Attorney General Ashcroft's Draft Anti-Terrorism
Package
Anti-Terrorism Act of 2001
Section-by-Section
Analysis
September 20, 2001
Title I: Intelligence Gathering
Subtitle A: Electronic Surveillance
Section 101 Modification of Authorities Relating to Use of Pen
Registers And Trap And Trace Devices
This section authorizes courts to grant pen register/trap and
trace orders that are valid anywhere in the nation, and subjects
Internet communications to the same rules as telephone
communications. At present, the government must apply for new
pen/trap orders in every jurisdiction where an investigation is
being pursued. Hence, law enforcement officers tracking a suspected
terrorist in multiple jurisdictions must waste valuable time and
resources by obtaining a duplicative order in each jurisdiction.
In greater detail, the section amends 18 U.S.C. § 3123(a) by
allowing courts to grant orders that are valid "anywhere within the
United States." Thus, the government would be able to obtain one pen
register/trap and trace order that could be applied to any
communications provider in the chain of providers carrying the
suspects' communications. This amendment would increase tracing
efficiency by eliminating the current need to apply for new orders
each time the investigation leads to another jurisdiction. The
section also includes a number of provisions which ensure that the
pen/trap provisions apply to facilities other than telephone lines
(e.g., the Internet). These amendments will promote effective
tracing regardless of the media employed.
Section 102 Seizure of Voice Mail Messages Pursuant to
Warrants
This section enables law enforcement personnel to seize suspected
terrorists’ voice mail messages pursuant to a search warrant. At
present, 18 U.S.C. § 2510(1) anomalously defines "wire
communication" to include "any electronic storage of such
communication," meaning that the government must apply for a Title
III wiretap order before it can obtain unopened voice mail messages
held by a service provider. The section amends the definition of
"wire communication" so that it no longer includes stored
communications. It also amends 18 U.S.C. § 2703 to specify that the
government may use a search warrant (instead of a wiretap order) to
compel the production of unopened voicemail, thus harmonizing the
rules applicable to stored voice and non-voice (e.g., e-mail)
communications.
Section 103 Authorized Disclosure
This section facilitates the disclosure of Title
III information to other components of the intelligence community in
terrorism investigations. At present, 18 U.S.C. § 2517(1) generally
allows information obtained via wiretap to be disclosed only to the
extent that it will assist a criminal investigation. One must obtain
a court order to disclose Title III information in non-criminal
proceedings. Section 109 would modify the wiretap statutes to permit
the disclosure of Title III-generated information to a non-law
enforcement officer for such purposes as furthering an intelligence
investigation. This will harmonize Title III standards with those of
the Foreign Intelligence Surveillance Act (FISA), which allows such
information-sharing. Allowing disclosure under Title III is
particularly appropriate given that the requirements for obtaining a
Title III surveillance order in general are more stringent than for
a FISA order, and because the attendant privacy concerns in either
situation are similar and are adequately protected by existing
statutory provisions.
Section 104 Savings Provision
This provision clarifies that the collection of
foreign intelligence information is governed by foreign intelligence
authorities rather than by criminal procedural statutes, as the
current statutory scheme envisions.
Section 105 Use of Wiretap Information From Foreign
Governments
Under current case law, federal prosecutors appear
to have the ability to use electronic surveillance conducted by
foreign governments in criminal proceedings. As criminal law
enforcement becomes more of a global effort, such information will
come to play a larger role in federal prosecutions. To ensure
uniformity of federal practice, this section codifies the principle
that United States prosecutors may use against American citizens
information collected by a foreign government even if the collection
would have violated the Fourth Amendment. Under the proposal, such
information may not be used if it was obtained with the knowing
"participation" or at the direction of American law enforcement
personnel, if gathered in violation of constitutional
protections.
Section 106 Interception of Computer Trespasser
Communications
Current law may not allow victims of computer
trespassing to request law enforcement assistance in monitoring
unauthorized attacks as they occur. Because service providers often
lack the expertise, equipment, or financial resources required to
monitor attacks themselves as permitted under current law, they
often have no way to exercise their rights to protect themselves
from unauthorized attackers. Moreover, such attackers can target
critical infrastructures and engage in cyberterrorism. To correct
this problem, and help to protect national security, the proposed
amendments to the wiretap statute would allow victims of computer
attacks to authorize persons "acting under color of law" to monitor
trespassers on their computer systems in a narrow class of
cases.
Section 107 Scope of Subpoenas for Records of Electronic
Communications
Current law allows the government to use a subpoena
to compel communications providers to disclose a small class of
records that pertain to electronic communications, limited to such
records as the customer’s name, address, and length of service. 18
U.S.C. § 2703(c)(1)(C). Remarkably, investigators cannot use a
subpoena to obtain such records as credit card number or other form
of payment. In many cases, users register with Internet service
providers using false names, making the form of payment critical to
determining the user’s true identity. Under current law, this
information can only be obtained by the slower and more cumbersome
process of a court order.
In fast-moving investigation such as terrorist
bombings – in which Internet communications are critical method of
identifying conspirators in determining the source of the attacks --
the delay necessitated by the use of court orders can often be
important. Obtaining billing and other information can identify not
only the perpetrator but also give valuable information about the
financial accounts of those responsible and their conspirators.
Therefore, the proposed amendments to § 2703(c)(1)(C) would update
and broaden the class of records that law enforcement authorities
may obtain with a subpoena.
Section 108 Nationwide Service of Search Warrants for
Electronic Evidence
Current law requires the government to use a search
warrant to compel a provider to disclose unopened e-mail. 18 U.S.C.
§ 2703(a). Because Federal Rule of Criminal Procedure 41 requires
that the "property" to be obtained be "within the district" of the
issuing court, however, the rule may not allow the issuance of §
2703(a) warrants for e-mail located in other districts. Thus, for
example, where an investigator in Boston is seeking electronic
e-mail in the Yahoo! account of a suspected terrorist, he may need
to coordinate with agents, prosecutors, and judges in the Northern
District of California, none of whom have any other involvement in
the investigation. This electronic communications information can be
critical in establishing relationships, motives, means, and plans of
terrorists. Moreover, it is equally relevant to cyber-incidents in
which a terrorist motive has not (but may well be) identified.
Finally, even cases that require the quickest response (kidnappings,
threats, or other dangers to public safety or the economy) may rest
on evidence gathered under § 2703(a). To further public safety, this
section accordingly authorizes courts with jurisdiction over
investigations to compel evidence directly, without requiring the
intervention of their counterparts in the districts where major
Internet service providers are located.
Section 109 Clarification of Scope
Law enforcement must have the capability to trace,
intercept, and obtain records of the communications of terrorists
and other criminals with great speed, even if they choose to use a
cable provider for their telephone and Internet service. This
section amends the Cable Communications Policy Act ("Cable Act") to
clarify that when a cable company acts as a telephone company or an
Internet service provider, it must comply with the same laws
governing the interception and disclosure of wire and electronic
communications that apply to any other telephone company or Internet
service provider. The Cable Act, passed in 1984 to regulate various
aspects of the cable television industry, could not take into
account the changes in technology that have occurred over the last
seventeen years. Cable television companies now often provide
Internet access and telephone service in addition to television
programming. Because of perceived conflicts between the Cable Act
and the laws that govern law enforcement’s access to communications
and records of communications carried by cable companies, cable
providers have refused to comply with lawful court orders, thereby
slowing or ending critical investigations.
Section 110 Emergency Disclosure of Electronic
Communications
Existing law contains no provision that allows
providers of electronic communications service to disclose the
communications (or records relating to such communications) of their
customers or subscribers in emergencies that threaten death or
serious bodily injury. This section amends 18 U.S.C. § 2702 to
authorize such disclosures if the provider reasonably believes that
an emergency involving immediate danger of death or serious physical
injury to any person requires disclosure of the information without
delay.
Current law also contains an odd disconnect: a
provider may disclose the contents of the customer’s
communications in order to protect its rights or property but the
current statute does not expressly permit provider to voluntarily
disclose non-content records (such as a subscriber’s login
records). 18 U.S.C. § 2702(b)(5). This problem substantially hinders
the ability of providers to protect themselves from cyber-terrorists
and criminals. Yet the right to disclose the contents of
communications necessarily implies the less intrusive ability to
disclose non-content records. In order to promote the protection of
our nation’s critical infrastructures, this section’s amendments
allow communications providers to voluntarily disclose both content
and non-content records to protect their computer systems.
Subtitle B: Foreign Intelligence Surveillance
Section 151 Period of Orders of Electronic Surveillance of
Non-United States Persons Under Foreign Intelligence
Surveillance
This section reforms a critical aspect of the Foreign
Intelligence Surveillance Act (FISA). It will enable the Foreign
Intelligence Surveillance Court (FISC), which presides over
applications made by the U.S. government under FISA, to authorize
the search and surveillance in the U.S. of officers and employees of
foreign powers and foreign members of international terrorist groups
for up to a year. Currently, the FISC may only authorize such
searches and surveillance for up to 45 days and 90 days,
respectively. The proposed change would bring the authorization
period in line with that allowed for search and surveillance of the
foreign establishments for which the foreign officers and employees
work. The proposed change would have no effect on electronic
surveillance or physical searches of U.S. citizens or permanent
resident aliens.
Section 152 Multi-Point Authority
This provision expands the obligations of third
parties to furnish assistance to the government under FISA. Under
current FISA provisions, the government can seek information and
assistance from common carriers, landlords, custodians and other
persons specified in court-ordered surveillance. Section 152 would
amend FISAto expand existing authority to allow, "in circumstances
where the Court finds that the actions of the target of the
application may have the effect of thwarting the identification of a
specified person," that a common carrier, landlord, custodian or
other person not specified in the Court’s order be required to
furnish the applicant information and technical assistance necessary
to accomplish electronic surveillance in a manner that will protect
its secrecy and produce a minimum of interference with the services
that such person is providing to the target of electronic
surveillance. This would enhance the FBI’s ability to monitor
international terrorists and intelligence officers who are trained
to thwart surveillance by rapidly changing hotel accommodations,
cell phones, Internet accounts, etc., just prior to important
meetings or communications. Under the current law, the government
would have to return to the FISA Court for an order that named the
new carrier, landlord, etc., before effecting surveillance. Under
the proposed amendment, the FBI could simply present the newly
discovered carrier, landlord, custodian, or other person with a
generic order issued by the Court, and could then effect FISA
coverage as soon as technically feasible.
Section 153 Foreign Intelligence Information
Current law requires that FISA be used only where
foreign intelligence gathering is the sole or primary purpose of the
investigation. This section will clarify that the certification of a
FISA request is supportable where foreign intelligence gathering is
"a" purpose of the investigation. This change would eliminate the
current need continually to evaluate the relative weight of criminal
and intelligence purposes, and would facilitate information sharing
between law enforcement and foreign intelligence authorities which
is critical to the success of anti-terrorism efforts.
Section 154 Foreign Intelligence Information Sharing
With limited exceptions, it is presently impossible
for criminal investigators to share information obtained through a
grand jury (including through the use of grand jury subpoenas) and
information obtained from electronic surveillance authorized under
Title III with the intelligence community. This limitation will be
very significant in some criminal investigations. For example, grand
jury subpoenas often are used to obtain telephone, computer,
financial, and other business records in organized crime
investigations. Thus, these relatively basic investigative materials
are inaccessible for examination by intelligence community analysts
working on related transnational organized crime groups. A similar
problem occurs in computer intrusion investigations: grand jury
subpoenas and Title III intercepts are used to collect transactional
data and to monitor the unknown intruders. The intelligence
community will have an equal interest in such information, because
the intruder may be acting on behalf of a foreign power.
Section 155 Pen Register And Trap And Trace Authority
When added to FISA two years ago, the pen
register/trap and trace section was intended to mirror the criminal
pen/trap authority defined in 18 U.S.C. § 3123. In fact, the FISA
authority differs from the criminal authority only in that it
requires, in addition to a showing of relevance, an additional
factual showing that the communications device has been used to
contact an "agent of a foreign power" engaged in international
terrorism or clandestine intelligence activities. This has the
effect of making the FISA pen/trap authority much more difficult to
obtain. In fact, the process for obtaining FISA pen/trap authority
is only slightly less burdensome than the process for obtaining full
electronic surveillance authority under FISA. This stands in stark
contrast to the criminal pen/trap authority, which can be obtained
quickly from a local court, on the basis of a certification that the
information to be obtained is relevant to an ongoing investigation.
The amendment simply eliminates the "agent of a foreign power" prong
from the predication, and thus makes the FISA authority more closely
track the criminal authority.
Section 156 Business Records
The "business records" section of FISA (50 U.S.C.
§§ 1861 and 1862) requires a formal pleading to the Court and the
signature of a FISA judge (or magistrate). In practice, this makes
the authority unavailable for most investigative contexts. The time
and difficulty involved in getting such pleadings before the Court
usually outweighs the importance of the business records sought.
Since its enactment, the authority has been sought less than five
times.
This section would delete the old authority and
replace it with a generic "administrative subpoena" authority for
documents and records. This authority, modeled on the administrative
subpoena authority available to drug investigators pursuant to Title
21, allows the Attorney General to compel production of such records
upon a finding that the information is relevant.
Section 157 Miscellaneous National Security
Authorities
At the present time, National Security Letter (NSL)
authority exists in three separate statutes: the Electronic
Communications Privacy Act (for telephone and electronic
communications records), the Financial Right to Privacy Act (for
financial records), and the Fair Credit Reporting Act (for credit
records). Like the FISA pen register/trap and trace authority
described above, NSL authority requires both a showing of relevance
and a showing of links to an "agent of a foreign power." In this
respect, they are substantially more demanding than the analogous
criminal authorities, which require only a certification of
relevance. Because the NSLs require documentation of the facts
supporting the "agent of a foreign power" predicate and because they
require the signature of a high-ranking official at FBI
headquarters, they often take months to be issued. This is in stark
contrast to criminal subpoenas, which can be used to obtain the same
information, and are issued rapidly at the local level. In many
cases, counterintelligence and counterterrorism investigations
suffer substantial delays while waiting for NSLs to be prepared,
returned from headquarters, and served. The section would streamline
the process of obtaining NSL authority, and also clarify that the
FISA Court can issue orders compelling the production of consumer
reports.
Section 158 Disclosure of Educational Records
The Department believes that there may be
information contained in student education records maintained by
educational agencies and institutions and in education surveys
reported to the National Center for Education Statistics that could
be important in the criminal investigation of the terrorist attack
of September 11, 2001, as well as to national security. However,
section 408 of the National Statistics Act clearly prohibits
disclosure of such information to appropriate Federal officials for
these purposes; and, of equal importance, section 408 criminalizes
the disclosure of any such prohibited information. This section will
effectively override section 408 for this limited purpose.
Section 444 (Protection of the Rights and Privacy
of Students and Parents, commonly referred to as FERPA) of the
General Education Provisions Act generally prohibits the release of
personally identifiable information from student education records
without the consent of the student (or, in the case of a minor, the
student's parents). While there are certain exceptions to this
prohibition, it is not clear that these exceptions are fully
applicable to the pressing need to share such information from
student education records relating to terrorism with the appropriate
Federal officials for the purpose of criminal investigation and
prosecution and ensuring national security. This section will
effectively override section 444 for this limited purpose.
Section 159 Presidential Authorities
This section is designed to accomplish two
principal objectives. First, the section restores to the President,
in limited circumstances involving armed hostilities or attacks
against the United States, the power to confiscate and vest in the
United States the property of enemies during times of national
emergency, which was contained in the Trading with the Enemy Act, 50
app. U.S.C. sect. 5(b) (TWEA) until 1977. Until the International
Economic Emergency Act (IEEPA) was passed in 1977, section 5(b)
permitted the President to vest enemy property in the United States
during time of war or national emergency. When IEEPA was
passed, it did not expressly include a provision permitting the
vesting of property in the United States, and section 5(b) of TWEA
was amended to apply only "[d]uring the time of war." 50 app. U.S.C.
sect. 5(b).
This new provision tracks the vesting language
currently in section 5(b) of TWEA and permits the President, only in
the limited circumstances when the United States is engaged in
military hostilities or has been subject to an attack, to confiscate
property of any foreign country, person, or organization involved
hostilities or attacks on theUnited States. Like the original
provision in TWEA, it is an exercise of Congress’s war power under
Article I, section 8, clause 11of the Constitution and is designed
to apply to unconventional warfare where Congress has not formally
declared war against a foreign nation.
The second principal purpose of this amendment to
IEEPA is to ensure that reviewing courts may base their rulings on
an examination of the complete administrative record in sensitive
national security or terrorism cases without requiring the United
States to compromise classified information.
New subsection (c) would authorize a reviewing
court, in the process of verifying that determinations made by the
executive branch were based upon substantial evidence and were not
arbitrary or capricous, to consider classified evidence ex parte and
in camera. This would ensure that reviewing courts have the best and
most complete information upon which to base their decisions without
forcing the United States to choose between compromising highly
sensitive intelligence information or declining to take action
against individuals or entities that may present a serious threat to
the United States or its nationals. A similar accommodation
mechanism was enacted by Congress in the Anti-Terrorism and
Effective Death Penalty Act of 1996, 8 U.S.C. Section
1189(b)(2).
TITLE II: IMMIGRATION
Section 201 Definitions Relating to Terrorism
The Alien Terrorist Removal Court is the only
mechanism available to the government in which classified evidence
can be used as part of an affirmative case to remove an alien
involved in terrorism. In existence since 1996, it has never been
used, in part because of the narrow definition of "terrorist" which
limits the applicability of the Court. The current definition is
limited to individuals who provide material support for a "terrorist
activity." This section broadens that definition to include anyone
who affords material support to an organization that the individual
knows or should know is a terrorist organization, regardless of
whether or not the purported purpose for the support is related to
terrorism. These revised definitions will apply in all types of
removal proceedings (before the Alien Terrorist Removal Court,
immigration courts, and the INS). This legislation seeks to stop the
provision of support to terrorist organizations through sham
non-terrorist activities. The legislation further defines terrorist
organization and provides a mechanism for the designation and
redesignation of groups as terrorist organizations.
Section 202 Mandatory Detention of Suspected
Terrorists
Currently, persons deportable or inadmissible for
terrorism-related reasons must be detained. This section expands
this mandatory detention to those individuals the Attorney General
determines pose a threat to national security, whether or not the
alien is eligible for or is granted relief from removal. The
Attorney General is vested with the discretion to make these
time-sensitive decisions and to detain individuals who are found to
pose a threat to national security until they are actually removed
or until the Attorney General determines the person no longer poses
a threat.
Section 203 Habeas Corpus and Judicial Review
Under current law, determinations to remove or
detain terrorists have generally been deemed by the courts to be
reviewable by habeas corpus proceedings which can be brought in any
applicable federal jurisdiction nationwide. The availability of
multiple jurisdictions for review creates the potential for
inconsistent standards to be developed by reviewing courts, which
interferes with the government’s ability to pursue detention and
removal under a known and consistent standard. The proposed
provision would not limit the scope of judicial review, but would
vest exclusive judicial review of detention and removal proceedings
with respect to aliens certified by the Attorney General as national
security risks in the federal courts for the District of Columbia.
The reservation of all alien terrorist cases to the District of
Columbia conforms to general principles of administrative law, and
to the existing provisions of the Immigration and Nationality Act.
It is common for judicial review of agency action to be confined to
a single court, and the Immigration and Nationality Act already
limits challenges to expedited removal and Alien Terrorist Removal
Court cases to the District of Columbia.
Section 204 Applicability
This provision makes it clear that this legislation
will apply to all aliens regardless of when they entered the United
States or when they committed the terrorist activity.
Section 205 Multilateral Cooperation Against
Terrorists
This section will enhance our ability to combat
terrorism and crime worldwide by providing new exceptions to the
laws regarding disclosure of information from visa records. Under
current law the Secretary of State may only disclose such
information when doing so is directly related to the administration
or enforcement of U.S. laws or a court makes the request. Often
these showings are difficult to make in responding to an information
request from a foreign government due to constraints of time or
foreign procedure which preclude the involvement of a foreign court.
This section grants the Secretary of State discretion to provide
such information to foreign officials on a case-by-case basis for
the purpose of fighting international terrorism or crime. It would
also allow the Secretary to provide countries with which he
negotiates specific agreements to have more general access to
information from the State Department’s lookout databases where the
country will use such information only to deny visas to persons
seeking to enter its territory.
Section 206 Interagency Data Sharing
This amendment to the Immigration and Nationality
Act (INA) would recognize that the interagency cooperation provided
for in INA Section 105 now serves a broader border security
function, and would enhance that function by improving consular
officers’ access to crime information. This is consistent with the
fact that securing the borders of the U.S. against the entry of
international terrorists, traffickers in narcotics, weapons or
persons, international organized crime members, and illegal entrants
is not the responsibility of any single federal agency. Consular
officers abroad must facilitate legitimate travel while preventing
the travel of individuals who present security or other threats to
U.S. government interests. These officers need electronic access to
information from border security and law enforcement agencies that
will assist in identifying high-risk travelers, including
information maintained by the FBI on aliens suspected of committing
crimes in the U.S. (e.g., information contained in the
NCIC-III and Wanted Persons File databases). Without this
information, a consular officer could unknowingly grant a visa to a
known or suspected criminal.
TITLE III – CRIMINAL JUSTICE
Subtitle A: Substantive Criminal Law
Section 301 No Statute of Limitations For Prosecuting
Terrorism Offenses
This section amends 18 U.S.C. § 3286 to provide
that terrorism offenses may be prosecuted without limitation of
time. This will make it possible to prosecute the perpetrators of
terrorist acts whenever they are identified and apprehended.
The section expressly provides that it is
applicable to offenses committed before the date of enactment of the
statute, as well as those committed thereafter. This retroactivity
provision ensures that no limitation period will bar the prosecution
of crimes committed in connection with the September 11, 2001
terrorist attacks. The constitutionality of such retroactive
applications of changes in statutes of limitations is well-settled.
See, e.g., United States v. Grimes, 142 F.3d 1342, 1350-51
(11th Cir. 1998); People v. Frazer, 982 P.2d 180 (Cal.
1999).
Existing federal law (18 U.S.C. § 3282) bars
prosecuting most offenses after five years. 18 U.S.C. § 3286, as
currently formulated, extends the limitation period for prosecution
for certain offenses that may be committed by terrorists – but only
to eight years. While this is a limited improvement over the
five-year limitation period for most federal offenses, it is
patently inadequate in relation to the catastrophic human and social
costs that frequently follow from such crimes as destruction of
aircraft (18 U.S.C. § 32), aircraft hijackings (42 U.S.C. §§ 46502,
46504-06), attempted political assassinations (18 U.S.C. §§ 351 ,
1116, 1751), or hostage taking (18 U.S.C. § 1203). These are not
minor acts of misconduct which can properly be forgiven or forgotten
merely because the perpetrator has avoided apprehension for some
period of time. Anomalously, existing law provides longer limitation
periods for such offenses as bank frauds and certain artwork thefts
(18 U.S.C. §§ 3293-94) than it does for the crimes
characteristically committed by terrorists.
In many American jurisdictions, the limitation
periods for prosecution for serious offenses are more permissive
than those found in federal law, including a number of states which
have no limitation period for the prosecution of felonies generally.
While this section does not go so far, it does eliminate the
limitation period for prosecution of the major crimes that are most
likely to be committed by terrorists ("Federal terrorism offenses"),
as specified in section 310 of this bill.
Section 302 Alternative Maximum Penalties For Terrorism
Crimes
Under existing law, the maximum prison terms for
federal offenses are normally determined by specifications in the
provisions which define them. These provisions can provide
inadequate maxima in cases where the offense is aggravated by its
terrorist character or motivation. This section accordingly adds a
new subsection (e) to 18 U.S.C. § 3559 which provides alternative
maximum prison terms, including imprisonment for any term of years
or for life, for crimes that are likely to be committed by
terrorists. This is analogous to the maximum fine provisions of 18
U.S.C. § 3571(b)-(c) – which supersede lower fine amounts specified
in the statutes defining particular offenses – and will more
consistently ensure the availability of sufficiently high maximum
penalties in terrorism cases. As in several other provisions of this
bill, the list of the serious crimes most frequently committed by
terrorists set forth in section 310 of the bill ("Federal terrorism
offenses") is used in defining the scope of the provision.
This section affects only the maximum penalty
allowed by statute. It does not limit the authority of the
Sentencing Commission and the courts to tailor the sentences imposed
in particular cases to offense and offender characteristics.
Section 303 Penalties For Terrorist Conspiracies
The maximum penalty under the general conspiracy
provision of federal criminal law (18 U.S.C. § 371) is five years,
even if the object of the conspiracy is a serious crime carrying a
far higher maximum penalty. For some individual offenses and
types of offenses, special provisions authorize conspiracy
penalties equal to the penalties for the object offense – see, e.g.,
21 U.S.C. § 846 (drug crimes) – but there is no consistently
applicable provision of this type for the crimes that are likely to
be committed by terrorists.
This section accordingly adds a new § 2332c to the
terrorism chapter of the criminal code – parallel to the drug crime
conspiracy provision in 21 U.S.C. § 846 – which provides maximum
penalties for conspiracies to commit terrorism crimes that are equal
to the maximum penalties authorized for the objects of such
conspiracies. This will more consistently provide adequate penalties
for terrorist conspiracies. As in various other provisions in this
bill, the relevant class of offenses is specified by use of the
notion of "Federal terrorism offense," which is defined in section
310 of the bill.
Section 304 Terrorism Crimes as Rico Predicates
The list of predicate federal offenses for RICO,
appearing in 18 U.S.C. § 1961(1), includes none of the offenses
which are most likely to be committed by terrorists. This section
adds terrorism crimes to the list of RICO predicates, so that RICO
can be used more frequently in the prosecution of terrorist
organizations. As in various other provisions, the list of offenses
in section 309 of the bill ("Federal terrorism offenses") is used in
identifying the relevant crimes.
Section 305 Biological Weapons
Current law prohibits the possession, development,
acquisition, etc., of biological agents or toxins "for use as a
weapon." 18 U.S.C. § 175. This section amends the definition of "for
use as a weapon" to include all situations in which it can be proven
that the defendant had any purpose other than a prophylactic,
protective, or peaceful purpose. This will enhance the government’s
ability to prosecute suspected terrorists in possession of
biological agents or toxins, and conform the scope of the criminal
offense in 18 U.S.C. § 175 more closely to the related forfeiture
provision in 18 U.S.C. § 176. Moreover, the section adds a
subsection to 18 U.S.C. § 175 which defines an additional offense of
possessing a biological agent or toxin of a type or in a quantity
that, under the circumstances, is not reasonably justified by a
prophylactic, protective or other peaceful purpose. The section also
enacts a new statute, 18 U.S.C. § 175b, which generally makes it an
offense for a person to possess a listed biological agent or toxin
if the person is disqualified from firearms possession under 18
U.S.C. § 922(g).
The section further provides that the Department of
Heath and Human Services enhance its role in bioterrorism prevention
by requiring registration of all research and public health
laboratories and manufacturing facilities that possess certain
hazardous microorganisms and toxins (the "Select Agents") that have
a high national security risk; requiring all such registered
laboratories and manufacturing facilities to meet regulatory
standards regarding the physical environment within which such
Select Agents are maintained or used; specifying the qualifications
of individuals authorized to work with such Select Agents; and
specifying the institutional procedures for access to such Select
Agents or the facilities in which they are maintained or used.
Section 306 Support of Terrorism Through Expert Advice or
Assistance
18 U.S.C. § 2339A prohibits providing material
support or resources to terrorists. The existing definition of
"material support or resources" is generally not broad enough to
encompass expert services and assistance – for example, advice
provided by a person with expertise in aviation matters to
facilitate an aircraft hijacking, or advice provided by an
accountant to facilitate the concealment of funds used to support
terrorist activities. This section accordingly amends 18 U.S.C.§
2339A to include expert services and assistance, making the offense
applicable to experts who provide services or assistance knowing or
intending that the services or assistance is to be used in preparing
for or carrying out terrorism crimes. The section also amends 18
U.S.C. § 2339A to conform its coverage of terrorism crimes to the
more complete list specified in section 309 of the bill ("federal
terrorism offenses").
Section 307 Prohibition Against Harboring Terrorists
18 U.S.C. § 792 makes it an offense to harbor or
conceal persons engaged in espionage. There is no comparable
provision for terrorism, though the harboring of terrorists creates
a risk to the nation readily comparable to that posed by harboring
spies. This section accordingly amends 18 U.S.C. § 792 to make the
same prohibition apply to harboring or concealing persons engaged in
federal terrorism offenses (as defined in section 309 of the
bill).
Section 308 Post-Release Supervision of Terrorists
Existing federal law (18 U.S.C. § 3583(b))
generally caps the maximum period of post-imprisonment supervision
for released felons at 3 or 5 years. Thus, in relation to a released
but still unreformed terrorist, there is no means of tracking the
person or imposing conditions to prevent renewed involvement in
terrorist activities beyond a period of a few years. The drug laws
(21 U.S.C. § 841) mandate longer supervision periods for persons
convicted of certain drug trafficking crimes, and specify no upper
limit on the duration of supervision, but there is nothing
comparable for terrorism offenses.
This section accordingly adds a new subsection to
18 U.S.C. § 3583 to authorize longer supervision periods, including
potentially lifetime supervision, for persons convicted of terrorism
crimes. This would permit appropriate tracking and oversight
following release of offenders whose involvement with terrorism may
reflect lifelong ideological commitments. As in other provisions in
this bill, the covered class of crimes is federal terrorism
offenses, which are specified in section 310 of the bill.
This section affects only the maximum periods of
post-release supervision allowed by statute. It does not limit the
authority of the Sentencing Commission and the courts to tailor the
supervision periods imposed in particular cases to offense and
offender characteristics, and the courts will retain their normal
authority under 18 U.S.C. § 3583(e)(1) to terminate supervision if
it is no longer warranted.
Section 309 Definition
This section adds a new § 25 to title 18 of the
United States Code, which defines the term "Federal terrorism
offense." The term is used in various provisions in this bill. The
definition is designed to cover the major crimes which are most
frequently involved in or associated with terrorism. The definition
in the new 18 U.S.C. § 25 is largely based on an existing listing of
terrorism-related offenses in 18 U.S.C. § 2332b(g)(5)(B).
Subtitle B – Criminal Procedure
Section 351 Single-Jurisdiction Search Warrants For
Terrorism
Rule 41(a) of the Federal Rules of Criminal
Procedure currently requires a search warrant to be obtained within
a district for searches within that district. The only exception is
for cases in which the property or person is presently within the
district but might leave the district before the warrant is
executed.
The restrictiveness of the existing rule creates
unnecessary delays and burdens for the government in the
investigation of terrorist activities and networks that span a
number of districts, since warrants must be separately obtained in
each district. This section resolves that problem by providing that
warrants can be obtained in any district in which activities related
to the terrorism may have occurred, regardless of where the warrants
will be executed.
Section 352 Notice
The law that currently governs notice to subjects
of warrants, where there is a showing to the court that immediate
notice would jeopardize an ongoing investigation or otherwise
interfere with lawful law-enforcement activities, is a mix of
inconsistent rules, practices, and court decisions varying widely
from jurisdiction to jurisdiction across the country. This greatly
hinders the investigation of many terrorism cases and other
cases.
This section resolves this problem by establishing
a statutory, uniform standard for all such circumstances. It
incorporates by reference the familiar, court-enforced standards
currently applicable to stored communications under 18 U.S.C. §
2705, and applies them to all instances where the court is satisfied
that immediate notice of execution of a search warrant would
jeopardize an ongoing investigation or otherwise interfere with
lawful law-enforcement activities.
Section 353 DNA Identification of Terrorists
The statutory provisions governing the collection
of DNA samples from convicted federal offenders (42 U.S.C. §
14135a(d)) are restrictive, and do not include persons convicted for
the crimes that are most likely to be committed by terrorists. DNA
samples cannot now be collected even from persons federally
convicted of terrorist murders in most circumstances. For example,
49 U.S.C. § 46502, which applies to terrorists who murder people by
hijacking aircraft,
18 U.S.C. § 844(i), which applies to terrorists who
murder people by blowing up buildings, and 18 U.S.C. § 2332, which
applies to terrorists who murder U.S. nationals abroad, are not
included in the qualifying federal offenses for purposes of DNA
sample collection under existing law. This section addresses the
deficiency of the current law in relation to terrorists by extending
DNA sample collection to all persons convicted of terrorism
crimes.
Section 354 Grand Jury Matters
This section makes changes in Rule 6(e) of the
Federal Rules of Criminal procedure, relating to grand jury secrecy,
to address three problems. First, in national security and terrorism
cases, the amendment permits sharing of grand-jury information to
intelligence and national-defense personnel in terrorism and
national-security cases. Second, the amendment permits the
distribution of grand-jury information to law-enforcement personnel
without the current requirement of providing the judge supervising
the grand jury with a list of the names of every agent receiving the
information. This requirement can be very impractical in such cases;
the current investigation involves thousands of investigative
agents. Third, the amendment clarifies that "matters occurring
before the grand jury" does not include pre-existing subpoenaed
documents and the like. While a number of courts of appeals have
already adopted this interpretation, some courts have taken a
contrary view, inhibiting distribution of such items to
investigators in nationwide cases.
Section 355 Extraterritoriality
Under existing law, some terrorism crimes have
extraterritorial applicability, and can be prosecuted by the United
States regardless of where they are committed – for example,
offenses occurring outside the boundaries of the United States (see,
for example, 18 U.S.C. §§ 175 (biological weapons offense), 2332a
(use of weapons of mass destruction), and 2332b (terrorism
transcending national boundaries)). However, there are no explicit
extraterritoriality provisions in the statutes defining many other
offenses which are likely to be committed by terrorists. This
section helps to ensure that terrorist acts committed anywhere in
the world can be effectively prosecuted by specifying that there is
extraterritorial jurisdiction for the prosecution of all federal
terrorism offenses.
Section 356 Definition.
This amendment would explicitly extend the special
and maritime criminal jurisdiction of the United States to U.S.
diplomatic and consular premises and related private residences
overseas, to the extent an offense is committed by or against a U.S.
national. When offenses are committed by or against a U.S. national
abroad on U.S. government property, the country in which the offense
occurs may have little interest in prosecuting the case. Unless the
United States is able to prosecute such offenders, these crimes may
go unpunished. This section clarifies inconsistent caselaw to
establish that the United States may prosecute offenses committed in
its missions abroad, by or against its nationals.
TITLE IV – FINANCIAL INFRASTRUCTURE
Section 401 Laundering The Proceeds of Terrorism.
Money-laundering under 18 U.S.C. § 1956 involves
conducting or attempting to conduct a financial transaction knowing
that the property involved represents the proceeds of an unlawful
activity specified in subsection (c)(7) of the statute. Violations
of 18 U.S.C. § 2339A, which prohibits providing material support to
terrorists within the United States, are already included as
specified unlawful activities. This section provides more complete
coverage of money-laundering related to terrorism by adding as a
further predicate offense 18 U.S.C. § 2339B, which prohibits
providing material support or resources to foreign terrorist
organizations.
Section 402 Material Support For Terrorism
18 U.S.C. § 2339A prohibits providing material
support to terrorism. Under the statute’s definitional subsection,
the prohibited forms of support include (among many other things)
"currency or other financial securities." This section adds an
explicit reference to "monetary instruments" to the definition. The
purpose of the amendment is to make it clear that the definition is
to be taken expansively to encompass any and all forms of money,
monetary instruments, or securities.
Section 403 Assets of Terrorist Organizations
Current law does not contain any authority tailored
specifically to the confiscation of terrorist assets. Instead,
currently, forfeiture is authorized only in narrow circumstances for
the proceeds of murder, arson, and some terrorism offenses, or for
laundering the proceeds of such offenses. However, most terrorism
offenses do not yield "proceeds," and available current forfeiture
laws require detailed tracing that is quite difficult for accounts
coming through the banks of countries used by many terrorists.
This section increases the government's ability to
strike at terrorist organizations' economic base by permitting the
forfeiture of its property regardless of the source of the property,
and regardless of whether the property has actually been used to
commit a terrorism offense. This is similar in concept to the
forfeiture now available under RICO. In parity with the drug
forfeiture laws, Section 403 also authorizes the forfeiture of
property used or intended to be used to facilitate a terrorist act,
regardless of the source of the property. There is no need for a
separate criminal forfeiture provision because criminal forfeiture
is incorporated under current law by reference. The provision is
retroactive to permit it to be applied to the events of September
11, 2001.
Section 404 Technical Clarification Relating to Provision of
Material Support to Terrorism
The Trade Sanctions Reform and Export Enhancement
Act of 2000, Title IX of Public Law 106-387, creates exceptions in
the nation’s Trade Sanctions Programs for food and agricultural
products. This section makes it clear that the Trade Sanctions
Reform and Export Enhancement Act of 2000 does not limit 18 U.S.C.
§§ 2339A or 2339B. In other words, the exceptions to trade sanctions
for these items does not prevent criminal liability for the
provision of these items to support terrorist activity or to foreign
terrorist organizations as described in 2339A and 2339B. This is not
a change from existing law, but rather serves to foreclose any
possible misunderstanding or argument that the Act in some manner
trumps or limits the prohibition on providing material support or
resources to terrorism.
Section 405 Disclosure of Tax Information in Terrorism And
National-Security Investigations
Taxpayer records maintained by the Internal Revenue
Service (IRS) are subject to strict rules regarding disclosure to
other Government agencies, detailed in 26 U.S.C. § 6103. Although
the law currently allows for the disclosure of such information to
non-Treasury personnel in emergency circumstances, there is no
terrorism-specific exception. This section amends § 6103 to permit
disclosure of IRS-maintained information to Federal, State and local
law enforcement agencies who are part of a joint investigative team
with the Federal agency.
There is currently no mechanism for the release of
tax information to Department of Justice personnel involved in
counterterrorism investigations, nor a mechanism to allow those
Treasury Department components involved in counterterrorism analysis
to disseminate such information to the intelligence community. This
section amends § 6103 to allow for the release of tax information to
Department of Justice and Department of Treasury personnel involved
in counterterrorism investigations and analysis, and to permit this
information to be disseminated to the intelligence community.
Section 406 Restraint of Property Subject to Criminal
Forfeiture
Following the conviction in a criminal case, a
court may order the forfeiture of property traceable to the offense,
or it may enter a judgment in favor of the government for the value
of that property if the traceable property is unavailable. United
States v. Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999)
(criminal forfeiture order may take several forms: money judgment,
directly forfeitable property, and substitute assets). To make such
post-conviction remedies effective, it is necessary for the court to
be able to restrain assets pre-trial so that they are available, in
the event of conviction, to satisfy the forfeiture judgment.
This section slightly expands the scope of the
property that may be restrained pre-trial to ensure that there are
sufficient assets to satisfy a judgment. Although some courts
interpret current law to allow pre-trial restraint of non-traceable
assets, see In Re Billman, 915 F.2d 916 (4th Cir. 1990),
others only permit the government to restrain assets themselves
traceable to the offense, see United States v. Gotti, 155
F.3d 144 (2d Cir. 1998). The proposed amendment would recognize that
many assets are "fungible," and assist the government's ability to
deprive terrorists of their assets without proving the assets they
are able to locate are themselves traceable to the offense. Without
this amendment, in courts that take the narrower view of the law,
the government is unable to preserve the assets of major crime
figures during the trial to ensure that they are available to
satisfy a judgment in the event of a conviction. See Gotti,
supra (vacating pre-trial order restraining assets of organized
crime leader).
This section would permit pretrial restraint of
substitute assets only in criminal forfeiture cases, and only after
a grand jury has found probable cause to believe an offense giving
rise to a forfeiture has been committed. The property can actually
be forfeited to the government only after a petit jury has found the
offense proved beyond a reasonable doubt and returned a judgment of
conviction. The amendment is made to the Controlled Substances Act
because the provisions governing criminal forfeitures in drug cases
are incorporated, by statute, into all other criminal forfeiture
statutes. 28 U.S.C. §2461(c).
Section 407 Trade Sanctions Reform Act of 2000
The Trade Sanctions Reform Act of 200 requires the
President to end unilateral agricultural and medical sanctions with
respect to foreign entities and governments. The section would
authorize Presidential control of agricultural and medical exports
to all designated terrorists and narcotics entities wherever they
are located. The section would authorize the President to retain
sanctions with respect to exports of agricultural commodities,
medicine and medical devices to designated terrorist entities.
Section 408 Extraterritorial Jurisdiction
Financial crimes admits of no border, utilizing the
integrated global financial network for ill purposes. This provision
would apply the financial crimes prohibitions to conduct committed
abroad, so long as the tools or proceeds of the crimes passes
through or are in the United States.
TITLE V – EMERGENCY AUTHORIZATIONS
Section 501 Office of Justice Programs
This provision provides benefits to public safety
officers disabled as a result of the September 11 attacks, as well
as grants to the States for victim assistance. Consistent with 42
U.S.C. § 3796(b), the Department of Justice’s FY2001 appropriations
act places an aggregate cap of $2.4 million on the benefits that may
be paid to public safety officers who have become totally disabled.
A similar cap is found in both House and Senate FY2002 bills.
Section 501 removes all caps with respect to officers who were
totally disabled as a result of the September 11 attacks. This would
authorize OJP annually to pay approximately $120,000 to each
totally-disabled officer for life or while he remains totally
disabled. In the same way, the Department of Justice’s existing
grant programs to assist States in aiding crime victims provide
mechanisms to respond to the attacks, 42 U.S.C. § 10603b, but the
amounts available to meet the need are insufficient. Section 501
would authorize the spending of up to $700 million from balances in
the Crime Victims Fund (currently $1.4 billion) to assist States in
their victim-relief efforts. The $700 million could be dispatched
almost immediately to the States affected by the terrorist attacks,
providing them with resources to supplement their own expenditures
in aid of the victims.
Current law limits OJP’s authority to work directly
with service providers (as opposed to governments) under the
circumstances created by the September 11 attacks, and to coordinate
and manage emergency-response and other activities of its various
components. 42 U.S.C. § 10603b(b). The law also is unclear as to
proper execution of certain aspects of the Public Safety Officers
Benefits program. Section 501 would amend OJP’s authorities in these
areas, specifically by authorizing OJP to work directly with service
providers, in addition to governmental entities, to expedite
terrorism victim relief efforts, by enhancing its authority to
co-ordinate and manage emergency-response and other activities of
its various components, and by clarifying provisions governing the
provision of public safety officer benefits.
Section 502 Attorney General’s Authority to Pay
Rewards
Section 106 of the FY2001 DOJ appropriations act
places a per-reward cap of $2 million (and a $10 million annual
aggregate cap) on rewards that the Attorney General may offer. A
similar cap is found in both House and Senate FY2002 bills. Given
the increasing sophistication of terrorist acts, these limitations
may hamper the Justice Department’s ability to bring the guilty to
justice. Section 502 therefore would remove these caps. It would
authorize the Attorney General to offer or pay rewards of any amount
he or the President determines to be necessary for information or
assistance.
Section 503 Limited Authority to Pay Overtime
For the past several years the Department of
Justice Appropriations Acts have included provisions whereby
Immigration and Naturalization Service funds could not be used to
pay employees overtime pay in an amount in excess of $30,000 during
a calendar year. In light of recent national emergencies, the
Section will lift this cap in order to give the Attorney General
flexibility in determining whether to authorize overtime if
necessary. The Department anticipates that the Attorney General will
issue Departmental guidance regarding when it is appropriate to
authorize overtime pay in an amount that would exceed the
limitations that have been lifted.
Section 504 Secretary of State’s Authority to Pay
Rewards
This section amends section 36 of the State
Department’s Basic Authorities Act of 1956 to enhance the ability of
the Department of State to pay rewards to assist in bringing
terrorists to justice. The section would expand the bases for which
the Department could authorize payment of terrorism rewards,
eliminate the overall limitation on the amount of funds that can be
appropriated to the Department to carry out the rewards program, and
eliminate the requirement that the Department distribute funds
equally for the purpose of preventing acts of international
terrorism and narcotics trafficking. This section also raises the
amount the Department could offer and pay under the program from $5M
to $10M and allows the Secretary to authorize payment of an award
larger than $10M if the Secretary determines that doing so would be
important to the national security interests of the United
States.
Section 505 Assistance to Countries Co-Operating Against
International Terrorism
Subsection (a) of this provision would give
important new extraordinary authority for five years to the
President to provide assistance or take other beneficial actions in
favor of countries that support US efforts to fight international
terrorism. Subsection (b) would allow the President to provide
anti-terrorism assistance to entities, as well as countries, without
being subject to any restrictions. Subsection (c) allows the
President to provide assistance for non-proliferation and export
control activities without restrictions. Both (b) and (c) also
include illustrative lists of the types of assistance that may be
provided pursuant to this authority.