I

103D CONGRESS

1ST SESSION H. R. 1238

To establish constitutional procedures for the imposition of the death penalty

for terrorist murders and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 4, 1993

Mr. SHAW (for himself and Mr. GEKAS) introduced the following bill; which

was referred to the Committee on the Judiciary

A BILL

To establish constitutional procedures for the imposition of

the death penalty for terrorist murders and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 That this Act may be cited as the ‘‘Protection Against

4 Terrorism Act of 1993’’.

5 TITLE I—TERRORISM DEATH PENALTY

6 ACT OF 1993.

7 SEC. 101. DEATH PENALTY FOR TERRORIST ACTS.

8 (a) OFFENSE.—Subsections 2331 (a) through (c) of

9 title 18 of the United States Code are amended to read

10 as follows:
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1 ‘‘(a) HOMICIDE.—Whoever kills a person while such

2 person is inside the United States, or kills a national of

3 the United States, while such national is outside the Unit4 ed States, shall—

5 ‘‘(1)(A) if the killing is a first degree murder

6 as defined in section 1111(a) of this title, be pun7 ished by death or imprisonment for any term of

8 years or for life, or be fined under this title, or both;

9 and

10 ‘‘(B) if the killing is a murder other than a first

11 degree murder as defined in section 1111(a) of this

12 title, be fined under this title or imprisoned for any

13 term of years or for life, or both so fined and so im14 prisoned;

15 ‘‘(2) if the killing is a voluntary manslaughter

16 as defined in section 1112(a) of this title, be fined

17 under this title or imprisoned not more than thirty

18 years, or both; and

19 ‘‘(3) if the killing is an involuntary man20 slaughter as defined in section 1112(a) of this title,

21 be fined under this title or imprisoned not more

22 than ten years, or both.

23 ‘‘(b) ATTEMPT OR CONSPIRACY WITH RESPECT TO

24 HOMICIDE.—Whoever attempts to kill, or engages in a

25 conspiracy to kill, any human being inside the United
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1 States or any national of the United States while such

2 national is outside the United States shall—

3 ‘‘(1) in the case of an attempt to commit a kill4 ing that is a murder as defined in this chapter, be

5 fined under this title or imprisoned not more than

6 thirty-five years, or both; and

7 ‘‘(2) in the case of a conspiracy by two or more

8 persons to commit a killing that is a murder as de9 fined in section 1111(a) of this title, if one or more

10 of such persons do any overt act to effect the object

11 of the conspiracy, be fined under this title or im12 prisoned for any term of years or for life, or both

13 so fined and so imprisoned.

14 ‘‘(c) OTHER CONDUCT.—Whoever engages in phys15 ical violence—

16 ‘‘(1) with intent to cause serious bodily injury

17 to a person inside the United States, or a national

18 of the United States while such national is outside

19 the United States; or

20 ‘‘(2) with the result that serious bodily injury is

21 caused to a person inside the United States, or to

22 a national of the United States while such national

23 is outside the United States;

24 shall be fined under this title or imprisoned not more than

25 ten years, or both’’.
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1 (b) DEATH PENALTY.—Section 2331 of title 18 of

2 the United States Code, is amended by adding at the end

3 thereof the following:

4 ‘‘(f) DEATH PENALTY PROCEDURES.—

5 ‘‘(1) SENTENCE OF DEATH.—A defendant who

6 has been found guilty of an offense described in sub7 section (a)(1)(A), if the defendant, as determined

8 beyond a reasonable doubt at a hearing under para9 graph 3—

10 ‘‘(A) intentionally killed the victim;

11 ‘‘(B) intentionally inflicted serious bodily

12 injury that resulted in the death of the victim;

13 ‘‘(C) intentionally participated in an act,

14 contemplating that the life of a person would be

15 taken or intending that lethal force would be

16 used in connection with a person, other than

17 one of the participants in the offense, and the

18 victim died as a direct result of the act; or

19 ‘‘(D) intentionally and specifically engaged

20 in an act, knowing that the act created a grave

21 risk of death to a person, other than one of the

22 participants in the offense, such that participa23 tion in the act constituted a reckless disregard

24 for human life and the victim died as a direct

25 result of the act.
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1 shall be sentenced to death if, after consideration of the

2 factors set forth in paragraph (2) in the course of a hear3 ing held pursuant to paragraph (3) it is determined that

4 imposition of a sentence of death is justified; provided that

5 no person may be sentenced to death who was less than

6 sixteen years of age at the time of the offense.

7 ‘‘(2) FACTORS TO BE CONSIDERED IN DETER8 MINING WHETHER A SENTENCE OF DEATH IS JUSTI9 FIED—

10 ‘‘(A) MITIGATING FACTORS.—In determin11 ing whether a sentence of death is justified, the

12 jury, or if there is no jury, the court, shall con13 sider each of the following mitigating factors

14 and determine which, if any, exist:

15 ‘‘(i) the defendant’s mental capacity

16 was significantly impaired, although the

17 impairment was not such as to constitute

18 a defense to prosecution;

19 ‘‘(ii) the defendant was under unusual

20 and substantial duress, although not such

21 duress as would constitute a defense to

22 prosecution; and

23 ‘‘(iii) the defendant was an accomplice

24 and participation in the offense was rel25 atively minor.
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1 The jury, or if there is no jury, the court, shall

2 consider whether any other mitigating factor

3 exists.

4 ‘‘(B) AGGRAVATING FACTORS.—In deter5 mining whether a sentence of death is justified,

6 the jury, or if there is no jury, the court, shall

7 consider each of the following aggravating fac8 tors and determine which, if any, exist:

9 ‘‘(i) the death, or injury resulting in

10 death, occurred during the commission or

11 attempted commission of, or during the

12 immediate flight from the commission of,

13 an offense under section 751 (prisoners in

14 custody of institution or officer), section

15 794 (gathering or delivering defense infor16 mation to aid foreign government), section

17 844(d) (transportation of explosives in

18 interstate commerce for certain purposes),

19 section 844(f) (destruction of Government

20 property in interstate commerce by explo21 sives), section 1118 (prisoners serving life

22 term), section 1201 (kidnaping), or section

23 2381 (treason) of this title, or section 902

24 (i) or (n) of the Federal Aviation Act of
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1 1958, as amended (49 U.S.C. 1472 (i) or

2 (n)) (aircraft piracy);

3 ‘‘(ii) the defendant has previously

4 been convicted of another Federal or State

5 offense resulting in the death of a person,

6 for which a sentence of life imprisonment

7 or a sentence of death was authorized by

8 statute;

9 ‘‘(iii) the defendant has previously

10 been convicted of two or more Federal or

11 State offenses, punishable by a term of im12 prisonment of more than one year, commit13 ted on different occasions, involving the in14 fliction of, or attempted infliction of, seri15 ous bodily injury or death upon another

16 person;

17 ‘‘(iv) the defendant, in the commission

18 of the offense, or in escaping apprehension

19 for the violation of the offense, knowingly

20 created a grave risk of death to one or

21 more persons in addition to the victim of

22 the offense;

23 ‘‘(v) the defendant committed the of24 fense in an especially heinous, cruel, or

25 depraved manner;
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1 ‘‘(vi) the defendant procured the com2 mission of the offense by payment or

3 promise of payment of anything of pecu4 niary value;

5 ‘‘(vii) the defendant committed the of6 fense as consideration for the receipt, or in

7 the expectation of the receipt, of anything

8 of pecuniary value;

9 ‘‘(viii) the defendant committed the

10 offense after planning and premeditation

11 to cause the death of a person or commit

12 an act of terrorism;

13 ‘‘(ix) the defendant has previously

14 been convicted of two or more State or

15 Federal offenses punishable by a term of

16 imprisonment of more than one year, com17 mitted on different occasions, involving the

18 distribution of a controlled substance;

19 ‘‘(x) the victim was particularly vul20 nerable due to old age, youth or infirmity,

21 the defendant committed the offense

22 against—

23 ‘‘(I) the President of the United

24 States, the President-elect, the Vice

25 President, the Vice President-elect,
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1 the Vice-President-designate, or, if

2 there is no Vice President, the officer

3 next in order of succession to the of4 fice of the President of the United

5 States, or any person who is acting as

6 President under the Constitution and

7 laws of the United States;

8 ‘‘(II) a chief of state, head of

9 government, or the political equiva10 lent, of a foreign nation;

11 ‘‘(III) a foreign official listed in

12 section 1116(b)(3)(A) of this title, if

13 he is in the United States on official

14 business; or

15 ‘‘(iv) a Federal public servant

16 who is a judge, a law enforcement of17 ficer, or an employee of a United

18 States penal or correctional institu19 tion—

20 ‘‘(aa) while he is engaged in

21 the performance of his official

22 duties;

23 ‘‘(bb) because of the per24 formance of his official duties; or
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1 ‘‘(cc) because of his status

2 as a public servant.

3 For purposes of this subparagraph, a ‘law

4 enforcement officer’ is a public servant au5 thorized by law or by a Government agency

6 or Congress to conduct or engage in the

7 prevention, investigation, or prosecution of

8 an offense.

9 The jury, or if there is no jury, the court, may

10 consider whether any other aggravating factor

11 exists.

12 ‘‘(3) SPECIAL HEARING TO DETERMINE

13 WHETHER A SENTENCE OF DEATH IS JUSTIFIED.—

14 ‘‘(A) NOTICE BY THE GOVERNMENT.—If

15 the attorney for the Government believes that

16 the circumstances of the offense are such that

17 a sentence of death is justified under this chap18 ter, he shall, a reasonable time before the trial,

19 or before acceptance by the court of a plea of

20 guilty, or at such time thereafter as the court

21 may permit upon a showing of good cause, sign

22 and file with the court, and serve on the de23 fendant, a notice—

24 ‘‘(i) stating that the Government be25 lieves that the circumstances of the offense
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1 are such that, if the defendant is convicted,

2 a sentence of death is justified under this

3 chapter and that the Government will seek

4 the sentence of death; and

5 ‘‘(ii) setting forth the aggravating fac6 tor or factors that the Government, if the

7 defendant is convicted, proposes to prove

8 as justifying a sentence of death.

9 The court may permit the attorney for the Gov10 ernment to amend the notice upon a showing of

11 good cause.

12 ‘‘(B) HEARING BEFORE A COURT OR

13 JURY.—If the attorney for the Government has

14 filed a notice as required under subsection (a)

15 and the defendant is found guilty of or pleads

16 guilty to an offense described in paragraph (1),

17 the judge who presided at the trial or before

18 whom the guilty plea was entered, or another

19 judge if that judge is unavailable, shall conduct

20 a separate sentencing hearing to determine the

21 punishment to be imposed. The hearing shall be

22 conducted—

23 ‘‘(i) before the jury that determined

24 the defendant’s guilt;
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1 ‘‘(ii) before a jury impaneled for the

2 purpose of the hearing if—

3 ‘‘(I) the defendant was convicted

4 upon a plea of guilty;

5 ‘‘(II) the defendant was convicted

6 after a trial before the court sitting

7 without a jury;

8 ‘‘(III) the jury that determined

9 the defendant’s guilt was discharged

10 for good cause; or

11 ‘‘(IV) after initial imposition of a

12 sentence under this section, reconsid13 eration of the sentence under this sec14 tion is necessary; or

15 ‘‘(iii) before the court alone, upon the

16 motion of the defendant and with the ap17 proval of the attorney for the Government.

18 A jury impaneled pursuant to paragraph

19 (3)(b)(2) shall consist of twelve members, un20 less, at any time before the conclusion of the

21 hearing, the parties stipulate, with the approval

22 of the court, that it shall consist of a lesser

23 number.

24 ‘‘(C) PROOF OF MITIGATING AND AGGRA25 VATING FACTORS.—Notwithstanding rule 32(c)
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1 of the Federal Rules of Criminal Procedure,

2 when a defendant is found guilty or pleads

3 guilty to an offense under paragraph (1), no

4 presentence report shall be prepared. At the

5 sentencing hearing, information may be pre6 sented as to any matter relevant to the sen7 tence, including any mitigating or aggravating

8 factor permitted or required to be considered

9 under paragraph (2). Information presented

10 may include the trial transcript and exhibits if

11 the hearing is held before a jury or judge not

12 present during the trial. Any other information

13 relevant to a mitigating or aggravating factor

14 may be presented by either the attorney for the

15 Government or the defendant, regardless of its

16 admissibility under the rules governing admis17 sion of evidence at criminal trials, except that

18 information may be excluded if its probative

19 value is substantially outweighed by the danger

20 of creating unfair prejudice, confusing the is21 sues, or misleading the jury. The Government

22 and the defendant shall be permitted to rebut

23 any information received at the hearing, and

24 shall be given fair opportunity to present argu25 ment as to the adequacy of the information to
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1 establish the existence of any aggravating or

2 mitigating factor, and as to the appropriateness

3 in the case of imposing a sentence of death.

4 The Government shall open the argument. The

5 defendant shall be permitted to reply. The Gov6 ernment shall then be permitted to reply in re7 buttal. The burden of establishing the existence

8 of any aggravating factor is on the Government,

9 and is not satisfied unless the existence of such

10 a factor is established beyond a reasonable

11 doubt. The burden of establishing the existence

12 of any mitigating factor is on the defendant,

13 and is not satisfied unless the existence of such

14 a factor is established by a preponderance of

15 the information.

16 ‘‘(D) RETURN OF SPECIAL FINDINGS.—

17 The jury, or if there is no jury, the court, shall

18 consider all the information received during the

19 hearing. It shall return a special finding as to

20 each mitigating and aggravating factor, con21 cerning which information is presented at the

22 hearing, required to be considered under para23 graph (2). The jury must find the existence of

24 an aggravating factor by a unanimous vote al25 though it is unnecessary that there be a unani-
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1 mous vote on any specific aggravating factor if

2 a majority of the jury finds the existence of

3 such a specific factor. A finding with respect to

4 a mitigating factor may be made by one or

5 more members of the jury and any member of

6 the jury who finds the existence of a mitigating

7 factor may consider such a factor established

8 for purposes of this section, regardless of the

9 number of jurors who consider that the factor

10 has been established.

11 ‘‘(E) RETURN OF A FINDING CONCERNING

12 A SENTENCE OF DEATH.—If an aggravating

13 factor required to be considered under subpara14 graph (2)(c) is found to exist; the jury, or if

15 there is no jury, the court, shall then consider

16 whether all the aggravating factors found to

17 exist sufficiently outweigh all the mitigating

18 factors found to exist to justify a sentence of

19 death, or, in the absence of a mitigating factor,

20 whether the aggravating factors alone are suffi21 cient to justify a sentence of death. Based upon

22 this consideration, the jury by unanimous vote,

23 or if there is no jury, the court shall return a

24 finding as to whether a sentence of death is jus25 tified.
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1 ‘‘(F) SPECIAL PRECAUTION TO ASSURE

2 AGAINST DISCRIMINATION.—In a hearing held

3 before a jury, the court, prior to the return of

4 a finding under subparagraph (E), shall in5 struct the jury that, in considering whether a

6 sentence of death is justified, it shall not con7 sider the race, color, national origin, creed, or

8 sex of the defendant. The jury, upon return of

9 a finding under subparagraph (E), shall also re10 turn to the court a certificate, signed by each

11 juror, that consideration of the race, color, na12 tional origin, creed, or sex of the defendant was

13 not involved in reaching the juror’s individual

14 decision.

15 ‘‘(4) IMPOSITION OF A SENTENCE OF DEATH.—

16 Upon a finding under subparagraph (3)(E) that a

17 sentence of death is justified, the court shall sen18 tence the defendant to death. Upon a finding under

19 subparagraph (3)(E) that a sentence of death is not

20 justified, or under subparagraph (3)(E) that no ag21 gravating factor required to be found exsits, the

22 court shall impose any sentence other than death

23 that is authorized by law. Notwithstanding any other

24 provision of law, if the maximum term of imprison25 ment for the offense is life imprisonment the court
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1 may impose a sentence of life imprisonment without

2 parole.

3 ‘‘(5) REVIEW OF A SENTENCE OF DEATH.—

4 ‘‘(A) APPEAL.—In a case in which a sen5 tence of death is imposed, the sentence shall be

6 subject to review by the court of appeals upon

7 appeal by the defendant. Notice of appeal must

8 be filed within the time specified for the filing

9 of a notice of appeal. An appeal under this sec10 tion may be consolidated with an appeal of the

11 judgment of conviction and shall have priority

12 over all other cases.

13 ‘‘(B) REVIEW.—The court of appeals shall

14 review the entire record in the case, including—

15 ‘‘(i) the evidence submitted during the

16 trial;

17 ‘‘(ii) the information submitted during

18 the sentencing hearing;

19 ‘‘(iii) the procedures employed in the

20 sentencing hearing; and

21 ‘‘(iv) the special findings returned

22 under subparagraph (3)(D).

23 ‘‘(C) DECISION AND DISPOSITION.—

24 ‘‘(i) If the court of appeals determines

25 that—
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1 ‘‘(I) the sentence of death was

2 not imposed under the influence of

3 passion, prejudice, or any other arbi4 trary factor; and

5 ‘‘(II) the information supports

6 the special finding of the existence of

7 an aggravating factor required to be

8 considered under paragraph (2); it

9 shall affirm the sentence.

10 ‘‘(ii) In any other case, the court of

11 appeals shall remand the case for reconsid12 eration under paragraph (3).

13 ‘‘(iii) The court of appeals shall state

14 in writing the reasons for its disposition of

15 an appeal of a sentence of death under this

16 section.

17 ‘‘(6) IMPLEMENTATION OF A SENTENCE OF

18 DEATH.—A person who has been sentenced to death

19 pursuant to the provisions of this chapter shall be

20 committed to the custody of the Attorney General

21 until exhaustion of the procedures for appeal of the

22 judgment of conviction and for review of the sen23 tence. When the sentence is to be implemented, the

24 Attorney General shall release the person sentenced

25 to death to the custody of a United States marshal,
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1 who shall supervise implementation of the sentence

2 in the manner prescribed by the law of the State in

3 which the sentence is imposed. If the law of such

4 State does not provide for implementation of a sen5 tence of death, the court shall designate another

6 State, the law of which does so provide, and the sen7 tence shall be implemented in the latter State in the

8 manner prescribed by such law. A sentence of death

9 shall not be carried out upon a woman while she is

10 pregnant.

11 ‘‘(7) USE OF STATE FACILITIES.—

12 ‘‘(A) IN GENERAL.—A United States mar13 shal charged with supervising the implementa14 tion of a sentence of death may use appropriate

15 State or local facilities for the purpose, may use

16 the services of an appropriate State or local of17 ficial or of a person such an official employs for

18 the purpose, and shall pay the costs thereof in

19 an amount approved by the Attorney General.

20 ‘‘(B) EXCUSE OF AN EMPLOYEE ON MORAL

21 OR RELIGIOUS GROUNDS.—No employee of any

22 State department of corrections or the Federal

23 Bureau of Prisons and no employee providing

24 services to that department or bureau under

25 contract shall be required as a condition of that
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1 employment, or contractual obligation to be in

2 attendance at or to participate in any execution

3 carried out under this section if such participa4 tion is contrary to the moral or religious convic5 tions of the employee. For purposes of this sub6 section, the term ‘participation in execution’ in7 cludes personal preparation of the condemned

8 individual and the apparatus used for execution

9 and supervision of the activities of other person10 nel in carrying out such activities.’’.

11 TITLE II—TERRORIST ALIEN REMOVAL

12 SEC. 201. This Act may be cited as the ‘‘Terrorist

13 Alien Removal Act of 1991’’.

14 SEC. 2. The Congress finds that (a) Terrorist groups

15 have been able to create significant infrastructures and

16 cells in the United States among persons who are in the

17 United States either temporarily, as students or in other

18 capacities, or as permanent resident aliens.

19 (b) International terrorist groups that sponsor these

20 infrastructures were responsible for—

21 (1) conspiring to bomb the Turkish Honorary

22 Consulate in Philadelphia, Pennsylvania in 1982;

23 (2) hijacking Trans World Airlines Flight 847

24 during which a United States Navy diver was mur25 dered in 1985;
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1 (3) hijacking Egypt Air Flight 648 during

2 which three Americans were killed in 1985;

3 (4) murdering an American citizen aboard the

4 Achille Lauro cruise liner in 1985;

5 (5) hijacking Pan Am Flight 73 in Karachi,

6 Pakistan, in which forty-four Americans were held

7 hostage and two were killed in 1986;

8 (6) conspiring to bomb an Air India aircraft in

9 New York City in 1986;

10 (7) attempting to bomb the Air Canada cargo

11 facility at the Los Angeles International airport in

12 1986; and

13 (8) numerous bombings and murders in North14 ern Ireland over the past decade.

15 (c) Certain governments and organizations have di16 rected their assets in the United States to take measures

17 in preparation for the commission of terrorist acts in this

18 country.

19 (d) Present immigration laws have not been used to

20 any significant degree by law enforcement officials to de21 port alien terrorists because compliance with these laws

22 with respect to such aliens would compromise classified

23 intelligence sources and information. Moreover, appellate

24 procedures routinely afforded aliens following a deporta25 tion hearing frequently extend over several years resulting
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1 in an inability to remove expeditiously aliens engaging in

2 terrorist activity.

3 (e) Present immigration laws are inadequate to pro4 tect the national security of the United States from terror5 ist attacks by certain aliens. Therefore, new procedures

6 are needed to remove alien terrorists from the United

7 States and thus reduce the threat that such aliens pose

8 to the national security and other vital interests of the

9 United States.

10 SEC. 203. (a) Subsection 241(a) of the Immigration

11 and Nationality Act (8 U.S.C. 1251(a)) is amended by

12 adding at the end thereof a new paragraph 21 as follows:

13 ‘‘(21) either prior or subsequent to entry is en14 gaging in or has engaged in terrorist activity.’’.

15 (b) Subsection 101(a) of the Immigration and Na16 tionality Act (8 U.S.C. 1101(a)) is amended by adding at

17 the end thereof the following new paragraphs:

18 ‘‘(43) The term ‘terrorist activity’ means any activity

19 which is unlawful under the laws of the place where it

20 is committed, or which, if committed in the United States

21 would have been unlawful under the laws of the United

22 States or of any State and which involves—

23 ‘‘(A) the hijacking of an aircraft, vessel, or

24 vehicle;
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1 ‘‘(B) the sabotage of an aircraft, vessel, or

2 vehicle;

3 ‘‘(C) the seizing or detaining and threatening to

4 kill, injure, or continue to detain another person in

5 order to compel a third person or governmental or6 ganization to do or abstain from doing any act as

7 an explicit or implicit condition for the release of the

8 person detained or seized;

9 ‘‘(D) a violent attack upon the person or liberty

10 of an ‘internationally protected person’ as defined in

11 18 U.S.C. 1116(b)(4);

12 ‘‘(E) the use of any explosive, biological agent,

13 chemical agent, nuclear weapon or device, or fire14 arm with intent to endanger, directly or indirectly,

15 the safety of people or cause substantial damage to

16 property;

17 ‘‘(F) an assassination; or

18 ‘‘(G) any threat, attempt, or conspiracy to do

19 any of the foregoing.

20 ‘‘(44) The term ‘engage in a terrorist activity’ means

21 to commit an act of terrorist activity or to do an act which

22 the actor knows, or reasonably should know, affords mate23 rial support to any individual or enterprise in conducting

24 terrorist activity at any time including, but not limited

25 to—
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1 ‘‘(A) the preparation and planning of terrorist

2 activity;

3 ‘‘(B) the gathering of intelligence on potential

4 targets for terrorist activity;

5 ‘‘(C) the providing of any type of material sup6 port including but not limited to a safe house, trans7 portation, funds, false identification, weapon, or ex8 plosive to any individual who the actor knows or has

9 reason to believe has committed or plans to commit

10 an act of terrorist activity;

11 ‘‘(D) the soliciting of funds or other things of

12 value for terrorist activity or for any organization

13 which engages in or which has engaged in terrorist

14 activity; or

15 ‘‘(E) the solicitation of any individual for mem16 bership in a terrorist enterprise;

17 The term does not include lawful speeches, writings, or

18 attendance and participation in peaceful public assemblies;

19 Provided, however, That evidence of any speech, writing,

20 or participation in any public assembly may be used to

21 show the actor’s awareness of the unlawful methods of an

22 individual or enterprise conducting terrorist activity.

23 ‘‘(45) The term ‘individual’ means a human being.

24 ‘‘(46) The term ‘enterprise’ means an organization

25 or government.’’.
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1 SEC. 204. The Immigration and Nationality Act is

2 amended by adding at the end thereof a new title V as

3 follows:

4 ‘‘TITLE V—REMOVAL OF ALIEN

5 TERRORISTS

‘‘Sec.

‘‘501 (adds 8 U.S.C. 1601). Applicability.

‘‘502 (adds 8 U.S.C. 1602). Special Removal Hearing.

‘‘503 (adds 8 U.S.C. 1603). Designation of Judges.

‘‘504 (adds 8 U.S.C. 1604). Miscellaneous Provisions.

6 ‘‘§ 501. Applicability

7 ‘‘(a) The provisions of this title may be followed in

8 the discretion of the Department of Justice whenever the

9 Department of Justice has information that an alien de10 scribed in paragraph 21 of subsection 241(a) of this Act

11 (8 U.S.C. 1251(a)(21)) is subject to deportation because

12 of that paragraph.

13 ‘‘(b) Whenever an official of the Department of Jus14 tice files, under section 502, an application with the court

15 established under section 503 for authorization to seek re16 moval pursuant to the provisions of this title, the alien’s

17 rights regarding removal and expulsion shall be governed

18 solely by the provisions of this title. Except as they are

19 specifically referenced, no other provisions of the Immigra20 tion and Nationality Act shall be applicable. An alien sub21 ject to removal under these provisions shall have no right

22 of discovery of information derived from electronic surveil23 lance authorized under the Foreign Intelligence Surveil-
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1 lance Act or otherwise for national security purposes, nor

2 shall such alien have the right to seek suppression of evi3 dence derived in such manner. Further, the Government

4 is authorized to use, in the removal proceeding, the fruits

5 of electronic surveillance authorized under the Foreign In6 telligence Surveillance Act without regard to subsections

7 106 (c), (e), (f), (g), and (h) of that Act.

8 ‘‘(c) This title is enacted in response to findings of

9 Congress that aliens described in paragraph 21 of sub10 section 241(a) of this Act (8 U.S.C. 1251(a)(21)) rep11 resent a unique threat to the security of the United States.

12 It is the intention of Congress that such aliens be prompt13 ly removed from the United States following—

14 ‘‘(1) a judicial determination of probable cause

15 to believe that a person is such an alien; and

16 ‘‘(2) a judicial determination pursuant to the

17 provisions of this title that an alien is removable on

18 the grounds that he is an alien described in para19 graph 21 of subsection 241(a) (8 U.S.C.

20 1251(a)(21));

21 and that such aliens not be given a deportation hearing

22 and are ineligible for any discretionary relief from deporta23 tion and for relief under subsection 243(h) of the Immi24 gration and Nationality Act.
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1 ‘‘§ 502. Special Removal Hearing

2 ‘‘(a) Whenever removal of an alien is sought pursuant

3 to the provisions of this title, a written application upon

4 oath or affirmation shall be submitted in camera and ex

5 parte to the court established under section 503 for an

6 order authorizing such a procedure. Each application shall

7 require the approval of the Attorney General, the Deputy

8 Attorney General, or the Associate Attorney General based

9 upon his finding that it satisfies the criteria and require10 ments for such application as set forth in this title. Each

11 application shall include—

12 ‘‘(1) the identity of the Department of Justice

13 attorney making the application;

14 ‘‘(2) the approval of the Attorney General, the

15 Deputy Attorney General, or the Associate Attorney

16 General for the making of the application;

17 ‘‘(3) the identity of the alien for whom author18 ization for the special removal procedure is sought;

19 and

20 ‘‘(4) a statement of facts and circumstances re21 lied on by the Department of Justice to establish

22 that—

23 ‘‘(A) an alien as described in paragraph 21

24 of subsection 241(a) of this Act (8 U.S.C.

25 1251(a)(21)) is physically present in the United

26 States, and
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1 ‘‘(B) with respect to such alien, adherence

2 to the provisions of title II of this Act regarding

3 the deportation of aliens would tend to harm

4 the national security of the United States, ad5 versely affect foreign relations, reveal an inves6 tigative technique important to efficient law en7 forcement, or disclose a confidential source of

8 information.

9 ‘‘(b) The application shall be filed under seal with

10 the court established under section 503. The Attorney

11 General may take into custody any alien with respect to

12 whom such an application has been filed and, notwith13 standing any other provision of law, may retain such an

14 alien in custody in accordance with the procedures author15 ized by this title.

16 ‘‘(c) In accordance with the rules of the court estab17 lished under section 503, the judge shall consider the ap18 plication and may consider other information presented

19 under oath or affirmation at an in camera and ex parte

20 hearing on the application. A verbatim record shall be

21 maintained of such a hearing. The application and any

22 other evidence shall be considered by a single judge of that

23 court who shall enter an ex parte order as requested if

24 he finds, on the basis of the facts submitted in the applica25 tion and any other information provided by the Depart-
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1 ment of Justice at the in camera and ex parte hearing,

2 there is probable cause to believe that—

3 ‘‘(1) the alien who is the subject of the applica4 tion has been correctly identified and is an alien as

5 described in paragraph 21 of subsection 241(a) of

6 this Act (8 U.S.C. 1251(a)); and

7 ‘‘(2) adherence to the provisions of title II of

8 this Act regarding the deportation of the identified

9 alien would tend to harm the national security of the

10 United States, adversely affect foreign relations, re11 veal an investigative technique important to efficient

12 law enforcement or disclose a confidential source of

13 information.

14 ‘‘(d)(1) In any case in which the application for the

15 order is denied, the judge shall prepare a written state16 ment of his reasons for the denial and the Department

17 of Justice may seek a review of the denial by the Court

18 of Appeals for the Federal Circuit by notice of appeal

19 which must be filed within twenty days. In such a case

20 the entire record of the proceeding shall be transmitted

21 to the Court of Appeals under seal and the Court of Ap22 peals shall hear the matter ex parte.

23 ‘‘(2) If the Department of Justice does not seek re24 view, the alien shall be released from custody unless such

25 alien may be arrested and taken into custody pursuant
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1 to title II of this Act as an alien subject to deportation,

2 in which case such alien shall be treated in accordance

3 with the provisions of this Act concerning the deportation

4 of aliens.

5 ‘‘(3) If the application for the order is denied because

6 the judge has not found probable cause to believe that the

7 alien who is the subject of the application has been cor8 rectly identified or is an alien as described in paragraph

9 21 of subsection 241(a) of this Act (8 U.S.C. 1251(a))

10 and the Department of Justice seeks review, the alien shall

11 be released from custody unless such alien may be arrested

12 and taken into custody pursuant to title II of this Act

13 as an alien subject to deportation, in which case such alien

14 shall be treated in accordance with the provisions of this

15 Act concerning the deportation of aliens simultaneously

16 with the application of this title.

17 ‘‘(4) If the application for the order is denied be18 cause, although the judge found probable cause to believe

19 that the alien who is the subject of the application has

20 been correctly identified and is an alien as described in

21 paragraph 21 of subsection 241(a) of this Act (8 U.S.C.

22 1251(a)), the judge has found that there is not probable

23 cause to believe that adherence to the provisions of title

24 II of this Act regarding the deportation of the identified

25 alien would tend to harm the national security of the Unit-
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1 ed States, adversely affect foreign relations, reveal an in2 vestigative technique important to efficient law enforce3 ment, or disclose a confidential source of information, the

4 judge shall release the alien from custody subject to the

5 least restrictive condition or combination of conditions of

6 release described in subsection 3142 (b) and (c)(1)(B)(i)–

7 (xiv) of title 18 that will reasonably assure the appearance

8 of the alien at any future proceeding pursuant to this title

9 and will not endanger the safety of any other person or

10 the community, but if the judge finds no such condition

11 or combination of conditions the alien shall remain in cus12 tody until the completion of any appeal authorized by this

13 title. The provisions of sections 3145–3148 of title 18 per14 taining to review and appeal of a release or detention

15 order, penalties for failure to appear, penalties for an of16 fense committed while on release, and sanctions for viola17 tions of a release condition shall apply to an alien to whom

18 the previous sentence applies and—

19 ‘‘(A) for purposes of section 3145 an appeal

20 shall be taken to the Court of Appeals for the Fed21 eral Circuit; and

22 ‘‘(B) for purposes of section 3146 the alien

23 shall be considered released in connection with a

24 charge of an offense punishable by life imprison25 ment.
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1 ‘‘(e)(1) In any case in which the application for the

2 order authorizing the special procedures of this title is ap3 proved, the judge who granted the order shall consider

4 separately each item of evidence the Department of Jus5 tice proposes to introduce in camera and ex parte at the

6 special removal hearing. The judge shall authorize the in7 troduction in camera and ex parte of any item of evidence

8 for which the judge determines that the introduction other

9 than in camera and ex parte would tend to harm the na10 tional security of the United States, adversely affect for11 eign relations, reveal an investigative technique important

12 to efficient law enforcement, or disclose a confidential

13 source of information. With respect to any evidence which

14 the judge authorizes to be introduced in camera and ex

15 parte, the judge shall cause to be prepared and shall sign,

16 and the Department of Justice shall cause to be delivered

17 to the alien, either—

18 ‘‘(A) a written summary which shall be suffi19 cient to inform the alien of the general nature of the

20 evidence that he is an alien as described in para21 graph 21 of subsection 241(a) of this Act (8 U.S.C.

22 1251(a)(21)) and to permit the alien to marshal the

23 facts and prepare a defense, but which shall not

24 tend to harm the national security, adversely affect

25 foreign relations, reveal an investigative technique
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1 important to efficient law enforcement, or disclose a

2 confidential source; or

3 ‘‘(B) if necessary to prevent serious harm to the

4 national security or death or serious bodily injury to

5 any person, a statement informing the alien that no

6 such summary is possible.

7 ‘‘(2) The Department of Justice may take an

8 interlocutory appeal to the United States Court of

9 Appeals for the Federal Circuit of any determination

10 by the judge pursuant to paragraph (1)—

11 ‘‘(A) concerning whether an item of evidence

12 may be introduced in camera and ex parte;

13 ‘‘(B) concerning the contents of any summary

14 of evidence to be introduced in camera and ex parte

15 prepared pursuant to subparagraph (e)(1)(A); or

16 ‘‘(C) ruling that no summary of evidence to be

17 introduced in camera and ex parte is possible pursu18 ant to subparagraph (e)(1)(B).

19 In any interlocutory appeal taken pursuant to this para20 graph, the entire record, including any proposed order of

21 the judge or summary of evidence, shall be transmitted

22 to the Court of Appeals under seal which shall hear the

23 matter ex parte. The Court of Appeals shall consider the

24 appeal as expeditiously as possible.
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1 ‘‘(f) In any case in which the application for the order

2 is approved the special removal hearing authorized by this

3 section shall be conducted for the purpose of determining

4 if the alien to whom the order pertains should be removed

5 from the United States on the grounds that he is an alien

6 as described in paragraph 21 of subsection 241(a) of this

7 Act (8 U.S.C. 1251(a)(21)). In accordance with subsection

8 (e), the alien shall be given reasonable notice of the nature

9 of the charges against him. The alien shall be given notice,

10 reasonable under all the circumstances, of the time and

11 place at which the hearing will be held. The hearing shall

12 be held as expeditiously as possible.

13 ‘‘(g) The special removal hearing shall be held before

14 the same judge who granted the order pursuant to sub15 section (e) unless that judge is deemed unavailable due

16 to illness or disability by the chief judge of the court estab17 lished pursuant to section 503, or has died. A decision

18 by the chief judge pursuant to the preceding sentence shall

19 not be subject to review by either the alien or the Depart20 ment of Justice.

21 ‘‘(h) The hearing shall be open to the public. The

22 alien shall have a right to be present as such hearing and

23 to be represented by counsel. Any alien financially unable

24 to obtain counsel shall be entitled to have counsel assigned

25 to represent him. Such counsel shall be appointed by the
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1 judge pursuant to the plan for furnishing representation

2 for any person financially unable to obtain adequate rep3 resentation for the district in which the hearing is con4 ducted as provided for in section 3006A of title 18, all

5 provisions of that section shall apply, and for purposes of

6 determining the maximum amount of compensation, the

7 matter shall be treated as if a felony was charged. The

8 alien may be called as a witness by the Department of

9 Justice. The alien shall have a right to introduce evidence

10 on his own behalf. Except as provided in subsection (j),

11 the alien shall have a reasonable opportunity to examine

12 the evidence against him and to cross-examine any wit13 nesses. A verbatim record of the proceedings and of all

14 testimony and evidence offered or produced at such a

15 hearing shall be kept. The decision of the judge shall be

16 based only on the evidence introduced at the hearing, in17 cluding evidence introduced under subsection (j).

18 ‘‘(i) At any time prior to the conclusion of the hear19 ing, either the alien or the Department of Justice may

20 request the judge to issue a subpoena for the presence of

21 a named witness (which subpoena may also command the

22 person to whom it is directed to produce books, papers,

23 documents, or other objects designated therein) upon a

24 satisfactory showing that the presence of the witness is

25 necessary for the determination of any material matter.
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1 Such a request may be made ex parte except that the

2 judge shall inform the Department of Justice of any re3 quest for a subpoena by the alien for a witness or material

4 if compliance with such a subpoena would reveal evidence

5 or the source of evidence which has been introduced, or

6 which the Department of Justice has received permission

7 to introduce, in camera and ex parte pursuant to sub8 section (j), and the Department of Justice shall be given

9 a reasonable opportunity to oppose the issuance of such

10 a subpoena. If an application for a subpoena by the alien

11 also makes a showing that the alien is financially unable

12 to pay for the attendance of a witness so requested, the

13 court may order the costs incurred by the process and the

14 fees of the witness so subpoenaed to be paid for from

15 funds appropriated for the enforcement of title II of this

16 Act. A subpoena under this subsection may be served any17 where in the United States. A witness subpoenaed under

18 this subsection shall receive the same fees and expenses

19 as a witness subpoenaed in connection with a civil proceed20 ing in a court of the United States. Nothing in this sub21 section is intended to allow an alien to have access to clas22 sified information.

23 ‘‘(j) Evidence which has either been summarized pur24 suant to subsection (e)(1)(A) or for which no summary

25 has been deemed possible pursuant to subsection (e)(1)(B)
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1 shall be introduced (either in writing or through testi2 mony) in camera and ex parte and neither the alien, nor

3 the public shall be informed of such evidence or its source

4 other than through reference to the summary provided

5 pursuant to subsection (e)(1)(A) or to the explanation that

6 no summary could be provided pursuant to subsection

7 (e)(1)(B). Notwithstanding the previous sentence, the De8 partment of Justice may, in its discretion, elect to intro9 duce such evidence in open session.

10 ‘‘(k) Evidence introduced at the hearing, either in

11 open session or in camera and ex parte may, in the discre12 tion of the Department of Justice, include all or part of

13 the information presented under subsections (a) through

14 (c) used to obtain the order for the hearing under this

15 section.

16 ‘‘(l) Following the receipt of evidence, the attorney

17 for the Department of Justice and for the alien shall be

18 given fair opportunity to present argument as to whether

19 the evidence is sufficient to justify the removal of the

20 alien. The attorney for the Department of Justice shall

21 open the argument. The attorney for the alien shall be

22 permitted to reply. The attorney for the Department of

23 Justice shall then be permitted to reply in rebuttal. The

24 judge may allow any part of the argument that refers to
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1 evidence received in camera and ex parte to be heard in

2 camera and ex parte.

3 ‘‘(m) The Department of Justice has the burden of

4 showing by clear and convincing evidence that the alien

5 is subject to removal because he is an alien as described

6 in paragraph 21 of subsection 241(a) of this Act (8 U.S.C.

7 1251(a)(21)). If the judge finds that the Department of

8 Justice has met this burden, the judge shall order the

9 alien removed.

10 ‘‘(n)(1) At the time of rendering a decision as to

11 whether the alien shall be removed, the judge shall prepare

12 a written order containing a statement of facts found and

13 conclusions of law. Any portion of the order that would

14 reveal the substance or source of evidence received in cam15 era and ex parte pursuant to subsection (j) shall not be

16 made available to the alien or the public.

17 ‘‘(2) The decision of the judge may be appealed by

18 either the alien or the Department of Justice to the Court

19 of Appeals for the Federal Circuit by notice of appeal

20 which must be filed within twenty days, during which time

21 such order shall not be executed. In any case appealed

22 pursuant to this subsection, the entire record shall be

23 transmitted to the Court of Appeals and information re24 ceived pursuant to subsection (j), and any portion of the

25 judge’s order that would reveal such information or its
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1 source, shall be transmitted under seal. The Court of Ap2 peals shall consider the case as expeditiously as possible.

3 ‘‘(3) In an appeal to the Court of Appeals pursuant

4 to either subsections (d) or (e) or this subsection, the

5 Court of Appeals shall review questions of law de novo

6 but a prior finding on any question of fact shall not be

7 set aside unless such finding was clearly erroneous.

8 ‘‘(o) If the judge decides, pursuant to subsection (n),

9 that the alien should not be removed, the alien shall be

10 released from custody unless such alien may be arrested

11 and taken into custody pursuant to title II of this Act

12 as an alien subject to deportation in which case, for pur13 poses of detention, such alien may be treated in accord14 ance with the provisions of this Act concerning the depor15 tation of aliens.

16 ‘‘(p) Following a decision by the Court of Appeals

17 pursuant to either subsection (d) or subsection (n), either

18 the alien or the Department of Justice may petition the

19 Supreme Court for a writ of certiorari. In any such case,

20 any information transmitted to the Court of Appeals

21 under seal shall, if such information is also submitted to

22 the Supreme Court, be transmitted under seal.

23 ‘‘§ 503. Designation of Judges

24 ‘‘(a) The Chief Justice of the United States shall

25 publicly designate five district court judges from five of
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1 the United States judicial circuits who shall constitute a

2 court which shall have jurisdiction to conduct all matters

3 and proceedings authorized by section 502. One of the

4 judges so appointed shall be publicly designated as the

5 presiding judge by the Chief Justice. The presiding judge

6 shall promulgate rules to facilitate the functioning of the

7 court and shall be responsible for assigning the consider8 ation of cases to the various judges.

9 ‘‘(b) Proceedings under section 502 shall be con10 ducted as expeditiously as possible. The Chief Justice, in

11 consultation with the Attorney General and other appro12 priate Federal officials, shall, consistent with the objec13 tives of this title, provide for the maintenance of appro14 priate security measures for applications for ex parte or15 ders to conduct the special removal hearing authorized by

16 section 502, the orders themselves, evidence received in

17 camera and ex parte, and other matters as necessary to

18 protect information concerning matters before the court

19 from harming the national security of the United States,

20 adversely affecting foreign relations, revealing investiga21 tive techniques, or disclosing confidential sources of infor22 mation.

23 ‘‘(c) Each judge designated under this section shall

24 serve for a term of five years and shall be eligible for re25 designation except that the four associate judges first des-
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1 ignated under subsection (a) shall be designated for terms

2 of from one to four years so that one term expires each

3 year.

4 ‘‘§ 504. Miscellaneous Provisions

5 ‘‘(a)(1) Following a determination pursuant to this

6 title that an alien shall be removed, and after the conclu7 sion of any judicial review thereof, the Attorney General

8 may retain the alien in custody, or if the alien was released

9 pursuant to subsection 502(o) may return the alien to cus10 tody, and shall cause the alien to be transported to any

11 country which the alien shall designate provided such des12 ignation does not, in the Attorney General’s judgment, im13 pair any treaty (including a treaty pertaining to extra14 dition) obligation of the United States or otherwise ad15 versely affect the foreign policy of the United States.

16 ‘‘(2) If the alien refuses to chose a country to which

17 he wishes to be transported, or if the Attorney General

18 determines that removal of the alien to a selected country

19 would impair a treaty obligation or adversely affect foreign

20 policy, the Attorney General shall cause the alien to be

21 transported to any country willing to receive such alien.

22 ‘‘(3) Before an alien is transported out of the United

23 States pursuant to paragraph (1) or (2) or pursuant to

24 an order of exclusion because such alien is excludable

25 under paragraph 34 of subsection 212(a) of this Act (8
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1 U.S.C. 1182(a)(34)), he or she shall be photographed and

2 fingerprinted, and shall be advised of the provisions of

3 subsection 276(b) of this Act (8 U.S.C. 1326(b)).

4 ‘‘(4) If no country is willing to receive such an alien,

5 the Attorney General may, notwithstanding any other pro6 vision of law, retain the alien in custody. The Attorney

7 General shall make periodic efforts to reach agreement

8 with other countries to accept such an alien and shall sub9 mit a written report on his efforts to obtain such an agree10 ment to the alien at least every six months. Any alien in

11 custody pursuant to this subsection shall be released from

12 custody solely at the discretion of the Attorney General

13 and subject to such conditions as the Attorney General

14 shall deem appropriate. The actions of the Attorney Gen15 eral pursuant to this subsection shall not be subject to

16 judicial review, including application for a writ of habeas

17 corpus except for a claim that his rights under the Con18 stitution are being violated by continued detention. Juris19 diction over any such challenge shall lie exclusively in the

20 Court of Appeals for the Federal Circuit.

21 ‘‘(b)(1) Notwithstanding the provisions of subsection

22 (a), the Attorney General may hold in abeyance the re23 moval of an alien who has been ordered removed pursuant

24 to this title to allow the trial of such alien on any federal
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1 or State criminal charge and the service of any sentence

2 of confinement resulting from such a trial.

3 ‘‘(2) Pending the commencement of any service of a

4 sentence of confinement, by an alien described in para5 graph (1), such an alien shall remain in the custody of

6 the Attorney General, unless the Attorney General deter7 mines that temporary release of the alien to the custody

8 of State authorities for confinement in a State facility is

9 appropriate and would not endanger national security or

10 public safety.

11 ‘‘(3) Following the completion of a sentence of con12 finement by an alien described in paragraph (1) or follow13 ing the completion of State criminal proceedings which do

14 not result in a sentence of confinement of an alien released

15 to the custody of State authorities pursuant to paragraph

16 (2), such an alien shall be returned to the custody of the

17 Attorney General who shall proceed to carry out the provi18 sions of subsection (a) concerning removal of the alien.

19 ‘‘(c) For the purposes of sections 751 and 752 of title

20 18, an alien in the custody of the Attorney General pursu21 ant to this title shall be considered as being committed

22 to the custody of the Attorney General by virtue of an

23 arrest on a charge of felony.

24 ‘‘(d)(1) An alien in the custody of the Attorney Gen25 eral pursuant to this title shall be given reasonable oppor-
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1 tunities to communicate with and receive visits from mem2 bers of his or her family, and to contact, retain, and com3 municate with an attorney.

4 ‘‘(2) An alien in the custody of the Attorney General

5 pursuant to this title shall have the right to contact an

6 appropriate diplomatic or consular official of the alien’s

7 country, or an official of any country providing representa8 tion services for that country. The Attorney General shall

9 notify the appropriate embassy of the alien’s detention.’’.

10 SEC. 205. Subsection 212(a) of the Immigration and

11 Nationality Act (8 U.S.C. 1182(a)) is amended by adding

12 at the end thereof a new paragraph 34 as follows:

13 ‘‘(34) Aliens with respect to whom the consular offi14 cer or the Attorney General knows or has reasonable

15 ground to believe are engaging in, have engaged in, or

16 probably would, after entry, engage in terrorist activity.’’.

17 SEC. 206. (a) Subsection 235(c) of the Immigration

18 and Nationality Act (8 U.S.C. 1225(c)) is amended by

19 striking out ‘‘or (29)’’ and inserting in lieu thereof ‘‘(29),

20 or (34)’’.

21 (b) Section 106(b) (8 U.S.C. 1105a(b)) of the Immi22 gration and Nationality Act is amended by adding at the

23 end thereof the following sentence: ‘‘Jurisdiction to review

24 an order entered pursuant to the provisions of section

25 235(c) of this Act concerning an alien excludable under
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1 paragraph 34 of subsection 212(a) (8 U.S.C. 1182(a))

2 shall rest exclusively in the United States Court of Appeals

3 for the Federal Circuit.’’.

4 SEC. 207. Section 276 of the Immigration and Na5 tionality Act (8 U.S.C. 1326) is amended by inserting

6 ‘‘(a)’’ before the phrase ‘‘Any alien who’’ at the beginning

7 thereof and by adding a new subsection (b) as follows:

8 ‘‘(b) Any alien who has been excluded from the Unit9 ed States pursuant to subsection 235(c) of the Immigra10 tion and Nationality Act (8 U.S.C. 1225(c)) because such

11 alien was excludable under paragraph 34 of subsection

12 212(a) of said Act (8 U.S.C. 1182(a)(34)) or has been

13 removed from the United States pursuant to the provi14 sions of title V of the Immigration and Nationality Act

15 and who thereafter, without the permission of the Attor16 ney General, enters the United States or attempts to do

17 so shall be imprisoned for a period of ten years which sen18 tence shall not run concurrently with any other sentence

19 and fined in accordance with the provisions of title 18,

20 United States Code.’’.

21 SEC. 208. Subsection 106(a) (8 U.S.C. 1105a(a)) of

22 the Immigration and Nationality Act is amended by—

23 (1) striking from the end of paragraph 8 ‘‘;

24 and’’ and inserting a period; and

25 (2) striking paragraph (9).
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1 TITLE III—COUNTERINTELLIGENCE AC2 CESS TO TELEPHONE TOLL AND

3 TRANSACTIONAL RECORDS

4 SEC. 301. Section 2709 of title 18 of the United

5 States Code is amended by—

6 (1) striking out subsections (b) and (c); and

7 (2) inserting the following new subsections (b)

8 and (c).

9 ‘‘(b) REQUIRED CERTIFICATION.—The Director of

10 the Federal Bureau of Investigation (or an individual

11 within the Federal Bureau of Investigation designated for

12 this purpose by the Director) may:

13 ‘‘(1) request any such information and records

14 if the Director (or the Director’s designee) certifies

15 in writing to the wire or electronic communication

16 service provider to which the request is made that—

17 ‘‘(A) the information sought is relevant to

18 an authorized foreign counterintelligence inves19 tigation; and

20 ‘‘(B) there are specific and articulable

21 facts giving reason to believe that the person or

22 entity about whom information is sought or per23 tains is a foreign power or an agent of a foreign

24 power as defined in section 101 of the Foreign
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1 Intelligence Surveillance Act of 1978 (50

2 U.S.C. 1801); and

3 ‘‘(2) request subscriber information regarding a

4 person or entity if the Director certifies in writing

5 to the wire or electronic communications service pro6 vider to which the request is made that—

7 ‘‘(A) the information sought is relevant to

8 an authorized foreign counterintelligence inves9 tigation; and

10 ‘‘(B) that information available to the Fed11 eral Bureau of Investigation indicates there is

12 reason to believe that communication facilities

13 registered in the name of the person or entity

14 have been used; through the services of such

15 provider, in communication with a foreign

16 power or an agent of a foreign power as defined

17 in section 101 of the Foreign Intelligence Sur18 veillance Act of 1978 (50 U.S.C. 1801).’’.

19 ‘‘(c) PENALTY FOR DISCLOSURE.—No wire or elec20 tronic communication service provider, or officer, em21 ployee, or agent thereof, shall disclose to any person that

22 the Federal Bureau of Investigation has sought or ob23 tained access to information under this section. Violators

24 of this section shall be subject to penalty under section

25 3571 of this title.’’.
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