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The USA PATRIOT Act:
MYTH
VS. REALITY
Table of Contents
WAGING
THE WAR ON TERROR
For decades, terrorists have waged war against U.S. interests. Now America
is waging war against terrorists. As President Bush has said, "Free people
will set the course of history." We have promoted freedom over the past two
years while protecting civil liberties and protecting people here and around
the world from further terrorist attacks.
- The United States of America
is winning the war on terrorism
with unrelenting focus and unprecedented
cooperation. Prevention of
terrorist attacks is one of our
highest priorities. With the President's
lead, information sharing and
cooperation has vastly increased.
Today, we are better able to "connect
the dots."
- The Department of Justice
has acted thoughtfully, carefully,
and within the framework of the
Constitution of the United States.
Survival and success in this long
war on terrorism demands that
the Department continuously adapt
and improve its capabilities to
protect Americans from a fanatical,
ruthless enemy, even as terrorists
adapt their tactics to attack
us.
HOW WE ARE WAGING THE WAR ON TERRORISM:
First, we are disrupting terrorist threats, and capturing the terrorists
that would carry them out. Since 9/11:
- Our intelligence and law enforcement communities, and our partners, both
here and abroad, have identified and disrupted over 150 terrorist threats
and cells;
- Worldwide, nearly two-thirds of al Qaida's known senior leadership has
been captured or killed -- including a mastermind of the September 11th
attacks;
- Worldwide, more than 3,000 operatives have been incapacitated;
- Five terrorist cells in Buffalo, Detroit, Seattle, Portland (Oregon),
and Northern Virginia have been broken up;
- 375 individuals have been criminally charged in the United States in
terrorism investigations;
- Already, 195 individuals have been convicted or have pled guilty in the
United States, including shoe-bomber Richard Reid and "American Taliban"
John Walker Lindh; and
- Over 515 individuals linked to the September 11th investigation
have been removed from the United States.
Second, we are gathering and cultivating detailed knowledge on terrorism
in the United States:
- Hundreds of suspected terrorists have been identified and tracked throughout
the United States;
- Our human sources of intelligence related to international terrorism
have increased 63% since 9/11, and our human sources of intelligence related
to domestic terrorism have increased by 30% since 9/11, with the quality
of this human intelligence having improved significantly; and
- Our counterterrorism investigations have more than doubled since 9/11.
Third, we are gathering information by leveraging criminal charges and long
prison sentences. When individuals realize that they face a long prison
term, they often try to lessen their prison time by pleading guilty and cooperating
with the government.
- These individuals have provided critical intelligence about al-Qaida
and other terrorist groups, safehouses, training camps, recruitment, and
tactics in the United States, and the operations of those terrorists who
mean to do Americans harm.
- One individual has given us intelligence on weapons stored here in the
United States.
- Another individual has identified locations in the United States being
scouted or cased for potential attacks by al-Qaida.
Fourth, we are dismantling the terrorist financial network. Already the
United States Government has:
- Designated 40 terrorist organizations;
- Frozen $136 million in assets around the world;
- Charged 113 individuals in 25 judicial districts with terrorist financing-related
crimes, with 57 convictions or guilty pleas to date; and
- Established an FBI Terrorist Financing Operations Section (TFOS) and
utilized the Joint Terrorism Task Forces to identify, investigate, prosecute,
disrupt, and dismantle terrorist-related financial and fundraising activities.
Fifth, we are using new legal tools to detect, disrupt, and prevent potential
terrorist plots. Congress has provided better tools to make sure we are
doing all we can, legally and within the bounds of the Constitution, to detect,
disrupt, and prevent acts of terror. The PATRIOT Act passed with overwhelming
bipartisan majorities, in the Senate by 98-1, and in the House of Representatives
by 357-66.
- The PATRIOT Act allows investigators to use the tools that were already
available to investigate organized crime and drug trafficking. These
tools have been used for decades and have been reviewed and approved by
the courts.
- The PATRIOT Act facilitates information sharing and cooperation among
government agencies so that they can better "connect the dots." In
the past, different agencies and departments were collecting data but
not sharing it with each other. Now we are able to share that data to
prevent future attacks.
- The PATRIOT Act updated the law to reflect new technologies and new
threats. The Act brought the law up to date with current technology,
so we no longer have to fight a digital-age battle with legal authorities
left over from the era of rotary telephones.
- The PATRIOT Act increased the penalties for those who commit terrorist
crimes. Americans are threatened as much by the terrorist who pays
for a bomb as by the one who detonates it. That's why the Act imposed
tough new penalties on those who commit and support terrorist operations,
both at home and abroad.
Sixth, the Department of Justice is building its long-term counter-terrorism
capacity since 9/11:
- A nearly three-fold increase in counterterrorism funds;
- Approximately 1,000 new and redirected FBI agents dedicated to counterterrorism
and counterintelligence;
- 200 new Assistant U.S. Attorneys;
- 100 Joint Terrorism Task Forces;
- More than 300% increase in Joint Terrorism Task Force staffing; and
- FBI Flying Squads developed for rapid deployment to hot spots worldwide.
Section 201. Authority to intercept wire, oral, and electronic
communications relating to terrorism.
- Summary: Allows law enforcement to use the existing electronic-surveillance
authorities to investigate certain crimes that terrorists are likely to
commit.
- Myth: "Because the government already had substantial authority
under FISA to obtain a wiretap of a suspected terrorist, the real effect
of this amendment is to permit wiretapping of a United States person suspected
of domestic terrorism." [Electronic Privacy Information Center (EPIC),
Mar. 19, 2003]
- Reality:
- Before the PATRIOT Act, law enforcement had the authority to conduct
electronic surveillance - by petitioning a court for a wiretap order
- when investigating many ordinary, non-terrorism crimes. Agents
also could use wiretaps to investigate some, but not all, of the crimes
that terrorists often commit.
- The non-terrorism offenses for which wiretaps were available
included: drug crimes, mail fraud, and passport fraud.
- Section 201 enabled investigators to gather information when looking
into the full range of terrorism-related crimes, including:
chemical-weapons offenses, the use of weapons of mass destruction,
killing Americans abroad, and terrorism financing.
- Section 201 preserved all of the pre-existing standards in
the wiretap statute. For example, law enforcement still must: (1)
apply for and receive a court order; (2) establish probable
cause that criminal activity is afoot; and (3) first have tried
to use "normal investigative procedures."
- Section 201 has proven to be extremely useful to law enforcement
officials, as several recent wiretap orders have been based on this
expanded list of terrorism offenses.
- This provision will sunset on December 31, 2005.
Section 203. Authority to share criminal investigative
information.
- Summary: Permits sharing of grand jury and wiretap information
regarding foreign intelligence with federal law-enforcement, intelligence,
protective, immigration, national-defense and national-security personnel.
- Myth: "While some sharing of information may be appropriate in
some limited circumstances, it should only be done with strict safeguards.
. . . The bill lacks all of these safeguards. As a result it may lead
to the very abuses that the Church Committee exposed decades ago." [American
Civil Liberties Union (ACLU), Oct. 23, 2001]
- Reality:
- Before USA PATRIOT, federal law sharply limited the ability
of federal law-enforcement to share terrorism-related information
with national-defense officials and members of the intelligence community
in order to protect the American People from terrorism. As the recent
9/11 Congressional Joint Inquiry Report confirms, prior to September
11th our ability to connect the dots was inhibited by
the inability to coordinate throughout our own government.
- For example, suppose that a federal prosecutor learned during
grand jury testimony that terrorists were planning to detonate
a nuclear bomb in Manhattan in the next 30 minutes. Federal
Rule of Criminal Procedure 6(e) would have prevented him from
immediately notifying national-security officials.
- Section 203 facilitated a coordinated, integrated antiterrorism
campaign by allowing the sharing of information acquired by wiretaps
or through grand jury proceedings. Thanks to section 203, the right
hand now knows what the left hand is doing.
- Section 203 contains a number of privacy safeguards. An individual
who receives any information under this section can use it only "in
the conduct of that person's official duties." And any time grand
jury information is shared, the government is required to notify
the supervising court.
- On September 23, 2002, the Attorney General issued privacy guidelines
governing the sharing of information that identifies a United
States person. These rules require that all such information be labeled
before disclosure, and handled according to specific protocols designed
to ensure its appropriate use.
- The Department has made disclosures of vital information to the intelligence
community and other federal officials under section 203 on dozens
of occasions.
- The authority to share wiretap information will sunset on December
31, 2005. The authority to share grand jury information will not
sunset.
Section 206. Roving surveillance authority under the
Foreign Intelligence Surveillance
Act of 1978.
- Summary: Allows FISA court to authorize "roving surveillance"
when it finds that the target's actions may thwart the identification
of a communications company or other person whose assistance may be needed
to carry out the surveillance.
- Myth: "These wiretaps pose a greater challenge to privacy because
they are authorized secretly without a showing of probable cause of crime.This
Section represents a broad expansion of power without building in a necessary
privacy protection." [ACLU, Oct. 23, 2001]
- Reality:
- For years, law enforcement has been able to use "roving wiretaps"
- in which a wiretap authorization attaches to a particular suspect,
rather than a particular communications device - to investigate
ordinary crimes, including drug offenses and racketeering.
The authority to use roving wiretaps in drug cases has existed since
1986.
- Section 206 authorized the same techniques in national-security
investigations. This provision has enhanced the government's authority
to monitor sophisticated international terrorists and intelligence
officers, who are trained to thwart surveillance, such as by rapidly
changing cell phones, just before important meetings or communications.
- A wiretap under section 206 can be ordered only after the FISA court
makes a finding that the actions of the target of the application
may have the effect of thwarting the surveillance.
- A number of federal courts - including the Second, Fifth, and Ninth
Circuits - have squarely ruled that roving wiretaps are perfectly
consistent with the Fourth Amendment.
- Whether the Department has used section 206 is classified. Details
about its use were provided to the House Permanent Select Committee
on Intelligence on May 29, 2003, in response to a request by the House
Committee on the Judiciary.
- This provision will sunset on December 31, 2005.
Section 209.
Seizure of voice-mail messages pursuant
to warrants.
- Summary: Allows law enforcement to obtain voice mail stored with
a third party provider by using a search warrant, rather than a wiretap
order.
- Facts:
- Under previous law, law enforcement could use a search warrant to
obtain voice messages stored on an answering machine inside a terrorist's
home. But agents had to go through the burdensome process of obtaining
a wiretap order if the same messages were stored with a third party
provider.
- Section 209 allowed investigators, upon a showing of probable
cause, to use court-issued search warrants to obtain voicemails
held by a third-party provider. Simply put, the law now treats these
voicemail messages the same as voicemails on a home answering machine.
- Section 209 preserved all of the pre-existing standards for
the availability of search warrants. For example, law enforcement
still must: (1) apply for and receive a court order; and (2)
establish probable cause that criminal activity is afoot.
- Since passage of the Act, such warrants have been used in a variety
of criminal cases to obtain key evidence, including voicemail messages
left for foreign and domestic terrorists.
- Under previous law, the wiretap statute governed access to stored
wire communications such as voicemail, because the definition of "wire
communication" (18 U.S.C. § 2510(1)) included stored communications.
- This provision will sunset December 31, 2005.
Section 210. Scope of subpoenas for records of electronic
communications.
- Summary: Broadens the types of records that grand juries can subpoena
from electronic communications providers to include the means and source
of payment, such as bank accounts and credit card numbers.
- Facts:
- Before USA PATRIOT, federal law allowed grand juries to subpoena
a limited class of information from electronic-communications providers.
Grand juries could not subpoena certain information - such as credit
card and bank account numbers - that is indispensable in tracking
down a suspect's true identity.
- Section 210 updated the law by allowing grand juries to subpoena
the full range of information necessary to determine suspects'
identities. Now, grand juries can issue subpoenas for the means of
payment that customers use to pay for their accounts. That includes
"any credit card or bank account number."
- This information will prove particularly valuable in identifying
the users of Internet services where a company does not verify
its users' biographical information.
- Prosecutors in the field report that this new authority has allowed
for quick tracing of suspects in numerous important cases, including
several terrorism investigations and a case in which computer hackers
attacked over fifty government and military computers.
- As is true of all subpoenas, recipients of a section 210 subpoena
can go to court and ask the judge to quash it. And, if the
recipient refuses to comply with a section 210 subpoena, the government
must ask a judge to enforce it; agents cannot enforce
it unilaterally.
- Before section 210, grand jury subpoenas of electronic-communications
providers generally were limited to obtaining customers' names, addresses,
and length of service.
Section 211. Clarification of scope.
- Summary: Clarifies that the statutes governing telephone and Internet
communications - not the burdensome provisions of the Cable Act - apply
to cable companies that provide Internet or telephone service.
- Facts:
- Before the USA PATRIOT Act, some cable companies, citing restrictions
in the federal Cable Act, ignored lawful court orders requiring
them to turn over records about their customers' Internet or telephone
use - even though any other Internet or telephone provider would have
had to comply.
- Section 211 clarified that when a cable company provides telephone
or Internet service, it must comply with the same disclosure laws
that apply to any other telephone company or Internet service
provider.
- Terrorists no longer can exempt themselves from lawful investigations
simply by choosing cable companies as their communications providers.
- Section 211 preserved all of the pre-existing standards in
the applicable electronic-surveillance laws.
- If agents want to use a pen register or trap-and-trace
device (which record the numbers a telephone dials and from
which it receives calls, but do not allow agents to listen to
or record the contents of communications) or use a wiretap
to listen to a cable customer's phone conversations, they
still must apply for and receive a court order.
- If agents want to use a wiretap, they must establish probable
cause that criminal activity is afoot.
Section 212. Emergency disclosure of electronic communications
to protect life and limb.
- Summary: Allows computer-service providers to disclose communications
in life-threatening emergencies.
- Facts:
- Before USA PATRIOT, communications providers could not disclose
records about their customers in emergency situations. If an Internet
service provider learned that a customer was about to commit a terrorist
attack, and notified law enforcement, it could be subject to civil
lawsuits - even if the disclosure saved lives.
- Section 212 allows communications providers voluntarily to turn
over information in emergencies without fear of civil liability.
Now, providers are permitted - but not required - to give law
enforcement information in emergencies involving a risk of death or
serious injury.
- This is the equivalent of allowing citizens to tell police that,
while walking down a public street, they overheard two people
discussing a crime they were about to commit and decided to notify
the police.
- Section 212 does not impose an affirmative obligation
to review customer communications in search of such imminent dangers.
- Communications providers have used this new authority to disclose
vital information to law enforcement in a number of important investigations,
including a bomb threat against a high school.
- An anonymous person posted on an Internet message board a bomb
death threat that specifically named a faculty member and several
students.
- The message board's owner initially resisted giving law enforcement
any information about the suspect for fear that he could be sued.
Once agents explained section 212, the owner turned over evidence
that led to the timely arrest of the individual responsible for
the bomb threat.
- The message board's owner later revealed that he had been worried
for the safety of the students and teachers for several days,
and expressed his relief that the USA PATRIOT Act permitted him
to help.
- Section 212 also played a key role in a case where two unknown individuals,
using a U.S.-based email account, threatened to kill executives
at a company in another country unless they were paid a hefty
ransom. The email provider used section 212 to disclose key information
about the suspects. The Justice Department then transmitted this information
to the authorities in that country, less than two hours after we
were first contacted. Both suspects later were apprehended overseas.
- This provision will sunset on December 31, 2005.
Section 213. Authority for delaying notice of the execution
of a warrant.
- Summary: Allows courts, in certain narrow circumstances, to give
delayed notice that a search warrant has been executed.
- Myth: "It expands the government's ability to search private property
without notice to the owner." [ACLU, Apr. 3, 2003]
- Reality:
- Delayed notification warrants are a long-existing, crime-fighting
tool upheld by courts nationwide for decades in organized crime,
drug cases and child pornography.
- Section 213 of USA PATRIOT Act simply codified the authority
law enforcement already had for decades. Because of differences
between jurisdictions, the law was a mix of inconsistent standards
that varied widely across the country. This lack of uniformity
hindered complex terrorism cases. Section 213 resolved the problem
by establishing a uniform statutory standard. Section 213
is a vital aspect of our strategy of prevention - detecting and
incapacitating terrorists before they are able to strike.
- The Supreme Court has held the Fourth Amendment does not require
law enforcement to give immediate notice of the execution of a search
warrant. The Supreme Court emphasized "that covert entries are
constitutional in some circumstances, at least if they are made pursuant
to a warrant." In fact, the Court stated that an argument to the contrary
was "frivolous." Dalia v. U.S., 441 U.S. 238 (1979). In yet
another case, the Court said, "officers need not announce their purpose
before conducting an otherwise [duly] authorized search if such an
announcement would provoke the escape of the suspect or the destruction
of critical evidence." Katz v. U.S., 389 U.S. 347 (1967).
- If the Otter Amendment, passed in the House July 22, 2003,
becomes law, it would have a devastating effect on our ongoing efforts
to detect and prevent terrorism, as well as to combat other serious
crimes. This amendment could tip off terrorists or
criminals to investigations before law enforcement could obtain the
needed information to locate their terrorists or criminal associates,
identify and disrupt their plans, or initiate their arrests.
- Premature notification of a search warrant could result in the
intimidation of witnesses, destruction of evidence, flight
from prosecution, physical injury, and even death.
- In all cases, section 213 requires law enforcement to give notice
that property has been searched or seized. It simply allows agents
to temporarily delay when the required notification is given.
- This authority can be used only upon the issuance of a court order,
in extremely narrow circumstances. Courts can delay notice only
when immediate notification may result in death or physical harm
to an individual, flight from prosecution, evidence tampering,
or witness intimidation.
- Under section 213, courts can delay notice if there is "reasonable
cause" to believe that immediate notification may have a specified
adverse result. The "reasonable cause" standard is consistent with
pre-PATRIOT Act caselaw for delayed notice of warrants. See, e.g.,
United States v. Villegas, 899 F.2d 1324, 1337 (2d Cir. 1990)
(government must show "good reason" for delayed notice of warrants).
- Section 213 is important to law-enforcement investigations of a wide
variety of serious crimes, including domestic and international
terrorism, drug trafficking, organized crime, and
child pornography.
- In United States v. Odeh, a recent narco-terrorism case,
a court issued a section 213 warrant in connection with the search
of an envelope that had been mailed to a target of an investigation.
The search confirmed that the target was operating a hawala money
exchange that was used to funnel money to the Middle East, including
to an individual associated with someone accused of being an operative
for Islamic Jihad in Israel. The delayed-notice provision allowed
investigators to conduct the search without fear of compromising
an ongoing wiretap on the target and several of the confederates.
The target was later charged and notified of the search warrant.
- During an investigation into a nationwide organization that distributes
marijuana, cocaine and methamphetamine, the court issued a delayed
notice warrant to search the residence in which agents seized
in excess of 225 kilograms of drugs. The organization involved
relied heavily on the irregular use of cell phones, and usually
discontinued the use of cell phones after a seizure of the drugs
and drug proceeds, making continued telephone interception difficult.
Interceptions after the delayed notice seizure indicated that
the suspects thought other drug dealers had stolen their drugs,
and none of the telephones intercepted were disposed of, and no
one in the organization discontinued their use of telephones.
The government was able to prevent these drugs from being sold,
without disrupting the larger investigation.
Section 214. Pen register and trap and trace authority
under FISA.
- Summary: Allows the United States to obtain a FISA pen register
order by certifying that the resulting information would be relevant to
an investigation to protect against international terrorism or clandestine
intelligence activities.
- Myth: "The amendment significantly eviscerates the constitutional
rationale for the relatively lax requirements that apply to foreign intelligence
surveillance." [EPIC, Mar. 19, 2003]
- Reality:
- Section 214 streamlined the process for obtaining pen registers
under FISA. It preserved the existing court-order requirement.
Now, as before, law enforcement cannot install a pen register unless
it applies for and receives permission from the FISA court.
- Section 214 goes further to protect privacy than the Constitution
requires. The Supreme Court has long held that law enforcement is
not constitutionally required to obtain court approval before
installing a pen register.
- Under long-settled Supreme Court precedent, the use of pen registers
does not constitute a "search" within the meaning of the Fourth
Amendment. As such, the Constitution does not require that law
enforcement obtain court approval before installing a pen register.
This is so because "a person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties,"
and "when he used his phone, petitioner voluntarily conveyed numerical
information to the telephone company." Smith v. Maryland,
442 U.S. 735, 744 (1979).
- Section 214 explicitly safeguards First Amendment rights.
It requires that any "investigation of a United States person is
not conducted solely upon the basis of activities protected by
the First Amendment to the Constitution."
- A pen register is a device that can track routing and addressing
information about a communication - for example, which numbers a particular
telephone dials. Pen registers are not used to collect the content
of communications.
- Whether the Department has used section 214 is classified. Details
about its use were provided to the House Judiciary Committee on May
29, 2003.
- This provision will sunset on December 31, 2005.
Section 215. Access to business records and other items
under the Foreign Intelligence Surveillance
Act.
- Summary: Allows the FISA court, in an investigation to protect
against international terrorism or clandestine intelligence activities,
to issue an ex parte order requiring the production of any tangible things.
- Myth: "Many [people] are unaware that their library habits could
become the target of government surveillance. In a free society, such
monitoring is odious and unnecessary. . . The secrecy that surrounds section
215 leads us to a society where the 'thought police' can target us for
what we choose to read or what Websites we visit." [ACLU, July 22, 2003]
- Reality:
- The library habits of ordinary Americans are of no interest
to those conducting terrorism investigations. However, historically
terrorists and spies have used libraries to plan and carry
out activities that threaten our national security. We should not
allow libraries to become safe havens for terrorist or clandestine
activities.
- Obtaining business records is a long-standing law enforcement tactic.
Ordinary grand juries for years have issued subpoenas to all
manner of businesses, including libraries and bookstores, for records
relevant to criminal inquiries.
- In a recent domestic terrorism criminal case, a
grand jury served a subpoena on a bookseller to obtain records
showing that a suspect had purchased a book giving instructions
on how to build a particularly unusual detonator that had been
used in several bombings. This was important evidence identifying
the suspect as the bomber.
- In the 1997 Gianni Versace murder case, a Florida grand
jury subpoenaed records from public libraries in Miami Beach.
- In the 1990 Zodiac gunman investigation, a New York grand
jury subpoenaed records from a public library in Manhattan. Investigators
believed that the gunman was inspired by a Scottish occult poet,
and wanted to learn who had checked out his books.
- Section 215 authorized the FISA court to issue similar orders
in national-security investigations. It contains a number of safeguards
that protect civil liberties.
- Section 215 requires FBI agents to get a court order.
Agents cannot use this authority unilaterally to compel any entity
to turn over its records. FISA orders are unlike grand
jury subpoenas, which are requested without court supervision.
- Section 215 has a narrow scope. It can only be used (1)
"to obtain foreign intelligence information not concerning a United
States person"; or (2) "to protect against international terrorism
or clandestine intelligence activities." It cannot be used
to investigate ordinary crimes, or even domestic terrorism.
- Section 215 preserves First Amendment rights. It expressly
provides that the FBI cannot conduct investigations "of a United
States person solely on the basis of activities protected by the
First Amendment to the Constitution of the United States."
- Section 215 provides for congressional oversight. Every
six months, the Attorney General must "fully inform" Congress
on how it has been implemented.
- On October 17, 2002, the House Judiciary Committee issued a press
release indicating it is satisfied with the Department's
use of section 215: "The Committee's review of classified
information related to FISA orders for tangible records, such
as library records, has not given rise to any concern that the
authority is being misused or abused."
- There is much misinformation - even disinformation - about
the supposed use of section 215 at libraries.
- On November 3, 2002, the Hartford Courant alleged that
the FBI installed software on computers at the Hartford Public
Library that lets agents track a person's use of the Internet
and email messages. The article even said that individuals' library
use could be surveilled even if they weren't suspected of being
a terrorist. In reality, the FBI obtained a single search warrant
to copy the hard drive of a specific computer that had been used
to hack into a business computer system in California for criminal
purposes. No software was installed on that or any other
computer in the library. The Hartford Courant has
retracted the story in full.
- Section 215 actually is more protective of privacy
than the authorities for ordinary grand jury subpoenas.
- A court must explicitly authorize the use of section 215 to
obtain business records. By contrast, a grand jury subpoena is typically
issued without any prior judicial review or approval.
- Section 215 expressly protects the First Amendment, unlike
federal grand jury subpoenas.
- Section 215 can only be used, in investigations of U.S. persons,
to protect against international terrorism or clandestine intelligence
activities. A grand jury can obtain business records in investigations
of any federal crime.
- The requirement that recipients of these orders keep them confidential
is based on "national security letter" statutes, which have
existed for decades. (An NSL is a type of administrative subpoena
used in certain national-security investigations.)
- The details of FISA-related investigations, including requests for
business records, are classified. Classified details about the use
of section 215 were provided to the House Permanent Select Committee
on Intelligence on July 29, 2002, in response to a request by the
House Committee on the Judiciary, and to the Senate Select Committee
on Intelligence on January 7, 2003, in response to a request by the
Constitution Subcommittee of the Senate Committee on the Judiciary.
- The new tool improved on FISA's original business-records authority
in a number of respects:
- It expanded the types of entities that can be compelled
to disclose information. Under the old provision, the FBI could
obtain records only from "a common carrier, public accommodation
facility, physical storage facility or vehicle rental facility."
The new provision contains no such restrictions.
- It expanded the types of items that can be requested.
Under the old authority, the FBI could only seek "records." Now,
the FBI can seek "any tangible things (including books, records,
papers, documents, and other items)."
- This provision will sunset on December 31, 2005.
Section 216. Modification of authorities relating to
use of pen registers and trap and
trace devices.
- Summary: Amends the pen register/trap and trace statute (1) to
clarify that it applies to Internet communications, and (2) to allow for
a single order that is valid across the country.
- Myth: "Section 216 would worsen the problem by giving the FBI
access to communications of non-targets and to portions of the target's
communications to which it is not entitled under the court order it obtained.
The 'trust us, we're the government' solution the FBI proposes is entirely
unacceptable and inconsistent with the Fourth Amendment." [ACLU, Oct.
23, 2001]
- Reality:
- For years, law enforcement has used pen registers to track which
numbers a particular telephone dials. See 18 U.S.C. § 3123.
Before the USA PATRIOT Act, it was not clear that they could be used
to gather the same routing and addressing information about Internet
communications.
- Section 216 updated the law to the technology. It ensures
that law enforcement will be able to collect non-content information
about terrorists' communications regardless of the media they use.
- Section 216 also allows courts to issue pen-register orders that
are valid across the country. As a result, law enforcement
no longer needs to waste precious time by applying for new orders
each time an investigation leads to another jurisdiction.
- Section 216 preserved all of the law's pre-existing standards.
As before, law enforcement must get court approval before installing
a pen register. And as before, law enforcement must show that the
information sought is relevant to an ongoing investigation.
- In fact, section 216 enhanced the privacy protections in the
pen-register statute. It made explicit that anyone using a pen register
has an affirmative obligation to avoid the collection of content.
- The Department is committed to complying with the Act's mandate
that pen registers not be used to capture content. On May 24,
2002, the Deputy Attorney General issued a memorandum instructing
field offices to: (1) minimize any possible collection of content;
(2) refrain from using any content that may be acquired inadvertently;
and (3) coordinate with Department headquarters about what constitutes
content.
- Department field investigators and prosecutors have used section
216 in a number of terrorism and other important criminal cases.
- Section 216 was used in the investigation of the murder of Wall
Street Journal reporter Danny Pearl, to obtain information
that proved critical to identifying some of the perpetrators.
- Section 216 was used in a case where two unknown individuals,
using a U.S.-based email account, threatened to kill executives
at a company in another country unless they were paid a hefty
ransom. The use of a pen register enabled Department investigators
to provide the foreign authorities with critical information about
the suspects' identities - which led to their prompt apprehension
overseas.
- Investigators also have used section 216 to collect routing information
about the Internet communications of (1) terrorist conspirators;
(2) at least one major drug distributor; (3) thieves who obtained
victims' bank-account information and stole the money; (4) a four-time
murderer; and (5) a fugitive who fled on the eve of trial using
a fake passport.
- A pen register is a device that can track routing and addressing
information about a communication - for example, which numbers a particular
telephone dials. Pen registers are not used to collect the content
of communications.
- Under long-settled Supreme Court precedent, the use of pen registers
does not constitute a "search" within the meaning of the Fourth Amendment.
As such, the Constitution does not require that law enforcement obtain
court approval before installing a pen register. This is so because
"a person has no legitimate expectation of privacy in information
he voluntarily turns over to third parties," and "when he used his
phone, petitioner voluntarily conveyed numerical information to the
telephone company." Smith v. Maryland, 442 U.S. 735, 744
(1979).
- The law provides for robust oversight of law enforcement's use of
pen registers. The pen register statute has always required that a
report be made to Congress every year as to its use. In addition,
the USA PATRIOT Act added a requirement that law enforcement report
to the supervising court anytime it uses its own pen register to collect
Internet information.
Section 217. Interception of computer trespasser communications.
- Summary: Allows victims of computer-hacking crimes to request
law-enforcement assistance in monitoring trespassers on their computers.
- Myth: "The new law places the determination solely in the hands
of law enforcement and the system owner or operator. . . . [T]he amendment
has little, if anything, to do with legitimate investigations of terrorism."
[EPIC, Mar. 19, 2003]
- Reality:
- The law has always recognized the right of landowners to ask law
enforcement to help expel people who illegally trespass on their property.
- Section 217 made the law technology-neutral, placing cyber-intruders
on the same footing as physical intruders. Now, hacking victims can
seek law-enforcement assistance to combat hackers, just as burglary
victims have been able to invite officers into their homes to catch
burglars.
- Prior to the enactment of the USA PATRIOT Act, the law prohibited
computer service providers from sharing with law enforcement that
hackers had broken into their systems.
- Computer operators are not required to involve law enforcement
if they detect trespassers on their systems. Section 217 simply gives
them the option of doing so.
- Section 217 preserves the privacy of law-abiding computer
users. Officers cannot agree to help a computer owner unless (1) they
are engaged in a lawful investigation; (2) there is reason
to believe that the communications will be relevant to that investigation;
and (3) their activities will not acquire the communications of
non-hackers.
- This provision has played a key role in a number of terrorism investigations,
national-security cases, and investigations of other serious crimes.
- Section 217 is extremely helpful when computer hackers launch massive
"denial of service" attacks - which are designed to shut down
individual web sites, computer networks, or even the entire Internet.
- The definition of "computer trespasser" does not include an individual
who has a contractual relationship with the service provider. Thus,
for example, America Online could not ask law enforcement to help
monitor a hacking attack on its system that was initiated by one of
its own subscribers.
- This provision will sunset on December 31, 2005.
Section 218. Foreign intelligence information.
- Summary: Encourages an integrated antiterrorism campaign by allowing
the use of FISA whenever "a significant purpose" of the investigation
is foreign intelligence.
- Myth: "It permits the FBI to conduct a secret search or to secretly
record telephone conversations for the purpose of investigating crime
even though the FBI does not have probable cause of crime. The section
authorizes unconstitutional activity - searches and wiretaps in non-emergency
circumstances - for criminal activity with no showing of probable cause
of crime." [ACLU, Oct. 23, 2001]
- Reality:
- Before the USA PATRIOT Act, a perceived metaphorical "wall"
often inhibited vital information sharing and coordination. Intelligence
investigators were concerned about sharing information with, and seeking
advice from, law enforcement investigators and prosecutors. There
was a fear that such sharing and consultation could mean that they
would not be able to obtain or continue FISA coverage.
- Previously, courts had ruled that FISA could be used only when
foreign intelligence was the "primary purpose" of an investigation.
- Section 218 expressly permitted the full coordination between
intelligence and law enforcement that is vital to protecting the nation's
security. Now, FISA can be used whenever foreign intelligence is a
"significant purpose" of a national security investigation. Moreover,
section 504 of the USA PATRIOT Act specifically permits intelligence
investigators to consult with federal law enforcement officers to
coordinate efforts to investigate or protect against threats from
foreign powers and their agents.
- Generally, a surveillance or search under FISA can be ordered only
if the court finds that there is probable cause to believe that the
target is a foreign power or an agent of a foreign power.
- This provision already is producing important dividends in the war
on terror. The Department recently obtained the indictment of Sami
al-Arian, an alleged member of a Palestinian Islamic Jihad (PIJ)
cell in Tampa, Florida.
- PIJ is alleged to be one of the world's most violent terrorist
outfits. It is responsible for murdering over 100 innocent people,
including Alisa Flatow, a young American killed in a bus bombing
near the Israeli settlement of Kfar Darom.
- Section 218 enabled criminal investigators finally to obtain
and consider the full range of evidence of the PIJ operations
in which al-Arian allegedly participated.
- The Department has issued several new directives that have fostered
cooperation among national-security and law-enforcement personnel.
- The Attorney General instructed all U.S. Attorneys to review
intelligence files to discover whether there was a basis for
bringing criminal charges against the subjects of intelligence
investigations. More than 5,000 files have been reviewed as part
of this process. Information from this review has been used to
open many criminal investigations.
- The Attorney General directed every U.S. Attorney to develop
a plan to monitor terrorism and intelligence investigations, and
to ensure that information about terrorist threats is shared with
other agencies and that criminal charges are considered.
- In November of last year, the Foreign Intelligence Surveillance Court
of Review upheld in full section 218, as well the Department's
procedures to implement it.
- The court expressly held "that FISA as amended is constitutional
because the surveillances it authorizes are reasonable."
In re Sealed Case, 310 F.3d 717, 746 (FISCR 2002).
- The old "primary purpose" standard was derived from a number of court
decisions, including United States v. Truong, 629 F.2d 908
(4th Cir. 1980). That standard was formally established in written
Department guidelines in July 1995. While information could be "thrown
over the wall" from intelligence officials to prosecutors, the decision
to do so always rested with national-security personnel - even though
law-enforcement agents are in a better position to determine what
evidence is pertinent to their criminal case. The old legal rules
discouraged coordination, and created what the Foreign Intelligence
Surveillance Court of Review calls "perverse organizational incentives."
In re Sealed Case, 310 F.3d at 743.
- On March 6, 2002, the Department issued guidelines that expressly
authorized - and indeed required - coordination between intelligence
and law enforcement. These revised procedures were approved in full
by the Foreign Intelligence Surveillance Court of Review on November
18, 2002. In December 2002, the Department issue field guidance with
respect to the March 2002 procedures and the Court of Review's decision.
- In addition to upholding the Department's revised procedures, the
Court of Review also noted that the old "wall" standards were not
required even prior to the USA PATRIOT Act. See In re
Sealed Case, 310 F.3d at 723-27, 735.
- This provision will sunset on December 31, 2005.
Section 219. Single-jurisdiction search warrants for
terrorism.
- Summary: Allows courts to issue search warrants that are valid
nationwide in terrorism investigations.
- Facts:
- Under prior law, a court could only issue a search warrant authorizing
searches within its own district. That created unnecessary delays
and burdens when investigating terrorist networks, which often
span a number of judicial districts.
- Section 219 eliminated those time-consuming loopholes. Now,
a court in a district where terrorism-related activities have occurred,
upon a showing of probable cause, may issue search warrants that are
valid within or outside the district.
- Section 219 preserved all of the pre-existing standards governing
the availability of search warrants. Law enforcement still is required
to demonstrate, and courts still must find, probable cause
that criminal activity is afoot.
- Section 219 has made available resources that otherwise would
have been devoted to administrative tasks, thereby maximizing the
law enforcement personnel available to investigate terrorists.
- This new tool has been used in a number of important terrorism cases.
For example, section 219 enabled prosecutors in Virginia to obtain
a single search warrant to simultaneously search multiple offices
of affiliated charities in two different states. Such coordination
is extremely important in cases where one entity may be able to warn
another of an impending search.
Section 220. Nationwide service of search warrants for
electronic evidence.
- Summary: Allows courts with jurisdiction over the offense to issue
search warrants for communications stored by providers anywhere in the
country.
- Facts:
- Under previous law, some courts declined to issue search warrants
for email stored on servers in other districts. Requiring investigators
to obtain warrants in distant jurisdictions has delayed many time-sensitive
investigations. It also placed an enormous administrative burden
on districts in which major Internet service providers are located
(such as E.D. Va. and N.D. Cal.).
- Section 220 allows courts to issue search warrants for electronic
evidence outside the district where they are located. Now, courts
can compel evidence directly, without requiring the intervention of
agents, prosecutors, and judges in the districts where major ISPs
are located.
- Section 220 has made available resources that otherwise would
have been devoted to administrative tasks, thereby maximizing the
law enforcement personnel available to investigate terrorists.
- This new tool has been used in a number of important terrorism cases.
For example, one section 220 search warrant was used in a case in
one state regarding an individual who had set up a website promoting
jihad for an organization in another state. The judge where the
case was being brought, who was most familiar with the case, was able
to sign the search warrant.
- The enhanced ability to obtain this information quickly also
has proved invaluable in several sensitive non-terrorism investigations,
including: (1) the tracking of a fugitive; and (2) a hacker
who stole a company's trade secrets and then extorted money
from the company.
- This provision can only be used by courts with jurisdiction
over the investigation.
- This provision will sunset on December 31, 2005.
Section 223. Civil liability for certain unauthorized
disclosures.
- Summary: Creates a cause of action and authorizes money damages
against the United States if officers disclose sensitive information without
authorization.
- Facts:
- There have been no administrative disciplinary proceedings
or civil actions initiated under section 223 of the Act for unauthorized
disclosures of intercepts.
- This provision will sunset on December 31, 2005.
Section 319. Forfeiture of funds in United States interbank
accounts.
- Summary: Permits the forfeiture of funds held in United States
interbank accounts.
- Facts:
- Section 319 allows the government to seize funds subject to forfeiture,
which are located in a foreign bank account, by authorizing the seizure
of the foreign bank's funds that are held in a correspondent U.S.
account.
- This is true regardless of whether or not the money in the correspondent
account is directly traceable to the money held in the foreign
bank account.
- The Department has used section 319 in several significant cases.
- On January 18, 2001, a federal grand jury indicted James Gibson
for various offenses, including conspiracy to commit money laundering,
and mail and wire fraud. Gibson, a lawyer, allegedly defrauded
his clients, numerous personal injury victims, of millions of
dollars by fraudulently structuring settlements. Gibson fled to
Belize, depositing some of the proceeds from the scheme in two
Belizean banks. The Department's efforts to recover the proceeds
initially proved unsuccessful. But following the passage of the
USA PATRIOT Act, section 319 was used to serve a seizure warrant
on the Belizean bank's interbank account in the United States.
The remaining funds were recovered.
- In December 2001, the Department also used section 319 to recover
almost $1.7 million in funds. This money will be used to compensate
the victims of the defendant's fraudulent scheme.
Section 373. Illegal money transmitting businesses.
- Summary: Makes it unlawful to run an unlicensed foreign money
transmittal business, and eliminates prior requirement that the defendant
have known about the state licensing requirement.
- Facts:
- Section 373 has enhanced the government's ability to crack down on
unlicensed foreign money-transmittal businesses - which terrorists
and their supporters often use to raise funds for terrorist operations.
- The Department has used section 373 in a number of important terrorism
and national-security cases.
- On April 30, 2002, a federal jury in Boston convicted Mohamed
Hussein for running a foreign money transmittal business (Barakaat
North America, Inc.) without a license in violation of section
373. The al-Barakaat network was affiliated with and received
funding from al Qaeda. In 2000 and 2001, after the Hussein brothers
ignored Massachusetts's warning that their business needed to
be licensed, nearly $3 million was wired from his Boston bank
account to the United Arab Emirates. On July 22, 2002, Mohammed
Hussein was sentenced to one and a half years in prison, to be
followed by two years of supervised release.
- Fourteen out of 15 defendants have pled guilty to charges stemming
from an illegal money transmitting business based in the Eastern
District of New York, involving funds sent to Yemen, including
over $1 million sent just in March 2002. The final defendant
is a fugitive. The lead defendant, who ran the money-transmitting
operation, was sentenced to serve 63 months in federal prison.
Consensually monitored telephone calls made during the investigation
show that this case has had a major deterrent effect on other
hawala operators in the Brooklyn area.
- On December 17, 2002, three defendants were indicted in connection
with an illegal money transmitting business based in the Northern
District of New York, which allegedly sent $486,000 to Yemen.
- Two individuals have been charged with operating an unlicensed
money transmitting business in Kentucky. On November 1, 2002,
one of the defendants was convicted of transferring over $594,000
out of the United States.
Section 412. Mandatory detention of suspected terrorists;
habeas corpus; judicial review.
- Summary: Requires the detention of aliens who are certified as
threats to the national security, pending their removal from the United
States.
- Myth: "Suspects convicted of no crime may be detained indefinitely
in 6 month increments without meaningful judicial review." [ACLU, Feb.
11, 2003]
- Reality:
- Section 412 allows the government, with extensive judicial supervision,
temporarily to detain terrorist aliens until they are removed from
the country. It is the equivalent of denying bail to a criminal
defendant. Section 412 ensures that terrorists are not released
to live among the people they seek to harm.
- Law-abiding Americans have nothing to fear from section 412. It applies
only to aliens who engage in terrorism or otherwise pose a
severe threat to the national security. And detention lasts only as
long as it takes to remove an alien from the U.S.
- An extremely narrow class of aliens can be detained under
section 412. There must be "reasonable grounds to believe" that the
alien: (1) entered the United States to violate espionage or sabotage
laws; (2) entered to oppose the government by force; (3) engaged
in terrorist activity; or (4) endangers the United States'
national security.
- Section 412 expressly grants aliens the right to challenge
their detention in court. Aliens may file a habeas petition
in any federal district court that has jurisdiction.
- The Supreme Court has expressly recognized that detaining aliens
may be appropriate in terrorism and other national-security cases:
"special arguments might be made for forms of preventive detention
and for heightened deference to the judgments of the political branches
with respect to matters of national security." Zadvydas v. Davis,
533 U.S. 678, 696 (2001).
- Once the Attorney General has taken a certified alien into custody,
he has seven days to initiate removal proceedings or file criminal
charges. If the Attorney General does neither, he is required to release
the alien. If an alien has been detained "solely" under section 412,
and his removal is unlikely in the foreseeable future, the Attorney
General "may" continue to detain him for additional periods of up
to six months. Additional detention periods are authorized only if
releasing the alien "will" threaten national security or cause harm
to "the community or any person."
- As of February 2004, the Attorney General had not used section 412. Numerous
aliens who could have been considered have been detained since the
enactment of the USA PATRIOT Act. But it has not proven necessary
to use section 412 in these particular cases because traditional administrative
bond proceedings have been sufficient to detain these individuals
without bond. The Department believes that this authority should be
retained for use in appropriate situations.
Section 507. Disclosure of educational records.
- Summary: Allows the Department to seek a court order to obtain
educational records that are relevant to an investigation of a grave felony
or an act of terrorism.
- Myth: "This means that the Attorney General may obtain the private
educational records of a student involved in the Vieques protests by asserting
that the records are relevant to a domestic terrorism investigation."
[ACLU, Dec. 6, 2002]
- Reality:
- Section 507 has an extremely narrow scope. Records are available
only in investigations of the severest terrorist crimes, such as biological-weapons
offenses, chemical-weapons offenses, bombing government property,
and destroying airliners.
- In order to obtain records under section 507, law enforcement is
required to apply for and receive a court order. Law enforcement
cannot unilaterally compel educational institutions to turn over any
information.
- Section 507 can only be used if law enforcement certifies to the
court that there are "specific and articulable facts" giving
reason to believe that the records sought contain information relevant
to the terrorism crimes being investigated.
- Only high-ranking Department officials - all of whom are Senate-confirmed
- are entitled to ask a court to order the disclosure of records.
This ensures accountability.
- Section 507 requires the Attorney General to issue guidelines to
protect confidentiality.
Section 508. Disclosure of information from NCES surveys.
- Summary: Allows the Department to seek a court order to obtain
records from the National Center for Educational Statistics that are relevant
to an investigation of a grave felony or an act of terrorism.
- Facts:
- Section 508 has an extremely narrow scope. Records are available
only in investigations of the severest terrorist crimes, such as biological-weapons
offenses, chemical-weapons offenses, bombing government property,
and destroying airliners.
- In order to obtain records under section 508, law enforcement is
required to apply for and receive a court order. Law enforcement
cannot unilaterally compel educational institutions to turn over any
information.
- Section 508 can only be used if law enforcement certifies to the
court that there are "specific and articulable facts" giving
reason to believe that the records sought contain information relevant
to the terrorism crimes being investigated.
- Only high-ranking Department officials - all of whom are Senate-confirmed
- are entitled to ask a court to order the disclosure of records.
This ensures accountability.
- Section 508 requires the Attorney General to issue guidelines to
protect confidentiality.
Section 801. Terrorist attacks and other acts of
violence against mass transportation
systems.
- Summary: Makes it a federal offense to engage in terrorist attacks
and other acts of violence against mass transportation systems.
- Facts:
- The attacks of September 11 confirmed that terrorists are committed
to attacking mass transit systems such as airliners. Section 801 created
a new offense prohibiting violent offenses against mass transportation
systems, vehicles, facilities, or passengers.
- The Department recently used section 801 in a case where a female
passenger on a cruise ship sent threatening notes to the
ship's crew. On May 15, 2003, Kelley Marie Ferguson pleaded guilty
to making the threats while on board the Legend of the Seas,
en route to Hawaii.
- The Department also attempted to use section 801 in the case of "shoebomber"
Richard Reid, who now stands convicted of attempting to ignite
a bomb hidden in his shoes during an international flight. Reid was
sentenced to life imprisonment.
- A federal judge dismissed the section 801 charge, concluding
that an airliner is not a "vehicle" within the meaning of the
statute.
- Congress fixed this loophole in section 609 of the "Prosecutorial
Remedies and Tools Against the Exploitation of Children Today
Act of 2003," or "PROTECT Act."
- Section 801 prohibits disabling or wrecking a mass transportation
vehicle; placing a biological agent or destructive substance or device
in a mass transportation vehicle with intent to endanger safety or
with reckless disregard for human life; setting fire to or placing
a biological agent or destructive substance or device in a mass transportation
facility knowing or having reason to know that the activity is likely
to disable or wreck a mass transportation vehicle; disabling mass
transportation signaling systems; interfering with personnel with
intent to endanger safety or with reckless disregard for human life;
use of a dangerous weapon with intent to cause death or serious bodily
injury to a person on the property of a mass transportation provider;
conveying false information about any such offense; and attempt and
conspiracy.
- The provision carries a maximum sentence of 20 years imprisonment,
or life imprisonment if the crime results in death.
Section 802. Definition of domestic terrorism.
- Summary: Adds to 18 U.S.C. § 2331 a new definition of "domestic
terrorism," similar to the existing definition of "international terrorism."
- Myth: "Expands terrorism laws to include 'domestic terrorism'
which could subject political organizations to surveillance, wiretapping,
harassment, and criminal action for political advocacy." [ACLU, Feb. 11,
2003]; The Patriot Act includes "provision that might allow the actions
of peaceful groups that dissent from government policy, such as Greenpeace,
to be treated as 'domestic terrorism.'" [ACLU fundraising letter, cited
by Stuart Taylor, "Backlash Grows against Patriot Act- But Critics Miss
the Mark," Fulton County Daily Report, Aug. 5, 2003]
- Reality:
- Section 802's definition of "domestic terrorism" is extremely
narrow - indeed, it is much narrower than the pre-existing definition
of "international terrorism."
- Individuals and groups would be eligible for surveillance under this
definition only if they engage in criminal wrongdoing that
could result in death. That is so because the definition of "domestic
terrorism" is limited to conduct that (1) violates federal or state
criminal law and (2) is dangerous to human life.
- In addition, law enforcement would have to show that the conduct
appears to have been committed with a specified terrorism related
intent, and that the conduct occurred primarily in the U.S.
- By contrast, an individual would fall within the definition of
"international terrorism" whenever he or she commits a crime that
involves "violent" conduct.
Section 805. Material support for terrorism.
- Summary: Strengthens the existing ban on providing material support
to terrorists and terrorist organizations.
- Facts:
- Before the PATRIOT Act, it was not certain that the ban on "material
support or resources" encompassed expert advice and assistance - for
example, advice provided by a civil engineer on destroying a building,
or advice by a biochemist on making a biological agent more lethal.
- Section 805 enhanced the material-support statute in several crucial
respects, including by making it expressly apply to those who provide
expert advice or assistance to terrorists.
- Other changes that section 805 made to the material-support statute
include: (1) making it apply to acts outside the United States; (2)
expanding the list of terrorism crimes for which it is illegal to
provide material support; and (3) clarifying that material support
includes all types of monetary instruments. Section 810 increased
the maximum penalties for providing material support from 10 years
to 15 years.
Section 806. Assets of terrorist organizations.
- Summary: Amends federal forfeiture law to authorize civil forfeiture
of assets owned by persons engaged in terrorism.
- Myth: "Section 806 of the Act could result in the civil seizure
of their assets without a prior hearing, and without them ever being convicted
of a crime. It is by far the most significant change of which political
organizations need to be aware." [ACLU, Dec. 6, 2002]
- Reality:
- Forfeiture under section 806 is authorized only in narrow circumstances.
The subject must be engaged in conduct that (1) violates federal
or state criminal law; (2) involves violence or the risk of
death; and (3) is committed with a terrorist intent.
- Prior law did not specifically authorize the confiscation of terrorist
assets. Instead, forfeiture was authorized only in narrow circumstances
for the "proceeds" of murder, arson, and some terrorism offenses.
But most terrorism offenses do not yield proceeds, and available forfeiture
laws required detailed tracing that is difficult for accounts coming
through the banks of countries used by many terrorists.
- Section 806 increases our ability to strike at terrorists' economic
base by permitting the forfeiture of their property regardless
of the source of the property, and regardless of whether the property
has actually been used to commit a terrorism offense.
- Section 806 is similar to the forfeiture previously available
under RICO. In parity with the drug forfeiture laws, the section
also authorizes the forfeiture of property used or intended to be
used to facilitate a terrorist act, regardless of its source.
- As of April 1, 2003, the Department has not yet used section 806.
In most cases, it has not been necessary for the Department to seek
forfeiture under this provision, because the suspects' assets already
had been frozen by the Treasury Department.
Section 812. Post-release supervision of terrorists.
- Summary: Courts may authorize post-release supervision periods
of up to life for persons convicted of terrorism crimes that involved
the occurrence or foreseeable risk of death or serious injury
- Facts:
- Prior federal law generally capped the maximum period of post-imprisonment
supervision for released felons at 3 or 5 years. The drug
laws mandate longer supervision periods for persons convicted
of certain drug crimes, and specify no upper limit on the duration
of supervision, but before the PATRIOT Act there was nothing comparable
for terrorism offenses.
- Thus, for a released but unreformed terrorist, there was no means
of tracking the person or imposing conditions to prevent renewed involvement
in terrorist activities beyond a period of a few years.
- Section 812 authorized longer supervision periods, including
potentially lifetime supervision, for persons convicted of certain
terrorism crimes. This permits appropriate tracking and oversight
following release of offenders whose involvement with terrorism may
reflect lifelong ideological commitments.
- In order to qualify for post-release supervision under section 812,
one must have committed a specified terrorism-related crime, and the
offense must have resulted in, or created a foreseeable risk of, death
or serious injury.
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