USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
Released: 2006-12-21T00:00:00

Introduction

By operation of section 224 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, several of the USA PATRIOT Act's amendments to the Foreign Intelligence Surveillance Act (FISA) and the Electronic Communications Privacy Act (ECPA) concerning law enforcement and intelligence investigative tools, were originally scheduled to expire on December 31, 2005. Section 6001(a) of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 (concerning "lone wolf" terrorists) was also scheduled to sunset on that date. Without any legislative action, these provisions as well as amendments to them would have ceased to exist after the sunset date, and most of the pre-existing provisions of law would have been revived automatically.

During the 109 th Congress, the House and Senate each passed USA PATRIOT Reauthorization Acts, H.R. 3199 and S. 1389 respectively, which made permanent 14 of the 16 expiring USA PATRIOT Act sections and extended the sunset on section 206 (regarding FISA court orders for multipoint, or "roving," wiretaps) and section 215 (access to business records requested under FISA), as well as the sunset on section 6001(a) of IRTPA. The two bills differed in several respects, including the new sunset date (under S. 1389 , December 31, 2009, while H.R. 3199 offered a ten-year extension to December 31, 2015). On December 8, 2005, House and Senate conference committee members filed a report representing a compromise between the Senate version and the version passed by the House, H.Rept. 109-333 (2005).

The House agreed to the conference report accompanying H.R. 3199 on December 14, 2005. However, with several Members of the Senate raising concerns about the sufficiency of the conference report's safeguards for civil liberties, the Senate voted to reject a motion to invoke cloture on the conference report, thus taking no action before the end of 2005. To provide the Senate with additional time to consider the conference report, Congress enacted legislation to postpone the expiration of the USA PATRIOT Act provisions and of IRTPA's "lone wolf" amendment, until February 3, 2006, and thereafter further extended the sunset until March 10, 2006.

On March 1, 2006, the Senate passed a separate bill, the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 ( S. 2271 ), that provides three civil liberties safeguards not included in the conference report. Passage of S. 2271 helped to pave the way for the Senate to invoke cloture on the conference report upon reconsideration, and the Senate agreed to the conference report on March 2. Under suspension of the rules, the House passed S. 2271 on March 7, and both H.R. 3199 and S. 2271 were signed into law by the President on March 9.

This report provides a summary and legal analysis of the USA PATRIOT Improvement and Reauthorization Act of 2005 (the "Act" or the "Reauthorization Act"), P.L. 109-177 , 120 Stat. 192 (2006), and, where appropriate, discusses the modifications to law made by the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178 , 120 Stat. 278 (2006). For organizational purposes, the report is divided according to the seven titles of the Act and, within those titles, arranged by topic headings.

Title I: USA PATRIOT Improvement and Reauthorization Act

Title I is in many ways the heart of the Act. It makes permanent most of the USA PATRIOT Act sections that were scheduled to expire. To several, like section 215, it adds substantive changes such as civil liberties safeguards. It addresses issues raised by USA PATRIOT Act sections other than those for which the sun was setting. It more clearly states the "National Security Letter" provisions of law, in ways perhaps necessary to make them constitutionally viable. Elsewhere, it looks at the issues faced in the USA PATRIOT Act four years after the fact. In some instances it adds to the tools available; in others it adds further checks against abuse.

Temporary USA PATRIOT Act Sections Made Permanent

Section 102(a) of the Act repeals section 224 of the USA PATRIOT Act that had mandated 16 of its sections to expire initially on December 31, 2005, and later extended to March 10, 2006 by P.L. 109-170 , 120 Stat. 3 (2006). Although the Act adopts a new sunset date on two of the sections, as discussed below, it makes permanent the following 14 sections:

Sec. 201 (ECPA wiretapping in certain terrorism investigations)

Sec. 202 (ECPA wiretapping in computer fraud and abuse investigations)

Sec. 203(b) (law enforcement sharing of court-ordered wiretap-generated foreign intelligence information wiretap information)

Sec. 203(d) (law enforcement sharing of foreign intelligence information notwithstanding any other legal restriction)

Sec. 204 (technical exception for foreign intelligence pen register/trap & trace device use)

Sec. 207 (duration of FISA wiretap and search orders involving agents of a foreign power)

Sec. 209 (seizure of stored voice mail by warrant rather than ECPA order)

Sec. 212 (communications providers emergency disclosures of communications content or related records to authorities)

Sec. 214 (FISA pen register order amendments including extension to electronic communications, e.g., Internet use)

Sec. 217 (law enforcement access to computer trespassers' communications within the intruded system)

Sec. 218 (FISA wiretap or search orders with an accompanying law enforcement purpose [removal of "the wall" of separation between criminal catchers and spy catchers])

Sec. 220 (nationwide service of court orders directed to communication providers)

Sec. 223 (civil liability and disciplinary action for certain ECPA or FISA violations)

Sec. 225 (civil immunity for assistance in executing a FISA order)

USA PATRIOT Act Sections Still Subject to Sunset

The Act adopts a sunset of December 31, 2009, for USA PATRIOT Act sections 206 (regarding FISA court orders for multipoint, or "roving," wiretaps) and 215 (access to business records requested under FISA).

Extension of the "Lone Wolf" Amendment, and the Material Support of Terrorism Amendments Made Permanent

The Act makes two changes to the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, P.L. 108-458 , 118 Stat. 3638 (2004). First, it postpones the expiration of section 6001(a) of IRTPA, 118 Stat. 3742 (2004), until December 31, 2009. Section 6001(a) defines an "agent of a foreign power" to include any person, other than a United States person, who "engages in international terrorism or activities in preparation therefore." Thus, so-called "lone wolf" terrorists may be subjected to foreign intelligence surveillance despite not being an agent of a foreign power or an international terrorist organization.

Second, the Act makes permanent section 6603 of IRTPA by repealing the sunset provision (section 6603(g)) that would have caused the section to be ineffective on December 31, 2006. Section 6603 of IRTPA amends federal law regarding material support of terrorists and terrorist organizations, primarily in 18 U.S.C. 2339A and 2339B. Briefly, section 6603: (1) amends the definitions of "material support or resources," "training," and "expert advice or assistance" as those terms are used in 18 U.S.C. 2339A and 2339B, and of "personnel" as used in section 2339B; (2) adds a more explicit knowledge requirement to section 2339B; (3) expands the extraterritorial jurisdiction reach of section 2339B; (4) enlarges the list of federal crimes of terrorism, 18 U.S.C. 2332b(g)(5); (5) adds the enlarged list to the inventory of predicate offenses for 18 U.S.C. 2339A (material support for the commission of certain terrorist crimes) and consequently for 18 U.S.C. 2339B (material support for designated terrorist organizations); and (6) precludes prosecution for certain violations committed with the approval of the Secretary of State and concurrence of the Attorney General.

Section 215 FISA Orders for "Business Records"

Section 215 of the USA PATRIOT Act amended the business record sections of FISA to authorize the Director of the Federal Bureau of Investigation (FBI) or a designee of the Director, to apply to the FISA court to issue orders granting the government access to any tangible item (including books, records, papers, and other documents), no matter who holds it, in foreign intelligence, international terrorism, and clandestine intelligence cases. The Act contains several provisions to guard against abuses of section 215 authority, including greater congressional oversight, enhanced procedural protections, more elaborate application requirements, and a judicial review process.

Greater Congressional Oversight

Section 106(h) of the Act directs the Attorney General to submit to Congress an annual report regarding the use of section 215 authority. This report is to be filed with the House and Senate Committees on the Judiciary, the House Permanent Select Committee on Intelligence, and the Senate Select Committee on Intelligence. The annual report, due every April, must contain the following information regarding the preceding year:

the total number of applications made for section 215 production orders ("215 orders") approving requests for the production of tangible things, the total number of such orders granted as requested, granted as modified, or denied, and the number of 215 orders either granted, modified, or denied for the production of each of the following: library circulation records, library patron lists, book sales records, or book customer lists; firearms sales records; tax return records; educational records; and medical records containing information that would identify a person.

Prior to the Act, the law had required public disclosure of only the first two items listed above; by adding the third reporting requirement, the Act provides for a more detailed account of whether and when section 215 authority has been used to request these categories of sensitive information.

Section 106A of the Act provides for the Inspector General of the Department of Justice to conduct a comprehensive audit to determine the effectiveness, and identify any abuses, concerning the use of section 215 authority, for calendar years 2002-2006. The audit is to be performed in accordance with the detailed requirements set forth in this section. The results of the audit are to be submitted in an unclassified report to the House and Senate Committees on the Judiciary and Intelligence; for calendar years 2002, 2003, and 2004, the report is due not later than March 9, 2007; for calendar years 2005 and 2006, the report is due not later than December 31, 2007.

Enhanced Procedural Protections

Section 106(a)(2) of the Act adds 50 U.S.C. 1861(a)(3), requiring that an application for a 215 order for the production of certain sensitive categories of records, such as library, bookstore, firearm sales, tax return, educational, and medical records, must be personally approved by one of the following three high-level officials: the FBI Director, the FBI Deputy Director, or the Executive Assistant Director for National Security. This provision was included as an attempt to allay concerns over federal authorities abusing section 215 authority to obtain sensitive types of records.

The Act also instructs the Attorney General to promulgate specific minimization standards that apply to the collection and dissemination of information obtained through the use of the section 215 authority. These procedures are intended to limit the retention, and regulate the dissemination, of nonpublicly available information concerning unconsenting U.S. persons, consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information. Federal authorities are required to observe these minimization procedures regarding the use or disclosure of information received under a 215 order; furthermore, they may not use or disclose such information except for lawful purposes. Finally, the Act clarifies that otherwise privileged information does not lose its privileged character simply because it was acquired through a 215 order.

Application Requirements and Orders

Prior to the Act's enactment, an application for a 215 order to be submitted to the FISA court for approval only needed to state that the requested records were sought for an authorized investigation. The Act amends 50 U.S.C. 1861(b)(2) to require that such an application must include a "statement of facts" demonstrating that there are reasonable grounds to believe that the tangible things sought are "relevant" to an authorized or preliminary investigation to protect against international terrorism or espionage, or to obtain foreign intelligence information not concerning a U.S. person. Section 106(b)(2)(A) of the Act also provides that certain tangible items are "presumptively relevant" to an investigation if the application's statement of facts shows that the items sought pertain to:

a foreign power or an agent of a foreign power, the activities of a suspected agent of a foreign power who is the subject of such authorized investigation, or an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation.

Finally, the application for a 215 order must include an enumeration of the minimization procedures applicable to the retention and dissemination of the tangible items sought.

The FISA court judge shall approve an application for a 215 order as requested or as modified, upon a finding that the application complies with statutory requirements. The order must contain a particularized description of the items sought, provide for a reasonable time to assemble them, notify recipients of nondisclosure requirements, and be limited to things subject to a grand jury subpoena or order of a U.S. court for production. The ex parte order shall also direct that the retention and dissemination of the tangible things obtained under the order must adhere to the minimization procedures.

Judicial Review and Enforcement

Section 106(f) of the Act establishes a detailed judicial review process for recipients of 215 orders to challenge their legality before a judge selected from a pool of FISA court judges. If the judge determines that the petition is not frivolous after an initial review, the judge has discretion to modify or set aside a FISA order upon a finding that it does not comply with the statute or is otherwise unlawful. However, if the judge does not modify or rescind the 215 order, then the judge must immediately affirm the order and direct the recipient to comply with it.

The FISA Court of Review and the U.S. Supreme Court are granted jurisdiction to consider appeals of the FISA court judge's decision to affirm, modify, or set aside a 215 order. The Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence, is directed to establish security measures for maintaining the record of the 215 order judicial review proceedings.

Nondisclosure Requirement for 215 Orders

A section 215 order is accompanied by a nondisclosure requirement that prohibits the recipient from disclosing to any other person that the FBI has sought the tangible things described in the order. Prior to the Act's enactment, the only exception to this "gag order" was for disclosure to those persons necessary for compliance with the production order. The Act expands the list of exceptions, expressly permitting a recipient of a 215 order to disclose its existence to an attorney to obtain legal advice, as well as to other persons approved by the FBI.

Under the Act, the recipient is not required to inform the FBI or the authorized government agency of the intent to consult with an attorney to obtain legal assistance; however, upon the request of the FBI Director (or his designee), the recipient must disclose to the FBI the identity of the person to whom the disclosure will be or was made, which could include the name of the attorney. During the Senate debate over the conference report, some Members of Congress raised concerns that this provision of the Act might have an unintended "chilling effect" on the individual's right to seek legal counsel regarding the Section 215 order. Thus, section 4 of the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178 , 120 Stat. 280 (2006), amends FISA to exempt explicitly from the identification disclosure requirement the name of the attorney sought to obtain legal advice with respect to the Section 215 production order.

While the Act provided a judicial review process for recipients of 215 orders to challenge their legality, the Act does not expressly grant the right to petition the FISA court to modify or quash the nondisclosure requirement imposed in connection with the production order. The Act was criticized for its lack of an express right to challenge the nondisclosure order during the Senate debate over the conference report.

Section 3 of the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178 , 120 Stat. 278 (2006), addresses this omission by establishing a judicial review procedure for a section 215 nondisclosure orders. For one year after the date of the issuance of a 215 production order, the nondisclosure requirement remains in full effect and may not be challenged. During the floor debates over S. 2271 , this one-year mandatory moratorium and automatic gag order had been criticized and defended by Members of Congress.

After the one-year waiting period has expired, the recipient of the production order may petition the FISA court to modify or set aside the nondisclosure requirement. Within 72 hours, if the judge assigned to consider the petition determines after an initial review that the petition is frivolous, the judge shall immediately deny the petition and affirm the nondisclosure order. If, after the initial review, the judge determines that the petition is not frivolous, the judge shall promptly consider the petition under procedural measures that the FISA court has established to protect national security, including conducting the review in camera.

The FISA court judge has discretion to modify or set aside a nondisclosure order upon a finding that there is no reason to believe that disclosure may endanger the national security of the United States; interfere with a criminal, counterterrorism, or counterintelligence investigation; interfere with diplomatic relations; or endanger the life or physical safety of any person. If, at the time the individual files the petition for judicial review of a nondisclosure order, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the FBI certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, then the FISA judge must treat such government certification as conclusive unless the judge finds that the certification was made in bad faith.

If the judge grants a petition to quash the nondisclosure requirement, upon the request of the government, such order is stayed pending review of the decision to the FISA Court of Review. If the judge denies the petition to modify or set aside the nondisclosure requirement, the recipient of the 215 order is precluded from filing another such petition for one year. The FISA Court of Review has jurisdiction to consider a petition by the government or by the recipient of a 215 order and to review a FISA judge's decision to affirm, modify, or set aside such production order or the nondisclosure order imposed in connection with it. The U.S. Supreme Court has jurisdiction to review a decision of the FISA Court of Review concerning this matter.

National Security Letters

Five federal statutes, in roughly the same terms, authorize federal intelligence investigators (generally the FBI) to request that communications providers, financial institutions and credit bureaus provide certain types of customer business records, including subscriber and transactional information related to Internet and telephone usage, credit reports, and financial records. Unlike a section 215 production order for tangible items, a national security letter (NSL) need not receive prior approval of a judge. However, NSLs are more limited in scope compared to a section 215 order, in terms of the types of information that can be obtained. For example, NSLs cannot be used to receive "content information"âthe content of a telephone communication or e-mail message is unavailable through a NSL, but a NSL could request the phone number dialed or the e-mail addresses used.

A federal court in the Southern District of New York has held that the FBI's practices and procedure surrounding the exercise of its authority under one of these NSL statutes, 18 U.S.C. 2709, violate the Fourth and First Amendments. In the opinion of the court, the constitutional problem stems from the effective absence of judicial review before or after the issuance of a NSL under section 2709 and from the facially absolute, permanent confidentiality restrictions ("gag order") that the statute places on NSL recipients. Another federal court in the District of Connecticut enjoined enforcement of a NSL gag order on First Amendment grounds.

Section 115 of the Act attempts to address these potential constitutional deficiencies by authorizing judicial review of a NSL. In addition to providing the right to challenge the validity of the NSL request, section 115 expressly grants NSL recipients the power to petition a federal district court to modify or quash a nondisclosure requirement that may be imposed in connection with the request.

Judicial Review and Enforcement of NSL requests

Under the Act, the recipient of a NSL request may petition a U.S. district court for an order modifying or setting aside the request. The federal court may modify or quash the NSL request if compliance would be unreasonable, oppressive, or otherwise unlawful.

Section 115 also provides the government with the means to enforce the NSL through court action. If a NSL recipient fails to respond to the request for information, the Attorney General may seek a federal district court order to compel compliance with the request. Disobedience of the U.S. district court's order to respond to a NSL is punishable as contempt of court.

Section 115 directs that any court proceedings concerning NSL matters must be closed, subject to any right to an open hearing in a contempt proceeding, to prevent unauthorized disclosure of the NSL request. In addition, all petitions, filings, records, orders, and subpoenas must be kept under seal to prevent unauthorized disclosure. Finally, the government may request that its evidence be considered ex parte and in camera.

Nondisclosure Orders for NSLs

Section 116 of the Act amends all five NSL statutes to prohibit service providers from disclosing to any person that the FBI has sought or obtained access to the information sought through the NSL, only if the investigative agency has certified that disclosure may endanger any individual or the national security of the United States, interfere with diplomatic relations, or interfere with a criminal or intelligence investigation. Thus, a nondisclosure order does not automatically attach to the NSL, as it does in the case of a Section 215 order under FISA.

Assuming that this certification occurs and the gag order is in place, disclosure by the NSL recipient is permitted to any person whose assistance is needed to comply with the NSL request or to an attorney to obtain legal advice or legal assistance concerning the NSL. Although the individual is not required to inform the FBI or the authorized government agency of the intent to consult with an attorney to obtain legal assistance, upon the request of the FBI Director (or his designee), or upon the request of the government agency authorized to issue the NSL, the recipient must disclose to the FBI or the government agency the identity of the person to whom the disclosure will be or was made. According to the sponsor of H.R. 3199 , "without this safeguard, a recipient could disclose the government's investigative efforts to a person with ties to hostile foreign governments or entities."

However, the potential that this identity disclosure requirement may chill the right to seek legal counsel was reduced by Section 4 of the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178 , 120 Stat. 280 (2006). (Section 4 also had removed a similar disclosure requirement concerning a Section 215 production order under FISA.) Section 4 amends the five NSL statutes by adding language expressly exempting the identity of attorneys from the disclosure requirement established by the Act:

At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under this section shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the Director or such designee of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the [NSL] request...

Section 117 of the Act punishes a person who was notified of a NSL nondisclosure requirement but nevertheless knowingly and willfully violates that directive, with imprisonment of not more than one year, or not more than five years if committed with the intent to obstruct an investigation or judicial proceeding. The law prior to the Act's enactment did not provide a felony charge for such disclosure to an unauthorized person.

Section 115 of the Act grants a NSL recipient with an explicit statutory right to challenge in court the gag order that may attach to the NSL requestâa right that a recipient of a section 215 FISA production order lacks under the Act but which was subsequently provided by the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006. Section 115 creates a bifurcated procedure for handling petitions for judicial review of the nondisclosure requirement accompanying a NSL:

(1) If the petition is filed within one year of the NSL request, the U.S. district court may modify or set aside the gag order if it finds no reason to believe that disclosure may:

endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.

If, at the time of the petition, a high-ranking government official certifies that disclosure may:

endanger the national security of the United States, or interfere with diplomatic relations,

then the court must treat the government certification as conclusive unless the court finds that the certification was made in bad faith.

(2) If the petition challenging the gag order is filed one year or more after the NSL issuance, a high-ranking government official must, within 90 days of the petition, either terminate the gag order or re-certify that disclosure may:

endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.

If such recertification occurs, then a court may modify or quash the gag order if it finds no reason to believe that disclosure may:

endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.

However, if the recertification was made by the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the FBI, and if such recertification stated that disclosure may:

endanger the national security of the United States, or interfere with diplomatic relations

then such certification is to be treated by the court as conclusive unless it was made in bad faith.

If court denies the petition for an order to modify the nondisclosure requirement, the NSL recipient is precluded from filing another such petition for one year.

Although the Act provides a process to challenge the nondisclosure requirement, critics believe that this judicial review is not meaningful, in light of the "conclusive presumption" provision: "A recipient would technically be given a right to challenge the gag order but if the government asserted national security, diplomatic relations or an ongoing criminal investigation the court would be required to treat that assertion as conclusive, making the 'right' an illusion." In addition, some Members of Congress have raised First Amendment and due process concerns over the indefinite gag order and the conclusive presumption. However, others have defended the conclusive presumption as necessary to ensure that sensitive information is not publicly disclosed:

Only the FBI, the people who are investigating the matter, not individual district judges, are in a position to determine when the disclosure of classified information would harm national security. Obviously, that is not something that a Federal district judge has any expertise on. ... It is also important that the FBI make the final determination whether the disclosure would harm national security. And only the agents in charge of these counterterrorism investigations will be able to evaluate how the disclosure of a particular piece of information could potentially, for example, reveal sources and methods of intelligence and who, therefore, might be tipped off as a result of the disclosure.

NSLs Not Applicable to Libraries

Section 5 of the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178 , 120 Stat. 281 (2006), entitled "Privacy Protections for Library Patrons," addresses the concern that a library could potentially be subject to an NSL issued under 18 U.S.C. 2709 to obtain certain transactional and subscriber records pertaining to its patrons. Because libraries often offer patrons the ability to access the Internet, the law prior to the Act was unclear as to whether libraries might be considered "electronic communication service providers" for purposes of 18 U.S.C. 2709. Section 5 amends 18 U.S.C. 2709 by adding the following section:

"A library ..., the services of which include access to the Internet ..., is not a wire or electronic communication service provider for purposes of this section, unless the library is providing the services defined in section 2510(15) of this title..."

This provision "makes very clear that libraries operating in their traditional role, including the lending of books, including making books available in digital form, including providing basic Internet access, are not subject to National Security Letters." However, if the library "provides" the services described in 18 U.S.C. 2510(15), which are "electronic communication services," then such library would still be subject to NSLs. 18 U.S.C. 2510(15) defines "electronic communication service" to mean any service that provides to users the ability to send or receive wire or electronic communications. A reasonable interpretation of this definition suggests that to be considered an electronic communication service provider under 18 U.S.C. 2510(15), a library must independently operate the means by which transmission, routing, and connection of digital communication occurs. In contrast, a local county library likely has a service contract with an Internet Service Provider (ISP) to furnish the library with the electronic communication service, as many businesses and individuals do; the fact that the library has set up a computer with Internet access for the use of its patrons probably does not, by itself, turn the library into a communications service "provider." Under this characterization, the actual "provider" of Internet access is the ISP, not the library. Therefore, a public library offering "basic" Internet access would likely not be considered an electronic communication service provider, at least for purposes of being an entity subject to the NSL provisions in 18 U.S.C. 2709.

Congressional Oversight of NSLs

Section 118 of the Act requires that any reports to a Congressional committee regarding NSLs shall also be provided to the House and Senate Judiciary Committees. In addition, the Attorney General must submit a report semiannually on all NSL requests made under the Fair Credit Reporting Act, to the House and Senate Judiciary Committees, the House and Senate Intelligence Committees, and the House Committee on Financial Services and the Senate Committee on Banking, Housing, and Urban Affairs.

The Attorney General is also instructed to submit to Congress an annual report describing the total number of requests made by the Department of Justice under the NSL statutes. This report is to be unclassified, in order to permit public scrutiny.

Section 119 of the Act directs the Inspector General of the Department of Justice to perform a comprehensive audit of the effectiveness and use of NSLs, including any improper or illegal use, for submission to the House and Senate Judiciary and Intelligence Committees for calendar years 2003-2006. This report is to be unclassified. Section 119 also requires the Attorney General and Director of National Intelligence to analyze the feasibility of applying minimization procedures to NSL to ensure the protection of the constitutional rights of U.S. persons. This feasibility study is to be submitted to the House and Senate Judiciary and Intelligence Committees by February 1, 2007, or upon completion of the audit of the use of NSLs for calendar years 2003 and 2004, whichever is earlier.

Section 206 FISA "Roving" Wiretaps

Unlike a criminal wiretap order issued under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which may be approved if a judge finds probable cause for believing that an individual is committing, has committed, or is about to commit a particular enumerated offense, a FISA wiretap may be issued upon a finding of probable cause to believe that the target of the electronic surveillance is a foreign power or agent of a foreign power. Section 206 of the USA PATRIOT Act amended FISA to authorize the installation and use of multipoint, or "roving," wiretaps, for foreign intelligence investigations. A roving wiretap order applies to the suspect rather than a particular phone or computer that the target might use, and thus allows law enforcement officials to use a single wiretap order to cover any communications device that the target uses or may use. Without this authority, investigators must seek a new FISA court order each time they need to change the name of the location to be monitored, as well as the specified person or entity that is needed to assist in facilitating the wiretap.

Section 206 of the USA PATRIOT Act permits a general command for the assistance of third parties (for example, common carriers and Internet service providers) for the installation and use of these multipoint wiretaps, where the target of the surveillance has taken steps to thwart the identification of a communications company or other person whose assistance may be needed to carry out the surveillance. Thus, if the FISA court finds that the target's actions may have the effect of thwarting specific identification, section 206 temporarily authorizes FISA orders that need not specifically identify the communications carriers, landlords or others whose assistance the order commands.

Prior to the enactment of the Act, a FISA roving surveillance order had to specify the identity of the target only if it was known; otherwise, it was sufficient for the order to describe the target. Section 108 of the Act amends the FISA roving surveillance authority to require that an application for an order, as well as the wiretap order itself, describe the specific target of the electronic surveillance if the target's identity is not known. It also clarifies that the FISA court must find that the prospect of a target thwarting surveillance is based on specific facts in the application. Furthermore, if the government begins to direct surveillance at a new facility or place, the nature and location of which were unknown at the time the original surveillance order was issued, the government must notify the FISA court within 10 days after such change, of the following information:

the nature and location of each new facility or place at which the surveillance is directed, the facts and circumstances relied upon by the applicant to justify the applicant's belief that each new facility or place is or was being used, or is about to be used, by the target of the surveillance, an explanation of any proposed minimization procedures that differ from those contained in the original application or order, if such change is necessitated by the new facility or place, and the total number of electronic surveillances that have been or are being conducted under the roving surveillance order.

The Act also enhances congressional oversight over the use of all foreign intelligence electronic surveillance authority, by adding the Senate Judiciary Committee as a recipient of the semi-annual FISA reports that the Attorney General currently must submit to the House and Senate Intelligence committees, and by modifying the FISA report requirements to include a description of the total number of applications made for orders approving roving electronic surveillance.

Delayed Notice Search Warrants

A delayed notice search warrant, or "sneak and peek" warrant, is one that authorizes law enforcement officers to secretly enter a home or business, either physically or virtually, conduct a search, and depart without taking any tangible evidence or leaving notice of their presence. The Department of Justice has defended the necessity and legality of delayed notification search warrants:

This tool can be used only with a court order, in extremely narrow circumstances when immediate notification may result in death or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation, or serious jeopardy to an investigation. The reasonable delay gives law enforcement time to identify the criminal's associates, eliminate immediate threats to our communities, and coordinate the arrests of multiple individuals without tipping them off beforehand. In all cases, law enforcement must give notice that property has been searched or seized.

Until the USA PATRIOT Act was enacted, the Federal Rules of Criminal Procedure required contemporaneous notice in most instances. At the time, the courts were divided over whether the failure to provide contemporaneous notice, in the absence of exigent circumstances, constituted a constitutional violation or a violation of the Rule, and over the extent of permissible delay in cases presenting exigent circumstances. Section 213 of the USA PATRIOT Act created an express statutory authority for delayed notice search warrants in any criminal investigation, not just those involving suspected terrorist activity. Delayed notification of the execution of a sneak and peek search warrant is permissible for a reasonable period of time (with the possibility of court-approved extensions for good cause shown), if:

the court that issued the warrant finds reasonable cause to believe that contemporaneous notice of the search may result in adverse consequences (flight, destruction of evidence, intimidation of a witness, danger to an individual, serious jeopardy to an investigation, or undue trial delay), and the warrant prohibits the seizure of any tangible property, any wire or electronic communication, and any stored wire or electronic information, except where the court finds reasonable necessity for the seizure.

Responding to concerns that the "reasonable period" for delaying notification of a search warrant is an undefined and indefinite standard under current law, section 114 of the Act establishes a specific limitation on the length of the delay, requiring notice to be given no more than 30 days after the date of the warrant's execution, with the possibility for 90 day extensions if the facts of a case justify. Several Members of Congress have criticized this 30-day delayed notice provision, arguing instead for notice to be given to the target of the search warrant within 7 days. However, it should be noted that the Act's 30-day delay period was itself a compromise between the House and Senate-passed versions of the Reauthorization Act; the House bill allowed 180 days, while the Senate limited the delay to 7 days.

In addition, section 114 removes "unduly delaying a trial" as one of the "adverse consequences" that justifies delayed notification. Some commentators have noted that "seriously jeopardizing an investigation," which is retained by the Act as a ground for permitting delayed notice, is an overly broad "catch-all" provision that law enforcement officials could abuse. There may also be some question of whether it qualifies as a constitutionally acceptable exigent circumstance. However, Justice Department officials defend this provision, observing that before the delayed notice can be approved, a federal judge must agree with the government's evaluation of the circumstances that indicate that contemporaneous notice of a search might seriously jeopardize an ongoing investigation.

Finally, section 114 enhances oversight of delayed notice search warrants, by requiring that no later than 30 days after the expiration or denial of such a warrant, the issuing or denying judge must notify the Administrative Office of the U.S. Courts of:

the fact that the delayed notice search warrant was applied for, the fact that the warrant was either granted, modified, or denied, the length of time of the delay in giving notice, and the offense specified in the warrant or the application.

Beginning with the fiscal year ending September 30, 2007, the Director of the Administrative Office is required to transmit a detailed, annual report to Congress that summarizes the use and number of warrants authorizing delayed notice.

Emergency Disclosures by Service Providers

Section 212 of the USA PATRIOT Act permits electronic communications service providers to disclose voluntarily the contents of stored electronic communications to a Federal, State, or local governmental entity in emergency situations involving a risk or danger of death or serious physical injury to any person. Service providers are also permitted to disclose customer records to governmental entities in emergencies involving an immediate risk of serious physical injury or danger of death to any person.

To provide congressional oversight over the use of this authority, section 107(a) of the Act requires the Attorney General annually to report to the Judiciary Committees of the House and Senate concerning the number of service providers' voluntary emergency disclosures of the contents of electronic communications to the Department of Justice. The report must also summarize the basis for the voluntary disclosure in circumstances where the investigation pertaining to the disclosure was closed without the filing of criminal charges. In addition, section 107(b) of the Act removes the immediacy requirement from the customer records provision and defines "governmental entity" to mean a department or agency of the United States or any State or political subdivision thereof.

Duration of FISA Surveillance and Physical Search Orders and Congressional Oversight Of Their Usage

The Act extends the maximum duration of FISA electronic surveillance and physical search orders against any agent of a foreign power who is not a U.S. person (e.g., a lone wolf terrorist), by amending section 105(e) of FISA. Initial orders authorizing such searches may be for a period of up to 120 days, with renewal orders permitted to extend the period for up to one year.

In addition, the Act extends the life time for both initial and extension orders authorizing installation and use of FISA pen registers, and trap and trace surveillance devices from a period of 90 days to one year, in cases where the government has certified that the information likely to be obtained is foreign intelligence information not concerning a U.S. person.

Section 109(a) of the Act enhances congressional oversight over the use of physical searches under FISA, by requiring, on a semi-annual basis, the Attorney General:

to make full reports concerning all physical searches to the Senate Judiciary Committee in addition to the House and Senate Intelligence committees, and to submit to the three committees listed above and to the House Judiciary Committee a report with statistical information concerning the number of emergency physical search orders authorized or denied by the Attorney General.

Section 109(b) requires that the report the Attorney General submits to the House and Senate Judiciary Committees semi-annually concerning the number of applications and orders for the FISA use of pen registers or trap and trace devices, must include statistical information regarding the emergency use of such devices.

Information Related to FISA Pen Register and Trap & Trace Devices

Law enforcement officials may secure an order authorizing the installation and use of a pen register or trap and trace device to obtain information relevant to a criminal investigation, 18 U.S.C. 3122, 3123. They are also entitled to a court order directing a communications provider to supply certain customer information when relevant to a criminal investigation, 18 U.S.C. 2703. Foreign intelligence officials are entitled to secure a FISA order for installation and use of a pen register or trap and trace device in connection with certain foreign intelligence investigations, 50 U.S.C. 1841-1846. Under its national security letter authority the FBI may request communications providers to supply customer name, address, length of service and local and long distance toll billing records, 18 U.S.C. 2709. Under section 215 of the USA PATRIOT Act, the FBI may obtain a FISA tangible item order for customer records held by a communications provider, 50 U.S.C. 1861.

Section 128(a) of the Act provides that the FISA court may, in its pen register/trap and trace order, direct a service provider to supply customer information relating to use of the device. The information to be made available is more extensive than what is available under 18 U.S.C. 2709, or to law enforcement officials, but it is not as extensive as the scope of information under a FISA section 215 "tangible item" order; that isâ

(I) in the case of the customer or subscriber using the service covered by the order (for the period specified by the order)â

(I) the name of the customer or subscriber;

(II) the address of the customer or subscriber;

(III) the telephone or instrument number, or other subscriber number or identifier, of the customer or subscriber, including any temporarily assigned network address or associated routing or transmission information;

(IV) the length of the provision of service by such provider to the customer or subscriber and the types of services utilized by the customer or subscriber;

(V) in the case of a provider of local or long distance telephone service, any local or long distance telephone records of the customer or subscriber;

(VI) if applicable, any records reflecting period of usage (or sessions) by the customer or subscriber; and

(VII) any mechanisms and sources of payment for such service, including the number of any credit card or bank account utilized for payment for such service; and

(I) if available, with respect to any customer or subscriber of incoming or outgoing communications to or from the service covered by the orderâ

(I) the name of such customer or subscriber;

(II) the address of such customer or subscriber;

(III) the telephone or instrument number, or other subscriber number or identifier, of the customer or subscriber, including any temporarily assigned network address or associated routing or transmission information;

(IV) the length of the provision of service by such provider to the customer or subscriber and the types of services utilized by the customer or subscriber.

The Senate Select Committee on Intelligence observed with respect to an identically worded section in S. 1266 , "the FISA audit staff was informed that when a federal court issues an order for criminal pen register or trap and trace device, the court has the authority under 18 U.S.C. 2703(d) to routinely require the service provider to supply subscriber information in its possession for the numbers or e-mail addresses captured by the devices. The FISA pen register/trap and trace provision has no comparable authority. Section 215 of this bill addresses this discrepancy." .

The amendment would likely simplify the process, but critics might ask why it is necessary since information already seems to be available through use of the national security letter authority under 18 U.S.C. 2709 or the FISA business records "tangible item" authority when used in conjunction with the FISA pen register/trap and trace authority.

Section 128(b) of the Act amends the FISA oversight reporting requirements so that Judiciary Committees receive full reports on the use of the FISA's pen register and trap and trace authority every six months.

Additions to the Definition of Federal Crime of Terrorism

Crimes designated as federal crimes of terrorism under 18 U.S.C. 2332b(g)(5) trigger the application of other federal laws, for example, 18 U.S.C. 1961(1)(g) (RICO predicates), 18 U.S.C. 3142 (bail), 18 U.S.C. 3286 (statute of limitations), and 18 U.S.C. 3583 (supervised release). Section 112 of the Act adds two additional offenses to the definition of federal crimes of terrorism: receiving military-type training from a foreign terrorist organization, and drug trafficking in support of terrorism (the "narco-terrorism" provisions of Section 1010A of the Controlled Substances Import and Export Act).

Expanded List of Predicate Offenses For Wiretaps

Generally, federal law requires the government to obtain a court order authorizing the interception of wire, oral or electronic communications in the investigation of certain crimes ("predicate offenses") specifically enumerated in 18 U.S.C. 2516(1). Section 113 of the Act expands the list of predicate offenses in which law enforcement may seek wiretap orders to include crimes relating to biological weapons, violence at international airports, nuclear and weapons of mass destruction threats, explosive materials, receiving terrorist military training, terrorist attacks against mass transit, arson within U.S. special maritime and territorial jurisdiction, torture, firearm attacks in federal facilities, killing federal employees, killing certain foreign officials, conspiracy to commit violence overseas, harboring terrorists, assault on a flight crew member with a dangerous weapon, certain weapons offenses aboard an aircraft, aggravated identity theft, "smurfing" (a money laundering technique whereby a large monetary transaction is separated into smaller transactions to evade federal reporting requirements on large transactions), and criminal violations of certain provisions of the Sherman Antitrust Act.

Attacks Against Railroad Carriers and Mass Transportation Systems

Section 110 of the Act merges 18 U.S.C. 1992 (outlawing train wrecking) and 18 U.S.C. 1993 (outlawing attacks on mass transportation system) into a new 18 U.S.C. 1992 intended to provide uniform offense elements and penalties for attacks on all transportation systems on land, on water, or through the air. In addition, the Act explicitly provides criminal punishment for the planning of terrorist attacks and other acts of violence against railroads and mass transportation systems; previous law had only criminalized committing such attacks or attempting, threatening, or conspiring to do so.

Punishment under this new criminal statute is imprisonment for not more than 20 years, but if the offense results in the death of any person, then imprisonment of any years or for life or the death penalty, although the death penalty is not available for inchoate forms of the offense (planning, conveying false information, attempting, threatening, or conspiring). Furthermore, the new 18 U.S.C. 1992 enhances the penalties for committing these criminal acts in circumstances that constitute an aggravated offense, by authorizing imprisonment for any term of years or life, or where death results, the death penalty. Finally, the new 18 U.S.C. 1992 defines covered conveyances and their systems to include passenger vessels.

Asset Forfeiture

Federal law permits U.S. confiscation of property derived from certain drug offenses committed in violation of foreign law, and also permits U.S. confiscation of all assets, foreign or domestic, associated with certain terrorist offenses. Section 111 of the Act amends the general civil forfeiture statute to authorize seizure of property within U.S. jurisdiction constituting, derived from, or traceable to, any proceeds obtained in (or any property used to facilitate) an offense that involves trafficking in nuclear, chemical, biological, or radiological weapons technology or material, if such offense is punishable under foreign law by death or imprisonment for a term exceeding one year or would be so punishable if committed within U.S. jurisdiction.

In addition, the Act changes the reference for the definition of terrorism as used in the asset forfeiture provision under section 806 of the USA PATRIOT Act. Prior to the Act, 18 U.S.C. 981(a)(1)(G) called for the confiscation of property of those planning or engaged in acts of domestic or international terrorism (as defined in 18 U.S.C. 2331) against the United States or its citizens. Domestic terrorism is defined in 18 U.S.C. 2331 (section 802 of the USA PATRIOT Act), and includes acts dangerous to human life in violation of state or federal law committed to influence the policy of a government or civilian population by intimidation or coercion, 18 U.S.C. 2331(5). Critics might suggest that the juxtaposition of the definition and the confiscation provisions of section 981(a)(1)(G) could result in the confiscation of the property of political action organizations whose members became involved in a picket sign swinging melee with counter-demonstrators. In contrast, 18 U.S.C. 2332b(g)(5)(B) seems less susceptible to such challenges since it defines terrorism by reference to violations of specific federal terrorist offenses rather than the generic, violation of state or federal law found in section 2331.

Thus, section 120 of the Act replaces terrorism defined in 18 U.S.C. 2331 with terrorism defined in 18 U.S.C. 2332b(g)(5)(B) as the ground for confiscation under section 981(a)(1)(G). It does so by amending 18 U.S.C. 981(a)(1)(G) so that it calls for the confiscation of property of those planning or engaged acts of domestic or international terrorism (as defined in 18 U.S.C. 2332b(g)(5)(B)) against the United States or its citizens.

Victims Access Forfeiture Fund

Section 981 of title 18 of the United States Code describes various forms of property that are subject to confiscation by the United States because of their proximity to various federal crimes. The proceeds from the confiscation of crime-related property are generally available for law enforcement purposes to the law enforcement agencies that participate in the investigation and prosecution that results in the forfeiture, e.g., 18 U.S.C. 981(e). The funds realized from the collection of criminal fines are generally available for victim compensation and victim assistance purposes, 42 U.S.C. 10601. Victims of violent federal crimes are entitled to restitution, 18 U.S.C. 3663A, and victims of other federal crimes are eligible for restitution, 18 U.S.C. 3663.

Section 127 of the Act expresses the sense of Congress that under section 981 victims of terrorist attacks should have access to the assets of terrorists that have been forfeited.

Miscellanea

This section of the report discusses miscellaneous provisions of Title I of the Act which are not easily classifiable within the subheadings above.

FISA Court Rules and Procedures

Section 109(d) of the Act requires the FISA court to publish its rules and procedures and transmit them in unclassified form to all judges on the FISA court, the FISA Court of Review, the Chief Justice of the United States, and the House and Senate Judiciary and Intelligence Committees.

The U.S. Citizenship and Immigration Services

The Act directs the Secretary of Homeland Security to report to the House and Senate Judiciary Committees semi-annually regarding the internal affairs operations and investigations of the U.S. Citizenship and Immigration Services. The first such written report is to be submitted no later than April 1, 2006.

Cigarette Smuggling

Federal law proscribes trafficking in contraband cigarettes. Violations are punishable by imprisonment for up to five years, and constitute racketeering predicate offenses. During debate on the House floor, several Members pointed to the fact that in at least one instance terrorists had resorted to cigarette smuggling as a financing mechanism.

Section 121 amends federal law by lowering the threshold definition of contraband cigarettes, from "a quantity in excess of 60,000 cigarettes" to 10,000 cigarettes, and adds a new provision for contraband smokeless tobacco, defined as a quantity in excess of 500 cans or packages of smokeless tobacco. Additionally, the Act creates a federal cause action against violators (other than Indian tribes or Indians in Indian country) for manufacturers, exporters, and state and local authorities.

Narco-Terrorism

The federal Controlled Substances Act prohibits drug trafficking with severe penalties calibrated according to the kind and volume of drugs and the circumstances involved (e.g., trafficking in 50 grams or more of crack cocaine is punishable by imprisonment for not less than 10 years and for not more than life; distributing a small amount of marijuana for no remuneration is punishable by imprisonment for not more than one year). Drug offenses that involved additional egregious circumstances are often subject to multiples of the sanctions for the underlying offense. Providing material support for the commission of a terrorist crime or to a designated foreign terrorist organization is likewise a federal crime, punishable by imprisonment for not more than 15 years.

Section 122 of the Act outlaws drug traffickingâfor the benefit of a foreign terrorist organization as defined in the immigration laws, 8 U.S.C. 1182(a)(3)(B), or of a person who has or is engaged in terrorism as defined in 22 U.S.C. 2656f(d)(2) (politically motivated violence against civilian targets)âunder a wide range of jurisdictional circumstances. The offense can only be committed with the knowledge of the terrorist misconduct of its beneficiaries. Violators face imprisonment for not less than twice the minimum penalty for drug trafficking under 21 U.S.C. 841(b)(1) nor more than life, and period of supervised release of not less than five years. The Act also expressly prohibits attempts and conspiracies to violate the new section. It may be that 21 U.S.C. 963 would have produced the same result in the absence of an express provision, since it punishes attempts and conspiracies to commit any offense defined in the Controlled Substances Act. It may also be that in conjunction, section 963 and the new section outlaw conspiracies to attempt a substantive violation of the new section.

Interference With the Operation of an Aircraft

It is a federal crime to destroy an aircraft or its facilities under various circumstances giving rise to federal jurisdiction or to attempt, or conspire to do so, 18 U.S.C. 32. Violations are punishable by imprisonment for not more than 20 years. It is likewise a federal crime to interfere with a member of a flight crew in the performance of their duties; this too is punishable by imprisonment for not more than 20 years (or imprisonment for any term of years or for life in the case of assault with a dangerous weapon), 49 U.S.C. 46504.

Section 123 of the Act amends 18 U.S.C. 32 to make it a federal crime to interfere or disable the operator of an aircraft or aircraft facility with reckless disregard for human safety or with the intent to endanger, subject to the same sanctions that apply to other violations of the section. By operation of section 32, the new prohibition extends to attempts and conspiracies to engage in such conduct, 18 U.S.C. 32(a)(7)(redesignated 18 U.S.C. 32(a)(8)).

Investigation of Political Activities

FISA bars the use of various information collection techniques in the course of a foreign intelligence investigation, if the investigation is based solely on the exercise of First Amendment protected rights, 50 U.S.C. 1805(a)(3)(A), 1824(a)(1)(A), 1942(a)(1).

Section 124 of the Act expresses the sense of Congress that the federal government should not conduct criminal investigations of Americans based solely on their membership in non-violent political organizations or their participation in other lawful political activity.

Immunity for Fire Equipment Donors

Section 125 grants immunity from civil liability to the donors (other than manufacturers) of fire equipment to volunteer fire organizations.

Federal Data Mining Report

Section 126 directs the Attorney General to submit a report to Congress within a year after the date of the Act's enactment, concerning the Department of Justice's use or development of "pattern-based" data mining technologies. While the Act provides a definition of "data-mining," it does not define "pattern-based."

Title II: Terrorist Death Penalty Enhancement Act of 2005

Title II of the Act makes several adjustments in federal death penalty law, which concern air piracy cases arising before 1994, a redundant procedural mechanism in federal capital drug cases, supervised release for terrorism offenses, and a transfer of the law governing the appointment of counsel in capital cases.

Pre-1994 Capital Air Piracy Cases

In the late 1960s and early 1970s, the U.S. Supreme Court held unconstitutional the imposition of capital punishment under the procedures then employed by the federal government and most of the states. In 1974, Congress established a revised procedure for imposition of the death penalty in certain air piracy cases. In 1994, when Congress made the procedural adjustments necessary to revive the death penalty as a sentencing option for other federal capital offenses, it replaced the air piracy procedures with those of the new regime. At least one court, however, held that the new procedures could not be applied retroactively to air piracy cases occurring after the 1974 fix but before the 1994 legislation, in the absence of an explicit statutory provision.

Section 211 of the Act adds an explicit provision to the end of the 1994 legislation. The amendment provides for the application of the existing federal capital punishment procedures, 18 U.S.C. ch.228, in addition to consideration of the mitigating and aggravating factors in place prior to the 1994 revival. Section 211 also provides for severance should any of the 1994 factors be found constitutionally invalid, and includes a definition of "especially heinous, cruel, or depraved" used as an aggravating factor in section 46503, to avoid the vagueness problems that might otherwise attend the use of such an aggravating factor.

The conference report accompanying H.R. 3199 notes that the changes apply to a relative small group of individuals responsible for murders committed during the course of hijackings in the mid 1980's who would otherwise be eligible for parole within 10 years of sentencing and could not be effectively sentenced to more than 30 years in prison.

Life Time Supervised Release Regardless of Risks

Prior to the Act, a federal court could have imposed a sentence of supervised release, to be served upon release from prison, of any term of years or life if the defendant has been convicted of a federal crime of terrorism (18 U.S.C. 2332b(g)(5)(B)) involving the foreseeable risk of physical injury of another, 18 U.S.C. 3583(j). Section 212 of the Act amends section 3583(j) to eliminate the requirement that the defendant be convicted of a crime involving a foreseeable risk of injury; conviction of any federal crime of terrorism is sufficient.

Capital Procedures in Drug Cases

Prior to the Act, federal law provided two sets of death penalty procedures for capital drug cases, the procedures applicable in federal capital cases generally, 18 U.S.C. 3591-3598, and the procedures specifically applicable in federal capital drug cases, 21 U.S.C. 848. The two procedures are virtually identical according to United States v. Matthews, 246 F.Supp.2d 137, 141 (N.D.N.Y. 2002). Section 221 of the Act eliminates the specific drug case procedures so that only the general procedures apply in such cases. According to the conference report accompanying H.R. 3199 , this "eliminates duplicative death procedures under title 21 of the United States code, and consolidates procedures governing all Federal death penalty prosecutions in existing title 18 of the United States Code, thereby eliminating confusing requirements that trial courts provide two separate sets of jury instructions."

Appointment of Counsel in Capital Cases

Prior to the Act, the federal capital drug provisions housed provisions for the appointment of counsel to assist indigents facing federal capital charges and indigent federal and state death row inmates during federal habeas proceedings, 21 U.S.C. 848(q)(4)-(10). Section 222 of the Act transfers these provisions to title 18.

Title III: Reducing Crime and Terrorism at America's Seaports Act of 2005

Title III of the Act, among other things, creates more severe criminal penalties concerning criminal and terrorist activities committed at U.S. seaports or aboard vessels.

Seaport Entry by False Pretenses

The Maritime Transportation Security Act requires the submission to the Department of Homeland Security of vessel and facility security plans that include provisions for establishing and controlling secure areas, 46 U.S.C. 70103(c). It also calls for issuance of transportation security cards in order to regulate access to secure areas, 46 U.S.C. 70105. It contains no specific provisions regarding trespassing upon security areas, but the Coast Guard and Maritime Transportation Act amended its provisions in a manner that suggests the application of state criminal laws as well as criminal sanctions found in the Deepwater Port Act, 33 U.S.C. 1514 (imprisonment for not more than one year); the Ports and Waterways Safety Act, 33 U.S.C. 1232 (imprisonment for not more than 10 years); and the act of June 15, 1917, 50 U.S.C. 192 (imprisonment for not more than 10 years).

As a general matter, it is a federal crime to use fraud or false pretenses to enter federal property, a vessel or aircraft of the United States, or the secured area in an airport, 18 U.S.C. 1036. The offense is punishable by imprisonment for not more than five years if committed with the intent to commit a felony and imprisonment for not more six months in other cases. The same maximum penalty applies to making a false statement to federal officials or in any matter within the jurisdiction of a federal agency or department, 18 U.S.C. 1001. Possession of phony government identification to defraud the U.S. is a one-year felony, absent further aggravating circumstances under which the sanctions are increased, 18 U.S.C. 1028 (a)(4), (b)(6). Moreover, except to the extent covered by 18 U.S.C. 1036 or 18 U.S.C. 1863 (trespassing in the national forests), unlawful entry to property (federal or otherwise) with the intent to commit a second crime is punishable under the laws of the state in which it occurs, cf., 18 U.S.C. 13.

Section 302 of the Act expands 18 U.S.C. 1036 to cover seaports and increases the penalty for violations with respect to any of the protected areas committed with the intent to commit a felony, from imprisonment for not more than five years to imprisonment for not more than 10 years, amended 18 U.S.C. 1036. The section also provides a definition of "seaport."

The conference report accompanying H.R. 3199 quotes the Interagency Commission report and describes the problems the amendments are designed to address:

According to the Report of the Interagency Commission ... '[c]ontrol of access to the seaport or sensitive areas within the seaport is often lacking.' Such unauthorized access is especially problematic, because inappropriate controls may result in the theft of cargo and more dangerously, undetected admission of terrorists. In addition to establishing appropriate physical, procedural, and personnel security for seaports, it is important that U.S. criminal law adequately reflect the seriousness of the offense.

However, critics might point out that the section does not deal with all "unauthorized access," only access accomplished by fraud. And, they argue, even if the seriousness of such unauthorized access to seaport restricted areas with criminal intent might warrant imprisonment for up to 10 years, there is nothing in conference or Commission reports to explain the necessity for the comparable penalty increase for the other forms of trespassing upon the other areas covered under section 1036.

Obstructing Maritime Inspections

Various federal laws prohibit the failure to heave to or otherwise obstruct specific maritime inspections under various circumstances.

Section 303 of the Act establishes a new, general federal crime that outlaws, in the case of vessel subject to the jurisdiction of the United States, the failure to heave to, or to forcibly interfere with the boarding of the vessel by federal law enforcement or resist arrest, or to provide boarding federal law enforcement officers with false information concerning the vessel's cargo, origin, destination, registration, ownership, nationality or crew. The crime is punishable by imprisonment for not more than five years.

Interference with Maritime Commerce

Federal law prohibits violence against maritime navigation, 18 U.S.C. 2280, burning or bombing vessels, 18 U.S.C. 2275, burning or bombing property used in or whose use affects interstate or foreign commerce, 18 U.S.C. 844(I), destruction of property within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. 1363. None of them are punishable by life imprisonment unless death results from their commission.

Section 304 of the Act creates two new federal crimes. The first makes it a federal crime punishable by imprisonment for any term of years or for life (or the death penalty if death results) to place a dangerous substance or device in the navigable waters of the United States with the intent to damage a vessel or its cargo or to interfere with maritime commerce.

The second of section 304's provisions makes it a federal crime punishable by imprisonment for not more than 20 years to tamper with any navigational aid maintained by the Coast Guard or St. Lawrence Seaway Development Corporation in manner likely to endanger navigation, new 18 U.S.C. 2282B as added by the Act. Opponents may find the sanctions a bit stiff, but in the words of the conference report, "the Coast Guard maintains over 50,000 navigational aids on more than 25,000 miles of waterways. These aids ... are inviting targets for terrorists." There may also be some question why the new section is necessary given that section 306 of the Act provides, "Whoever knowingly ... damages, destroys, or disables ... any aid to navigation ... shall be ... imprisoned not more than 20 years," new 18 U.S.C. 2291(a)(3) as added by the Act; see also , new 18 U.S.C. 2291(a)(4) as added by section 306 of the Act ("Whoever knowingly interferes by force or violence with the operation of ... any aid to navigation ..., if such action is likely to endanger the safety of any vessel in navigation").

Transporting Dangerous Materials or Terrorists

Section 305 of the Act establishes two other federal terrorism-related transportation offenses, one for transporting dangerous materials and the other for transporting terrorists.

Transporting Dangerous Materials

It is a federal crime to possess biological agents, chemical weapons, atomic weapons, and nuclear material, each punishable by imprisonment for any term of years or for life. And although the penalties vary, it is likewise a federal crime to commit any federal crime of terrorism. Morever, it is a federal crime to provide material support, including transportation, for commission of various terrorist crimes or for the benefit of a designated terrorist organization, 18 U.S.C. 2339A, 2339B, or to transport explosives in interstate or foreign commerce with the knowledge they are intended to be used in injure an individual or damage property, 18 U.S.C. 844(d). Most of these offenses condemn attempts and conspiracies to commit them, and accomplices and coconspirators incur comparable liability in any event.

Section 305 of the Act establishes a new federal offense which prohibits transporting explosives, biological agents, chemical weapons, radioactive or nuclear material knowing it is intended for use to commit a federal crime of terrorismâaboard a vessel in the United States, in waters subject to U.S. jurisdiction, on the high seas, or aboard a vessel of the United States. The crime is punishable by imprisonment for any term of years or for life and may be punishable by death if death results from commission of the offense.

Transporting Terrorists

While it is a crime to harbor a terrorist, 18 U.S.C. 2339, or to provide material support, including transportation, for the commission of a terrorist offense or for the benefit of a foreign designated terrorist organization, 18 U.S.C. 2339A, 2339B, such offenses are only punishable by imprisonment for not more than 15 years. The same perceived defect may appear to some in the penalties for aiding and abetting commission of the various federal crimes of terrorism and in the penalties available for committing many of them.

Section 305 creates a new federal offense, 18 U.S.C. 2284, punishable by imprisonment for any term of years or for life for transporting an individual knowing he intends to commit, or is fleeing from the commission of, a federal crime of terrorism. Unlike the new 18 U.S.C. 2282A(c), created in section 304, neither of the section 305 offenses have an explicit exception for official activities. Of course, even though facially the new section 2284 forbids transporting terrorists for purposes of extradition or prisoner transfer, it would never likely be read or applied to prevent or punish such activity.

Interference With Maritime Navigation

Chapter 111 of title 18 of the United States Code relates to shipping and by and large outlaws violence in various forms committed against vessels within U.S. jurisdiction. Other sections of the Code proscribe the use of fire, explosives or violence with sufficient breath of protect shipping under some circumstances. For example, one section condemns the use fire or explosives against property used in (or used in an activity affecting) interstate or foreign commerce, 18 U.S.C. 844(I). Another prohibits destruction of property within the maritime jurisdiction of the Untied States, 18 U.S.C. 1363, and a third, arson within the maritime jurisdiction, 18 U.S.C. 81. Hoaxes relating to violations of chapter 111 are punishable by imprisonment for not more than five years (not more than 20 years if serious injury results and if death results, by imprisonment for any term of years or for life or by death), 18 U.S.C. 1038.

Section 306 of the Act enacts a new chapter 111A supplementing chapter 111 as well as section 1038 and consists of four sections. Of the four sections, two are substantive, proscribing hoaxes and the destruction of vessels or maritime facilities, new 18 U.S.C. 2291, 2292; and two procedural, one providing the jurisdictional base for the substantive offenses, new 18 U.S.C. 2290, and the other barring prosecution of certain misdemeanor or labor violations, new 18 U.S.C. 2993.

According to the conference report accompanying H.R. 3199 , "this section harmonizes the somewhat outdated maritime provisions with the existing criminal sanctions for destruction or interference with an aircraft or aircraft facilities in 18 U.S.C. 32, 34, and 35." It is not surprising, therefore, that the new destruction offense mirrors the substantive provisions for the destruction of aircraft and their facilities, 18 U.S.C. 32, although it differs from the aircraft prohibition in several respects. First, it has exceptions for lawful repair and salvage operations and for the lawful transportation of hazardous waste, new 18 U.S.C. 2291(b). Second, in the manner of 18 U.S.C. 1993 (attacks on mass transit), it increases the penalty for violations involving attacks on conveyances carrying certain hazardous materials to life imprisonment, new 18 U.S.C. 2291(c). Third, it tightens the "death results" sentencing escalator so that a sentence of death or imprisonment for life or any term of years is only warranted if the offender intended to cause the resulting death, new 18 U.S.C. 2291(d).

In addition to these, the substantive prohibitions of the new section 2291 differ from the otherwise comparable prohibitions of 18 U.S.C. 2280 (concerning violence against maritime navigation) in two major respects. The proscriptions in section 2280 and those of section 32 generally require that the prohibited damage adversely impact on safe operation; new section 2291 is less likely to feature a comparable demand.

On the other hand, because it is treaty-based, section 2280 enjoys a broader jurisdictional base than new section 2290 is able to provide for new section 2291. By virtue of new section 2290, a violation of new section 2291 is only a federal crime if it is committed within the United States, or the offender or victim is a U.S. national, or the vessel is a U.S. vessel, or a U.S. national is aboard the vessel involved. In the case of subsection 32(b) or section 2280, there need be no more connection to the United States than that the offender is subsequently found or brought here, 18 U.S.C. 32(b), 2280(b)(1)(c). Like section 2280, however, new section 2291 is subject to exceptions for misdemeanor offenses and labor disputes.

New section 2292 creates a hoax offense in the image of 18 U.S.C. 35 which relates to hoaxes in an aircraft context. It sets a basic civil penalty of not more than $5000 for hoaxes involving violations of the new section 2291 or of chapter 111, the existing shipping chapter. If the misconduct is committed "knowingly, intentionally, maliciously, or with reckless disregard for the safety of human life," it is punishable by imprisonment for not more than five years. The Act also requires that in both instances, jurisdiction over the offense is governed by the jurisdiction of the offense that is the subject to the hoax.

In the case of hoaxes involving violations of chapter 111, the new section affords the government an alternative ground for prosecution to that offered by 18 U.S.C. 1038.

Theft From Maritime Commerce

Section 307 of the Act expands or clarifies the application of various criminal provisions particularly in the case of maritime commerce.

Theft From Interstate Commerce

Federal law prohibits theft from shipments traveling in interstate or foreign commerce; violations are punishable by imprisonment for not more than 10 years (not more than one year if the value of the property stolen is $1000 or less), 18 U.S.C. 659.

Section 307 increases the penalty for theft of property valued at $1000 or less to imprisonment for not more than three years, 18 U.S.C. 659 as amended by the Act. It also makes it clear that theft from trailers, cargo containers, freight stations, and warehouses are covered, and that the theft of goods awaiting transshipment is also covered, 18 U.S.C. 659 as amended by the Act.

Interstate or Foreign Transportation of Stolen Vessels

Interstate or foreign transportation of a stolen vehicle or aircraft is punishable by imprisonment for not more than 10 years, 18 U.S.C. 2312; receipt of a stolen vehicle or aircraft that has been transported in interstate or foreign commerce carries the same penalty, 18 U.S.C. 2313.

Section 307 expands the coverage of federal law to cover the interstate or foreign transportation of a stolen vessel and receipt of a stolen vessel that has been transported in interstate or overseas, 18 U.S.C. 2311 as amended by the Act. The United States Sentencing Commission is to review the sentencing guidelines application to violations of 18 U.S.C. 659 and 2311. The Attorney General is to see that cargo theft information is included in the Uniform Crime Reports and to report annually to Congress on law enforcement activities relating to theft from interstate or foreign shipments in violations of 18 U.S.C. 659.

Stowaways

Stowing away on a vessel or an aircraft is a federal crime; offenders are subject to imprisonment for not more than one year, 18 U.S.C. 2199. Section 308 of the Act increases the penalty for stowing away from imprisonment for not more than one year to not more than five years (not more than 20 years if the offense is committed with the intent to inflict serious injury upon another or if serious injury to another results; or if death results, by imprisonment for any term of years or for life), 18 U.S.C. 2199 as amended by the Act. The "death results" capital punishment provision of the Act is only triggered if the offender intended to cause a death, 18 U.S.C. 2199(3) as amended by the Act.

Port Security Bribery

Bribery of a federal official is punishable by imprisonment for not more than 15 years, 18 U.S.C. 201; many federal crimes of terrorism carry maximum penalties of imprisonment for not more than 20 years or more. Those who aid and abet or conspire for the commission of such crimes are subject to sanctions.

Section 309 of the Act makes it a federal crime to bribe any individual (private or public) with respect to various activities within any secure or restricted area or seaportâwith the intent to commit international or domestic terrorism (as defined in 18 U.S.C. 2331). Offenders face imprisonment for not more than 15 years, new 18 U.S.C. 226 as added by the Act.

Smuggling Goods Into the United States

Section 310 increases the sentence of imprisonment for smuggling into the United States from not more than five years to not more than 20 years, 18 U.S.C. 545 as amended by the Act.

Smuggling Goods From the United States

The penalty for smuggling goods into a foreign country by the owners, operators, or crew of a U.S. vessel is imprisonment for not more than five years, 18 U.S.C. 546. Other penalties apply for smuggling or unlawfully exporting specific goods or materials out of the U.S. or into other countries.

Section 311 of the Act creates a new federal crime which outlaws smuggling goods out of the United States; offenders face imprisonment for not more than 10 years, new 18 U.S.C. 554 as added by the Act. Once smuggling from the U.S. is made a federal offense, corresponding changes in federal forfeiture and custom laws become a possibility.

Federal law proscribes laundering the proceeds of various federal crimes (predicate offenses), 18 U.S.C. 1956, 1957. Smuggling goods into the U.S. in violation of 18 U.S.C. 545 is a money laundering predicate offense, 18 U.S.C. 1956(c)(7)(D). The proceeds involved in financial transactions in violation of the money laundering statutes are generally subject to confiscation, 18 U.S.C. 981(a)(1)(A). Section 311 adds the new overseas smuggling crime, 18 U.S.C. 554, to the money laundering predicate offense list, 18 U.S.C. 1956(c)(7)(D) as amended by the Act.

Federal law calls for the confiscation of goods smuggled into the United States and of the conveyances used to smuggle them in, 19 U.S.C. 1595a. Section 311 calls for the confiscation of goods smuggled out of the U.S. and of any property used to facilitate the smuggling, new 19 U.S.C. 1595a(d) as added by the Act.

It is a federal crime to remove property from the custody of the Customs Service. Section 311 increases the penalty for violation of this crime to imprisonment for not more than 10 years, 18 U.S.C. 549 as amended by the Act.

Title IV: Combating Terrorism Financing Act of 2005

Title IV of the Act strengthens penalties for money laundering, particularly related to financing terrorism, and makes changes to forfeiture authority. There is also a provision that might be construed to permit pre-trial asset freezes in certain civil forfeiture cases made part of the property owner's criminal trial.

International Emergency Economic Powers Act Penalties

The International Emergency Economic Powers Act (IEEPA), 50 U.S.C. 1701-1707, grants the President the power to impose economic restrictions "to deal with unusual and extraordinary [external] threats to the national security, foreign policy, or economy of the United States," 50 U.S.C. 1701(a). The authority has been invoked among other instances to block Iranian assets, Exec. Order No. 12170, 44 Fed.Reg. 65729 (Nov. 1979); to prohibit trade and certain other transactions with Libya, Exec. Order No. 12543, 51 Fed.Reg. 875 (Jan. 7, 1986); to impose economic sanctions on countries found to be contributing to the proliferation of weapons of mass destruction, Exec. Order No. 12938, 59 Fed. Reg. 59099 (Nov. 14, 1994); to block the assets and prohibit financial transactions with significant narcotics traffickers, 60 Fed.Reg. 54579 (Oct. 21, 1995); and to block the property and prohibit transactions with persons who commit, threaten to commit, or support terrorism, Exec. Order No. 13224, 66 Fed.Reg. 49079 (Sept. 23, 2001).

The Act increases the imprisonment and civil penalty for violations of presidential orders or related regulations issued under IEEPA, including but not limited to those that bar financial dealings with designated terrorists and terrorist groups. Violations are now punishable by a civil penalty of not more than $50,000 (previously $10,000) and by imprisonment for not more than 20 years (previously 10 years).

Terrorist Money Laundering

RICO

The federal Racketeer Influenced and Corrupt Organizations (RICO) law imposes severe penalties (up to 20 years imprisonment) for acquiring or operating an enterprise through the commission of a pattern of other crimes (predicate offenses), 18 U.S.C. 1961-1965. One federal money laundering statute prohibits, among other things, using the funds generated by the commission of a predicate offense in a financial transaction designed to conceal the origin of the funds or promote further predicate offenses, 18 U.S.C. 1956. A second statute condemns financial transactions involving more than $10,000 derived from a predicate offense, 18 U.S.C. 1957. Crimes designated RICO predicate offenses automatically qualify as money laundering predicate offenses, 18 U.S.C. 1956(c)(7)(A), 1957(f)(3). Property associated with either a RICO or money laundering violation is subject to confiscation, but RICO forfeiture requires conviction of the property owner, 18 U.S.C. 1963, money laundering forfeiture does not, 18 U.S.C. 1956, 1957, 981.

It is a federal crime to operate a business that transmits money overseas either directly or indirectly, without a license, or for a licensed business to either fail to comply with applicable Treasury Department regulations or to transmit funds that it knows will be used for, or were generated by, criminal activities, 18 U.S.C. 1960.

The Act adds 18 U.S.C. 1960 (illegal money transmissions) to the RICO predicate offense list and consequently to the money laundering predicate offense list, 18 U.S.C. 1961(1) as amended by the Act. The House-passed version of the Reauthorization Act also added 8 U.S.C. 1324a (employing aliens) to the RICO list; however, this provision was not included in the conference bill and consequently is not part of the Act as enacted.

Direct Money Laundering Predicates

Section 403(b) of the Act states, "Section 1956(c)(7)(D) of title 18, United States Code, is amended by striking 'or any felony violation of the Foreign Corrupt Practices Act' and inserting 'any felony violation of the Foreign Corrupt Practices Act.'" However, this grammatical change relating to the Foreign Corrupt Practices Act (dropping the "or" before the reference) is redundant. The Intelligence Reform and Terrorism Prevention Act already made this grammatical fix, 118 Stat. 3774 (2004).

Investigative Jurisdiction

The Act makes conforming amendments to 18 U.S.C. 1956(e), 1957(e) concerning the money laundering investigative jurisdiction of various components of the Department of Homeland Security. Procedures for coordination, to avoid duplication of efforts, and because investigative agencies share in the distribution of forfeited property to the extent of their participation in the investigation that led to confiscation, may prove necessary in implementing these provisions, 18 U.S.C. 981(d), (e); 19 U.S.C. 1616a.

Forfeiture for Foreign Crimes

The property of individuals and entities that prepare for or commit acts of international terrorism against the United States or against Americans is subject to federal confiscation, 18 U.S.C. 981(a)(1)(G). Criminal forfeiture is confiscation that occurs upon conviction for a crime for which forfeiture is a consequence, e.g., 18 U.S.C. 1963 (RICO). Civil forfeiture is confiscation accomplished through a civil proceeding conducted against the "offending" property based on its relation to a crime for which forfeiture is a consequence, e.g., 18 U.S.C. 981. Criminal forfeiture is punitive; civil forfeiture is remedial, Calderon-Toledo v. Pearson Yacht Leasing , 416 U.S. 663, 683-88 (1974). A convicted defendant may be required to surrender substitute assets if the property subject to criminal forfeiture is located overseas or otherwise beyond the reach of the court, 18 U.S.C. 853(p). Civil forfeiture ordinarily requires court jurisdiction over the property, but when forfeitable property is held overseas in a financial institution that has a correspondent account in this country the federal government may institute and maintain civil forfeiture proceedings against the funds in the interbank account here, 18 U.S.C. 9871(k).

Article III, section 2 of the United States Constitution declares in part that, "no attainder of treason shall work corruption of blood, or forfeiture of estate except during the life of the person attainted," U.S.Const. Art.III, Â§3, cl.2. Forfeiture of estate is the confiscation of property simply because it is the property of the defendant, without any other connection to the crime for which gives rise to the forfeiture. The constitutional provision applies only in cases of treason, but due process would seem likely to carry the ban to forfeiture of estate incurred as a result of other crimes, particularly lesser crimes. The assumption may be hypothetical because with a single Civil War exception, until very recently federal law only called for the forfeiture of property that had some nexus to the confiscation-triggering crime beyond mere ownership by the defendant. Subparagraph 981(a)(1)(G) calls for the confiscation the property of individuals and entities that engage in acts of terrorism against the United States or Americans, 18 U.S.C. 981(a)(1)(G)(i), and under separate clauses any property derived from or used to facilitate such misconduct, 18 U.S.C. 981(a)(1)(G)(ii),(iii). As yet, there no reported cases involving 18 U.S.C. 981(a)(1)(G)(i).

Section 404 of the Act authorizes the federal government to confiscate under civil forfeiture procedures all property of any individual or entity planning or committing an act of international terrorism against a foreign nation or international organization without any further required connection of the property to the terrorist activity other than ownership. The section contemplates forfeiture of property located both here and abroad, since it refers to "all assets, foreign or domestic," but with respect to property located outside of the United States, it requires an act in furtherance of the terrorism to have "occurred within the jurisdiction of the United States." It is unclear whether the jurisdiction referred to is the subject matter jurisdiction or territorial jurisdiction of the United States or either or both. The due process shadow of Article III, section 3, clause 2 may limit the reach of the proposal to property with some nexus other than ownership to the terrorist act.

Money Laundering Through "Hawalas"

Money laundering in violation of 18 U.S.C. 1956 may take either of two forms (1) engaging in a prohibited financial transaction involving the proceeds of a predicate offense, 18 U.S.C. 1956(a)(1), or (2) internationally transporting, transmitting, or transferring the proceeds of a predicate offense, 18 U.S.C. 1956(a)(2). Section 405 of the Act extends the financial transaction offense to include related, parallel transactions and transmissions.

As the conference report accompanying H.R. 3199 explains, the amendment addresses a feature of the often informal networks called "hawalas," for transfer money overseas:

Alternative remittance systems are utilized by terrorists to move and launder large amounts of money around the globe quickly and secretly. These remittance systems, also referred to as "hawala" networks, are used throughout the world, including the Middle East, Europe, North American and South Asia. These systems are desirable to criminals and non-criminals alike because of the anonymity, low cost, efficiency, and access to underdeveloped regions. The United States has taken steps to combat the "hawala" networks by requiring all money transmitters, informal or form, to register as money service businesses.

Under current Federal law, a financial transaction constitutes a money laundering offense only if the funds involved in the transaction represent the proceeds of some criminal offense. . . There is some uncertainty, however, as to whether the "proceeds element" is satisfied with regard to each transaction in a money laundering scheme that involves two or more transactions conducted in parallel, only one of which directly makes use of the proceeds from unlawful activity. For example, consider the following transaction: A sends drug proceeds to B, who deposits the money in Bank Account 1. Simultaneously or subsequently, B takes an equal amount of money from Bank Account 2 and sends it to A, or to a person designated by A. The first transaction from A to B clearly satisfies the proceeds element of the money laundering statute, but there is some question as to whether the second transactionâthe one that involves only funds withdrawn form Bank Account 2 does so as well. The question has become increasingly important because such parallel transactions are the technique used to launder money through the Black Market Peso Exchange and "hawala" network.

Technical Amendments

Section 406 of the Act corrects a number of typographical and grammatical errors in existing law including changing the reference in section 322 of the USA PATRIOT Act, 115 Stat. 315 (2001), from 18 U.S.C. 2466(b) to 28 U.S.C. 2466(b); changing the phrase "foreign bank" to "foreign financial institution" in 18 U.S.C. 981(k)(relating to forfeiture and interbank accounts); correcting a reference to the Intelligence Reform and Terrorism Prevention Act in 31 U.S.C. 5318(n)(4)(A); capitalizing a reference in the Intelligence Reform and Terrorism Prevention Act (amending 18 U.S.C. 2339C rather than 18 U.S.C. 2339c); and codifying the forfeiture procedure passed as section 316 of the USA PATRIOT Act, 115 Stat. 309 (2001), new 18 U.S.C. 987.

Civil Forfeiture Pre-trial Freezes and Restraining Orders

Federal law permits pre-trial restraining orders to freeze property sought in criminal forfeiture cases, 21 U.S.C. 853(e), and pre-trial restraining orders or the appointment of receivers or conservators in civil forfeiture cases, 18 U.S.C. 983(j). In money laundering civil penalty and forfeiture cases, federal law also permits restraining orders and the appointment of receivers under somewhat different, less demanding procedures with respect to the property of foreign parties held in this country, 18 U.S.C. 1956(b). Section 406 of the Act removes the requirement that the property be that of a foreign party, by amending 18 U.S.C. 1956(b)(3),(4).

Conspiracy Penalties

It is a federal crime to destroy or attempt to destroy commercial motor vehicles or their facilities, 18 U.S.C. 33. Offenders face imprisonment for not more than 20 years. It is also a federal crime to cause or to attempt to cause more than $100,000 worth of damage to an energy facility, 18 U.S.C. 1366. Again, offenders face imprisonment for not more than 20 years. As a general rule, conspiracy to commit these or any other federal crime is punishable by imprisonment for not more than five years, 18 U.S.C. 371, and conspirators are liable for the underlying offense and any other offense committed by any of co-conspirators in the foreseeable furtherance of the criminal scheme, United States v. Pinkerton , 340 U.S. 640 (1946).

For several federal crimes, instead of the general five-year penalty for conspiracy, section 811 of the USA PATRIOT Act used the maximum penalty for the underlying offense as the maximum penalty for conspiracy to commit the underlying offense, 115 Stat. 381-82 (2001). Section 406(c) of the Act allows for the same penalty scheme for conspiracies to violate 18 U.S.C. 33 (destruction of motor vehicles) and 18 U.S.C. 1366 (damage an energy facility).

Laundering the Proceeds of Foreign Terrorist Training

Federal law prohibits laundering the proceeds of various predicate offenses, 18 U.S.C. 1956; in addition to other criminal penalties, property associated with such laundering is subject to confiscation, 18 U.S.C. 981(a)(1)(A). Receipt of military training from a foreign terrorist organization is also a federal crime, 18 U.S.C. 2339D. Section 112 of the Act makes 18 U.S.C. 2339D a federal crime of terrorism under 18 U.S.C. 2332b(g)(5)(B). Federal crimes of terrorism are RICO predicate offenses by definition, 18 U.S.C. 1961(1)(G). RICO predicate offenses are by definition money laundering predicate offenses, 18 U.S.C. 1956(c)(7)(A). Section 409 of the Act makes 18 U.S.C. 2339D a money laundering predicate offense directly, 18 U.S.C. 1956(c)(7)(D). It is not clear why the duplication was thought necessary.

Uniform Procedures for Criminal Forfeitures

The Act contains an amendment to 28 U.S.C. 2461(c), for which there is no explanation in the conference report accompanying H.R. 3199 . Nor does the amendment appear in either of the two versions of H.R. 3199 sent to conference. Nor does the amendment appear to have been included in other legislative proposals and thus has not heretofore been the beneficiary of examination in committee or on the floor. The change is captioned "uniform procedures for criminal forfeitures," but it is not facially apparent precisely how the procedures for various criminal forfeitures are disparate or how the amendment makes them more uniform. Part of the difficulty flows from the fact that both section 2461(c) and the Act's amendment are somewhat cryptic. Nevertheless, it seems crafted to make a default procedure into an exclusive procedure.

In its original form, 28 U.S.C. 2461(c) states:

If a forfeiture of property is authorized in connection with a violation of an Act of Congress, and any person is charged in an indictment or information with such violation but no specific statutory provision is made for criminal forfeiture upon conviction, the Government may include the forfeiture in the indictment or information in accordance with the Federal Rules of Criminal Procedure, and upon conviction, the court shall order the forfeiture of the property in accordance with the procedures set forth in section 413 of the Controlled Substances Act (21 U.S.C. 853), other than subsection (d) of that section.

The Act amends section 2461(c) to read:

If a person is charged in a criminal case with a violation of an Act of Congress for which the civil or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the indictment or information pursuant to the Federal Rules of Criminal Procedure. If the defendant is convicted of the offense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case pursuant to the Federal Rules of Criminal Procedure and section 3554 of title 18, United States Code. The procedures in section 413 of the Controlled Substances Act (21 U.S.C. 853) apply to all stages of a criminal forfeiture proceeding, except that subsection (d) of such section applies only in cases in which the defendant is convicted of a violation of such Act.

A casual reading of the original section 2461(c) might suggest that it only applies in the case of a criminal forfeiture statute which fails to indicate what procedure should be used to accomplish confiscation. In fact, section 2461(c) originally allowed confiscation under its criminal forfeiture procedures where civil forfeiture was authorized by statute but criminal forfeiture otherwise was not. On its face, however, it did not allow the government to merge every civil forfeiture with the criminal prosecution of the property owner. In its original form, section 2461(c) was only available if there was no other criminal forfeiture counterpart for the civil forfeiture. Under the Act, the distinction no longer exists.

Moreover, since section 2461(c) speaks of treating civil forfeitures as criminal forfeitures after conviction, some courts have held that pre-trial freeze orders available in other criminal forfeiture cases may not be invoked in the case of a section 2461(c) "gap filler." It is unclear whether the Act is intended to change this result as well. On the one hand, the language of conviction still remains. On the other hand, the description of the role of 21 U.S.C. 853 (which authorizes pre-trial restraining orders) may signal a different result. The statutory language prior to amendment is fairly clear, the procedures of section 853 come into play after conviction: "upon conviction, the court shall order the forfeiture of the property in accordance with the procedures set forth in section 413 of the Controlled Substances Act (21 U.S.C. 853)," 28 U.S.C. 2461(c). The statement in the Act is less conclusive: "The procedures in section 413 of the Controlled Substances Act (21 U.S.C. 853) apply to all stages of a criminal forfeiture proceeding." This change in language suggests that a change in construction may have been intended.

Title V: Miscellaneous Provisions

Title V of the Act contains miscellaneous provisions added in conference and not previously included in either the House or Senate version of H.R. 3199 , some of whichâlike the habeas amendments in the case of state death row inmates, or the adjustments in the role of the Office of Intelligence Policy and Review in the FISA processâmay be of special interest.

Justice Department Residency Requirements

United States Attorneys and Assistant United States Attorneys must live within the district for which they are appointed, except in the case of the District of Columbia and the Southern and Eastern Districts of New York, 28 U.S.C. 545. The Attorney supervises and directs litigation in which the United States has an interest, 28 U.S.C. 516-519. He enjoys the authority to marshal, move, and direct the officers, employees, or agencies of the Department of Justice to this end, 28 U.S.C. 509, 510, 547. Section 501 of the Act allows the Attorney General to waive the residency requirement with respect to U.S. Attorneys or Assistant U.S. Attorneys who have been assigned additional duties outside the districts for which they were appointed. The conference report accompanying H.R. 3199 notes that the amendment will allow Justice Department personnel to be assigned to Iraq, but does not explain why the authority is made retroactive to February 1, 2005.

Appointment of U.S. Attorneys

The Attorney General has the authority to temporarily fill vacancies in the office of United States Attorney, 28 U.S.C. 546. Prior to the Act, if a replacement had not been confirmed and appointed within 120 days, the district court was authorized to make a temporary appointment. The Act repeals the authority of the court and permits the Attorney General's temporary designee to serve until the vacancy is filled by confirmation and appointment.

Presidential Succession: Homeland Security Secretary

The heads of the various federal departments come within the line of presidential succession, 3 U.S.C. 19(d)(1). Section 503 of the Act adds the Secretary of the Department of Homeland Security to the list following the Secretary of Veterans Affairs.

Confirmation of the Director of BATFE

Prior to the Act, the Attorney General had the responsibility of appointing the Director the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Section 504 of the Act removes this power from the Attorney General, and vests the appointment in the President with the advice and consent of the Senate, amending section 1111(a)(2) of the Homeland Security Act of 2002, P.L. 107-296 , 116 Stat. 2135 (2002).

Qualifications for U.S. Marshals

The President appoints the marshal in each federal judicial district with the advice and consent of the Senate, 28 U.S.C. 561. There are no statutory qualifications. The Act describes a fairly demanding set of minimum qualifications that each marshal "should have," which the conference report characterizes as clarifications. Some may consider this an intrusion upon the constitutional prerogatives of the President. The Constitution does confer upon him the power to nominate and, with the advice and consent of the Senate, to appoint officers of the United States, U.S. Const. art. II, Â§2. It might be thought that to impose minimum qualifications for appointment impermissibly limits the President's power to nominate. But with few exceptions, the offices in question are creatures of statute. They exist by exercise of Congress's constitutional authority "to make all laws necessary and proper for carrying into execution" the constitutional powers of the Congress, the President or Government of the United States, U.S. Const. art. I, Â§8, cl.18. The imposition of minimum qualifications is consistent with long practice as to which the Supreme Court has observed:

Article II expressly and by implication withholds from Congress power to determine who shall appoint and who shall remove except as to inferior offices. To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed, and their compensationâall except as otherwise provided by the Constitution.

The terminology used in section 505 of the Act leaves some doubt whether it is intended to require or merely encourage the nomination of candidates exhibiting the statutory qualifications ("each marshal appointed under this section should have ..."). Perhaps more intriguing is why the conferees deemed this particular office and not others appropriate for such treatment. The office has existed since the dawn of the Republic, 1 Stat. 87 (1789), without a statement of required or preferred qualifications. Arguably comparable or more significant offices within the Department of Justice face no similar provisions. No such provisions attend the appointment of U.S. Attorneys, 28 U.S.C. 541; the Director the Federal Bureau of Investigation, 28 U.S.C. 532; the Director of the Marshals Service, 28 U.S.C. 561; or even the Attorney General himself, 28 U.S.C. 503. Even when the Act puts its hand anew to the appointment of an arguably comparable positionâthe appointment of the Director of BATFE, supra âit says nothing of minimum qualifications. Of course, the requirements seem relevant and it is difficult to argue that any federal office should not be filled with the most highly qualified individual possible.

New National Security Division of the DOJ and new Assistant Attorney General

Section 506 of the Act creates a new National Security Division within the Department of Justice (DOJ), headed by a new Assistant Attorney General, comprising prosecutors from the DOJ's Criminal Division's Counterespionage and Counterterrorism sections and attorneys from the DOJ's Office of Intelligence Policy and Review, the office that is responsible for reviewing wiretapping operations under FISA.

Background

The presidential Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction recommended that "[t]he Department of Justice's primary national security elementsâthe Office of Intelligence Policy and Review, and the Counterterrorism and Counterespionage sections [of the Criminal Division]âshould be placed under a new Assistant Attorney General for National Security." The Commission felt the then-existing organizational scheme might be awkward and that perhaps the system would benefit from a check on Office of Intelligence Policy and Review's rejection of FISA applications as insufficient.

Critics might suggest that curtailing the independence of the Office of Intelligence Policy and Review (OIPR) with an eye to less rigorous examination of FISA applications is likely to have an adverse impact. They might argue that adding another layer of review to the FISA application process can only bring further delays to a process the Administration has continuously sought to streamline. In the same vein, should the judges of the FISA Court conclude that the OIPR has been shackled and ceased to function as an independent gatekeeper for the Court, they might examine applications more closely and feel compelled to modify or reject a greater number; further contributing to delay, or so it might be said. On the other hand, both the Act and the USA PATRIOT Act vest oversight on the exercise of sensitive investigative authority in senior officials in order to guard against abuse.

Be that as it may, the President notified various administration officials that he concurred in the Commission's recommendation. Section 441 of the Intelligence Authorization Act for Fiscal Year 2006, S. 1803 , as reported by the Senate Select Committee on Intelligence, contained similar provisions.

The Act makes the following provisions for the new Assistant Attorney General:

Assistant Attorney General (AAG) is to be designated by the President and presented to the Senate for its advice and consent, adding new section 28 U.S.C. 507A(a); cf., H.Rept. 109-142 at 31; AAG serves as head of the DOJ National Security Division, as primary DOJ liaison with DNI, and performs other duties as assigned, new 28 U.S.C. 507A(b); the Attorney General is to consult with the DNI before recommending a nominee to be AAG, adding new subsection 50 U.S.C. 403-6(c)(2)(C); the Attorney General may authorize the AAG to perform the Attorney General's FISA-related duties, amending 50 U.S.C. 1801(g); AAG may approve application for a communications interception (wiretap) order under the Electronic Communications Privacy Act (Title III), amending 18 U.S.C. 2516(1); the Attorney General may authorize the AAG to approve admission into the witness protection program, amending 18 U.S.C. 3521(d)(3); AAG must provide briefings for the DOJ officials or their designee of Division cases involving classified information, amending 18 U.S.C. App. III 9A(a); AAG replaces OIPR for purposes of advising the Attorney General on the development of espionage charging documents and related matters, amending 28 U.S.C. 519 note; the Attorney General may authorize the AAG to approve certain undercover operations, amending 28 U.S.C. 533 note; AAG joins those whom the Attorney General consult concerning a state application of emergency law enforcement assistance, amending 42 U.S.C. 10502(2)(L); the National Security Division headed by the AAG consists of the OIPR, the counterterrorism and counterespionage sections, and any other entities the Attorney General designates, adding new section 28 U.S.C. 509A; Division employees are barred from engaging in political management or political campaigns, amending 5 U.S.C. 7323(b)(3); subject to a rule change by the Senate, the Senate Select Committee on Intelligence enjoys 20 day sequential referral of AAG nominees, amending section 17 of S.Res. 94-400 of the Standing Rules of the Senate, Senate Manual Â§94 (2002).

Habeas Corpus in State Capital Cases

Federal law provides expedited habeas corpus procedures in the case of state death row inmates in those states that qualify for application of the procedures and have opted to take advantage of them, 28 U.S.C. ch. 154. As the Supreme Court stated, "Chapter 154 will apply in capital cases only if the State meets certain conditions. A state must establish 'a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel' in state postconviction proceedings, and 'must provide standards of competency for the appointment of such counsel,'" Calderon v. Ashmus , 523 U.S. 740, 743 (1998). Thus far apparently, few if any states have sought and been found qualified to opt in.

Critics implied that the states have been unable to take advantage of the expedited capital procedures only because the courts have a personal stake in the outcome. The solution, they contend, is the amendment found in section 507 of the Act, which allows the Attorney General to determine whether a state qualifies, permits the determination to have retroactive effect, and allows review by the federal appellate court least likely to have an interest in the outcome, the U.S. Court of Appeals for the D.C. Circuit. Opponents of the proposal raised separation of powers issues and questioned whether the chief federal prosecutor or the courts are more likely to make an even handed determination of whether the procedures for providing capital defendants with qualified defense counsel are adequate.

Under the Act, states would opt-in or would have opted-in as of the date, past or present, upon which the Attorney General determines they established or have established qualifying assistance of counsel mechanism. Opting-in to the expedited procedures of chapter 154 only applies, however, to instances in which "counsel was appointed pursuant to that mechanism [for the death row habeas petitioner], petitioner validly waived counsel, petitioner retained counsel, or petitioner was found not to be indigent." The standards of qualifying mechanism remain the same except that the Act drops that portion of subsection 2261(d) which bars an attorney from serving as habeas counsel if he represented the prisoner during the state appellate process, amending 28 U.S.C. 2261(d).

The Act establishes a de novo standard of review for the Attorney General's determination before the D.C. Circuit, new 28 U.S.C. 2265(c)(3). It also extends the expedited time deadline for U.S. district court action on a habeas petition from a state death row inmate from 6 to 15 months (180 days to 450 days)(although the 60 days permitted the court for decision following completion of all pleadings, hearings, and submission of briefs remains the same), new 28 U.S.C. 2266(b).

In McFarland v. Scott , 512 U.S. 849, 859 (1994), the Supreme Court held that federal district courts might stay the execution of a state death row inmate upon the filing of a petition for the appointment of counsel but prior to the filing of a federal habeas petition in order to allow for the assistance of counsel in the filing the petition.

In an amendment described as overruling McFarland , H.Rept. 109-333 , at 109 (2005), the Act amends federal law to permit a stay in such cases of no longer than 90 days after the appointment of counsel or the withdrawal or denial of a request for the appointment of counsel, new 28 U.S.C. 2251(b) as added by section 507(f) of the Act.

Title VI: Secret Service Authorization and Technical Modification Act of 2005

The Secret Service provisions of the Act were added to H.R. 3199 during conference. They have several intriguing aspects although the constitutional reach of two provisions may be somewhat limited.

Protection of the President and Certain Other Federal Officials

Under 18 U.S.C. 1752, it is a federal crime:

(1) to willfully and knowingly trespass in areas designated as temporary offices or residences for (or as restricted areas in places visited by or to be visited by) those under Secret Service protection, 18 U.S.C. 1752(a)(1);

(2) to engage in disorderly conduct in or near such areas or places with the intent to and result of impeding or disrupting the orderly conduct of governmental business or functions there, 18 U.S.C. 1752(a)(2);

(3) to willfully and knowingly block passage to and from such areas or places, 18 U.S.C. 1752(a)(3);

(4) to willfully and knowingly commit an act of violence in such area or place, 18 U.S.C. 1752(a)(4); or

(5) to attempt of conspire to do so, 18 U.S.C. 1752(a),(b).

Obstructing Secret Service officers in the performance of their protective duties is also a federal crime and is punishable by imprisonment for not more than one year and/or a fine of not more than $1,000, 18 U.S.C. 3056(d).

Section 602 of the Act increases the penalties for violation of 18 U.S.C. 1752 from imprisonment for not more than six months to imprisonment for not more than one year; unless the offense results in significant bodily injury or the offender uses or carries a deadly or dangerous weapon during and in relation to the offense, in which case the offense is punishable by imprisonment for not more than 10 years, 18 U.S.C. 1752(b) as amended by the Act. As a general rule applicable here, crimes punishable by imprisonment for not more than six months are subject as an alternative to a fine of not more than $5,000; crimes punishable by imprisonment for not more than one year by a fine of not more than $100,000 as an alternative; crimes punishable by imprisonment for more than one year by a fine of not more than $250,000; and in each case organizations are subject to maximum fines that are twice the amount to which an individual might be fined, 18 U.S.C. 3571, 3559.

The Act also amends section 1752 to provide a uniform scienter element (willfully and knowingly) for each of the offenses prescribed there.

Special Events of National Significance

Section 602 of the Act also creates a new federal crime relating to misconduct concerning "special events of national significance." It amends 18 U.S.C. 1752 to make it a federal crime "willfully and knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds so restricted in conjunction with an event designated as a special event of national significance," 18 U.S.C. 1752(a)(2) as amended. The Act provides no definition of "special event of national significance." Nor is the term defined elsewhere in federal law, although it is used in 18 U.S.C. 3056, which authorizes the Secret Service to participate in the coordination of security arrangements for such activities. The conference report accompanying H.R. 3199 explains that the provisions relate to misconduct at events at which individuals under Secret Service protection are not attendees and by implication are not anticipated to be attendees. This may raise questions about the constitutional basis upon which the other criminal prohibitions in section 1752 rely.

Congress and the federal government enjoy only those powers which the Constitution provides; all other powers are reserved to the states and to the people, U.S. Const. Amends. X, IX. The Constitution does not vest primary authority to enact and enforce criminal law in the federal government. The Constitution does grant Congress explicit legislative authority in three instancesâtreason, piracy and offenses against the law of nations, U.S.Const. Art.III, Â§3; Art.I, Â§8, cl.10. And it vests Congress with other more general powers which may be exercised through the enactment of related criminal laws, such as the power to regulate commerce or to enact laws for the District of Columbia, U.S.Const. Art.I, Â§8, cls.3, 17. Nevertheless, "[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution," United States v. Morrison , 529 U.S. 598, 607 (2000). It is not clear which of Congress's enumerated powers individually or in concert supports under all circumstances the creation of a trespassing offense relating to "restricted areas" temporarily cordoned off or established for a "special event of national significance."

Of course, the protection of such events under many circumstances may fall within one or more of Congress's enumerated powers. For instance, Congress may enact a trespassing law protecting special events held in the District of Columbia by virtue of its power to enact laws for the District, U.S. Const. Art.I, Â§8, cl.17. Even here, however, the First Amendment may impose impediments when in a particular case the governmental interest in the special event is minimal and significant access restrictions are imposed on use of the streets or other public areas to prevent peaceful protest demonstrations. Subject to some considerations, events which have an impact on interstate or foreign commerce seem to fall within Congress's power to regulate such commerce, U.S. Const. Art.I, Â§8, cl. 3.

Interpretative regulations that limit the amendment's application to areas within the scope of Congress's legislative authority and consistent with the demands of the First Amendment offer the prospect of passing constitutional muster. Although the bill repeals the subsection of 1752 which in amended form might authorize curative implementing regulations, such regulatory authority is likely implicit.

Use of False Credentials to National Special Security Events

Questions as to the breadth of the exercise of Congress's legislative authority might also be raised about section 603 of the Act, which brings special event tickets and credentials within the folds of the statute that outlaws misuse of governmentally issued identification documents, 18 U.S.C. 1028. The structure of section 1028 makes the point more obviously than might otherwise be the case. In its form prior to the Act, section 1028 prohibited eight particular varieties of unauthorized possession or trafficking in identification documents when committed under one of three jurisdictional circumstances: the documents are issued or purport to be issued by a federal entity, the documents are used to defraud the United States, or the offense involves transportation in, or affects, interstate or foreign commerce, 18 U.S.C. 1028(a), (c).

The Act makes three changes in the scheme. First, it amends one of the eight prohibition subsections, that which outlaws unlawful possession of U.S. documents or facsimiles thereof, when committed under one of three jurisdictional circumstances. The change adds the documents of special event sponsors to the protected class, if the one jurisdictional predicates is satisfied. Second, it amends the definition of "identification document" to include special events documents, so that each of the other eight prohibition subsections applies as long as one of the three jurisdictional predicates is satisfied. Third, it amends one of the jurisdictional predicates, that which is based on issuance by a federal agency. It treats sponsors of special events as federal agencies within the jurisdictional subsection of section 1028(c).

It is this third amendment that raises the issue. There is no doubt that Congress has the constitutional power to enact legislation prohibiting possession or trafficking in special event identification documents, if the third jurisdictional predicate is satisfied, i.e., the offense involves transportation in, or affects, interstate or foreign commerce. Nor is there any dispute Congress enjoys such authority, if the second jurisdiction predicate is satisfied, i.e., the offense involves defrauding the United States. There may be some question, however, as to the extent to which Congress may prohibit unlawful possession or trafficking in special event identification documents predicated solely upon the fact they were issued by a special event sponsor. "National significance" is not a term that by itself conjures up reference to any of Congress's constitutionally enumerated powers, although the commerce clause might provide an arguably adequate foundation, particularly if regulations confined enforcement to events with an obvious impact on interstate or foreign commerce. Of course, legislation that cannot be traced to one or more of Congress's enumerated powers lies beyond its reach, United States v. Morrison , 529 U.S. 598, 607 (2000).

Forensic and Investigative Support of Missing and Exploited Children Cases

The PROTECT Act authorizes "officers and agents of the Secret Service" to provide state and local authorities and the National Center for Missing Exploited Children with investigative and forensic services in missing and exploited children cases, 18 U.S.C. 3056(f). Within the Secret Service, officers and agents conduct investigations, but employees provide forensic services. Section 604 of the Act changes "officers and agents of the Secret Service" to simply "the Secret Service" to reflect this reality.

Secret Service Uniformed Division

The Act amends and transfers the organic authority for the Secret Service Uniformed Division. The conference report's explanation is terse:

Section 605 of the conference report is a new section. This section places all authorities of the Uniformed Division, which are currently authorized under title 3, in a newly created 18 U.S.C. Â§3056A, following the core authorizing statute of the Secret Service (18 U.S.C. Â§3056), thereby organizing the Uniformed Division under title 18 of the United States Code with other Federal law enforcement agencies.

What makes the statement interesting is that the organic authority for most federal law enforcement agencies is not found in title 18. For example, the FBI and the Marshals Service provisions appear not in title 18 but in title 28, 28 U.S.C. 531-540, 561-569; the Inspectors General Offices in appendices to title 5, 5 U.S.C. App. III; the Coast Guard in title 14, 14 U.S.C. chs.1-25; the Customs Service in title 19, 19 U.S.C. 2071-2083.

What is also somewhat intriguing is what is not said. There is no further explanation of the additions, modifications, deletions or apparent duplications associated with the transfer. Existing law lists a series of protective duties the Uniformed Division is authorized to perform, 3 U.S.C. 202. Although it is more geographically specific, it essentially reflects a similar list of some of the duties of the Secret Service as a whole found in 18 U.S.C. 3056. The Act adds four protective duties to the list: protection of former presidents and their spouses, protection of presidential and vice presidential candidates, protection of visiting heads of state, and security for special events of nation significance, new 18 U.S.C. 3056A(a)(10)-(13) as added by the Act. All but the special event provisions are already part of the general Secret Service authority under section 3056 (18 U.S.C. 3056(a)(3),(7), (5)). The Act also explicitly authorizes members of the Division to carry firearms, make arrests under certain situations, and perform other duties authorized by law, 18 U.S.C. 3056A(b)(1) as added by the Actâauthority they are likely to already enjoy by operation of section 3056, 18 U.S.C. 3056(c)(1)(B), (C), (F), or by virtue of the fact they are vested with "powers similar to those of members of the Metropolitan Police of the District of Columbia," 3 U.S.C. 202.

Section 605(b) of the Act specifically permits the Secretary of Homeland Security to contract out protection of foreign missions and foreign officials outside of the District of Columbia, amending 18 U.S.C. 3056(d).

The Act also repeals 3 U.S.C. 203 (relating to personnel, appointment and vacancies), 204 (relating to grades, salaries, and transfers), 206 (relating to privileges of civil-service appointees), 207 (relating to participation in police and firemen's relief fund), and 208(b)(relating to authorization of appropriations).

Secret Service as a Distinct Entity

Section 607 of the Act statutorily declares the Secret Service a distinct entity within the Department of Homeland Security, reporting directly to the Secretary, adding new subsection 18 U.S.C. 3056(g).

Exemptions from the Federal Advisory Committee Act

Major presidential and vice presidential candidates are entitled to Secret Service protection, 18 U.S.C. 3056(a)(7). The Secretary of Homeland Security identifies who qualifies as a "major" candidate and therefore is entitled to protection after consulting with an advisory committee consisting of House Speaker and minority leader, the Senate majority and minority leader and fifth member whom they select, id. The Secret Service's electronic crime task forces consist of federal and state law enforcement members as well as representatives from academia and industry who share information concerning computer security and abuse, 18 U.S.C. 3056 note.

The Federal Advisory Commission Act imposes notice, open meeting, record keeping, and reporting requirements on groups classified as federal advisory committees, 5 U.S.C. App. II. Advisory committees are committees, task forces, and other groups established by the statute, the President, or an executive agency "in the interest of obtaining advice and recommendations for" the President or federal agencies, 5 U.S.C. App. II 3(2). No group consisting entirely of officers or employees of the United States is considered an advisory committee for purposes of the act, id.

It is not clear that either the candidates protection committee or the electronic crimes task forces would be considered advisory committees for purposes of the advisory act. Even if the committee were not exempt because it consists entirely of federal "officers or employees," it seems highly unlikely that it is the type of committee envisioned by Congress when it enacted the act. As for the task forces, it is not clear that their function is to provide advice and recommendations for agency action. In any event, section 608 of the Act exempts electronic crimes task forces and the candidates protection advisory committee from provisions of the Federal Advisory Committee Act, amending 18 U.S.C. 3056 note, 3056(a)(7).

Title VII: Combat Methamphetamine Epidemic Act of 2005

Title VII of the Act contains subtitles concerning regulation of domestic and international commerce in three methamphetamine (meth) precursor chemicals: ephedrine, pseudoephedrine, and phenylpropanolamine (EPP); increased penalties for methamphetamine offenses; expanded environmentally-related regulations; and adjusted grant programs. In many of its particulars, Title VII resembles H.R. 3889 , the Methamphetamine Epidemic Elimination Act, as amended by the House Committees on Energy and Commerce and on the Judiciary, H.Rept. 109-299 (pts. 1 & 2)(2005).

Domestic Regulation of Precursor Chemicals

Sales Regulation of "Scheduled Listed Chemicals"

The first part of Title VII addresses the fact that certain cold and allergy medicinesâwidely and lawfully used for medicinal purposes and readily available in news stands, convenience stores, grocery stores, and drugstoresâwhen collected in bulk can be used to manufacture methamphetamine. At the federal level, the Food and Drug Administration (FDA) regulates the commercial drug market to ensure the public of safe and effective medicinal products pursuant to the Federal Food Drug and Cosmetic Act, 21 U.S.C. 301-397. The Attorney General through the Drug Enforcement Administration regulates the commercial drug market with respect to drugs with a potential for addiction and abuse, pursuant to the Controlled Substances Act, 21 U.S.C. 801-904, and the Controlled Substances Import and Export Act, 21 U.S.C. 951-971.

The degree of regulatory scrutiny afforded a particular drug classified as a controlled substance and sometimes certain of the chemicals essential for its production (precursor chemicals, also known as "list chemicals") depends upon the drug's potential for abuse weighed against its possible beneficial uses. Those who lawfully import, export, produce, prescribe, sell or otherwise dispense drugs classified as controlled substances must be registered, 21 U.S.C. 958, 822. In the case of controlled substances susceptible to abuse and therefore criminal diversion and for certain of their precursor chemicals, the Attorney General may impose production and import/export quotas, security demands, inventory control measures, and extensive registration, record keeping and inspection requirements, 21 U.S.C. 821-830, 954-71. A wide range of civil and criminal sanctions, some of them quite severe, may be imposed for violation of the Controlled Substances Act, the Controlled Substances Import and Export Act, or of the regulations promulgated for their implementation, 21 U.S.C. 841-863, 959-967.

Prior to the Act, the Controlled Substances Act, in a dizzying array of criss-crossing exceptions and definitions, permitted the over-the-counter sale, without regulatory complications, of cold remedies containing ephedrine, pseudoephedrine or phenlypropanolamine (EPP)âmethamphetamine precursorsâin packages containing less than 3 grams of EPP base (and in amounts not in excess of 9 grams of pseudoephedrine or phenlypropanolamine base per transaction). Title VII eliminates the criss-crossing and replaces it with a new regulatory scheme for "scheduled listed chemical products," i.e., EPP products, which:

limits drugstore, convenience store, grocery store, news stand, lunch wagon (mobile retailer), and other retail sales of EPP products to 3.6 grams of EEP base per customer per day (down from 9 grams per transaction), 21 U.S.C. 830(d), 802(46), 802(47); limits mobile retail sales to 7.5 grams of EPP base per customer per month, 21 U.S.C. 830(e)(1)(A); insists that EPP products be displayed "behind the counter" (locked up in the case of mobile retailers), 21 U.S.C. 830(e)(1)(A); (other than for sales involving 60 milligrams or less of pseudoephedrine) requires sellers to maintain a logbook (for at least two years) recording for every purchase, the time and date of sale, the name and quantity of the product sold, and name and address of the purchaser, 21 U.S.C. 830(e)(1)(A); (other than for sales involving 60 milligrams or less of pseudoephedrine) demands that purchasers present a government-issued photo identification, sign the logbook for the sale noting their name and address, and the date and time of the sale, 21 U.S.C. 830(e)(1)(A); provides that the logbook must include a warning that false statements are punishable under 18 U.S.C. 1001 with a term of imprisonment of not more than five years and/or a fine of not more than $250,000 (not more than $500,000 for organizations), 21 U.S.C. 830(e)(1)(A), 830(e)(1)(D); states that sellers must provide, document, and certify training of their employees on the EPP product statutory and regulatory requirements, 21 U.S.C. 830(e)(1)(A), (B); directs the Attorney General to promulgate regulations to protect the privacy of the logbook entries (except for access for federal, state and local law enforcement officials), 21 U.S.C. 830(e)(1)(C); affords sellers civil immunity for good faith disclosure of logbook information to law enforcement officials (unless the disclosure constitutes gross negligence or intentional, wanton, or willful misconduct), 21 U.S.C. 830(e)(1)(E); requires sellers take measures against possible employee theft or diversion and preempts any state law which precludes them asking prospective employees about past EPP or controlled substance convictions, 21 U.S.C. 830(e)(1)(G); sets September 30, 2006 as the effective date for the regulatory scheme (but the 3.6 gram limit on sales would become effective 30 days after enactment).

Federal law imposes monthly reporting requirements on mail order sales of EPP products, 21 U.S.C. 830(b)(3). Under the Act, those subject to the reporting requirement must confirm the identity of their customers under procedures established by the Attorney General, and sales are limited to 7.5 grams of EPP base per customer per month. If the Attorney General determines that an EPP product cannot be used to produce methamphetamine, he may waive the 3.6 gram limit on retail sales and 7.5 gram limits on mail order and mobile retail sales.

Sellers who knowingly violate the mail order regulations, or knowingly or recklessly violate the sales regulations, or unlawfully disclose or refuse to disclose EPP logbook sales information, or continue to sell after being prohibited from doing so as a result of past violations, are subject to imprisonment for not more than one year, and/or a fine of not more than $100,000 (not more than $200,000 for organizations), and to a civil penalty of not more than $25,000, 21 U.S.C. 842 as amended by section 711(f) of the Act. During the 30 days after enactment but before the new purchase limits become effective, knowing or intentional retail purchases more than 9 grams of EPP base (7.5 grams in the case of mail order purchases) are punishable by imprisonment for not more than one year and/or a fine of not less than $1,000 nor more than $100,000 (not more than $200,000 for an organization), 21 U.S.C. 844(a) as amended by section 711(e)(1) of the Act.

Authority to Establish Production Quotas

The Controlled Substances Act allows the Attorney General to assess the total annual requirements for various controlled substances and to impose manufacturing quotas accordingly, 21 U.S.C. 826. Section 713 of the Act extends that authority to reach EPP production. For violations, manufacturers face imprisonment for not more than one year, and/or a fine of not more than $100,000 (not more than $200,000 for organizations), and to a civil penalty of not more than $25,000.

Imports/Exports

The Attorney General enjoys broad general authority to regulate controlled substances imported and exported for legitimate purposes, 21 U.S.C. 952, 953 (neither section mentions listed chemicals). Importers and exporters of list I chemicals (which includes EPP), however, must register with the Attorney General, 21 U.S.C. 958. And they must notify the Attorney General 15 days in advance of any anticipated shipment of listed chemicals to or from the U.S. involving anyone other than a regular source or customer, 21 U.S.C. 971.

Section 715 of the Act expands the statutory statement of the Attorney General's authority to regulate controlled substance imports to include EPP, amending 21 U.S.C. 952. Moreover, it provides implicit statutory confirmation of the Attorney General's authority to set import quotas for EPP by authorizing him to increase the quantity of chemicals importer's registration permits him to bring into the country, new subsection 21 U.S.C. 952(d) as added by the Act. Here and its other adjustments concerning imports and exports, the Act instructs the Attorney General to confer with the U.S. Trade Representative in order to ensure continued compliance with our international trade obligations.

International Regulation of Precursors

Foreign Distribution Chains

The Act also affords the Attorney General renewed notification when the listed chemical transaction, for which approval was initially sought and granted, "falls through," and the importer or exporter substitutes a new subsequent purchaser, 21 U.S.C. 971 as amended. The Attorney General may require EPP importers to include "chain of distribution" information in their notices that traces the distribution trial from foreign manufacturers to the importer, new subsection 21 U.S.C. 971(h) as added by section 721 of the Act. The Attorney General may seek further information from foreign participants in the chain and refuse to approve transactions involving uncooperative participants, 21 U.S.C. 971(h)(2), (h)(3). Failure to comply with these expanded notice requirements or the bills's EPP import registration and quota provisions is punishable by imprisonment for not more than 10 years and /or a fine of not more than $250,000 (not more than $500,000 for organizations), 21 U.S.C. 960(d)(6) as amended by section 717 of the Act.

Foreign Assistance to Source Countries

The Foreign Assistance Act calls for an annual report on the drug trafficking and related money laundering activities taking place in countries receiving assistance, 22 U.S.C. 2291h. Major illicit drug-producing and drug-transit countries are subject to a procedure featuring presidential certification of cooperative corrective efforts, 22 U.S.C. 2291j. The Act amends the reporting and certification requirements to cover the five largest EPP exporting and the five largest EPP importing countries with the highest rates of diversion, 22 U.S.C. 2291h, 2291j as amended by section 722 of the Act. It also directs the Secretary of State in consultation with the Attorney General to report to Congress on a plan to deal with the diversion. Section 723 of the Act further instructs the Secretary to take diplomatic action to prevent methamphetamine smuggling from Mexico into the United States and to report to Congress on results of the efforts; the first such report is due not later than one year after the Act's enactment, and every year thereafter.

Enhanced Criminal Penalties for Meth Production and Trafficking

Smuggling Using Commuter Lanes

Unlawful possession of methamphetamine is punishable by imprisonment for terms ranging from not more than 20 years to imprisonment for life depending upon the amount involved and the offender's criminal record, 21 U.S.C. 841(b), 848. Unlawful possession of EPP is punishable by imprisonment for terms ranging from not more than five years to imprisonment for life depending upon the amount involved and the offender's criminal record, 21 U.S.C. 841(c), 848. Similar penalties follow smuggling methamphetamine or EPP, 21 U.S.C. 960, 848. Section 731 of the Act establishes a consecutive term of imprisonment of not more than 15 years to be added to the otherwise applicable sentence when the methamphetamine or EPP offense is committed in connection with quick entry border procedures.

Manufacturing Controlled Substances on Federal Property

The fines for controlled substance offenses that involve cultivation of a controlled substance on federal property are not more than $500,000 individuals and $1 million for organizations, 21 U.S.C. 841(b)(5). The Act establishes the same fine levels for manufacturing a controlled substance on federal property, 21 U.S.C. 841(b)(5) as amended by section 732 of the Act.

Increased Penalties for Drug Kingpins

The Controlled Substances Act punishes major drug traffickers (those guilty of continuing criminal enterprise offenses sometimes known as "drug kingpins"), 21 U.S.C. 848. Drug kingpins, whose offenses involve 300 or more times the amount of controlled substance necessary to trigger the sentencing provisions of 21 U.S.C. 841(b)(1)(B) or whose offenses generate more than $10 million in gross receipts a year, face sentences of mandatory life imprisonment. In the case of a drug kingpin trafficking in methamphetamine, section 733 of the Act lowers the thresholds to 200 or more times the trigger amounts or $5 million in gross receipts a year, new subsection 21 U.S.C. 848(s) as added by the Act.

Cooking or Dealing Near Children

The Controlled Substances Act doubles the otherwise applicable penalties for the distribution or manufacture of controlled substances near schools, playgrounds, video arcades and other similarly designated places likely to be frequented by children, 21 U.S.C. 860. Section 734 of the Act adds a penalty of imprisonment for not more than 20 years to the otherwise applicable penalties for distributing, possessing with the intent to distribute, or manufacturing methamphetamine anywhere where a child under 18 years of age is in fact present or resides, new section 21 U.S.C. 860a as added by the Act.

Reports to the Sentencing Commission

The United States Sentencing Commission establishes and amends federal sentencing guidelines, which must be considered when federal courts impose sentence in a criminal case, 28 U.S.C. 994; 18 U.S.C. 3553; United States v. Booker , 543 U.S. 220, 245 (2005). Every federal judicial district must provide the Commission with detailed reports on each criminal sentence imposed by the district's judges, 28 U.S.C. 994(w). Section 735 of the Act authorizes the Commission to establish the format for such reports and emphasizes the need for a written statement of reasons for the sentence imposed including the reasons for any departure from the sentence advised the by the guidelines, 28 U.S.C. 994(w) as amended by the Act.

Reports to Congress

Section 736 of the Act requires the Attorney General to report twice a yearâto the Judiciary Committees; the House Energy and Commerce Committee; the Senate Commerce, Science and Transportation Committee; the House Government Reform Committee; and the Senate Caucus on International Narcotics Controlâon the Drug Enforcement Administration's and the Federal Bureau of Investigation's allocation of resources to the investigation and prosecution of methamphetamine offenses.

Enhanced Environmental Regulation of Methamphetamine Byproducts

Transportation of Hazardous Materials

Under the Hazardous Material Transportation Act, the Secretary of Transportation enjoys regulatory authority over the transportation of certain explosive, toxic or otherwise hazardous material, 49 U.S.C. 5103. Section 741 of the Act instructs the Secretary to report every two years to the House Committee on Transportation and Infrastructure and to the Senate Committee on Commerce, Science, and Transportation on whether he has designated as hazardous materials for purposes of the act, all methamphetamine production by-products, 49 U.S.C. 5103(d) as added by the Act.

Solid Waste Disposal

Under the Solid Waste Disposal Act, the Administrator of the Environmental Protection Agency identifies and lists toxic, flammable, corrosive and otherwise hazardous waste, 42 U.S.C. 6921. Section 742 of the Act requires the EPA Administrator to report within two years of enactment, to the House Committee on Energy and Commerce and the Senate Committee on Environment and Public Works, on the information received from law enforcement agencies and others identifying the by-products of illicit methamphetamine product and on which of such by-products the Administrator considers hazardous waste for purposes of the act, new subsection 42 U.S.C. 6921(j) as added by the Act.

Restitution for Methamphetamine Possession

The Act amends the provision under which offenders convicted of violations of the Controlled Substances Act or the Controlled Substances Import and Export Act involving the manufacture of amphetamine or methamphetamine may be ordered to pay restitution and to reimburse governmental entities for cleanup costs, to specifically include restitution and reimbursement in the case of offenses involving simple possession or possession with intent to distribute, 21 U.S.C. 853(q) as amended by section 743 of the Act. This change was prompted by United States v. Lachowski , 405 F.3d 696, 700 (8 th Cir. 2005), which had held that the "offenses involving the manufacture of amphetamine or methamphetamine" upon which a restitution or reimbursement order might be based did not include unlawful possession with intent to distribute methamphetamine. The conferees felt that Lachowski "undermined the ability of the Federal government to seek cleanup costs from methamphetamine traffickers who are convicted only of methamphetamine possessionâeven when the methamphetamine lab in question was on the defendant's own property."

Drug Courts and Grant Programs

Improvements to the DOJ Drug Court Program

The Attorney General may make grants to state, local and tribal governments for the operation of drug courts, 42 U.S.C. 3797u. The Act instructs the Attorney General to prescribe guidelines or regulations to ensure that such programs feature mandatory drug testing and mandatory graduated sanctions for test failures, new subsection 42 U.S.C. 3797u(c) as added by section 751 of the Act, and authorizes appropriations for FY2006 of $70 million, new subsection 42 U.S.C. 3793(25)(A)(v)[inadvertently cited in the Act as 42 U.S.C. 2591(25)(A)(v)] as added by section 752 of the Act. The Attorney General is also directed to study the feasibility of a drug court program for low-level, non-violent federal offenders and to report on the results by June 30, 2006.

Grant Programs

The Act also creates three methamphetamine-related grant programs. One, provided by section 754 of the Act, addresses public safety as well as methamphetamine manufacturing, trafficking and use in "hot spots." Appropriations of $99 million for each of the next five fiscal years (2006-2010) are authorized for grants to the states under the program. The second, section 755 of the Act, authorizes appropriations of $20 million for fiscal years 2006 and 2007 in order to provide grants to the states for programs for drug-endangered children. The third program (services relating to methamphetamine use by pregnant and parenting women offenders), section 756 of the Act, is available to state, local, and tribal governments and supported an authorization of such appropriations as are necessary.