing law provided no such authority.

Section 365. Reports Relating to Coins and Currency Received in Non-Financial

Trade of Business.

Section 365 adds a new section to the anti-money laundering reporting

requirements, 31 U.S.C. 5331. It requires anyone engaging in a trade or business,

who receives $10,000 in coins or currency (including foreign currency and financial

instruments) in a single transaction or in two related transactions to file a report on

the transaction to FinCEN as prescribed by the Secretary in regulations. The form for

such reports must include the name and address of the person from whom the coins

or currency are received, the date and nature of the transaction, and such other

information as the Secretary may prescribe. Exemptions are made for reports filed

by financial institutions under 31 U.S.C. 5313 and its implementing regulations, and

for transactions occurring outside the United States–unless the Secretary so

prescribes. The section also includes a provision that prohibits structuring transactions

to cause such businesses to evade these reporting requirements or requirements under

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implementing regulations.9 “Nonfinancial trade or business” is defined to mean any

trade or business other than a financial institution subject to reporting requirements

under 31 U.S.C. 5313 and regulations thereunder.

Under pre-existing law, the Secretary had broad authority to apply the reporting

requirements of 31 U.S.C. 5313 by regulation. Under 31 U.S.C. 5312 “financial

institution” is defined explicitly to include many non-financial businesses including

vehicle sales, real estate closings, the United States Postal Service, and casinos. 31

U.S.C. 5312(a)(2)(T), (U), (V), and (X). It also may include any business or agency

determined by the Secretary to engage in an activity that is a substitute for any of the

activities listed as “financial institutions,” and “any other business designated by the

Secretary whose cash transactions have a high degree of usefulness in criminal, tax,

or regulatory matters.” 31 U.S.C. 5312(a)(2)(Z) and (Y). The Secretary has, thus far,

not chosen to exercise this power broadly. The new law provides even more

comprehensive authority but does not require reports until regulations are issued.

Section 366. Efficient Use of Currency Transaction Report System.

Section 366 requires the Secretary to study expanding the statutory exemption

system to the currency transaction reporting requirements , under 31 U.S.C. 5313,

authorizing exemptions for transactions with various entities and qualified business

customers from the domestic currency and coin reporting requirements. The study

is to address methods for improving financial institutions’ use of these exemptions to

reduce the submission of reports with little or no value for law enforcement purposes.

A report on this is required within one year.

Subtitle C–Currency Crimes and Protection

Section 371. Bulk Cash Smuggling into or out of the United States.

Section 371 creates a new criminal offense, knowingly concealing more than

$10,000 and transporting it or attempting to transfer it out of or into the United

States. Conviction under the statute is subject to imprisonment for up to 5 years and

forfeiture of any property involved in the offense. Preexisting law, 31 U.S.C. 5316,

requires a report by anyone transporting monetary instruments, defined to include

currency, of more than $10,000 into or out of the U.S. In United States v.

Bajakajian, 524 U.S. 324 (1998), the Supreme Court ruled it unconstitutional to

require forfeiture of $357,144, in cash that the defendant possessed legitimately and

was attempting to carry with him when leaving the United States. The Court found

the penalty disproportional to the gravity of the offense and a violation of the

Excessive Fines Clause of the Eighth Amendment to the U. S. Constitution. In

reaching that decision, the Court considered the fact that the offense was merely a

reporting offense since it was not illegal to transport the currency.

9

There appears to be a typographical error in the text of the legislation. The prohibition on

structuring refers to 31 U.S.C. 5333, rather than to 5331.

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Section 372. Forfeiture in Currency Reporting Cases.

Section 372 authorizes criminal forfeiture and civil forfeitures for violations of

the reporting requirements relating to monetary instruments and makes the criminal

forfeiture procedures of section 413 of the Controlled Substances Act and the civil

forfeiture procedures of 18 U.S.C. 981(a)(1)(A) (money laundering) applicable to

criminal and civil forfeiture, respectively, under 31 U.S.C. 5313 (reports on domestic

coins and currency), 5316 (reports on exporting monetary instruments), and 5324

(structuring transactions to evade reporting requirements). Pre-existing law

authorized forfeiture of any property involved in the transaction in violation of 31

U.S.C. 5324(b) (international monetary instruments) or property traceable to such

property under customs procedures, as held by the court in United States v. Twenty

Thousand Seven Hundred Fifty-Seven Dollars and Eight-Three Cents ($20,757.83)

Canadian Currency, 769 F. 2d 479 (8th Cir. 1985).

Section 373. Illegal Money Transmitting Businesses.

Section. 373 prohibits anyone from knowingly conducting, controlling,

managing, supervising, directing, or owning a money transmitting business: (1)

without a license in a state that requires such a license and subjects operating without

a licence to state misdemeanor or felony penalties; (2) not registered with Treasury

under 31 U.S.C. 5330; or (3) involves the transportation or transmission of funds that

the defendants knows to have been derived from a criminal offense or are intended to

be used to promote or support unlawful activity. The section prescribes a federal

penalty of up to five years’ imprisonment and criminal fines and authorizes civil

forfeiture of property involved in transactions in connection with this offense.

Under the Money Laundering Suppression Act of 1994, 31 U.S.C. 5330(a), the

Secretary of the Treasury is required to establish a system to register money

transmitting businesses. FinCEN’s regulations require registration by December 31,

2001. 31 C.F.R. §103.41.

Section 374. Counterfeiting Domestic Currency and Obligations.

Section 374 extends the definition of counterfeiting obligations of the United

States to cover analog, digital, or electronic images, as well as “any plate, stone, or

other thing or part thereof, used to counterfeit” such obligations or securities, as

provided in pre-existing law, 18 U.S.C. 470(2). This section is also amended to

provide similar penalties for offenses committed outside the U.S. as are applicable to

those within the U.S. Other provisions increase the penalties under other

counterfeiting statutes to 20 years’ imprisonment: 18 U.S.C. 471 (obligations or

securities of the U.S.); 472 (uttering counterfeit obligations or securities); 473

(dealing in counterfeit obligations or securities); and, 474 (using plates or stones for

counterfeiting).

The section amends 18 U.S.C. 474 to cover counterfeiting involving an analog,

digital or electronic image of U.S. obligations, unless authorized by Treasury. It

amends 18 U.S.C. 476 (taking impressions of tools used for obligations or securities

of the U.S.) to increase the penalty from 10 years to 25 years’ imprisonment. It

amends 18 U.S.C. 477 (possessing or selling impressions of tools used for obligations

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or securities) to cover an analog, digital, or electronic image. It raises the penalty for

connecting parts of different notes, 18 U.S.C. 484, from five years’ to ten years’

imprisonment, and for offenses under 18 U.S.C. 493 (bonds and obligations of certain

lending agencies), from five to ten years’ imprisonment.

Section 375. Counterfeiting Foreign Currency and Obligations.

Section 375 increases the penalties for violations of various offenses involving

foreign currency and obligations as follows: 18 U.S.C. 478 (foreign obligations or

securities, penalty raised from five to 20 years); 18 U.S.C. 479 (uttering counterfeit

foreign obligations, penalty raised from three to 20 years); 18 U.S.C. 480 (possessing

counter foreign obligations or securities, penalty raised from one to 20 years); 18

U.S.C. 481 (plates or stones for counterfeiting foreign obligations or securities,

penalty raised from five to 20 years); 18 U.S.C. 482 (foreign bank notes, penalty

raised from two to twenty years); and 18 U.S.C. 483 (foreign bank notes, penalty

raised from two to 20 years). The section also criminalizes counterfeiting involving

an analog, digital, or electronic image of foreign obligations and securities. It adds

18 U.S.C. 2339B, providing material support to designated foreign terrorist

organizations as a predicate for a money laundering prosecution under 18 U.S.C.

1956.

Section 377. Extraterritorial Jurisdiction.

Section 377 enhances the applicability of 18 U.S.C. 1029 (computer fraud) by

covering offenses committed outside the U.S. that involve an access device issued by

a U.S. entity, such as a credit card, provided the defendant transports, delivers,

conveys, transfers to or through, or otherwise stores, secrets, or holds within the

jurisdiction of the U.S., any article used to assist in the commission of the offense or

the proceeds of such offense or property derived therefrom.

Title IV – Protecting the Border

Subtitle A – Protecting the Northern Border

Section 401. Ensuring Adequate Personnel on the Northern Border.

Annual appropriation legislation ordinarily authorizes the number of work years

(“full time equivalents”) that an agency may devote to a particular mission. Section

401 authorizes the Attorney General to waive the limitation applicable to Immigration

and Naturalization Service (INS) personnel assigned to the Northern Border.

Section 402. Northern Border Personnel.

Section 402 authorizes appropriations in the amounts necessary to triple the

number of Border Patrol, Custom Service, and the Immigration and Naturalization

Service (INS) personnel in each state along the Northern Border of the United States.

It authorizes appropriations of an additional $50 million each for INS and the

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Customs Service to improve and supplement their monitoring equipment at the

Northern Border.

Section 403. Access by the Department of State and the INS to Certain Identifying

Information in the Criminal History Records of Visa Applicants and Applicants for

Admission to the United States.

Section 403 authorizes the appropriations necessary to provide the State

Department and INS with access to the Federal Bureau of Investigation’s automated

National Criminal Information Files and to permit the National Institute of Standards

and Technology to development the standards necessary to accommodate the transfer

of information. All United States consular officers responsible for issuing visas,

border inspection officers, and law enforcement and intelligence officers with alien

investigation and identification responsibilities will use access to ensure that applicants

for entry into the United States have no criminal record here. The FBI will provide

access without charge except, at least initially, for fingerprint processing. The

Secretary of State will promulgate regulations to ensure the confidentiality and

appropriate use of the FBI information. The Attorney General and Secretary of State,

in consultation with the Secretary of the Treasury, must report within 18 months of

enactment and every two years thereafter on development, implementation, efficacy

and privacy implications of the process. Sections 405 and 1008, discussed below, call

for studies and reports to Congress on the feasibility of related enhancements in the

systems to which this section gives access.

Section 404. Limited Authority to Pay Overtime.

In more normal times, Justice Department appropriations legislation placed a

$30,000 cap on the amount of overtime that could paid individual INS officers. In

light of the extraordinary circumstances at the end of the last fiscal year, section 404

repeals the limitation contained in the INS appropriation for border services for fiscal

year 2001, 114 Stat. 2762-58 to 2762A-59 (2000).

Section 405. Report on the Integrated Automated Fingerprint Identification System

for Ports of Entry and Overseas Consular Posts.

Section 405 directs the Attorney General, after consultation with the Secretaries

of State, the Treasury, and Transportation, as well as other appropriate agency heads,

to study and report upon the feasibility of enhancing the FBI’s Integrated Automated

Fingerprint Identification System (IAFIS) and other identification systems in order to

better screen applications seeking to enter this country. The section authorizes

appropriations of $2 million to the purpose.

Subtitle B – Enhanced Immigration Provisions

Section 411. Definitions Relating to Terrorism.

Foreign nationals (aliens) are deportable from the United States if they were

inadmissible at the time they entered the country or if they have subsequently engaged

in terrorist activity, 8 U.S.C. 1227(a)(1)(A),(a)(4)(B), 1182(a)(3)(B)(iv). Aliens may

be inadmissible for any number of terrorism-related reasons, 8 U.S.C. 1182(a)(3)(B).

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Section 411 adds to the terrorism-related grounds upon which an alien may be denied

admission into the United States.

Prior law recognized five categories of terrorism-related factors which rendered

an alien inadmissible. Section 411 redefines two of these, engaging in terrorist

activity and representing a terrorist organization, 8 U.S.C. 1182(a)(3)(B)(iv),

(a)(3)(B)(i)(IV), and it adds three more, espousing terrorist activity, being the spouse

or child of an inadmissible alien, associating with a terrorist organization and intending

to engage in activities that could endanger the welfare, safety or security of the United

States, 8 U.S.C. 1182(a)(3)(B)(i)(VI), (a)(3)(B)(i)(VII), 1182(a)(3)(F).

Earlier law defined engaging in terrorist activity, which is grounds for both

inadmissibility and deportation, to encompass soliciting on behalf of a terrorist

organization or providing material support to a terrorist organization, 8 U.S.C.

1182(a)(3)(B)(iii)(2000 ed.). It did not explain in so many words, however, what

constituted a “terrorist organization,” although it presumably at the very least

included groups designated a terrorist organizations under section 219 of the

Immigration and Nationality Act (8 U.S.C. 1189). Although only effective after

designation, §411(c), section 411 defines “terrorist organization” to include not only

organizations designated under section 219 but also organizations which the Secretary

has identified in the Federal Register as having provided material support for,

committed, incited, planned, or gathered information on potential targets of, terrorist

acts of violence, 8 U.S.C. 1182(a)(3)(B)(vi), (a)(3)(B)(iv). It then recasts the

definition of engaging in terrorist activities to include solicitation on behalf of such

organizations, or recruiting on their behalf, or providing them with material support,

8 U.S.C. 1182(a)(3)(B)(iv). Nevertheless, section 411 permits the Secretary of State

or Attorney General to conclude that the material support prohibition does not apply

to particular aliens, 8 U.S.C. 1182(a)(3)(B)(vi).

Prior law made representatives of terrorist organizations designated by the

Secretary under section 219 (8 U.S.C. 1189) inadmissible, 8 U.S.C. 1182(a)(3)(B)(i)

(IV)(2000 ed.). And so they remain. Section 411 makes representatives of political,

social or similar groups, whose public endorsements of terrorist activities undermines

our efforts to reduce or eliminate terrorism, inadmissible as well, 8 U.S.C. 1882(a)(3)

(B)(i)(IV).

An individual who uses his or her place of prominence to endorse, espouse, or

advocate support for terrorist activities or terrorist organizations in a manner which

the Secretary of State concludes undermines our efforts to reduce or eliminate

terrorism becomes inadmissible under section 411, 8 U.S.C. 1182(a)(3)(B)(i)(VI).

The spouse or child of an alien, who is inadmissible on terrorist grounds for

activity occurring within the last 5 years, is likewise inadmissible, unless the child or

spouse was reasonably unaware of the disqualify conduct or has repudiated the

disqualify conduct, 8 U.S.C. 1182(a)(3)(B)(i)(VII), 1182(a)(3)(B)(ii).

Finally, any alien, whom the Secretary of State or the Attorney General conclude

has associated with a terrorist organization and intends to engage in conduct

dangerous to the welfare, safety, security of the United States while in their country,

is inadmissible, 8 U.S.C. 1182(a)(3)(F).

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Section 219 of the Immigration and Nationality Act (8 U.S.C. 1189) permits the

Secretary to designate as terrorist organizations any foreign group which he finds to

have engaged in terrorist activities. A second subsection 411(c) permits him to

designate groups which as subnational groups or clandestine agents, engage in

“premeditated, politically motivated violence perpetrated against noncombatant

targets,” or groups which retain the capacity and intent to engage in terrorism or

terrorist activity, 8 U.S.C. 1189(a)(1)(B).

Section 412. Mandatory Detention of Suspected Terrorists; Habeas Corpus; Judicial

Review.

Section 412 permits the Attorney General to detain alien terrorist suspects for

up to seven days, 8 U.S.C. 1226a. He must certify that he has reasonable grounds to

believe that the suspects either are engaged in conduct which threatens the national

security of the United States or are inadmissible or deportable on grounds of

terrorism, espionage, sabotage, or sedition. Within seven days, the Attorney General

must initiate removal or criminal proceedings or release the alien. If the alien is held,

the determination must be reexamined every six months to confirm that the alien’s

release would threaten national security or endanger some individual or the general

public. The Attorney General’s determinations are subject to review only under writs

of habeas corpus issued out of any federal district court but appealable only to the

United States Court of Appeals for the District Columbia. The Attorney General

must report to the Judiciary Committee on the details of the operation of section 412.

Uncertain is the relationship between section 412 and the President’s Military

Order of November 13, 2001, which allows the Secretary of Defense to detain

designated alien terrorist suspects, within the United States or elsewhere, without

express limitation or condition except with regard to food, water, shelter, clothing,

medical treatment, religious exercise, and a proscription on invidious discrimination,

66 Fed.Reg. 57833, 57834 (Nov. 16, 2001).

Section 413. Multilateral Cooperation Against Terrorists.

State Department records concerning its processing of visa applications are

confidential and generally available only for court and law enforcement purposes, 8

U.S.C. 1202(f). Section 413 authorizes the Secretary of State to share the

information with other countries in order to combat terrorism, drug trafficking, gun

running, smuggling of immigrants, or other criminal activity, either on a case by case

basis or pursuant to a general agreement.

Section 414. Visa Integrity and Security.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8

U.S.C. 1365a, instructed the Attorney General to implement an integrated entry and

exit data system for airports, seaports and land border ports of entry. Section 414

expresses the sense of Congress that he should do so expeditiously and authorizes

such appropriations as are necessary.

The section also directs the Attorney General and the Secretary of State to focus

particularly on the use of biometric technology and tamper-resistant documents

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readable at ports of entry and to see to the development of a system that can be used

by federal law enforcement officers to identify and detain individuals who pose a

threat to U.S. national security.

Finally, it calls for the Office of Home Land Security to report to the Congress

within a year of the enactment on the information needed for federal authorities to

identify those seeking to enter the United States who are associated with terrorists

organizations or otherwise pose a threat to our national security.

Section 415. Participation of Office of Homeland Security on Entry-Exit Task Force.

Section 415 adds the Office of Home Land Security to the Integrated Entry and

Exit Data System Task Force, 8 U.S.C. 1365a note.

Section 416. Foreign Student Monitoring Program.

Section 417 authorizes appropriations of $36.8 million for the period ending on

January 1, 2003 to implement and expand the program for collection of information

relating to nonimmigrant foreign students and other exchange program participants,

8 U.S.C. 1372. The section adds air flight schools, language training schools, and

vocations schools to the list of institutions whose students are to be included in the

reporting requirement.

Section 417. Machine Readable Passports.

Section 217 of the Immigration and Nationality Act permits a visa waiver

program with respect to foreign tourists from countries which among things issue

machine-readable passports that comply with international standards (or anticipate

being able to do so prior to October 1, 2003), 8 U.S.C. 1187(c). Section 417 directs

the Secretary of State to report the results of annual audits of the progress of program

countries towards full implementation of machine-readable passport capability, of the

existence of programs to prevent passport theft and counterfeiting, and of the

development of tamper-proof passports. Subject to a progress waiver by the

Secretary of State, the section limits the countries eligible for visa waiver program

participation to those who have machine-readable passports as of October 1, 2003

(rather than October 1, 2007 as was previously the case).

Section 418. Prevention of Consulate Shopping.

Section 418 commands the Secretary of State to determine whether consular

shopping is a problem, to take steps to remedy any such problem, and to report to

Congress on the action taken.

Subtitle C – Preservation of Immigration Benefits for

Victims of Terrorism

The House Committee on the Judiciary explained a similar subtitle by noting

that, “It is certain that some aliens fell victim to the terrorist attacks on the U.S. on

September 11. This subtitle endeavors to modify immigration law to provide

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humanitarian relief to these victims and their family members,” H.Rept. 107-236, at

66. Since the subtitle in the USA PATRIOT Act is largely unchanged from the

subtitle reported out by the House Committee on the Judiciary, the analysis that

follows is largely that of the Committee.

Section 421. Special Immigration Status.

“The [USA PATRIOT] Act provides permanent resident status through the

special immigrant program to an alien who was the beneficiary of a petition filed (on

or before September 11) to grant the alien permanent residence as an

employer-sponsored immigrant or of an application for labor certification (filed on or

before September 11), if the petition or application was rendered null because of the

disability of the beneficiary or loss of employment of the beneficiary due to physical

damage to, or destruction of, the business of the petitioner or applicant as a direct

result of the terrorist attacks on September 11, or because of the death of the

petitioner or applicant as a direct result of the terrorist attacks. Permanent residence

would be granted to an alien who was the spouse or child of an alien who was the

beneficiary of a petition filed on or before September 11 to grant the beneficiary

permanent residence as a family-sponsored immigrant (as long as the spouse or child

follows to join not later than September 11, 2003). Permanent residence would be

granted to the beneficiary of a petition for a nonimmigrant visa as the spouse or the

fiancé (and their children) of a U.S. citizen where the petitioning citizen died as a

direct result of the terrorist attack. The section also provides permanent resident

status to the grandparents of a child both of whose parents died as a result of the

terrorist attacks, if either of such deceased parents was a citizen of the U.S. or a

permanent resident,” H.Rept. 107-236, at 66-7 (2001).

Section 422. Extension of Filing or Reentry Deadlines.

“The Act provides that an alien who was legally in a nonimmigrant status and

was disabled as a direct result of the terrorist attacks on September 11 (and his or her

spouse and children) may remain lawfully in the U.S. (and receive work authorization)

until the later of the date that his or her status normally terminates or September 11,

2002. Such status is also provided to the nonimmigrant spouse and children of an

alien who died as a direct result of the terrorist attacks.

Where an alien was prevented from taking timely action because of office

closures, airline schedule disruptions or other similar impediments, the “Act provides

that an alien who was lawfully present as a nonimmigrant at the time of the terrorist

attacks will be granted 60 additional days to file an application for extension or

change of status if the alien was prevented from so filing as a direct result of the

terrorist attacks. Also, an alien who was lawfully present as a nonimmigrant at the

time of the attacks but was then unable to timely depart the U.S. as a direct result of

the attacks will be considered to have departed legally if doing so before November

11. An alien who was in lawful nonimmigrant status at the time of the attacks (and his

or her spouse and children) but not in the U.S. at that time and was then prevented

from returning to the U.S. in order to file a timely application for an extension of

status as a direct result of the terrorist attacks will be given 60 additional days to file

an application and will have his or her status extended 60 days beyond the original due

date of the application.

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“Under current law, winners of the fiscal year 2001 diversity visa lottery must

enter the U.S. or adjust status by September 30, 2001. The Act provides that such an

alien may enter the U.S. or adjust status until April 1, 2002, if the alien was prevented

from doing so by September 30, 2001 as a direct result of the terrorist attacks. If the

visa quota for the 2001 diversity visa program has already been exceeded, the alien

shall be counted under the 2002 program. Also, if a winner of the 2001 lottery died

as a direct result of the terrorist attacks, the spouse and children of the alien shall still

be eligible for permanent residence under the program. The ceiling placed on the

number of diversity immigrants shall not be exceeded in any case.

“Under the Act, in the case of an alien who was issued an immigrant visa that

expires before December 31, 2001, if the alien was unable to timely enter the U.S. as

a direct result of the terrorist attacks, the validity shall be extended until December

31.

“Under the Act, in the case of an alien who was granted parole that expired on

or after September 11, if the alien was unable to enter the U.S. prior to the expiration

date as a direct result of the terrorist attacks, the parole is extended an additional 90

days.

“Under the Act, in the case of an alien granted voluntary departure that expired

between September 11 and October 11, 2001, voluntary departure is extended an

additional 30 days,” H.Rept. 107-236, at 67-8 (2001).

Section 423. Humanitarian Relief or Certain Surviving Spouses and Children.

“Current law provides that an alien who was the spouse of a U.S. citizen for at

least 2 years before the citizen died shall remain eligible for immigrant status as an

immediate relative. This also applies to the children of the alien. The Act provides that

if the citizen died as a direct result of the terrorist attacks, the 2 year requirement is

waived.

“The Act provides that if an alien spouse, child, or unmarried adult son or

daughter had been the beneficiary of an immigrant visa petition filed by a permanent

resident who died as a direct result of the terrorist attacks, the alien will still be

eligible for permanent residence. In addition, if an alien spouse, child, or unmarried

adult son or daughter of a permanent resident who died as a direct result of the

terrorist attacks was present in the U.S. on September 11 but had not yet been

petitioned for permanent residence, the alien can self-petition for permanent residence.

“The Act provides that an alien spouse or child of an alien who 1) died as a

direct result of the terrorist attacks and 2) was a permanent resident (petitioned-for

by an employer) or an applicant for adjustment of status for an employment-based

immigrant visa, may have his or her application for adjustment adjudicated despite the

death (if the application was filed prior to the death),” H.Rept. 107-236, at 68 (2001).

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Section 424. “Age-out” Protection for Children.

“Under current law, certain visas are only available to an alien until the alien’s

21st birthday. The Act provides that an alien whose 21st birthday occurs this

September and who is a beneficiary for a petition or application filed on or before

September 11 shall be considered to remain a child for 90 days after the alien’s 21st

birthday. For an alien whose 21st birthday occurs after this September, (and who had

a petition for application filed on his or her behalf on or before September 11) the

alien shall be considered to remain a child for 45 days after the alien’s 21st birthday,”

H.Rept. 107-236, at 68 (2001).

Section 425. Temporary Administrative Relief.

“The Act provides that temporary administrative relief may be provided to an

alien who was lawfully present on September 10, was on that date the spouse, parent

or child of someone who died or was disabled as a direct result of the terrorist

attacks, and is not otherwise entitled to relief under any other provision of Subtitle

[C],” H.Rept. 107-236, at 68 (2001).

Section 426. Evidence of Death, Disability, or Loss of Employment.

“The Attorney General shall establish appropriate standards for evidence

demonstrating that a death, disability, or loss of employment due to physical damage

to, or destruction of, a business, occurred as a direct result of the terrorist attacks on

September 11. The Attorney General is not required to promulgate regulations prior

to implementing Subtitle [C],” H.Rept. 107-326, at 68-9 (2001).

Section 427. No Benefits to Terrorists or Family Members of Terrorists.

“No benefit under Subtitle B shall be provided to anyone culpable for the

terrorist attacks on September 11 or to any family member of such an individual,”

H.Rept. 107-236, at 69 (2001).

Section 428. Definitions.

“The term <specified terrorist activity’ means any terrorist activity conducted

against the Government or the people of the U.S. on September 11, 2001,” H.Rept.

107-236, at 69 (2001).

Title V – Removing Obstacles to Investigating Terrorism

Section 501. Attorney General’s Authority to Pay Rewards to Combat Terrorism.

The Attorney General enjoys the power to pay rewards in criminal cases, but his

power under other authorities is often subject to caps on the amount he might pay.

Thus as a general rule, he may award amounts up to $25,000 for the capture of

federal offenders, 18 U.S.C. 3059, and may pay rewards in any amount in recognition

of assistance to the Department of Justices as long as the Appropriations and

Judiciary Committees are notified of any rewards in excess of $100,000, 18 U.S.C.

3059B. Although he has special reward authority in terrorism cases, individual

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awards are capped at $500,000, (the ceiling for the total amount paid in such rewards

is $5 million), and rewards of $100,000 or more require his personal approval or that

of the President, 18 U.S.C. 3071-3077. Over the last several years, annual

appropriation acts have raised the $500,000 cap to $2 million and the $5 million

ceiling to $10 million, e.g., Public Law 106-553, 114 Stat. 2762-67 (2000); Public

Law 106-113, 113 Stat. 1501A-19 (1999); Public Law105-277, 112 Stat. 2681-66

(1998).

The USA PATRIOT Act supplies the Attorney General with the power to pay

rewards to combat terrorism in any amount and without an aggregate limitation, but

for rewards of $250,000 or more it insists on personal approval of the Attorney

General or the President and on notification of the Appropriations and Judiciary

Committees, §501. The funds to pay the rewards may come from any federal

department or agency. In addition, the counterterrorism fund of section 101 can be

used “without limitation” to pay rewards to prevent, investigate, or prosecute

terrorism.

Section 502. Secretary of State’s Authority to Pay Rewards.

The Secretary of State’s reward authority was already somewhat more generous

than that of the Attorney General. He may pay rewards of up to $5 million for

information in international terrorism cases as long as he personally approves

payments in excess of $100,000, 22 U.S.C. 2708. The Act removes the $5 million

cap and allows rewards to be paid for information concerning the whereabouts of

terrorist leaders and facilitating the dissolution of terrorist organizations, §502.

Section 503. DNA Identification of Terrorists and Other Violent Offenders.

Federal law allows the Attorney General to collect DNA samples from federal

prisoners convicted of a variety of violent crimes, 42 U.S.C. 14135a(d)(2). Section

503 expands the range. It permits samples to be taken from any federal prisoner

convicted of a federal crime of terrorism (as defined in 18 U.S.C. 2332b(g)(5)(B)),

or a crime of violence (as defined by 18 U.S.C. 16), or attempt or conspiracy to

commit a crime of terrorism or violence.

Section 504. Coordination With Law Enforcement.

Federal intelligence officers who wish to conduct electronic surveillance or

physical searches under a FISA court order must certify that the acquisition of foreign

intelligence information constitutes a significant purpose for the surveillance or

search, 50 U.S.C. 1805(a)(7)(B), 1823(a)(7)(B). Section 504 confirms that the

certification requirement does not preclude intelligence officers operating under FISA

orders from coordinating their investigations with law enforcement officers in cases

involving a foreign attack or other grave hostile attack, sabotage or international

terrorism by a foreign power or agent, or foreign clandestine intelligence activities.

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Section 505. Miscellaneous National Security Authorities.

Three statutes, the Electronic Privacy Act, the Right to Financial Privacy Act,

and Fair Credit Reporting Act, authorize third parties to release confidential

communication transaction records, financial reports, and credit information for

intelligence purposes upon the written request of senior FBI officials. Prior to section

505, the FBI was required to assert that the information sought was related to a

foreign power, foreign agent, an international terrorist, or an individual engaged in

clandestine intelligence activities, 18 U.S.C. 2709(b)(2), 12 U.S.C. 3414(a)(5), 15

U.S.C. 1681u. In an explanation that applies to all three statutory provisions, the

House Committee on the Judiciary described the change made in the Electronic

Privacy Act section: “Section 2709 of title 18 permits the Director of the Federal

Bureau of Investigation to request, through a National Security Letter (NSL),

subscriber information and toll billing records of a wire or electronic communication

service provider. The request must certify (1) that the information sought is relevant

to an authorized foreign counterintelligence investigation; and (2) there are specific

and articulable facts that the person or entity to whom the information sought pertains

is a foreign power or an agent of a foreign power as defined in FISA. This

requirement is more burdensome than the corresponding criminal authorities, which

require only a certification of relevance. The additional requirement of documentation

of specific and articulable facts showing the person or entity is a foreign power or an

agent of a foreign power cause substantial delays in counterintelligence and

counterterrorism investigations. Such delays are unacceptable as our law enforcement

and intelligence community works to thwart additional terrorist attacks that threaten

the national security of the United States and her citizens’ lives and livelihoods.

“Section [505] amends title 18 U.S.C. 2709 to mirror criminal subpoenas and

allow a NSL to be issued when the FBI certifies, the information sought is <relevant

to an authorized foreign counterintelligence investigation,’” H.Rept. 107-236, at 61-2

(2001).

Section 506. Extension of Secret Service Jurisdiction.

The federal computer fraud and abuse section, 18 U.S.C. 1030, originally vested

the Secret Service with investigative jurisdiction over violations other than those

dealing with classified information under 18 U.S.C. 1030(a)(1). The Secret Service

also enjoyed investigative authority over offenses involving credit and debit card

frauds as well as offenses involving false identification documents or devices, 18

U.S.C.3056(b)(3)(2000 ed.).

Section 506 preserves the Service’s jurisdiction with respect to section 1030. It

explicitly notes the FBI’s investigative jurisdiction over offenses under paragraph

1030(a)(1) and the FBI’s concurrent jurisdiction over offenses under the remainder

of 18 U.S.C. 1030. The section amends paragraph 3056(b)(3) to enlarge the

Service’s jurisdiction from offenses involving “credit and debit card frauds, and false

identification documents and devices” to crimes involving “access device fraud, false

identification documents or devices, and any fraud or other criminal or unlawful

activity in or against any federally insured financial institution.”

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Section 507. Disclosure of Educational Records.

Section 507 calls for an ex parte court order procedure under which senior

Justice Department officials may seek authorization to collect educational records

relevant to an investigation or prosecution of a crime of terrorism (as an exception to

the confidentiality requirements of the General Education Provisions Act, 20 U.S.C.

1232g). Educational institutions who comply receive immunity from liability for the

disclosure.

Section 508. Disclosure of Information From NCES Surveys.

Section 508 creates a similar ex parte court order procedure under which senior

Justice Department officials may seek authorization to collect individually identifiable

information from the National Center for Education (as an exception to the

confidentiality requirements of the National Education Statistics Act, 20 U.S.C.

9007). Officers and employees of the Center who cooperate receive immunity from

liability for the disclosure.

Title VI – Providing for Victims of Terrorism, Public Safety

Officers, and Their Families

Subtitle A – Aid to Families of Public Safety Officers

Section 611. Expedited Payment for Public Safety Officers Involved in the

Prevention, Investigation, Rescue, or Recovery Efforts Related to a Terrorist Attack.

Federal law authorizes benefits for those victimized by the death or catastrophic

injury resulting in permanent and total disability of a public safety officer in the line

of duty, subject to certain limitation, 42 U.S.C. 3796 et seq. Gross negligence,

substantial contributory negligence, and employment other than in a civilian capacity

are among the disqualifying factors, 42 U.S.C. 3796a, and there is a $5 million cap on

benefits awarded in any fiscal year, 42 U.S.C. 3796. In cases of death or catastrophic

injury sustained in the line of duty in relation to a terrorist attack, section 611 waives

the cap and these disqualifications and orders the Bureau of Justice Assistance, which

administers the program, to make payments within 30 days of receipt of a public

agency’s certification of eligibility in a particular case.

Section 612. Technical Correction With Respect to Expedited Payments for Heroic

Public Safety Officers.

Public Law 107-37, 115 Stat. 219 (2001), makes the same adjustments as those

of section 611 for death and catastrophic injuries sustained in the line of duty in the

course of rescue or recovery efforts related to the terrorist attacks of September 11.

Section 612 confirms certain technical corrections made by the clerk and that the

Public Law extends to death and catastrophic injuries producing permanent and total

disability.

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Section 613. Public Safety Officers Benefit Program Payment Increases.

Section 613 raises the amount of the benefit from $100,000 to $250,000,

effective January 1, 2001, 42 U.S.C. 3796.

Section 614. Office of Justice Programs.

Title I of the Omnibus Crime Control and Safe Streets Act (Pubic Law 90-351),

as amended, creates the Office of Justice Programs (OJP) and a series of federal

criminal justice and related assistance programs administered under its auspices, 42

U.S.C. 3711 et seq. In 1998, while Congress was considering reauthorization of

some of those programs, it authorized the Office of Justice Programs to exercise

authority over and approve grants, contracts and the like with respect to it’s programs

during fiscal year 1999, Public Law 105-277, 112 Stat. 2681-67 (1998). The

following year, it renewed that authority for fiscal year 2000, but denied OJP

authority to approve grants under the National Institute of Justice, the Bureau of

Justice Statistics, and a few Juvenile Justice and Delinquency Prevention programs,

Public Law 106-113, 113 Stat. 1501A-20 (1999). The fiscal year 2001 appropriations

act carried forward by cross reference the same provisions with the same limitations,

Public Law 106-553, 114 Stat. 2762A-67 (2000). S e c t i o n 6 1 4 r e m o v e s t h e

limitations.

Subtitle B – Amendments to the Victims of Crime Act of

1984

Section 621. Crime Victims Fund.

The Crime Victims Fund receives most of the fines collected for violations of

federal criminal law and distributes them for purposes of victim assistance and

compensation, 42 U.S.C. 10601-10604. Section 621 authorizes the Fund to receive

gifts from private individuals. It instructs the Department of Justice, which

administers the Fund, to distribute every fiscal year between 90 and 110% of the

amount distributed in the previous year (120% in any year when the amount on hand

is twice the amount distributed the previous year).

Pre-existing law allocated 48.5% of the amounts available under the Fund to

crime victim compensation grants, 48.5% to crime victim assistance grants, and 3%

to discretionary grants, 42 U.S.C. 10601(d)(4)(2000 ed.). Section 621 reduces the

amounts available for compensation and assistance grants by 1% and increases to 5%

the amount available for discretionary grants.

The section allows the Department of Justice to establish a $50 million

antiterrorism emergency reserve for supplemental grants to compensate and assist

victims of terrorism or mass violence. It also removes the otherwise applicable caps

on the amounts transferred to the Fund in response to the terrorist acts of September

11.

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Section 622. Crime Victim Compensation.

Before passage of section 622, individual victim compensation program grants

were capped at 40% of the amount awarded in the previous year. Section 622 lifts

the cap to 60% beginning in fiscal year 2003.

It also (1) removes the requirement that an eligible state crime victim

compensation program provide compensation to state residents for terrorist crimes

committed overseas, 42 U.S.C. 10602(b)(6)(B); (2) drops crimes involving terrorism

from the definition of “compensable crimes,” 42 U.S.C. 10602(d)(3); (3) provides that

unlike other victim compensation, victim compensation received under Title IV of the

Air Transportation Safety and System Stabilization Act (September 11 Victim

Compensation Fund), Public Law 107-42, 115 Stat. 237, 49 U.S.C. 40101 note, may

be considered income, a resource, or an asset for purposes of qualifying as an indigent

for any federal or federal supported grant or benefit program, 42 U.S.C. 10602(c); (4)

adds Title IV victim compensation to the “double dipping” restriction that applies to

victim compensation programs, 42 U.S.C. 10602(e); and (5) allows the Virgin Islands

to participate as a state in the victim compensation grant program, 42 U.S.C.

10602(d)(4).

Section 623. Crime Victim Assistance.

Section 623 expands the crime victim assistance grant program to permit grants

to federal agencies who perform local law enforcement functions in or on behalf of

the District of Columbia, the Virgin Islands, or any other U.S. territory or

possessions. It prohibits program discrimination against crime victims based on their

disagreement with the manner in which the state is prosecuting the underlying offense,

42 U.S.C.10603(b)(1)(F); allows grants to be used for program evaluation and

compliance efforts, 42 U.S.C. 10603(c)(1)(A); for fellowships, clinical internships,

and training programs, 42 U.S.C. 10603(c)(3)(E). Finally, it reverses the preference

for victim service grants over demonstration projects and training grants, so that not

more than 50% of the amounts available for crime victim assistance grants shall be

used for victim service grants and not less than 50% for demonstration projects and

training grants, 42 U.S.C. 10603(c)(2).

Section 624. Victims of Terrorism.

Title VIII of the Omnibus Diplomatic Security and Antiterrorism Act of 1986,

Public Law 99-399, 100 Stat. 879 (1986), provides victims’ benefits for the Iranian

hostages, 5 U.S.C. 5569. The Antiterrorism and Effective Death Penalty Act, Public

Law 104-132, 110 Stat. 1243, 42 U.S.C. 10603b, and the Victims of Trafficking and

Violence Protection Act of 2000, Public Law 106-386, 114 Stat. 1545, 42 U.S.C.

10603c, establish compensation programs for victims of terrorism or mass destruction

and victims of international terrorism respectively.

Prior to the enactment of section 624 only the states were eligible for

compensation and assistance grants on behalf of the victims of terrorism or mass

destruction occurring within the United States, and victims eligible for benefits under

the diplomatic security law were ineligible for compensation and assistance under the

general provisions covering victims of terrorism or mass destruction occurring

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abroad, 42 U.S.C. 10603b(2000 ed.). Section 624 removes the diplomatic security

law disqualification and permits grants to victim service organizations – federal, state,

local and nongovernmental agencies – to provide emergency victim relief, 42 U.S.C.

10603b.

Further, the section reduces the amount of compensation available to victims of

international terrorism generally by any amount a victim has received under the

diplomatic security law, 42 U.S.C. 10603c.

Title VII – Increased Information Sharing for Critical

Infrastructure Protection

Section 701. Expansion of Regional Information Sharing Systems to Facilitate

Federal-State-Local Law Enforcement Response Related to Terrorist Attacks.

The Office of Justice Programs is authorized to make grants and enter into

contracts with state and local law enforcement agencies and with nonprofit

organizations to identify and combat multi-jurisdictional criminal conspiracies, 42

U.S.C. 3796h. Section 701 amends section 3796h to authorize appropriations of $50

million for fiscal year 2002 and $100 million for fiscal year 2003 to be used to

establish and operate a secure information sharing system to combat multijurisdictional terrorist conspiracies and activities.

Title VIII – Strengthening the Criminal Laws Against

Terrorism

Section 801. Terrorist Attacks and Other Acts of Violence Against Mass

Transportation Systems.

Pre-existing federal law criminalized, among other things, wrecking trains, 18

U.S.C. 1992; damaging commercial motor vehicles or their facilities, 18 U.S.C. 33,

or threatening to do so, 18 U.S.C. 35; destroying vessels within the navigable waters

of the United States, 18 U.S.C. 2273; destruction of vehicles or other property used

in activities affecting interstate or foreign commerce by fire or explosives, 18 U.S.C.

844(i); possession of a biological agent or toxin as a weapon or a threat, attempt, or

conspiracy to do so, 18 U.S.C. 175; use of a weapon of mass destruction affecting

interstate or foreign commerce or a threat, attempt, or conspiracy to do so, 18 U.S.C.

2332a; commission of a federal crime of violence while armed with a firearm, or of

federal felony while in possession an explosive, 18 U.S.C. 924(c), 844(h); and

conspiracy to commit a federal crime, 18 U.S.C. 371.

Section 801 fills in some of the gaps in these proscriptions. It makes terrorist

attacks and other acts of violence against mass transportation systems federal crimes,

punishable by imprisonment for any term of years or life if the conveyance is occupied

at the time of the offense, and imprisonment for not more than twenty years in other

cases. Under its provisions, it is a crime to willfully

- wreck, derail, burn, or disable mass transit;

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- place a biological agent or destructive device on mass transit recklessly or with

the intent to endanger;

- burn or place a biological agent or destructive device in or near a mass transit

facility knowing a conveyance is likely to be disabled;

- impair a mass transit signal system;

- interfere with a mass transit dispatcher, operator, or maintenance personnel in

the performance of their duties recklessly or with the intent to endanger;

- act with the intent to kill or seriously injure someone on mass transit property;

- convey a false alarm concerning violations of the section;

- attempt to violate the section;

- threaten or conspire to violate the section

when the violation involves interstate travel, communication, or transportation of

materials or that involves a carrier engaged in or affecting interstate or foreign

commerce, 18 U.S.C. 1993.

Section 802. Definition of Domestic Terrorism.

Section 802 adjusts the definition of international terrorism in 18 U.S.C. 2331

and borrows from it to define domestic terrorism. Section 2331 has for some time

defined international terrorism as those criminal acts of violence, committed primarily

overseas or internationally, that appear to be intended to intimidate or coerce a

civilian population, or to influence a governmental policy by intimidation or coercion,

or to affect the conduct of a government by assassination or kidnaping, 18 U.S.C.

2331(1). Section 802 simply modifies this last element to include acts that appear to

be intended to affect the conduct of a government by mass destruction, assassination

or kidnaping.

It defines domestic terrorism as those criminal acts dangerous to human life,

committed primarily within the United States, that appear to be intended to intimidate

or coerce a civilian population, or to influence a governmental policy by intimidation

or coercion, or to affect the conduct of a government by mass destruction,

assassination or kidnaping, 18 U.S.C. 2331(5).

Section 803. Prohibition Against Harboring Terrorists.

It is a federal crime to harbor aliens, 8 U.S.C. 1324, or those engaged in

espionage, 18 U.S.C. 792, or to commit misprision of a felony (which may take the

form of harboring the felon), 18 U.S.C. 4, or to act as an accessory after the fact to

a federal crime (including by harboring the offender), 18 U.S.C. 3. The Justice

Department asked that a terrorist harboring offense be added to the espionage section,

and that it be given extraterritorial effect and venue flexibility.

Section 803 instead establishes a separate offense which punishes harboring

terrorists by imprisonment for not more than ten years and/or a fine of not more than

$250,000, 18 U.S.C. 2339. The predicate offense list consists of:

! destruction of aircraft or their facilities, 18 U.S.C. 32;

! biological weapons offenses, 18 U.S.C. 175;

! chemical weapons offenses, 18 U.S.C. 229;

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! nuclear weapons offenses, 18 U.S.C. 831;

! bombing federal buildings, 18 U.S.C. 844(f);

! destruction of an energy facility, 18 U.S.C. 1366;

! violence committed against maritime navigational facilities, 18 U.S.C.

2280;

! offenses involving weapons of mass destruction, 18 U.S.C. 2232a;

! international terrorism, 18 U.S.C. 2232b;

! sabotage of a nuclear facility, 42 U.S.C. 2284;

! air piracy, 49 U.S.C. 46502.

It permits prosecution either at the place the harboring occurred or where the

underlying act of terrorism committed by the sheltered terrorist might be prosecuted.

In order to enjoy the full benefits of section 803, the prosecution may have to

establish a nexus between the act of terrorism and the site of concealment, U.S.Const.

Art.III, §2, cl.3; Amend. IV; United States v. Cabrales, 524 U.S. 1 (1998). On the

other hand, if the acts of terrorism occur in the United States or over which the

United States has jurisdiction, the crime of harboring the terrorist even overseas can

be prosecuted in the United States in all likelihood without amending existing law, cf.,

United States v. Felix-Gutierrez, 940 F.2d 1200, 1205 (9th Cir. 1991)(“crime of

accessory after the fact gives rise to extraterritorial jurisdiction to the same extent as

the underlying offense”).

Section 804. Jurisdiction Over Crimes Committed at U.S. Facilities Abroad.

Crime is usually outlawed, prosecuted and punished where it is committed. In

the case of the United States, this a matter of practical and diplomatic preference

rather than constitutional necessity. Consequently, a surprising number of federal

criminal laws have extraterritorial application. In some instances, the statute

proscribing the misconduct expressly permits the exercise of extraterritorial

jurisdiction, e.g., 18 U.S.C. 2332a (relating to use of weapons of mass destruction by

an American overseas). In others, such as those banning assassination of Members

of Congress, 18 U.S.C. 351, or the attempted murder of federal law enforcement

officers, 18 U.S.C. 1114, the court will assume Congress intended the prohibitions to

have extraterritorial reach.10

Section 804 touches upon extraterritoriality only to a limited extent and in

somewhat unusual manner. The special maritime and territorial jurisdiction of the

United States represent two variations of the extraterritorial jurisdiction. Congress

has made most common law crimes – murder, sexual abuse, kidnaping, assault,

robbery, theft and the like – federal crimes when committed within the special

maritime and territorial jurisdiction of the United States.

The special maritime jurisdiction of the United States extends to the vessels of

the United States. Historically, the territorial jurisdiction of the United States was

thought to reach those areas over which Congress enjoyed state-like legislative

10

United Stats v. Layton, 855 F.2d 1388 (9th Cir. 1981); United States v. Benitez, 741 F.2d

1312 (11th Cir. 1984) United States v. Bowman, 260 U.S. 94 (1922); Ford v. United States,

273 U.S. 593 (1927).

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jurisdiction. For some time, those territories were located exclusively within the

confines of the United States, but over the years came to include at least temporarily,

Hawaii, the Philippines, and other American overseas territories and possessions.

Recently, the lower federal courts have become divided over the question of whether

laws enacted to apply within federal enclaves within the United States and American

territories overseas might also apply to areas overseas over which the United States

has proprietary control, compare, United States v. Gatlin, 216 F.3d 207 (2d Cir.

2000); United States v. Laden, 92 F.Supp.2d 189 (S.D.N.Y. 2000); with, United

States v. Corey, 232 F.3d 1166 (9th Cir. 2000); United States v. Erdos, 474 F.2d 157

(4th Cir. 1973). The section resolves the conflict by declaring within the territorial

jurisdiction of the United States includes those overseas areas used by American

governmental entities for their activities or residences for their personnel, at least to

the extent that crimes are committed by or against an American. It is intended as a

residual provision and therefore does not apply where it would conflict with a treaty

obligation or where the offender is covered by the Military Extraterritorial Jurisdiction

Act (18 U.S.C. 3261).

Section 805. Material Support of Terrorism.

Sections 2339A and 2339B of title 18 of the United States Code ban providing

material support to individuals and to organizations that commit various crimes of

terrorism. Section 804 amends the sections in several ways, some at the behest of the

Justice Department. Section 2339B (support of a terrorist organization) joins section

2339A (support of a terrorist) as a money laundering predicate offense, 18 U.S.C.

1956(c)(7)(D) The predicate offense list of 18 U.S.C. 2339A (support to terrorists)

grows to include:

! chemical weapons offenses, 18 U.S.C. 229;

! terrorist attacks on mass transportation, 18 U.S.C. 1993 ;

! sabotage of a nuclear facility, 42 U.S.C. 2284; and

! sabotage of interstate pipelines, 49 U.S.C. 60123(b).

Section 805 also adds expert advice or assistance of the types of assistance that

may not be provided under section 2339A. Prosecutions grounded on providing

material assistance in the form of expert advice may encounter the same First

Amendment vagueness problems some courts have found in assistance which takes

the form of “training”and “personnel,” Humanitarian Law Project v. Reno, 205 F.3d

1130, 1137-136 (9th Cir. 2000).

Finally, the section declares that a prosecution for violation of section 2339A

(support of terrorists) may be brought where the support is provided or where the

predicate act of terrorism occurs. The full benefit of this amendment may have to

await clarification in the law concerning venue, U.S.Const. Art.III, §2, cl.3; Amend.

IV; United States v. Cabrales, 524 U.S. 1 (1998).

Section 806. Assets of Foreign Terrorist Organizations.

Modern forfeiture law strips criminals of the proceeds and instruments of crime.

Terrorism, however, neither produces profits of drug dealing nor requires the

specialized equipment of the rum runner or the counterfeiter. Consequently, most

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forfeiture statutes do not reach the crimes of terrorism. Nevertheless terrorism,

particularly international terrorism, requires financing; cash is the essential

instrumentality of terrorism. The USA PATRIOT Act attacks terrorism at its most

vulnerable spot, its need for financial support. The Act’s invigorating of the

International Economic Emergency Powers Act asset forfeiture and its money

laundering measures are calculated to encumber and prevent terrorism by drying up

its sources of financial support.

Section 806 supplies another tool for that effort. It subjects to civil forfeiture

property wherever located: (1) which belongs to an individual or entity planning or

engaging in domestic or international terrorism against the United States (as defined

in 18 U.S.C. 2331) or which affords the individual a source of influence over a

terrorist organization; (2) which is acquired or maintained for use in furtherance of

acts of domestic or international terrorism committed against Americans; or (3) which

is derived from or is useful for the commission of acts of domestic or international

terrorism committed against the Americans, 18 U.S.C. 981(a)(1)(G). The section is

something of a rarity in that it creates a forfeiture of estate (confiscation based solely

on the property’s relation to an offender rather than to the offense; discussed earlier

with respect to section 106), traditionally thought to be at odds with the concept of

civil in rem forfeiture and with the bans on corruption of the blood, U.S.Const.

Art.III, §3, cl.2; Amend.V; United States v. Grande, 620 F.2d 1026 (4th Cir. 1980).

Section 807. Technical Clarification Relating to Provision of Material Support to

Terrorism.

The Trade Sanctions Reform and Export Enhancement Act of 2000, Title IX of

Public Law 106-387, 114 Stat. 1549A-69, limits the power of the President to

unilaterally impose export restrictions on agricultural and medical products, subject

to certain exceptions. Section 807 builds on the pronouncement of section 221(b)(2)

to confirm that the trade sanctions bill should not be construed to limit or otherwise

amend the prohibitions on providing material support to terrorist or terrorist

organizations found in 18 U.S.C. 2339A and 2339B.

Section 808. Definition of Federal Crime of Terrorism.

Paragraph 2332b(g)(5)(b) lists a number of violent federal crimes within its

definition of “federal crime[s] of terrorism” for purposes of the section’s prohibition

on acts of terrorism transcending national boundaries. Section 808 amends the

definition for consistency with its use in various other sections of the USA PATRIOT

Act. The Section drops a number of less serious crimes from the definition, such as

simple assault (18 U.S.C. 351(e)), bomb scares (18 U.S.C. 844(e)), and malicious

mischief (18 U.S.C. 1361), after reaffirming that the omitted offenses remain within

the investigative jurisdiction of the Department of Justice. It places several more

serious crimes within the definition, crimes like biological weapons offenses (18

U.S.C. 175b), cybercrime (18 U.S.C. 1030), terrorists attacks on mass transit (18

U.S.C. 1993), and various violent crimes committed aboard aircraft within U.S.

jurisdiction (49 U.S.C. 46504, 46505(b)(3),(c), 46505).

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Section 809. No Statute of Limitations for Certain Terrorism Offenses.

Prosecution for murder may be initiated at any time; there is no statute of

limitations, 18 U.S.C. 3281. With a few exceptions, there is a five year statute of

limitations on the prosecution of other federal crimes. Among the relevant exceptions

before the USA PATRIOT Act was enacted, were an eight year statute of limitations

for several terrorist offenses, 18 U.S.C. 3286,11 and a ten year statute of limitations

for arson in federal enclaves and explosives offenses involving federal property,

property used in an activity affecting interstate commerce, and use of an explosive

during the commission of a federal offense, 18 U.S.C. 3295. The Administration

recommended the elimination of a statute of limitations in terrorism cases.

Section 809 takes a less dramatic approach. It eliminates the statute of

limitations for any federal crime of terrorism (as defined by 18 U.S.C.

2332b(g)(5)(B), with the amendments of §808) that risks or results in a death or

serious bodily injury, 18 U.S.C. 3286. In the absence of such a risk or result, all other

terrorism offenses become subject to the eight year statute of limitations unless

already covered by the ten year statute for explosives and arson offenses, 18 U.S.C.

3286 (§809).

Section 810. Alternative Maximum Penalties for Terrorism Offenses.

The Justice Department suggested an alternative term of imprisonment up to life

imprisonment for anyone convicted of an offense designated a terrorist crime. It

described the proposal as analogous to standard fine provisions of 18 U.S.C.

3571(b),(c), which in 1984 established a basic fine of $250,000 for any individual who

committed a federal felony, notwithstanding the lower maximum fine described in the

statute that outlawed the offense.

The proposal, however, failed to identify the critical elements that would trigger

the alternative. Both practical and constitutional challenges might be thought to

attend this failure to distinguish between those convicted of some “garden variety”

crime of terrorism and the more serious offender meriting the alternative,

supplementary penalty. Section 810 instead opts to simply increase the maximum

penalties for various crimes of terrorism, particularly those which involve the taking

of a human life and are not already capital offenses. It increases the maximum terms

of imprisonment:

11

18 U.S.C. 32 (destruction of aircraft or aircraft facilities), 37 (violence at international

airports), 112 (assaults on foreign dignitaries), 351 (crimes of violence against Members of

Congress), 1116 (killing foreign dignitaries), 1203 (hostage taking), 1361 (destruction of

federal property), 1751 (crimes of violence against the President), 2280 (violence against

maritime navigation), 2281 (violence on maritime platforms), 2332 (terrorist violence against

Americans overseas), 2332a (use of weapons of mass destruction), 2332b (acts of terrorism

transcending national boundaries), 2340A (torture); 49 U.S.C. 46502 (air piracy), 46504

(interference with a flight crew), 46505 (carrying a weapon aboard an aircraft), and 46506

(assault, theft, robbery, sexual abuse, murder, manslaughter or attempted murder or

manslaughter in the special aircraft jurisdiction of the United States).

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! for life-threatening arson or arson of a dwelling committed within a federal

enclave, from 20 years to any term of years or life, 18 U.S.C. 81;

! for causing more than $100,000 in damage to, or significantly impairing the

operation of an energy facility, from 10 to 20 years (or any term of years or

life, if death results), 18 U.S.C. 1366;

! for providing material support to a terrorist or a terrorist organization, from

10 to 15 years (or any term of years or life, if death results), 18 U.S.C.

2339A, 2339B;

! for destruction of national defense materials, from 10 to 20 years (or any

term of years or life, if death results), 18 U.S.C. 2155;

! for sabotage of a nuclear facility, from 10 to 20 years (or any term of years

or life, if death results), 42 U.S.C. 2284;

! for carrying a weapon or explosive aboard an aircraft within U.S. special

aircraft jurisdiction, from 15 to 20 years (or any term of years or life, if death

results), 49 U.S.C. 46505; and

! for sabotage of interstate gas pipeline facilities, from 15 to 20 years (or any

term of years or life, if death results), 49 U.S.C. 60123.

Section 811. Penalties for Terrorist Conspiracies.

It is a separate federal offense punishable by imprisonment for not more than five

years to conspire to commit any federal felony, 18 U.S.C. 371. Coconspirators are

likewise subject to punishment for the underlying offense and for any other crimes

committed in furtherance of the conspiracy. Nevertheless, some federal criminal

statutes impose the same penalties for both the crimes they proscribe and for

conspiracy to commit. Again, section 811, opts for a less sweeping approach than the

Administration had proposed. It establishes equivalent sanctions f

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