20 September 2001. See more recent 2nd draft of the proposed bill:
20 September 2001. Declan McCullagh writes:
I've posted a different version of the analysis at wartimeliberty.com.
It talks about a different version of the bill, and appears to be the latest one, provided by House Judiciary...
20 September 2001.
Source: Hardcopy from the Electronic Frontier Foundation.
This is the draft bill and an accompanying section-by-section analysis.
To combat terrorism and defend the Nation against terrorist acts, and for
IN THE HOUSE OF REPRESENTATIVES
September __, 2001
To combat terrorism and defend the Nation against terrorist acts, and for
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SEC. 1. SHORT TITLE.
This act may be cited as the "Mobilization Against Terrorism Act".
SEC. 2. TABLE OF CONTENTS.
The following is the table of contents for this Act:
Sec. 1 . Short title.
Sec. 2. Table of contents.
Title I -- INTELLIGENCE GATHERING
Subtitle A -- Electronic Surveillance
Sec. 101. Terrorism as a predicate act for authorization
Sec. 102. Emergency wiretap and pan register authorities.
See. 103. Modification of authorities relating to use of pan registers and trap and trace devices.
Sec. 104. Limitation on statutory exclusion.
Sec. 105. Seizure of voice-mail messages pursuant to warrants.
Sec, 106. Multi-point wiretaps.
Sec. 107. Procedures for interception.
Sec, 108. Authorized disclosure.
Sec. 109. Savings provision.
Sec. 110. Use of wiretap information from foreign governments.
Subtitle B -- Foreign Intelligence Surveillance and Classified Information
Sec. 151. Period of orders of electronic surveillance
of non-United States persons under foreign intelligence surveillance.
Sec. 152. Third-party assistance.
Sec. 153. Foreign intelligence Information.
Sec. 154. Foreign intelligence information sharing.
Sec. 155. Federal Bureau of Investigation.
Sec. 156. Definition.
See. 157. Pen register and trap and trace authorization.
Sec. 158. Business records.
See. 159. Reporting.
Sec. 160. Miscellaneous national-security authorities.
Title II -- IMMIGRATION
See. 201. Administrative removal of terrorists.
Sec. 202. Definitions relating to terrorism.
Sec. 203. Mandatory detention of suspected terrorists.
Sec. 204. Habeas corpus and judicial review.
Sec. 205. Felony punishment for violence committed along the United States border.
Sec. 206. Technical clarifications.
Title III -- CRIMINAL JUSTICE
Subtitle A -- Substantive Criminal Law
Sec. 301. No statute of limitation for prosecuting terrorism
Sec. 302. Alternative maximum penalties for terrorism crimes.
Sec. 303. Penalties for terrorist conspiracies.
Sec. 304. Terrorism crimes as RICO predicates.
Sec. 305. Biological weapons.
Sec. 306. Support of terrorism through expert advice or assistance.
See. 307. Concealment of terrorism crimes.
Sec. 308. Prohibition against harboring terrorists.
Sec. 309. Post-release supervision of terrorists.
Subtitle B -- Criminal Procedure
Sec. 351. Presumption against pretrial release in terrorism
Sec. 352. Administrative subpoenas in terrorism investigations.
Sec. 353. Single-jurisdiction search warrants for terrorism.
Sec. 354. Notice.
Sec. 355. Undercover investigation of terrorists.
Sec. 356. DNA identification of terrorists.
Sec. 357. Grand jury matters.
Title IV -- FINANCIAL INFRASTRUCTURE
Sec. 401. Laundering the proceeds of terrorism.
Sec. 402. Material support for terrorism.
Sec. 403. Forfeitures relating to terrorism.
Sec. 404. Technical clarification relating to provision of material support to terrorism.
Sec. 405. Disclosure of tax information in terrorism and national-security investigations.
Title V -- EMERGENCY AUTHORIZATIONS
Sec. 501. Office of Justice Programs.
Sec. 502. Attorney General's authority to pay rewards.
SEC. 101. TERRORISM AS A PREDICATE ACT FOR AUTHORIZATION OF WIRETAPS.
Section 2516(1) of title 18, United States Code, is amended --
(1) by redesignating paragraph (p), as so redesignated by section 434(2) of Public Law 104-132 (110 Stat, 1274), as paragraph (r); and
(2) by inserting after paragraph (p), as so redesignated by section 201(3) of division C of Public Law 104-208 (1110 Stat, 3009-565), the following new paragraph:"(q) any violation of section 2332d or of a provision listed in section 2332b(g)(5)(B) (relating to terrorism); or".
SEC. 102. EMERGENCY WIRETAP AND PEN REGISTER AUTHORITIES.
Title 18, United States Code, is amended --
(1) in section 2518(7)(a)(iii), by inserting ", or domestic terrorism or international terrorism (as d8fined in section 2331)," after "organized crime";
(2) in section 2331 --(A) in subsection by replacing "assassination" with mass destruction, assassination,"; and
(B) by inserting the following after subsection (4): "(5) the term 'domestic terrorism' means activities that --"(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; and
"(B) appear to be intended --"(i) to intimidate, coerce a civilian population;
"(ii to influence the policy of a government by intimidation or
"(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping."; and
(3) in section 3125(a) --(1) in subparagraph (1)(A), by striking "or" at the end;
(2) in subparagraph (1)(B), by striking the comma at the end and inserting a semicolon; and
(3) by inserting after subparagraph (1)(8) the following new subparagraphs:"(C) domestic terrorism or international terrorism defined in section 2331);
"(D) immediate threat to public health or safety, or to the national security interests of the United States; or
"(E) an ongoing attack on the integrity or availability of a protected computer, which attack would be an offense punishable under section 1030(c)(2)(C),"; and
(iv) by replacing "or any Deputy Assistant Attorney General," with "any Deputy Assistant Attorney General, or any United States Attorney.".
SEC. 103. MODIFICATION OF AUTHORITIES RELATING TO USE OF PEN REGISTERS AND TRAP AND TRACE DEVICES.
(a) GENERAL LIMITATION ON USE BY GOVERNMENTAL AGENCIES -- Section 3121(c) of title 18, United States Code, is amended --
(1) by inserting "or trap and trace device" after "pen register"; and
(2) by inserting ", routing, addressing," after "dialing"
(3) by striking "call processing' and inserting "the processing and transmitting of wire and electronic communications".
(b) ISSUANCE OF ORDERS --
(1) IN GENERAL -- Subsection (a) of section 3123 of title 18, United States Code, is amended to read as follows:"(a) IN GENERAL --"(1) Upon an application made under section 3122(a)(1), the court shall enter an ex-parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation. The order shall, upon service thereof, apply to any entity providing wire or electronic communication service in the United States whose assistance may facilitate the execution of the order."(2) Upon an application made under section 3122(a)(2), the court shall enter an ex-parte order authorizing the installation and use of a pen register or trap and trace device within the jurisdiction of the court, if the court finds that the State law-enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.".
(2) CONTENTS OF ORDER -- Subsection (b)(1) of section 3123 of title 18, United States Code, is amended --(A) in subparagraph (A) --(i) by inserting "or other facility" after telephone line"; and
(ii) by inserting before the semicolon at the end "or applied"; and
(B) by striking subparagraph (C) and inserting the following new subparagraph (C):"(C) the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied, and, in the case of an order authorizing installation and use of a trap and trace device under subsection (a)(2), the geographic limits of the order: and"
(3) NON-DISCLOSURE REQUIREMENTS -- Subsection (d)(2) of section 3123 of title 18, United States Code, is amended --(A) by inserting 'or'other facility" after "the line", and
(B) by striking ", or who has been ordered by the court" and inserting "or applied, or who is obligated by the order".
(1) COURT OF COMPETENT JURISDICTION -- Paragraph (2) of section 3127 of title 18, United States Code, is amended by striking subparagraph (A) and inserting the following new subparagraph (A):"(A) any district court of the United States (including a magistrate judge of such a court) or any United States Court of Appeals having jurisdiction over the offense being investigated; or".
(2) PEN REGISTER -- Paragraph (3) of section 3127 of title 18, United States Code, is amended --(A) by striking "electronic or other impulses" and all that follows through "is attached" and inserting "dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted"; and
(B) by inserting "or process" after "device" each place it appears.
(3) TRAP AND TRACE DEVICE -- Paragraph (4) of section 3127 of title 18, United States Code, is amended --(A) by inserting "or process" after "a device"; and
(B) by striking "of an instrument" and all that follows through the end and inserting "or other dialing, routing, addressing, and signaling information relevant to identifying the source of a wire or electronic communication.".
SEC. 104. LIMITATION ON STATUTORY EXCLUSION.
Section 2515 of title 18, United States Code, is amended by inserting after
"chapter" the following: ", provided, That the foregoing prohibition
shall not apply where the interception was pursuant to a good-faith reliance
on an order of a court of a State or of the United States".
SEC. 105. SEIZURE OF VOICE-MAIL MESSAGES PURSUANT TO WARRANTS.
Title 18, United States Code, is amended --
(1) in section 2510 --(A) in paragraph (1), by striking all the words after "commerce"; and
(B) in paragraph (14), by inserting "wire or" after "transmission of"; and
(2) in section 2703, by inserting "or wire" after "electronic" every place it occurs before "communication" or "communications".
SEC. 106. MULTI-POINT WIRETAPS.
Section 2518(11) of title 18, United States Code, is amended to read as follows:
"(11) The requirements of subsections (1)(b)(ii) and (3)(d), relating to the specification of facilities from which or the place where the communication is to be intercepted, do not apply if, in the case of an application with respect to the interception of wire, oral, or electronic communications --"(a) the application is by a federal investigative or law-enforcement officer, and is approved by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or an Assistant Attorney General;
"(b) the application contains a full and complete statement as to why such specification is not practical, and identifies the person committing the offense and whose communications are to be intercepted; and
"(c) the judge finds that the specification is not practical."
SEC. 107. PROCEDURES FOR INTERCEPTION.
Section 2518(3)(c) of title 18, United States Code, is amended by --
(1) "inserting "(i)" before "normal";
(2) inserting "or" after the semicolon; and
(3) adding at the end the following:"(ii) there is probable cause for belief that the wire, oral, or electronic communications are being used, or are about to be used, in connection with domestic terrorism or international terrorism (as defined in section 2331) or a matter representing an imminent threat to national security; and".
SEC. 108. AUTHORIZED DISCLOSURE.
Section 2510(7) of title 18, United States Code, is amended by adding ",
and (for purposes only of section 2517) any officer or employee of the executive
branch of the federal government" after "such offenses".
SEC. 109. SAVINGS PROVISION.
Section 2611(2)(f) of title 18, United States Code, is amended --
(1) by replacing "or chapter 121" with ", chapter 121, or chapter 206"; and
(2) by replacing "wire and oral" with "wire, oral, and electronic".
SEC. 110. USE OF WIRETAP INFORMATION FROM FOREIGN GOVERNMENTS.
(a) Chapter 119 of title 18, United States Code, Is amended by adding a new section 2514, as follows:
"2514. Use of extraterritorial interceptions by foreign governments,"(1) Use of information lawfully received under United States law from the Interception of wire, oral or electronic communications outside the United States by a foreign government without the connivance or participation of any officer or employee of the United States or person acting at the direction thereof shall be admissible, and the information or derivative information therefrom May be disclosed, in any proceeding held under the authority of the United States or any state or political subdivision thereof,
"(2) Information described in subsection (1) the government alleges could affect the national security shall have the same protection afforded by law to confidential informants."
(b) The chapter analysis for chapter 119 of title 18, United States Code,
is amended by inserting before the item relating to section 2515 the following:
"2514, Use of extraterritorial interceptions by foreign governments.".
SEC. 151. PERIOD OF ORDERS OF ELECTRONIC SURVEILLANCE OF NON-UNITED STATES PERSONS UNDER FOREIGN INTELLIGENCE SURVEILLANCE.
The Foreign Intelligence Surveillance Act of 1978 is amended by adding "or an agent of a foreign power, as defined in section 101(b)(1)(A)," --
(1) in section 105(e)(1) (50 U,S.C, 1805(e)(1)), after "or (3),"; and
(2) in section 304(d)(1) (50 U.S.C. 1824(d)(1)), after "101 (a),".
SEC. 152. THIRD-PARTY ASSISTANCE.
Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1805(c)(2)(B)) is amended by inserting ", or, 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, such
other persons," after "specified person".
SEC. 153. FOREIGN INTELLIGENCE INFORMATION.
The Foreign Intelligence Surveillance Act of 1978 is amended by replacing "that the" with "'that a" --
(1) in section 104(a)(7)(B) (50 U.S.C. 11804(a)(7)(B)); and
(2) in section 303(a)(7)(B) (50 U,S.C. 1823(a)(7)(13)).
SEC. 154. FOREIGN INTELLIGENCE INFORMATION SHARING.
Notwithstanding any other provision of law, it shall be lawful for foreign
intelligence information obtained as part of a criminal investigation (including,
without limitation, information subject to Rule 6(e) of the Federal Rules
of Criminal Procedure and information obtained pursuant to chapter 119 of
title 18, United States Code ) to be provided to any federal law-enforcement,
intelligence, or national-defense personnel.
SEC. 155. FEDERAL BUREAU OF INVESTIGATION.
The Foreign Intelligence Surveillance Act of 1978 is amended by inserting "the Director of the Federal Bureau of Investigation (or, in his absence, the Deputy Director thereof)," after "Affairs," --
(1) in section 105(a)(7) (50 U.S.C. 1805(a)(7)); and
(2) in section 303(a)(7) (50 U.S.C. 1823(a)(7)).
SEC. 156, DEFINITION.
Section 101(a) of the Foreign Intelligence Surveillance Act of 1978 (60 U.S.C. 1801 (a)) is amended by adding after paragraph (6) a new paragraph as follows:
"(7) any foreign-directed individual, group, or entity designated by the President as a foreign intelligence priority in accordance with the procedures described in Presidential Directive 35 (or its successor), or any foreign-directed individual, group, or entity engaged in a transnational activity so designated thereunder."
SEC. 157. PEN REGISTER AND TRAP AND TRACE AUTHORITY.
Section 402(c) of the Foreign Intelligence Surveillance Act of 19" (50 U.S.C. 1842(c)) is amended --
(1) at the end of paragraph (1), by adding "or";
(2) in paragraph (2) --(A) by inserting "from the telephone line to which the pen register or trap and trace device is to be attached, or the communication instrument or device to be covered by the pen register or trap and trace device" after "obtained"; and
(B) by replacing all the matter after "General" with a period; and
(3) by striking paragraph (3).
SEC. 158. BUSINESS RECORDS.
Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended to read as follows:
"§ 1861. AdmInistrative subpoenas."(a) In any investigation to gather foreign intelligence information or an investigation concerning international terrorism, which investigation is being conducted by the Federal Bureau of Investigation under such guidelines as the Attorney General may approve pursuant to Executive Order 12333 (or a successor order), the Attorney General may require the production of any records (including books, papers, documents, and other tangible things) that he considers relevant to the investigation.
"(b) In the case of contumacy by or refusal to obey a requirement issued pursuant to subsection (a) or sections 1805 or 1824, the Attorney General may invoke the aid of the Foreign Intelligence Surveillance Court. The court may issue an order requiring the person to appear before the Attorney General to produce records, if so ordered. Any failure to obey the order of the court may be punished as a contempt thereof."
SEC. 159. REPORTING.
Section 108(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U..S.C.
1808(a)) is amended by striking paragraph (2) and by redesignating paragraph
(1) as subsection (a).
SEC. 160. MISCELLANEOUS NATIONAL-SECURITY AUTHORITIES.
(a) Section 2709(b) of title 18, United States Code, is amended --
(1) by inserting "at Bureau headquarters or Special Agent in Charge in Bureau field offices" before ", may" the first place it occurs;
(2) in paragraph (1) --(A) by replacing "the Director" and all that follows through "offices" with "he"; and
(B) by replacing "made that" and all that follows through the end with "made that the name, address, length of service, and toll billing records sought are relevant to an authorized foreign counterintelligence investigation,"; and
(3) in paragraph (2) --(A) by replacing "the Director" and all that follows through "offices" with "he"; and
(B) by replacing "made that" and all that follows through the end with "made that the information sought is relevant to an authorized foreign counterintelligence investigation."
(b) Section 1114(a)(5)(A) of Public Law 95-630 (12 U.S.C, 3414(a)(5)(A)) is amended --
(1) by inserting "in a position not lower than Deputy Assistant Director at Bureau headquarters or Special Agent in Charge in Bureau field offices" after "designee"; and
(2) by striking all the matter following "purposes" up to the period; and
(c) Section 624 of Public Law 90-321 (15 U.S.C. 1681u) is amended --
(1) in subsection (a) --(A) by inserting "in a position not lower than Deputy Assistant Director at Bureau headquarters or Special Agent in Charge in Bureau field offices" after "designee" the first place it appears; and
(B) by replacing "writing that" and all that follows through the end with "writing such information is necessary for the conduct of an authorized foreign counterintelligence investigation.";
(2) in subsection (b) --(A) by inserting "(in a position not lower than Deputy Assistant Director at Bureau headquarters or Special Agent in Charge in Bureau field offices)" after "designee" the first place it appears; and
(B) by replacing "writing that" and all that follows through the end with "writing that such information is necessary for the conduct of an authorized foreign counterintelligence investigation."; and
(3) in subsection (c) --(A) by inserting "(in a position not lower than Deputy Assistant Director at Bureau headquarters or Special Agent in Charge in Bureau field offices)" after "designee"; and
(B) by replacing "camera that" and all that follows through "States." with "camera that the consumer report is necessary for the conduct of an authorized foreign counterintelligence investigation."
SEC. 201. ADMINISTRATIVE REMOVAL OF TERRORISTS.
Section 238 of the Immigration and Nationality Act of 1952 (8 U.S.C. 1228) is amended --
(1) in the heading, by replacing "Aliens Convicted Of Committing Aggravated Felonies" with "Certain Aliens";
(2) in the heading of subsection (a), by inserting "Institutional" before "Removal";
(3) in paragraph (a)(1), by replacing "241" each place it appears with "237",
(4) by amending the heading of subsection (b) to read "Proceedings for the Administrative Removal of Aliens";
(5) in subsection (b)(1), by inserting "or, in the case of an alien certified under paragraph (2)(G), under any provision of section 237," after a felony)";
(6) in subparagraph (b)(2)(A), by striking "or" at the end;
(7) at the end of subparagraph (b)(2)(B), by replacing the period with "; or", and by inserting thereafter a new subparagraph as follows:"(C) has been certified by the Attorney General, pursuant to paragraph (6), which certification is not reviewable except as provided in paragraph (b)(7).";
(8) at the end of paragraph (b)(5), by inserting two new paragraphs as follows:"(6) Recommendation to the Attorney General. -- The Commissioner, after consultation with the Director of the Federal Bureau of Investigation, may recommend to the Attorney General that an alien be certified as an alien the Service has reason to believe may further or facilitate acts of terrorism as described in section 237(a)(4)(a)(i), or 237(a)(4)(a)(iii), or 237(a)(4)(8), or any other activity that endangers the national security of the United States, which recommendation is not reviewable by any court.
"(7) Notwithstanding any other provision of law, judicial review of an order under subparagraph (b)(2)(C) shall be available only by a filing in the United States Court of Appeals for the District of Columbia,"
(9) by replacing the subsection (c) not redesignated as such by section 671 (b)(11 3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 with the following:"(c) Presumption Of Removability. -- An alien convicted of an aggravated felony, or certified pursuant to section 238(b)(2)(C), shall be conclusively presumed to be removable from the United States,";
(10) by redesignating the subsection (c) redesignated as such by section 671(b)(13) of Illegal Immigration Reform and Immigrant Responsibility Act of 1998 as subsection (d).
SEC. 202. DEFINITIONS RELATING TO TERRORISM.
The Immigration and Nationality Act of 1952 is amended --
(1) in Section 212(a)(3)(B) (8 U,S,C. 1182) --
(A) in clause (ii) --(i) by inserting "it had been" before "committed in the United States"; and
(ii) by replacing "or firearm" with ", firearm, or other weapon";
(B) by amending clause (iii) to read as follows:"(iii) Engage in terrorist activity defined
"As used in this chapter, the term "engage in terrorist activity" means, in an individual capacity or as a member of an organization --"(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, an act of terrorist activity-,
"(II) to prepare or plan a terrorist activity;
"(III) to gather information on potential targets for terrorist activity;
"(III)[duplication] to solicit funds or other things of value for terrorist activity or for any terrorist organization;
"(IV) to solicit any individual for membership in a terrorist organization, terrorist government, or to engage in a terrorist activity; or
"(V) otherwise to commit an act that the actor knows, or reasonably should know, affords material support (including, without limitation, a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons, explosives, or training), to any organization that the actor knows, or reasonably should know, is a terrorist organization, or to any individual whom the actor knows, or reasonably should know, has committed or plans to commit any terrorist activity.
"This clause shall not be construed to encompass any material support the alien affords to an individual who had previously committed terrorist activity if the alien establishes by clear and convincing evidence that such support was afforded only after that individual had permanently and publicly renounced and rejected the use of, and had ceased to commit or support, any terrorist activity."; and
(C) by adding a new clause after clause (iv) to read as follows;"(v) Terrorist organization defined
"As used in clause (iii), the term "terrorist organization" means any organization --"(I) designated or redesignated under section 219;
"(II) that commits or materially supports, or that has a significant subgroup that commits or materially supports, terrorist activity, regardless of any other activities conducted by the organization or its subgroups;
"(III) that intends to commit or materially support, or that has a significant subgroup.that intends to commit or materially support, terrorist activity, regardless of any other activities conducted by the organization or its subgroups; or
"(IV) that has committed or materially supported, or that has a significant subgroup that has committed or materially supported, terrorist activity, regardless of any other activities conducted by the organization or subgroups, unless the alien establishes by clear and convincing evidence that the material support was only afforded after the organization and all of its significant subgroups had permanently and publicly renounced and rejected the use of, and had ceased to commit or support, any terrorist activity."; and
(2) in Section 219(a) (8 U.S.C. 1189(a)) --
(A) in subparagraph (1)(B), by inserting "or terrorism (as defined in section 140(d)(2) of the State Department Authorization Act, Public Law 100-204 (22 U.S.C. 2656f(d)(2)))" after "212(a)(3)(B))";
(B) in subparagraph (I )(C), by inserting "or terrorism" after "terrorist activity";
(C) by amending subparagraph (2)(A) to read as follows:"(A) NOTICE. --"(i) Seven days before making a designation under this subsection, the Secretary shall, by classified communication, notify the Speaker and Minority Leader of the House of Representatives, the President pro tempore, Majority Leader, and Minority Leader of the Senate, and the members of the relevant committees, in writing, of the intent to designate an organization under this subsection, together with the findings made under paragraph (1) with respect to that organization, and the factual basis therefor.
"(ii) The Secretary shall publish the designation in the Federal Register seven days after providing the notification under clause (i).";
(D) in clause (2)(13)(i), by replacing "subparagraph (A)" with "subparagraph (A)(ii)";
(E) in subparagraph (2)(C), by replacing "paragraph (2)" with "paragraph (2)(A)(i)";
(F) In subparagraph (3)(B), by replacing "subsection (c)" with "subsection (b)":
(G) in subparagraph (4)(B), by inserting after the first sentence the following:"The Secretary also may redesignate such organization at the end of any 2-year redesignation period (but not sooner than 60 days prior to the termination of such period) for an additional 2-year period upon a finding that the relevant circumstances described in paragraph (1) still exist. Any redesignation shall be effective immediately following the end of the prior 2-year designation or redesignation period unless a different effective date is provided in such redesignation.";
(H) in subparagraph (6)(A),(i) by inserting "'or a redesignation made under paragraph (4)(B)" after "paragraph (1)";
(ii) in clause (i), by(I) inserting "or redesignation" after "designation" the first time it appears: and
(II) striking "of the designation"; and
(iii) in clause (ii), by striking "of the designation";
(I) in subparagraph (6)(B), by(i) replacing "through (4)" with "and (3)"; and
(ii) inserting the following new sentence at the end:"Any revocation shall take effect an the date specified in the revocation or upon publication in the Federal Register if no effective date is specified.";
(J) in paragraph (7), by inserting ", or the revocation of a redesignation under paragraph (6)," after "paragraph (5) or (6)"; and
(K) in paragraph (8), by(i) replacing. "paragraph (1)(B)" with "paragraph (2)(B), or if a redesignation under this subsection has become effective under paragraph (4)(B)";
(ii) inserting "or an alien in a removal proceeding" after "criminal action"; and
(iii) inserting "or redesignation" before "as a defense".
SEC. 203. MANDATORY DETENTION OF SUSPECTED TERRORISTS.
Section 236 of the Immigration and Nationality Act is amended --
(1) by redesignating subsection (e) as (f) and by inserting before the same the following new subsection:"(e) Detention of Terrorist Aliens. --"(1) Custody. -- Upon concurrence with such recommendation, the Attorney General shall take into custody any alien who is certified under paragraph (3).
"(2) Release. -- The Attorney General shall maintain custody any such alien until such alien is removed from the United States. Such custody shall be maintained irrespective of any relief from removal the alien may be eligible for or granted until the Attorney General deems such alien is no longer an alien who may be certified pursuant to paragraph (3).
"(3) Certification. -- The Commissioner, after consultation with the Director of the Federal Bureau of Investigation, may recommend to the Attorney General that an alien be certified as an alien the Service has reason to believe may further or facilitate acts of terrorism as described in section 237(a)(4)(A)(i), or 237(a)(4)(A)(iii), or 237(a)(4)(B), or any other activity that endangers the national security of the United States. Such recommendation is not reviewable by any court."
SEC. 204. HABEAS CORPUS AND JUDICIAL REVIEW.
Except as provided herein and notwithstanding any other provision of law, including section 2241 of title 28, United States Code, no court shall have jurisdiction to review, by habeas corpus petition or otherwise, any action taken, administrative proceeding brought, or determination made --
(1) to detain an alien under section 203 of this Act; without regard to the place of detention, judicial review of the detention of suspected terrorists is available only by habeas corpus petition filed in the United States District Court for the District of Columbia, and only upon issuance of a final order of removal pursuant,to sections 238 or 240 of the Immigration and Nationality Act of 1952; and
(2) to remove an alien under section 201 of this Act; without regard to the place in which the immigration court or other administrative proceedings were conducted, judicial review of an order of removal of an alien terrorist entered under section 238 or 240 of the Immigration and Nationality Act of 1952, and of any cause of claim raised with respect to the proceedings which resulted in such order, is available only by petition for review filed in the United States Court of Appeals for the District of Columbia Circuit, in accordance with the procedures and limitations specified in section 242 of such Immigration and Nationality Act.
SEC. 205. FELONY PUNISHMENT FOR VIOLENCE COMMITTED ALONG THE UNITED STATES BORDER.
(a) IN GENERAL. -- Chapter 27 of title 18, United States Code, is amended by adding at the end the following:
"Sec. 554. Violence while eluding inspection or during violation of arrival, reporting, entry, or clearance requirements"(a) IN GENERAL -- Whoever attempts to commit or commits a crime of violence or recklessly operates any conveyance during and in relation to --"(1)"(A) attempting to elude or eluding immigration, customs, or agriculture inspection; or
"(B) failing to stop at the command of an officer or employee of the United States charged with enforcing the immigration, customs, or other laws of the United States along any border of the United States; or
"(2) an intentional violation of arrival, reporting, entry, or clearance requirements, as sat forth in section 107 of the Federal Plant Pest Act (7 U.S.C. 150ff), section 10 of the Act of August 20, 1912 (commonly known as the 'Plant Quarantine Act' (7 U.S.C. 164a)), section 7 of the Federal Noxious Weed Act of 1974 (7 U.S.C. 2807), section 431, 433, 434, or 459 of the Tariff Act of 1930 (19 U.S.C. 1431, 1433, 1434, and 1459), section 10 of the Act of August 30, 1890 (26 Stat. 417; chapter 839 (21 U.S.C. 105)), section 2 of the Act of February 2, 1903 (32 Stat. 792; chapter 349 21 U.S.C. 111), section 4197 of the Revised Statutes (46 U.S.C, App. 91), or sections 231, 232, and 234 through 238 of the Immigration and Nationality Act (8 U.S.C. 1221, 1222, and 1224 through 1228) shall be --"(A) fined under this title, imprisoned not more than 5 years, or both;
"(B) if bodily Injury (as defined in section 1365(g)) results, fined under this title, imprisoned not more than 10 years, or both; or
"(C) if death results, fined under this title, imprisoned for any term of years or for life, or both, and may be sentenced to death.
"(b) CONSPIRACY -- If 2 or more persons conspire to commit an offense under subsection (a), and 1 or more of those persons do any act to effect the object of the conspiracy, each shall be punishable as a principal, except that a sentence of death may not be imposed pursuant to this subsection.".
(b) CLERICAL AMENDMENT -- The analysis for chapter 27 of title 18, United States Code, is amended by adding at the end the following: "654. Violence while eluding inspection or during violation of arrival. reporting, entry, or clearance requirements,".
(c) RECKLESS ENDANGERMENT -- Section 111 of title 18, United States Code, is amended --
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after Subsection (a) the following:
"(b) RECKLESS ENDANGERMENT -- Whoever --"(1) knowingly disregards or disobeys the lawful authority or command of any officer or employee of the United States charged with enforcing the immigration, customs, or other laws of the United States along any border of the United States while engaged in, or on account of, the performance of official duties of that officer or employee; and
"(2) as a result of disregarding or disobeying an authority or command referred to in paragraph (1 ), endangers the safety of any person or property, shall be fined under this title, imprisoned not more than 6 months, or both.".
SEC. 206. TECHNICAL CLARIFICATIONS.
(a) Notwithstanding any other provision of law, the amendments made by this title shall apply to all aliens, regardless of whether any such aliens entered the United States before or after the date of the enactment of this Act, or whether any relevant activity by any such aliens occurred before or after such date, and shall apply to all past, pending, or future deportation, exclusion, removal, or other immigration proceedings.
(b) If any provision of this Act or any application of any such provision
to any person or circumstance be held to be unconstitutional, the remainder
of this Act, and the application of such remainder to any person or circumstance
shall not be affected thereby.
SEC. 301. NO STATUTE OF LIMITATION FOR PROSECUTING TERRORISM OFFENSES.
(a) IN GENERAL. -- Section 3286 of title 18, United States Code, is amended to read as follows:
"§ 3286, Terrorism offenses
"Notwithstanding any other provision of law, an indictment may be found or an information instituted for any offense described in section 2332b(g)(5)(B) at any time without limitation.".
(b) CONFORMING AMENDMENTS. --
(1) The analysis for chapter 213 of title 18, United States Code, is amended by amending the item relating to section 3286 to read as follows:"3286, Terrorism offenses."; and
(2) section 2332b(g)(5)(B)(iii) of title 18, United States Code, is amended by inserting after "piracy)" the following:", section 46504 (relating to interference with a flight crew), section 46505 (relating to carrying a weapon or explosive on aircraft), section 46506 (relating to application of certain criminal laws to acts on aircraft),".
SEC. 302. ALTERNATIVE MAXIMUM PENALTIES FOR TERRORISM CRIMES.
Section 3559 of title 18, United States Code, is amended by adding at the end the following:
"(e) Authorized terms of imprisonment for terrorism crimes. -- A person convicted of any offense listed in section 2332b(g)(5)(B) may be sentenced to imprisonment for any term of years or for life, notwithstanding any maximum term of imprisonment specified in the law describing the offense. The authorization of Imprisonment under this subsection is supplementary to, and does not limit, the availability of any other penalty authorized by the law describing the offense, Including the death penalty, and does not limit the applicability of any mandatory minimum term of imprisonment, including any mandatory life term, provided by the law describing the offense.".
SEC. 303. PENALTIES FOR TERRORIST CONSPIRACIES.
Chapter 113B of title 18, United States Code, is amended --
(1) by inserting after section 2332b the following:
"§ 2332c. Attempts and conspiracies"Any person who attempts or conspires to commit any offense described in section 2332b(g)(5)(B)shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy,"; and
(2) in the analysis for the chapter, by inserting after the item relating to section 2332b the following:
"2332c. Attempts and conspiracies.".
SEC. 304. TERRORISM CRIMES AS RICO PREDICATES.
Section 1961(1) of title 18, United States Code, is amended --
(1) by striking "or (F)" and inserting "(F)"; and
(2) by striking "financial gain;" and inserting the following: "financial gain, or (G) any act that is indictable under any provision listed in section 2332b(g)(5)(B) (relating to terrorism);".
SEC. 305. BIOLOGICAL WEAPONS.
Chapter 10 of title 18, United States Code is amended --
(1) in section 175 --(A) In subsection (b) --(i) by striking, "section, the"and inserting "section -- (1) the";
(ii) by striking "does not include" and inserting "includes";
(iii) by inserting "other than" after "system for; and
(iv) by striking "purposes." and inserting the following: "purposes, and (2) the terms 'biological agent' and 'toxin' do not encompass any biological agent or toxin that is in its naturally-occurring. environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source.";
(B) by redesignating subsection (b) as subsection (c): and
(C) by inserting after subsection (a) the following:"(b) Additional offense. -- Whoever knowingly possesses any biological agent, toxin, or delivery system of a type or in a quantity that, under the circumstances, is not reason ably justified by a prophylactic, protective or other peaceful purpose, shall be fined under this title, imprisoned not more than 10 years, or both. Knowledge of whether the type or quantity of any biological agent, toxin, or delivery system is reasonably justified by a peaceful purposes not an element of the offense.";
(2) after section 175a, by adding a now section as follows:"§ 175b. Possession by restricted persons"(a) No person described in section 922(g) shall ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any biological agent or toxin, or receive any biological agent or toxin that has been shipped or transported in interstate or foreign commerce, if the biological agent or toxin is listed as a 'select agent' in subsection (j) of section 72.6 of title 42, Code of Federal Regulations, pursuant to section 511(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1995 (Public Law 104-132), and is not exempted under subsection (h) of such section 72.6, or appendix A of part 72 of such title; except that the term "select agent" does not include any such biological agent or toxin that is in its naturally-occurring environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source. The prohibition of this section shall also apply to an alien (other than all alien lawfully admitted for permanent residence) who is a national of a country as to which the Secretary of State, pursuant to section 60) of tile Export Administration Act, as amended (50 U.S.C. App, 2405(j)) (or its successor law), section 620A of chapter 1 of part M of the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2371), or section 40(d) of chapter 3 of the Arms Export Control Act, as amended (22 U.S.C. 2780(d)), has made a determination, which remains in effect, that such country has repeatedly provided support for acts of international terrorism.
"(b) Whoever knowingly violates this section shall be fined as provided in this title, imprisoned not more then ten years, or both."; and
(3) in the chapter analysis, by inserting after the item relating to section 175a the following:"175b. Possession by restricted persons.".
SEC. 306. SUPPORT OF TERRORISM THROUGH EXPERT ADVICE OR ASSISTANCE.
Section 2339A of title 18, UnIted States Code, is amended --
(1) in subsection (a), by striking "section 32" and all that follows through "49" and inserting "any provision listed in section 2332b(g)(5)(B)"; and
(2) in subsection (b), by inserting "expert advice or assistance" after "training,".
SEC. 307. CONCEALMENT OF TERRORISM CRIMES.
Section 4 of title 18, United States Code, is amended by inserting before
the period the following: ", or if the felony is an offense described in
section 2332b(g)(5)(13), shall be fined tinder this title or imprisoned not
more than 10 years, or both.".
SEC. 308. PROHIBITION AGAINST HARBORING TERRORISTS.
Section 792 of title 18, United States Code, is amended by inserting before
"shall be fined" the following: "or an offense described in section
SEC. 309. POST-RELEASE SUPERVISION OF TERRORISTS.
Section 3583 of title 18, United States Code, is amended by adding at the end the following:
"(j) Supervised release terms for terrorism offenses. -- Notwithstanding subsection (b), the authorized terms of supervised release for any offense described in section 2332b(g)(5)(B) are any term of years or life.".
SEC. 351. PRESUMPTION AGAINST PRETRIAL RELEASE IN TERRORISM CASES.
Section 3142(e) of title 18, United States Code, is amended in the final
sentence by striking "or an offense under section 924(c), 956(a), or 2332b
of title 18 of the United States Code" and inserting: ", an offense under
section 924(c) or 956(a) of this title, or an offense described in section
2332b(g)(5)(8) of, this title.".
SEC. 352. ADMINISTRATIVE SUBPOENAS IN TERRORISM INVESTIGATIONS.
(a) IN GENERAL -- Chapter 1128 of title 18, United States Code, is amended by inserting after section 2332a the following:
"Sec. 2332f. Administrative subpoenas in investigations of Federal crimes of terrorism"(a) AUTHORIZATION OF USE -- In any investigation relating to his functions under this chapter with respect to Federal crimes of terrorism (as defined in section 2332b), the Attorney General may subpoena witnesses, compel the attendance and testimony of witnesses, and require the production of any records (including books, papers, documents, electronic data, and other tangible things that constitute or contain evidence) that he finds relevant or material to the investigation. A subpoena under this section shall describe the records or items required to be produced and prescribe a return date within a reasonable period of time within which the records or items can be assembled and made available. The attendance of witnesses and the production of records may be required from any place in any State or in any territory or other place subject to the jurisdiction of the United States at any designated place of hearing; except that a witness shall not be required to appear at any hearing more than 500 miles distant from the place where he was served with a subpoena. Witnesses summoned under this section shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States.
"(b) SERVICE -- A subpoena issued under this section may be served by any person designated in the subpoena as the agent of service. Service upon a natural person may be made by personal delivery of the subpoena to him or by certified mail with return receipt requested. Service may be made upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, by delivering the subpoena to an officer, to a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. The affidavit of the person serving the subpoena entered by him on a true copy thereof shall be sufficient proof of service.
"(c) ENFORCEMENT -- In the case of the contumacy by, or refusal to obey a subpoena issued to, any person, the Attorney General may invoke the aid of any court of the United States within whose jurisdiction the investigation is carried on or the subpoenaed person resides, carries on business, or may be found, to compel compliance with the subpoena. The court may issue an order requiring the subpoenaed person, in accordance with the subpoena, to appear, to produce records, or to give testimony touching the matter under investigation. Any failure to obey the order of the court may be punished by the court as contempt thereof. Any process under this subsection may be served in any judicial district in which the person may be found.
"(d) NON-DISCLOSURE REQUIREMENTS --"(1) IN GENERAL -- Except as otherwise provided by law, the Attorney General may apply to a court for an order requiring the party to whom an administrative subpoena is directed to refrain from notifying any other party (except such party's attorney) of the existence of the subpoena (and/or any related court order) for such period as the court may deem appropriate.
"(2) ORDER -- The court shall enter such order if it determines that there is reason to believe that notification of the existence of the administrative subpoena will result in --"(A) endangerment of the physical safety of an individual;
"(B) flight from prosecution;
"(C) destruction of or tampering with evidence;
"(D) intimidation of potential witnesses; or
"(E) other serious jeopardy to an investigation, or undue delay of a trial,
"(e) IMMUNITY FROM CIVIL LIABILITY -- Any person, including officers, agents, and employees, who in good faith produce the records or items requested in a subpoena shall not be liable in any court of any State or the United States to any customer or other person for such production or for non-disclosure of that production to the customer or other person, in compliance with the terms of a court order for non-disclosure.".
(b) TECHNICAL AND CONFORMING AMENDMENT -- The analysis for chapter 113B of title 18, United States Code, is amended by inserting after the item relating to section 2332e the following:
"Sec. 2332f. Administrative subpoenas in investigations of Federal crimes of terrorism".
SEC. 353. SINGLE-JURISDICTION SEARCH WARRANTS FOR TERRORISM.
Rule 41 (a) of the Federal Rules of Criminal Procedure is amended by inserting after "executed" the following: ", and (3) in an investigation of domestic terrorism or international terrorism (as defined in section 2331 of title 18, United States Code), by a federal magistrate judge in any district in which activities related to the terrorism may have occurred, for a search of property or for a person within or outside the district".
SEC. 354. NOTICE.
Section 3103a of title 18, United States Code, is amended by adding at the
end the following: "With respect to any issuance of a warrant or court order
under this section or any other law or rule to search for and seize any property
or material that constitutes evidence of a criminal offense in violation
of the laws of the United States, any notice required, or that may be required,
to be given may be delayed pursuant to the standards, terms, and conditions
set forth in section 2705, unless otherwise expressly provided by statute.".
SEC. 355. UNDERCOVER INVESTIGATION OF TERRORISTS.
Section 530B of title 28, United States Code, is amended by adding at the end following:
"(d) Notwithstanding subsection (a), this section does not limit the authority
of an attorney for the Government to engage in any conduct consistent with
the Constitution of the United States that involves advising or participating,
directly or indirectly, in any covert or undercover investigation, or in
the questioning of any suspect or defendant,".
SEC. 356. DNA IDENTIFICATION OF TERRORISTS.
Section 3(d) of the DNA Analysis Backlog Elimination Art of 2000 (42 U.S.C. 14135b(d)) is amended to read as follows;
"(d) QUALIFYING FEDERAL OFFENSES. -- The offenses that shall be treated for purposes of this section as qualifying Federal offenses are --"(1) all felonies, and
"(2) all offenses under chapter 109A of title 18, United States Code.".
SEC. 357. GRAND JURY MATTERS.
(a) Rule 6(e)(3)(A) of the Federal Rules of Criminal Procedure. is amended --
(1) by striking "and" at the and of subdivision (i);
(2) by striking "." at the end of subdivision (11) and inserting "; and";
(3) by inserting after subdivision (ii) the following:"(iii) federal law-enforcement, intelligence, or national-defense personnel where the matters pertain to international terrorism or domestic terrorism (as defined In section 2331 of title 18, United States Code), or a matter of national security.".
(b) Rule 6(e)(2) of the Federal Rules of Criminal Procedure is amended by
inserting "(which term shall not be understood to include subpoenaed documents,
records, instruments, or any tangible Items)" after "jury".
SEC. 401. LAUNDERING THE PROCEEDS OF TERRORISM.
Section 1956(c)(7)(D) of title 18, United States Code, Is amended by inserting
"or 2339B" after "2339A".
SEC. 402. MATERIAL SUPPORT FOR TERRORISM.
Section 2339A of title 18, United States, Code, is amended by replacing "or
other financial securities" with "or monetary instruments or financial securities
of any kind whatsoever".
SEC. 403. FORFEITURES RELATING TO TERRORISM.
Chapter 48 of title 18, United States Code, is amended --
(1) in section 981 (a)(1) by adding a new subparagraph after subparagraph (F) as follows:"(G) Any property, real or personal, used to commit or facilitate the commission of, derived from, or otherwise involved in, a violation of a provision listed in section 2332b(g)(b)(5); and
(2) in section 982(a), by adding a new paragraph after paragraph (8) as follows:"(9) The court, in imposing sentence on a person convicted of an offense listed in section 2332b(g)(5)(B), shall forfeit to the United States any property, real or personal, used to commit or facilitate the commission of, derived from, or otherwise involved in, the offense.".
SEC. 404. TECHNICAL CLARIFICATION RELATING TO PROVISION OF MATERIAL SUPPORT TO TERRORISM.
No provision of title IX of Public Law 106-387 shall be understood to limit
or otherwise affect section 2339A or 2339B of title 18, United States Code.
SEC. 405. DISCLOSURE OF TAX INFORMATION IN TERRORISM AND NATIONAL-SECURITY INVESTIGATIONS.
Section 6103 of title 26, United States Code, is amended --
(1) In paragraph (i)(3), by adding a now subparagraph after subparagraph (6) as follows:"(C) Response to Terrorist Incidents and Threats -- The Secretary may disclose returns or return information to the extent necessary to assist officers or employees of any Federal, State or local law enforcement agency involved in the response to or the investigation of terrorist incidents, threats, or activities.", and
(2) in subsection (1), by adding a new paragraph after paragraph (6), as follows,"(7) Information Concerning Terrorist Activities.--Returns and return information shall be open to inspection by, or disclosure to, officers and employees of the Department of Justice and the Department of Treasury engaged in the collection or analysis of intelligence and counterintelligence information concerning terrorist organizations or activities, and such returns and return information may be disseminated to other intelligence agencies only for use in counterterrorist analysis and investigation into terrorist activities."
SEC. 501. OFFICE OF JUSTICE PROGRAMS.
(a) In connection with the airplane hijackings and terrorist acts (including, without limitation, any related search, rescue, relief, assistance, or other similar activities) that occurred on September 11, 2001, in the United States --
(1) such sums are appropriated as may be necessary for the payment of benefits under section 1201 (b) of the Omnibus Crime Control and Safe Streets Act of 1968, notwithstanding the annual aggregate limitation contained therein, with respect to the permanent and total disability of any eligible public safety officer directly resulting therefrom; and
(2) for grants, to supplement funds otherwise available to provide grants to States for compensation and assistance in accordance with section 1404B(b) of the Victim Compensation and Assistance Act, not to exceed $700,000,000 (at the discretion of the Attorney General), which shall remain available until expended, is hereby appropriated from balances in the Crime Victims Fund, to be allocated among the affected States in accordance with estimates, based on State laws;
provided, That such amounts as may be made available by this section are designated as an emergency requirement pursuant to section 251 (b)(2)(A) of the Balanced Budget and Emergency Deficit Control Act of 1985.
(b) Section 112 of title I of section 101 (b) of division A of Public Law 105-277 and section 108(a) of appendix A of Public Law 106-113 (113 Stat. 1501A-20) are amended -- (1) after "that Office", each place it occurs, by inserting "(including, notwithstanding any contrary provision of law (unless the same should expressly refer to this section), any organization that administers any program established in title 1 of Public Law 90-351)"; and (2) by inserting "functions, including any" after "all".
(c) Section 1404B(b) of the Victim Compensation and Assistance Act is amended after "programs" by inserting ", to victim service organizations, to public agencies (including Federal, State, or local governments), and to non-governmental organizations that provide assistance to victims of crime,".
(d) Section 1 of H.R. 2882 of 2001, upon its taking affect as law, is amended
in section 1 (a) by striking ", (d),", by inserting "(containing sufficient
information to permit a proper distribution pursuant to such section 1201(a),
where relevant)" before "by a", and by replacing all the matter after
"certification," with "benefits under such section 1201(a) and the first
year's benefits under such section 1201(b).".
SEC. 502. ATTORNEY GENERAL'S AUTHORITY TO PAY REWARDS.
No reward by the Attorney General in connection with airplane hijackings or terrorist acts shall be subject to any per- or aggregate reward spending limitation established by law, unless the same should expressly refer to this section, and no reward paid pursuant to any such offer shall count toward any such aggregate reward spending limitation.
[16 pages. Handwritten note on page 1: "A.G. Analysis."]
MOBILIZATION AGAINST TERRORISM ACT
SECTION -BY-SECTION ANALYSIS
TITLE I: INTELLIGENCE GATHERING
Subtitle A: Electronic Surveillance
Section 101 Terrorism as a Predicate Act For Authorization of Wiretaps
This section will help to investigate and prevent acts of terrorism like those of September 11, 2001, by broadening the range of offenses commonly committed in terrorist incidents for which law enforcement may seek court orders to intercept related communications. Under current law, many of the crimes most frequently associated with terrorism are not wiretap predicates, such as aircraft hijacking (49 U.S.C. § 46502), hostage taking (18 U.S.C. § 1203), terrorist violence against U.S. nationals abroad (18 U.S.C. § 1203), support to terrorists (18 U.S.C. 2339A). The section remedies these omissions by adding as covered offenses under the wiretap provisions the major offenses which are most frequently involved in terrorist activities -- listed in 18 U.S.C. § 2332b(g)(5)(B) -- and the offense under 18 U.S.C. § 2332d of engaging in financial transactions with governments that support international terrorism.
Section 102 Emergency Wiretap and Pen Register Authorities
Current law allows the use of wiretaps and pen registers without prior judicial approval in emergency situations involving immediate dangers of death or serious injury or organized crime. This section extends these emergency authorities to cases involving domestic or international terrorism. The section adds a new definition of "domestic terrorism" for this purpose in 18 U.S.C. § 2331, and utilizes the current definition of "international terrorism" in that provision.
Section 103 Modification
of Authorities Relating to Use of Pen Registers And Trap And
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 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 in the United States." Thus, the government would be able to obtain one pen register/tap and trace order that could be executed anywhere in the country. This amendment would increase monitoring 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 enable the government to track terrorist communications regardless of the media through which they are conveyed.
Section 104 Limitation on Statutory Exclusion
This section creates an exception to the statutory exclusionary rule in the wiretap statute. Currently, 18 U.S.C. § 2515 requires the exclusion in judicial and administrative proceedings of any communication intercepted in violation of the wiretap statutes; it rewards terrorists when the government commits an error, even if it does so in good faith. The section amends § 2515 by adding a "good faith" exception to the statutory exclusionary rule. The exclusion requirement would not apply where an officer obtains evidence from a court-ordered interception later found to be deficient, so long as the order was not obtained in bad faith. This amendment harmonizes the wiretap statute's exclusionary rule with the Supreme Court's decision regarding the Fourth Amendment exclusionary rule in United States v. Leon, 468 U.S. 897 (1984) (holding that the Fourth Amendment exclusionary rule does not require the suppression of evidence obtained by officers acting in objectively reasonable reliance on a judicially issued search warrant that is ultimately was found to be invalid),
Section 105 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) defines "wire communication" to include "any electronic storage of such communication." Hence, the government must apply for a Title III wiretap order before it can obtain consensually recorded voice mail messages. The section amends the definition of "wire communication" so that it no longer includes electronic records of prior communications. It also amends 18 U.S.C. § 2703 to specify that the government, by obtaining a search warrant, may gain access to "wire," as well as "electronic," communications. These changes will permit law enforcement personnel to use the more expedient search warrant process when they wish to seize voice mail messages being held by service providers for retrieval by a customer.
Section 106 Multi-Point Wiretaps
This section creates a single uniform standard for "multi-point" wiretaps and oral communications interceptions ("bugs"). Multi-point electronic surveillance is aimed at a particular individual, rather than at a particular facility or location (e.g., a telephone or a computer). The wiretap statute currently permits the government to intercept the oral or wire communications of specific suspects, without requiring that it identify the specific facilities the suspects are using. 18 U.S.C. § 2518(11) and (12). At present, those provisions impose different standards depending on whether law enforcement seeks a wiretap or a bug. The legislation would abolish the wiretap / bug distinction and create a uniform standard applicable to both: law enforcement may obtain a multipoint order if it would be impractical to specify the facility to be monitored. Conforming the wiretap standard to the more straightforward standard for oral communications interceptions is warranted in light of the current ability of terrorists and other criminals to modify their communications devices quickly.
The section fully preserves Title III's current procedures to minimize any incidental overhearing of non-criminal conversations.
Section 107 Procedures For Interception
This section facilitates the investigation of terrorist crimes by providing an alternative to the current "last resort" condition of seeking wiretaps, which requires prior unsuccessful use of "normal investigative procedures" or a showing that such procedures are likely to be unsuccessful or too dangerous. It makes sufficient a showing of probable cause that the communications to be intercepted are being used, or about to be used, in connection with domestic or international terrorism or an imminent threat to national security.
Section 108 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) allows information obtained via a wiretap to be disclosed only to the extent that it will assist a criminal investigation. Instead, 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 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 109 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 110 Use of Wiretap Information From Foreign Governments
Under current case law, federal prosecutors appear to have the ability to
use in criminal proceedings electronic surveillance conducted by foreign
governments. 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 through "the connivance or participation" of American
law enforcement personnel.
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 or 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 in line with that allowed for search and surveillance of the foreign establishments for which the officers and employees work.
Section 152 Third-Party Assistance
This provision expands the obligations of third parties to furnish the government assistance under FISA. Under current FISA provisions, the government can see information and assistance from common carriers, landlords, custodians and other persons in court-ordered surveillance. Section 152 would amend FISA to 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 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.
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 any foreign intelligence purpose is sufficient to support the Director's certification of a FISA request. This would eliminate any need to constantly evaluate the relative weight of criminal and intelligence purposes, and would facilitate information sharing.
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. In the present counterterrorism investigation, grand jury subpoenas are being employed; in order to share the information obtained in response to those subpoenas with the intelligence components involved in the investigation, criminal investigators and prosecutors have had either to employ alternate (and less efficient) means to obtain the data or to seek court authority to disclose the information to the community. The present amendment makes it clear that such dissemination can occur without additional court authority.
Section 155 Federal Bureau of Investigation
Currently the Director of the FBI, the Director and Deputy Director of Central Intelligence, and a short list of Senate-confirmed Executive Branch officials are the only persons by the President by Executive Order to certify FISAs. Because these individuals travel frequently and have hectic schedules, obtaining a certification can add several days to the already lengthy FISA process, The proposed language. would help alleviate this problem by adding the Deputy Director of the FBI to the list of authorized FISA certifiers (this cannot be accomplished by Executive Order since the Deputy Director is not confirmed by the Senate).
Section 156 Definition
The current definition of foreign intelligence targets of FISA surveillance is not in accord with the designations made by the President for other means of intelligence collection. The amendment harmonizes the FISA statute with the executive mechanism for setting intelligence priorities, so that FISA can be deployed against all high-priority foreign intelligence targets, even if those targets lack the traditional characteristics of a "foreign power" as defined in the statute.
Section 157 Pen Register And Trap and Trace Authority
When added to FISA two years ago, the pen register/trap and trace section war, 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 communication 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 be can obtained quickly from a local court, on the basis of a certification that the information to be obtained is relevant to all 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 158 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 such 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. A companion section establishes a means of enforcing the authority, and clarifies that the FISA Court has the power to punish contempt of this authority, and other orders issued by the Court. The fact that the authority is generic, rather than specifying particular types of records, addresses investigative situations in which the holders of relevant records demand compulsory legal authority for production, but where the records sought do not fit within one of the categories defined in existing National Security Letter authority.
Section 159 Reporting
This section proposes to modify existing reporting requirements added to FISA last year that raise concerns in light of the increased sharing of information between intelligence operations and criminal investigations.
Section 160 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 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.
TITLE II: IMMIGRATION
Section 201 Administrative Removal of Terrorists
Under current § 238 of the INA, various procedures are established regarding aliens convicted of certain crimes, The INS is permitted to issue a final order of removal, without an immigration court hearing, to aliens convicted of specified crimes. This section expands the Attorney General's authority and give him the authority to certify that an alien is a threat to national security and to remove such aliens immediately. In addition, the Attorney General may continue to detain such terrorist aliens, within his discretion, until removal is complete. Such authority will expedite the removal of terrorists from within our borders.
Section 202 Definitions Relating to Terrorism
The Alien Terrorist Removal Court is the only mechanism available to the government to use classified evidence 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." The current definition is limited to individuals who provide material support for a "terrorist activity." This section expands 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. 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 of groups as terrorist organizations.
Section 203 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, eliminating the need to show this threat by clear and convincing evidence. The Attorney General is vested with the discretion to make these time-sensitive decisions and to detain individuals identified as posing a threat to national security until they are actually removed or until the Attorney General determines the person no longer poses a threat. This provision seeks to prevent persons, if not detained, from going into hiding to avoid removal.
Section 204 Habeas Corpus And Judicial Review
Under current law, determinations to remove, or detain terrorists are reviewable by habeas corpus proceedings which can be brought in any federal jurisdiction nationwide. The availability of multiple jurisdictions for review creates the potential for inconsistent standards to be developed by reviewing courts, which encourages forum-shopping by alien terrorists and 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 these proceedings 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 Naturalization Act already limits challenges to expedited removal to the District of Columbia.
Section 205 Felony Punishment
For Violence Committed Along The United States
This section enhances the security of the United States' borders by providing penalties for violent or reckless conduct in attempting to elude immigration, customs, or agricultural inspection or any of various arrival, reporting, entry, or clearance requirements.
Section 206 Technical Clarifications
This provision makes it clear that this legislation will apply to all aliens
regardless of the date they entered the United States.
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.
Existing federal law (18 U.S.C. § 3282) bars prosecuting most offenses after five years. 18 U,S.C. § 3286 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. § 1202). These are not minor acts of misconduct which 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. In common with several other provisions in this bill, the section specifies the covered offenses by cross-referencing 18 U.S.C. 2332b(g)(5)(B), which provides a fairly comprehensive listing of the main crimes that are likely to be involved in acts of terrorism. Subsection (b)(2) of the section includes a conforming amendment to IS U.S. C. § 2332b(g)(5)(B) to ensure continued coverage of all of the aircraft violence offenses (42 U.S.C. §§ 46502, 46504-06) which are currently subject to an extended limitation period under 18 U.S.C. § 3286.
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, 18 U.S.C. § 2332b(g)(5)(B)'s list of the serious crimes most frequently committed by terrorists 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 for terrorist conspiracies. As in various other provisions in this bill, the relevant notion of "terrorism crime" is defined by cross reference to the list of provisions in 18 U.S.C. 2332b(g)(5)(B).
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 other provisions of this bill, 18 U.S.C. § 2332b(g)(5)(B)'s list of offenses is used in defining the relevant notion of "terrorism crime."
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 no legitimate purpose for having such items. 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.
This 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).
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 list of terrorism crimes to the more complete list in 18 U.S.C. § 2332b(g)(5)(B).
Section 307 Concealment of Terrorism Crimes
18 U.S.C. § 4 ("misprision of felony") makes it a crime to conceal or fail to report to the authorities the commission of a felony. The maximum penalty is three years of imprisonment, regardless of the seriousness of the concealed crime. The amendment in this section provides a higher maximum penalty under 18 U.S.C. § 4 where the crime concealed is a terrorism crime (as specified the 18 U.S.C. § 2332b(g)(5)(B) list). This will allow more effective prosecution, and provide a greater deterrent, to persons who attempt to shield acts of terrorism or their perpetrators, even if not directly prosecutable as accomplices.
Section 308 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 prohibitions apply to harboring or concealing persons engaged in terrorism crimes (as specified in the 18 U.S.C. § 2332b(g)(5)(B) list).
Section 309 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 commitments to fanatical political or religious ideologies. As in other provisions of this bill, the covered class of terrorism crimes is defined by cross-reference to 18 U.S.C. § 2332b(g)(5)(B).
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.
SUBTITLE B - CRIMINAL PROCEDURE
Section 351 Presumption Against Pretrial Release in Terrorism Cases
Defendants in federal cases are subject to pretrial detention if no release conditions can reasonably assure the defendant's appearance and public safety. 18 U.S.C. § 3142(c) creates a rebuttable presumption that defendants charged with serious drug crimes or certain other specified offenses cannot safely be released -- but only one terrorism crime (18 U.S.C. § 2332b) is included in the list of covered offenses, This section accordingly extends the offenses that give rise to a presumption in favor of pretrial detention to include terrorism crimes generally (as specified in 18 U.S.C. § 2332b(g)(5)(B) list). This would require defendants in terrorism cases to produce evidence that they will not flee or endanger the public if released before trial.
Section 352 Administrative Subpoenas in Terrorism Investigations
This section provides the Attorney General with administrative subpoena authority in terrorism investigations. It is patterned on the existing administrative subpoena authority for drug trafficking investigations under 21 U.S.C. 876, and can be expected to have similar value in relation to the investigation of terrorist activities.
Section 353 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 by providing that warrants can be obtained in any district in which activities related to the terrorism may have occurred, regardless of where they will be executed.
Section 354 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 355 Undercover Investigation of Terrorists
28 U.S.C. § 530B makes federal government attorneys subject to state bar rules. While intended to ensure high standards of ethical conduct, it has had the unintended effect of preventing involvement by federal prosecutors in legitimate investigative activities in some parts of the country. Specifically, the ability of federal prosecutors to advise or participate in undercover investigations and questioning of defendants has been interfered with where state attorney conduct standards prohibit or overly limit such activities by lawyers.
This section resolves this problem by creating an exception to 28 U.S.C. § 530B which allows federal government lawyers to be involved in undercover operations and questioning of suspects and defendants, consistent with federal constitutional standards. This will more consistently permit federal prosecutors to advise and participate in legitimate investigative activities relating to terrorism and other crimes.
Section 356 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 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 provides a strong response to the deficiencies of the current law by extending the collection of DNA sample collection to all persons convicted of federal felonies. Many states now authorize the collection of DNA samples from all felons, and the Senate passed legislation in 1999, S. 254 § 1503, which would have permitted the collection of DNA samples from all federal felons. This reform will greatly facilitate the solution of crimes committed by terrorists, as well as other offenders, through DNA matching.
In addition to including all felons in the sample collection categories, the amendment in this section includes all persons convicted of offenses under the sexual abuse chapter of the criminal code (chapter 109A), regardless of the penalty grading of the offense. Existing law already provides this unrestricted coverage of chapter 109A offenses for purposes of DNA sample collection, See 42 U.S.C. § 14133a(d)(1)(B).
Section. 357 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 two problem. First,
in national security and terrorism cases, the amendments permit court-ordered
disclosure of grand jury information to nonlawyer government personnel without
the requirement of listing for the judge the name of every recipient of the
information. This requirement can be impractical in such cases; the current
investigation of the attack on the World Trade Center and the Pentagon involves
thousands of investigative agents. Second, the amendments clarify that "matters
occurring before the grand jury" does not include subpoenaed documents and
the like. While a number of courts of appeals have already adopted this
interpretation, some courts have taken a contrary view, which inhibits the
distribution of such items to investigators.
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 in 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
Currently, under 18 U.S.C. § 2339A, it is a criminal offense to provide "material support or resources" knowing or intending the support or resources be used in carrying out various terrorist acts. Section 2339B also uses the term "material support or resources" in reference to designated foreign terrorist organizations. The definition of "material support or resources" is currently limited to "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine and religious materials." This language unnecessarily limits the type of financial instruments that can constitute "material support or resources." The proposed bill would alter the language "other financial securities," which appears in no other section of the criminal code, by replacing that language with the phrase "monetary instruments or financial securities of any kind whatsoever," which phrase is already defined in the criminal code and under that existing definition would ensure that the full range of monetary instruments is included within the scope of "material support or resources."
Section 403 Forfeitures Relating to Terrorism
Current law does not expressly permit civil or criminal forfeiture of the instrumentalities of terrorism. The bill proposes an express provision adding that any property used in terrorist crimes is subject to the civil and criminal forfeiture provisions of 18 U.S.C. §§ 981 and 982. This expansion will aid in the effort to cut off the flow of resources to those who would seek to use them in the commission of or in support of terrorist acts and their organizations. These changes would also cover any property used in violation of 18 U.S.C. Chapter 113B, including funds raised in furtherance of material support violations of 18 U.S.C. §§ 2339A and 2339B.
Section 404 Technical Clarification
Relating to Provision of Material Support to
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. Section 404 would clarify that the Trade Sanctions Reform and Export Enhancement Act of 2000 shall not limit the provisions of 18 U.S.C. §§ 2339A or 2339B. In other words, the exceptions to trade sanctions for these items will not prevent criminal liability for the provision of these items to support terrorist activity or to designated foreign terrorist organizations as set forth under sections 2339A and 2339B. Although the provision of such products currently should fall within these criminal statutory provisions if provided to terrorist groups or to support terrorist activity, the bill proposes clarification that the trade sanctions provisions of Title IX of Public Law 106-387 in no way alter the applicability of sections 2339A and 2339B.
Section 405 Disclosure of Tax
Information in Terrorism And National-Security
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, them is no terrorism-specific exception. This section amends § 6103 to permit disclosure of IRS-maintained information to Federal, State and local law enforcement agencies involved in the response to and investigation of terrorist threats and incidents.
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.
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 coordinate 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.
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