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