USA PATRIOT Improvement and Reauthorization Act of 2005 (H.R. 3199): A Brief Look

Order Code RS22348

February 3, 2006

CRS Report for Congress

Received through the CRS Web

USA PATRIOT Improvement and

Reauthorization Act of 2005 (H.R. 3199):

A Brief Look

Brian T. Yeh

Legislative Attorney

American Law Division

Charles Doyle

Senior Specialist

American Law Division

Summary

On December 9, 2005, House and Senate conferees reported out the USA

PATRIOT Improvement and Reauthorization Act (H.R. 3199). The House agreed to the

conference report on December 14, 2005, whereas the Senate has yet to take action on

it. On December 22, 2005, the House and Senate enacted a bill (S. 2167) that extended

the sunset of certain provisions of the USA PATRIOT Act and the lone wolf provision

of the Intelligence Reform and Terrorism Prevention Act of 2004, originally set to

expire on December 31, 2005, until February 3, 2006. On February 2, 2006, Congress

passed H.R. 4659, which further extended the sunset to March 10, 2006.

Among the conference report’s other provisions, it makes permanent 14 of the 16

USA PATRIOT Act sections scheduled to expire at the end of the year. It provides for

greater congressional and judicial oversight of section 215 Foreign Intelligence

Surveillance Act (FISA) business records orders and section 206 FISA roving wiretaps

and calls for both sections to sunset at the end of 2009. It expands law enforcement

wiretap authority to cover more than 20 federal crimes. It establishes judicial review

and enforcement procedures for national security letters. It revises federal criminal

provisions relating to seaport and maritime security. It reenforces federal money

laundering and forfeiture authority particularly in connection with terrorist offenses. It

intensifies federal regulation of foreign and domestic commerce in methamphetamine

precursors. It foregoes all but technical modifications in federal capital punishment

procedures.

Title I of the USA PATRIOT Improvement and Reauthorization Act, incorporates

several compromises between the House- and Senate-passed versions of H.R. 3199. The

final version includes the following:

Congressional Research Service ˜ The Library of Congress

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Foreign Intelligence Surveillance Act (FISA):

! Postpones expiration of Sections 206 and 215 of the PATRIOT Act

(roving FISA wiretaps and FISA access to business records) until

December 31, 2009: makes permanent the other temporary FISA

amendments.

! Postpones until December 31, 2009 expiration of the Intelligence Reform

Act authority to use FISA orders in “lone wolf” terrorist investigations.

! Provides that the FBI Director, Deputy Director, or the Executive

Assistant Director for National Security must approve orders for the

production of certain library, book store, firearm sale, medical, tax return,

and educational records, 50 U.S.C. 1861(a)(3).

! Requires that a Section 215 FISA order application describe reasonable

grounds for believing that the records sought are relevant to an ongoing

international terrorism investigation, and that such materials pertain to

foreign intelligence information not concerning a U.S. person, 50 U.S.C.

1861(b)(2).

! Establishes a judicial review process for recipients of FISA orders; judge

may modify or set aside a FISA order if it does not comply with the

statute; provides for appeal of FISA court decision to a Review Court and

the Supreme Court, 50 U.S.C. 1803, 50 U.S.C. 1861(f).

! Requires the Attorney General to adopt specific “minimization

procedures” governing the retention and dissemination by the FBI of the

tangible things obtained under a FISA order, 50 U.S.C. 1861(g).

! Extends the tenure of FISA surveillance and search orders to any agents

of a foreign power who are not U.S. persons (e.g., lone wolf terrorists),

50 U.S.C. 1805(e) and 50 U.S.C. 1824(d).

! Extends duration of orders (or extension of an order) authorizing

installation and use of FISA pen registers, trap, and trace devices from 90

days to one year, 50 U.S.C. 1842(e).

! Requires the Attorney General to report to both the Judiciary and

Intelligence Committees concerning FISA order disclosures, 50 U.S.C.

1862; electronic surveillance orders, 50 U.S.C. 1808(a)(1); and physical

searches, 50 U.S.C. 1826.

! Instructs the Inspector General to perform a comprehensive audit of the

effectiveness and use of the FBI’s FISA authority, for submission to the

Judiciary and Intelligence Committees for calendar years 2002-2006.

National Security Letters (NSL):

! Authorizes judicial enforcement of a NSL, 18 U.S.C. 3511; the court may

quash or modify a NSL request if compliance would be unreasonable,

oppressive, or otherwise unlawful.

! Permits a NSL recipient to petition a court to modify or quash a

nondisclosure requirement of the NSL, if the court finds there is no

reason to believe disclosure may endanger national security, or interfere

with an investigation or diplomatic relations, or endanger a life.

! Amends NSL statutes to prohibit disclosure when the investigative

agency determines that disclosure may endanger any individual or

national security, or interfere with diplomatic relations, or interfere with

a criminal or intelligence investigation; allows disclosure if necessary to

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comply with the NSL request or to an attorney to obtain legal advice

(without having to notify authorities of an intent to seek advice).

Punishes knowing violations of NSL nondisclosure provisions with

imprisonment of not more than five years if committed with intent to

obstruct an investigation or judicial proceeding, 18 U.S.C. 1510(e).

Requires that any reports to a congressional committee regarding NSL

shall also be provided to the Judiciary Committees.

Instructs an Inspector General’s audit of the effectiveness and use of

NSL, for submission to the Judiciary and Intelligence Committees for

calendar years 2003-2006.

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.

Other Terrorism-Related Matters:

! Authorizes confiscation of property within U.S. jurisdiction constituting

proceeds from, or used to facilitate, offenses that involve trafficking in

nuclear, chemical, biological, or radiological weapons technology or

material, 18 U.S.C. 981(a)(1)(B)(I).

! Expands the list of predicate offenses in which law enforcement may

intercept wire, oral, or electronic communications, 18 U.S.C. 2516(1),

including some 20 federal crimes that might be committed for terrorist

purposes such as those involving weapons of mass destruction, arson,

aggravated identity theft.

! Makes the material support of terrorism amendments in the Intelligence

Reform and Terrorism Prevention Act permanent, 18 U.S.C. 2339B.

! Outlaws “narco-terrorism,” drug trafficking in support of terrorism

(punishable by imprisonment for 20 years to life), 21 U.S.C. 960A.

! Adds narco-terrorism, 21 U.S.C. 960A and foreign military training, 18

U.S.C. 2339D to the definition of federal crimes of terrorism, 18 U.S.C.

2332b(g)(5)(B).

! Expresses the sense of Congress that victims of terrorist attacks should

have access to the assets forfeited.

Law Enforcement Amendments:

! Enhances procedural protections and oversight concerning “sneak and

peek” search warrants, 18 U.S.C. 3103a(b): permits notification delays

of no more than 30 days, with 90-day extensions as the facts justify;

removes undue trial delay as a ground for delayed notification of a sneak

and peek search warrant, 18 U.S.C. 3103a(b)(1); requires annual reports

on use of the authority.

! Merges 18 U.S.C. 1992 (train wrecking) and 1993 (attacks on mass

transit), in a new 18 U.S.C. 1992.

! Amends federal criminal law concerning destruction of aircraft, 18

U.S.C. 32, to include interfering with or disabling a pilot or air

navigation facility operator with intent to endanger or with reckless

disregard for human safety.

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Miscellanea:

! For the penal prohibition concerning trafficking in contraband cigarettes

or smokeless tobacco, lowers the threshold quantity to 10,000 cigarettes

or 500 cans or packages of smokeless tobacco, 18 U.S.C. 2341-2343;

creates a federal cause of action against violators of this offense (other

than an Indian tribe or an Indian in Indian country), 18 U.S.C. 2346.

! Creates immunity from civil liability for donors of fire equipment to a

volunteer fire company (other than a fire equipment manufacturer),

unless such conduct involves gross negligence or intentional misconduct.

! Instructs the Attorney General to report to Congress on the data-mining

activities conducted by various federal agencies and departments.

! Directs the Secretary of Homeland Security to report to the Judiciary

Committees semi-annually regarding the operations and investigations of

the U.S. Citizenship and Immigration Services.

! Pronounces the sense of Congress that federal criminal investigations

should not be based solely upon a citizen’s membership in a non-violent

political organization or for engaging in lawful political activity.

Title II speaks of terrorism and the death penalty, but does not mention several of

the changes found in H.R. 3199 as initially passed by the House. It does include a

clarifying amendment that provides an adjusted procedure for capital air piracy cases

occurring between 1974 and 1994. It authorizes a term of post-incarceration supervision

for any term of years or for life in the case of federal crimes of terrorism regardless of

whether the offense involved any risk of serious injury, 18 U.S.C. 3583(j). It also moves

the provisions for appointment of counsel for indigent capital defendants from title 21 (21

U.S.C. 848) to a new section in title 18, 18 U.S.C. 3599.

Title III deals with maritime crime and features many of the revisions found in S.

378, Reducing Crime and Terrorism at America’s Seaports as reported. It: (a) amends the

prohibition against entering airport secured areas to include seaport secure areas as well

and increases the maximum penalty for violations in both cases to imprisonment for 10

years, 18 U.S.C. 1036; (b) outlaws obstructing law enforcement maritime inspections

(penalty: not more than five years in prison), 18 U.S.C. 2237; (c) prohibits placing in U.S.

waters a dangerous device or substance likely to destroy or damage ships or interfere with

maritime commerce (penalty: death or imprisonment for life or any term of years), 18

U.S.C. 2282A; (d) condemns violence against certain aids to maritime navigation

(penalty: death or imprisonment for life or any term of years), 18 U.S.C. 2282B; (e)

prohibits maritime transportation of weapons of mass destruction for use in a federal

crime of terrorism (penalty: death or imprisonment for life or any term of years), 18

U.S.C. 2283; and (f) proscribes maritime transportation of terrorists (penalty:

imprisonment for life or any term of years), 18 U.S.C. 2284.

Title III also: (a) outlaws damaging a vessel or maritime facilities if the offense is

committed in waters subject to U.S. jurisdiction or against a U.S. vessel, the offender or

victim is a U.S. national, or a U.S. national is aboard the victimized vessel; prosecution

is barred in the case of certain labor disputes; offenders are punishable by imprisonment

for not more than 20 years (by death if death results; by imprisonment for any term of

years or for life if radioactive waste or spent nuclear fuel are involved; by imprisonment

for not more than five years for threatened violations or hoaxes), 18 U.S.C. 2290-2293;

(b) increases the maximum penalties for theft from interstate or foreign shipments (from

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one to three years for property worth less than $1,000 and from 10 to 15 years otherwise);

(c) adds vessels to the interstate transportation, receipt and sale of stolen conveyances

prohibitions, 18 U.S.C. 2311, 2312, 2313; (d) increases the maximum penalty for stowing

away (from one to five years, generally; from 1 to 20 years if planned infliction of serious

injury to another occurs; by imprisonment for any term of years or for life, if a planned

death results), 18 U.S.C. 2199; (e) prohibits bribery relating to port security; offenders are

subject to imprisonment for not more than 15 years, 18 U.S.C. 226; (f) increases the

maximum term of imprisonment for smuggling goods into the U.S. from five years to 20

years, 18 U.S.C. 545; and for removing goods from customs custody from two years to

10 years, 18 U.S.C. 549; and (g) proscribes smuggling goods out of the U.S.; offenders

are subject to imprisonment for not more than 10 years, 18 U.S.C. 554; the offense is a

money laundering predicate, 18 U.S.C. 1956(c)(7)(D); the goods are subject to

confiscation, 19 U.S.C. 1595a(d).

Title IV, the Combating Terrorism Financing Act, with slight modifications reflects

title IV of H.R. 3199 as passed by the House; it: (a) increases the maximum penalties for

violation of the International Emergency Economic Powers Act (IEEPA) from 10 to 20

years imprisonment and from a civil penalty of $10,000 to one of $50,000, 50 U.S.C.

1705; (b) adds 18 U.S.C. 1960 (illegal money transmissions) to the racketeering (RICO)

predicate offense list, 18 U.S.C. 1961(1), and 18 U.S.C. 2339C (financing terrorism) and

2339D (receipt of foreign military training) to the money laundering predicate offense list,

18 U.S.C. 1956(c)(7)(D); (c) authorizes the confiscation of property, located in the U.S.,

related to certain acts of international terrorism against a foreign government or

international organization, 18 U.S.C. 981(a)(1)(G); (d) expands federal money laundering

prohibitions to encompass related “dependent transactions,” 18 U.S.C. 1956(a)(1); (e)

clarifies the rights of property owners in international terrorism confiscation cases, 18

U.S.C. 987; (f) subjects conspiracies to damage commercial motor vehicles or energy

facilities, to the same penalties as apply to the completed offenses, 18 U.S.C. 33, 1366;

(g) makes the criminal drug forfeitures procedures generally applicable to the forfeitures

ordered following conviction, 28 U.S.C. 2461(c).

Title V houses miscellanea. Its provisions (a) include a retroactive exemption for

U.S. Attorneys and Assistant U.S. Attorneys on special assignment from otherwise

applicable residency requirements, 28 U.S.C. 545(a); (b) strike the provision under which

the court may fill a vacancy in the office of U.S. Attorney, 28 U.S.C. 546(d); (c) add the

Secretary of Homeland Security to line of presidential succession, 3 U.S.C. 19(d)(1); (d)

make the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives an advice

and consent position, 6 U.S.C. 531(a)(2); (e) identify various qualifications that every

U.S. Marshall should have, 28 U.S.C. 561(i); (f) create a National Security Division

within the Department of Justice headed by a statutory Assistant Attorney General for

National Security, 18 U.S.C. 509, 509A; and (g) amend the habeas corpus provisions

applicable to state death row inmates upon the Attorney General’s certification that a state

established sufficient assistance of counsel provisions, 28 U.S.C. 2261, 2265.

Title VI resembles in name and content S. 1967, the Secret Service Authorization

and Technical Modification Act. It provides for a rolling no trespass zone with regard to

anyone under Service protection with violations punishable by imprisonment for up to six

months (up to 10 years if the violation involves a serious injury or possession of a

dangerous weapon), 18 U.S.C. 1752. It expands prohibitions against fraud in connection

with U.S. identification documents to include documents issued by the sponsoring entity

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of a presidentially designated nationally significant event (maximum penalties range from

5 to 30 years in prison), 18 U.S.C. 1028. It transfers and revises the organic Act for the

United States Secret Service Uniformed Division, 18 U.S.C. 3056A (repealing 3 U.S.C.

ch.3), and confirms the Secret Service as a distinct entity within the Department of

Homeland Security, 18 U.S.C. 3056(g).

Title VII is reminiscent of H.R. 3889, the Methamphetamine Epidemic Elimination

Act, and provides for increased regulation of domestic and international commercial

transactions in methamphetamine precursor chemicals; enhanced criminal sanctions;

expanded meth lab clean up measures; and grant programs to address problems associated

with methamphetamine (meth) abuse. More specifically, it: (a) sets a daily 3.6 gram limit

for over the counter sales of ephedrine, pseudoephedrine and phenylpropanolamine (EPP)

products, 21 U.S.C. 830(d); (b) requires that the products be available only “behind the

counter” and that purchasers of products containing more than 60 mg of pseudoephedrine

present a photo Id and sign a log book, 21 U.S.C. 830(e); (c) limits mail orders of EPP

products to 7.5 grams a month, 21 U.S.C. 830(e)(2); (d) makes regulatory sanctions

applicable to violators, 21 U.S.C. 842; (e) permits the Attorney General to exempt certain

products from coverage, 21 U.S.C. 830(e)(3); to establish production and import quotas

for EPP, 21 U.S.C. 826, 952; (f) expands the notification and suspension of shipment

requirements for the importation and exportation of listed chemicals, 21 U.S.C. 971,

subject to criminal sanctions under 21 U.S.C. 960(d).

It also: (a) contains further import anti-diversion modifications, including additional

reporting requirements and enforcement authority relating to EPP, 21 U.S.C. 971(h); (b)

adds information concerning EPP exporting and importing countries to be included in the

international narcotics control strategy report, 22 U.S.C.2291h, and makes those nations

subject to the annual certification procedure of the Foreign Assistance Act, 22 U.S.C.

2291j; (c) instructs the Secretary of State to take action to prevent meth smuggling from

Mexico and report annually on its efforts; (d) adds a term of imprisonment of not more

than 15 years to the already applicable penalties for smuggling meth using quick entry

border procedures; (e) makes the manufacture of controlled substances on federal property

subject to a maximum fine range of not less than $500,000, 21 U.S.C. 841(b)(5); (f)

reduces the drug volume and gross receipt drug kingpin thresholds in meth cases, 21

U.S.C. 848(s); (g) adds a term of imprisonment of not more than 20 years to the already

applicable penalties for making or trafficking in meth where children are present or live,

21 U.S.C. 860a; (h) adjusts sentencing reporting requirements for federal judges, 28

U.S.C. 994(w); and (i) requires the Attorney General to report twice a year on meth

enforcement efforts.

And it: (a) requires the Secretary of Transportation to report on designation of meth

byproducts as hazardous materials for purposes of the Hazardous Material Transportation

Act, 49 U.S.C 5103; and the Administrator of the Environmental Protection Agency to

report under the Solid Waste Disposal Act on meth production waste, 42 U.S.C. 6921; (b)

adds those who possess meth to the list of those subject to restitution orders upon

conviction, 21 U.S.C. 853(q); and (c) authorizes the Attorney General to award grants:

(i) to address the use of meth by pregnant and parenting women offenders; (ii) to provide

state services to drug endangered children; (iii) to combat meth trafficking and abuse, 42

U.S.C. 3796cc-1, 3796cc-2; and (iv) for drug courts whose programs include mandatory

testing and sanctions, 42 U.S.C. 3797u(c)(the Attorney General is also directed to study

the feasibility of federal drug courts).