USA PATRIOT Improvement and Reauthorization Act of 2005: A Sketch

Order Code RS22412

March 28, 2006

CRS Report for Congress

Received through the CRS Web

USA PATRIOT Improvement and

Reauthorization Act of 2005: A Sketch

Brian T. Yeh

Legislative Attorney

American Law Division

Charles Doyle

Senior Specialist

American Law Division

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; however, Congress extended their expiration date until March 10,

2006. In July 2005, both Houses approved USA PATRIOT reauthorization acts, H.R.

3199 and S. 1389, and the conference committee filed a report accompanying H.R.

3199, H.Rept. 109-333. A separate bill, the USA PATRIOT Act Additional

Reauthorizing Amendments Act of 2006 (S. 2271), provides 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.

The USA PATRIOT Improvement and Reauthorization Act of 2005 (the Act)

makes permanent 14 of the 16 expiring USA PATRIOT Act sections. Among other

things, the Act 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

establishes judicial review and enforcement procedures for national security letters. The

Act expands law enforcement wiretap authority to cover more than 20 federal crimes.

It revises federal criminal provisions relating to seaport and maritime security. The Act

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.

This is an abridged version of CRS Report RL33332, USA PATRIOT Improvement

and Reauthorization Act of 2005: A Legal Analysis, by Brian T. Yeh and Charles Doyle,

without footnotes or citations to authority.

Congressional Research Service ˜ The Library of Congress

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Introduction

The USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177

(the Act), consists of seven titles. By its terms, the USA PATRIOT Act Additional

Reauthorizing Amendments Act of 2006, P.L. 109-178 (“Additional Amendments Act”),

provides civil liberties safeguards to the specified sections of the Foreign Intelligence

Surveillance Act (FISA) and the national security letter (NSL) statutes after they have

been amended by the Act. This report provides a summary of the major provisions of the

Act and, where appropriate, discusses the modifications to law made by the Additional

Amendments Act.

Title I: USA PATRIOT Improvement and Reauthorization Act

Changes to FISA. Title I postpones expiration of sections 206 and 215 of the

USA PATRIOT Act (roving FISA wiretaps and FISA access to business records) until

December 31, 2009, and makes permanent the other temporary USA PATRIOT Act

amendments. Also postponed until December 31, 2009, is the expiration of the

Intelligence Reform and Terrorism Prevention Act authority to use FISA orders in “lone

wolf” terrorist investigations.

Section 215 of the USA PATRIOT Act amended FISA to authorize the FBI Director

or his designee to apply to the FISA court to issue orders granting the government access

to any tangible item, no matter who holds it, in foreign intelligence, international

terrorism, and clandestine intelligence cases. Title I adds several safeguards to the use of

section 215 “business records” orders under FISA (“215 order”). First, it 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. A 215 order application must describe

the 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. The Attorney General is directed to adopt

specific “minimization procedures” governing the retention and dissemination by the FBI

of the tangible things obtained under a 215 order.

Title I establishes a judicial review process for recipients of 215 orders to challenge

them: the FISA court judge may modify or set aside the 215 order if it does not comply

with the statute or is otherwise unlawful. 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 Additional Amendments Act grants the recipient of a 215

order the express right to petition a FISA judge to modify or quash the nondisclosure

requirement that accompanies such an order. Such a right was not provided by the Act.

However, for one year after the date of the issuance of a 215 production order, the

nondisclosure requirement remains in full effect; the recipient may not challenge the gag

order until after the one-year moratorium has ended.

Although 215 orders are accompanied by nondisclosure orders, Title I expressly

clarifies that a recipient of a 215 order may disclose its existence to an attorney to obtain

legal advice, as well as to other persons approved by the FBI. However, upon the request

of the FBI Director (or his designee), the recipient must disclose to the FBI the identity

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of the person to whom the disclosure will be or was made. The Additional Amendments

Act exempts explicitly from the identification disclosure requirement the name of the

attorney sought to obtain legal advice with respect to the 215 order.

Title I 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). 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,

Title I extends the tenure for both initial and extension orders authorizing installation and

use of FISA pen registers, and trap and trace surveillance devices, from a period of 90

days to one year, in cases where the government has certified that the information likely

to be obtained is foreign intelligence information not concerning a U.S. person.

Congressional oversight of the use of FISA authority is enhanced by Title I, by

requiring the Attorney General to report to both Houses’ Judiciary and Intelligence

Committees concerning FISA order disclosures, electronic surveillance orders, and

physical searches. In addition, the Inspector General is instructed 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. 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. Title I authorizes

judicial enforcement of an NSL request for these types of records, as well as provides a

recipient of an NSL the right to challenge the legality of the request in U.S. district court.

The court may quash or modify an NSL request if compliance would be unreasonable,

oppressive, or otherwise unlawful. Title I also permits an NSL recipient to petition the

court to modify or quash a nondisclosure requirement that may accompany the NSL;

however, unlike a 215 order issued under FISA, the NSL recipient need not wait for one

year prior to challenging the gag order. Another difference from a section 215 order is

that the nondisclosure order does not automatically attach to the NSL. The nondisclosure

requirement attaches 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. Title I

punishes a person who was notified of an 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.

NSL recipients are permitted under the Act to disclose that the FBI has sought or

obtained access to the information sought through the NSL, to any person whose

assistance is needed to comply with it or to an attorney to obtain legal advice concerning

the NSL. However, as in the case for 215 FISA orders, the Act provides that 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. The Additional Amendments Act expressly exempts the identity of

attorneys from the disclosure requirement established by the Act. The Additional

Amendments Act also clarifies that libraries, the services of which include offering

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patrons access to the Internet, are not subject to NSLs, unless they are functioning as

electronic communication service providers.

Title I requires that any reports to a congressional committee regarding NSL shall

also be provided to the Judiciary Committees. The Inspector General is also directed to

conduct an audit of the effectiveness and use of NSL, for submission to the Judiciary and

Intelligence Committees for calendar years 2003-2006.

Other Terrorism-Related Matters. Title I makes permanent the material support

of terrorism amendments in the Intelligence Reform and Terrorism Prevention Act, 18

U.S.C. 2339B. Title I also 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 materials.

Federal law generally requires the government to obtain a court order authorizing the

interception of wire, oral, or electronic communications in the investigation of certain

crimes specifically enumerated by statute (“predicate offenses”). Title I expands the list

of predicate offenses to include some 20 federal crimes that might be committed for

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

aggravated identity theft.

Title I also creates a new criminal offense called “narco-terrorism,” which outlaws

drug trafficking for the benefit of a foreign terrorist organization or of a person who has

or is engaged in terrorism under a wide range of jurisdictional circumstances; violations

are punishable by imprisonment for 20 years to life. In addition, the definition of “federal

crimes of terrorism” is expanded by adding narco-terrorism and foreign military training.

Law Enforcement Amendments. 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 contemporaneous notice of their search; the target

is to be notified of the execution of such a search warrant a “reasonable period of time”

afterwards. Title I enhances procedural protections and oversight concerning these search

warrants by permitting notification delays of no more than 30 days, with 90-day

extensions as the facts justify; removing undue trial delay as a ground for delayed

notification; and requiring annual reports to Congress concerning the use of the authority.

Title I merges two existing federal offenses concerning train wrecking and attacks

on mass transportation systems into a new single offense intended to provide uniform

offense elements and penalties for attacks on all transportation systems on land, on water,

or through the air. Federal law concerning destruction of aircraft is also amended to

include interfering with or disabling the operator of an aircraft or aircraft facility with

reckless disregard for human safety or with the intent to endanger.

Title II: Terrorist Death Penalty Enhancement Act of 2005

Title II makes several adjustments in federal death penalty law. The first provides

for the application of federal capital punishment procedures in air piracy cases arising

before 1994. The second eliminates a redundant procedural mechanism in federal capital

drug cases, such that the same death penalty procedures generally applicable in federal

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capital cases now apply to federal capital drug cases. The third transfers provisions of law

governing the appointment of counsel in capital indigent defendant cases, from title 21

of the U.S. Code to title 18. Finally, this title 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.

Title III: Reducing Crime and Terrorism at America’s Seaports

Act of 2005

Title III creates more severe criminal penalties concerning criminal and terrorist

activities committed at U.S. seaports or aboard vessels. It (a) amends the prohibition

against entering airport secured areas to include seaport secured areas, (b) outlaws

obstructing law enforcement maritime inspections, (c) prohibits placing in U.S. waters a

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

maritime commerce, (d) condemns violence against certain aids to maritime navigation,

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

crime of terrorism, and (f) proscribes maritime transportation of terrorists.

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 (however,

prosecution is barred in the case of certain labor disputes); (b) increases the maximum

penalties for theft from interstate or foreign shipments (from 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; (d)

increases the maximum penalty for stowing away; (e) prohibits bribery relating to port

security; (f) increases the maximum term of imprisonment for smuggling goods into the

United States from five years to 20 years, and for removing goods from customs custody

from two years to 10 years; and (g) proscribes smuggling goods out of the U.S. (this

offense is also added to the money laundering predicate list and the goods are subject to

confiscation).

Title IV: Combating Terrorism Financing Act of 2005

Title IV strengthens penalties for money laundering, particularly related to financing

terrorism, and makes changes to forfeiture authority. Among other things, it 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. It adds illegal money transmissions to the racketeering (RICO) predicate offense

list and adds two criminal acts, financing terrorism and receipt of foreign military training,

to the money laundering predicate offense list. Title IV also (a) authorizes the

confiscation of U.S. property related to certain acts of international terrorism against a

foreign government or international organization; (b) expands federal money laundering

prohibitions to encompass related “dependent transactions”; (c) clarifies the rights of

property owners in international terrorism confiscation cases; (d) subjects conspiracies to

damage commercial motor vehicles or energy facilities to the same penalties as apply to

the completed offenses; and (e) makes the criminal drug forfeiture procedures generally

applicable to the forfeitures ordered following conviction.

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Title V: Miscellaneous Provisions

Title V contains miscellanea, some of which may be of special interest. Its

provisions (a) include a retroactive exemption for U.S. Attorneys and Assistant U.S.

Attorneys on special assignment from otherwise applicable residency requirements; (b)

strike the provision under which a court may fill a vacancy in the office of U.S. Attorney;

(c) add the Secretary of Homeland Security to line of presidential succession; (d) make

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

consent position; (e) identify various qualifications that every U.S. Marshall should have;

(f) create a National Security Division within the Department of Justice headed by a

statutory Assistant Attorney General for National Security; 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.

Title VI: Secret Service Authorization and Technical Modification

Act of 2005

Title VI 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). It

expands prohibitions against fraud in connection with U.S. identification documents to

include documents issued by the sponsoring entity of a presidentially designated “special

event of national significance.” It transfers and revises the organic Act for the United

States Secret Service Uniformed Division and confirms the Secret Service as a distinct

entity within the Department of Homeland Security.

Title VII: Combat Methamphetamine Epidemic Act of 2005

Title VII contains subtitles concerning regulation of domestic and international

commerce in three methamphetamine (meth) precursor chemicals: ephedrine,

pseudoephedrine, and phenylpropanolamine (EPP); increased penalties for

methamphetamine offenses; expanded meth lab clean up measures; and grant programs

to address problems associated with meth abuse. More specifically, it sets a daily 3.6

gram limit for over-the-counter sales of EPP products, requires that such products be

available only “behind the counter,” requires purchasers of products containing more than

60 mg of pseudoephedrine to present a photo ID and sign a log book, and limits mail

orders of EPP products to 7.5 grams a month. Title VII also enhances penalties for the

manufacture of controlled substances on federal property and making or trafficking in

meth where children are present or live, and makes it easier to prosecute drug kingpins

trafficking in meth. Title VII also provides that offenders convicted of unlawful

possession with intent to distribute meth may be ordered to pay restitution and to

reimburse governmental entities for cleanup costs associated with meth labs on the

defendant’s property.

Finally, Title VII authorizes the Attorney General to award grants (a) to address the

use of meth by pregnant and parenting women offenders, (b) to provide state services to

drug endangered children, (c) to combat meth trafficking and abuse, and (d) for drug

courts whose programs include mandatory testing and sanctions. The Attorney General

is also directed to study the feasibility of federal drug courts.