Mobilization Against Terrorism Act Analysis

20 September 2001.
Source: Hardcopy from the Electronic Frontier Foundation.

See related draft bill: http://cryptome.org/mata.htm

[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
Trace Devices

This section authorizes courts to grant pen register/trap and trace orders that are valid anywhere in the nation, and subjects Internet communications to the same rules as telephone communications. At present, the government must apply for new pen/trap orders in every jurisdiction where an investigation is being pursued. Hence, law enforcement officers tracking a suspected terrorist in multiple jurisdictions must waste valuable time and resources 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
Border

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
Terrorism

The Trade Sanctions Reform and Export Enhancement Act of 2000, Title IX of Public Law 106-387, creates exceptions in the nation's Trade Sanctions Programs for food and agricultural products. 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
Investigations

Taxpayer records maintained by the Internal Revenue Service (IRS) are subject to strict rules regarding disclosure to other Government agencies, detailed in 26 U.S.C. § 6103. Although the law currently allows for the disclosure of such information to non-Treasury personnel in emergency circumstances, 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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