USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
Congressional research reportDec 21, 2006
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USA PATRIOT Improvement and
Reauthorization Act of 2005: A Legal Analysis
-name redactedLegislative Attorney
-name redactedSenior Specialist in American Public Law
December 21, 2006
Congressional Research Service
7-....
www.crs.gov
RL33332
CRS Report for Congress
Prepared for Members and Committees of Congress
USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
Summary
Several sections of the USA PATRIOT Act and one section of the Intelligence Reform and
Terrorism Prevention Act of 2004 were originally scheduled to expire on December 31, 2005. In
July 2005, both Houses approved USA PATRIOT reauthorization acts, H.R. 3199 and S. 1389,
and the conference committee filed a report, H.Rept. 109-333. A separate bill, the USA PATRIOT
Act Additional Reauthorizing Amendments Act of 2006 (S. 2271), provided civil liberties
safeguards not included in the conference report. Both H.R. 3199 and S. 2271 were signed into
law (P.L. 109-177 and P.L. 109-178) by the President on March 9, 2006.
This report describes the USA PATRIOT Improvement and Reauthorization Act of 2005 (the Act)
and, where appropriate, discusses the modifications to law made by the USA PATRIOT Act
Additional Reauthorizing Amendments Act of 2006. Consisting of seven titles, the Act, among
other things:
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Makes permanent 14 of the 16 expiring USA PATRIOT Act sections as well as
the material support of terrorism amendments scheduled to expire on December
31, 2006.
Creates a new sunset of December 31, 2009, for USA PATRIOT Act sections 206
and 215 (“roving” FISA wiretaps and FISA orders for business records), and for
the “lone wolf” amendment to FISA.
Provides for greater congressional and judicial oversight of section 215 orders,
section 206 roving wiretaps, and national security letters.
Requires high-level approval for section 215 FISA orders for library, bookstore,
firearm sale, medical, tax return, and educational records.
Enhances procedural protections and oversight concerning delayed notice, or
“sneak and peek” search warrants.
Expands the list of predicate offenses in which law enforcement may obtain
wiretap orders to include more than 20 federal crimes.
Revises criminal penalties and procedures concerning criminal and terrorist
activities committed at seaports or aboard vessels.
Reenforces federal money laundering and forfeiture authority, particularly in
connection with terrorist offenses.
Allows the Attorney General to determine whether a state qualifies for expedited
habeas corpus procedures for state death row inmates.
Establishes a new National Security Division within the Department of Justice
(DOJ), supervised by a new Assistant Attorney General.
Creates a new federal crime relating to misconduct at an event designated as a
“special event of national significance,” whether or not a Secret Service protectee
is in attendance.
Intensifies federal regulation of foreign and domestic commerce in
methamphetamine precursors.
Much of the information contained in this report may also be found under a different arrangement
in CRS Report RL33239, USA PATRIOT Improvement and Reauthorization Act of 2005 (H.R.
3199): Section-by-Section Analysis of the Conference Bill.
Congressional Research Service
USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
Contents
Introduction ..........................................................................................................................1
Title I: USA PATRIOT Improvement and Reauthorization Act...............................................2
Temporary USA PATRIOT Act Sections Made Permanent...............................................2
USA PATRIOT Act Sections Still Subject to Sunset.........................................................3
Extension of the “Lone Wolf” Amendment, and the Material Support of Terrorism
Amendments Made Permanent.....................................................................................3
Section 215 FISA Orders for “Business Records”............................................................4
National Security Letters.................................................................................................9
Section 206 FISA “Roving” Wiretaps............................................................................ 14
Delayed Notice Search Warrants ................................................................................... 16
Emergency Disclosures by Service Providers ................................................................ 18
Duration of FISA Surveillance and Physical Search Orders and Congressional
Oversight Of Their Usage .......................................................................................... 18
Information Related to FISA Pen Register and Trap & Trace Devices ............................ 19
Additions to the Definition of Federal Crime of Terrorism............................................. 21
Expanded List of Predicate Offenses For Wiretaps ........................................................ 21
Attacks Against Railroad Carriers and Mass Transportation Systems ............................. 21
Asset Forfeiture ............................................................................................................ 22
Miscellanea................................................................................................................... 23
Title II: Terrorist Death Penalty Enhancement Act of 2005 .................................................. 26
Pre-1994 Capital Air Piracy Cases................................................................................. 26
Life Time Supervised Release Regardless of Risks ........................................................ 27
Capital Procedures in Drug Cases.................................................................................. 28
Appointment of Counsel in Capital Cases...................................................................... 28
Title III: Reducing Crime and Terrorism at America’s Seaports Act of 2005......................... 29
Seaport Entry by False Pretenses ................................................................................... 29
Obstructing Maritime Inspections.................................................................................. 30
Interference with Maritime Commerce .......................................................................... 30
Transporting Dangerous Materials or Terrorists ............................................................. 31
Interference With Maritime Navigation ......................................................................... 32
Theft From Maritime Commerce................................................................................... 34
Stowaways.................................................................................................................... 35
Port Security Bribery .................................................................................................... 35
Smuggling Goods Into the United States ....................................................................... 36
Smuggling Goods From the United States ..................................................................... 36
Title IV: Combating Terrorism Financing Act of 2005 ......................................................... 36
International Emergency Economic Powers Act Penalties.............................................. 37
Terrorist Money Laundering.......................................................................................... 37
Forfeiture for Foreign Crimes........................................................................................ 38
Money Laundering Through “Hawalas” ........................................................................ 39
Technical Amendments ................................................................................................. 40
Civil Forfeiture Pre-trial Freezes and Restraining Orders............................................... 40
Conspiracy Penalties ..................................................................................................... 41
Laundering the Proceeds of Foreign Terrorist Training .................................................. 41
Uniform Procedures for Criminal Forfeitures ................................................................ 41
Title V: Miscellaneous Provisions........................................................................................ 43
Justice Department Residency Requirements................................................................. 43
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USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
Appointment of U.S. Attorneys ..................................................................................... 43
Presidential Succession: Homeland Security Secretary .................................................. 43
Confirmation of the Director of BATFE ........................................................................ 43
Qualifications for U.S. Marshals ................................................................................... 44
New National Security Division of the DOJ and new Assistant Attorney General .......... 45
Habeas Corpus in State Capital Cases............................................................................ 47
Title VI: Secret Service Authorization and Technical Modification Act of 2005 ................... 49
Protection of the President and Certain Other Federal Officials...................................... 49
Special Events of National Significance ........................................................................ 50
Use of False Credentials to National Special Security Events ........................................ 51
Forensic and Investigative Support of Missing and Exploited Children Cases ................ 53
Secret Service Uniformed Division ............................................................................... 53
Secret Service as a Distinct Entity ................................................................................. 54
Exemptions from the Federal Advisory Committee Act ................................................. 54
Title VII: Combat Methamphetamine Epidemic Act of 2005................................................ 55
Domestic Regulation of Precursor Chemicals ................................................................ 55
International Regulation of Precursors........................................................................... 58
Enhanced Criminal Penalties for Meth Production and Trafficking ................................ 59
Enhanced Environmental Regulation of Methamphetamine Byproducts ........................ 60
Drug Courts and Grant Programs .................................................................................. 61
Contacts
Author Contact Information ...................................................................................................... 62
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USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
Introduction
By operation of section 224 of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001,1 several of
the USA PATRIOT Act’s amendments to the Foreign Intelligence Surveillance Act (FISA)2 and
the Electronic Communications Privacy Act (ECPA)3 concerning law enforcement and
intelligence investigative tools, were originally scheduled to expire on December 31, 2005.4
Section 6001(a) of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004
(concerning “lone wolf” terrorists) was also scheduled to sunset on that date. Without any
legislative action, these provisions as well as amendments to them would have ceased to exist
after the sunset date, and most of the pre-existing provisions of law would have been revived
automatically.
During the 109th Congress, the House and Senate each passed USA PATRIOT Reauthorization
Acts, H.R. 3199 and S. 1389 respectively,5 which made permanent 14 of the 16 expiring USA
PATRIOT Act sections and extended the sunset on section 206 (regarding FISA court orders for
multipoint, or “roving,” wiretaps) and section 215 (access to business records requested under
FISA), as well as the sunset on section 6001(a) of IRTPA. The two bills differed in several
respects, including the new sunset date (under S. 1389, December 31, 2009, while H.R. 3199
offered a ten-year extension to December 31, 2015). On December 8, 2005, House and Senate
conference committee members filed a report representing a compromise between the Senate
version and the version passed by the House, H.Rept. 109-333 (2005).
The House agreed to the conference report accompanying H.R. 3199 on December 14, 2005.
However, with several Members of the Senate raising concerns about the sufficiency of the
conference report’s safeguards for civil liberties, the Senate voted to reject a motion to invoke
cloture on the conference report, thus taking no action before the end of 2005. To provide the
Senate with additional time to consider the conference report, Congress enacted legislation to
postpone the expiration of the USA PATRIOT Act provisions and of IRTPA’s “lone wolf”
amendment,6 until February 3, 2006,7 and thereafter further extended the sunset until March 10,
2006.8
On March 1, 2006, the Senate passed a separate bill, the USA PATRIOT Act Additional
Reauthorizing Amendments Act of 2006 (S. 2271), that provides three civil liberties safeguards
1
P.L. 107-56, 115 Stat. 272 (2001).
50 U.S.C. 1801-1862.
3
18 U.S.C. 2510-2522, 2701-2712, 3121-3127.
4
115 Stat. 295 (2001).
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H.R. 3199 was introduced by Representative Sensenbrenner; S. 1389 by Senator Specter for himself and Senators
Feinstein and Kyl. H.R. 3199 was reported by committee, H.Rept. 109-174, and initially passed the House on July 21,
2005, 151 CONG. REC. H6308-309 (daily ed. July 21, 2005). The Senate by unanimous consent substituted the text of S.
1389, as reported by the Judiciary Committee, after striking all but the enacting clause from H.R. 3199, 151 CONG.
REC. S9559, S9562 (daily ed. July 29, 2005). The Record, however, reprints the House-passed bill and identifies it as
H.R. 3199 as passed by the Senate, 151 CONG. REC. S9562-9579 (daily ed. July 29, 2005). For purposes of
convenience, we assume that the Senate-passed version of H.R. 3199 is S. 1389 as reported and will refer to it as S.
1389.
6
P.L. 108-458, 118 Stat. 3742 (2004).
7
P.L. 109-160, 119 Stat. 2957 (2005).
8
P.L. 109-170, 120 Stat. 3 (2006).
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USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
not included in the conference report.9 Passage of S. 2271 helped to pave the way for the Senate
to invoke cloture on the conference report upon reconsideration, and the Senate agreed to the
conference report on March 2. Under suspension of the rules, the House passed S. 2271 on March
7, and both H.R. 3199 and S. 2271 were signed into law by the President on March 9.
This report provides a summary and legal analysis of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (the “Act” or the “Reauthorization Act”), P.L. 109-177, 120 Stat. 192
(2006), and, where appropriate, discusses the modifications to law made by the USA PATRIOT
Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178, 120 Stat. 278 (2006). For
organizational purposes, the report is divided according to the seven titles of the Act and, within
those titles, arranged by topic headings.
Title I: USA PATRIOT Improvement and Reauthorization Act
Title I is in many ways the heart of the Act. It makes permanent most of the USA PATRIOT Act
sections that were scheduled to expire. To several, like section 215, it adds substantive changes
such as civil liberties safeguards. It addresses issues raised by USA PATRIOT Act sections other
than those for which the sun was setting. It more clearly states the “National Security Letter”
provisions of law, in ways perhaps necessary to make them constitutionally viable. Elsewhere, it
looks at the issues faced in the USA PATRIOT Act four years after the fact. In some instances it
adds to the tools available; in others it adds further checks against abuse.
Temporary USA PATRIOT Act Sections Made Permanent
Section 102(a) of the Act repeals section 224 of the USA PATRIOT Act that had mandated 16 of
its sections to expire initially on December 31, 2005, and later extended to March 10, 2006 by
P.L. 109-170, 120 Stat. 3 (2006). Although the Act adopts a new sunset date on two of the
sections, as discussed below, it makes permanent the following 14 sections:
Sec. 201 (ECPA wiretapping in certain terrorism investigations)
Sec. 202 (ECPA wiretapping in computer fraud and abuse investigations)
Sec. 203(b) (law enforcement sharing of court-ordered wiretap-generated foreign intelligence
information wiretap information)
Sec. 203(d) (law enforcement sharing of foreign intelligence information notwithstanding
any other legal restriction)
Sec. 204 (technical exception for foreign intelligence pen register/trap & trace device use)
Sec. 207 (duration of FISA wiretap and search orders involving agents of a foreign power)
Sec. 209 (seizure of stored voice mail by warrant rather than ECPA order)
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Technically, these provisions were not amendments to the conference report itself, but rather the bill amended
specified sections of FISA and the national security letter statutes after they have been amended by H.R. 3199.
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USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
Sec. 212 (communications providers emergency disclosures of communications content or
related records to authorities)
Sec. 214 (FISA pen register order amendments including extension to electronic
communications, e.g., Internet use)
Sec. 217 (law enforcement access to computer trespassers’ communications within the
intruded system)
Sec. 218 (FISA wiretap or search orders with an accompanying law enforcement purpose
[removal of “the wall” of separation between criminal catchers and spy catchers])
Sec. 220 (nationwide service of court orders directed to communication providers)
Sec. 223 (civil liability and disciplinary action for certain ECPA or FISA violations)
Sec. 225 (civil immunity for assistance in executing a FISA order)
USA PATRIOT Act Sections Still Subject to Sunset
The Act adopts a sunset of December 31, 2009, for USA PATRIOT Act sections 206 (regarding
FISA court orders for multipoint, or “roving,” wiretaps) and 215 (access to business records
requested under FISA).10
Extension of the “Lone Wolf” Amendment, and the Material Support of
Terrorism Amendments Made Permanent
The Act makes two changes to the Intelligence Reform and Terrorism Prevention Act (IRTPA) of
2004, P.L. 108-458, 118 Stat. 3638 (2004). First, it postpones the expiration of section 6001(a) of
IRTPA, 118 Stat. 3742 (2004), until December 31, 2009.11 Section 6001(a) defines an “agent of a
foreign power” to include any person, other than a United States person, who “engages in
international terrorism or activities in preparation therefore.”12 Thus, so-called “lone wolf”
terrorists may be subjected to foreign intelligence surveillance despite not being an agent of a
foreign power or an international terrorist organization.13
Second, the Act makes permanent section 6603 of IRTPA by repealing the sunset provision
(section 6603(g)) that would have caused the section to be ineffective on December 31, 2006.14
Section 6603 of IRTPA amends federal law regarding material support of terrorists and terrorist
organizations, primarily in 18 U.S.C. 2339A15 and 2339B.16 Briefly, section 6603: (1) amends the
10
§ 102(b), P.L. 109-177, 120 Stat. 195 (2006).
§ 103, P.L. 109-177, 120 Stat. 195 (2006).
12
50 U.S.C. 1801(b)(1)(C).
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13
For more information on the “lone wolf” amendment, see CRS Report RS22011, Intelligence Reform and Terrorism
Prevention Act of 2004: “Lone Wolf” Amendment to the Foreign Intelligence Surveillance Act, by (name redacted)
and (name redacted).
14
§ 104, P.L. 109-177, 120 Stat. 195 (2006).
15
Section 2339A outlaws providing, attempting to provide, or conspiring to provide, material support or resources for
the commission of any of several designated federal crimes that a terrorist might commit.
16
Section 2339B outlaws providing, attempting to provide, or conspiring to provide, material support or resources to a
(continued...)
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USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
definitions of “material support or resources,” “training,” and “expert advice or assistance” as
those terms are used in 18 U.S.C. 2339A and 2339B, and of “personnel” as used in section
2339B; (2) adds a more explicit knowledge requirement to section 2339B; (3) expands the
extraterritorial jurisdiction reach of section 2339B; (4) enlarges the list of federal crimes of
terrorism, 18 U.S.C. 2332b(g)(5); (5) adds the enlarged list to the inventory of predicate offenses
for 18 U.S.C. 2339A (material support for the commission of certain terrorist crimes) and
consequently for 18 U.S.C. 2339B (material support for designated terrorist organizations); and
(6) precludes prosecution for certain violations committed with the approval of the Secretary of
State and concurrence of the Attorney General.17
Section 215 FISA Orders for “Business Records”
Section 215 of the USA PATRIOT Act amended the business record sections of FISA to authorize
the Director of the Federal Bureau of Investigation (FBI) or a designee of the Director, to apply to
the FISA court to issue orders granting the government access to any tangible item (including
books, records, papers, and other documents), no matter who holds it, in foreign intelligence,
international terrorism, and clandestine intelligence cases. 18 The Act contains several provisions
to guard against abuses of section 215 authority, including greater congressional oversight,
enhanced procedural protections, more elaborate application requirements, and a judicial review
process.
Greater Congressional Oversight
Section 106(h) of the Act directs the Attorney General to submit to Congress an annual report
regarding the use of section 215 authority. This report is to be filed with the House and Senate
Committees on the Judiciary, the House Permanent Select Committee on Intelligence, and the
Senate Select Committee on Intelligence. The annual report, due every April, must contain the
following information regarding the preceding year:
(...continued)
designated foreign terrorist organization.
17
For more information regarding section 6603 of IRTPA, see CRS Report RL33035, Material Support of Terrorists
and Foreign Terrorist Organizations: Sunset Amendments, by (name redacted).
18
Section 215 authority appears to have been relatively little used. In April 2005, Justice Department officials testified
to the House Judiciary Committee that, as of March 31, 2005, only 35 orders have been issued under section 215
authority, none of which involved library, book store, medical, or gun sale records. Oversight Hearing on the
“Implementation of the USA PATRIOT Act: Foreign Surveillance Intelligence Act (FISA)”: Hearings Before the
Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 1st Sess.
(2005) (statement of Kenneth L. Wainstein, U.S. Attorney for the District of Columbia), at 8, available on Jan. 13,
2006 at http://judiciary.house.gov/media/pdfs/wainstein042805.pdf. At the same time, the Justice Department argues
against the creation of a safe haven in public services that terrorists have been known to use. Oversight Hearing on the
“Implementation of the USA PATRIOT Act: Foreign Surveillance Intelligence Act (FISA)”: Hearings Before the
Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 1st Sess.
(2005) (statement of James A. Baker, Counsel for Intelligence Policy, Office of Intelligence Policy and Review, U.S.
Dep’t of Justice), at 3, available on Jan. 13, 2006 at http://judiciary.house.gov/media/pdfs/baker042805.pdf (“While
section 215 has never been used to obtain such records, last year, a member of a terrorist group closely affiliated with al
Qaeda used Internet service provided by a public library to communicate with his confederates. Furthermore, we know
that spies have used public library computers to do research to further their espionage and to communicate with their
co-conspirators ... . A terrorist using a computer in a library should not be afforded greater privacy protection that a
terrorist using a computer in his home.”).
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USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
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the total number of applications made for section 215 production orders (“215
orders”) approving requests for the production of tangible things,
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the total number of such orders granted as requested, granted as modified, or
denied, and
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the number of 215 orders either granted, modified, or denied for the production
of each of the following: library circulation records, library patron lists, book
sales records, or book customer lists; firearms sales records; tax return records;
educational records; and medical records containing information that would
identify a person.19
Prior to the Act, the law had required public disclosure of only the first two items listed above; by
adding the third reporting requirement, the Act provides for a more detailed account of whether
and when section 215 authority has been used to request these categories of sensitive information.
Section 106A of the Act provides for the Inspector General of the Department of Justice to
conduct a comprehensive audit to determine the effectiveness, and identify any abuses,
concerning the use of section 215 authority, for calendar years 2002-2006. The audit is to be
performed in accordance with the detailed requirements set forth in this section. The results of the
audit are to be submitted in an unclassified report to the House and Senate Committees on the
Judiciary and Intelligence; for calendar years 2002, 2003, and 2004, the report is due not later
than March 9, 2007; for calendar years 2005 and 2006, the report is due not later than December
31, 2007.
Enhanced Procedural Protections
Section 106(a)(2) of the Act adds 50 U.S.C. 1861(a)(3), requiring that an application for a 215
order for the production of certain sensitive categories of records, such as library, bookstore,
firearm sales, tax return, educational, and medical records, must be personally approved by one of
the following three high-level officials: the FBI Director, the FBI Deputy Director, or the
Executive Assistant Director for National Security. This provision was included as an attempt to
allay concerns over federal authorities abusing section 215 authority to obtain sensitive types of
records.20
The Act also instructs the Attorney General to promulgate specific minimization standards that
apply to the collection and dissemination of information obtained through the use of the section
215 authority.21 These procedures are intended to limit the retention, and regulate the
dissemination, of nonpublicly available information concerning unconsenting U.S. persons,
consistent with the need of the United States to obtain, produce, and disseminate foreign
intelligence information. Federal authorities are required to observe these minimization
procedures regarding the use or disclosure of information received under a 215 order;
furthermore, they may not use or disclose such information except for lawful purposes. Finally,
19
§106(h)(2), P.L. 109-177, 120 Stat. 200 (2006), adding new 50 U.S.C. 1862(b)(3).
50 U.S.C. 1861(a)(2)(B) already prohibits the government from seeking a section 215 order in an investigation of a
U.S. person solely upon the basis of activities protected by the First Amendment to the U.S. Constitution. For more
information about section 215 under existing law and its potential use against libraries or their patrons, see CRS Report
RS21441, Libraries and the USA PATRIOT Act, by (name redacted) and (name redacted).
21
§106(g), P.L. 109-177, 120 Stat. 198, 199 (2006), adding new 50 U.S.C. 1861(g).
20
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USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
the Act clarifies that otherwise privileged information does not lose its privileged character
simply because it was acquired through a 215 order.
Application Requirements and Orders
Prior to the Act’s enactment, an application for a 215 order to be submitted to the FISA court for
approval only needed to state that the requested records were sought for an authorized
investigation. The Act amends 50 U.S.C. 1861(b)(2) to require that such an application must
include a “statement of facts” demonstrating that there are reasonable grounds to believe that the
tangible things sought are “relevant” to an authorized or preliminary investigation to protect
against international terrorism or espionage, or to obtain foreign intelligence information not
concerning a U.S. person.22 Section 106(b)(2)(A) of the Act also provides that certain tangible
items are “presumptively relevant” to an investigation if the application’s statement of facts
shows that the items sought pertain to:
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a foreign power or an agent of a foreign power,
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the activities of a suspected agent of a foreign power who is the subject of such
authorized investigation, or
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an individual in contact with, or known to, a suspected agent of a foreign power
who is the subject of such authorized investigation.
Finally, the application for a 215 order must include an enumeration of the minimization
procedures applicable to the retention and dissemination of the tangible items sought.23
The FISA court judge shall approve an application for a 215 order as requested or as modified,
upon a finding that the application complies with statutory requirements. The order must contain
a particularized description of the items sought, provide for a reasonable time to assemble them,
notify recipients of nondisclosure requirements, and be limited to things subject to a grand jury
subpoena or order of a U.S. court for production.24 The ex parte order shall also direct that the
retention and dissemination of the tangible things obtained under the order must adhere to the
minimization procedures.
Judicial Review and Enforcement
Section 106(f) of the Act establishes a detailed judicial review process for recipients of 215 orders
to challenge their legality before a judge selected from a pool of FISA court judges. If the judge
22
The “relevancy” standard set forth in the Act was criticized by several Members of Congress during the floor debate
on the conference report. See, e.g., 152 CONG. REC. S1382 (daily ed. Feb. 16, 2006) (statement of Sen. Feingold)
(“Relevance is a very broad standard that could arguably justify the collection of all kinds of information about lawabiding Americans.”). The Senate-passed version of the USA PATRIOT Improvement and Reauthorization Act, S.
1389, required that the statement of facts show that the records or things sought are relevant to an authorized
investigation and that the things sought pertain to, or are relevant to the activities of, a foreign power or agent of
foreign power, or pertain to an individual in contact with or known to a suspected agent of a foreign power. The Act
does not require such a connection. For more information about the Senate-passed version of the Act, see CRS Report
RL33027, USA PATRIOT Act: Background and Comparison of House- and Senate-Approved Reauthorization and
Related Legislative Action, by (name redacted).
23
§106(b), P.L. 109-177, 120 Stat. 196 (2006), adding new 50 U.S.C. 1861(b)(2)(B).
24
§106(d), P.L. 109-177, 120 Stat. 197 (2006), amending 50 U.S.C. 1861(c)(2).
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USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
determines that the petition is not frivolous after an initial review, the judge has discretion to
modify or set aside a FISA order upon a finding that it does not comply with the statute or is
otherwise unlawful.25 However, if the judge does not modify or rescind the 215 order, then the
judge must immediately affirm the order and direct the recipient to comply with it.
The FISA Court of Review and the U.S. Supreme Court are granted jurisdiction to consider
appeals of the FISA court judge’s decision to affirm, modify, or set aside a 215 order. The Chief
Justice of the United States, in consultation with the Attorney General and the Director of
National Intelligence, is directed to establish security measures for maintaining the record of the
215 order judicial review proceedings.
Nondisclosure Requirement for 215 Orders
A section 215 order is accompanied by a nondisclosure requirement that prohibits the recipient
from disclosing to any other person that the FBI has sought the tangible things described in the
order. Prior to the Act’s enactment, the only exception to this “gag order” was for disclosure to
those persons necessary for compliance with the production order. 26 The Act expands the list of
exceptions, expressly permitting a recipient of a 215 order to disclose its existence to an attorney
to obtain legal advice, as well as to other persons approved by the FBI.27
Under the Act, the recipient is not required to inform the FBI or the authorized government
agency of the intent to consult with an attorney to obtain legal assistance; however, upon the
request of the FBI Director (or his designee), the recipient must disclose to the FBI the identity of
the person to whom the disclosure will be or was made, which could include the name of the
attorney. 28 During the Senate debate over the conference report, some Members of Congress
raised concerns that this provision of the Act might have an unintended “chilling effect” on the
individual’s right to seek legal counsel regarding the Section 215 order.29 Thus, section 4 of the
USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178, 120 Stat.
280 (2006), amends FISA to exempt explicitly from the identification disclosure requirement the
name of the attorney sought to obtain legal advice with respect to the Section 215 production
order. 30
25
§106(f)(2), P.L. 109-177, 120 Stat. 198 (2006), adding new 50 U.S.C. 1861(f)(1). The review of a petition
challenging a 215 order shall be conducted in camera, new 50 U.S.C. 1803(e)(2).
26
50 U.S.C. 1861(d).
27
§106(e), P.L. 109-177, 120 Stat. 197 (2006), adding new 50 U.S.C. 1861(d)(1)(B), (C).
28
§106(e), P.L. 109-177, 120 Stat. 197 (2006), adding new 50 U.S.C. 1861(d)(2)(C).
29
See, e.g., 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu) (“[W]e feel the provision in
the conference report that required the recipient ... to disclose the name of their attorney to the FBI was punitive and
might have the result of discouraging an individual from seeking legal advice.”).
30
Under the Act, the recipient of a Section 215 order is prohibited from disclosing to any other person that the FBI has
sought the tangible things described in the order, except to the following individuals:
(A) those persons necessary for compliance with the order,
(B) an attorney to obtain legal advice with respect to the order, or
(C) other persons as permitted by the FBI Director or his designee.
The USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 amends FISA to provide that the FBI
Director or his designee may require anyone to disclose the identity of persons falling within categories A and C only.
It notably omits B, which effectively removes from the identity disclosure requirement attorneys sought for legal
assistance.
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While the Act provided a judicial review process for recipients of 215 orders to challenge their
legality, the Act does not expressly grant the right to petition the FISA court to modify or quash
the nondisclosure requirement imposed in connection with the production order. The Act was
criticized for its lack of an express right to challenge the nondisclosure order during the Senate
debate over the conference report.31
Section 3 of the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L.
109-178, 120 Stat. 278 (2006), addresses this omission by establishing a judicial review
procedure for a section 215 nondisclosure orders. For one year after the date of the issuance of a
215 production order, the nondisclosure requirement remains in full effect and may not be
challenged. 32 During the floor debates over S. 2271, this one-year mandatory moratorium and
automatic gag order had been criticized and defended by Members of Congress. 33
After the one-year waiting period has expired, the recipient of the production order may petition
the FISA court to modify or set aside the nondisclosure requirement. Within 72 hours, if the judge
assigned to consider the petition determines after an initial review that the petition is frivolous,
the judge shall immediately deny the petition and affirm the nondisclosure order. If, after the
initial review, the judge determines that the petition is not frivolous, the judge shall promptly
consider the petition under procedural measures that the FISA court has established to protect
national security, including conducting the review in camera.34
The FISA court judge has discretion to modify or set aside a nondisclosure order upon a finding
that there is no reason to believe that disclosure may endanger the national security of the United
States; interfere with a criminal, counterterrorism, or counterintelligence investigation; interfere
with diplomatic relations; or endanger the life or physical safety of any person. If, at the time the
individual files the petition for judicial review of a nondisclosure order, the Attorney General,
Deputy Attorney General, an Assistant Attorney General, or the Director of the FBI certifies that
disclosure may endanger the national security of the United States or interfere with diplomatic
relations, then the FISA judge must treat such government certification as conclusive unless the
judge finds that the certification was made in bad faith.35
If the judge grants a petition to quash the nondisclosure requirement, upon the request of the
government, such order is stayed pending review of the decision to the FISA Court of Review. If
the judge denies the petition to modify or set aside the nondisclosure requirement, the recipient of
the 215 order is precluded from filing another such petition for one year.36 The FISA Court of
31
See, e.g., 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu) (“I think it is important that we
stand for the principle that a restriction on free speech such as a gag order can be objected to in a court of law before a
judge. You can at least have your case heard. That does not mean you will win, necessarily, but you can at least have
your case heard.”).
32
By contrast, the Act does not impose a one-year moratorium on challenging the nondisclosure order accompanying a
NSL, § 115, P.L. 109-177, 120 Stat. 211 (2006), adding new 18 U.S.C. 3511(b)(1).
33
Compare 152 CONG. REC. S1496 (daily ed. Feb. 27, 2006) (statement of Sen. Specter) (“My own view is it is
preferable there not be a waiting period at all, that the court have the discretion to enter the orders [modifying or
quashing a gag order] immediately if it finds cause to do so.”) with 152 CONG. REC. S1559 (daily ed. Mar. 1, 2006)
(statement of Sen. Kyl) (“The delay is perfectly appropriate and necessary to preserve valuable personnel resources—
these orders are approved by judges before issuance, so it makes little sense to allow recipients to challenge the nondisclosure requirement only a week or even a day after the court issues them.”).
34
§ 3, P.L. 109-178, 120 Stat. 178 (2006), amending new 50 U.S.C. 1861(f)(2)(A)(ii).
35
Id., amending new 50 U.S.C. 1861(f)(2)(C)(ii).
36
Id., amending new 50 U.S.C. 1861(f)(2)(C)(iii).
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Review has jurisdiction to consider a petition by the government or by the recipient of a 215
order and to review a FISA judge’s decision to affirm, modify, or set aside such production order
or the nondisclosure order imposed in connection with it. The U.S. Supreme Court has
jurisdiction to review a decision of the FISA Court of Review concerning this matter.
National Security Letters
Five federal statutes, in roughly the same terms, authorize federal intelligence investigators
(generally the FBI) to request that communications providers, financial institutions and credit
bureaus provide certain types of customer business records, including subscriber and transactional
information related to Internet and telephone usage, credit reports, and financial records. 37 Unlike
a section 215 production order for tangible items, a national security letter (NSL) need not receive
prior approval of a judge. However, NSLs are more limited in scope compared to a section 215
order, in terms of the types of information that can be obtained. For example, NSLs cannot be
used to receive “content information”—the content of a telephone communication or e-mail
message is unavailable through a NSL, but a NSL could request the phone number dialed or the
e-mail addresses used.
A federal court in the Southern District of New York has held that the FBI’s practices and
procedure surrounding the exercise of its authority under one of these NSL statutes, 18 U.S.C.
2709, violate the Fourth and First Amendments.38 In the opinion of the court, the constitutional
problem stems from the effective absence of judicial review before or after the issuance of a NSL
under section 2709 and from the facially absolute, permanent confidentiality restrictions (“gag
order”) that the statute places on NSL recipients. 39 Another federal court in the District of
Connecticut enjoined enforcement of a NSL gag order on First Amendment grounds.40
Section 115 of the Act attempts to address these potential constitutional deficiencies by
authorizing judicial review of a NSL.41 In addition to providing the right to challenge the validity
of the NSL request, section 115 expressly grants NSL recipients the power to petition a federal
37
12 U.S.C. 3414; 15 U.S.C.1681u, 1681v; 18 U.S.C. 2709; 50 U.S.C. 436. For more information concerning national
security letters, see CRS Report RL33320, National Security Letters in Foreign Intelligence Investigations: Legal
Background and Recent Amendments, by (name redacted).
38
Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 2004), vacated by sub nom. Doe I v. Gonzales, 449 F. 3d 415 (2d Cir.
2006)(The U.S. Court of Appeals for the Second Circuit noted that the Reauthorization Act, passed during the
pendency of the appeal of this case, “dramatically altered § 2709” and “substantially shifted the legal footing” on which
John Doe I stood. Because the Reauthorization Act added 18 U.S.C. 3511(a), permitting NSL recipients to challenge
the legality of the NSL in federal court, John Doe I no longer pursued the Fourth Amendment claim. Thus, the
appellate court vacated as moot the Fourth Amendment portion of the Southern District of New York opinion. The
plaintiffs argued, however, that the revised § 2709(c), as amended by the Reauthorization Act, still violates John Doe
I’s First Amendment rights. The appellate court remanded the case for the district court to consider whether the revised
version of 18 U.S.C. 2709(c) violates the First Amendment either on its face or as applied to John Doe I. Doe I, 449 F.
3d at 418-19.).
39
Ashcroft, 334 F.Supp.2d at 526-27.
40
Doe v. Gonzalez, 386 F.Supp.2d 66 (D.Conn. 2005), dismissed as moot by Doe II v. Gonzales, 449 F. 3d 415 (2d Cir.
2006) (On appeal, the Government conceded that John Doe II may reveal its identity under new procedures established
by the Reauthorization Act, set forth in 18 U.S.C. 3511(b), and the Government informed the appellate court that it
would no longer oppose the preliminary injunction issued by the district court. The U.S. Court of Appeals for the
Second Circuit thus concluded that “the Government has effectively rendered this appeal moot by its own voluntary
actions.” Doe II, 449 F. 3d at 420.).
41
§ 115, P.L. 109-177, 120 Stat. 211 (2006), adding new 18 U.S.C. 3511.
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district court to modify or quash a nondisclosure requirement that may be imposed in connection
with the request.
Judicial Review and Enforcement of NSL requests
Under the Act, the recipient of a NSL request may petition a U.S. district court for an order
modifying or setting aside the request. The federal court may modify or quash the NSL request if
compliance would be unreasonable, oppressive, or otherwise unlawful.
Section 115 also provides the government with the means to enforce the NSL through court
action. If a NSL recipient fails to respond to the request for information, the Attorney General
may seek a federal district court order to compel compliance with the request.42 Disobedience of
the U.S. district court’s order to respond to a NSL is punishable as contempt of court.
Section 115 directs that any court proceedings concerning NSL matters must be closed, subject to
any right to an open hearing in a contempt proceeding, to prevent unauthorized disclosure of the
NSL request. In addition, all petitions, filings, records, orders, and subpoenas must be kept under
seal to prevent unauthorized disclosure. Finally, the government may request that its evidence be
considered ex parte and in camera.
Nondisclosure Orders for NSLs
Section 116 of the Act amends all five NSL statutes to prohibit service providers from disclosing
to any person that the FBI has sought or obtained access to the information sought through the
NSL, only if the investigative agency has certified that disclosure may endanger any individual or
the national security of the United States, interfere with diplomatic relations, or interfere with a
criminal or intelligence investigation. Thus, a nondisclosure order does not automatically attach
to the NSL, as it does in the case of a Section 215 order under FISA.
Assuming that this certification occurs and the gag order is in place, disclosure by the NSL
recipient is permitted to any person whose assistance is needed to comply with the NSL request
or to an attorney to obtain legal advice or legal assistance concerning the NSL.43 Although the
individual is not required to inform the FBI or the authorized government agency of the intent to
consult with an attorney to obtain legal assistance, upon the request of the FBI Director (or his
designee), or upon the request of the government agency authorized to issue the NSL, the
recipient must disclose to the FBI or the government agency the identity of the person to whom
the disclosure will be or was made. 44 According to the sponsor of H.R. 3199, “without this
safeguard, a recipient could disclose the government’s investigative efforts to a person with ties to
hostile foreign governments or entities.”45
42
§ 115, P.L. 109-177, 120 Stat. 212 (2006), adding new 18 U.S.C. 3511(c). Critics of this new provision claim that it
effectively transforms NSLs into national security subpoenas. See ACLU, ACLU Letter to Congress Urging A “No”
Vote On the USA PATRIOT Improvement and Reauthorization Act Conference Report (Dec. 12, 2005), available on
Jan. 13, 2006 at http://www.aclu.org/safefree/general/22394leg20051207.html.
43
§ 116, P.L. 109-177, 120 Stat. 213-217 (2006), amending 18 U.S.C. 2709(c)(1); 15 U.S.C. 1681u(d)(1); 15 U.S.C.
1681v(c)(1); 12 U.S.C. 3414(a)(3)(A); 12 U.S.C. 3414(a)(5)(D)(I); and 50 U.S.C. 436(b)(1).
44
§ 116, P.L. 109-177, 120 Stat. 213-217 (2006), amending 18 U.S.C. 2709(c)(4); 15 U.S.C. 1681u(d)(4); 15 U.S.C.
1681v(c)(4); 12 U.S.C. 3414(a)(3)(D); 12 U.S.C. 3414(a)(5)(D)(iv); and 50 U.S.C. 436(b)(4).
45
152 Cong. Rec. H583 (daily ed. Mar. 7, 2006) (statement of Rep. Sensenbrenner).
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However, the potential that this identity disclosure requirement may chill the right to seek legal
counsel was reduced by Section 4 of the USA PATRIOT Act Additional Reauthorizing
Amendments Act of 2006, P.L. 109-178, 120 Stat. 280 (2006). (Section 4 also had removed a
similar disclosure requirement concerning a Section 215 production order under FISA.) Section 4
amends the five NSL statutes by adding language expressly exempting the identity of attorneys
from the disclosure requirement established by the Act:
At the request of the Director of the Federal Bureau of Investigation or the designee of the
Director, any person making or intending to make a disclosure under this section shall
identify to the Director or such designee the person to whom such disclosure will be made or
to whom such disclosure was made prior to the request, except that nothing in this section
shall require a person to inform the Director or such designee of the identity of an attorney
to whom disclosure was made or will be made to obtain legal advice or legal assistance with
respect to the [NSL] request...46
Section 117 of the Act punishes a person who was notified of a NSL nondisclosure requirement
but nevertheless knowingly and willfully violates that directive, with imprisonment of not more
than one year, or not more than five years if committed with the intent to obstruct an investigation
or judicial proceeding. 47 The law prior to the Act’s enactment did not provide a felony charge for
such disclosure to an unauthorized person.
Section 115 of the Act grants a NSL recipient with an explicit statutory right to challenge in court
the gag order that may attach to the NSL request—a right that a recipient of a section 215 FISA
production order lacks under the Act but which was subsequently provided by the USA PATRIOT
Act Additional Reauthorizing Amendments Act of 2006. Section 115 creates a bifurcated
procedure for handling petitions for judicial review of the nondisclosure requirement
accompanying a NSL:
(1) If the petition is filed within one year of the NSL request, the U.S. district court may modify
or set aside the gag order if it finds no reason to believe that disclosure may:
•
endanger the national security of the United States,
•
interfere with a criminal, counterterrorism, or counterintelligence investigation,
•
interfere with diplomatic relations, or
•
endanger the life or physical safety of any person.
If, at the time of the petition, a high-ranking government official48 certifies that disclosure may:
•
endanger the national security of the United States, or
•
interfere with diplomatic relations,
46
§ 4, P.L. 109-178, 120 Stat. 280 (2006), amending 18 U.S.C. 2709(c)(4) (emphasis added). The language used to
describe this exception in 18 U.S.C. 2709(c)(4) is substantially similar to that used in the amendments to the other NSL
statutes.
47
§ 117, P.L. 109-177, 120 Stat. 217 (2006), adding new 18 U.S.C. 1510(e).
48
If the NSL is issued by the Department of Justice, this person must be the Attorney General, Deputy AG, or the
Director of the FBI; if the NSL information is requested by any agency, department, or instrumentality other than the
Justice Department, then the individual must be its head or deputy. New 18 U.S.C. 3511(b)(2).
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then the court must treat the government certification as conclusive unless the court finds that the
certification was made in bad faith.
(2) If the petition challenging the gag order is filed one year or more after the NSL issuance, a
high-ranking government official must, within 90 days of the petition, either terminate the gag
order or re-certify that disclosure may:
•
endanger the national security of the United States,
•
interfere with a criminal, counterterrorism, or counterintelligence investigation,
•
interfere with diplomatic relations, or
•
endanger the life or physical safety of any person.
If such recertification occurs, then a court may modify or quash the gag order if it finds no reason
to believe that disclosure may:
•
endanger the national security of the United States,
•
interfere with a criminal, counterterrorism, or counterintelligence investigation,
•
interfere with diplomatic relations, or
•
endanger the life or physical safety of any person.
However, if the recertification was made by the Attorney General, Deputy Attorney General, an
Assistant Attorney General, or the Director of the FBI, and if such recertification stated that
disclosure may:
•
endanger the national security of the United States, or
•
interfere with diplomatic relations
then such certification is to be treated by the court as conclusive unless it was made in bad faith.
If court denies the petition for an order to modify the nondisclosure requirement, the NSL
recipient is precluded from filing another such petition for one year.
Although the Act provides a process to challenge the nondisclosure requirement, critics believe
that this judicial review is not meaningful, in light of the “conclusive presumption” provision: “A
recipient would technically be given a right to challenge the gag order but if the government
asserted national security, diplomatic relations or an ongoing criminal investigation the court
would be required to treat that assertion as conclusive, making the ‘right’ an illusion.”49 In
addition, some Members of Congress have raised First Amendment and due process concerns
over the indefinite gag order and the conclusive presumption. 50 However, others have defended
49
ACLU, ACLU Letter to Congress Urging A “No” Vote On the USA PATRIOT Improvement and Reauthorization Act
Conference Report (Dec. 12, 2005), available Jan. 13, 2006 at http://www.aclu.org/safefree/general/
22394leg20051207.html.
50
See, e.g., 152 CONG. REC. S1567 (daily ed. Mar. 1, 2006) (statement of Sen. Leahy); 152 CONG. REC. H588 (daily ed.
Mar. 7, 2006) (statement of Rep. Nadler); 152 CONG. REC. S1382, 1383 (daily ed. Feb. 16, 2006) (statement of Sen.
Feingold).
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the conclusive presumption as necessary to ensure that sensitive information is not publicly
disclosed:
Only the FBI, the people who are investigating the matter, not individual district judges, are
in a position to determine when the disclosure of classified information would harm national
security. Obviously, that is not something that a Federal district judge has any expertise on.
... It is also important that the FBI make the final determination whether the disclosure would
harm national security. And only the agents in charge of these counterterrorism
investigations will be able to evaluate how the disclosure of a particular piece of information
could potentially, for example, reveal sources and methods of intelligence and who,
therefore, might be tipped off as a result of the disclosure.51
NSLs Not Applicable to Libraries
Section 5 of the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L.
109-178, 120 Stat. 281 (2006), entitled “Privacy Protections for Library Patrons,” addresses the
concern that a library could potentially be subject to an NSL issued under 18 U.S.C. 2709 to
obtain certain transactional and subscriber records pertaining to its patrons.52 Because libraries
often offer patrons the ability to access the Internet, the law prior to the Act was unclear as to
whether libraries might be considered “electronic communication service providers” for purposes
of 18 U.S.C. 2709. Section 5 amends 18 U.S.C. 2709 by adding the following section:
“A library ..., the services of which include access to the Internet ..., is not a wire or
electronic communication service provider for purposes of this section, unless the library is
providing the services defined in section 2510(15) of this title...”53
This provision “makes very clear that libraries operating in their traditional role, including the
lending of books, including making books available in digital form, including providing basic
Internet access, are not subject to National Security Letters.”54 However, if the library “provides”
the services described in 18 U.S.C. 2510(15), which are “electronic communication services,”
then such library would still be subject to NSLs. 18 U.S.C. 2510(15) defines “electronic
communication service” to mean any service that provides to users the ability to send or receive
wire or electronic communications. A reasonable interpretation of this definition suggests that to
be considered an electronic communication service provider under 18 U.S.C. 2510(15), a library
must independently operate the means by which transmission, routing, and connection of digital
communication occurs.55 In contrast, a local county library likely has a service contract with an
Internet Service Provider (ISP) to furnish the library with the electronic communication service,
as many businesses and individuals do; the fact that the library has set up a computer with
Internet access for the use of its patrons probably does not, by itself, turn the library into a
51
152 CONG. REC. S1394, 1395 (daily ed. Feb. 16, 2006) (statement of Sen. Kyl).
52
However, a library could still be subject to a Section 215 order under FISA for the production of tangible items such
as loan records. S. 2271 does not carve out any exception for libraries under Section 215. For more information on this
issue, see CRS Report RS21441, Libraries and the USA PATRIOT Act, by (name redacted) and (name redacted).
53
18 U.S.C. 2709(f) as amended by P.L. 109-178, 120 Stat. 281 (emphasis added).
54
152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu).
55
See 152 CONG. REC. S1558 (daily ed. Mar. 1, 2006) (statement of Sen. Leahy) (“[A] library may be served with an
NSL only if it functions as a true internet service provider, as by providing services to persons located outside the
premises of the library. I expect that this will occur rarely or never and that in most if not all cases, the Government
will need a court order to seize library records for foreign intelligence purposes.”).
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communications service “provider.” Under this characterization, the actual “provider” of Internet
access is the ISP, not the library.56 Therefore, a public library offering “basic” Internet access
would likely not be considered an electronic communication service provider, at least for
purposes of being an entity subject to the NSL provisions in 18 U.S.C. 2709.57
Congressional Oversight of NSLs
Section 118 of the Act requires that any reports to a Congressional committee regarding NSLs
shall also be provided to the House and Senate Judiciary Committees. In addition, the Attorney
General must submit a report semiannually on all NSL requests made under the Fair Credit
Reporting Act, to the House and Senate Judiciary Committees, the House and Senate Intelligence
Committees, and the House Committee on Financial Services and the Senate Committee on
Banking, Housing, and Urban Affairs.58
The Attorney General is also instructed to submit to Congress an annual report describing the
total number of requests made by the Department of Justice under the NSL statutes. This report is
to be unclassified, in order to permit public scrutiny.
Section 119 of the Act directs the Inspector General of the Department of Justice to perform a
comprehensive audit of the effectiveness and use of NSLs, including any improper or illegal use,
for submission to the House and Senate Judiciary and Intelligence Committees for calendar years
2003-2006. This report is to be unclassified. Section 119 also requires the Attorney General and
Director of National Intelligence to analyze the feasibility of applying minimization procedures to
NSL to ensure the protection of the constitutional rights of U.S. persons. This feasibility study is
to be submitted to the House and Senate Judiciary and Intelligence Committees by February 1,
2007, or upon completion of the audit of the use of NSLs for calendar years 2003 and 2004,
whichever is earlier.
Section 206 FISA “Roving” Wiretaps
Unlike a criminal wiretap order issued under Title III of the Omnibus Crime Control and Safe
Streets Act of 1968,59 which may be approved if a judge finds probable cause for believing that an
individual is committing, has committed, or is about to commit a particular enumerated offense, 60
a FISA wiretap may be issued upon a finding of probable cause to believe that the target of the
electronic surveillance is a foreign power or agent of a foreign power.61 Section 206 of the USA
56
See 152 CONG. REC. S1390 (daily ed. Feb. 16, 2006) (statement of Sen. Sununu) (“Some have noted or may note that
basic Internet access gives library patrons the ability to send and receive e-mail by, for example, accessing an Internetbased e-mail service. But in that case, it is the website operator who is providing the communication service—the
Internet communication service provider itself—and not the library, which is simply making available a computer with
access to the Internet.”). Thus, the NSL request could be served on the ISP rather than the library.
57
See 152 CONG. REC. S1390 (daily ed. Feb. 16, 2006) (statement of Sen. Durbin) (“By way of comparison, a gas
station that has a pay phone isn’t a telephone company. So a library that has Internet access, where a person can find an
Internet e-mail service, is not a communications service provider; therefore, it would not fall under the purview of the
NSL provision in 18 U.S.C. 2709. It is a critically important distinction.”).
58
§ 118(b), P.L. 109-177, 120 Stat. 217, 218 (2006), adding new 15 U.S.C. 1681v(f).
59
18 U.S.C. 2510 et seq.
60
See list of predicate offenses at 18 U.S.C. 2516(1)(a)-(r).
61
50 U.S.C. 1805(a).
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PATRIOT Act amended FISA to authorize the installation and use of multipoint, or “roving,”
wiretaps, for foreign intelligence investigations.62 A roving wiretap order applies to the suspect
rather than a particular phone or computer that the target might use, and thus allows law
enforcement officials to use a single wiretap order to cover any communications device that the
target uses or may use. 63 Without this authority, investigators must seek a new FISA court order
each time they need to change the name of the location to be monitored, as well as the specified
person or entity that is needed to assist in facilitating the wiretap.64
Section 206 of the USA PATRIOT Act permits a general command for the assistance of third
parties (for example, common carriers and Internet service providers) for the installation and use
of these multipoint wiretaps, where the target of the surveillance has taken steps to thwart the
identification of a communications company or other person whose assistance may be needed to
carry out the surveillance. Thus, if the FISA court finds that the target’s actions may have the
effect of thwarting specific identification, section 206 temporarily authorizes FISA orders that
need not specifically identify the communications carriers, landlords or others whose assistance
the order commands. 65
Prior to the enactment of the Act, a FISA roving surveillance order had to specify the identity of
the target only if it was known; otherwise, it was sufficient for the order to describe the target.66
Section 108 of the Act amends the FISA roving surveillance authority to require that an
application for an order, as well as the wiretap order itself, describe the specific target of the
electronic surveillance if the target’s identity is not known.67 It also clarifies that the FISA court
must find that the prospect of a target thwarting surveillance is based on specific facts in the
application. Furthermore, if the government begins to direct surveillance at a new facility or
place, the nature and location of which were unknown at the time the original surveillance order
was issued, the government must notify the FISA court within 10 days68 after such change, of the
following information:69
•
the nature and location of each new facility or place at which the surveillance is
directed,
•
the facts and circumstances relied upon by the applicant to justify the applicant’s
belief that each new facility or place is or was being used, or is about to be used,
by the target of the surveillance,
62
50 U.S.C. 1805(c)(2)(B).
According to the Department of Justice, “This new authority has put investigators in a better position to avoid
unnecessary cat-and-mouse games with terrorists, who are trained to thwart surveillance.” U.S. Dep’t of Justice, Report
from the Field, The USA PATRIOT Act at Work, 22 (July 2004), available on Jan. 13, 2006 at
http://www.lifeandliberty.gov/docs/071304_report_from_the_field.pdf.
64
Oversight Hearing on “Reauthorization of the USA PATRIOT Act”: Hearings Before the House Comm. on the
Judiciary, 109th Cong., 1st Sess. (2005) (statement of James B. Comey, Deputy Attorney General, U.S. Dep’t of
Justice), at 9-10, available on Jan. 13, 2006 at http://judiciary.house.gov/media/pdfs/comey060805.pdf.
65
50 U.S.C. 1805(c)(2)(B).
63
66
50 U.S.C. 1805(c)(1)(A). Furthermore, a roving wiretap order need not identify the nature and location of the places
or facilities targeted for surveillance if they are unknown. 50 U.S.C. 1805(c)(1)(B). This provision remains unchanged
after enactment of the Act.
67
§ 108(a), P.L. 109-177, 120 Stat. 203 (2006), amending 50 U.S.C. 1804(a)(3) and 50 U.S.C. 1805(c)(1)(A).
68
The 10 day period may be extended up to 60 days if the court finds good cause to justify the longer period.
69
§ 108(b)(4), P.L. 109-177, 120 Stat. 203 (2006), adding new 50 U.S.C. 1805(c)(3).
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•
an explanation of any proposed minimization procedures that differ from those
contained in the original application or order, if such change is necessitated by
the new facility or place, and
•
the total number of electronic surveillances that have been or are being conducted
under the roving surveillance order.
The Act also enhances congressional oversight over the use of all foreign intelligence electronic
surveillance authority, by adding the Senate Judiciary Committee as a recipient of the semiannual FISA reports that the Attorney General currently must submit to the House and Senate
Intelligence committees,70 and by modifying the FISA report requirements to include a
description of the total number of applications made for orders approving roving electronic
surveillance. 71
Delayed Notice Search Warrants
A delayed notice search warrant, or “sneak and peek” warrant, is one that authorizes law
enforcement officers to secretly enter a home or business, either physically or virtually, conduct a
search, and depart without taking any tangible evidence or leaving notice of their presence. The
Department of Justice has defended the necessity and legality of delayed notification search
warrants:
This tool can be used only with a court order, in extremely narrow circumstances when
immediate notification may result in death or physical harm to an individual, flight from
prosecution, evidence tampering, witness intimidation, or serious jeopardy to an
investigation. The reasonable delay gives law enforcement time to identify the criminal’s
associates, eliminate immediate threats to our communities, and coordinate the arrests of
multiple individuals without tipping them off beforehand. In all cases, law enforcement must
give notice that property has been searched or seized.72
Until the USA PATRIOT Act was enacted, the Federal Rules of Criminal Procedure required
contemporaneous notice in most instances.73 At the time, the courts were divided over whether
the failure to provide contemporaneous notice, in the absence of exigent circumstances,
constituted a constitutional violation or a violation of the Rule, and over the extent of permissible
delay in cases presenting exigent circumstances. 74 Section 213 of the USA PATRIOT Act created
an express statutory authority for delayed notice search warrants in any criminal investigation, not
just those involving suspected terrorist activity.75 Delayed notification of the execution of a sneak
70
§ 108(c)(1), P.L. 109-177, 120 Stat. 204 (2006), amending 50 U.S.C. 1808(a)(1).
§ 108(c)(2), P.L. 109-177, 120 Stat. 204 (2006), amending 50 U.S.C. 1808(a)(2).
72
U.S. Dep’t of Justice, Dispelling Some of the Major Myths about the USA PATRIOT Act, available on Jan. 13,2006
at http://www.lifeandliberty.gov/subs/u_myths.htm.
73
FED. R. CRIM. P. 41(d), 18 U.S.C. App. (2000 ed.).
74
See United States v. Pangburn, 983 F.2d 449 (2d Cir. 1993); United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986);
United States v. Simmons, 206 F.3d 392 (4th Cir. 2000).
71
75
18 U.S.C. 3103a. Critics have expressed concerns about the constitutionality of delayed notice search warrants as
well as potential abuse of the power. See, e.g., EPIC Report (“The expansion of this extraordinary authority to all
searches constitutes a radical departure from Fourth Amendment standards and could result in routine surreptitious
entries by law enforcement agents.”); American Civil Liberties Union (ACLU), Surveillance Under the USA PATRIOT
Act (April 3, 2003), available on Jan. 13, 2006 at http://www.aclu.org/safefree/general/17326res20030403.html
(“Notice is a crucial check on the government’s power because it forces the authorities to operate in the open, and
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and peek search warrant is permissible for a reasonable period of time (with the possibility of
court-approved extensions for good cause shown), if:
•
the court that issued the warrant finds reasonable cause to believe that
contemporaneous notice of the search may result in adverse consequences (flight,
destruction of evidence, intimidation of a witness, danger to an individual,
serious jeopardy to an investigation, or undue trial delay), and
•
the warrant prohibits the seizure of any tangible property, any wire or electronic
communication, and any stored wire or electronic information, except where the
court finds reasonable necessity for the seizure.
Responding to concerns that the “reasonable period” for delaying notification of a search warrant
is an undefined and indefinite standard under current law, section 114 of the Act establishes a
specific limitation on the length of the delay, requiring notice to be given no more than 30 days
after the date of the warrant’s execution, with the possibility for 90 day extensions if the facts of a
case justify. 76 Several Members of Congress have criticized this 30-day delayed notice provision,
arguing instead for notice to be given to the target of the search warrant within 7 days.77 However,
it should be noted that the Act’s 30-day delay period was itself a compromise between the House
and Senate-passed versions of the Reauthorization Act; the House bill allowed 180 days, while
the Senate limited the delay to 7 days.
In addition, section 114 removes “unduly delaying a trial” as one of the “adverse consequences”
that justifies delayed notification. Some commentators have noted that “seriously jeopardizing an
investigation,” which is retained by the Act as a ground for permitting delayed notice, is an overly
broad “catch-all” provision that law enforcement officials could abuse.78 There may also be some
question of whether it qualifies as a constitutionally acceptable exigent circumstance. However,
Justice Department officials defend this provision, observing that before the delayed notice can be
approved, a federal judge must agree with the government’s evaluation of the circumstances that
indicate that contemporaneous notice of a search might seriously jeopardize an ongoing
investigation.79
(...continued)
allows the subjects of searches to protect their Fourth Amendment rights. For example, it allows them to point out
irregularities in a warrant. ... Search warrants often contain limits on what may be searched, but when the searching
officers have complete and unsupervised discretion over a search, a property owner cannot defend his or her rights.”).
76
§ 114, 109-177, 120 Stat. 210 (2006), amending 18 U.S.C. 3103a(b)(3).
77
See, e.g., 152 CONG. REC. S1384 (daily ed. Feb. 16, 2006) (statement of Sen. Feingold) (asserting that seven days is
what courts have previously approved), and 152 CONG. REC. S1495 (daily ed. Feb. 27, 2006) (statement of Sen.
Specter) (stating that, in his view, seven days is “the best requirement”). However, other Members of Congress have
challenged the argument that seven days is the constitutionally-permissible limit. See 152 CONG. REC. S1397 (daily ed.
Feb. 16, 2006) (statement of Sen. Sessions) (claiming that the Court of Appeals for the Fourth Circuit has previously
allowed a 45-day period for delayed notice of a search warrant, although the court did not suggest that this was
necessarily a constitutional upper limit).
78
See ACLU, ACLU Letter to Congress Urging A “No” Vote On the USA PATRIOT Improvement and Reauthorization
Act Conference Report (Dec. 12, 2005), available on Jan. 13, 2006 at http://www.aclu.org/safefree/general/
22394leg20051207.html.
79
Oversight Hearing on the “Implementation of the USA PATRIOT Act: Sections 201, 202, 223 of the Act that Address
Criminal Wiretaps, and Section 213 of the Act that Addresses Delayed Notice”: Hearings Before the Subcomm. on
Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 1st Sess. (2005)
(statement of Chuck Rosenberg , Chief of Staff to Deputy Attorney General, U.S. Dep’t of Justice), at 3-4, available
Jan. 13, 2006 at http://judiciary.house.gov/media/pdfs/rosenberg050305.pdf (stating that “[t]here are a variety of ways
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Finally, section 114 enhances oversight of delayed notice search warrants, by requiring that no
later than 30 days after the expiration or denial of such a warrant, the issuing or denying judge
must notify the Administrative Office of the U.S. Courts of:
•
the fact that the delayed notice search warrant was applied for,
•
the fact that the warrant was either granted, modified, or denied,
•
the length of time of the delay in giving notice, and
•
the offense specified in the warrant or the application. 80
Beginning with the fiscal year ending September 30, 2007, the Director of the Administrative
Office is required to transmit a detailed, annual report to Congress that summarizes the use and
number of warrants authorizing delayed notice.
Emergency Disclosures by Service Providers
Section 212 of the USA PATRIOT Act permits electronic communications service providers to
disclose voluntarily the contents of stored electronic communications to a Federal, State, or local
governmental entity in emergency situations involving a risk or danger of death or serious
physical injury to any person.81 Service providers are also permitted to disclose customer records
to governmental entities in emergencies involving an immediate risk of serious physical injury or
danger of death to any person. 82
To provide congressional oversight over the use of this authority, section 107(a) of the Act
requires the Attorney General annually to report to the Judiciary Committees of the House and
Senate concerning the number of service providers’ voluntary emergency disclosures of the
contents of electronic communications to the Department of Justice. The report must also
summarize the basis for the voluntary disclosure in circumstances where the investigation
pertaining to the disclosure was closed without the filing of criminal charges. In addition, section
107(b) of the Act removes the immediacy requirement from the customer records provision and
defines “governmental entity” to mean a department or agency of the United States or any State
or political subdivision thereof.
Duration of FISA Surveillance and Physical Search Orders and Congressional
Oversight Of Their Usage
The Act extends the maximum duration of FISA electronic surveillance and physical search
orders against any agent of a foreign power who is not a U.S. person (e.g., a lone wolf terrorist),
(...continued)
in which investigators and prosecutors should not be precluded from obtaining a delayed notice search warrant simply
because their request does not fall into one of the other four circumstances listed in the statute”).
80
§ 114, 109-177, 120 Stat. 210, 211 (2006), amending 18 U.S.C. 3103a(d)(1).
81
18 U.S.C. 2702(b)(8).
82
18 U.S.C. 2702(c)(4).
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by amending section 105(e) of FISA.83 Initial orders authorizing such searches may be for a
period of up to 120 days, with renewal orders permitted to extend the period for up to one year.
In addition, the Act extends the life time for both initial and extension orders authorizing
installation and use of FISA pen registers, and trap and trace surveillance devices84 from a period
of 90 days to one year, in cases where the government has certified that the information likely to
be obtained is foreign intelligence information not concerning a U.S. person. 85
Section 109(a) of the Act enhances congressional oversight over the use of physical searches
under FISA, by requiring, on a semi-annual basis, the Attorney General:
•
to make full reports concerning all physical searches to the Senate Judiciary
Committee in addition to the House and Senate Intelligence committees, and
•
to submit to the three committees listed above and to the House Judiciary
Committee a report with statistical information concerning the number of
emergency physical search orders authorized or denied by the Attorney
General.86
Section 109(b) requires that the report the Attorney General submits to the House and Senate
Judiciary Committees semi-annually concerning the number of applications and orders for the
FISA use of pen registers or trap and trace devices, must include statistical information regarding
the emergency use of such devices. 87
Information Related to FISA Pen Register and Trap & Trace Devices
Law enforcement officials may secure an order authorizing the installation and use of a pen
register or trap and trace device to obtain information relevant to a criminal investigation, 18
U.S.C. 3122, 3123. They are also entitled to a court order directing a communications provider to
supply certain customer information when relevant to a criminal investigation, 18 U.S.C. 2703.88
Foreign intelligence officials are entitled to secure a FISA order for installation and use of a pen
register or trap and trace device in connection with certain foreign intelligence investigations, 50
U.S.C. 1841-1846. Under its national security letter authority the FBI may request
communications providers to supply customer name, address, length of service and local and long
distance toll billing records, 18 U.S.C. 2709. Under section 215 of the USA PATRIOT Act, the
FBI may obtain a FISA tangible item order for customer records held by a communications
provider, 50 U.S.C. 1861.
83
§ 105, P.L. 109-177, 120 Stat. 195 (2006), amending 50 U.S.C. 1805(e) and 50 U.S.C. 1824(d).
These surveillance devices are used to intercept non-content transactional information which reveals the source and
destination of wire and electronic communications, such as telephone dialing information, Internet IP addresses, and email routing and addressing. See definitions of these terms, 18 U.S.C. 3127(3), 18 U.S.C. 3127(4).
85
§ 105(c), P.L. 109-177, 120 Stat. 195, 196 (2006), adding new 50 U.S.C. 1842(e)(2).
86
§ 109(a), P.L. 109-177, 120 Stat. 204 (2006), amending 50 U.S.C. 1826.
87
§ 109(b), P.L. 109-177, 120 Stat. 204, 205 (2006), amending 50 U.S.C. 1846.
88
The information available under section 2703 includes “the—(A) name; (B) address; (C) local and long distance
telephone connection records, or records of session times and durations; (D) length of service (including start date) and
types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any
temporarily assigned network address; and (F) means and source of payment for such service (including any credit card
or bank account number), of a subscriber to or customer of such service),” 18 U.S.C. 2703(c)(2).
84
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Section 128(a) of the Act provides that the FISA court may, in its pen register/trap and trace order,
direct a service provider to supply customer information relating to use of the device. 89 The
information to be made available is more extensive than what is available under 18 U.S.C. 2709,
or to law enforcement officials, but it is not as extensive as the scope of information under a FISA
section 215 “tangible item” order; that is—
(I) in the case of the customer or subscriber using the service covered by the order (for the
period specified by the order)—
(I) the name of the customer or subscriber;
(II) the address of the customer or subscriber;
(III) the telephone or instrument number, or other subscriber number or identifier, of the
customer or subscriber, including any temporarily assigned network address or associated
routing or transmission information;
(IV) the length of the provision of service by such provider to the customer or subscriber and
the types of services utilized by the customer or subscriber;
(V) in the case of a provider of local or long distance telephone service, any local or long
distance telephone records of the customer or subscriber;
(VI) if applicable, any records reflecting period of usage (or sessions) by the customer or
subscriber; and
(VII) any mechanisms and sources of payment for such service, including the number of any
credit card or bank account utilized for payment for such service; and
(I) if available, with respect to any customer or subscriber of incoming or outgoing
communications to or from the service covered by the order—
(I) the name of such customer or subscriber;
(II) the address of such customer or subscriber;
(III) the telephone or instrument number, or other subscriber number or identifier, of the
customer or subscriber, including any temporarily assigned network address or associated
routing or transmission information;
(IV) the length of the provision of service by such provider to the customer or subscriber and
the types of services utilized by the customer or subscriber.
The Senate Select Committee on Intelligence observed with respect to an identically worded
section in S. 1266, “the FISA audit staff was informed that when a federal court issues an order
for criminal pen register or trap and trace device, the court has the authority under 18 U.S.C.
2703(d) to routinely require the service provider to supply subscriber information in its
possession for the numbers or e-mail addresses captured by the devices. The FISA pen
89
§ 128(a), P.L. 109-177, 120 Stat. 228 (2006), adding new 50 U.S.C. 1842(d)(2)(C).
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register/trap and trace provision has no comparable authority. Section 215 of this bill addresses
this discrepancy.”90.
The amendment would likely simplify the process, but critics might ask why it is necessary since
information already seems to be available through use of the national security letter authority
under 18 U.S.C. 2709 or the FISA business records “tangible item” authority when used in
conjunction with the FISA pen register/trap and trace authority.
Section 128(b) of the Act amends the FISA oversight reporting requirements so that Judiciary
Committees receive full reports on the use of the FISA’s pen register and trap and trace authority
every six months. 91
Additions to the Definition of Federal Crime of Terrorism
Crimes designated as federal crimes of terrorism under 18 U.S.C. 2332b(g)(5) trigger the
application of other federal laws, for example, 18 U.S.C. 1961(1)(g) (RICO predicates), 18
U.S.C. 3142 (bail), 18 U.S.C. 3286 (statute of limitations), and 18 U.S.C. 3583 (supervised
release). Section 112 of the Act adds two additional offenses to the definition of federal crimes of
terrorism: receiving military-type training from a foreign terrorist organization, 92 and drug
trafficking in support of terrorism (the “narco-terrorism” provisions of Section 1010A of the
Controlled Substances Import and Export Act). 93
Expanded List of Predicate Offenses For Wiretaps
Generally, federal law requires the government to obtain a court order authorizing the interception
of wire, oral or electronic communications in the investigation of certain crimes (“predicate
offenses”) specifically enumerated in 18 U.S.C. 2516(1). Section 113 of the Act expands the list
of predicate offenses in which law enforcement may seek wiretap orders to include crimes
relating to biological weapons, violence at international airports, nuclear and weapons of mass
destruction threats, explosive materials, receiving terrorist military training, terrorist attacks
against mass transit, arson within U.S. special maritime and territorial jurisdiction, torture,
firearm attacks in federal facilities, killing federal employees, killing certain foreign officials,
conspiracy to commit violence overseas, harboring terrorists, assault on a flight crew member
with a dangerous weapon, certain weapons offenses aboard an aircraft, aggravated identity theft,
“smurfing” (a money laundering technique whereby a large monetary transaction is separated into
smaller transactions to evade federal reporting requirements on large transactions), and criminal
violations of certain provisions of the Sherman Antitrust Act.
Attacks Against Railroad Carriers and Mass Transportation Systems
Section 110 of the Act merges 18 U.S.C. 1992 (outlawing train wrecking) and 18 U.S.C. 1993
(outlawing attacks on mass transportation system) into a new 18 U.S.C. 1992 intended to provide
uniform offense elements and penalties for attacks on all transportation systems on land, on water,
90
S.Rept. 109-85, at 8 (2005).
§ 128(b), P.L. 109-177, 120 Stat. 229 (2006), amending 50 U.S.C. 1846(a).
92
18 U.S.C. 2339D.
93
§ 122, P.L. 109-177, 120 Stat. 225 (2006) adds new 21 U.S.C. 960A concerning “narco-terrorism.”
91
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or through the air. In addition, the Act explicitly provides criminal punishment for the planning of
terrorist attacks and other acts of violence against railroads and mass transportation systems;94
previous law had only criminalized committing such attacks or attempting, threatening, or
conspiring to do so.
Punishment under this new criminal statute is imprisonment for not more than 20 years, but if the
offense results in the death of any person, then imprisonment of any years or for life or the death
penalty, although the death penalty is not available for inchoate forms of the offense (planning,
conveying false information, attempting, threatening, or conspiring). Furthermore, the new 18
U.S.C. 1992 enhances the penalties for committing these criminal acts in circumstances that
constitute an aggravated offense, by authorizing imprisonment for any term of years or life, or
where death results, the death penalty. Finally, the new 18 U.S.C. 1992 defines covered
conveyances and their systems to include passenger vessels.95
Asset Forfeiture
Federal law permits U.S. confiscation of property derived from certain drug offenses committed
in violation of foreign law, 96 and also permits U.S. confiscation of all assets, foreign or domestic,
associated with certain terrorist offenses. 97 Section 111 of the Act amends the general civil
forfeiture statute to authorize seizure of property within U.S. jurisdiction constituting, derived
from, or traceable to, any proceeds obtained in (or any property used to facilitate) an offense that
involves trafficking in nuclear, chemical, biological, or radiological weapons technology or
material, if such offense is punishable under foreign law by death or imprisonment for a term
exceeding one year or would be so punishable if committed within U.S. jurisdiction. 98
In addition, the Act changes the reference for the definition of terrorism as used in the asset
forfeiture provision under section 806 of the USA PATRIOT Act. Prior to the Act, 18 U.S.C.
981(a)(1)(G) called for the confiscation of property of those planning or engaged in acts of
domestic or international terrorism (as defined in 18 U.S.C. 2331) against the United States or its
citizens. Domestic terrorism is defined in 18 U.S.C. 2331 (section 802 of the USA PATRIOT
Act), and includes acts dangerous to human life in violation of state or federal law committed to
influence the policy of a government or civilian population by intimidation or coercion, 18 U.S.C.
2331(5). Critics might suggest that the juxtaposition of the definition and the confiscation
provisions of section 981(a)(1)(G) could result in the confiscation of the property of political
action organizations whose members became involved in a picket sign swinging melee with
counter-demonstrators.99 In contrast, 18 U.S.C. 2332b(g)(5)(B) seems less susceptible to such
94
§ 110(a), P.L. 109-177, 120 Stat. 206 (2006), adding new 18 U.S.C. 1992(a)(8) (making it a crime to surveil,
photograph, videotape, diagram, or otherwise collect information with the intent to plan or assist in planning, an attack
against mass transportation systems).
95
§ 110(a), P.L. 109-177, 120 Stat. 207, 208 (2006), adding new 18 U.S.C. 1992(d)(7).
96
18 U.S.C. 981(a)(1)(B).
97
18 U.S.C. 981(a)(1)(G).
98
§111, P.L. 109-177, 120 Stat. 209 (2006), amending 18 U.S.C. 981(a)(1)(B)(I).
99
151 CONG. REC. H6262 (daily ed. July 21, 2005)(statement of Rep. Delahunt) (“This is about domestic terrorism and
the definition of domestic terrorism. And while it does not create a new crime under the PATRIOT Act, the definition
triggers an array of expanded governmental authorities, including enhanced civil asset seizure powers. It is so broadly
defined that it could include acts of civil disobedience because they may involve acts that endanger human life...”); 151
CONG. REC. H6262-263 (daily ed. July 21, 2005) (statement of Rep. Sensenbrenner)(“There are various definitions of
terrorism under Federal law. In title XVIII there has been a confusion over a new definition created in the USA
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challenges since it defines terrorism by reference to violations of specific federal terrorist offenses
rather than the generic, violation of state or federal law found in section 2331.
Thus, section 120 of the Act replaces terrorism defined in 18 U.S.C. 2331 with terrorism defined
in 18 U.S.C. 2332b(g)(5)(B) as the ground for confiscation under section 981(a)(1)(G). It does so
by amending 18 U.S.C. 981(a)(1)(G) so that it calls for the confiscation of property of those
planning or engaged acts of domestic or international terrorism (as defined in 18 U.S.C.
2332b(g)(5)(B)) against the United States or its citizens.
Victims Access Forfeiture Fund
Section 981 of title 18 of the United States Code describes various forms of property that are
subject to confiscation by the United States because of their proximity to various federal crimes.
The proceeds from the confiscation of crime-related property are generally available for law
enforcement purposes to the law enforcement agencies that participate in the investigation and
prosecution that results in the forfeiture, e.g., 18 U.S.C. 981(e). The funds realized from the
collection of criminal fines are generally available for victim compensation and victim assistance
purposes, 42 U.S.C. 10601. Victims of violent federal crimes are entitled to restitution, 18 U.S.C.
3663A, and victims of other federal crimes are eligible for restitution, 18 U.S.C. 3663.
Section 127 of the Act expresses the sense of Congress that under section 981 victims of terrorist
attacks should have access to the assets of terrorists that have been forfeited.
Miscellanea
This section of the report discusses miscellaneous provisions of Title I of the Act which are not
easily classifiable within the subheadings above.
FISA Court Rules and Procedures
Section 109(d) of the Act requires the FISA court to publish its rules and procedures and transmit
them in unclassified form to all judges on the FISA court, the FISA Court of Review, the Chief
Justice of the United States, and the House and Senate Judiciary and Intelligence Committees.
The U.S. Citizenship and Immigration Services
The Act directs the Secretary of Homeland Security to report to the House and Senate Judiciary
Committees semi-annually regarding the internal affairs operations and investigations of the U.S.
Citizenship and Immigration Services. The first such written report is to be submitted no later
than April 1, 2006.100
(...continued)
PATRIOT Act for domestic terrorism. That provision is supposed to be used for administrative procedures such as
nationwide searches, but another part of the PATRIOT Act, section 806, uses the reference for asset forfeiture, which is
more of a penalty. This has raised concerns about those who exercise their first amendment rights. As a result, groups
from both sides of the political spectrum have wanted to change the definition for domestic terrorism. This amendment
fixes the problem...”).
100
§ 109(c), P.L. 109-177, 120 Stat. 205 (2006).
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Cigarette Smuggling
Federal law proscribes trafficking in contraband cigarettes.101 Violations are punishable by
imprisonment for up to five years,102 and constitute racketeering predicate offenses. 103 During
debate on the House floor, several Members pointed to the fact that in at least one instance
terrorists had resorted to cigarette smuggling as a financing mechanism. 104
Section 121 amends federal law by lowering the threshold definition of contraband cigarettes,
from “a quantity in excess of 60,000 cigarettes” to 10,000 cigarettes, and adds a new provision
for contraband smokeless tobacco, defined as a quantity in excess of 500 cans or packages of
smokeless tobacco. Additionally, the Act creates a federal cause action against violators (other
than Indian tribes or Indians in Indian country) for manufacturers, exporters, and state and local
authorities. 105
Narco-Terrorism
The federal Controlled Substances Act prohibits drug trafficking with severe penalties calibrated
according to the kind and volume of drugs and the circumstances involved106 (e.g., trafficking in
50 grams or more of crack cocaine is punishable by imprisonment for not less than 10 years and
for not more than life; distributing a small amount of marijuana for no remuneration is punishable
by imprisonment for not more than one year).107 Drug offenses that involved additional egregious
circumstances are often subject to multiples of the sanctions for the underlying offense.108
Providing material support for the commission of a terrorist crime or to a designated foreign
terrorist organization is likewise a federal crime, punishable by imprisonment for not more than
15 years.109
Section 122 of the Act outlaws drug trafficking—for the benefit of a foreign terrorist organization
as defined in the immigration laws, 8 U.S.C. 1182(a)(3)(B), or of a person who has or is engaged
in terrorism as defined in 22 U.S.C. 2656f(d)(2) (politically motivated violence against civilian
targets)—under a wide range of jurisdictional circumstances.110 The offense can only be
101
102
18 U.S.C. 2341-2346
18 U.S.C. 2344.
103
18 U.S.C. 1961(1). Federal racketeer influenced and corrupt organization laws (RICO) proscribe the acquisition or
operation of an enterprise, whose activities affected interstate or foreign commerce, through the patterned commission
of other specifically designated crimes (predicate offenses); offenders face imprisonment for up to 20 years and
confiscation of offense related property, 18 U.S.C. 1961-1963.
104
151 CONG. REC. H6284 (daily ed. July 21, 2005) (statements of Reps. Coble, Sensenbrenner, Cantor, and Kildee).
105
§ 121(f), P.L. 109-177, 120 Stat. 223, 224 (2006), adding new 18 U.S.C. 2346(b).
106
21 U.S.C. 841-971.
107
21 U.S.C. 841, 844.
108
See, e.g., 21 U.S.C. 859 (sale of drugs to a child: twice the normal penalty); 861 (use a child in drug trafficking:
twice the normal penalty); 861(f) (sale of drugs to a pregnant woman: twice the normal penalty).
109
18 U.S.C. 2339A, 2339B.
110
§ 122, P.L. 109-177, 120 Stat. 225 (2006), adding new 21 U.S.C. 960A(b) (“There is jurisdiction over an offense
under this section if—(1) the prohibited drug activity or the terrorist offense is in violation of the criminal laws of the
United States; (2) the offense, the prohibited drug activity, or the terrorist offense occurs in or affects interstate for
foreign commerce; (3) an offender provides anything of pecuniary value for a terrorist offense that causes or is
designed to cause death or serious bodily injury to a national of the United States while that national is outside the
United States, or substantial damage to the property of a legal entity organized under the laws of the United States
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committed with the knowledge of the terrorist misconduct of its beneficiaries. Violators face
imprisonment for not less than twice the minimum penalty for drug trafficking under 21 U.S.C.
841(b)(1) nor more than life, and period of supervised release of not less than five years.111 The
Act also expressly prohibits attempts and conspiracies to violate the new section. It may be that
21 U.S.C. 963 would have produced the same result in the absence of an express provision, since
it punishes attempts and conspiracies to commit any offense defined in the Controlled Substances
Act. It may also be that in conjunction, section 963 and the new section outlaw conspiracies to
attempt a substantive violation of the new section.
Interference With the Operation of an Aircraft
It is a federal crime to destroy an aircraft or its facilities under various circumstances giving rise
to federal jurisdiction or to attempt, or conspire to do so, 18 U.S.C. 32. Violations are punishable
by imprisonment for not more than 20 years. It is likewise a federal crime to interfere with a
member of a flight crew in the performance of their duties; this too is punishable by
imprisonment for not more than 20 years (or imprisonment for any term of years or for life in the
case of assault with a dangerous weapon), 49 U.S.C. 46504.
Section 123 of the Act amends 18 U.S.C. 32 to make it a federal crime to interfere or disable the
operator of an aircraft or aircraft facility with reckless disregard for human safety or with the
intent to endanger, subject to the same sanctions that apply to other violations of the section. By
operation of section 32, the new prohibition extends to attempts and conspiracies to engage in
such conduct, 18 U.S.C. 32(a)(7)(redesignated 18 U.S.C. 32(a)(8)).
Investigation of Political Activities
FISA bars the use of various information collection techniques in the course of a foreign
intelligence investigation, if the investigation is based solely on the exercise of First Amendment
protected rights, 50 U.S.C. 1805(a)(3)(A), 1824(a)(1)(A), 1942(a)(1).
Section 124 of the Act expresses the sense of Congress that the federal government should not
conduct criminal investigations of Americans based solely on their membership in non-violent
political organizations or their participation in other lawful political activity.
(...continued)
(including any of its States, districts, commonwealths, territories, or possessions) while that property outside of the
United States; (4) the offense or the prohibited drug activity occurs in whole or in part outside of the United States
including on the high seas), and a perpetrator of the offense or the prohibited drug activity is a national of the United
States or a legal entity organized under the laws of the United States (including any of its States, districts,
commonwealths, territories, or possessions); or (5) after the conduct required for the offense occurs an offender is
brought into or found in the United States, even if the conduct required for the offense occurs outside the United
States.”) In cases where neither the support, the drug offense, nor the terrorism have any connection to the U.S. other
than the later presences of the offender here, paragraph 960A(b)(5) may exceed Congress’s legislative reach unless the
benefit of a treaty obligation can be claimed.
111
§ 122, P.L. 109-177, 120 Stat. 225 (2006), adding new 21 U.S.C. 960A.
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Immunity for Fire Equipment Donors
Section 125 grants immunity from civil liability to the donors (other than manufacturers) of fire
equipment to volunteer fire organizations.
Federal Data Mining Report
Section 126 directs the Attorney General to submit a report to Congress within a year after the
date of the Act’s enactment, concerning the Department of Justice’s use or development of
“pattern-based” data mining technologies. While the Act provides a definition of “datamining,”112 it does not define “pattern-based.”113
Title II: Terrorist Death Penalty Enhancement Act of 2005
Title II of the Act makes several adjustments in federal death penalty law, which concern air
piracy cases arising before 1994, a redundant procedural mechanism in federal capital drug cases,
supervised release for terrorism offenses, and a transfer of the law governing the appointment of
counsel in capital cases.
Pre-1994 Capital Air Piracy Cases
In the late 1960s and early 1970s, the U.S. Supreme Court held unconstitutional the imposition of
capital punishment under the procedures then employed by the federal government and most of
the states.114 In 1974, Congress established a revised procedure for imposition of the death
penalty in certain air piracy cases.115 In 1994, when Congress made the procedural adjustments
necessary to revive the death penalty as a sentencing option for other federal capital offenses, it
replaced the air piracy procedures with those of the new regime. 116 At least one court, however,
112
§ 126, P.L. 109-177, 120 Stat. 228 (2006).
113
The want of definition may be significant because the terms are not hermetically sealed legal concepts, see, e.g.,
Safeguarding Privacy in the Fight Against Terrorism, Report of the Technology and Privacy Advisory Committee, 45
(March 2004)(“data mining includes ‘pattern-based’ searches ... These [might] involve developing models of what
terrorist behavior might look like and then examining databases for similar patterns. This is similar to commercial data
mining techniques—businesses develop a pattern of attributes or behaviors that their good customers have in common,
and then search databases to find people meeting those patterns—but potentially far more powerful given the range of
data to which the government has access and the capacity of data mining to eliminate the need to aggregate data before
searching them. As we use the term, data mining may also include ‘subject-based’ searches, which look for information
about a specific individual or links to known terrorist suspects. This has long been a basic tool of criminal investigators
everywhere: start with known suspects and, with proper authorization (in many cases, a warrant or a subpoena), look
for information about them and the people with whom they interact. However, the power of data mining technology
and the range of data to which the government has access have contributed to blurring the line between subject- and
pattern-based searches. The broader the search criteria, and the more people other than actual terrorist who will be
identified by those criteria, the more pattern-like these searches become. Even when a subject-based search starts with a
known suspect, it can be transformed into a pattern-based search as investigators target individuals for investigation
solely because of their connection with the suspect. The more tenuous the connection, the more like a pattern-based
search it becomes. Searches that lack specific focus on identified suspects do pose greater risk for U.S. persons and
should be subject to greater scrutiny and accountability”).
114
Furman v. Georgia, 408 U.S. 238 (1972).
115
P.L. 93-366, 88 Stat. 409 (1974), 49 U.S.C. 1473 (1976 ed.)
116
P.L. 103-322, 108 Stat. 1796, 1970 (1994), 18 U.S.C. 3591-3598.
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held that the new procedures could not be applied retroactively to air piracy cases occurring after
the 1974 fix but before the 1994 legislation, in the absence of an explicit statutory provision. 117
Section 211 of the Act adds an explicit provision to the end of the 1994 legislation.118 The
amendment provides for the application of the existing federal capital punishment procedures, 18
U.S.C. ch.228, in addition to consideration of the mitigating and aggravating factors in place prior
to the 1994 revival.119 Section 211 also provides for severance should any of the 1994 factors be
found constitutionally invalid, and includes a definition of “especially heinous, cruel, or
depraved” used as an aggravating factor in section 46503, to avoid the vagueness problems that
might otherwise attend the use of such an aggravating factor.120
The conference report accompanying H.R. 3199 notes that the changes apply to a relative small
group of individuals responsible for murders committed during the course of hijackings in the
mid 1980’s who would otherwise be eligible for parole within 10 years of sentencing and could
not be effectively sentenced to more than 30 years in prison. 121
Life Time Supervised Release Regardless of Risks
Prior to the Act, a federal court could have imposed a sentence of supervised release, to be served
upon release from prison, of any term of years or life if the defendant has been convicted of a
federal crime of terrorism (18 U.S.C. 2332b(g)(5)(B)) involving the foreseeable risk of physical
injury of another, 18 U.S.C. 3583(j).122 Section 212 of the Act amends section 3583(j) to
117
United States v. Safarini, 257 F.Supp.2d 191, 202-3 (D.D.C. 2003).
§ 211(a), P.L. 109-177, 120 Stat. 230 (2006), adding subsection 60003(c) to P.L. 103-322, 108 Stat.1970 (1994).
119
P.L. 103-272, 108 Stat. 1242 (1994). Because the 1994 legislation was enacted almost immediately after
recodification of title 49, 49 U.S.C. 46503 never appeared in the official United States Code or any of its supplements.
The predecessor to 49 U.S.C. 46503 as repealed in the 1994 capital punishment revival statute appears in 49 U.S.C.
App. 1473 (1988 ed.).
120
See, e.g., Maynard v. Cartwright, 486 U.S. 356, 359-61 (1988).
121
H.Rept. 109-333, at 101 (2005) ( “This provision is particularly important for several reasons. In the absence of a
death penalty that could be implemented for pre-FDPA hijacking offenses resulting in death that also occurred before
the effective date of the Sentencing Guidelines on November 1, 1987, the maximum penalty available would be life
imprisonment. Under the pre-Sentencing Guidelines structure, even prisoners sentenced to life imprisonment were
eligible for a parole hearing after serving only ten years. While there is a split in the Circuit Courts of Appeals as to
whether a sentencing judge can impose a sentence that could avert the 10-year parole hearing requirement, the current
position of the Bureau of Prisons is that a prisoner is eligible for a parole hearing after serving ten years of a life
sentence. Even if parole is denied on that first occasion, such prisoners are eligible to have regularly scheduled parole
hearings every two years thereafter. Moreover, in addition to parole eligibility after ten years, the old sentencing and
parole laws incorporated a presumption that even persons sentenced to life imprisonment would be released after no
more than 30 years. In the context of the individuals responsible for the hijacking incidents described above, most of
the perpetrators were no older than in their twenties when they committed their crimes. The imposition of a preGuidelines sentence of life imprisonment for these defendants means that many, if not all of them, could be expect to
be released from prison well within their lifetime. Given the gravity of these offenses, coupled with the longstanding
Congressional intent to have a death penalty available for the offense of air piracy resulting in death, such a result
would be at odds with the clear directive of Congress.”)
122
The federal crimes of terrorism are violations of: 18 U.S.C. 32 (destruction of aircraft or aircraft facilities), 37
(violence at international airports), 81 (arson within special maritime and territorial jurisdiction), 175 or 175b
(biological weapons), 175c (variola virus), 229 (chemical weapons), subsection (a), (b), (c), or (d) of section 351
(congressional, cabinet, and Supreme Court assassination and kidnaping), 831 (nuclear materials), 842(m) or (n)
(plastic explosives), 844(f)(2) or (3) (arson and bombing of Government property risking or causing death), 844(I)
(arson and bombing of property used in interstate commerce), 930(c) (killing or attempted killing during an attack on a
Federal facility with a dangerous weapon), 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad),
(continued...)
118
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eliminate the requirement that the defendant be convicted of a crime involving a foreseeable risk
of injury; conviction of any federal crime of terrorism is sufficient.
Capital Procedures in Drug Cases
Prior to the Act, federal law provided two sets of death penalty procedures for capital drug cases,
the procedures applicable in federal capital cases generally, 18 U.S.C. 3591-3598, and the
procedures specifically applicable in federal capital drug cases, 21 U.S.C. 848. The two
procedures are virtually identical according to United States v. Matthews, 246 F.Supp.2d 137, 141
(N.D.N.Y. 2002). Section 221 of the Act eliminates the specific drug case procedures so that only
the general procedures apply in such cases. According to the conference report accompanying
H.R. 3199, this “eliminates duplicative death procedures under title 21 of the United States code,
and consolidates procedures governing all Federal death penalty prosecutions in existing title 18
of the United States Code, thereby eliminating confusing requirements that trial courts provide
two separate sets of jury instructions.”123
Appointment of Counsel in Capital Cases
Prior to the Act, the federal capital drug provisions housed provisions for the appointment of
counsel to assist indigents facing federal capital charges and indigent federal and state death row
inmates during federal habeas proceedings, 21 U.S.C. 848(q)(4)-(10). Section 222 of the Act
transfers these provisions to title 18.124
(...continued)
1030(a)(1) (protection of computers), 1030(a)(5)(A)(I) resulting in damage as defined in 1030(a)(5)(B) (ii) through (v)
(protection of computers), 1114 (killing or attempted killing of officers and employees of the United States), 1116
(murder or manslaughter of foreign officials, official guests, or internationally protected persons), 1203 (hostage
taking), 1361 (government property or contracts), 1362 (destruction of communication lines, stations, or systems),
1366(a) (destruction of an energy facility), 1751(a), (b), (c), or (d) (Presidential and Presidential staff assassination and
kidnaping), 1992 (train wrecking), 1993 (terrorist attacks and other acts of violence against mass transportation
systems), 2155 (destruction of national defense materials, premises, or utilities), 2156 (national defense material,
premises, or utilities), 2280 (violence against maritime navigation), 2281 (violence against linemaritime fixed
platforms), 2332 (certain homicides and other violence against United States nationals occurring outside of the United
States), 2332a (use of weapons of mass destruction), 2332b (acts of terrorism transcending national boundaries), 2332f
(bombing of public places and facilities), 2332g (missile systems designed to destroy aircraft), 2332h (radiological
dispersal devices), 2339 (harboring terrorists), 2339A (providing material support to terrorists), 2339B (providing
material support to terrorist organizations), 2339C (financing of terrorism), 2340A (torture); 42 U.S.C. 2122
(prohibitions governing atomic weapons), 2284 (sabotage of nuclear facilities or fuel); 49 U.S.C. 46502 (aircraft
piracy), the second sentence of 46504 (assault on a flight crew with a dangerous weapon), 46505(b)(3) or (c) (explosive
or incendiary devices, or endangerment of human life by means of weapons, on aircraft), 46506 if homicide or
attempted homicide is involved (application of certain criminal laws to acts on aircraft), and 60123 (b) (destruction of
interstate gas or hazardous liquid pipeline facility). Section 112 of the Act adds 18 U.S.C. 2339D(foreign military
training) and 21 U.S.C. 1010A (narco-terrorism) to the list, 18 U.S.C. 2332b(g)(5)(B) as amended by the Act.
123
H.Rept. 109-333, at 102 (2005).
124
§ 222, P.L. 109-177, 120 Stat. 231 (2006), adding new 18 U.S.C. 3599.
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Title III: Reducing Crime and Terrorism at America’s Seaports Act
of 2005
Title III of the Act, among other things, creates more severe criminal penalties concerning
criminal and terrorist activities committed at U.S. seaports or aboard vessels.
Seaport Entry by False Pretenses
The Maritime Transportation Security Act requires the submission to the Department of
Homeland Security of vessel and facility security plans that include provisions for establishing
and controlling secure areas, 46 U.S.C. 70103(c). It also calls for issuance of transportation
security cards in order to regulate access to secure areas, 46 U.S.C. 70105. It contains no specific
provisions regarding trespassing upon security areas, but the Coast Guard and Maritime
Transportation Act amended its provisions in a manner that suggests the application of state
criminal laws as well as criminal sanctions found in the Deepwater Port Act, 33 U.S.C. 1514
(imprisonment for not more than one year); the Ports and Waterways Safety Act, 33 U.S.C. 1232
(imprisonment for not more than 10 years); and the act of June 15, 1917, 50 U.S.C. 192
(imprisonment for not more than 10 years).125
As a general matter, it is a federal crime to use fraud or false pretenses to enter federal property, a
vessel or aircraft of the United States, or the secured area in an airport, 18 U.S.C. 1036. The
offense is punishable by imprisonment for not more than five years if committed with the intent
to commit a felony and imprisonment for not more six months in other cases. The same
maximum penalty applies to making a false statement to federal officials or in any matter within
the jurisdiction of a federal agency or department, 18 U.S.C. 1001. Possession of phony
government identification to defraud the U.S. is a one-year felony, absent further aggravating
circumstances under which the sanctions are increased, 18 U.S.C. 1028 (a)(4), (b)(6). Moreover,
except to the extent covered by 18 U.S.C. 1036 or 18 U.S.C. 1863 (trespassing in the national
forests), unlawful entry to property (federal or otherwise) with the intent to commit a second
crime is punishable under the laws of the state in which it occurs, cf., 18 U.S.C. 13.
Section 302 of the Act expands 18 U.S.C. 1036 to cover seaports and increases the penalty for
violations with respect to any of the protected areas committed with the intent to commit a felony,
from imprisonment for not more than five years to imprisonment for not more than 10 years,
amended 18 U.S.C. 1036.126 The section also provides a definition of “seaport.”127
125
46 U.S.C. 70119 expressly authorizes state and local law enforcement officers to make arrests for violations of these
Acts, and notes that the authority is in addition and should not be construed to limit any other authority they may
possess.
126
“(a) Whoever, by any fraud or false pretense, enters or attempts to enter—(1) any real property belonging in whole
or in part to, or leased by, the United States; (2) any vessel or aircraft belonging in whole or in part to, or leased by, the
United States; (3) any secured or restricted area of any seaport, designated as secure in an approved security plan, as
required under section 70103 of title 46, United States Code, and the rules and regulations promulgated under that
section; or (4) any secure area of any airport, shall be punished as provided in subsection (b) of this section.
“(b) The punishment for an offense under subsection (a) of this section is—(1) a fine under this title or imprisonment
for not more than [5 years] 10 years, or both, if the offense is committed with the intent to commit a felony; or (2) a
fine under this title or imprisonment for not more than 6 months, or both, in any other case,” 18 U.S.C. 1036(a),(b) as
amended by the Act (changes are in italics - deletions in bold).
127
“As used in this title, the term ‘seaport’ means all piers, wharves, docks, and similar structures, adjacent to any
(continued...)
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The conference report accompanying H.R. 3199 quotes the Interagency Commission report and
describes the problems the amendments are designed to address:
According to the Report of the Interagency Commission ... ‘[c]ontrol of access to the seaport
or sensitive areas within the seaport is often lacking.’ Such unauthorized access is especially
problematic, because inappropriate controls may result in the theft of cargo and more
dangerously, undetected admission of terrorists. In addition to establishing appropriate
physical, procedural, and personnel security for seaports, it is important that U.S. criminal
law adequately reflect the seriousness of the offense.128
However, critics might point out that the section does not deal with all “unauthorized access,”
only access accomplished by fraud. And, they argue, even if the seriousness of such unauthorized
access to seaport restricted areas with criminal intent might warrant imprisonment for up to 10
years, there is nothing in conference or Commission reports to explain the necessity for the
comparable penalty increase for the other forms of trespassing upon the other areas covered under
section 1036.
Obstructing Maritime Inspections
Various federal laws prohibit the failure to heave to or otherwise obstruct specific maritime
inspections under various circumstances. 129
Section 303 of the Act establishes a new, general federal crime that outlaws, in the case of vessel
subject to the jurisdiction of the United States, the failure to heave to, or to forcibly interfere with
the boarding of the vessel by federal law enforcement or resist arrest, or to provide boarding
federal law enforcement officers with false information concerning the vessel’s cargo, origin,
destination, registration, ownership, nationality or crew.130 The crime is punishable by
imprisonment for not more than five years.
Interference with Maritime Commerce
Federal law prohibits violence against maritime navigation, 18 U.S.C. 2280, burning or bombing
vessels, 18 U.S.C. 2275, burning or bombing property used in or whose use affects interstate or
foreign commerce, 18 U.S.C. 844(I), destruction of property within the special maritime and
(...continued)
waters subject to the jurisdiction of the United States, to which a vessel may be secured, including areas of land, water,
or land and water under and in immediate proximity to such structures, buildings on or contiguous to such structures,
and the equipment and materials on such structures or in such buildings,” new 18 U.S.C. 26 as added by the Act. The
term “seaport” does not appear to have been used in any other section of title 18; elsewhere in federal law the term
“port” is more commonly used, see, e.g., 6 U.S.C. 468 (Coast Guard’s homeland security mission), 18 U.S.C.
2199(stowaways), perhaps to make clear that ports such as those on Great Lakes are covered notwithstanding the fact
they may not ordinarily be thought of as “seaports.”
128
H.Rept. 109-333, at 103 (2005).
129
See, e.g., 16 U.S.C. 2435, 2438 (enforcement of the Antarctic Marine Living Resources Convention); 16 U.S.C.
5505, 5508 (high seas fishing compliance).
130
§ 303(a), P.L. 109-177, 120 Stat. 233, 234, adding new 18 U.S.C. 2237.
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territorial jurisdiction of the United States, 18 U.S.C. 1363. None of them are punishable by life
imprisonment unless death results from their commission.131
Section 304 of the Act creates two new federal crimes. The first makes it a federal crime
punishable by imprisonment for any term of years or for life (or the death penalty if death results)
to place a dangerous substance or device in the navigable waters of the United States with the
intent to damage a vessel or its cargo or to interfere with maritime commerce. 132
The second of section 304’s provisions makes it a federal crime punishable by imprisonment for
not more than 20 years to tamper with any navigational aid maintained by the Coast Guard or St.
Lawrence Seaway Development Corporation in manner likely to endanger navigation, new 18
U.S.C. 2282B as added by the Act. Opponents may find the sanctions a bit stiff, but in the words
of the conference report, “the Coast Guard maintains over 50,000 navigational aids on more than
25,000 miles of waterways. These aids ... are inviting targets for terrorists.”133 There may also be
some question why the new section is necessary given that section 306 of the Act provides,
“Whoever knowingly ... damages, destroys, or disables ... any aid to navigation ... shall be ...
imprisoned not more than 20 years,” new 18 U.S.C. 2291(a)(3) as added by the Act; see also, new
18 U.S.C. 2291(a)(4) as added by section 306 of the Act (“Whoever knowingly interferes by force
or violence with the operation of ... any aid to navigation ..., if such action is likely to endanger
the safety of any vessel in navigation”).
Transporting Dangerous Materials or Terrorists
Section 305 of the Act establishes two other federal terrorism-related transportation offenses, one
for transporting dangerous materials and the other for transporting terrorists.
Transporting Dangerous Materials
It is a federal crime to possess biological agents, chemical weapons, atomic weapons, and nuclear
material, each punishable by imprisonment for any term of years or for life.134 And although the
penalties vary, it is likewise a federal crime to commit any federal crime of terrorism.135 Morever,
it is a federal crime to provide material support, including transportation, for commission of
various terrorist crimes or for the benefit of a designated terrorist organization, 18 U.S.C. 2339A,
2339B, or to transport explosives in interstate or foreign commerce with the knowledge they are
intended to be used in injure an individual or damage property, 18 U.S.C. 844(d). Most of these
offenses condemn attempts and conspiracies to commit them, and accomplices and coconspirators
incur comparable liability in any event.136
131
For example, section 2280, which among other things, “prohibits destroy[ing] a ship or caus[ing] damage to a ship
or to its cargo which is likely to endanger the safe navigation of that ship” or attempting or conspiring to do so is
punishable by imprisonment for not more than 20 years or if death results by death or imprisonment for life or any term
of years, 18 U.S.C. 2280(a)(1)(C),(H).
132
§ 304, P.L. 109-177, 120 Stat. 235, adding new 18 U.S.C. 2282A
133
H.Rept. 109-333, at 103 (2005).
134
18 U.S.C. 175, 229, 831; 42 U.S.C. 2272.
135
Each crime designated in 18 U.S.C. 2332b(g)(5)(B) carries its own penalty.
136
18 U.S.C. 2; United States v. Pinkerton, 328 U.S. 640, 647-48 (1946).
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Section 305 of the Act establishes a new federal offense which prohibits transporting explosives,
biological agents, chemical weapons, radioactive or nuclear material knowing it is intended for
use to commit a federal crime of terrorism—aboard a vessel in the United States, in waters
subject to U.S. jurisdiction, on the high seas, or aboard a vessel of the United States.137 The crime
is punishable by imprisonment for any term of years or for life and may be punishable by death if
death results from commission of the offense.
Transporting Terrorists
While it is a crime to harbor a terrorist, 18 U.S.C. 2339, or to provide material support, including
transportation, for the commission of a terrorist offense or for the benefit of a foreign designated
terrorist organization, 18 U.S.C. 2339A, 2339B, such offenses are only punishable by
imprisonment for not more than 15 years. The same perceived defect may appear to some in the
penalties for aiding and abetting commission of the various federal crimes of terrorism and in the
penalties available for committing many of them. 138
Section 305 creates a new federal offense, 18 U.S.C. 2284, punishable by imprisonment for any
term of years or for life for transporting an individual knowing he intends to commit, or is fleeing
from the commission of, a federal crime of terrorism. Unlike the new 18 U.S.C. 2282A(c),
created in section 304, neither of the section 305 offenses have an explicit exception for official
activities. Of course, even though facially the new section 2284 forbids transporting terrorists for
purposes of extradition or prisoner transfer, it would never likely be read or applied to prevent or
punish such activity.
Interference With Maritime Navigation
Chapter 111 of title 18 of the United States Code relates to shipping and by and large outlaws
violence in various forms committed against vessels within U.S. jurisdiction. 139 Other sections of
the Code proscribe the use of fire, explosives or violence with sufficient breath of protect
shipping under some circumstances. For example, one section condemns the use fire or
explosives against property used in (or used in an activity affecting) interstate or foreign
commerce, 18 U.S.C. 844(I). Another prohibits destruction of property within the maritime
jurisdiction of the Untied States, 18 U.S.C. 1363, and a third, arson within the maritime
jurisdiction, 18 U.S.C. 81. Hoaxes relating to violations of chapter 111 are punishable by
imprisonment for not more than five years (not more than 20 years if serious injury results and if
death results, by imprisonment for any term of years or for life or by death), 18 U.S.C. 1038.
137
§305(a), P.L. 109-177, 120 Stat. 236 (2006), adding new 18 U.S.C. 2283.
For example, destruction of aircraft or violence at international airports in violation of 18 U.S.C. 32 and 73
respectively are punishable by imprisonment for not more than 20 years, unless a death results; and the same penalties
apply to computer fraud and abuse violations considered federal crimes of terrorism, 18 U.S.C. 1030(a)(5), (c)(4).
Aiding and abetting carries the same penalties as the underlying offense, 18 U.S.C. 2.
139
The offenses include 18 U.S.C. 2271 (conspiracy to destroy vessels), 2272 (destruction of vessel by owner); 2273
(destruction of vessel by nonowner); 2274 (destruction or misuse of vessel by person in charge); 2275 (firing or
tampering with vessel), 2276 (breaking and entering a vessel); 2277 (explosives or dangerous weapons aboard vessels);
2278 (explosives on vessels carrying steerage passengers); 2279 (boarding vessels before arrival); 2280 (violence
against maritime navigation); and 2281 (violence against maritime fixed platforms).
138
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Section 306 of the Act enacts a new chapter 111A supplementing chapter 111 as well as section
1038 and consists of four sections. Of the four sections, two are substantive, proscribing hoaxes
and the destruction of vessels or maritime facilities, new 18 U.S.C. 2291, 2292; and two
procedural, one providing the jurisdictional base for the substantive offenses, new 18 U.S.C.
2290, and the other barring prosecution of certain misdemeanor or labor violations, new 18
U.S.C. 2993.
According to the conference report accompanying H.R. 3199, “this section harmonizes the
somewhat outdated maritime provisions with the existing criminal sanctions for destruction or
interference with an aircraft or aircraft facilities in 18 U.S.C. 32, 34, and 35.”140 It is not
surprising, therefore, that the new destruction offense mirrors the substantive provisions for the
destruction of aircraft and their facilities, 18 U.S.C. 32,141 although it differs from the aircraft
prohibition in several respects. First, it has exceptions for lawful repair and salvage operations
and for the lawful transportation of hazardous waste, new 18 U.S.C. 2291(b). Second, in the
manner of 18 U.S.C. 1993 (attacks on mass transit), it increases the penalty for violations
involving attacks on conveyances carrying certain hazardous materials to life imprisonment, new
18 U.S.C. 2291(c). Third, it tightens the “death results” sentencing escalator so that a sentence of
death or imprisonment for life or any term of years is only warranted if the offender intended to
cause the resulting death, new 18 U.S.C. 2291(d).
In addition to these, the substantive prohibitions of the new section 2291 differ from the
otherwise comparable prohibitions of 18 U.S.C. 2280 (concerning violence against maritime
navigation) in two major respects. The proscriptions in section 2280 and those of section 32
generally require that the prohibited damage adversely impact on safe operation;142 new section
2291 is less likely to feature a comparable demand.
140
H.Rept. 109-333, at 104 (2005).
“Whoever knowingly—(1) sets fire to, damages, destroys, disables, or wrecks any vessel; (2) places or causes to be
placed a destructive device or substance, as defined in section 31(a)(3), or explosive, as defined in section 844(j) in,
upon, or near, or otherwise makes or causes to be made unworkable or unusable or hazardous to work or use, any
vessel, or any part or other materials used or intended to be used in connection with the operation of a vessel; (3) sets
fire to, damages, destroys, disables or places a destructive device or substance in, upon, or near, any maritime facility,
including any aid to navigation, lock, canal, or vessel traffic service facility or equipment; (4) interferes by force or
violence with the operation of any maritime facility, including any aid to navigation, lock, canal, or vessel traffic
service facility or equipment, if such action is likely to endanger the safety of any vessel in navigation; (5) sets fire to,
damages, destroys, or disables or places a destructive device or substance in, upon, or near, any appliance, structure,
property, machine, or apparatus, or any facility or other material used, or intended to be used, in connection with the
operation, maintenance, loading, unloading or storage of any vessel or any cargo carried or intended to be carried on
any vessel; (6) performs an act of violence against or incapacitates any individual on any vessel, if such act of violence
or incapacitation is likely to endanger the safety of the vessel or those on board; (7) performs an act of violence against
a person that causes or is likely to cause serious bodily injury, as defined in section 1365(h)(3), in, upon, or near, any
appliance, structure, property, machine, or apparatus, or any facility or other material used, or intended to be used, in
connection with the operation, maintenance, loading, unloading or storage of any vessel or any cargo carried or
intended to be carried on any vessel; (8) communicates information, knowing the information to be false and under
circumstances in which such information may reasonably be believed, thereby endangering the safety of any vessel in
navigation; or (9) attempts or conspires to do anything prohibited under paragraphs (1) through (8) of this subsection,
shall be fined under this title or imprisoned not more than 20 years, or both,” 18 U.S.C. 2291(a) as added by the Act.
Section 2291 carries a 20 year maximum sanction for violations. The other sections cited in the report refer to the death
penalty (18 U.S.C. 34) and hoax (18 U.S.C. 35) provisions relating to violations of 18 U.S.C. 32.
142
“A person who unlawfully and intentionally—(A) seizes or exercises control over a ship by force or threat thereof or
any other form of intimidation; (B) performs an act of violence against a person on board a ship if that act is likely to
endanger the safe navigation of that ship; (C) destroys a ship or causes damage to a ship or to its cargo which is likely
to endanger the safe navigation of that ship; (D) places or causes to be placed on a ship, by any means whatsoever, a
(continued...)
141
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On the other hand, because it is treaty-based, section 2280 enjoys a broader jurisdictional base
than new section 2290 is able to provide for new section 2291. By virtue of new section 2290, a
violation of new section 2291 is only a federal crime if it is committed within the United States,
or the offender or victim is a U.S. national, or the vessel is a U.S. vessel, or a U.S. national is
aboard the vessel involved. In the case of subsection 32(b) or section 2280, there need be no more
connection to the United States than that the offender is subsequently found or brought here, 18
U.S.C. 32(b), 2280(b)(1)(c). Like section 2280, however, new section 2291 is subject to
exceptions for misdemeanor offenses and labor disputes.143
New section 2292 creates a hoax offense in the image of 18 U.S.C. 35 which relates to hoaxes in
an aircraft context. It sets a basic civil penalty of not more than $5000 for hoaxes involving
violations of the new section 2291 or of chapter 111, the existing shipping chapter.144 If the
misconduct is committed “knowingly, intentionally, maliciously, or with reckless disregard for the
safety of human life,” it is punishable by imprisonment for not more than five years.145 The Act
also requires that in both instances, jurisdiction over the offense is governed by the jurisdiction of
the offense that is the subject to the hoax.146
In the case of hoaxes involving violations of chapter 111, the new section affords the government
an alternative ground for prosecution to that offered by 18 U.S.C. 1038.
Theft From Maritime Commerce
Section 307 of the Act expands or clarifies the application of various criminal provisions
particularly in the case of maritime commerce.
(...continued)
device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is
likely to endanger the safe navigation of that ship; (E) destroys or seriously damages maritime navigational facilities or
seriously interferes with their operation, if such act is likely to endanger the safe navigation of a ship; (F)
communicates information, knowing the information to be false and under circumstances in which such information
may reasonably be believed, thereby endangering the safe navigation of a ship; (G) injures or kills any person in
connection with the commission or the attempted commission of any of the offenses set forth in subparagraphs (A)
through (F); or (H) attempts or conspires to do any act prohibited under subparagraphs (A) through (G), shall be fined
under this title, imprisoned not more than 20 years, or both; and if the death of any person results from conduct
prohibited by this paragraph, shall be punished by death or imprisoned for any term of years or for life,”18 U.S.C.
2280(a)(1).
143
“It is a bar to prosecution under this chapter if—(1) if the conduct in question occurred within the United States in
relation to a labor dispute, and such conduct is prohibited as a felony under the law of the State in which it was
committed; or (2) such conduct is prohibited as a misdemeanor, and not a felony, under the law of the State in which it
was committed,” new 18 U.S.C. 2293(a) as added by § 306 of the Act, 120 Stat. 239 (2006).
144
“Whoever imparts or conveys or causes to be imparted or conveyed false information, knowing the information to
be false, concerning an attempt or alleged attempt being made or to be made , to do any act that would be a crime
prohibited by this chapter or by chapter 111 of this title, shall be subject to a civil penalty of not more than $5,000,
which shall be recoverable in a civil action brought in the name of the United States,” new 18 U.S.C. 2292(a) as added
by § 306 of the Act, 120 Stat. 239 (2006).
145
§ 306, P.L. 109-177, 120 Stat. 239 (2006), adding new 18 U.S.C. 2292(b).
146
§ 306, P.L. 109-177, 120 Stat. 239 (2006), adding new 18 U.S.C. 2292(c).
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Theft From Interstate Commerce
Federal law prohibits theft from shipments traveling in interstate or foreign commerce; violations
are punishable by imprisonment for not more than 10 years (not more than one year if the value
of the property stolen is $1000 or less), 18 U.S.C. 659.
Section 307 increases the penalty for theft of property valued at $1000 or less to imprisonment for
not more than three years, 18 U.S.C. 659 as amended by the Act. It also makes it clear that theft
from trailers, cargo containers, freight stations, and warehouses are covered, and that the theft of
goods awaiting transshipment is also covered, 18 U.S.C. 659 as amended by the Act.
Interstate or Foreign Transportation of Stolen Vessels
Interstate or foreign transportation of a stolen vehicle or aircraft is punishable by imprisonment
for not more than 10 years, 18 U.S.C. 2312; receipt of a stolen vehicle or aircraft that has been
transported in interstate or foreign commerce carries the same penalty, 18 U.S.C. 2313.
Section 307 expands the coverage of federal law to cover the interstate or foreign transportation
of a stolen vessel and receipt of a stolen vessel that has been transported in interstate or overseas,
18 U.S.C. 2311 as amended by the Act. The United States Sentencing Commission is to review
the sentencing guidelines application to violations of 18 U.S.C. 659 and 2311. The Attorney
General is to see that cargo theft information is included in the Uniform Crime Reports and to
report annually to Congress on law enforcement activities relating to theft from interstate or
foreign shipments in violations of 18 U.S.C. 659.
Stowaways
Stowing away on a vessel or an aircraft is a federal crime; offenders are subject to imprisonment
for not more than one year, 18 U.S.C. 2199. Section 308 of the Act increases the penalty for
stowing away from imprisonment for not more than one year to not more than five years (not
more than 20 years if the offense is committed with the intent to inflict serious injury upon
another or if serious injury to another results; or if death results, by imprisonment for any term of
years or for life), 18 U.S.C. 2199 as amended by the Act. The “death results” capital punishment
provision of the Act is only triggered if the offender intended to cause a death, 18 U.S.C. 2199(3)
as amended by the Act.
Port Security Bribery
Bribery of a federal official is punishable by imprisonment for not more than 15 years, 18 U.S.C.
201; many federal crimes of terrorism carry maximum penalties of imprisonment for not more
than 20 years or more.147 Those who aid and abet or conspire for the commission of such crimes
are subject to sanctions. 148
147
See, e.g., 18 U.S.C. 32 (destruction of aircraft, 20 years), 81 (arson, 25 years), 2332a (weapons of mass destruction,
life imprisonment).
148
18 U.S.C. 2; United States v. Pinkerton, 340 U.S. 640 (1946).
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Section 309 of the Act makes it a federal crime to bribe any individual (private or public) with
respect to various activities within any secure or restricted area or seaport—with the intent to
commit international or domestic terrorism (as defined in 18 U.S.C. 2331). Offenders face
imprisonment for not more than 15 years, new 18 U.S.C. 226 as added by the Act.
Smuggling Goods Into the United States
Section 310 increases the sentence of imprisonment for smuggling into the United States from not
more than five years to not more than 20 years, 18 U.S.C. 545 as amended by the Act.
Smuggling Goods From the United States
The penalty for smuggling goods into a foreign country by the owners, operators, or crew of a
U.S. vessel is imprisonment for not more than five years, 18 U.S.C. 546. Other penalties apply for
smuggling or unlawfully exporting specific goods or materials out of the U.S. or into other
countries.149
Section 311 of the Act creates a new federal crime which outlaws smuggling goods out of the
United States; offenders face imprisonment for not more than 10 years, new 18 U.S.C. 554 as
added by the Act. Once smuggling from the U.S. is made a federal offense, corresponding
changes in federal forfeiture and custom laws become a possibility.
Federal law proscribes laundering the proceeds of various federal crimes (predicate offenses), 18
U.S.C. 1956, 1957. Smuggling goods into the U.S. in violation of 18 U.S.C. 545 is a money
laundering predicate offense, 18 U.S.C. 1956(c)(7)(D). The proceeds involved in financial
transactions in violation of the money laundering statutes are generally subject to confiscation, 18
U.S.C. 981(a)(1)(A). Section 311 adds the new overseas smuggling crime, 18 U.S.C. 554, to the
money laundering predicate offense list, 18 U.S.C. 1956(c)(7)(D) as amended by the Act.
Federal law calls for the confiscation of goods smuggled into the United States and of the
conveyances used to smuggle them in, 19 U.S.C. 1595a. Section 311 calls for the confiscation of
goods smuggled out of the U.S. and of any property used to facilitate the smuggling, new 19
U.S.C. 1595a(d) as added by the Act.
It is a federal crime to remove property from the custody of the Customs Service. Section 311
increases the penalty for violation of this crime to imprisonment for not more than 10 years, 18
U.S.C. 549 as amended by the Act.
Title IV: Combating Terrorism Financing Act of 2005
Title IV of the Act strengthens penalties for money laundering, particularly related to financing
terrorism, and makes changes to forfeiture authority. There is also a provision that might be
construed to permit pre-trial asset freezes in certain civil forfeiture cases made part of the
property owner’s criminal trial.
149
See, e.g., 31 U.S.C. 5332 (bulk cash), 21 U.S.C. 953 (controlled substances), 18 U.S.C. 553 (stolen motor vehicles).
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International Emergency Economic Powers Act Penalties
The International Emergency Economic Powers Act (IEEPA), 50 U.S.C. 1701-1707, grants the
President the power to impose economic restrictions “to deal with unusual and extraordinary
[external] threats to the national security, foreign policy, or economy of the United States,” 50
U.S.C. 1701(a). The authority has been invoked among other instances to block Iranian assets,
Exec. Order No. 12170, 44 Fed.Reg. 65729 (Nov. 1979); to prohibit trade and certain other
transactions with Libya, Exec. Order No. 12543, 51 Fed.Reg. 875 (Jan. 7, 1986); to impose
economic sanctions on countries found to be contributing to the proliferation of weapons of mass
destruction, Exec. Order No. 12938, 59 Fed. Reg. 59099 (Nov. 14, 1994); to block the assets and
prohibit financial transactions with significant narcotics traffickers, 60 Fed.Reg. 54579 (Oct. 21,
1995); and to block the property and prohibit transactions with persons who commit, threaten to
commit, or support terrorism, Exec. Order No. 13224, 66 Fed.Reg. 49079 (Sept. 23, 2001).
The Act increases the imprisonment and civil penalty for violations of presidential orders or
related regulations issued under IEEPA, including but not limited to those that bar financial
dealings with designated terrorists and terrorist groups. Violations are now punishable by a civil
penalty of not more than $50,000 (previously $10,000) and by imprisonment for not more than 20
years (previously 10 years).150
Terrorist Money Laundering
RICO
The federal Racketeer Influenced and Corrupt Organizations (RICO) law imposes severe
penalties (up to 20 years imprisonment) for acquiring or operating an enterprise through the
commission of a pattern of other crimes (predicate offenses), 18 U.S.C. 1961-1965. One federal
money laundering statute prohibits, among other things, using the funds generated by the
commission of a predicate offense in a financial transaction designed to conceal the origin of the
funds or promote further predicate offenses, 18 U.S.C. 1956. A second statute condemns financial
transactions involving more than $10,000 derived from a predicate offense, 18 U.S.C. 1957.
Crimes designated RICO predicate offenses automatically qualify as money laundering predicate
offenses, 18 U.S.C. 1956(c)(7)(A), 1957(f)(3). Property associated with either a RICO or money
laundering violation is subject to confiscation, but RICO forfeiture requires conviction of the
property owner, 18 U.S.C. 1963, money laundering forfeiture does not, 18 U.S.C. 1956, 1957,
981.
It is a federal crime to operate a business that transmits money overseas either directly or
indirectly, without a license, or for a licensed business to either fail to comply with applicable
Treasury Department regulations or to transmit funds that it knows will be used for, or were
generated by, criminal activities, 18 U.S.C. 1960.
The Act adds 18 U.S.C. 1960 (illegal money transmissions) to the RICO predicate offense list and
consequently to the money laundering predicate offense list, 18 U.S.C. 1961(1) as amended by
the Act. The House-passed version of the Reauthorization Act also added 8 U.S.C. 1324a
150
§402, P.L. 109-177, 120 Stat. 243 (2006), amending 50 U.S.C. 1705.
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USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
(employing aliens) to the RICO list; however, this provision was not included in the conference
bill and consequently is not part of the Act as enacted.
Direct Money Laundering Predicates
Section 403(b) of the Act states, “Section 1956(c)(7)(D) of title 18, United States Code, is
amended by striking ‘or any felony violation of the Foreign Corrupt Practices Act’ and inserting
‘any felony violation of the Foreign Corrupt Practices Act.’” However, this grammatical change
relating to the Foreign Corrupt Practices Act (dropping the “or” before the reference) is
redundant. The Intelligence Reform and Terrorism Prevention Act already made this grammatical
fix, 118 Stat. 3774 (2004).
Investigative Jurisdiction
The Act makes conforming amendments to 18 U.S.C. 1956(e), 1957(e) concerning the money
laundering investigative jurisdiction of various components of the Department of Homeland
Security.151 Procedures for coordination, to avoid duplication of efforts, and because investigative
agencies share in the distribution of forfeited property to the extent of their participation in the
investigation that led to confiscation, may prove necessary in implementing these provisions, 18
U.S.C. 981(d), (e); 19 U.S.C. 1616a.
Forfeiture for Foreign Crimes
The property of individuals and entities that prepare for or commit acts of international terrorism
against the United States or against Americans is subject to federal confiscation, 18 U.S.C.
981(a)(1)(G). Criminal forfeiture is confiscation that occurs upon conviction for a crime for
which forfeiture is a consequence, e.g., 18 U.S.C. 1963 (RICO). Civil forfeiture is confiscation
accomplished through a civil proceeding conducted against the “offending” property based on its
relation to a crime for which forfeiture is a consequence, e.g., 18 U.S.C. 981. Criminal forfeiture
is punitive; civil forfeiture is remedial, Calderon-Toledo v. Pearson Yacht Leasing, 416 U.S. 663,
683-88 (1974). A convicted defendant may be required to surrender substitute assets if the
property subject to criminal forfeiture is located overseas or otherwise beyond the reach of the
court, 18 U.S.C. 853(p). Civil forfeiture ordinarily requires court jurisdiction over the property,
but when forfeitable property is held overseas in a financial institution that has a correspondent
account in this country the federal government may institute and maintain civil forfeiture
proceedings against the funds in the interbank account here, 18 U.S.C. 9871(k).
151
“Violations of this section may be investigated by such components of the Department of Justice as the Attorney
General may direct, and by such components of the Department of the Treasury as the Secretary of the Treasury may
direct, as appropriate and, with respect to offenses over which the Department of Homeland Security has jurisdiction,
by such components of the Department of Homeland Security as the Secretary of Homeland Security may direct, and,
with respect to offenses over which the United States Postal Service has jurisdiction, by the Postal Service. Such
authority of the Secretary of the Treasury, the Secretary of Homeland Security, and the Postal Service shall be
exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury, the Secretary
of Homeland Security, the Postal Service, and the Attorney General. Violations of this section involving offenses
described in paragraph (c)(7)(E) may be investigated by such components of the Department of Justice as the Attorney
General may direct, and the National Enforcement Investigations Center of the Environmental Protection Agency,”18
U.S.C. 1956(e) as amended by the Act (language added by the Act in italics); the Act amends 18 U.S.C. 1957(e) with
similar language.
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Article III, section 2 of the United States Constitution declares in part that, “no attainder of
treason shall work corruption of blood, or forfeiture of estate except during the life of the person
attainted,” U.S.Const. Art.III, §3, cl.2. Forfeiture of estate is the confiscation of property simply
because it is the property of the defendant, without any other connection to the crime for which
gives rise to the forfeiture. The constitutional provision applies only in cases of treason, but due
process would seem likely to carry the ban to forfeiture of estate incurred as a result of other
crimes, particularly lesser crimes.152 The assumption may be hypothetical because with a single
Civil War exception, until very recently federal law only called for the forfeiture of property that
had some nexus to the confiscation-triggering crime beyond mere ownership by the defendant.153
Subparagraph 981(a)(1)(G) calls for the confiscation the property of individuals and entities that
engage in acts of terrorism against the United States or Americans, 18 U.S.C. 981(a)(1)(G)(i), and
under separate clauses any property derived from or used to facilitate such misconduct, 18 U.S.C.
981(a)(1)(G)(ii),(iii). As yet, there no reported cases involving 18 U.S.C. 981(a)(1)(G)(i).
Section 404 of the Act authorizes the federal government to confiscate under civil forfeiture
procedures all property of any individual or entity planning or committing an act of international
terrorism against a foreign nation or international organization without any further required
connection of the property to the terrorist activity other than ownership. The section contemplates
forfeiture of property located both here and abroad, since it refers to “all assets, foreign or
domestic,” but with respect to property located outside of the United States, it requires an act in
furtherance of the terrorism to have “occurred within the jurisdiction of the United States.”154 It is
unclear whether the jurisdiction referred to is the subject matter jurisdiction or territorial
jurisdiction of the United States or either or both. The due process shadow of Article III, section
3, clause 2 may limit the reach of the proposal to property with some nexus other than ownership
to the terrorist act.
Money Laundering Through “Hawalas”
Money laundering in violation of 18 U.S.C. 1956 may take either of two forms (1) engaging in a
prohibited financial transaction involving the proceeds of a predicate offense, 18 U.S.C.
1956(a)(1), or (2) internationally transporting, transmitting, or transferring the proceeds of a
predicate offense, 18 U.S.C. 1956(a)(2). Section 405 of the Act extends the financial transaction
offense to include related, parallel transactions and transmissions. 155
152
United States v. Grande, 620 F.2d 1026,1038 (4th Cir. 1980)(“We would agree. . . that if §1963 revives forfeiture of
estate as that concept was expressed in the Constitution it is almost certainly invalid because of the irrationality of a
ruling that forfeiture of estate cannot be imposed for treason but can be imposed for a pattern of lesser crimes”).
153
Under the Confiscation Act all the property of Confederate army and naval officers was forfeited, 12 Stat. 589
(1862), but owing to the constitutional reservations of President Lincoln, the forfeiture statute was followed by another
declaring that confiscation would only apply during the life time of a member of the Confederate armed forces, 12 Stat.
627 (1862). The Supreme Court read the two together and as a matter statutory construction held that a life estate in the
property of the former Confederate naval officer at issue was all that was subject to confiscation, Bigelow v. Forest, 76
U.S. 339, 350 (1869).
154
§ 404(3), P.L. 109-177, 120 Stat. 244 (2006), adding new subsection 18 U.S.C. 981(a)(1)(G)(iv).
155
“For purposes of this paragraph, a financial transaction shall be considered to be one involving the proceeds of
specified unlawful activity if it is party of a set of parallel or dependent transactions, any one of which involves the
proceeds of specified unlawful activity, and all of which are part of a single plan or arrangement,” 18 U.S.C. 1956(a)(1)
as amended by § 405, P.L. 109-177, 120 Stat. 244 (2006).
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As the conference report accompanying H.R. 3199 explains, the amendment addresses a feature
of the often informal networks called “hawalas,” for transfer money overseas:
Alternative remittance systems are utilized by terrorists to move and launder large amounts
of money around the globe quickly and secretly. These remittance systems, also referred to
as “hawala” networks, are used throughout the world, including the Middle East, Europe,
North American and South Asia. These systems are desirable to criminals and non-criminals
alike because of the anonymity, low cost, efficiency, and access to underdeveloped regions.
The United States has taken steps to combat the “hawala” networks by requiring all money
transmitters, informal or form, to register as money service businesses.
Under current Federal law, a financial transaction constitutes a money laundering offense
only if the funds involved in the transaction represent the proceeds of some criminal offense.
. . There is some uncertainty, however, as to whether the “proceeds element” is satisfied with
regard to each transaction in a money laundering scheme that involves two or more
transactions conducted in parallel, only one of which directly makes use of the proceeds from
unlawful activity. For example, consider the following transaction: A sends drug proceeds to
B, who deposits the money in Bank Account 1. Simultaneously or subsequently, B takes an
equal amount of money from Bank Account 2 and sends it to A, or to a person designated by
A. The first transaction from A to B clearly satisfies the proceeds element of the money
laundering statute, but there is some question as to whether the second transaction—the one
that involves only funds withdrawn form Bank Account 2 does so as well. The question has
become increasingly important because such parallel transactions are the technique used to
launder money through the Black Market Peso Exchange and “hawala” network.156
Technical Amendments
Section 406 of the Act corrects a number of typographical and grammatical errors in existing law
including changing the reference in section 322 of the USA PATRIOT Act, 115 Stat. 315 (2001),
from 18 U.S.C. 2466(b) to 28 U.S.C. 2466(b); changing the phrase “foreign bank” to “foreign
financial institution” in 18 U.S.C. 981(k)(relating to forfeiture and interbank accounts); correcting
a reference to the Intelligence Reform and Terrorism Prevention Act in 31 U.S.C. 5318(n)(4)(A);
capitalizing a reference in the Intelligence Reform and Terrorism Prevention Act (amending 18
U.S.C. 2339C rather than 18 U.S.C. 2339c); and codifying the forfeiture procedure passed as
section 316 of the USA PATRIOT Act, 115 Stat. 309 (2001), new 18 U.S.C. 987.
Civil Forfeiture Pre-trial Freezes and Restraining Orders
Federal law permits pre-trial restraining orders to freeze property sought in criminal forfeiture
cases, 21 U.S.C. 853(e), and pre-trial restraining orders or the appointment of receivers or
conservators in civil forfeiture cases, 18 U.S.C. 983(j). In money launde
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