[House Report 107-236]
[From the U.S. Government Publishing Office]
107th Congress Rept. 107-236
HOUSE OF REPRESENTATIVES
1st Session Part 1
_______________________________________________________________________
PROVIDE APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM
(PATRIOT) ACT OF 2001
----------
R E P O R T
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
to accompany
H.R. 2975
together with
ADDITIONAL VIEWS
October 11, 2001.--Ordered to be printed
107th Congress Rept. 107-236
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
PROVIDE APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM
(PATRIOT) ACT OF 2001
_______
October 11, 2001.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 2975]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2975) to combat terrorism, and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 41
Background and Need for the Legislation.......................... 41
Hearings......................................................... 42
Committee Consideration.......................................... 42
Votes of the Committee........................................... 42
Committee Oversight Findings..................................... 45
Performance Goals and Objectives................................. 46
New Budget Authority and Tax Expenditures........................ 46
Congressional Budget Office Cost Estimate........................ 46
Constitutional Authority Statement............................... 51
Section-by-Section Analysis and Discussion....................... 52
Changes in Existing Law Made by the Bill, as Reported............ 79
Committee Jurisdiction Letters................................... 156
Markup Transcript................................................ 164
Additional Views................................................. 431
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Provide Appropriate Tools Required
to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001''.
SEC. 2. TABLE OF CONTENTS.
The following is the table of contents for this Act:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Construction; severability.
TITLE I--INTELLIGENCE GATHERING
Subtitle A--Electronic Surveillance
Sec. 101. Modification of authorities relating to use of pen registers
and trap and trace devices.
Sec. 102. Seizure of voice-mail messages pursuant to warrants.
Sec. 103. Authorized disclosure.
Sec. 104. Savings provision.
Sec. 105. Interception of computer trespasser communications.
Sec. 106. Technical amendment.
Sec. 107. Scope of subpoenas for records of electronic communications.
Sec. 108. Nationwide service of search warrants for electronic
evidence.
Sec. 109. Clarification of scope.
Sec. 110. Emergency disclosure of electronic communications to protect
life and limb.
Sec. 111. Use as evidence.
Sec. 112. Reports concerning the disclosure of the contents of
electronic communications.
Subtitle B--Foreign Intelligence Surveillance and Other Information
Sec. 151. Period of orders of electronic surveillance of non-United
States persons under foreign intelligence surveillance.
Sec. 152. Multi-point authority.
Sec. 153. Foreign intelligence information.
Sec. 154. Foreign intelligence information sharing.
Sec. 155. Pen register and trap and trace authority.
Sec. 156. Business records.
Sec. 157. Miscellaneous national-security authorities.
Sec. 158. Proposed legislation.
Sec. 159. Presidential authority.
Sec. 160. Clarification of no technology mandates.
Sec. 161. Civil liability for certain unauthorized disclosures.
Sec. 162. Sunset.
TITLE II--ALIENS ENGAGING IN TERRORIST ACTIVITY
Subtitle A--Detention and Removal of Aliens Engaging in Terrorist
Activity
Sec. 201. Changes in classes of aliens who are ineligible for admission
and deportable due to terrorist activity.
Sec. 202. Changes in designation of foreign terrorist organizations.
Sec. 203. Mandatory detention of suspected terrorists; habeas corpus;
judicial review.
Sec. 204. Changes in conditions for granting asylum.
Sec. 205. Multilateral cooperation against terrorists.
Sec. 206. Requiring sharing by the Federal bureau of investigation of
certain criminal record extracts with other Federal agencies in order
to enhance border security.
Sec. 207. Inadmissibility of aliens engaged in money laundering.
Sec. 208. Program to collect information relating to nonimmigrant
foreign students and other exchange program participants.
Sec. 209. Protection of northern border.
Subtitle B--Preservation of Immigration Benefits for Victims of
Terrorism
Sec. 211. Special immigrant status.
Sec. 212. Extension of filing or reentry deadlines.
Sec. 213. Humanitarian relief for certain surviving spouses and
children.
Sec. 214. ``Age-out'' protection for children.
Sec. 215. Temporary administrative relief.
Sec. 216. Evidence of death, disability, or loss of employment.
Sec. 217. No benefits to terrorists or family members of terrorists.
Sec. 218. Definitions.
TITLE III--CRIMINAL JUSTICE
Subtitle A--Substantive Criminal Law
Sec. 301. Statute of limitation for prosecuting terrorism offenses.
Sec. 302. Alternative maximum penalties for terrorism crimes.
Sec. 303. Penalties for terrorist conspiracies.
Sec. 304. Terrorism crimes as rico predicates.
Sec. 305. Biological weapons.
Sec. 306. Support of terrorism through expert advice or assistance.
Sec. 307. Prohibition against harboring.
Sec. 308. Post-release supervision of terrorists.
Sec. 309. Definition.
Sec. 310. Civil damages.
Subtitle B--Criminal Procedure
Sec. 351. Single-jurisdiction search warrants for terrorism.
Sec. 352. DNA identification of terrorists.
Sec. 353. Grand jury matters.
Sec. 354. Extraterritoriality.
Sec. 355. Jurisdiction over crimes committed at United States
facilities abroad.
Sec. 356. Special agent authorities.
TITLE IV--FINANCIAL INFRASTRUCTURE
Sec. 401. Laundering the proceeds of terrorism.
Sec. 402. Material support for terrorism.
Sec. 403. Assets of terrorist organizations.
Sec. 404. Technical clarification relating to provision of material
support to terrorism.
Sec. 405. Disclosure of tax information in terrorism and national
security investigations.
Sec. 406. Extraterritorial jurisdiction.
TITLE V--EMERGENCY AUTHORIZATIONS
Sec. 501. Office of Justice programs.
Sec. 502. Attorney General's authority to pay rewards.
Sec. 503. Limited authority to pay overtime.
Sec. 504. Department of State reward authority.
Sec. 505. Authorization of funds for DEA police training in South and
Central Asia.
Sec. 506. Public safety officer benefits.
TITLE VI--DAM SECURITY
Sec. 601. Security of reclamation dams, facilities, and resources.
TITLE VII--MISCELLANEOUS
Sec. 701. Employment of translators by the Federal Bureau of
Investigation.
Sec. 702. Review of the Department of Justice.
Sec. 703. Feasibility study on use of biometric identifier scanning
system with access to the FBI integrated automated fingerprint
identification system at overseas consular posts and points of entry to
the United States.
Sec. 704. Study of access.
Sec. 705. Enforcement of certain anti-terrorism judgments.
TITLE VIII--PRIVATE SECURITY OFFICER QUALITY ASSURANCE
Sec. 801. Short title.
Sec. 802. Findings.
Sec. 803. Background checks.
Sec. 804. Sense of Congress.
Sec. 805. Definitions.
SEC. 3. CONSTRUCTION; SEVERABILITY.
Any provision of this Act held to be invalid or unenforceable by
its terms, or as applied to any person or circumstance, shall be
construed so as to give it the maximum effect permitted by law, unless
such holding shall be one of utter invalidity or unenforceability, in
which event such provision shall be deemed severable from this Act and
shall not affect the remainder thereof or the application of such
provision to other persons not similarly situated or to other,
dissimilar circumstances.
TITLE I--INTELLIGENCE GATHERING
Subtitle A--Electronic Surveillance
SEC. 101. MODIFICATION OF AUTHORITIES RELATING TO USE OF PEN REGISTERS
AND TRAP AND TRACE DEVICES.
(a) General Limitation on Use by Governmental Agencies.--Section
3121(c) of title 18, United States Code, is amended--
(1) by inserting ``or trap and trace device'' after ``pen
register'';
(2) by inserting ``, routing, addressing,'' after
``dialing''; and
(3) by striking ``call processing'' and inserting ``the
processing and transmitting of wire and electronic
communications''.
(b) Issuance of Orders.--
(1) In general.--Subsection (a) of section 3123 of title
18, United States Code, is amended to read as follows:
``(a) In General.--
``(1) Upon an application made under section 3122(a)(1),
the court shall enter an ex parte order authorizing the
installation and use of a pen register or trap and trace device
anywhere within the United States, if the court finds that the
attorney for the Government has certified to the court that the
information likely to be obtained by such installation and use
is relevant to an ongoing criminal investigation. The order
shall, upon service thereof, apply to any person or entity
providing wire or electronic communication service in the
United States whose assistance may facilitate the execution of
the order. Whenever such an order is served on any person or
entity not specifically named in the order, upon request of
such person or entity, the attorney for the Government or law
enforcement or investigative officer that is serving the order
shall provide written or electronic certification that the
assistance of the person or entity being served is related to
the order.
``(2) Upon an application made under section 3122(a)(2),
the court shall enter an ex parte order authorizing the
installation and use of a pen register or trap and trace device
within the jurisdiction of the court, if the court finds that
the State law-enforcement or investigative officer has
certified to the court that the information likely to be
obtained by such installation and use is relevant to an ongoing
criminal investigation.''.
(2) Contents of order.--Subsection (b)(1) of section 3123
of title 18, United States Code, is amended--
(A) in subparagraph (A)--
(i) by inserting ``or other facility''
after ``telephone line''; and
(ii) by inserting before the semicolon at
the end ``or applied''; and
(B) by striking subparagraph (C) and inserting the
following:
``(C) the attributes of the communications to which
the order applies, including the number or other
identifier and, if known, the location of the telephone
line or other facility to which the pen register or
trap and trace device is to be attached or applied,
and, in the case of an order authorizing installation
and use of a trap and trace device under subsection
(a)(2), the geographic limits of the order; and''.
(3) Nondisclosure requirements.--Subsection (d)(2) of
section 3123 of title 18, United States Code, is amended--
(A) by inserting ``or other facility'' after ``the
line''; and
(B) by striking ``, or who has been ordered by the
court'' and inserting ``or applied, or who is obligated
by the order''.
(c) Definitions.--
(1) Court of competent jurisdiction.--Paragraph (2) of
section 3127 of title 18, United States Code, is amended by
striking subparagraph (A) and inserting the following:
``(A) any district court of the United States
(including a magistrate judge of such a court), or any
United States court of appeals, having jurisdiction
over the offense being investigated; or''.
(2) Pen register.--Paragraph (3) of section 3127 of title
18, United States Code, is amended--
(A) by striking ``electronic or other impulses''
and all that follows through ``is attached'' and
inserting ``dialing, routing, addressing, or signaling
information transmitted by an instrument or facility
from which a wire or electronic communication is
transmitted (but not including the contents of such
communication)''; and
(B) by inserting ``or process'' after ``device''
each place it appears.
(3) Trap and trace device.--Paragraph (4) of section 3127
of title 18, United States Code, is amended--
(A) by inserting ``or process'' after ``a device'';
and
(B) by striking ``of an instrument'' and all that
follows through the end and inserting ``or other
dialing, routing, addressing, and signaling information
reasonably likely to identify the source of a wire or
electronic communication (but not including the
contents of such communication);''.
(4) Conforming amendment.--Section 3127(1) of title 18,
United States Code, is amended--
(A) by striking ``and''; and
(B) by inserting ``, and `contents' '' after ``
`electronic communication service' ''.
(d) No Liability for Internet Service Providers.--Section 3124(d)
of title 18, United States Code, is amended by striking ``the terms
of''.
SEC. 102. SEIZURE OF VOICE-MAIL MESSAGES PURSUANT TO WARRANTS.
Title 18, United States Code, is amended--
(1) in section 2510--
(A) in paragraph (1), by striking all the words
after ``commerce''; and
(B) in paragraph (14), by inserting ``wire or''
after ``transmission of''; and
(2) in section 2703--
(A) in the headings for subsections (a) and (b), by
striking ``Contents of electronic'' and inserting
``Contents of wire or electronic'';
(B) in subsection (a), by striking ``contents of an
electronic'' and inserting ``contents of a wire or
electronic'' each place it appears; and
(C) in subsection (b), by striking ``any
electronic'' and inserting ``any wire or electronic''
each place it appears.
SEC. 103. AUTHORIZED DISCLOSURE.
Section 2510(7) of title 18, United States Code, is amended by
inserting ``, and (for purposes only of section 2517 as it relates to
foreign intelligence information as that term is defined in section
101(e) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(e))) any Federal law enforcement, intelligence, national security,
national defense, protective, immigration personnel, or the President
or Vice President of the United States'' after ``such offenses''.
SEC. 104. SAVINGS PROVISION.
Section 2511(2)(f) of title 18, United States Code, is amended--
(1) by striking ``or chapter 121'' and inserting ``,
chapter 121, or chapter 206''; and
(2) by striking ``wire and oral'' and inserting ``wire,
oral, and electronic''.
SEC. 105. INTERCEPTION OF COMPUTER TRESPASSER COMMUNICATIONS.
Chapter 119 of title 18, United States Code, is amended--
(1) in section 2510--
(A) in paragraph (17), by striking ``and'' at the
end;
(B) in paragraph (18), by striking the period and
inserting a semi-colon; and
(C) by adding after paragraph (18) the following:
``(19) `protected computer' has the meaning set forth in
section 1030; and
``(20) `computer trespasser' means a person who accesses a
protected computer without authorization and thus has no
reasonable expectation of privacy in any communication
transmitted to, through, or from the protected computer.'';
(2) in section 2511(2), by inserting after paragraph (h)
the following:
``(i) It shall not be unlawful under this chapter for a person
acting under color of law to intercept the wire or electronic
communications of a computer trespasser, if--
``(i) the owner or operator of the protected computer
authorizes the interception of the computer trespasser's
communications on the protected computer;
``(ii) the person acting under color of law is lawfully
engaged in an investigation;
``(iii) the person acting under color of law has reasonable
grounds to believe that the contents of the computer
trespasser's communications will be relevant to the
investigation; and
``(iv) such interception does not acquire communications
other than those transmitted to or from the computer
trespasser.''; and
(3) in section 2520(d)(3), by inserting ``or 2511(2)(i)''
after ``2511(3)''.
SEC. 106. TECHNICAL AMENDMENT.
Section 2518(3)(c) of title 18, United States Code, is amended by
inserting ``and'' after the semicolon.
SEC. 107. SCOPE OF SUBPOENAS FOR RECORDS OF ELECTRONIC COMMUNICATIONS.
Section 2703(c)(1)(C) of title 18, United States Code, is amended--
(1) by striking ``entity the name, address, local and long
distance telephone toll billing records, telephone number or
other subscriber number or identity, and length of service of
a'' and inserting the following:
``entity the--
``(i) name;
``(ii) address;
``(iii) local and long distance telephone connection
records, or records of session times and durations;
``(iv) length of service (including start date) and types
of service utilized;
``(v) telephone or instrument number or other subscriber
number or identity, including any temporarily assigned network
address; and
``(vi) means and source of payment (including any credit
card or bank account number);
of a''; and
(2) by striking ``and the types of services the subscriber
or customer utilized,'' after ``of a subscriber to or customer
of such service''.
SEC. 108. NATIONWIDE SERVICE OF SEARCH WARRANTS FOR ELECTRONIC
EVIDENCE.
Chapter 121 of title 18, United States Code, is amended--
(1) in section 2703, by striking ``under the Federal Rules
of Criminal Procedure'' each place it appears and inserting
``using the procedures described in the Federal Rules of
Criminal Procedure by a court with jurisdiction over the
offense under investigation''; and
(2) in section 2711--
(A) in paragraph (1), by striking ``and'';
(B) in paragraph (2), by striking the period and
inserting ``; and''; and
(C) by adding the following new paragraph at the
end:
``(3) the term `court of competent jurisdiction' has the
meaning given that term in section 3127, and includes any
Federal court within that definition, without geographic
limitation.''.
SEC. 109. CLARIFICATION OF SCOPE.
Section 2511(2) of title 18, United States Code, as amended by
section 105(2) of this Act, is further amended by adding at the end the
following:
``(j) With respect to a voluntary or obligatory disclosure of
information (other than information revealing customer cable viewing
activity) under this chapter, chapter 121, or chapter 206, subsections
(c)(2)(B) and (h) of section 631 of the Communications Act of 1934 do
not apply.''.
SEC. 110. EMERGENCY DISCLOSURE OF ELECTRONIC COMMUNICATIONS TO PROTECT
LIFE AND LIMB.
(a) Section 2702 of title 18, United States Code, is amended--
(1) by amending the heading to read as follows:
``Sec. 2702. Voluntary disclosure of customer communications or
records'' ;
(2) in subsection (a)(2)(B) by striking the period and
inserting ``; and'';
(3) in subsection (a), by inserting after paragraph (2) the
following:
``(3) a provider of remote computing service or electronic
communication service to the public shall not knowingly divulge
a record or other information pertaining to a subscriber to or
customer of such service (not including the contents of
communications covered by paragraph (1) or (2)) to any
governmental entity.'';
(4) in subsection (b), by striking ``Exceptions.--A person
or entity'' and inserting ``Exceptions for Disclosure of
Communications.--A provider described in subsection (a)'';
(5) in subsection (b)(6)--
(A) in subparagraph (A)(ii), by striking ``or'';
(B) in subparagraph (B), by striking the period and
inserting ``; or'';
(C) by inserting after subparagraph (B) the
following:
``(C) if the provider reasonably believes that an
emergency involving immediate danger of death or
serious physical injury to any person requires
disclosure of the information without delay.''; and
(6) by inserting after subsection (b) the following:
``(c) Exceptions for Disclosure of Customer Records.--A provider
described in subsection (a) may divulge a record or other information
pertaining to a subscriber to or customer of such service (not
including the contents of communications covered by subsection (a)(1)
or (a)(2))--
``(1) as otherwise authorized in section 2703;
``(2) with the lawful consent of the customer or
subscriber;
``(3) as may be necessarily incident to the rendition of
the service or to the protection of the rights or property of
the provider of that service;
``(4) to a governmental entity, if the provider reasonably
believes that an emergency involving immediate danger of death
or serious physical injury to any person justifies disclosure
of the information; or
``(5) to any person other than a governmental entity.''.
(b) Section 2703 of title 18, United States Code, is amended--
(1) so that the section heading reads as follows:
``Sec. 2703. Required disclosure of customer communications or
records'';
(2) in subsection (c)(1)--
(A) in subparagraph (A), by striking ``Except'' and
all that follows through ``only when'' in subparagraph
(B) and inserting ``A governmental entity may require a
provider of electronic communication service or remote
computing service to disclose a record or other
information pertaining to a subscriber to or customer
of such service (not including the contents of
communications) only when'';
(B) by striking ``or'' at the end of clause (iii)
of subparagraph (B);
(C) by striking the period at the end of clause
(iv) of subparagraph (B) and inserting ``; or'';
(D) by inserting after clause (iv) of subparagraph
(B) the following:
``(v) seeks information pursuant to subparagraph (B).'';
(E) in subparagraph (C), by striking ``(B)'' and
inserting ``(A)''; and
(F) by redesignating subparagraph (C) as
subparagraph (B); and
(3) in subsection (e), by striking ``or certification'' and
inserting ``certification, or statutory authorization''.
(c) The table of sections at the beginning of chapter 121 of title
18, United States Code, is amended so that the items relating to
sections 2702 through 2703 read as follows:
``2702. Voluntary disclosure of customer communications or records.
``2703. Required disclosure of customer communications or records.''.
SEC. 111. USE AS EVIDENCE.
(a) In General.--Section 2515 of title 18, United States Code, is
amended--
(1) by striking ``wire or oral'' in the heading and
inserting ``wire, oral, or electronic'';
(2) by striking ``Whenever any wire or oral communication
has been intercepted'' and inserting ``(a) Except as provided
in subsection (b), whenever any wire, oral, or electronic
communication has been intercepted, or any electronic
communication in electronic storage has been disclosed'';
(3) by inserting ``or chapter 121'' after ``this chapter'';
and
(4) by adding at the end the following:
``(b) Subsection (a) does not apply to the disclosure, before a
grand jury or in a criminal trial, hearing, or other criminal
proceeding, of the contents of a communication, or evidence derived
therefrom, against a person alleged to have intercepted, used, or
disclosed the communication in violation of this chapter, or chapter
121, or participated in such violation.''.
(b) Section 2517.--Paragraphs (1) and (2) of section 2517 are each
amended by inserting ``or under the circumstances described in section
2515(b)'' after ``by this chapter''.
(c) Section 2518.--Section 2518 of title 18, United States Code, is
amended--
(1) in subsection (7), by striking ``subsection (d)'' and
inserting ``subsection (8)(d)''; and
(2) in subsection (10)--
(A) in paragraph (a)--
(i) by striking ``or oral'' each place it
appears and inserting ``, oral, or
electronic'';
(ii) by striking the period at the end of
clause (iii) and inserting a semicolon; and
(iii) by inserting ``except that no
suppression may be ordered under the
circumstances described in section 2515(b).''
before ``Such motion''; and
(B) by striking paragraph (c).
(d) Clerical Amendment.--The item relating to section 2515 in the
table of sections at the beginning of chapter 119 of title 18, United
States Code, is amended to read as follows:
``2515. Prohibition of use as evidence of intercepted wire, oral, or
electronic communications.''.
SEC. 112. REPORTS CONCERNING THE DISCLOSURE OF THE CONTENTS OF
ELECTRONIC COMMUNICATIONS.
Section 2703 of title 18, United States Code, is amended by adding
at the end the following:
``(g) Reports Concerning the Disclosure of the Contents of
Electronic Communications.--
``(1) By January 31 of each calendar year, the judge
issuing or denying an order, warrant, or subpoena, or the
authority issuing or denying a subpoena, under subsection (a)
or (b) of this section during the preceding calendar year shall
report on each such order, warrant, or subpoena to the
Administrative Office of the United States Courts--
``(A) the fact that the order, warrant, or subpoena
was applied for;
``(B) the kind of order, warrant, or subpoena
applied for;
``(C) the fact that the order, warrant, or subpoena
was granted as applied for, was modified, or was
denied;
``(D) the offense specified in the order, warrant,
subpoena, or application;
``(E) the identity of the agency making the
application; and
``(F) the nature of the facilities from which or
the place where the contents of electronic
communications were to be disclosed.
``(2) In January of each year the Attorney General or an
Assistant Attorney General specially designated by the Attorney
General shall report to the Administrative Office of the United
States Courts--
``(A) the information required by subparagraphs (A)
through (F) of paragraph (1) of this subsection with
respect to each application for an order, warrant, or
subpoena made during the preceding calendar year; and
``(B) a general description of the disclosures made
under each such order, warrant, or subpoena,
including--
``(i) the approximate number of all
communications disclosed and, of those, the
approximate number of incriminating
communications disclosed;
``(ii) the approximate number of other
communications disclosed; and
``(iii) the approximate number of persons
whose communications were disclosed.
``(3) In June of each year, beginning in 2003, the Director
of the Administrative Office of the United States Courts shall
transmit to the Congress a full and complete report concerning
the number of applications for orders, warrants, or subpoenas
authorizing or requiring the disclosure of the contents of
electronic communications pursuant to subsections (a) and (b)
of this section and the number of orders, warrants, or
subpoenas granted or denied pursuant to subsections (a) and (b)
of this section during the preceding calendar year. Such report
shall include a summary and analysis of the data required to be
filed with the Administrative Office by paragraphs (1) and (2)
of this subsection. The Director of the Administrative Office
of the United States Courts is authorized to issue binding
regulations dealing with the content and form of the reports
required to be filed by paragraphs (1) and (2) of this
subsection.''.
Subtitle B--Foreign Intelligence Surveillance and Other Information
SEC. 151. PERIOD OF ORDERS OF ELECTRONIC SURVEILLANCE OF NON-UNITED
STATES PERSONS UNDER FOREIGN INTELLIGENCE
SURVEILLANCE.
(a) Including Agents of a Foreign Power.--(1) Section 105(e)(1) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1805(e)(1)) is amended by inserting ``or an agent of a foreign power,
as defined in section 101(b)(1)(A),'' after ``or (3),''.
(2) Section 304(d)(1) of such Act (50 U.S.C. 1824(d)(1)) is amended
by inserting ``or an agent of a foreign power, as defined in section
101(b)(1)(A),'' after ``101(a),''.
(b) Period of Order.--Such section 304(d)(1) is further amended by
striking ``forty-five'' and inserting ``90''.
SEC. 152. MULTI-POINT AUTHORITY.
Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting ``, or, in
circumstances where the Court finds that the actions of the target of
the electronic surveillance may have the effect of thwarting the
identification of a specified person, such other persons,'' after
``specified person''.
SEC. 153. FOREIGN INTELLIGENCE INFORMATION.
Sections 104(a)(7)(B) and 303(a)(7)(B) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)(B), 1823(a)(7)(B)) are
each amended by striking ``that the'' and inserting ``that a
significant''.
SEC. 154. FOREIGN INTELLIGENCE INFORMATION SHARING.
It shall be lawful for foreign intelligence information (as that
term is defined in section 101(e) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(e)) obtained as part of a
criminal investigation (including information obtained pursuant to
chapter 119 of title 18, United States Code) to be provided to any
Federal law-enforcement-, intelligence-, protective-, national-defense,
or immigration personnel, or the President or the Vice President of the
United States, for the performance of official duties.
SEC. 155. PEN REGISTER AND TRAP AND TRACE AUTHORITY.
Section 402(c) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1842(c)) is amended--
(1) in paragraph (1), by adding ``and'' at the end;
(2) in paragraph (2)--
(A) by inserting ``from the telephone line to which
the pen register or trap and trace device is to be
attached, or the communication instrument or device to
be covered by the pen register or trap and trace
device'' after ``obtained''; and
(B) by striking ``; and'' and inserting a period;
and
(3) by striking paragraph (3).
SEC. 156. BUSINESS RECORDS.
(a) In General.--Section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861) is amended to read as
follows:
``access to certain business records for foreign intelligence and
international terrorism investigations
``Sec. 501. (a) In any investigation to gather foreign intelligence
information or an investigation concerning international terrorism,
such investigation being conducted by the Federal Bureau of
Investigation under such guidelines as the Attorney General may approve
pursuant to Executive Order No. 12333 (or a successor order), the
Director of the Federal Bureau of Investigation or a designee of the
Director (whose rank shall be no lower than Assistant Special Agent in
Charge) may make an application for an order requiring the production
of any tangible things (including books, records, papers, documents,
and other items) that are relevant to the investigation.
``(b) Each application under this section--
``(1) shall be made to--
``(A) a judge of the court established by section
103(a) of this Act; or
``(B) a United States magistrate judge under
chapter 43 of title 28, United States Code, who is
publicly designated by the Chief Justice of the United
States to have the power to hear applications and grant
orders for the release of records under this section on
behalf of a judge of that court; and
``(2) shall specify that the records concerned are sought
for an investigation described in subsection (a).
``(c)(1) Upon application made pursuant to this section, the judge
shall enter an ex parte order as requested requiring the production the
tangible things sought if the judge finds that the application
satisfies the requirements of this section.
``(2) An order under this subsection shall not disclose that it is
issued for purposes of an investigation described in subsection (a).
``(d) A person who, in good faith, produces tangible things under
an order issued pursuant to this section shall not be liable to any
other person for such production. Such production shall not be deemed
to constitute a waiver of any privilege in any other proceeding or
context.''.
(b) Conforming Amendments.--(1) Section 502 of such Act (50 U.S.C.
1862) is repealed.
(2) Section 503 of such Act (50 U.S.C. 1863) is redesignated as
section 502.
(c) Clerical Amendment.--The table of contents at the beginning of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by striking the items relating to title V and
inserting the following:
``TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
PURPOSES
``Sec. 501. Access to certain business records for foreign intelligence
and international terrorism investigations.
``Sec. 502. Congressional oversight.''.
SEC. 157. MISCELLANEOUS NATIONAL-SECURITY AUTHORITIES.
(a) Section 2709(b) of title 18, United States Code, is amended--
(1) in paragraph (1)--
(A) by inserting ``, or electronic communication
transactional records'' after ``toll billing records'';
and
(B) by striking ``made that'' and all that follows
through the end of such paragraph and inserting ``made
that the name, address, length of service, and toll
billing records sought are relevant to an authorized
foreign counterintelligence investigation; and''; and
(2) in paragraph (2), by striking ``made that'' and all
that follows through the end of such paragraph and inserting
``made that the information sought is relevant to an authorized
foreign counterintelligence investigation.''.
(b) Section 624 of the Fair Credit Reporting Act (Public Law 90-
321; 15 U.S.C. 1681u), as added by section 601(a) of the Intelligence
Authorization Act for Fiscal Year 1996 (P.L. 104-93; 110 Stat. 974), is
amended--
(1) in subsection (a), by striking ``writing that'' and all
that follows through the end and inserting ``writing that such
information is necessary for the conduct of an authorized
foreign counterintelligence investigation.'';
(2) in subsection (b), by striking ``writing that'' and all
that follows through the end and inserting ``writing that such
information is necessary for the conduct of an authorized
foreign counterintelligence investigation.''; and
(3) in subsection (c), by striking ``camera that'' and all
that follows through ``States.'' and inserting ``camera that
the consumer report is necessary for the conduct of an
authorized foreign counterintelligence investigation.''.
SEC. 158. PROPOSED LEGISLATION.
Not later than August 31, 2003, the President shall propose
legislation relating to the provisions set to expire by section 160 of
this Act as the President may judge necessary and expedient.
SEC. 159. PRESIDENTIAL AUTHORITY.
Section 203 of the International Emergency Economic Powers Act (50
U.S.C. 1702) is amended in subsection (a)(1)--
(1) in subparagraph (A)--
(A) in clause (ii), by adding ``or'' after
``thereof,''; and
(B) by striking clause (iii) and inserting the
following:
``(iii) the importing or exporting of currency or
securities,
by any person, or with respect to any property, subject to the
jurisdiction of the United States;'';
(2) by striking after subparagraph (B), ``by any person, or
with respect to any property, subject to the jurisdiction of
the United States.'';
(3) in subparagraph (B)--
(A) by inserting after ``investigate'' the
following: ``, block during the pendency of an
investigation for a period of not more than 90 days
(which may be extended by an additional 60 days if the
President determines that such blocking is necessary to
carry out the purposes of this Act)''; and
(B) by striking ``interest;'' and inserting
``interest, by any person, or with respect to any
property, subject to the jurisdiction of the United
States; and''; and
(4) by adding at the end the following new subparagraph:
``(C) when a statute has been enacted authorizing the use
of force by United States armed forces against a foreign
country, foreign organization, or foreign national, or when the
United States has been subject to an armed attack by a foreign
country, foreign organization, or foreign national, confiscate
any property, subject to the jurisdiction of the United States,
of any foreign country, foreign organization, or foreign
national against whom United States armed forces may be used
pursuant to such statute or, in the case of an armed attack
against the United States, that the President determines has
planned, authorized, aided, or engaged in such attack; and
``(i) all right, title, and interest in any
property so confiscated shall vest when, as, and upon
the terms directed by the President, in such agency or
person as the President may designate from time to
time,
``(ii) upon such terms and conditions as the
President may prescribe, such interest or property
shall be held, used, administered, liquidated, sold, or
otherwise dealt with in the interest of and for the
benefit of the United States, except that the proceeds
of any such liquidation or sale, or any cash assets,
shall be segregated from other United States Government
funds and shall be used only pursuant to a statute
authorizing the expenditure of such proceeds or assets,
and
``(iii) such designated agency or person may
perform any and all acts incident to the accomplishment
or furtherance of these purposes.''.
SEC. 160. CLARIFICATION OF NO TECHNOLOGY MANDATES.
Nothing in this Act shall impose any additional technical
obligation or requirement on a provider of wire or electronic
communication service or other person to furnish facilities, services,
or technical assistance.
SEC. 161. CIVIL LIABILITY FOR CERTAIN UNAUTHORIZED DISCLOSURES.
(a) Chapter 119.--Section 2520 of title 18, United States Code, is
amended--
(1) by redesignating paragraph (2) of subsection (c) as
paragraph (3);
(2) by inserting after paragraph (1) of subsection (c) the
following:
``(2) In an action under this section by a citizen or legal
permanent resident of the United States against the United States or
any Federal investigative or law enforcement officer (or against any
State investigative or law enforcement officer for disclosure or
unlawful use of information obtained from Federal investigative or law
enforcement officers), the court may assess as damages whichever is the
greater of--
``(A) the sum of actual damages suffered by the plaintiff
and any profits made by the violator as a result of the
violation; or
``(B) statutory damages of whichever is the greater of $100
a day for each day of violation or $10,000.''; and
(3) by adding at the end the following:
``(f) Improper Disclosure Is Violation.--Any disclosure or use by
an investigative or law enforcement officer of information beyond the
extent permitted by section 2517 is a violation of this chapter for
purposes of section 2520(a).
``(g) Administrative Discipline.--If a court determines that the
United States or any agency or bureau thereof has violated any
provision of this section and the court finds that the circumstances
surrounding the violation raise questions of whether or not an officer
or employee thereof acted willfully or intentionally with respect to
the violation, the agency or bureau shall promptly initiate a
proceeding to determine whether or not disciplinary action is warranted
against the officer or employee who was responsible for the violation.
In such case, if the head of the agency or bureau determines discipline
is not appropriate, he or she shall report his or her conclusions and
the reasons therefor to the Deputy Inspector General for Civil Rights,
Civil Liberties, and the Federal Bureau of Investigation.
``(h) Actions Against the United States.--Any action against the
United States shall be conducted under the procedures of the Federal
Tort Claims Act. Any award against the United States shall be deducted
from the budget of the appropriate agency or bureau employing or
managing the officer or employee who was responsible for the
violation.''.
(b) Chapter 121.--Section 2707 of title 18, United States Code, is
amended--
(1) in subsection (c), by inserting ``(1)'' before ``The
court'';
(2) by adding at the end of subsection (c) the following:
``(2) In an action under this section by a citizen or legal
permanent resident of the United States against the United States or
any Federal investigative or law enforcement officer (or against any
State investigative or law enforcement officer for disclosure or
unlawful use of information obtained from Federal investigative or law
enforcement officers), the court may assess as damages whichever is the
greater of--
``(A) the sum of actual damages suffered by the plaintiff
and any profits made by the violator as a result of the
violation; or
``(B) statutory damages of $10,000.''; and
(3) by adding at the end the following:
``(f) Improper Disclosure Is Violation.--Any disclosure or use by
an investigative or law enforcement officer of information beyond the
extent permitted by section 2517 is a violation of this chapter for
purposes of section 2707(a).
``(g) Administrative Discipline.--If a court determines that the
United States or any agency or bureau thereof has violated any
provision of this section and the court finds that the circumstances
surrounding the violation raise questions of whether or not an officer
or employee thereof acted willfully or intentionally with respect to
the violation, the agency or bureau shall promptly initiate a
proceeding to determine whether or not disciplinary action is warranted
against the officer or employee who was responsible for the violation.
In such case, if the head of the agency or bureau determines discipline
is not appropriate, he or she shall report his or her conclusions and
the reasons therefor to the Deputy Inspector General for Civil Rights,
Civil Liberties, and the Federal Bureau of Investigation.
``(h) Actions Against the United States.--Any action against the
United States shall be conducted under the procedures of the Federal
Tort Claims Act. Any award against the United States shall be deducted
from the budget of the appropriate agency or bureau employing or
managing the officer or employee who was responsible for the
violation.''.
(c) Chapter 206.--
(1) In general.--Chapter 206 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 3128. Civil action
``(a) Cause of Action.--Except as provided in subsections (d) and
(e) of section 3124, any person aggrieved by any violation of this
chapter may in a civil action recover from the person or entity which
engaged in that violation such relief as may be appropriate.
``(b) Relief.--In any action under this section, appropriate relief
includes--
``(1) such preliminary and other equitable or declaratory
relief as may be appropriate;
``(2) damages under subsection (c) and punitive damages in
appropriate cases; and
``(3) a reasonable attorney's fee and other litigation
costs reasonably incurred.
``(c) Damages.--In any action under this section, the court may
assess as damages whichever is the greater of--
``(1) the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a result of
the violation; or
``(2) statutory damages of $10,000.
``(d) Limitation.--A civil action under this section may not be
commenced later than 2 years after the date upon which the claimant
first has a reasonable opportunity to discover the violation.
``(e) Improper Disclosure Is Violation.--Any disclosure or use by
an investigative or law enforcement officer of information beyond the
extent permitted by section 2517 is a violation of this chapter for
purposes of section 3128(a).
``(f) Administrative Discipline.--If a court determines that the
United States or any agency or bureau thereof has violated any
provision of this section and the court finds that the circumstances
surrounding the violation raise questions of whether or not an officer
or employee thereof acted willfully or intentionally with respect to
the violation, the agency or bureau shall promptly initiate a
proceeding to determine whether or not disciplinary action is warranted
against the officer or employee who was responsible for the violation.
In such case, if the head of the agency or bureau determines discipline
is not appropriate, he or she shall report his or her conclusions and
the reasons therefor to the Deputy Inspector General for Civil Rights,
Civil Liberties, and the Federal Bureau of Investigation.
``(g) Actions Against the United States.--Any action against the
United States shall be conducted under the procedures of the Federal
Tort Claims Act. Any award against the United States shall be deducted
from the budget of the appropriate agency or bureau employing or
managing the officer or employee who was responsible for the
violation.''.
(2) Clerical Amendment.--The table of sections at the beginning of
chapter 206 of title 18, United States Code, is amended by adding at
the end the following new item:
``3128. Civil action.''.
(d) Foreign Intelligence Surveillance Act of 1978.--(1) Section 110
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1810)
is amended--
(A) by inserting ``(a)'' before ``Civil Action.--'';
(B) by inserting ``or entity'' after ``shall have a cause
of action against any person'';
(C) by striking ``(a) actual'' and inserting ``(1)
actual'';
(D) by striking ``(b) punitive'' and inserting ``(2)
punitive'';
(E) by striking ``(c) reasonable'' and inserting ``(3)
reasonable'';
(F) by striking ``$1,000'' and inserting ``$10,000''; and
(G) by adding at the end the following new subsections:
``(b) Limitation.--A civil action under this section may not be
commenced later than 2 years after the date upon which the claimant
first has a reasonable opportunity to discover the violation.
``(c) Administrative Discipline.--If a court determines that the
United States or any agency or bureau thereof has violated any
provision of this section and the court finds that the circumstances
surrounding the violation raise questions of whether or not an officer
or employee thereof acted willfully or intentionally with respect to
the violation, the agency or bureau shall promptly initiate a
proceeding to determine whether or not disciplinary action is warranted
against the officer or employee who was responsible for the violation.
In such case, if the head of the agency or bureau determines discipline
is not appropriate, the head shall report conclusions for the
determination and the reasons therefor to the Deputy Inspector General
for Civil Rights, Civil Liberties, and the Federal Bureau of
Investigation.
``(d) Actions Against the United States.--Any action against the
United States shall be conducted under the procedures of the Federal
Tort Claims Act. Any award against the United States shall be deducted
from the budget of the appropriate agency or bureau employing or
managing the officer or employee who was responsible for the
violation.''.
(2) Section 308 of the the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1828) is amended--
(A) by inserting ``(a) Civil Action.--'' before ``An
aggrieved person,'';
(B) by inserting ``or entity'' after ``shall have a cause
of action against any person'';
(C) by striking ``$1,000'' and inserting ``$10,000''; and
(D) by adding at the end the following new subsections:
``(b) Limitation.--A civil action under this section may not be
commenced later than 2 years after the date upon which the claimant
first has a reasonable opportunity to discover the violation.
``(c) Administrative Discipline.--If a court determines that the
United States or any agency or bureau thereof has violated any
provision of this section and the court finds that the circumstances
surrounding the violation raise questions of whether or not an officer
or employee thereof acted willfully or intentionally with respect to
the violation, the agency or bureau shall promptly initiate a
proceeding to determine whether or not disciplinary action is warranted
against the officer or employee who was responsible for the violation.
In such case, if the head of the agency or bureau determines discipline
is not appropriate, the head shall report the conclusions for the
determination and the reasons therefor to the Deputy Inspector General
for Civil Rights, Civil Liberties, and the Federal Bureau of
Investigation.
``(d) Actions Against the United States.--Any action against the
United States shall be conducted under the procedures of the Federal
Tort Claims Act. Any award against the United States shall be deducted
from the budget of the appropriate agency or bureau employing or
managing the officer or employee who was responsible for the
violation.''.
(3)(A) Title IV of the the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1841 et seq.) is amended by adding at the end the
following new sections:
``penalties
``Sec. 407. (a) Prohibited activities.--A person is guilty of an
offense if the person intentionally--
``(1) installs or uses a pen register or trap and trace
device under color of law except as authorized by statute; or
``(2) discloses or uses information obtained under color of
law by using a pen register or trap and trace device, knowing
or having reason to know that the information was obtained
through using a pen register or trap and trace device not
authorized by statute.
``(b) Defense.--It is a defense to a prosecution under subsection
(a) that the defendant was a law enforcement or investigative officer
engaged in the course of his official duties and the pen register or
trap and trace device was authorized by and conducted pursuant to a
search warrant or court order of a court of competent jurisdiction.
``(c) Penalties.--An offense described in this section is
punishable by a fine of not more than $10,000 or imprisonment for not
more than five years, or both.
``(d) Federal Jurisdiction .--There is Federal jurisdiction over an
offense under this section if the person committing the offense was an
officer or employee of the United States at the time the offense was
committed.
``civil liability
``Sec. 408. (a) Civil Action.--An aggrieved person, other than a
foreign power or an agent of a foreign power, as defined in section
101(a) or (b)(1)(A), respectively, who has been subjected to a pen
register or trap and trace device or about whom information obtained by
a pen register or trap and trace device has been disclosed or used in
violation of section 407 shall have a cause of action against any
person or entity who committed such violation and shall be entitled to
recover--
``(1) actual damages, but not less than liquidated damages
of $10,000, whichever is greater;
``(2) punitive damages; and
``(3) reasonable attorney's fees and other investigation
and litigation costs reasonably incurred.
``(b) Limitation.--A civil action under this section may not be
commenced later than 2 years after the date upon which the claimant
first has a reasonable opportunity to discover the violation.
``(c) Administrative Discipline.--If a court determines that the
United States or any agency or bureau thereof has violated any
provision of this section and the court finds that the circumstances
surrounding the violation raise questions of whether or not an officer
or employee thereof acted willfully or intentionally with respect to
the violation, the agency or bureau shall promptly initiate a
proceeding to determine whether or not disciplinary action is warranted
against the officer or employee who was responsible for the violation.
In such case, if the head of the agency or bureau determines discipline
is not appropriate, the head shall report the conclusions for the
determination and the reasons therefor to the Deputy Inspector General
for Civil Rights, Civil Liberties, and the Federal Bureau of
Investigation.
``(d) Actions Against the United States.--Any action against the
United States shall be conducted under the procedures of the Federal
Tort Claims Act. Any award against the United States shall be deducted
from the budget of the appropriate agency or bureau employing or
managing the officer or employee who was responsible for the
violation.''.
(B) The table of contents at the beginning of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended by adding at the end of the items relating to title IV the
following new items:
``Sec. 407. Penalties.
``Sec. 408. Civil liability.''.
SEC. 162. SUNSET.
This title and the amendments made by this title (other than
sections 106 (relating to technical amendment), 109 (relating to
clarification of scope), and 159 (relating to presidential authority))
and the amendments made by those sections shall take effect on the date
of enactment of this Act and shall cease to have any effect on December
31, 2003.
TITLE II--ALIENS ENGAGING IN TERRORIST ACTIVITY
Subtitle A--Detention and Removal of Aliens Engaging in Terrorist
Activity
SEC. 201. CHANGES IN CLASSES OF ALIENS WHO ARE INELIGIBLE FOR ADMISSION
AND DEPORTABLE DUE TO TERRORIST ACTIVITY.
(a) Aliens Ineligible for Admission Due to Terrorist Activities.--
Section 212(a)(3)(B) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)) is amended--
(1) in clause (i)--
(A) in subclauses (I), (II), and (III), by striking
the comma at the end and inserting a semicolon;
(B) by amending subclause (IV) to read as follows:
``(IV) is a representative of--
``(a) a foreign terrorist
organization, as designated by
the Secretary of State under
section 219; or
``(b) a political, social,
or other similar group whose
public endorsement of terrorist
activity the Secretary of State
has determined undermines the
efforts of the United States to
reduce or eliminate terrorist
activities;'';
(C) in subclause (V), by striking any comma at the
end, by striking any ``or'' at the end, and by adding
``; or'' at the end; and
(D) by inserting after subclause (V) the following:
``(VI) has used the alien's
prominence within a foreign state or
the United States to endorse or espouse
terrorist activity, or to persuade
others to support terrorist activity or
a terrorist organization, in a way that
the Secretary of State has determined
undermines the efforts of the United
States to reduce or eliminate terrorist
activities;'';
(2) in clause (ii)--
(A) in the matter preceding subclause (I), by
striking ``(or which, if committed in the United
States,'' and inserting ``(or which, if it had been or
were to be committed in the United States,''; and
(B) in subclause (V)(b), by striking ``explosive or
firearm'' and inserting ``explosive, firearm, or other
object'';
(3) by amending clause (iii) to read as follows:
``(iii) Engage in terrorist activity
defined.--As used in this Act, the term `engage
in terrorist activity' means, in an individual
capacity or as a member of an organization--
``(I) to commit a terrorist
activity;
``(II) to plan or prepare to commit
a terrorist activity;
``(III) to gather information on
potential targets for a terrorist
activity;
``(IV) to solicit funds or other
things of value for--
``(a) a terrorist activity;
``(b) an organization
designated as a foreign
terrorist organization under
section 219; or
``(c) a terrorist
organization described in
clause (v)(II), but only if the
solicitor knows, or reasonably
should know, that the
solicitation would further a
terrorist activity;
``(V) to solicit any individual--
``(a) to engage in conduct
otherwise described in this
clause;
``(b) for membership in a
terrorist government;
``(c) for membership in an
organization designated as a
foreign terrorist organization
under section 219; or
``(d) for membership in a
terrorist organization
described in clause (v)(II),
but only if the solicitor
knows, or reasonably should
know, that the solicitation
would further a terrorist
activity; or
``(VI) to commit an act that the
actor knows, or reasonably should know,
affords material support, including a
safe house, transportation,
communications, funds, transfer of
funds or other material financial
benefit, false documentation or
identification, weapons (including
chemical, biological, and radiological
weapons), explosives, or training--
``(a) for the commission of
a terrorist activity;
``(b) to any individual who
the actor knows, or reasonably
should know, has committed or
plans to commit a terrorist
activity;
``(c) to an organization
designated as a foreign
terrorist organization under
section 219; or
``(d) to a terrorist
organization described in
clause (v)(II), but only if the
actor knows, or reasonably
should know, that the act would
further a terrorist
activity.''; and
(4) by adding at the end the following:
``(v) Terrorist organization defined.--As
used in this subparagraph, the term `terrorist
organization' means--
``(I) an organization designated as
a foreign terrorist organization under
section 219; or
``(II) with regard to a group that
is not an organization described in
subclause (I), a group of 2 or more
individuals, whether organized or not,
which engages in, or which has a
significant subgroup which engages in,
the activities described in subclause
(I), (II), or (III) of clause (iii).
``(vi) Special rule for material support.--
Clause (iii)(VI)(b) shall not be construed to
include the affording of material support to an
individual who committed or planned to commit a
terrorist activity, if the alien establishes by
clear and convincing evidence that such support
was afforded only after such individual
permanently and publicly renounced, rejected
the use of, and had ceased to engage in,
terrorist activity.''.
(b) Aliens Ineligible for Admission Due to Endangerment.--Section
212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3))
is amended by adding at the end the following:
``(F) Endangerment.--Any alien who the Secretary of
State, after consultation with the Attorney General, or
the Attorney General, after consultation with the
Secretary of State, determines has been associated with
a terrorist organization and intends while in the
United States to engage solely, principally, or
incidentally in activities that could endanger the
welfare, safety, or security of the United States is
inadmissible.''.
(c) Aliens Deportable Due to Terrorist Activities.--Section
237(a)(4)(B) of the Immigration and Nationality (8 U.S.C.
1227(a)(4)(B)) is amended to read as follows:
``(B) Terrorist activities.--Any alien is
deportable who--
``(i) has engaged, is engaged, or at any
time after admission engages in terrorist
activity (as defined in section
212(a)(3)(B)(iii));
``(ii) is a representative (as defined in
section 212(a)(3)(B)(iv)) of--
``(I) a foreign terrorist
organization, as designated by the
Secretary of State under section 219;
or
``(II) a political, social, or
other similar group whose public
endorsement of terrorist activity--
``(a) is intended and
likely to incite or produce
imminent lawless action; and
``(b) has been determined
by the Secretary of State to
undermine the efforts of the
United States to reduce or
eliminate terrorist activities;
or
``(iii) has used the alien's prominence
within a foreign state or the United States--
``(I) to endorse, in a manner that
is intended and likely to incite or
produce imminent lawless action and
that has been determined by the
Secretary of State to undermine the
efforts of the United States to reduce
or eliminate terrorist activities,
terrorist activity; or
``(II) to persuade others, in a
manner that is intended and likely to
incite or produce imminent lawless
action and that has been determined by
the Secretary of State to undermine the
efforts of the United States to reduce
or eliminate terrorist activities, to
support terrorist activity or a
terrorist organization (as defined in
section 212(a)(3)(B)(v)).''.
(d) Retroactive Application of Amendments.--
(1) In general.--The amendments made by this section shall
take effect on the date of the enactment of this Act and shall
apply to--
(A) actions taken by an alien before such date, as
well as actions taken on or after such date; and
(B) all aliens, without regard to the date of entry
or attempted entry into the United States--
(i) in removal proceedings on or after such
date (except for proceedings in which there has
been a final administrative decision before
such date); or
(ii) seeking admission to the United States
on or after such date.
(2) Special rule for aliens in exclusion or deportation
proceedings.--Notwithstanding any other provision of law, the
amendments made by this section shall apply to all aliens in
exclusion or deportation proceedings on or after the date of
the enactment of this Act (except for proceedings in which
there has been a final administrative decision before such
date) as if such proceedings were removal proceedings.
(3) Special rule for section 219 organizations.--
(A) In general.--Notwithstanding paragraphs (1) and
(2), no alien shall be considered inadmissible under
section 212(a)(3) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(3)), or deportable under section
237(a)(4)(B) of such Act (8 U.S.C. 1227(a)(4)(B)), by
reason of the amendments made by subsection (a), on the
ground that the alien engaged in a terrorist activity
described in subclause (IV)(b), (V)(c), or (VI)(c) of
section 212(a)(3)(B)(iii) of such Act (as so amended)
with respect to a group at any time when the group was
not a foreign terrorist organization designated by the
Secretary of State under section 219 of such Act (8
U.S.C. 1189).
(B) Construction.--Subparagraph (A) shall not be
construed to prevent an alien from being considered
inadmissible or deportable for having engaged in a
terrorist activity--
(i) described in subclause (IV)(b), (V)(c),
or (VI)(c) of section 212(a)(3)(B)(iii) of such
Act (as so amended) with respect to a foreign
terrorist organization at any time when such
organization was designated by the Secretary of
State under section 219 of such Act; or
(ii) described in subclause (IV)(c),
(V)(d), or (VI)(d) of section 212(a)(3)(B)(iii)
of such Act (as so amended) with respect to any
group described in any of such subclauses.
SEC. 202. CHANGES IN DESIGNATION OF FOREIGN TERRORIST ORGANIZATIONS.
(a) Designation of Foreign Terrorist Organizations.--Section 219(a)
of the Immigration and Nationality Act (8 U.S.C. 1189(a)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (B), by striking
``212(a)(3)(B));'' and inserting ``212(a)(3)(B)),
engages in terrorism (as defined in section 140(d)(2)
of the Foreign Relations Authorization Act, Fiscal
Years 1988 and 1989 (22 U.S.C. 2656f(d)(2)), or retains
the capability and intent to engage in terrorist
activity or to engage in terrorism (as so defined);'';
and
(B) in subparagraph (C), by inserting ``or
terrorism'' after ``activity'';
(2) in paragraph (2)--
(A) by amending subparagraph (A) to read as
follows:
``(A) Notice.--
``(i) In general.--Seven days before a
designation is made under this subsection, the
Secretary of State shall, by classified
communication, notify the Speaker and minority
leader of the House of Representatives, the
President pro tempore, majority leader, and
minority leader of the Senate, the members of
the relevant committees, and the Secretary of
the Treasury, in writing, of the intent to
designate a foreign organization under this
subsection, together with the findings made
under paragraph (1) with respect to that
organization, and the factual basis therefor.
``(ii) Publication of designation.--The
Secretary of State shall publish the
designation in the Federal Register seven days
after providing the notification under clause
(i).'';
(B) in subparagraph (B), by striking ``(A).'' and
inserting ``(A)(ii).''; and
(C) in subparagraph (C), by striking ``paragraph
(2),'' and inserting ``subparagraph (A)(i),'';
(3) in paragraph (3)(B), by striking ``subsection (c).''
and inserting ``subsection (b).';
(4) in paragraph (4)(B), by inserting after the first
sentence the following: ``The Secretary may also redesignate
such organization at the end of any 2-year redesignation period
(but not sooner than 60 days prior to the termination of such
period) for an additional 2-year period upon a finding that the
relevant circumstances described in paragraph (1) still exist.
Any redesignation shall be effective immediately following the
end of the prior 2-year designation or redesignation period
unless a different effective date is provided in such
redesignation.'';
(5) in paragraph (6)--
(A) in subparagraph (A)--
(i) in the matter preceding clause (i), by
inserting ``or a redesignation made under
paragraph (4)(B)'' after ``paragraph (1)'';
(ii) in clause (i)--
(I) by inserting ``or
redesignation'' after ``designation''
the first place it appears; and
(II) by striking ``of the
designation;'' and inserting a
semicolon; and
(iii) in clause (ii), by striking ``of the
designation.'' and inserting a period;
(B) in subparagraph (B), by striking ``through
(4)'' and inserting ``and (3)''; and
(C) by adding at the end the following:
``(C) Effective date.--Any revocation shall take
effect on the date specified in the revocation or upon
publication in the Federal Register if no effective
date is specified.'';
(6) in paragraph (7), by inserting ``, or the revocation of
a redesignation under paragraph (6),'' after ``(5) or (6)'';
and
(7) in paragraph (8)--
(A) by striking ``(1)(B),'' and inserting ``(2)(B),
or if a redesignation under this subsection has become
effective under paragraph (4)(B)'';
(B) by inserting ``or an alien in a removal
proceeding'' after ``criminal action''; and
(C) by inserting ``or redesignation'' before ``as a
defense''.
(b) Authority to Initiate Designations, Redesignations, and
Revocations.--Section 219 of the Immigration and Nationality Act (8
U.S.C. 1189), as amended by subsection (a), is further amended--
(1) by striking ``Secretary'' each place such term appears,
excluding subparagraphs (A) and (C) of subsection (a)(2), and
inserting ``official specified under subsection (d)'';
(2) in subsection (c)--
(A) in paragraph (2), by adding ``and'' at the end;
(B) in paragraph (3), by striking ``; and'' at the
end and inserting a period; and
(C) by striking paragraph (4); and
(3) by adding at the end the following:
``(d) Implementation of Duties and Authorities.--
``(1) By secretary or attorney general.--Except as
otherwise provided in this subsection, the duties under this
section shall, and authorities under this section may, be
exercised by--
``(A) the Secretary of State--
``(i) after consultation with the Secretary
of the Treasury and with the concurrence of the
Attorney General; or
``(ii) upon instruction by the President
pursuant to paragraph (2); or
``(B) the Attorney General--
``(i) after consultation with the Secretary
of the Treasury and with the concurrence of the
Secretary of State; or
``(ii) upon instruction by the President
pursuant to paragraph (2).
``(2) Concurrence.--The Secretary of State and the Attorney
General shall each seek the other's concurrence in accordance
with paragraph (1). In any case in which such concurrence is
denied or withheld, the official seeking the concurrence shall
so notify the President and shall request the President to make
a determination as to how the issue shall be resolved. Such
notification and request of the President may not be made
before the earlier of--
``(A) the date on which a denial of concurrence is
received; or
``(B) the end of the 60-day period beginning on the
date the concurrence was sought.
``(3) Exception.--It shall be the duty of the Secretary of
State to carry out the procedural requirements of paragraphs
(2)(A) and (6)(B) of subsection (a) in all cases, including
cases in which a designation or revocation is initiated by the
Attorney General.''.
SEC. 203. MANDATORY DETENTION OF SUSPECTED TERRORISTS; HABEAS CORPUS;
JUDICIAL REVIEW.
(a) In General.--The Immigration and Nationality Act (8 U.S.C. 1101
et seq.) is amended by inserting after section 236 the following:
``mandatory detention of suspected terrorists; habeas corpus; judicial
review
``Sec. 236A. (a) Detention of Terrorist Aliens.--
``(1) Custody.--The Attorney General shall take into
custody any alien who is certified under paragraph (3).
``(2) Release.--Except as provided in paragraphs (5) and
(6), the Attorney General shall maintain custody of such an
alien until the alien is removed from the United States or
found not to be inadmissible or deportable, as the case may be.
Except as provided in paragraph (6), such custody shall be
maintained irrespective of any relief from removal for which
the alien may be eligible, or any relief from removal granted
the alien, until the Attorney General determines that the alien
is no longer an alien who may be certified under paragraph (3).
``(3) Certification.--The Attorney General may certify an
alien under this paragraph if the Attorney General has
reasonable grounds to believe that the alien--
``(A) is described in section 212(a)(3)(A)(i),
212(a)(3)(A)(iii), 212(a)(3)(B), 237(a)(4)(A)(i),
237(a)(4)(A)(iii), or 237(a)(4)(B); or
``(B) is engaged in any other activity that
endangers the national security of the United States.
``(4) Nondelegation.--The Attorney General may delegate the
authority provided under paragraph (3) only to the Deputy
Attorney General. The Deputy Attorney General may not delegate
such authority.
``(5) Commencement of proceedings.--The Attorney General
shall place an alien detained under paragraph (1) in removal
proceedings, or shall charge the alien with a criminal offense,
not later than 7 days after the commencement of such detention.
If the requirement of the preceding sentence is not satisfied,
the Attorney General shall release the alien.
``(6) Limitation on indefinite detention.--An alien
detained under paragraph (1) who has been ordered removed based
on one or more of the grounds of inadmissibility or
deportability referred to in paragraph (3)(A), who has not been
removed within the removal period specified under section
241(a)(1)(A), and whose removal is unlikely in the reasonably
foreseeable future, may be detained for additional periods of
up to six months if the Attorney General demonstrates that the
release of the alien will not protect the national security of
the United States or adequately ensure the safety of the
community or any person.
``(b) Habeas Corpus and Judicial Review.--Judicial review of any
action or decision relating to this section (including judicial review
of the merits of a determination made under subsection (a)(3) or
(a)(6)) is available exclusively in habeas corpus proceedings initiated
in the United States District Court for the District of Columbia.
Notwithstanding any other provision of law, including section 2241 of
title 28, United States Code, except as provided in the preceding
sentence, no court shall have jurisdiction to review, by habeas corpus
petition or otherwise, any such action or decision.''.
(b) Clerical Amendment.--The table of contents of the Immigration
and Nationality Act is amended by inserting after the item relating to
section 236 the following:
``Sec. 236A. Mandatory detention of suspected terrorists; habeas
corpus; judicial review.''.
(c) Reports.--Not later than 6 months after the date of the
enactment of this Act, and every 6 months thereafter, the Attorney
General shall submit a report to the Committee on the Judiciary of the
House of Representatives and the Committee on the Judiciary of the
Senate, with respect to the reporting period, on--
(1) the number of aliens certified under section 236A(a)(3)
of the Immigration and Nationality Act, as added by subsection
(a);
(2) the grounds for such certifications;
(3) the nationalities of the aliens so certified;
(4) the length of the detention for each alien so
certified; and
(5) the number of aliens so certified who--
(A) were granted any form of relief from removal;
(B) were removed;
(C) the Attorney General has determined are no
longer an alien who may be so certified; or
(D) were released from detention.
SEC. 204. CHANGES IN CONDITIONS FOR GRANTING ASYLUM.
(a) In General.--Section 208(b)(2)(A)(v) of the Immigration and
Nationality Act (8 U.S.C. 1158(b)(2)(A)(v)) is amended--
(1) by striking ``inadmissible under'' each place such term
appears and inserting ``described in''; and
(2) by striking ``removable under'' and inserting
``described in''.
(b) Retroactive Application of Amendments.--The amendments made by
subsection (a) shall take effect on the date of the enactment of this
Act and shall apply to--
(1) actions taken by an alien before such date, as well as
actions taken on or after such date; and
(2) all aliens, without regard to the date of entry or
attempted entry into the United States, whose application for
asylum is pending on or after such date (except for
applications with respect to which there has been a final
administrative decision before such date).
SEC. 205. MULTILATERAL COOPERATION AGAINST TERRORISTS.
Section 222(f) of the Immigration and Nationality Act (8 U.S.C.
1202(f)) is amended--
(1) by striking ``The records'' and inserting ``(1) Subject
to paragraphs (2) and (3), the records'';
(2) by striking ``United States,'' and all that follows
through the period at the end and inserting ``United States.'';
and
(3) by adding at the end the following:
``(2) In the discretion of the Secretary of State, certified copies
of such records may be made available to a court which certifies that
the information contained in such records is needed by the court in the
interest of the ends of justice in a case pending before the court.
``(3)(A) Subject to the provisions of this paragraph, the Secretary
of State may provide copies of records of the Department of State and
of diplomatic and consular offices of the United States (including the
Department of State's automated visa lookout database) pertaining to
the issuance or refusal of visas or permits to enter the United States,
or information contained in such records, to foreign governments if the
Secretary determines that it is necessary and appropriate.
``(B) Such records and information may be provided on a case-by-
case basis for the purpose of preventing, investigating, or punishing
acts of terrorism. General access to records and information may be
provided under an agreement to limit the use of such records and
information to the purposes described in the preceding sentence.
``(C) The Secretary of State shall make any determination under
this paragraph in consultation with any Federal agency that compiled or
provided such records or information.
``(D) To the extent possible, such records and information shall be
made available to foreign governments on a reciprocal basis.''.
SEC. 206. REQUIRING SHARING BY THE FEDERAL BUREAU OF INVESTIGATION OF
CERTAIN CRIMINAL RECORD EXTRACTS WITH OTHER FEDERAL
AGENCIES IN ORDER TO ENHANCE BORDER SECURITY.
(a) In General.--Section 105 of the Immigration and Nationality Act
(8 U.S.C. 1105), is amended--
(1) in the section heading, by adding ``and data exchange''
at the end;
(2) by inserting ``(a) Liaison With Internal Security
Officers.--'' after ``105.'';
(3) by striking ``the internal security of'' and inserting
``the internal and border security of''; and
(4) by adding at the end the following:
``(b) Criminal History Record Information.--The Attorney General
and the Director of the Federal Bureau of Investigation shall provide
the Secretary of State and the Commissioner access to the criminal
history record information contained in the National Crime Information
Center's Interstate Identification Index, Wanted Persons File, and to
any other files maintained by the National Crime Information Center
that may be mutually agreed upon by the Attorney General and the
official to be provided access, for the purpose of determining whether
a visa applicant or applicant for admission has a criminal history
record indexed in any such file. Such access shall be provided by means
of extracts of the records for placement in the Department of State's
automated visa lookout database or other appropriate database, and
shall be provided without any fee or charge. The Director of the
Federal Bureau of Investigation shall provide periodic updates of the
extracts at intervals mutually agreed upon by the Attorney General and
the official provided access. Upon receipt of such updated extracts,
the receiving official shall make corresponding updates to the
official's databases and destroy previously provided extracts. Such
access to any extract shall not be construed to entitle the Secretary
of State to obtain the full content of the corresponding automated
criminal history record. To obtain the full content of a criminal
history record, the Secretary of State shall submit the applicant's
fingerprints and any appropriate fingerprint processing fee authorized
by law to the Criminal Justice Information Services Division of the
Federal Bureau of Investigation.
``(c) Reconsideration.--The provision of the extracts described in
subsection (b) may be reconsidered by the Attorney General and the
receiving official upon the development and deployment of a more cost-
effective and efficient means of sharing the information.
``(d) Regulations.--For purposes of administering this section, the
Secretary of State shall, prior to receiving access to National Crime
Information Center data, promulgate final regulations--
``(1) to implement procedures for the taking of
fingerprints; and
``(2) to establish the conditions for the use of the
information received from the Federal Bureau of Investigation,
in order--
``(A) to limit the redissemination of such
information;
``(B) to ensure that such information is used
solely to determine whether to issue a visa to an
individual;
``(C) to ensure the security, confidentiality, and
destruction of such information; and
``(D) to protect any privacy rights of individuals
who are subjects of such information.''.
(b) Clerical Amendment.--The table of contents of the Immigration
and Nationality Act is amended by amending the item relating to section
105 to read as follows:
``Sec. 105. Liaison with internal security officers and data
exchange.''.
(c) Effective Date and Implementation.--The amendments made by this
section shall take effect on the date of the enactment of this Act and
shall be fully implemented not later than 18 months after such date.
(d) Reporting Requirement.--Not later than 2 years after the date
of the enactment of this Act, the Attorney General and the Secretary of
State, jointly, shall report to the Congress on the implementation of
the amendments made by this section.
(e) Construction.--Nothing in this section, or in any other law,
shall be construed to limit the authority of the Attorney General or
the Director of the Federal Bureau of Investigation to provide access
to the criminal history record information contained in the National
Crime Information Center's Interstate Identification Index, or to any
other information maintained by such center, to any Federal agency or
officer authorized to enforce or administer the immigration laws of the
United States, for the purpose of such enforcement or administration,
upon terms that are consistent with sections 212 through 216 of the
National Crime Prevention and Privacy Compact Act of 1998 (42 U.S.C.
14611 et seq.).
SEC. 207. INADMISSIBILITY OF ALIENS ENGAGED IN MONEY LAUNDERING.
(a) Amendment to Immigration and Nationality Act.--Section
212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2))
is amended by adding at the end the following:
``(I) Money laundering.--Any alien--
``(i) who a consular officer or the
Attorney General knows, or has reason to
believe, has engaged, is engaging, or seeks to
enter the United States to engage, in an
offense which is described in section 1956 of
title 18, United States Code (relating to
laundering of monetary instruments); or
``(ii) who a consular officer or the
Attorney General knows is, or has been, a
knowing aider, abettor, assister, conspirator,
or colluder with others in an offense which is
described in such section;
is inadmissible.''.
(b) Money Laundering Watchlist.--Not later than 90 days after the
date of the enactment of this Act, the Secretary of State shall
develop, implement, and certify to the Congress that there has been
established a money laundering watchlist, which identifies individuals
worldwide who are known or suspected of money laundering, which is
readily accessible to, and shall be checked by, a consular or other
Federal official prior to the issuance of a visa or admission to the
United States. The Secretary of State shall develop and continually
update the watchlist in cooperation with the Attorney General, the
Secretary of the Treasury, and the Director of Central Intelligence.
SEC. 208. PROGRAM TO COLLECT INFORMATION RELATING TO NONIMMIGRANT
FOREIGN STUDENTS AND OTHER EXCHANGE PROGRAM
PARTICIPANTS.
(a) Changes in Deadlines.--Section 641 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372) is
amended--
(1) in subsection (f), by striking ``Not later than 4 years
after the commencement of the program established under
subsection (a),'' and inserting ``Not later than 120 days after
the date of the enactment of the PATRIOT Act of 2001,''; and
(2) in subsection (g)(1), by striking ``12 months'' and
inserting ``120 days''.
(b) Increased Fee for Certain Students.--Section 641(e)(4)(A) of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1372(e)(4)(A)) is amended by adding at the end the following:
``In the case of an alien who is a national of a country, the
government of which the Secretary of State has determined, for purposes
of section 6(j)(1) of the Export Administration Act of 1979 (50 U.S.C.
App. 2405(j)(1)), has repeatedly provided support for acts of
international terrorism, the Attorney General may impose on, and
collect from, the alien a fee that is greater than that imposed on
other aliens described in paragraph (3).''.
(c) Data Exchange.--Section 641 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372) is amended--
(1) by redesignating subsection (h) as subsection (i); and
(2) by inserting after subsection (g) the following:
``(h) Data Exchange.--Notwithstanding any other provision of law,
the Attorney General shall provide to the Secretary of State and the
Director of the Federal Bureau of Investigation the information
collected under subsection (a)(1).''.
SEC. 209. PROTECTION OF NORTHERN BORDER.
There are authorized to be appropriated--
(1) such sums as may be necessary to triple the number of
Border Patrol personnel (from the number authorized under
current law) in each State along the northern border;
(2) such sums as may be necessary to triple the number of
Immigration and Naturalization Service inspectors (from the
number authorized under current law) at ports of entry in each
State along the northern border; and
(3) an additional $50,000,000 to the Immigration and
Naturalization Service for purposes of enhancing technology for
security and enforcement at the northern border, such as
infrared technology and technology that enhances coordination
between the Governments of Canada and the United States
generally and specifically between Canadian police and the
Federal Bureau of Investigation.
Subtitle B--Preservation of Immigration Benefits for Victims of
Terrorism
SEC. 211. SPECIAL IMMIGRANT STATUS.
(a) In General.--For purposes of the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.), the Attorney General may provide an alien
described in subsection (b) with the status of a special immigrant
under section 101(a)(27) of such Act (8 U.S.C. 1101(a(27)), if the
alien--
(1) files with the Attorney General a petition under
section 204 of such Act (8 U.S.C. 1154) for classification
under section 203(b)(4) of such Act (8 U.S.C. 1153(b)(4)); and
(2) is otherwise eligible to receive an immigrant visa and
is otherwise admissible to the United States for permanent
residence, except in determining such admissibility, the
grounds for inadmissibility specified in section 212(a)(4) of
such Act (8 U.S.C. 1182(a)(4)) shall not apply.
(b) Aliens Described.--
(1) Principal aliens.--An alien is described in this
subsection if--
(A) the alien was the beneficiary of--
(i) a petition that was filed with the
Attorney General on or before September 11,
2001--
(I) under section 204 of the
Immigration and Nationality Act (8
U.S.C. 1154) to classify the alien as a
family-sponsored immigrant under
section 203(a) of such Act (8 U.S.C.
1153(a)) or as an employment-based
immigrant under section 203(b) of such
Act (8 U.S.C. 1153(b)); or
(II) under section 214(d) (8 U.S.C.
1184(d)) of such Act to authorize the
issuance of a nonimmigrant visa to the
alien under section 101(a)(15)(K) of
such Act (8 U.S.C. 1101(a)(15)(K)); or
(ii) an application for labor certification
under section 212(a)(5)(A) of such Act (8
U.S.C. 1182(a)(5)(A)) that was filed under
regulations of the Secretary of Labor on or
before such date; and
(B) such petition or application was revoked or
terminated (or otherwise rendered null), either before
or after its approval, due to a specified terrorist
activity that directly resulted in--
(i) the death or disability of the
petitioner, applicant, or alien beneficiary; or
(ii) loss of employment due to physical
damage to, or destruction of, the business of
the petitioner or applicant.
(2) Spouses and children.--
(A) In general.--An alien is described in this
subsection if--
(i) the alien was, on September 10, 2001,
the spouse or child of a principal alien
described in paragraph (1); and
(ii) the alien--
(I) is accompanying such principal
alien; or
(II) is following to join such
principal alien not later than
September 11, 2003.
(B) Construction.--For purposes of construing the
terms ``accompanying'' and ``following to join'' in
subparagraph (A)(ii), any death of a principal alien
that is described in paragraph (1)(B)(i) shall be
disregarded.
(3) Grandparents of orphans.--An alien is described in this
subsection if the alien is a grandparent of a child, both of
whose parents died as a direct result of a specified terrorist
activity, if either of such deceased parents was, on September
10, 2001, a citizen or national of the United States or an
alien lawfully admitted for permanent residence in the United
States.
(c) Priority Date.--Immigrant visas made available under this
section shall be issued to aliens in the order in which a petition on
behalf of each such alien is filed with the Attorney General under
subsection (a)(1), except that if an alien was assigned a priority date
with respect to a petition described in subsection (b)(1)(A)(i), the
alien may maintain that priority date.
(d) Numerical Limitations.--For purposes of the application of
sections 201 through 203 of the Immigration and Nationality Act (8
U.S.C. 1151-1153) in any fiscal year, aliens eligible to be provided
status under this section shall be treated as special immigrants
described in section 101(a)(27) of such Act (8 U.S.C. 1101(a)(27)) who
are not described in subparagraph (A), (B), (C), or (K) of such
section.
SEC. 212. EXTENSION OF FILING OR REENTRY DEADLINES.
(a) Automatic Extension of Nonimmigrant Status.--
(1) In general.--Notwithstanding section 214 of the
Immigration and Nationality Act (8 U.S.C. 1184), in the case of
an alien described in paragraph (2) who was lawfully present in
the United States as a nonimmigrant on September 10, 2001, the
alien may remain lawfully in the United States in the same
nonimmigrant status until the later of--
(A) the date such lawful nonimmigrant status
otherwise would have terminated if this subsection had
not been enacted; or
(B) 1 year after the death or onset of disability
described in paragraph (2).
(2) Aliens described.--
(A) Principal aliens.--An alien is described in
this paragraph if the alien was disabled as a direct
result of a specified terrorist activity.
(B) Spouses and children.--An alien is described in
this paragraph if the alien was, on September 10, 2001,
the spouse or child of--
(i) a principal alien described in
subparagraph (A); or
(ii) an alien who died as a direct result
of a specified terrorist activity.
(3) Authorized employment.--During the period in which a
principal alien or alien spouse is in lawful nonimmigrant
status under paragraph (1), the alien shall be provided an
``employment authorized'' endorsement or other appropriate
document signifying authorization of employment not later than
30 days after the alien requests such authorization.
(b) New Deadlines for Extension or Change of Nonimmigrant Status.--
(1) Filing delays.--In the case of an alien who was
lawfully present in the United States as a nonimmigrant on
September 10, 2001, if the alien was prevented from filing a
timely application for an extension or change of nonimmigrant
status as a direct result of a specified terrorist activity,
the alien's application shall be considered timely filed if it
is filed not later than 60 days after it otherwise would have
been due.
(2) Departure delays.--In the case of an alien who was
lawfully present in the United States as a nonimmigrant on
September 10, 2001, if the alien is unable timely to depart the
United States as a direct result of a specified terrorist
activity, the alien shall not be considered to have been
unlawfully present in the United States during the period
beginning on September 11, 2001, and ending on the date of the
alien's departure, if such departure occurs on or before
November 11, 2001.
(3) Special rule for aliens unable to return from abroad.--
(A) Principal aliens.--In the case of an alien who
was in a lawful nonimmigrant status on September 10,
2001, but who was not present in the United States on
such date, if the alien was prevented from returning to
the United States in order to file a timely application
for an extension of nonimmigrant status as a direct
result of a specified terrorist activity--
(i) the alien's application shall be
considered timely filed if it is filed not
later than 60 days after it otherwise would
have been due; and
(ii) the alien's lawful nonimmigrant status
shall be considered to continue until the later
of--
(I) the date such status otherwise
would have terminated if this
subparagraph had not been enacted; or
(II) the date that is 60 days after
the date on which the application
described in clause (i) otherwise would
have been due.
(B) Spouses and children.--In the case of an alien
who is the spouse or child of a principal alien
described in subparagraph (A), if the spouse or child
was in a lawful nonimmigrant status on September 10,
2001, the spouse or child may remain lawfully in the
United States in the same nonimmigrant status until the
later of--
(i) the date such lawful nonimmigrant
status otherwise would have terminated if this
subparagraph had not been enacted; or
(ii) the date that is 60 days after the
date on which the application described in
subparagraph (A) otherwise would have been due.
(c) Diversity Immigrants.--
(1) Waiver of fiscal year limitation.--Notwithstanding
section 203(e)(2) of the Immigration and Nationality Act (8
U.S.C. 1153(e)(2)), an immigrant visa number issued to an alien
under section 203(c) of such Act for fiscal year 2001 may be
used by the alien during the period beginning on October 1,
2001, and ending on April 1, 2002, if the alien establishes
that the alien was prevented from using it during fiscal year
2001 as a direct result of a specified terrorist activity.
(2) Worldwide level.--In the case of an alien entering the
United States as a lawful permanent resident, or adjusting to
that status, under paragraph (1), the alien shall be counted as
a diversity immigrant for fiscal year 2001 for purposes of
section 201(e) of the Immigration and Nationality Act (8 U.S.C.
1151(e)), unless the worldwide level under such section for
such year has been exceeded, in which case the alien shall be
counted as a diversity immigrant for fiscal year 2002.
(3) Treatment of family members of certain aliens.--In the
case of a principal alien issued an immigrant visa number under
section 203(c) of the Immigration and Nationality Act (8 U.S.C.
1153(c)) for fiscal year 2001, if such principal alien died as
a direct result of a specified terrorist activity, the aliens
who were, on September 10, 2001, the spouse and children of
such principal alien shall, if not otherwise entitled to an
immigrant status and the immediate issuance of a visa under
subsection (a), (b), or (c) of section 203 of such Act, be
entitled to the same status, and the same order of
consideration, that would have been provided to such alien
spouse or child under section 203(d) of such Act if the
principal alien were not deceased.
(d) Extension of Expiration of Immigrant Visas.--Notwithstanding
the limitations under section 221(c) of the Immigration and Nationality
Act (8 U.S.C. 1201(c)), in the case of any immigrant visa issued to an
alien that expires or expired before December 31, 2001, if the alien
was unable to effect entry to the United States as a direct result of a
specified terrorist activity, then the period of validity of the visa
is extended until December 31, 2001, unless a longer period of validity
is otherwise provided under this subtitle.
(e) Grants of Parole Extended.--In the case of any parole granted
by the Attorney General under section 212(d)(5) of the Immigration and
Nationality Act (8 U.S.C. 1182(d)(5)) that expires on a date on or
after September 11, 2001, if the alien beneficiary of the parole was
unable to return to the United States prior to the expiration date as a
direct result of a specified terrorist activity, the parole is deemed
extended for an additional 90 days.
(f) Voluntary Departure.--Notwithstanding section 240B of the
Immigration and Nationality Act (8 U.S.C. 1229c), if a period for
voluntary departure under such section expired during the period
beginning on September 11, 2001, and ending on October 11, 2001, such
voluntary departure period is deemed extended for an additional 30
days.
SEC. 213. HUMANITARIAN RELIEF FOR CERTAIN SURVIVING SPOUSES AND
CHILDREN.
(a) Treatment as Immediate Relatives.--Notwithstanding the second
sentence of section 201(b)(2)(A)(i) of the Immigration and Nationality
Act (8 U.S.C. 1151(b)(2)(A)(i)), in the case of an alien who was the
spouse of a citizen of the United States at the time of the citizen's
death and was not legally separated from the citizen at the time of the
citizen's death, if the citizen died as a direct result of a specified
terrorist activity, the alien (and each child of the alien) shall be
considered, for purposes of section 201(b) of such Act, to remain an
immediate relative after the date of the citizen's death, but only if
the alien files a petition under section 204(a)(1)(A)(ii) of such Act
within 2 years after such date and only until the date the alien
remarries.
(b) Spouses, Children, Unmarried Sons and Daughters of Lawful
Permanent Resident Aliens.--
(1) In general.--Any spouse, child, or unmarried son or
daughter of an alien described in paragraph (3) who is included
in a petition for classification as a family-sponsored
immigrant under section 203(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1153(a)(2)) that was filed by such
alien before September 11, 2001, shall be considered (if the
spouse, child, son, or daughter has not been admitted or
approved for lawful permanent residence by such date) a valid
petitioner for preference status under such section with the
same priority date as that assigned prior to the death
described in paragraph (3)(A). No new petition shall be
required to be filed. Such spouse, child, son, or daughter may
be eligible for deferred action and work authorization.
(2) Self-petitions.--Any spouse, child, or unmarried son or
daughter of an alien described in paragraph (3) who is not a
beneficiary of a petition for classification as a family-
sponsored immigrant under section 203(a)(2) of the Immigration
and Nationality Act may file a petition for such classification
with the Attorney General, if the spouse, child, son, or
daughter was present in the United States on September 11,
2001. Such spouse, child, son, or daughter may be eligible for
deferred action and work authorization.
(3) Aliens described.--An alien is described in this
paragraph if the alien--
(A) died as a direct result of a specified
terrorist activity; and
(B) on the day of such death, was lawfully admitted
for permanent residence in the United States.
(c) Applications for Adjustment of Status by Surviving Spouses and
Children of Employment-Based Immigrants.--
(1) In general.--Any alien who was, on September 10, 2001,
the spouse or child of an alien described in paragraph (2), and
who applied for adjustment of status prior to the death
described in paragraph (2)(A), may have such application
adjudicated as if such death had not occurred.
(2) Aliens described.--An alien is described in this
paragraph if the alien--
(A) died as a direct result of a specified
terrorist activity; and
(B) on the day before such death, was--
(i) an alien lawfully admitted for
permanent residence in the United States by
reason of having been allotted a visa under
section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)); or
(ii) an applicant for adjustment of status
to that of an alien described in clause (i),
and admissible to the United States for
permanent residence.
(d) Waiver of Public Charge Grounds.--In determining the
admissibility of any alien accorded an immigration benefit under this
section, the grounds for inadmissibility specified in section 212(a)(4)
of the Immigration and Nationality Act (8 U.S.C. 1182(a)(4)) shall not
apply.
SEC. 214. ``AGE-OUT'' PROTECTION FOR CHILDREN.
For purposes of the administration of the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.), in the case of an alien--
(1) whose 21st birthday occurs in September 2001, and who
is the beneficiary of a petition or application filed under
such Act on or before September 11, 2001, the alien shall be
considered to be a child for 90 days after the alien's 21st
birthday for purposes of adjudicating such petition or
application; and
(2) whose 21st birthday occurs after September 2001, and
who is the beneficiary of a petition or application filed under
such Act on or before September 11, 2001, the alien shall be
considered to be a child for 45 days after the alien's 21st
birthday for purposes of adjudicating such petition or
application.
SEC. 215. TEMPORARY ADMINISTRATIVE RELIEF.
The Attorney General, for humanitarian purposes or to ensure family
unity, may provide temporary administrative relief to any alien who--
(1) was lawfully present in the United States on September
10, 2001;
(2) was on such date the spouse, parent, or child of an
individual who died or was disabled as a direct result of a
specified terrorist activity; and
(3) is not otherwise entitled to relief under any other
provision of this subtitle.
SEC. 216. EVIDENCE OF DEATH, DISABILITY, OR LOSS OF EMPLOYMENT.
(a) In General.--The Attorney General shall establish appropriate
standards for evidence demonstrating, for purposes of this subtitle,
that any of the following occurred as a direct result of a specified
terrorist activity:
(1) Death.
(2) Disability.
(3) Loss of employment due to physical damage to, or
destruction of, a business.
(b) Waiver of Regulations.--The Attorney General shall carry out
subsection (a) as expeditiously as possible. The Attorney General is
not required to promulgate regulations prior to implementing this
subtitle.
SEC. 217. NO BENEFITS TO TERRORISTS OR FAMILY MEMBERS OF TERRORISTS.
Notwithstanding any other provision of this subtitle, nothing in
this subtitle shall be construed to provide any benefit or relief to--
(1) any individual culpable for a specified terrorist
activity; or
(2) any family member of any individual described in
paragraph (1).
SEC. 218. DEFINITIONS.
(a) Application of Immigration and Nationality Act Provisions.--
Except as otherwise specifically provided in this subtitle, the
definitions used in the Immigration and Nationality Act (excluding the
definitions applicable exclusively to title III of such Act) shall
apply in the administration of this subtitle.
(b) Specified Terrorist Activity.--For purposes of this subtitle,
the term ``specified terrorist activity'' means any terrorist activity
conducted against the Government or the people of the United States on
September 11, 2001.
TITLE III--CRIMINAL JUSTICE
Subtitle A--Substantive Criminal Law
SEC. 301. STATUTE OF LIMITATION FOR PROSECUTING TERRORISM OFFENSES.
(a) In General.--Section 3286 of title 18, United States Code, is
amended to read as follows:
``Sec. 3286. Terrorism offenses
``(a) An indictment may be found or an information instituted at
any time without limitation for any Federal terrorism offense or any of
the following offenses:
``(1) A violation of, or an attempt or conspiracy to
violate, section 32 (relating to destruction of aircraft or
aircraft facilities), 37(a)(1) (relating to violence at
international airports), 175 (relating to biological weapons),
229 (relating to chemical weapons), 351(a)-(d) (relating to
congressional, cabinet, and Supreme Court assassination and
kidnaping), 791 (relating to harboring terrorists), 831
(relating to nuclear materials), 844(f) or (i) when it relates
to bombing (relating to arson and bombing of certain property),
1114(1) (relating to protection of officers and employees of
the United States), 1116, if the offense involves murder
(relating to murder or manslaughter of foreign officials,
official guests, or internationally protected persons), 1203
(relating to hostage taking), 1751(a)-(d) (relating to
Presidential and Presidential staff assassination and
kidnaping), 2332(a)(1) (relating to certain homicides and other
violence against United States nationals occurring outside of
the United States), 2332a (relating to use of weapons of mass
destruction), 2332b (relating to acts of terrorism transcending
national boundaries) of this title.
``(2) Section 236 (relating to sabotage of nuclear
facilities or fuel) of the Atomic Energy Act of 1954 (42 U.S.C.
2284);
``(3) Section 601 (relating to disclosure of identities of
covert agents) of the National Security Act of 1947 (50 U.S.C.
421).
``(4) Section 46502 (relating to aircraft piracy) of title
49.
``(b) An indictment may be found or an information instituted
within 15 years after the offense was committed for any of the
following offenses:
``(1) Section 175b (relating to biological weapons), 842(m)
or (n) (relating to plastic explosives), 930(c) if it involves
murder (relating to possessing a dangerous weapon in a Federal
facility), 956 (relating to conspiracy to injure property of a
foreign government), 1030(a)(1), 1030(a)(5)(A), or 1030(a)(7)
(relating to protection of computers), 1362 (relating to
destruction of communication lines, stations, or systems), 1366
(relating to destruction of an energy facility), 1992 (relating
to trainwrecking), 2152 (relating to injury of fortifications,
harbor defenses, or defensive sea areas), 2155 (relating to
destruction of national defense materials, premises, or
utilities), 2156 (relating to production of defective national
defense materials, premises, or utilities), 2280 (relating to
violence against maritime navigation), 2281 (relating to
violence against maritime fixed platforms), 2339A (relating to
providing material support to terrorists), 2339B (relating to
providing material support to terrorist organizations), or
2340A (relating to torture).
``(2) Any of the following provisions of title 49: the
second sentence of section 46504 (relating to assault on a
flight crew with a dangerous weapon), section 46505(b)(3),
(relating to explosive or incendiary devices, or endangerment
of human life by means of weapons, on aircraft), section 46506
if homicide or attempted homicide is involved, or section
60123(b) (relating to destruction of interstate gas or
hazardous liquid pipeline facility) of title 49.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 213 of title 18, United States Code, is amended by amending the
item relating to section 3286 to read as follows:
``3286. Terrorism offenses.''.
(c) Application.--The amendments made by this section shall apply
to the prosecution of any offense committed before, on, or after the
date of enactment of this section.
SEC. 302. ALTERNATIVE MAXIMUM PENALTIES FOR TERRORISM CRIMES.
Section 3559 of title 18, United States Code, is amended by adding
after subsection (d) the following:
``(e) Authorized Terms of Imprisonment for Terrorism Crimes.--A
person convicted of any Federal terrorism offense may be sentenced to
imprisonment for any term of years or for life, notwithstanding any
maximum term of imprisonment specified in the law describing the
offense. The authorization of imprisonment under this subsection is
supplementary to, and does not limit, the availability of any other
penalty authorized by the law describing the offense, including the
death penalty, and does not limit the applicability of any mandatory
minimum term of imprisonment, including any mandatory life term,
provided by the law describing the offense.''.
SEC. 303. PENALTIES FOR TERRORIST CONSPIRACIES.
Chapter 113B of title 18, United States Code, is amended--
(1) by inserting after section 2332b the following:
``Sec. 2332c. Attempts and conspiracies
``(a) Except as provided in subsection (c), any person who attempts
or conspires to commit any Federal terrorism offense shall be subject
to the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or conspiracy.
``(b) Except as provided in subsection (c), any person who attempts
or conspires to commit any offense described in section 25(2) shall be
subject to the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or conspiracy.
``(c) A death penalty may not be imposed by operation of this
section.''; and
(2) in the table of sections at the beginning of the
chapter, by inserting after the item relating to section 2332b
the following new item:
``2332c. Attempts and conspiracies.''.
SEC. 304. TERRORISM CRIMES AS RICO PREDICATES.
Section 1961(1) of title 18, United States Code, is amended--
(1) by striking ``or (F)'' and inserting ``(F)''; and
(2) by striking ``financial gain.'' and inserting
``financial gain, or (G) any act that is a Federal terrorism
offense or is indictable under any of the following provisions
of law: section 32 (relating to destruction of aircraft or
aircraft facilities), 37(a)(1) (relating to violence at
international airports), 175 (relating to biological weapons),
229 (relating to chemical weapons), 351(a)-(d) (relating to
congressional, cabinet, and Supreme Court assassination and
kidnaping), 831 (relating to nuclear materials), 842(m) or (n)
(relating to plastic explosives), 844(f) or (i) when it
involves a bombing (relating to arson and bombing of certain
property), 930(c) when it involves an attack on a Federal
facility, 1114 when it involves murder (relating to protection
of officers and employees of the United States), 1116 when it
involves murder (relating to murder or manslaughter of foreign
officials, official guests, or internationally protected
persons), 1203 (relating to hostage taking), 1362 (relating to
destruction of communication lines, stations, or systems), 1366
(relating to destruction of an energy facility), 1751(a)-(d)
(relating to Presidential and Presidential staff assassination
and kidnaping), 1992 (relating to trainwrecking), 2280
(relating to violence against maritime navigation), 2281
(relating to violence against maritime fixed platforms), 2332a
(relating to use of weapons of mass destruction), 2332b
(relating to acts of terrorism transcending national
boundaries), 2339A (relating to providing material support to
terrorists), 2339B (relating to providing material support to
terrorist organizations), or 2340A (relating to torture) of
this title; section 236 (relating to sabotage of nuclear
facilities or fuel) of the Atomic Energy Act of 1954 (42 U.S.C.
2284); or section 46502 (relating to aircraft piracy) or
60123(b) (relating to destruction of interstate gas or
hazardous liquid pipeline facility) of title 49;''.
SEC. 305. BIOLOGICAL WEAPONS.
Chapter 10 of title 18, United States Code, is amended--
(1) in section 175--
(A) in subsection (b)--
(i) by striking, ``section, the'' and
inserting ``section--
``(1) the'';
(ii) by striking ``does not include'' and
inserting ``includes'';
(iii) by inserting ``other than'' after
``system for''; and
(iv) by striking ``purposes.'' and
inserting ``purposes, and
``(2) the terms biological agent and toxin do not encompass
any biological agent or toxin that is in its naturally-
occurring environment, if the biological agent or toxin has not
been cultivated, collected, or otherwise extracted from its
natural source.'';
(B) by redesignating subsection (b) as subsection
(c); and
(C) by inserting after subsection (a) the
following:
``(b) Additional Offense.--Whoever knowingly possesses any
biological agent, toxin, or delivery system of a type or in a quantity
that, under the circumstances, is not reasonably justified by a
prophylactic, protective, or other peaceful purpose, shall be fined
under this title, imprisoned not more than 10 years, or both.'';
(2) by inserting after section 175a the following:
``Sec. 175b. Possession by restricted persons
``(a) No restricted person described in subsection (b) shall ship
or transport in interstate or foreign commerce, or possess in or
affecting commerce, any biological agent or toxin, or receive any
biological agent or toxin that has been shipped or transported in
interstate or foreign commerce, if the biological agent or toxin is
listed as a select agent in subsection (j) of section 72.6 of title 42,
Code of Federal Regulations, pursuant to section 511(d)(1) of the
Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-
132), and is not exempted under subsection (h) of such section 72.6, or
Appendix A of part 72 of such title; except that the term select agent
does not include any such biological agent or toxin that is in its
naturally-occurring environment, if the biological agent or toxin has
not been cultivated, collected, or otherwise extracted from its natural
source.
``(b) As used in this section, the term `restricted person' means
an individual who--
``(1) is under indictment for a crime punishable by
imprisonment for a term exceeding 1 year;
``(2) has been convicted in any court of a crime punishable
by imprisonment for a term exceeding 1 year;
``(3) is a fugitive from justice;
``(4) is an unlawful user of any controlled substance (as
defined in section 102 of the Controlled Substances Act (21
U.S.C. 802));
``(5) is an alien illegally or unlawfully in the United
States;
``(6) has been adjudicated as a mental defective or has
been committed to any mental institution; or
``(7) is an alien (other than an alien lawfully admitted
for permanent residence) who is a national of a country as to
which the Secretary of State, pursuant to section 6(j) of the
Export Administration Act of 1979 (50 U.S.C. App. 2405(j)),
section 620A of chapter 1 of part M of the Foreign Assistance
Act of 1961 (22 U.S.C. 2371), or section 40(d) of chapter 3 of
the Arms Export Control Act (22 U.S.C. 2780(d)), has made a
determination that remains in effect that such country has
repeatedly provided support for acts of international
terrorism.
``(c) As used in this section, the term `alien' has the same
meaning as that term is given in section 1010(a)(3) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(3)), and the term `lawfully'
admitted for permanent residence has the same meaning as that term is
given in section 101(a)(20) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(20)).
``(d) Whoever knowingly violates this section shall be fined under
this title or imprisoned not more than ten years, or both, but the
prohibition contained in this section shall not apply with respect to
any duly authorized governmental activity under title V of the National
Security Act of 1947.''; and
(3) in the table of sections in the beginning of such
chapter, by inserting after the item relating to section 175a
the following:
``175b. Possession by restricted persons.''.
SEC. 306. SUPPORT OF TERRORISM THROUGH EXPERT ADVICE OR ASSISTANCE.
Section 2339A of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``a violation'' and all that
follows through ``49'' and inserting ``any Federal
terrorism offense or any offense described in section
25(2)''; and
(B) by striking ``violation,'' and inserting
``offense,''; and
(2) in subsection (b), by inserting ``expert advice or
assistance,'' after ``training,''.
SEC. 307. PROHIBITION AGAINST HARBORING.
(a) Title 18, United States Code, is amended by inserting before
section 792 the following:
``Sec. 791. Prohibition against harboring
``Whoever harbors or conceals any person who he knows has
committed, or is about to commit, an offense described in section 25(2)
or this title shall be fined under this title or imprisoned not more
than ten years or both. There is extraterritorial Federal jurisdiction
over any violation of this section or any conspiracy or attempt to
violate this section. A violation of this section or of such a
conspiracy or attempt may be prosecuted in any Federal judicial
district in which the underlying offense was committed, or in any other
Federal judicial district as provided by law.''.
(b) The table of sections at the beginning of chapter 37 of title
18, United States Code, is amended by inserting before the item
relating to section 792 the following:
``791. Prohibition against harboring.''.
SEC. 308. POST-RELEASE SUPERVISION OF TERRORISTS.
Section 3583 of title 18, United States Code, is amended by adding
at the end the following:
``(j) Supervised Release Terms for Terrorism Offenses.--
Notwithstanding subsection (b), the authorized terms of supervised
release for any Federal terrorism offense are any term of years or
life.''.
SEC. 309. DEFINITION.
(a) Chapter 1 of title 18, United States Code, is amended--
(1) by adding after section 24 a new section as follows:
``Sec. 25. Federal terrorism offense defined
``As used in this title, the term `Federal terrorism offense' means
an offense that is--
``(1) is calculated to influence or affect the conduct of
government by intimidation or coercion; or to retaliate against
government conduct; and
``(2) is a violation of, or an attempt or conspiracy to
violate- section 32 (relating to destruction of aircraft or
aircraft facilities), 37 (relating to violence at international
airports), 81 (relating to arson within special maritime and
territorial jurisdiction), 175, 175b (relating to biological
weapons), 229 (relating to chemical weapons), 351(a)-(d)
(relating to congressional, cabinet, and Supreme Court
assassination and kidnaping), 791 (relating to harboring
terrorists), 831 (relating to nuclear materials), 842(m) or (n)
(relating to plastic explosives), 844(f) or (i) (relating to
arson and bombing of certain property), 930(c), 956 (relating
to conspiracy to injure property of a foreign government),
1030(a)(1), 1030(a)(5)(A), or 1030(a)(7) (relating to
protection of computers), 1114 (relating to protection of
officers and employees of the United States), 1116 (relating to
murder or manslaughter of foreign officials, official guests,
or internationally protected persons), 1203 (relating to
hostage taking), 1361 (relating to injury of Government
property or contracts), 1362 (relating to destruction of
communication lines, stations, or systems), 1363 (relating to
injury to buildings or property within special maritime and
territorial jurisdiction of the United States), 1366 (relating
to destruction of an energy facility), 1751(a)-(d) (relating to
Presidential and Presidential staff assassination and
kidnaping), 1992, 2152 (relating to injury of fortifications,
harbor defenses, or defensive sea areas), 2155 (relating to
destruction of national defense materials, premises, or
utilities), 2156 (relating to production of defective national
defense materials, premises, or utilities), 2280 (relating to
violence against maritime navigation), 2281 (relating to
violence against maritime fixed platforms), 2332 (relating to
certain homicides and other violence against United States
nationals occurring outside of the United States), 2332a
(relating to use of weapons of mass destruction), 2332b
(relating to acts of terrorism transcending national
boundaries), 2339A (relating to providing material support to
terrorists), 2339B (relating to providing material support to
terrorist organizations), or 2340A (relating to torture);
``(3) section 236 (relating to sabotage of nuclear
facilities or fuel) of the Atomic Energy Act of 1954 (42 U.S.C.
2284);
``(4) section 601 (relating to disclosure of identities of
covert agents) of the National Security Act of 1947 (50 U.S.C.
421); or
``(5) any of the following provisions of title 49: section
46502 (relating to aircraft piracy), the second sentence of
section 46504 (relating to assault on a flight crew with a
dangerous weapon), section 46505(b)(3), (relating to explosive
or incendiary devices, or endangerment of human life by means
of weapons, on aircraft), section 46506 if homicide or
attempted homicide is involved, or section 60123(b) (relating
to destruction of interstate gas or hazardous liquid pipeline
facility) of title 49.''; and
(2) in the table of sections in the beginning of such
chapter, by inserting after the item relating to section 24 the
following:
``25. Federal terrorism offense defined.''.
(b) Section 2332b(g)(5)(B) of title 18, United States Code, is
amended by striking ``is a violation'' and all that follows through
``title 49'' and inserting ``is a Federal terrorism offense''.
(c) Section 2331 of title 18, United States Code, is amended--
(1) in paragraph (1)(B)--
(A) by inserting ``(or to have the effect)'' after
``intended''; and
(B) in clause (iii), by striking ``by assassination
or kidnapping'' and inserting ``(or any function
thereof) by mass destruction, assassination, or
kidnapping (or threat thereof)'';
(2) in paragraph (3), by striking ``and'';
(3) in paragraph (4), by striking the period and inserting
``; and''; and
(4) by inserting the following paragraph (4):
``(5) the term `domestic terrorism' means activities that--
``(A) involve acts dangerous to human life that are
a violation of the criminal laws of the United States
or of any State; and
``(B) appear to be intended (or to have the
effect)--
``(i) to intimidate or coerce a civilian
population;
``(ii) to influence the policy of a
government by intimidation or coercion; or
``(iii) to affect the conduct of a
government (or any function thereof) by mass
destruction, assassination, or kidnapping (or
threat thereof).''.
SEC. 310. CIVIL DAMAGES.
Section 2707(c) of title 18, United States Code, is amended by
striking ``$1,000'' and inserting ``$10,000''.
Subtitle B--Criminal Procedure
SEC. 351. SINGLE-JURISDICTION SEARCH WARRANTS FOR TERRORISM.
Rule 41(a) of the Federal Rules of Criminal Procedure is amended by
inserting after ``executed'' the following: ``and (3) in an
investigation of domestic terrorism or international terrorism (as
defined in section 2331 of title 18, United States Code), by a Federal
magistrate judge in any district court of the United States (including
a magistrate judge of such court), or any United States Court of
Appeals, having jurisdiction over the offense being investigated, for a
search of property or for a person within or outside the district''.
SEC. 352. DNA IDENTIFICATION OF TERRORISTS.
Section 3(d)(1) of the DNA Analysis Backlog Elimination Act of 2000
(42 U.S.C. 14135a(d)(1)) is amended--
(1) by redesignating subparagraph (G) as subparagraph (H);
and
(2) by inserting after subparagraph (F) the a new
subparagraph as follows:
``(G) Any Federal terrorism offense (as defined in section
25 of title 18, United States Code).''.
SEC. 353. GRAND JURY MATTERS.
Rule 6(e)(3)(C) of the Federal Rules of Criminal Procedure is
amended--
(1) by adding after clause (iv) the following:
``(v) when permitted by a court at the
request of an attorney for the government, upon
a showing that the matters pertain to
international or domestic terrorism (as defined
in section 2331 of title 18, United States
Code) or national security, to any Federal law
enforcement, intelligence, national security,
national defense, protective, immigration
personnel, or to the President or Vice
President of the United States, for the
performance of official duties.'';
(2) by striking ``or'' at the end of clause (iii); and
(3) by striking the period at the end of clause (iv) and
inserting ``; or''.
SEC. 354. EXTRATERRITORIALITY.
Chapter 113B of title 18, United States Code, is amended--
(1) in the heading for section 2338, by striking
``Exclusive'';
(2) in section 2338, by inserting ``There is
extraterritorial Federal jurisdiction over any Federal
terrorism offense and any offense under this chapter, in
addition to any extraterritorial jurisdiction that may exist
under the law defining the offense, if the person committing
the offense or the victim of the offense is a national of the
United States (as defined in section 101 of the Immigration and
Nationality Act) or if the offense is directed at the security
or interests of the United States.'' before ``The district
courts''; and
(3) in the table of sections at the beginning of such
chapter, by striking ``Exclusive'' in the item relating to
section 2338.
SEC. 355. JURISDICTION OVER CRIMES COMMITTED AT UNITED STATES
FACILITIES ABROAD.
Section 7 of title 18, United States Code, is amended by adding at
the end the following:
``(9)(A) With respect to offenses committed by or against a
United States national, as defined in section 1203(c) of this
title--
``(i) the premises of United States diplomatic,
consular, military, or other United States Government
missions or entities in foreign states, including the
buildings, parts of buildings, and the land appurtenant
or ancillary thereto, irrespective of ownership, used
for purposes of those missions or entities; and
``(ii) residences in foreign states and the land
appurtenant or ancillary thereto, irrespective of
ownership, used for purposes of those missions or
entities or used by United States personnel assigned to
those missions or entities, except that this paragraph
does not supercede any treaty or international
agreement in force on the date of the enactment of this
paragraph.
``(B) This paragraph does not apply with respect to an
offense committed by a person described in section 3261(a).''.
SEC. 356. SPECIAL AGENT AUTHORITIES.
(a) General Authority of Special Agents.--Section 37(a) of the
State Department Basic Authorities Act of 1956 (22 U.S.C. 2709(a)) is
amended--
(1) by striking paragraph (2) and inserting the following:
``(2) in the course of performing the functions set forth
in paragraphs (1) and (3), obtain and execute search and arrest
warrants, as well as obtain and serve subpoenas and summonses,
issued under the authority of the United States;'';
(2) in paragraph (3)(F) by inserting ``or President-elect''
after ``President''; and
(3) by striking paragraph (5) and inserting the following:
``(5) in the course of performing the functions set forth
in paragraphs (1) and (3), make arrests without warrant for any
offense against the United States committed in the presence of
the special agent, or for any felony cognizable under the laws
of the United States if the special agent has reasonable
grounds to believe that the person to be arrested has committed
or is committing such felony.''.
(b) Crimes.--Section 37 of such Act (22 U.S.C. 2709) is amended by
inserting after subsection (c) the following new subsections:
``(d) Interference With Agents.--Whoever knowingly and willfully
obstructs, resists, or interferes with a Federal law enforcement agent
engaged in the performance of the protective functions authorized by
this section shall be fined under title 18 or imprisoned not more than
one year, or both.
``(e) Persons Under Protection of Special Agents.--Whoever engages
in any conduct--
``(1) directed against an individual entitled to protection
under this section, and
``(2) which would constitute a violation of section 112 or
878 of title 18, United States Code, if such individual were a
foreign official, an official guest, or an internationally
protected person, shall be subject to the same penalties as are
provided for such conduct directed against an individual
subject to protection under such section of title 18.''.
TITLE IV--FINANCIAL INFRASTRUCTURE
SEC. 401. LAUNDERING THE PROCEEDS OF TERRORISM.
Section 1956(c)(7)(D) of title 18, United States Code, is amended
by inserting ``or 2339B'' after ``2339A''.
SEC. 402. MATERIAL SUPPORT FOR TERRORISM.
Section 2339A of title 18, United States Code, is amended--
(1) in subsection (a), by adding at the end the following
``A violation of this section may be prosecuted in any Federal
judicial district in which the underlying offense was
committed, or in any other Federal judicial district as
provided by law.''; and
(2) in subsection (b), by striking ``or other financial
securities'' and inserting ``or monetary instruments or
financial securities''.
SEC. 403. ASSETS OF TERRORIST ORGANIZATIONS.
Section 981(a)(1) of title 18, United States Code, is amended by
inserting after subparagraph (F) the following:
``(G) All assets, foreign or domestic--
``(i) of any person, entity, or organization
engaged in planning or perpetrating any act of domestic
terrorism or international terrorism (as defined in
section 2331) against the United States, citizens or
residents of the United States, or their property, and
all assets, foreign or domestic, affording any person a
source of influence over any such entity or
organization;
``(ii) acquired or maintained by any person for the
purpose of supporting, planning, conducting, or
concealing an act of domestic terrorism or
international terrorism (as defined in section 2331)
against the United States, citizens or residents of the
United States, or their property; or
``(iii) derived from, involved in, or used or
intended to be used to commit any act of domestic
terrorism or international terrorism (as defined in
section 2331) against the United States, citizens or
residents of the United States, or their property.''.
SEC. 404. TECHNICAL CLARIFICATION RELATING TO PROVISION OF MATERIAL
SUPPORT TO TERRORISM.
No provision of title IX of Public Law 106-387 shall be understood
to limit or otherwise affect section 2339A or 2339B of title 18, United
States Code.
SEC. 405. DISCLOSURE OF TAX INFORMATION IN TERRORISM AND NATIONAL
SECURITY INVESTIGATIONS.
(a) Disclosure Without a Request of Information Relating to
Terrorist Activities, Etc.--Paragraph (3) of section 6103(i) of the
Internal Revenue Code of 1986 (relating to disclosure of return
information to apprise appropriate officials of criminal activities or
emergency circumstances) is amended by adding at the end the following
new subparagraph:
``(C) Terrorist activities, etc.--
``(i) In general.--Except as provided in
paragraph (6), the Secretary may disclose in
writing return information (other than taxpayer
return information) that may be related to a
terrorist incident, threat, or activity to the
extent necessary to apprise the head of the
appropriate Federal law enforcement agency
responsible for investigating or responding to
such terrorist incident, threat, or activity.
The head of the agency may disclose such return
information to officers and employees of such
agency to the extent necessary to investigate
or respond to such terrorist incident, threat,
or activity.
``(ii) Disclosure to the department of
justice.--Returns and taxpayer return
information may also be disclosed to the
Attorney General under clause (i) to the extent
necessary for, and solely for use in preparing,
an application under paragraph (7)(D).
``(iii) Taxpayer identity.--For purposes of
this subparagraph, a taxpayer's identity shall
not be treated as taxpayer return information.
``(iv) Termination.--No disclosure may be
made under this subparagraph after December 31,
2003.''.
(b) Disclosure Upon Request of Information Relating to Terrorist
Activities, Etc.--Subsection (i) of section 6103 of such Code (relating
to disclosure to Federal officers or employees for administration of
Federal laws not relating to tax administration) is amended by
redesignating paragraph (7) as paragraph (8) and by inserting after
paragraph (6) the following new paragraph:
``(7) Disclosure upon request of information relating to
terrorist activities, etc.--
``(A) Disclosure to law enforcement agencies.--
``(i) In general.--Except as provided in
paragraph (6), upon receipt by the Secretary of
a written request which meets the requirements
of clause (iii), the Secretary may disclose
return information (other than taxpayer return
information) to officers and employees of any
Federal law enforcement agency who are
personally and directly engaged in the response
to or investigation of terrorist incidents,
threats, or activities.
``(ii) Disclosure to state and local law
enforcement agencies.--The head of any Federal
law enforcement agency may disclose return
information obtained under clause (i) to
officers and employees of any State or local
law enforcement agency but only if such agency
is part of a team with the Federal law
enforcement agency in such response or
investigation and such information is disclosed
only to officers and employees who are
personally and directly engaged in such
response or investigation.
``(iii) Requirements.--A request meets the
requirements of this clause if--
``(I) the request is made by the
head of any Federal law enforcement
agency (or his delegate) involved in
the response to or investigation of
terrorist incidents, threats, or
activities, and
``(II) the request sets forth the
specific reason or reasons why such
disclosure may be relevant to a
terrorist incident, threat, or
activity.
``(iv) Limitation on use of information.--
Information disclosed under this subparagraph
shall be solely for the use of the officers and
employees to whom such information is disclosed
in such response or investigation.
``(B) Disclosure to intelligence agencies.--
``(i) In general.--Except as provided in
paragraph (6), upon receipt by the Secretary of
a written request which meets the requirements
of clause (ii), the Secretary may disclose
return information (other than taxpayer return
information) to those officers and employees of
the Department of Justice, the Department of
the Treasury, and other Federal intelligence
agencies who are personally and directly
engaged in the collection or analysis of
intelligence and counterintelligence
information or investigation concerning
terrorists and terrorist organizations and
activities. For purposes of the preceding
sentence, the information disclosed under the
preceding sentence shall be solely for the use
of such officers and employees in such
investigation, collection, or analysis.
``(ii) Requirements.--A request meets the
requirements of this subparagraph if the
request--
``(I) is made by an individual
described in clause (iii), and
``(II) sets forth the specific
reason or reasons why such disclosure
may be relevant to a terrorist
incident, threat, or activity.
``(iii) Requesting individuals.--An
individual described in this subparagraph is an
individual--
``(I) who is an officer or employee
of the Department of Justice or the
Department of the Treasury who is
appointed by the President with the
advice and consent of the Senate or who
is the Director of the United States
Secret Service, and
``(II) who is responsible for the
collection and analysis of intelligence
and counterintelligence information
concerning terrorists and terrorist
organizations and activities.
``(iv) Taxpayer identity.--For purposes of
this subparagraph, a taxpayer's identity shall
not be treated as taxpayer return information.
``(C) Disclosure under ex parte orders.--
``(i) In general.--Except as provided in
paragraph (6), any return or return information
with respect to any specified taxable period or
periods shall, pursuant to and upon the grant
of an ex parte order by a Federal district
court judge or magistrate under clause (ii), be
open (but only to the extent necessary as
provided in such order) to inspection by, or
disclosure to, officers and employees of any
Federal law enforcement agency or Federal
intelligence agency who are personally and
directly engaged in any investigation, response
to, or analysis of intelligence and
counterintelligence information concerning any
terrorist activity or threats. Return or return
information opened pursuant to the preceding
sentence shall be solely for the use of such
officers and employees in the investigation,
response, or analysis, and in any judicial,
administrative, or grand jury proceedings,
pertaining to any such terrorist activity or
threat.
``(ii) Application for order.--The Attorney
General, the Deputy Attorney General, the
Associate Attorney General, any Assistant
Attorney General, or any United States attorney
may authorize an application to a Federal
district court judge or magistrate for the
order referred to in clause (i). Upon such
application, such judge or magistrate may grant
such order if he determines on the basis of the
facts submitted by the applicant that--
``(I) there is reasonable cause to
believe, based upon information
believed to be reliable, that the
taxpayer whose return or return
information is to be disclosed may be
connected to a terrorist activity or
threat,
``(II) there is reasonable cause to
believe that the return or return
information may be relevant to a matter
relating to such terrorist activity or
threat, and
``(III) the return or return
information is sought exclusively for
use in a Federal investigation,
analysis, or proceeding concerning
terrorist activity, terrorist threats,
or terrorist organizations.
``(D) Special rule for ex parte disclosure by the
irs.--
``(i) In general.--Except as provided in
paragraph (6), the Secretary may authorize an
application to a Federal district court judge
or magistrate for the order referred to in
subparagraph (C)(i). Upon such application,
such judge or magistrate may grant such order
if he determines on the basis of the facts
submitted by the applicant that the
requirements of subclauses (I) and (II) of
subparagraph (C)(ii) are met.
``(ii) Limitation on use of information.--
Information disclosed under clause (i)--
``(I) may be disclosed only to the
extent necessary to apprise the head of
the appropriate Federal law enforcement
agency responsible for investigating or
responding to a terrorist incident,
threat, or activity, and
``(II) shall be solely for use in a
Federal investigation, analysis, or
proceeding concerning terrorist
activity, terrorist threats, or
terrorist organizations.
The head of such Federal agency may disclose
such information to officers and employees of
such agency to the extent necessary to
investigate or respond to such terrorist
incident, threat, or activity.
``(E) Termination.--No disclosure may be made under
this paragraph after December 31, 2003.''.
(c) Conforming Amendments.--
(1) Section 6103(a)(2) of such Code is amended by inserting
``any local law enforcement agency receiving information under
subsection (i)(7)(A),'' after ``State,''.
(2) The heading of section 6103(i)(3) of such Code is
amended by inserting ``or terrorist'' after ``criminal''.
(3) Paragraph (4) of section 6103(i) of such Code is
amended--
(A) in subparagraph (A) by inserting ``or (7)(C)''
after ``paragraph (1)'', and
(B) in subparagraph (B) by striking ``or (3)(A)''
and inserting ``(3)(A) or (C), or (7)''.
(4) Paragraph (6) of section 6103(i) of such Code is
amended--
(A) by striking ``(3)(A)'' and inserting ``(3)(A)
or (C)'', and
(B) by striking ``or (7)'' and inserting ``(7), or
(8)''.
(5) Section 6103(p)(3) of such Code is amended--
(A) in subparagraph (A) by striking ``(7)(A)(ii)''
and inserting ``(8)(A)(ii)'', and
(B) in subparagraph (C) by striking
``(i)(3)(B)(i)'' and inserting ``(i)(3)(B)(i) or
(7)(A)(ii)''.
(6) Section 6103(p)(4) of such Code is amended--
(A) in the matter preceding subparagraph (A)--
(i) by striking ``or (5),'' the first place
it appears and inserting ``(5), or (7),'', and
(ii) by striking ``(i)(3)(B)(i)'' and
inserting ``(i)(3)(B)(i) or (7)(A)(ii)'', and
(B) in subparagraph (F)(ii) by striking ``or (5),''
the first place it appears and inserting ``(5) or
(7),''.
(7) Section 6103(p)(6)(B)(i) of such Code is amended by
striking ``(i)(7)(A)(ii)'' and inserting ``(i)(8)(A)(ii)''.
(8) Section 7213(a)(2) of such Code is amended by striking
``(i)(3)(B)(i),'' and inserting ``(i)(3)(B)(i) or
(7)(A)(ii),''.
(e) Effective Date.--The amendments made by this section shall
apply to disclosures made on or after the date of the enactment of this
Act.
SEC. 406. EXTRATERRITORIAL JURISDICTION.
Section 1029 of title 18, United States Code, is amended by adding
at the end the following:
``(h) Any person who, outside the jurisdiction of the United
States, engages in any act that, if committed within the jurisdiction
of the United States, would constitute an offense under subsection (a)
or (b) of this section, shall be subject to the fines, penalties,
imprisonment, and forfeiture provided in this title if--
``(1) the offense involves an access device issued, owned,
managed, or controlled by a financial institution, account
issuer, credit card system member, or other entity within the
jurisdiction of the United States; and
``(2) the person transports, delivers, conveys, transfers
to or through, or otherwise stores, secrets, or holds within
the jurisdiction of the United States, any article used to
assist in the commission of the offense or the proceeds of such
offense or property derived therefrom.''.
TITLE V--EMERGENCY AUTHORIZATIONS
SEC. 501. OFFICE OF JUSTICE PROGRAMS.
(a) In connection with the airplane hijackings and terrorist acts
(including, without limitation, any related search, rescue, relief,
assistance, or other similar activities) that occurred on September 11,
2001, in the United States, amounts transferred to the Crime Victims
Fund from the Executive Office of the President or funds appropriated
to the President shall not be subject to any limitation on obligations
from amounts deposited or available in the Fund.
(b) Section 112 of title I of section 101(b) of division A of
Public Law 105-277 and section 108(a) of the Departments of Commerce,
Justice, and State, The Judiciary, and Related Agencies Appropriations
Act, 2000 (H.R. 3421 of the 106th Congress, as enacted into law by
section 1000(a)(1) of Public Law 106-113; Appendix A; 113 Stat. 1501A-
20) are amended--
(1) after ``that Office'', each place it occurs, by
inserting ``(including, notwithstanding any contrary provision
of law (unless the same should expressly refer to this
section), any organization that administers any program
established in title I of Public Law 90-351)''; and
(2) by inserting ``functions, including any'' after
``all''.
(c) Section 1404B(b) of the Victims of Crime Act of 1984 (42 U.S.C.
10603b) is amended by inserting ``, to victim service organizations, to
public agencies (including Federal, State, or local governments), and
to non-governmental organizations that provide assistance to victims of
crime,'' after ``programs''.
(d) Section 1 of Public Law 107-37 is amended--
(1) by inserting ``(containing identification of all
eligible payees of benefits under section 1201)'' before ``by
a'';
(2) by inserting ``producing permanent and total
disability'' after ``suffered a catastrophic injury''; and
(3) by striking ``1201(a)'' and inserting ``1201''.
SEC. 502. ATTORNEY GENERAL'S AUTHORITY TO PAY REWARDS.
(a) In General.--(1) Title 18, United States Code, is amended by
striking sections 3059 through 3059B and inserting the following:
``Sec. 3059. Rewards and appropriations therefor
``(a) In General.--Subject to subsection (b), the Attorney General
may pay rewards in accordance with procedures and regulations
established or issued by the Attorney General.
``(b) Limitations.-- The following limitations apply with respect
to awards under subsection (a):
``(1) No such reward, other than in connection with a
terrorism offense or as otherwise specifically provided by law,
shall exceed $2,000,000.
``(2) No such reward of $250,000 or more may be made or
offered without the personal approval of either the Attorney
General or the President.
``(3) The Attorney General shall give written notice to the
Chairmen and ranking minority members of the Committees on
Appropriations and the Judiciary of the Senate and the House of
Representatives not later than 30 days after the approval of a
reward under paragraph (2);
``(4) Any executive agency or military department (as
defined, respectively, in sections 105 and 102 of title 5) may
provide the Attorney General with funds for the payment of
rewards.
``(5) Neither the failure to make or authorize such a
reward nor the amount of any such reward made or authorized
shall be subject to judicial review.
``(c) Definition.--In this section, the term `reward' means a
payment pursuant to public advertisements for assistance to the
Department of Justice.''.
(2) The items relating to sections 3059A through 3059B in the table
of sections at the beginning of chapter 203 of title 18, United States
Code, are repealed.
(b) Conforming Amendments.----
(1) Section 3075 of title 18, United States Code, and that
portion of section 3072 of title 18, United States Code, that
follows the first sentence, are repealed.
(2) Public Law 101-647 is amended--
(A) in section 2565 (12 U.S.C. 4205)--
(i) by striking all the matter after
``section 2561,'' in subsection (c)(1) and
inserting ``the Attorney General may, in the
Attorney General's discretion, pay a reward to
the declaring.''; and
(ii) by striking subsection (e); and
(B) by striking section 2569 (12 U.S.C. 4209).
SEC. 503. LIMITED AUTHORITY TO PAY OVERTIME.
The matter under the headings ``Immigration And Naturalization
Service: Salaries and Expenses, Enforcement And Border Affairs'' and
``Immigration And Naturalization Service: Salaries and Expenses,
Citizenship And Benefits, Immigration Support And Program Direction''
in the Department of Justice Appropriations Act, 2001 (as enacted into
law by Appendix B (H.R. 5548) of Public Law 106-553 (114 Stat. 2762A-58
to 2762A-59)) is amended by striking each place it occurs: ``Provided''
and all that follows through ``That none of the funds available to the
Immigration and Naturalization Service shall be available to pay any
employee overtime pay in an amount in excess of $30,000 during the
calendar year beginning January 1, 2001:''.
SEC. 504. DEPARTMENT OF STATE REWARD AUTHORITY.
(a) Changes in Reward Authority.--Section 36 of the State
Department Basic Authorities Act of 1956 (22 U.S.C. 2708) is amended--
(1) in subsection (b)--
(A) by striking ``or'' at the end of paragraph (4);
(B) by striking the period at the end of paragraph
(5) and inserting ``, including by dismantling an
organization in whole or significant part; or''; and
(C) by adding at the end the following new
paragraph:
``(6) the identification or location of an individual who
holds a leadership position in a terrorist organization.'';
(2) in subsection (d), by striking paragraphs (2) and (3)
and redesignating paragraph (4) as paragraph (2); and
(3) by amending subsection (e)(1) to read as follows:
``(1) Amount of award.--
``(A) Except as provided in subparagraph (B), no
reward paid under this section may exceed $10,000,000.
``(B) The Secretary of State may authorize the
payment of an award not to exceed $25,000,000 if the
Secretary determines that payment of an award exceeding
the amount under subparagraph (A) is important to the
national interest of the United States.''.
(b) Sense of Congress Regarding Rewards Relating to the September
11, 2001 Attack.--It is the sense of the Congress that the Secretary of
State should use the authority of section 36 of the State Department
Basic Authorities Act of 1956, as amended by subsection (a), to offer a
reward of $25,000,000 for Osama bin Laden and other leaders of the
September 11, 2001 attack on the United States.
SEC. 505. AUTHORIZATION OF FUNDS FOR DEA POLICE TRAINING IN SOUTH AND
CENTRAL ASIA.
In addition to amounts otherwise available to carry out section 481
of the Foreign Assistance Act of 1961 (22 U.S.C. 2291), there is
authorized to be appropriated to the President not less than $5,000,000
for fiscal year 2002 for regional antidrug training in the Republic of
Turkey by the Drug Enforcement Administration for police, as well as
increased precursor chemical control efforts in the South and Central
Asia region.
SEC. 506. PUBLIC SAFETY OFFICER BENEFITS.
(a) In General.--Section 1201(a) of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3796) is amended by
striking ``$100,000'' and inserting ``$250,000''.
(b) Effective Date.--The amendment made by this section shall apply
to any death or disability occurring on or after January 1, 2001.
TITLE VI--DAM SECURITY
SEC. 601. SECURITY OF RECLAMATION DAMS, FACILITIES, AND RESOURCES.
Section 2805(a) of the Reclamation Recreation Management Act of
1992 (16 U.S.C. 460l-33(a)) is amended by adding at the end the
following:
``(3) Any person who violates any such regulation which is issued
pursuant to this Act shall be fined under title 18, United States Code,
imprisoned not more than 6 months, or both. Any person charged with a
violation of such regulation may be tried and sentenced by any United
States magistrate judge designated for that purpose by the court by
which such judge was appointed, in the same manner and subject to the
same conditions and limitations as provided for in section 3401 of
title 18, United States Code.
``(4) The Secretary may--
``(A) authorize law enforcement personnel from the
Department of the Interior to act as law enforcement officers
to maintain law and order and protect persons and property
within a Reclamation project or on Reclamation lands;
``(B) authorize law enforcement personnel of any other
Federal agency that has law enforcement authority, with the
exception of the Department of Defense, or law enforcement
personnel of any State or local government, including Indian
tribes, when deemed economical and in the public interest, and
with the concurrence of that agency or that State or local
government, to act as law enforcement officers within a
Reclamation project or on Reclamation lands with such
enforcement powers as may be so assigned them by the Secretary
to carry out the regulations promulgated under paragraph (2);
``(C) cooperate with any State or local government,
including Indian tribes, in the enforcement of the laws or
ordinances of that State or local government; and
``(D) provide reimbursement to a State or local government,
including Indian tribes, for expenditures incurred in
connection with activities under subparagraph (B).
``(5) Officers or employees designated or authorized by the
Secretary under paragraph (4) are authorized to--
``(A) carry firearms within a Reclamation project or on
Reclamation lands and make arrests without warrants for any
offense against the United States committed in their presence,
or for any felony cognizable under the laws of the United
States if they have reasonable grounds to believe that the
person to be arrested has committed or is committing such a
felony, and if such arrests occur within a Reclamation project
or on Reclamation lands or the person to be arrested is fleeing
therefrom to avoid arrest;
``(B) execute within a Reclamation project or on
Reclamation lands any warrant or other process issued by a
court or officer of competent jurisdiction for the enforcement
of the provisions of any Federal law or regulation issued
pursuant to law for an offense committed within a Reclamation
project or on Reclamation lands; and
``(C) conduct investigations within a Reclamation project
or on Reclamation lands of offenses against the United States
committed within a Reclamation project or on Reclamation lands,
if the Federal law enforcement agency having investigative
jurisdiction over the offense committed declines to investigate
the offense or concurs with such investigation.
``(6)(A) Except as otherwise provided in this paragraph, a law
enforcement officer of any State or local government, including Indian
tribes, designated to act as a law enforcement officer under paragraph
(4) shall not be deemed a Federal employee and shall not be subject to
the provisions of law relating to Federal employment, including those
relating to hours of work, rates of compensation, employment
discrimination, leave, unemployment compensation, and Federal benefits.
``(B) For purposes of chapter 171 of title 28, United States Code,
popularly known as the Federal Tort Claims Act, a law enforcement
officer of any State or local government, including Indian tribes,
shall, when acting as a designated law enforcement officer under
paragraph (4) and while under Federal supervision and control, and only
when carrying out Federal law enforcement responsibilities, be
considered a Federal employee.
``(C) For purposes of subchapter I of chapter 81 of title 5, United
States Code, relating to compensation to Federal employees for work
injuries, a law enforcement officer of any State or local government,
including Indian tribes, shall, when acting as a designated law
enforcement officer under paragraph (4) and while under Federal
supervision and control, and only when carrying out Federal law
enforcement responsibilities, be deemed a civil service employee of the
United States within the meaning of the term `employee' as defined in
section 8101 of title 5, and the provisions of that subchapter shall
apply. Benefits under this subchapter shall be reduced by the amount of
any entitlement to State or local workers' compensation benefits
arising out of the same injury or death.
``(7) Nothing in paragraphs (3) through (9) shall be construed or
applied to limit or restrict the investigative jurisdiction of any
Federal law enforcement agency, or to affect any existing right of a
State or local government, including Indian tribes, to exercise civil
and criminal jurisdiction within a Reclamation project or on
Reclamation lands.
``(8) For the purposes of this subsection, the term `law
enforcement personnel' means employees of a Federal, State, or local
government agency, including an Indian tribal agency, who have
successfully completed law enforcement training approved by the
Secretary and are authorized to carry firearms, make arrests, and
execute service of process to enforce criminal laws of their employing
jurisdiction.
``(9) The law enforcement authorities provided for in this
subsection may be exercised only pursuant to rules and regulations
promulgated by the Secretary and approved by the Attorney General.''.
TITLE VII--MISCELLANEOUS
SEC. 701. EMPLOYMENT OF TRANSLATORS BY THE FEDERAL BUREAU OF
INVESTIGATION.
(a) Authority.--The Director of the Federal Bureau of Investigation
is authorized to expedite the employment of personnel as translators to
support counterterrorism investigations and operations without regard
to applicable Federal personnel requirements and limitations.
(b) Security Requirements.--The Director of the Federal Bureau of
Investigation shall establish such security requirements as are
necessary for the personnel employed as translators.
(c) Report.--The Attorney General shall report to the Committees on
the Judiciary of the House of Representatives and the Senate on--
(1) the number of translators employed by the FBI and other
components of the Department of Justice;
(2) any legal or practical impediments to using translators
employed by other Federal State, or local agencies, on a full,
part-time, or shared basis; and
(3) the needs of the FBI for specific translation services
in certain languages, and recommendations for meeting those
needs.
SEC. 702. REVIEW OF THE DEPARTMENT OF JUSTICE.
(a) Appointment of Deputy Inspector General for Civil Rights, Civil
Liberties, and the Federal Bureau of Investigation.--The Inspector
General of the Department of Justice shall appoint a Deputy Inspector
General for Civil Rights, Civil Liberties, and the Federal Bureau of
Investigation (hereinafter in this section referred to as the
``Deputy'').
(b) Civil Rights and Civil Liberties Review.--The Deputy shall--
(1) review information alleging abuses of civil rights,
civil liberties, and racial and ethnic profiling by government
employees and officials including employees and officials of
the Department of Justice;
(2) make public through the Internet, radio, television,
and newspaper advertisements information on the
responsibilities and functions of, and how to contact, the
Deputy; and
(3) submit to the Committee on the Judiciary of the House
of Representatives and the Committee on the Judiciary of the
Senate on a semi-annual basis a report on the implementation of
this subsection and detailing any abuses described in paragraph
(1), including a description of the use of funds appropriations
used to carry out this subsection.
(c) Inspector General Oversight Plan for the Federal Bureau of
Investigation.--Not later than 30 days after the date of the enactment
of this Act, the Inspector General of the Department of Justice shall
submit to the Congress a plan for oversight of the Federal Bureau of
Investigation. The Inspector General shall consider the following
activities for inclusion in such plan:
(1) Financial systems.--Auditing the financial systems,
information technology systems, and computer security systems
of the Federal Bureau of Investigation.
(2) Programs and processes.--Auditing and evaluating
programs and processes of the Federal Bureau of Investigation
to identify systemic weaknesses or implementation failures and
to recommend corrective action.
(3) Internal affairs offices.--Reviewing the activities of
internal affairs offices of the Federal Bureau of
Investigation, including the Inspections Division and the
Office of Professional Responsibility.
(4) Personnel.--Investigating allegations of serious
misconduct by personnel of the Federal Bureau of Investigation.
(5) Other programs and operations.--Reviewing matters
relating to any other program or and operation of the Federal
Bureau of Investigation that the Inspector General determines
requires review.
(6) Resources.--Identifying resources needed by the
Inspector General to implement such plan.
(d) Review of Investigative Tools.--Not later than August 31, 2003,
the Deputy shall review the implementation, use, and operation
(including the impact on civil rights and liberties) of the law
enforcement and intelligence authorities contained in title I of this
Act and provide a report to the President and Congress.
SEC. 703. FEASIBILITY STUDY ON USE OF BIOMETRIC IDENTIFIER SCANNING
SYSTEM WITH ACCESS TO THE FBI INTEGRATED AUTOMATED
FINGERPRINT IDENTIFICATION SYSTEM AT OVERSEAS
CONSULAR POSTS AND POINTS OF ENTRY TO THE UNITED
STATES.
(a) In General.--The Attorney General, in consultation with the
Secretary of State and the Secretary of Transportation, shall conduct a
study on the feasibility of utilizing a biometric identifier
(fingerprint) scanning system, with access to the database of the
Federal Bureau of Investigation Integrated Automated Fingerprint
Identification System, at consular offices abroad and at points of
entry into the United States to enhance the ability of State Department
and immigration officials to identify aliens who may be wanted in
connection with criminal or terrorist investigations in the United
States or abroad prior to the issuance of visas or entry into the
United States.
(b) Report to Congress.--Not later than 90 days after the date of
the enactment of this Act, the Attorney General shall submit a report
summarizing the findings of the study authorized under subsection (a)
to the Committee on International Relations and the Committee on the
Judiciary of the House of Representatives and the Committee on Foreign
Relations and the Committee on the Judiciary of the Senate.
SEC. 704. STUDY OF ACCESS.
(a) In General.--Not later than December 31, 2002, the Federal
Bureau of Investigation shall study and report to Congress on the
feasibility of providing to airlines access via computer to the names
of passengers who are suspected of terrorist activity by Federal
officials.
(b) Authorization.--There are authorized to be appropriated for
fiscal years 2002 though 2003 not more than $250,000 to carry out
subsection (a).
SEC. 705. ENFORCEMENT OF CERTAIN ANTI-TERRORISM JUDGMENTS.
(a) Short Title.--This section may be cited as the ``Justice for
Victims of Terrorism Act''.
(b) Definition.--
(1) In general.--Section 1603(b) of title 28, United States
Code, is amended--
(A) in paragraph (3) by striking the period and
inserting ``; and'';
(B) by redesignating paragraphs (1), (2), and (3)
as subparagraphs (A), (B), and (C), respectively (and
by moving the margins 2 em spaces to the right);
(C) by striking ``(b)'' through ``entity--'' and
inserting the following:
``(b) An `agency or instrumentality of a foreign state' means--
``(1) any entity--''; and
(D) by adding at the end the following:
``(2) for purposes of sections 1605(a)(7) and 1610(a)(7)
and (f), any entity as defined under subparagraphs (A) and (B)
of paragraph (1), and subparagraph (C) of paragraph (1) shall
not apply.''.
(2) Technical and conforming amendment.--Section 1391(f)(3)
of title 28, United States Code, is amended by striking
``1603(b)'' and inserting ``1603(b)(1)''.
(c) Enforcement of Judgments.--Section 1610(f) of title 28, United
States Code, is amended--
(1) in paragraph (1)--
(A) in subparagraph (A) by striking ``(including
any agency or instrumentality or such state)'' and
inserting ``(including any agency or instrumentality of
such state), except to the extent of any punitive
damages awarded''; and
(B) by adding at the end the following:
``(C) Notwithstanding any other provision of law, moneys due from
or payable by the United States (including any agency or
instrumentality thereof) to any state against which a judgment is
pending under section 1605(a)(7) shall be subject to attachment and
execution with respect to that judgment, in like manner and to the same
extent as if the United States were a private person, except to the
extent of any punitive damages awarded.''; and
(2) by striking paragraph (3) and adding the following:
``(3)(A) Subject to subparagraph (B), upon determining on an asset-
by-asset basis that a waiver is necessary in the national security
interest, the President may waive this subsection in connection with
(and prior to the enforcement of) any judicial order directing
attachment in aid of execution or execution against any property
subject to the Vienna Convention on Diplomatic Relations or the Vienna
Convention on Consular Relations.
``(B) A waiver under this paragraph shall not apply to--
``(i) if property subject to the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular
Relations has been used for any nondiplomatic purpose
(including use as rental property), the proceeds of such use;
or
``(ii) if any asset subject to the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular
Relations is sold or otherwise transferred for value to a third
party, the proceeds of such sale or transfer.
``(C) In this paragraph, the term `property subject to the Vienna
Convention on Diplomatic Relations or the Vienna Convention on Consular
Relations' and the term `asset subject to the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular Relations'
mean any property or asset, respectively, the attachment in aid of
execution or execution of which would result in a violation of an
obligation of the United States under the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular Relations, as
the case may be.
``(4) For purposes of this subsection, all assets of any agency or
instrumentality of a foreign state shall be treated as assets of that
foreign state.''.
(d) Effective Date.--The amendments made by this section shall
apply to any claim for which a foreign state is not immune under
section 1605(a)(7) of title 28, United States Code, arising before, on,
or after the date of the enactment of this Act.
(e) Paygo Adjustment.--The Director of the Office of Management and
Budget shall not make any estimates of changes in direct spending
outlays and receipts under section 252(d) of the Balanced Budget and
Emergency Deficit Control Act of 1985 (2 U.S.C. 902(d)) for any fiscal
year resulting from the enactment of this section.
TITLE VIII--PRIVATE SECURITY OFFICER QUALITY ASSURANCE
SEC. 801. SHORT TITLE.
This title may be cited as the ``Private Security Officer Quality
Assurance Act of 2001''.
SEC. 802. FINDINGS.
Congress finds that--
(1) employment of private security officers in the United
States is growing rapidly;
(2) the private security industry provides numerous
opportunities for entry-level job applicants, including
individuals suffering from unemployment due to economic
conditions or dislocations;
(3) sworn law enforcement officers provide significant
services to the citizens of the United States in its public
areas, and are only supplemented by private security officers
who provide prevention and reporting services in support of,
but not in place of, regular sworn police;
(4) given the growth of large private shopping malls, and
the consequent reduction in the number of public shopping
streets, the American public is more likely to have contact
with private security personnel in the course of a day than
with sworn law enforcement officers;
(5) regardless of the differences in their duties, skill,
and responsibilities, the public has difficulty in discerning
the difference between sworn law enforcement officers and
private security personnel; and
(6) the American public demands the employment of
qualified, well-trained private security personnel as an
adjunct, but not a replacement for sworn law enforcement
officers.
SEC. 803. BACKGROUND CHECKS.
(a) In General.--An association of employers of private security
officers, designated for the purpose of this section by the Attorney
General, may submit fingerprints or other methods of positive
identification approved by the Attorney General, to the Attorney
General on behalf of any applicant for a State license or certificate
of registration as a private security officer or employer of private
security officers. In response to such a submission, the Attorney
General may, to the extent provided by State law conforming to the
requirements of the second paragraph under the heading ``Federal Bureau
of Investigation'' and the subheading ``Salaries and Expenses'' in
title II of Public Law 92-544 (86 Stat. 1115), exchange, for licensing
and employment purposes, identification and criminal history records
with the State governmental agencies to which such applicant has
applied.
(b) Regulations.--The Attorney General may prescribe such
regulations as may be necessary to carry out this section, including
measures relating to the security, confidentiality, accuracy, use, and
dissemination of information and audits and recordkeeping and the
imposition of fees necessary for the recovery of costs.
(c) Report.--The Attorney General shall report to the Senate and
House Committees on the Judiciary 2 years after the date of enactment
of this Act on the number of inquiries made by the association of
employers under this section and their disposition.
SEC. 804. SENSE OF CONGRESS.
It is the sense of Congress that States should participate in the
background check system established under section 803.
SEC. 805. DEFINITIONS.
As used in this title--
(1) the term ``employee'' includes an applicant for
employment;
(2) the term ``employer'' means any person that--
(A) employs one or more private security officers;
or
(B) provides, as an independent contractor, for
consideration, the services of one or more private
security officers (possibly including oneself);
(3) the term ``private security officer''--
(A) means--
(i) an individual who performs security
services, full or part time, for consideration
as an independent contractor or an employee,
whether armed or unarmed and in uniform or
plain clothes whose primary duty is to perform
security services, or
(ii) an individual who is an employee of an
electronic security system company who is
engaged in one or more of the following
activities in the State: burglar alarm
technician, fire alarm technician, closed
circuit television technician, access control
technician, or security system monitor; but
(B) does not include--
(i) sworn police officers who have law
enforcement powers in the State,
(ii) attorneys, accountants, and other
professionals who are otherwise licensed in the
State,
(iii) employees whose duties are primarily
internal audit or credit functions,
(iv) persons whose duties may incidentally
include the reporting or apprehension of
shoplifters or trespassers, or
(v) an individual on active duty in the
military service;
(4) the term ``certificate of registration'' means a
license, permit, certificate, registration card, or other
formal written permission from the State for the person to
engage in providing security services;
(5) the term ``security services'' means the performance of
one or more of the following:
(A) the observation or reporting of intrusion,
larceny, vandalism, fire or trespass;
(B) the deterrence of theft or misappropriation of
any goods, money, or other item of value;
(C) the observation or reporting of any unlawful
activity;
(D) the protection of individuals or property,
including proprietary information, from harm or
misappropriation;
(E) the control of access to premises being
protected;
(F) the secure movement of prisoners;
(G) the maintenance of order and safety at
athletic, entertainment, or other public activities;
(H) the provision of canine services for protecting
premises or for the detection of any unlawful device or
substance; and
(I) the transportation of money or other valuables
by armored vehicle; and
(6) the term ``State'' means any of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, the
United States Virgin Islands, American Samoa, Guam, and the
Commonwealth of the Northern Mariana Islands.
Purpose and Summary
H.R. 2975, the ``Provide Appropriate Tools Required to
Intercept and Obstruct Terrorism (PATRIOT) Act of 2001,''
provides enhanced investigative tools and improves information
sharing for the law enforcement and intelligence communities to
combat terrorism and terrorist-related crimes. The enhanced law
enforcement tools and information sharing-provisions will
assist in the prevention of future terrorist activities and the
preliminary acts and crimes which further such activities. To
protect the delicate balance between law enforcement and civil
liberties, the bill provides additional government reporting
requirements, disciplinary actions for abuse, and civil
penalties.
Background and Need for the Legislation
On September 11, 2001, the United States was attacked by
terrorist. After the attacks the country became aware of the
need to better defend and protect the nation, liberty and
citizens within our own borders. There are several key
legislative changes needed to mobilize the nation against
terrorism and to assist law enforcement and the intelligence
community to determine who carried out the horrific acts of
Tuesday, September 11, 2001, and to bring our criminal
investigative capabilities to prevent future attacks.
Hearings
On September 24, 2001, the Committee on the Judiciary held
one hearing on the Administration's proposed legislation the
``Mobilization Against Terrorism Act of 2001,'' which formed
the basis of H.R. 2975, the ``Provide Appropriate Tools
Required to Intercept and Obstruct Terrorism (PATRIOT) Act of
2001.'' Testimony was received from four witnesses,
representing the Department of Justice. The witnesses were: The
Honorable John Aschroft, Attorney General; Honorable Michael
Chertoff, Assistant Attorney General for the Criminal Division;
Honorable Larry Thompson, Deputy Attorney General; and
Honorable Viet Dinh, Assistant Attorney General for Legal
Policy.
Committee Consideration
On October 3, 2001, the Committee met in open session and
ordered favorably reported the bill H.R. 2975, as amended, by a
36-0 vote, a quorum being present.
Votes of the Committee
(1) An amendment was offered by Mr. Boucher (for himself,
Mr. Goodlatte, and Mr. Cannon) to insert language at the end of
title I that states ``Nothing in this Act shall impose any
additional technical obligation or requirement on a provider of
wire or electronic communication service or other person to
furnish facilities, services or technical assistance.'' The
amendment passed by voice vote.
(2) An amendment was offered by Mr. Frank to provide
increased civil liability for unlawful disclosures of
information obtained by wire or electronic interception, access
to electronically-stored communications, pen register and trap
trace, or the Foreign Intelligence Surveillance Act of 1978
(FISA) intelligence gathering and to provide administrative
discipline for intentional violations and to provide procedures
for actions against the United States. The amendment passed by
voice vote.
(3) An amendment was offered by Mr. Berman to sections 103
and 154, clarifying that the term ``foreign intelligence
information'' is the same term that is defined under section
1801(e) of title 50, the Foreign Intelligence Surveillance Act.
The amendment passed by voice vote.
(4) Amendments were offered en bloc by Mr. Sensenbrenner
(for himself, Mr. Conyers, Mr. Hyde, and Mr. Berman) to, among
other things, clarify that upon request, those being served
with the generic pen/trap order created under this section
shall receive written or electronic certification that the
assistance provided related to the order; to authorize five
million dollars to be appropriated for antidrug training for
South and Central Asia police; to establish a feasibility study
on the use of a biometric identifier scanning system with
access to the FBI Integrated Automated Fingerprint
Identification system at overseas consular posts and points of
entry to the United States; to clarify that a court of
competent jurisdiction for nationwide search warrants must have
jurisdiction over the offense being investigated; and to modify
the current designation process by allowing either the
Secretary of State or the Attorney General to determine
designation of a foreign terrorist organization and if they
fail to agree, the President shall make such determination. The
amendment passed by voice vote.
(5) An amendment was offered by Mr. Hyde to make
inadmissible any alien who the government knows or has reason
to believe is a money launderer. The Secretary of State shall
create a watchlist, to be checked before the issuance of a visa
or admission of an alien into the U.S., which identifies
persons who are known or suspected of money laundering. The
amendment passed by voice vote.
(6) An amendment was offered by Mr. Nadler (for himself and
Ms. Jackson Lee) to provide that the U.S. government can only
seek information from the home government about an asylum
applicant who is a suspected terrorist if the U.S. government
does not disclose the fact that the alien has applied for
asylum nor any information sufficient to give rise to an
inference that the applicant has applied for asylum. Mr. Bachus
offered an amendment to the amendment to strike the base
provision--section 205(b)--from the bill. Both amendments
passed by voice vote.
(7) Amendments were offered en bloc by Mr. Sensenbrenner
(for himself, Mr. Conyers, Mr. Scott, Mr. Weiner, Mr. Issa, Mr.
Keller, Mr. Barr, Mr. Cannon, Mr. Nadler and Ms. Jackson Lee).
Mr. Scott offered an amendment to exclude military and military
personnel from the provisions regarding extraterritorial
jurisdiction in the bill who are already covered under the
Military Extraterritorial Jurisdiction Act of 2000. Mr. Weiner
and Mr. Issa offered amendments to increase the amount paid to
public safety officers disabled or killed in the line of duty
from $100,000 to $250,000. An amendment offered by Mr. Keller
would authorize $250,000 to require the FBI to study the
feasibility of providing the airlines access to information
regarding suspected terrorists. One of the amendments, offered
by Mr. Barr, provided that the Attorney General and the Deputy
Attorney General may, with no further delegation, certify an
alien as an terrorist for purposes of mandatory detention. The
bill had provided this authority to the Attorney General and
the INS Commissioner. An amendment offered by Mr. Barr would
allow an association of employers of private security officers
to submit fingerprints or other methods of identification to
the Attorney General for purposes of State licensing or
certification. Another of the amendments, offered by Mr. Cannon
(for himself and Mr. Issa), amends current law to revise the
definition of ``agency or instrumentality of a foreign state''
for purposes of provisions regarding exceptions to: 1) the
jurisdictional immunity of a foreign state where money damages
are sought against the state for personal injury or death that
was caused by an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of material
support or resources for such an act; and 2) the immunity from
attachment or execution where the judgment relates to a claim
for which the foreign state is not immune. Another of the
amendments, to be offered by Mr. Nadler (for himself and Ms.
Jackson Lee), amends the section of the bill providing for
mandatory detention of alien terrorists by providing that if an
alien detained pursuant to the section was ordered removed as a
terrorist (or on the other grounds allowing certification) and
had not been removed within 90 days and was unlikely to be
removed in the reasonably foreseeable future, the alien could
be detained for additional periods of up to 6 months if the
Attorney General demonstrated that release would not protect
the national security of the United States or ensure the
public's safety. The en bloc amendment passed by voice vote.
(8) An amendment was offered by Ms. Lofgren to sunset most
of the changes made to current immigration law by title II(a)
of the bill. The amendment failed by voice vote.
(9) An amendment was offered by Mr. Weiner to amend the
foreign student tracking system created by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 by
advancing the date by which the system must be fully
operational, providing that students who are nationals of
countries that have repeatedly provided support for acts of
international terrorism may be assessed a higher fee than other
foreign students, and providing that the Attorney General shall
provide to the Secretary of State and the Director of the FBI
the information collected by the system. The amendment passed
by a rollcall vote of 25-8.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas.......................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Bryant...................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Graham......................................................
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Conyers..................................................... X
Mr. Frank....................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 25 8
----------------------------------------------------------------------------------------------------------------
(10) An amendment was offered by Ms. Jackson Lee to provide
funds for enhanced technology for security and enforcement at
the northern border. The amendment passed by voice vote.
(11) An amendment was offered by Mr. Scott to narrow the
list of persons restricted from possessing biological agents.
Mr. Scott's amendment changed definition of persons restricted
due to the indictment for a crime, to those persons indicted
for a Federal terrorism offense. The amendment failed by voice
vote.
(12) An amendment was offered by Mr. Scott to tighten the
intent requirement to require actual intent instead of apparent
intent for the definition of ``domestic terrorism.'' The
amendment failed by voice vote.
(13) Vote on final passage was adopted by a rollcall vote
of 36-0.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Bryant...................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Conyers..................................................... X
Mr. Frank....................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 36 0
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
The bill is intended to: (1) improve the government's
ability to identify, dismantle, disrupt and punish terrorist
organizations for terrorist and related criminal activities by
enhancing and clarifying law enforcement investigative tools
and by improving information sharing between law enforcement
and government agencies that have responsibilities related to
protecting the Nation against terrorism; and (2) to protect the
balance between civil liberties and law enforcement by
requiring new reporting obligations and administrative
oversight.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures. This bill does provide new
budgetary authority.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2975, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 10, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2975, the Provide
Appropriate Tools Required to Intercept and Obstruct Terrorism
(PATRIOT) Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz and Lanette Walker (for Federal costs), who can be
reached at 226-2860, Victoria Heid Hall (for the impact on
state, local, and tribal governments), who can be reached at
225-3220, and Paige Piper/Bach (for the impact on the private
sector), who can be reached at 226-2940.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Member
H.R. 2975--Provide Appropriate Tools Required to Intercept and Obstruct
Terrorism (PATRIOT) Act of 2001.
SUMMARY
H.R. 2975 would expand the powers of Federal law
enforcement agencies to investigate and prosecute terrorist
acts, establish new Federal crimes, and increase penalties for
acts of terrorism. The bill would allow certain victims of
Iranian terrorism who have won judgments against Iran in U.S.
court to collect monetary damages from the U.S. government.
H.R. 2975 also would increase the payments to families of
public safety officers who have died as a result of injuries
incurred in the line of duty. Finally, the bill would authorize
funding for the Immigration and Naturalization Service (INS),
the Drug Enforcement Administration (DEA), and the Department
of the Interior (DOI) to undertake activities to combat
terrorism.
CBO estimates that enacting the bill would increase direct
spending for payments to victims of terrorism and death
benefits for public safety officers by a total of $107 million
in fiscal year 2002 and by about $20 million in each year
thereafter. Because this legislation would affect direct
spending and receipts, pay-as-you-go procedures would apply.
Assuming appropriation of the necessary amounts, CBO estimates
that implementing H.R. 2975 would cost about $1 billion over
the 2002-2006 period, mostly for additional INS personnel.
Two provisions of H.R. 2975 would impose intergovernmental
and private-sector mandates as defined in the Unfunded Mandates
Reform Act (UMRA). CBO estimates, however, that the cost of
those mandates would fall well below the thresholds established
in UMRA ($56 million for intergovernmental mandates and $113
million for private-sector mandates in 2001, adjusted annually
for inflation).
The remaining provisions of the bill are either excluded
from UMRA because they are necessary for the national security
or contain no mandates.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 2975 is shown in the
following table. The costs of this legislation falls within
budget functions 150 (international affairs), 300 (natural
resources and environment), and 750 (administration of
justice).
BASIS OF ESTIMATE
For this estimate, CBO assumes that the bill will be
enacted near the beginning of fiscal year 2002, that the
necessary amounts will be appropriated for each year, and that
spending will follow the historical rates for the authorized
activities.
Implementing H.R. 2975 would increase direct spending,
discretionary spending, and governmental receipts. CBO
estimates that enacting H.R. 2975 would increase direct
spending for payments to victims of terrorism and death
benefits for public safety officers by a total of $107 million
in fiscal year 2002 and by about $20 million in each year
thereafter. Assuming appropriation of the necessary amounts,
CBO estimates that implementing H.R. 2975 would cost about $1
billion over the 2002-2006 period, mostly for additional INS
personnel. The impact on receipts is not likely to be
significant in any year.
Direct Spending and Receipts
Payments to Victims of Terrorism. H.R. 2975 would enable
victims of Iranian terrorism who have won judgments against
Iran in U.S. courts to collect monetary damages from the
Foreign Military Sales (FMS) Trust Fund. CBO estimates that
enacting this provision would increase direct spending by $33
million in 2002.
The FMS Trust Fund holds nearly $400 million in funds
previously paid by Iran for the purchase of military equipment
that was not delivered. The disposition of those funds is
currently before the Iran-U.S. Claims Tribunal, an
international body established to settle disputes between the
two nations. Section 705 of the bill would allow victims who
have received judgments for monetary damages by a court to
obtain amounts from the FMS Trust Fund to satisfy those
judgments. Based on information from the State Department, CBO
estimates that victims have been awarded damages of about $33
million and we expect these victims would seek compensation
from the fund in 2002. In addition, CBO expects that other
judgments could be awarded in the future. However, we cannot
estimate the likelihood or the amount of any such additional
judgments.
CBO cannot determine whether the payment of these claims to
terrorist victims would reduce, eliminate, or leave unaltered
any liability of the United States to Iran, which is yet to be
determined by the Iran-U.S. Claims Tribunal. Thus, it is
possible that some or all of the funds we estimate will be paid
to victims or terrorism under this bill could be offset by a
reduction in payments that would be made from the FMS Trust
Fund to Iran under current law. CBO, however, has no basis for
predicting the future decisions of the Iran-U.S. Claims
Tribunal, nor the response of the governments to such
decisions.
Public Safety Officers Death Benefits. H.R. 2975 would
increase the Federal payment to each family of a public safety
officer who has died in the line of duty from $155,000 to
$250,000. This provision would apply retroactively beginning on
January 1, 2001. Under current law, the families of public
safety officers who have died as a result of injuries sustained
in the line of duty are eligible for a payment of about
$155,000. H.R. 2975 would increase this payment to $250,000.
CBO estimates that the families of over 750 officers in fiscal
year 2002 and about 200 officers in each year thereafter would
be eligible for this payment. The 2002 estimate includes about
400 deaths related to the terrorist attacks on September 11,
2001, about 150 other deaths in 2001, and about 200 deaths in
2002--based on the number of deaths of public safety officers
in the line of duty experienced in recent years.
CBO estimates that enacting H.R. 2975 would increase
payments for death benefits by $74 million in 2002 and about
$20 million in each year thereafter. For the families of
officers killed during the attacks on September 11, it is
possible that these payments would result in a reduction in
other Federal compensation payments that may be made under
Public Law 107-42, the Airline Transportation Safety and System
Stabilization Act, which offers compensation to victims of the
September 11 terrorist attacks. However, the Department of
Justice (DOJ) has not yet issued guidelines on how this
compensation will be provided. In particular, DOJ has not
determined which payments to victims of the attacks will result
in a reduction in Federal compensation payments.
Additional Fines. Enacting H.R. 2975 would establish civil
and criminal fines for new crimes that would be established by
the bill. Based on information from DOJ, CBO estimates that any
additional collections would not be significant because of the
small number of individuals that are likely to be subject to
such fines. Civil fines are classified as governmental receipts
(revenues). Criminal fines are recorded as receipts and
deposited in the Crime Victims Fund, and spent without further
appropriation action.
Spending Subject to Appropriation
H.R. 2975 would authorize the appropriation of such sums as
necessary to triple the number of INS border patrol personnel
and INS inspectors stationed along the northern border of the
United States. According to the INS, there are currently 855
border patrol agents and inspectors stationed along the
northern border of the United States. H.R. 2975 would require
the agency to triple that force, resulting in an additional
1,710 agents and inspectors, plus an estimated 200 support
personnel. CBO expects that implementing such a major increase
in personnel would be complete by 2004. Based on information
from INS, CBO estimates that this would cost $102 million in
fiscal year 2002 and about $900 million over the 2002-2006
period, subject to appropriation of the necessary sums.
Title II also would authorize the appropriation of $50
million for INS to improve the technology and equipment used to
monitor the northern border.
Title VI of the bill would authorize DOI to contract with
other Federal agencies, state and local governments, and tribal
governments to provide law enforcement personnel to protect
Bureau of Reclamation facilities and lands and enforce Federal
laws. This title also would authorize DOI to reimburse those
entities for their services. Based on information from the
Bureau of Reclamation and the Bureau of Land Management, CBO
estimates that implementing title VI would cost $52 million
over the 2002-2006 period.
H.R. 2975 would authorize the appropriation of $5 million
for fiscal year 2002 for the DEA to provide training to police
and other drug control assistance in south and central Asia.
H.R. 2975 would require the DOJ and the Federal judiciary
to prepare a total of about a half-dozen reports. Based on
information from the affected agencies, CBO estimates that the
reports would cost about $1 million in fiscal year 2002 and
less than $500,000 annually thereafter.
PAY-AS-YOU-GO CONSIDERATIONS
The Balanced Budget and Emergency Deficit Control Act
specifies pay-as-you-go procedures for legislation affecting
direct spending and receipts. These procedures would apply to
H.R. 2975 because it would affect both direct spending and
receipts, as shown in the following table. (The estimated
changes in receipts are less than $500,00 each year.) For
purposes of enforcing pay-as-you-go procedures, only the
effects in the budget year and the succeeding 4 years are
counted.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
Two provisions of H.R. 2975 would impose intergovernmental
and private-sector mandates as defined in UMRA by increasing
reporting requirements for state courts and prohibiting certain
individuals from handling specific biological agents.
Section 112 would require judges to report to the
Administrative Office of the United States Courts on all
applications for court orders that would require a provider of
remote computing service to disclose the contents of electronic
communication. CBO estimates that the cost to comply with the
additional reporting requirement would be well below the annual
threshold established in UMRA for intergovernmental mandates
($56 million in 2001, adjusted annually for inflation).
Section 305 would prohibit certain people, as defined in
the bill, from shipping, transporting, possessing, or receiving
specified biological agents or toxins in interstate or foreign
commerce. According to the Centers for Disease Control and
Prevention, the number of entities affected by this restriction
would be limited. Consequently, CBO estimates that the cost to
comply with the mandate would fall well below the annual
threshold established in UMRA for private-sector mandates ($113
million in 2001, adjusted annually for inflation).
Section 4 of UMRA excludes from the application of that
act, any legislative provisions that are necessary for the
national security. CBO has determined that the remaining
provisions of H.R. 2975 either fit within that exclusion or
contain no mandates.
ESTIMATE PREPARED BY:
Federal Costs: Mark Grabowicz, Lanette Walker, Julie Middleton
(226-2860), and Joseph C. Whitehill (226-2840)
Impact on State, Local, and Tribal Governments: Victoria Heid
Hall (225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2940)
ESTIMATE APPROVED BY:
Peter H. Fontaine
Deputy Assistant Director for Budget Analysis
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8, of the Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short Title
This Act may be cited as the ``Provide Appropriate Tools
Required to Intercept and Obstruct Terrorism (PATRIOT) Act of
2001.''
Section 2. Table of Contents
Section 3. Construction; Severability
Title I--Intelligence Gathering
Subtitle A--Electronic Surveillance
Section 101. Modification of Authorities Relating to Use of Pen
Registers and Trap and Trace Devices
Under 18 U.S.C. Sec. 3121(b), law enforcement may obtain
authorization from a court, upon certification that the
information to be obtained is relevant to a pending criminal
investigation, to install and use a ``pen register'' device
that identifies the telephone numbers dialed or pulsed from
(outgoing calls) or a ``trap and trace'' device that identifies
the telephone numbers to a particular telephone (incoming
calls). These court authorizations do not permit capturing or
recording of the content of any such communication under the
terms of the court order.
Currently, the government must apply for a new pen/trap
order in every jurisdiction where the target telephone is
located. This can cause serious delays that could be
devastating to an investigation, particularly where additional
criminal or terrorist acts are planned.
Section 101 does not change the requirement under 18 U.S.C.
Sec. 3121 that law enforcement seek a court order to install
and use pen registers/trap and trace devices. It does not
change the law requiring that the attorney for the government
certify to the court that the information sought is relevant to
an ongoing criminal investigation.
This section does change the current law requiring the
government to obtain the order in the jurisdiction where the
telephone (or its equivalent) is located. This section
authorizes the court with jurisdiction over the offense of the
investigation to issue the order, thus streamlining an
investigation and eliminating the need to intrude upon the
resources of courts and prosecutors with no connection to the
investigation.
Under the bill, 18 U.S.C. Sec. 3123(a) would authorize
courts to issue a single pen register/trap and trace order that
could be executed in multiple jurisdictions anywhere in the
United States. The bill divides the existing 18 U.S.C.
Sec. 3123(a) into two paragraphs. The new subsection (a)(1)
applies to Federal investigations and provides that the order
may be issued to any provider of communication services within
the United States whose assistance is appropriate to the
effectuation of the order. Subsection (a)(2) applies to State
law enforcement and does not change the current authority
granted to State officials.
This section updates the language of the statute to clarify
that the pen/register authority applies to modern communication
technologies. Current statutory references to the target
``line,'' for example, are revised to encompass a ``line or
other facility.'' Such a facility includes: a cellular
telephone number; a specific cellular telephone identified by
its electronic serial number (ESN); an Internet user account or
e-mail address; or an Internet Protocol (IP) address, port
number, or similar computer network address or range of
addresses. In addition, because the statute takes into account
a wide variety of such facilities, section 3123(b)(1)(C) allows
applicants for pen register or trap and trace orders to submit
a description of the communications to be traced using any of
these or other identifiers.
Moreover, the section clarifies that orders for the
installation of pen register and trap and trace devices may
obtain any non-content information--``dialing, routing,
addressing, and signaling information''--utilized in the
processing or transmitting of wire and electronic
communications.\1\ Just as today, such an order could not be
used to intercept the contents of communications protected by
the wiretap statute. The amendments reinforce the statutorily
prescribed line between a communication's contents and non-
content information, a line identical to the constitutional
distinction drawn by the U.S. Supreme Court in Smith v.
Maryland, 442 U.S. 735, 741-43 (1979).
---------------------------------------------------------------------------
\1\ Thus, for example, non-content information contained in the
``options field'' of a network packet header constitutes ``signaling''
information and is properly obtained by an authorized pen register or
trap and trace device.
---------------------------------------------------------------------------
Thus, for example, an order under the statute could not
authorize the collection of email subject lines, which are
clearly content. Further, an order could not be used to collect
information other than ``dialing, routing, addressing, and
signaling'' information, such as the the portion of a URL
(Uniform Resource Locator) specifying Web search terms or the
name of a requested file or article.
This concept, that the information properly obtained by
using a pen register or trap and trace device is non-content
information, applies across the board to all communications
media, and to actual connections as well as attempted
connections (such as busy signals and similar signals in the
telephone context and packets that merely request a telnet
connection in the Internet context).
Further, because the pen register or trap and trace
``device'' is often incapable of being physically ``attached''
to the target facility due to the nature of modern
communication technology, section 101 makes two other related
changes. First, in recognition of the fact that such functions
are commonly performed today by software instead of physical
mechanisms, the section allows the pen register or trap and
trace device to be ``attached or applied'' to the target
facility. Likewise, the definitions of ``pen register'' and
``trap and trace device'' in section 3127 are revised to
include an intangible ``process'' (such as a software routine)
which collects the same information as a physical device.
Section 101(c) amends the definition section to include a
new nexus standard under Sec. 3127(2)(A) to provide that the
issuing court must have jurisdiction over the crime being
investigated rather than the communication line upon which the
device is to be installed. This section is also amended to
account for the new technologies relating to the different
modes of communication.
Section 101(d) amends section 3124(d) to ensure that
communication providers continue to be covered under that
section. Technology providers are concerned that the single
order provisions of section 101 of the bill eliminates the
protection of Sec. 3124(d) of title 18 that provides that ``no
cause of action shall lie in any court against any provider of
a wire or electronic communication service, its officers,
employees, agents, or other specified persons for providing
information, facilities, or assistance in accordance with the
terms of a court order.'' Once there is a nation-wide order it
will not specify the provider and thus, the providers believe
they could become liable upon compliance with the order. The
intent of the current statutory language is to protect
providers who comply with court orders, which direct them to
assist law enforcement in obtaining the non-content
information. The bill removes the phrase ``the terms of'' so
that the phrase reads ``in accordance with a court order.''
This will keep the requirement of a court order but protect the
providers even when that order does not specify the provider.
Current practice includes compliance with pen registers and
trap and trace orders by the service provider using its systems
and technologies to provide the government all non-content
information ordered by the order without the installation of an
additional device by the government to capture that order. It
is intended that these alternative compliance procedures should
continue when the provider is willing and technologically able
to comply with the order by these means in an efficient,
complete and timely manner.
Additionally, this section clarifies that upon request,
those being served with the generic pen/trap order created
under this section shall receive written or electronic
certification from the serving officer or official stating that
the assistance provided is related to the order.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 102. Seizure of Voice-Mail Messages Pursuant to Warrants
This section requires a court to issue an order authorizing
law enforcement to seize voice mail messages pursuant to a
search warrant upon a showing of probable cause. The Committee
recognizes that voice mail is a stored electronic communication
and should be treated accordingly. Thus, this section
harmonizes all criminal provisions dealing with obtained stored
electronic communication--requiring a warrant issued by a judge
after establishing probable cause.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 103. Authorized Disclosure
This provision will allow law enforcement to share ``title
III'' (Wiretap Statute) information with specified government
agencies to further intelligence or national security
investigations. Under current law, 18 U.S.C. Sec. 2517(1)
allows any investigative or law enforcement officer who obtains
information under the Wiretap Statute to disclose the
information to the extent that the information assists a
criminal investigation to another investigative or law
enforcement officer. The current statutory language has
hampered law enforcement in sharing information or receiving
information from other government agencies outside of law
enforcement that perform official duties that might
nevertheless relate to terrorist activities or the national
security. This section of the bill would amend the definition
under Sec. 2510(7) of ``investigative or law enforcement
officer'' to include any member of Federal law enforcement,
intelligence, national security, national defense, protective,
immigration personnel, or the President or Vice President of
the United States for the purposes only of Sec. 2517 when it
relates to foreign intelligence information as defined under
title 50 U.S.C. Sec. 1801(e) of the Foreign Intelligence
Surveillance Act.
As with current law, the disclosure or sharing of
information must be made to persons within these agencies who
are engaged in the performance of the official duties of the
official making or receiving the information.
The bill also limits the information to that which relates
to foreign intelligence information. This language narrows that
which was proposed by the Administration that would have
authorized disclosure to ``any officer or employee of the
executive branch.''
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 104. Savings Provision
This section is a technical and conforming amendment that
would add chapter 206 (relating to pen registers/trap and trace
orders) to section Sec. 2511(f) of the Wiretap Statute. Section
2511(f) provides that nothing in chapter 119 (relating to the
interception of communications), chapter 121 (relating to
stored wire and electronic communications and transactional
records access), or section 705 of the Communications Act of
1934, ``shall be deemed to affect the acquisition by the United
States Government of foreign intelligence information from
international or foreign communications, or foreign
intelligence activities conducted in accordance with otherwise
applicable Federal law. . . .'' The bill would include chapter
206 under that Sec. 2511(f).
This section also updates the language to include
electronic communications.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 105. Interception of Computer Trespasser Communications
Cyberattacks may be the work of terrorists or criminals.
These attacks come in many forms that cost companies and
citizens millions of dollars and endanger public safety. For
instance, the denial-of-service attacks, where the objective of
the attack is to disable the computer system, can shut down
businesses or emergency responders or national security
centers. This type of attack causes the target site's servers
to run out of memory and become incapable of responding to the
queries of legitimate customers or users. The victims of these
computer trespasser's should be able to authorize law
enforcement to intercept the trespassers communications.
Section 105 amends current law to clarify that law enforcement
may intercept such communications when authorized by the
victims, under limited circumstances.
Section 105(1) of the bill adds to the definitions under 18
U.S.C. Sec. 2510 the term: (1) ``protected computer'' and
provides that the term has the same meaning set forth in
Sec. 1030 of title 18; and (2) the term ``computer trespasser''
means a person who is accessing a protected computer without
authorization and thus has no reasonable expectation of privacy
in any communication transmitted to, through, or from the
protected computer.
Section 105(2) of the bill amends current law to allow
victims of computer intrusions to authorize law enforcement to
intercept the communications of a computer trespasser, under
limited circumstances. The circumstances are: (1) the owner or
operator of the protected computer must authorize the
interception of the trespasser's communications; (2) the person
who intercepts the communication must be lawfully engaged in an
investigation; (3) the person acting under color of law has
reasonable grounds to believe that the contents of the computer
trespasser's communication to be intercepted will be relevant
to the investigation; and (4) the investigator may only
intercept communications of the computer trespasser.
Section 105(3) would update the ``good faith reliance''
defense in section 2520(d), so that the computer trespasser
situation is also covered. Current law provides that a
communications provider that relies in good faith on:
(1) a court warrant or order, a grand jury subpoena, or
a statutory authorization; (2) a request of an
investigative or law enforcement officer under section
2518(7) of this title; or (3) a good faith
determination that section 2511(3) of this title
permitted the conduct complained of; [has] a complete
defense against civil or criminal action brought under
this chapter or any other law.''
Section 105(3) clarifies that communications providers
assisting law-enforcement under this section will continue to
be covered by the good faith reliance defense under 2320(d).
The Committee does not intend that section 105
(Interception of Computer Trespasser Communications) apply to
persons who access a computer (as defined in 18 U.S.C. 1030
(e)(1)), protected computer (as defined in 18 U.S.C. 1030
(e)(2)), computer system, or computer network, for the purpose
of testing the security and reliability of such computer,
protected computer, computer system, or computer network.
Furthermore, the Committee believes that critical
infrastructures (as defined in Executive Order 13010, 61 F.R.
37347, 42 U.S.C. 5195) should undergo automated electronic
testing of their internal and external network assets, on a
frequent and recurring basis.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 106. Technical Amendment
Title 18 U.S.C. Section 2518(3) provides four criteria upon
which a judge may enter an ex parte order authorizing the
interception of wire, oral, or electronic communications.
Section 2518(3)(c) is missing a coordinating conjunction. This
section simply adds the coordinating conjunction ``and'' to 18
U.S.C. Sec. 2518(3)(c).
Section 107. Scope of Subpoenas for Record of Electronic Communications
Terrorists and other criminals often use aliases in
registering for Internet and telephone services. This creates a
problem for law enforcement attempting to identify the suspects
of terrorist acts or criminal acts that often support the
terrorists. While the government currently can subpoena
electronic communications or a remote computing services
provider for the name, address and length of service of a
suspect, this information does not help when the suspected
terrorist or criminal lies about his or her identity.
Permitting investigators to obtain credit card and other
payment information by a subpoena, along with subscriber
information (already permitted to be obtained under current
law), will help law enforcement track a suspect and establish
his or her true identity.
This section would amend 18 U.S.C. Sec. 2703(c) to
authorize a subpoena for transactional records to include
information regarding the form of payment in order to assist
law enforcement in determining the user's identity.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 108. Nationwide Service of Search Warrants for Electronic
Evidence
Title 18 U.S.C. Sec. 2703(a) requires a search warrant to
compel service providers to disclose unopened e-mails. This
section does not affect the requirement for a search warrant,
but rather attempts to address the investigative delays caused
by the cross-jurisdictional nature of the Internet. Currently,
Federal Rules of Criminal Procedure 41 requires that the
``warrant'' be obtained ``within the district'' where the
property is located. An investigator, for example, located in
Boston who is investigating a suspected terrorist in that city,
might have to seek a suspect's electronic e-mail from an
Internet service provider (ISP) account located in California.
The investigator would then need to coordinate with agents,
prosecutors and judges in the district in California where the
ISP is located to obtain a warrant to search. These time delays
could be devastating to an investigation, especially where
additional criminal or terrorist acts are planned.
Section 108 amends Sec. 2703 to authorize the court with
jurisdiction over the investigation to issue the warrant
directly, without requiring the intervention of its counterpart
in the district where the ISP is located.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 109. Clarification of Scope
This section amends Sec. 2511(2) of title 18 to clarify
that when a cable company is providing the services of a
telephone company or Internet service provider, that cable
company must comply with the same laws governing the
interception and disclosure of wire and electronic
communications that currently apply to all other telephone
companies or Internet service providers. The amendment does not
affect the current prohibition under 631(h) of the
Communication Act concerning the released records that reveal
what a customer chooses to view, for example what particular
premium channels or ``pay per view'' shows the customer
selects.
Under current law, the Communications Act as amended
(passed at a time when cable companies provided only television
viewing services on cable lines) prohibits a cable operator,
with certain exceptions, from disclosing personally
identifiable information concerning any subscriber without
prior written or electronic notice to the subscriber concerned.
At the same time, criminal laws governing the interception and
disclosure of wire and electronic communications permit the
court to order non-disclosure of the government interception.
\2\ The section will end this perceived conflict in current law
that has placed cable companies in the awkward position of
trying to follow conflicting provisions of law.
---------------------------------------------------------------------------
\2\ See e.g.,18 U.S.C. Sec. Sec. 3123(d); 2703 and 2705
---------------------------------------------------------------------------
Section 110. Emergency Disclosure of Electronic Communications to
Protect Life and Limb
This section amends 18 U.S.C. Sec. 2702 to authorize
electronic communications service providers to disclose the
communications (or records relating to such communications) of
their customers or subscribers if the provider reasonably
believes that an emergency involving immediate danger of death
or serious physical injury to any person requires disclosure of
the information without delay.
This section would also amend the law to allow
communications providers to disclose non-content information
(such as the subscriber's login records). Under current law,
the communications provider is expressly permitted to disclose
content information but not expressly permitted to provide non-
content information. This change would cure this problem and
would permit the disclosure of the less-protected information,
parallel to the disclosure of the more protected information.
Additionally, this section would ensure that providers of
communications remain covered under Sec. 2703(e), the no cause
of action provision, when assisting law enforcement with an
investigation. Under current law, there is a ``no cause of
action against providers disclosing information . . . in
accordance with the terms of a court order, warrant, subpoena,
or certification under [chapter 121].'' This section would add
information disclosed under ``statutory authorization,'' to
cover providers that contact authorities in emergency
situations.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 111. Use as Evidence
This section extends the statutory exclusionary rule in 18
U.S.C. Sec. 2515 to electronic communications by amending the
statutory suppression of evidence rule under the 1968 Wiretap
Statute providing that illegally intercepted wire or oral
communications cannot be used in court or in agency hearings
under section 2515. The extension covers both real-time and
stored communications. The sunset provision in section 162
would sunset this section on December 31, 2003.
Section 112. Reports Concerning the Disclosure of the Contents of
Electronic Communications
This section amends 18 U.S.C. Sec. 2703, et. seq., which
governs access to stored wire and electronic communications to
require the government to compile and publish annual reports of
data regarding the government's acquisition of this type of
information. The criminal wiretap and pen/trap statutes already
require reporting. The sunset provision in section 162 would
sunset this section on December 31, 2003.
The Committee recognizes that this bill imposes reporting
requirements on the Administrative Office of the U.S. Courts
that will require the hiring of additional analysts. This
Committee urges Congress to appropriate sufficient funds for
the Administrative Office of the U.S. Courts to comply with the
reporting requirements contained in this bill.
Title I--Intelligence Gathering
Subtitle B--Foreign Intelligence Surveillance and Classified
Information
Section 151. Period of Orders of Electronic Surveillance of Non-United
States Persons Under Foreign Intelligence Surveillance
This section amends Sec. 1805(e)(1) of title 50, (Foreign
Intelligence Surveillance Act (FISA)), to extend the FISA court
authorized maximum period for electronic surveillance of
officers and employees of foreign powers and of members of
international terrorist cells from 90 days to a year. This
section also amends Sec. 1824(d) of title 50, to extend the
FISA court authorized maximum period for a physical search
targeted against officers and employees of foreign powers and
members of international terrorist cells from 45 days to 90
days.
Under current law, the government may go back to the FISA
court after the 90- or 45-day period to get an extension on the
same basis as the original order application. The Committee
recognizes, however, that it often takes longer than the
established periods to get on the premises or to conduct
electronic surveillance and that the delay in reapplying poses
a threat to our national security.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 152. Multi-Point Authority
Section 1805(c)(2)(B) of title 50, permits the FISA court
to order third parties, like common carriers, custodians,
landlords and others, who are specified in the order,
(specified persons) to provide assistance and information to
law enforcement authorities in the installation of a wiretap or
the collection of information related to a foreign intelligence
investigation.
Section 152 amends 1805(c)(2)(B) to insert language that
permits the FISA court to direct the order to ``other persons''
if the court finds that the ``actions of the target of the
application may have the effect of thwarting the identification
of a specified person,'' who would be required to assist in the
installation of any court-authorized intercept. This amendment
is intended to expand the existing authority to allow for
circumstances where the court finds that the actions of a
target may thwart the identification of a specified person in
the order. This is usually accomplished by the target moving
his location. The move necessitates the use of third parities
other than those specified in the original order to assist in
installation of the listening device.
This amendment allows the FISA court to compel any such new
necessary parties to assist in the installation and to furnish
all information, facilities, or technical assistance necessary
without specifically naming such persons. Nevertheless, the
target of the electronic surveillance must still be identified
or described in the order as under existing law.
For example, international terrorists and foreign
intelligence officers are trained to thwart surveillance by
changing hotels, cell phones, Internet accounts, etc. just
prior to important meetings or communications. Under present
law, each time this happens the government must return to the
FISA court for a new order just to change the name of the third
party needed to assist in the new installation. The amendment
permits the court to issue a generic order that can be
presented to the new carrier, landlord or custodian directing
their assistance to assure that the surveillance may be
undertaken as soon as technically feasible.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 153. Foreign Intelligence Information
Under 50 U.S.C. Sec. 1804(a)(7)(B) and 50 U.S.C.
Sec. 1823(a)(7)(B) a FISA application requires certification,
among other things, that ``the purpose'' of surveillance or
search is to obtain foreign intelligence information. The
certification for an order against any person who knowingly
engages in espionage or terrorism may only be made upon written
request of an official designated by the President. The
Attorney General must personally review the application.
Presently, a FISA certification request can only be used
where foreign intelligence gathering is the sole or primary
purpose of the investigation as interpreted by the courts. This
requires law enforcement to evaluate constantly the relative
weight of criminal and intelligence purposes when seeking to
open a FISA investigation and thereafter as it proceeds.
Section 153 amends 50 U.S.C. Sec. 1804(a)(7)(B) and
1823(a)(7)(B) to require that certain officials (designated by
the President) certify that obtaining foreign intelligence
information is ``a significant purpose'' of the investigation.
This bill language represents a compromise between current
law and what the Administration had proposed.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 154. Foreign Intelligence Information Sharing
Currently, the Wiretap Statute (18 U.S.C. Sec. 2510 et.
seq.) limits disclosure and dissemination of information
obtained for law enforcement purposes. Section 154 of the bill
makes it lawful for foreign intelligence information, as
defined in FISA, that is obtained as a result of a criminal
investigation to be shared with specified law-enforcement,
intelligence, protective, immigration, or national-defense
personnel where they are performing official duties.
Under current law, it is impossible for law enforcement or
criminal investigators and the intelligence community to share
foreign intelligence information collected under a criminal
wiretap without seeking court authority. This limitation can
adversely affect a criminal or counter-terrorism investigation
where time is of the essence in preventing further deadly
actions. This section makes it clear that law-enforcement and
the intelligence community may share foreign intelligence
information in the performance of their official duties without
seeking a subpoena or court authority.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 155. Pen Register and Trap and Trace Authority
Section 155 amends section 1842(c) of FISA (50 U.S.C.
Sec. 1842(c)) (the pen register and trap and trace provisions)
to mirror similar provisions currently exist in criminal law
(18 U.S.C. Sec. 3121 et. seq.). Currently, the ``pen register
and trap and trace'' provisions of FISA go beyond the criminal
law requirement of certification of relevance, and require that
the communication instrument (e.g., a telephone line) has been
used to contact a ``foreign power'' or agent of a foreign
power. This is a greater burden than exists in even a minor
criminal investigation.
Section 155 clarifies that an application for pen register
and trap and trace authority under FISA will be the same as the
pen register and trap and trace authority defined in the
criminal law. It will require the attorney for the government
to certify to the court that the information sought is relevant
to an ongoing FISA investigation. The current statutory burden
of having to show that the telephone line has been, or is about
to be used to contact a foreign power or terrorist is
eliminated to conform to the existing and less burdensome
criminal standards. The attorney for the government still must
certify the information sought is relevant to an ongoing FISA
investigation which continues to be directed at an agent of a
foreign power.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 156. Business Records
The Administration had sought administrative subpoena
authority without having to go to court. Instead, section 156
amends title 50 U.S.C. Sec. 1861 by providing for an
application to the FISA court for an order directing the
production of tangible items such as books, records, papers,
documents and other items upon certification to the court that
the records sought are relevant to an ongoing foreign
intelligence investigation. The amendment also provides a good
faith defense for persons producing items pursuant to this
section which does not constitute a waiver of any privilege in
any other proceeding.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 157. Miscellaneous National Security Authorities
Section 2709 of title 18 permits the Director of the
Federal Bureau of Investigation to request, through a National
Security Letter (NSL), subscriber information and toll billing
records of a wire or electronic communication service provider.
The request must certify (1) that the information sought is
relevant to an authorized foreign counterintelligence
investigation; and (2) there are specific and articulable facts
that the person or entity to whom the information sought
pertains is a foreign power or an agent of a foreign power as
defined in FISA. This requirement is more burdensome than the
corresponding criminal authorities, which require only a
certification of relevance. The additional requirement of
documentation of specific and articulable facts showing the
person or entity is a foreign power or an agent of a foreign
power cause substantial delays in counterintelligence and
counterterrorism investigations. Such delays are unacceptable
as our law enforcement and intelligence community works to
thwart additional terrorist attacks that threaten the national
security of the United States and her citizens' lives and
livelihoods.
Section 157 amends title 18 U.S.C. Sec. 2709 to mirror
criminal subpoenas and allow a NSL to be issued when the FBI
certifies, the information sought is ``relevant to an
authorized foreign counterintelligence investigation.'' This
harmonizes this provision with existing criminal law where an
Assistant United States Attorney may issue a grand jury
subpoena for all such records in a criminal case.
The sunset provision in section 162 would sunset this
section on December 31, 2003.
Section 158. Proposed Legislation
Section 158 of the bill provides that no later than August
31, 2003, the President shall propose legislation, with regard
to the provisions set to expire under section 162 of this Act,
if the President judges it to be necessary and expedient.
Section 159. Presidential Authority
Section 203 of the International Emergency Economic Powers
Act (50 U.S.C. Sec. 1702) grants to the President the power to
exercise certain authorities relating to commerce with foreign
nations upon his determination that there exits an unusual and
extraordinary threat to the United States. Under this
authority, the President may, among other things, freeze
certain foreign assets within the jurisdiction of the United
States. A separate law, the Trading With the Enemy Act,
authorizes the President to take title to enemy assets when
Congress has declared war.
Section 159 of this bill amends section 203 of the
International Emergency Economic Powers Act to provide the
President with authority similar to what he currently has under
the Trading With the Enemy Act in circumstances where there has
been an armed attack on the United States, or where Congress
has enacted a law authorizing the President to use armed force
against a foreign country, foreign organization, or foreign
national. The proceeds of any foreign assets to which the
President takes title under this authority must be placed in a
segregated account can only be used in accordance with a
statute authorizing the expenditure of such proceeds.
Section 159 also makes a number of clarifying and technical
changes to section 203 of the International Emergency Economic
Powers Act, most of which will not change the way that
provision currently is implemented.
Section 160. Clarification of No Technology Mandates.
Current law requires communications service providers to
furnish ``all information, facilities, and technical assistance
necessary to accomplish . . .'' the execution of the court
order (18 U.S.C. 3124(a)). This Act is not intended to affect
obligations under the Communications Assistance for Law
Enforcement Act \3\, nor does the Act impose any additional
technical obligation or requirement on a provider of wire or
electronic communication service or other person to furnish
facilities or technical assistance.
---------------------------------------------------------------------------
\3\ 47 U.S.C. 1001 et. seq.
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Section 161. Civil Liability for Certain Unauthorized Disclosures
This section increases the civil liability for unlawful
disclosures of information obtained by wire or electronic
intercepts, access to electronically-stored communications, pen
register and trap and trace, and FISA intelligence. This
section also provides administrative discipline for intentional
violations and affords procedures for actions against the
United States.
Section 162. Sunset
This section would sunset the provisions of this title
(other than section 109 and 159 relating to the Communications
Act) on December 31, 2003.
Title II--Aliens Engaging in Terrorist Activity
Subtitle A--Detention and Removal of Aliens Engaging in Terrorist
Activity
Section 201: Changes in Classes of Aliens who Are Ineligible for
Admission and Deportable Due to Terrorist Activity
Under current law, unless otherwise specified, an alien is
inadmissible and deportable for engaging in terrorist activity
only when the alien has used explosives or firearms. The Act
eliminates this limitation. A terrorist can use any object--
including a knife, a box-cutter, or an airplane--in a terrorist
act.
Under current law, there is no general prohibition against
an alien contributing funds or other material support to a
terrorist organization, while there is a prohibition against
soliciting membership in or funds from others for a terrorist
organization. The Act provides that an alien is inadmissible
and deportable for contributing funds or material support to,
or soliciting funds for or membership in, an organization that
has been designated as a terrorist organization by the
Secretary of State, or for contributing to, or soliciting in or
for, any non-designated terrorist organization if the alien
knows or reasonably should know that the funds, material
support or solicitation will further terrorist activity.
Current immigration law does not define ``terrorist
organization'' for purposes of making an alien inadmissible and
deportable. The Act defines such an organization to include 1)
an organization so designated by the Secretary of State (under
a process provided for under current law) and 2) any group of
two of more individuals which commits terrorist activities or
plans or prepares to commit (including locating targets for)
terrorist activities. This latter category includes any group
which has a significant subgroup that carries out such
activities.
The Act provides that an alien will not be admitted into
the United States if the alien is a representative of a
political, social or other similar group whose public
endorsement of terrorism undermines the effort of the U.S. to
eliminate or reduce terrorism. Also inadmissable will be an
alien who has used his or her prominence to endorse or espouse
terrorism or to persuade others to support terrorism if this
would undermine the efforts of the U.S. to reduce or eliminate
terrorism, and an alien who is associated with a terrorist
organization and intends while in the U.S. to engage in
activities that could endanger the welfare, safety, or security
of the U.S. These provisions are similar to current law's
``foreign policy'' ground of inadmissibility, barring entry to
an alien whose entry or proposed activities in the U.S. would
have potentially serious adverse foreign policy consequences
for the U.S.
The Act makes deportable an alien who is a representative
of a terrorist organization so designated by the Secretary of
State. It also makes deportable a representative of a
political, social or other similar group who publicly endorses
terrorism only if the endorsement undermines the effort of the
U.S. to eliminate or reduce terrorism and is intended and
likely to incite or produce imminent lawless action. Also
deportable is an alien who has used his or her prominence to
endorse terrorism or to persuade others to support terrorism
only if this will undermine the efforts of the U.S. to reduce
or eliminate terrorism and is intended and likely to incite or
produce imminent lawless action.
The intent of the bill is to make an alien inadmissible and
deportable who has provided any material support to an
organization designated as a ``foreign terrorist
organizations'' by the Secretary of State pursuant to 8 U.S.C.
sec. 1189. However, with respect to terrorist organizations
which have not been so designated, and to organizations prior
to their designation, the provision of material support, the
soliciting of funds, and the soliciting for members is not a
deportable or inadmissible offense unless the alien knew or
reasonably should have known that the act would further
terrorist activity. Thus, in such cases, support given to non-
designated organizations for purposes of humanitarian aid is
permitted. This presumes that the alien does not provide
material support for a so-called humanitarian ``front'' group
of a terrorist organization when the alien knows or reasonably
should know that the material support is in reality in
furtherance of terrorist activity.
Section 202. Changes in Designation of Foreign Terrorist Organizations
Current law provides a process whereby the Secretary of
State can designate an organization as a foreign terrorist
organization. The Act provides that either the Secretary or the
Attorney General may recommend an organization for designation,
and the organization will be so designated if the other
concurs. In instances where either official cannot gain the
other's concurrence, the President shall decide on the
requested designation. The Act also clarifies that
organizations can be redesignated as terrorist organizations
and that designations and redesignations can be revoked.
Section 203. Mandatory Detention of Suspected Terrorists; Habeas
Corpus; Judicial Review
Under the current regulatory regime, the INS can detain an
alien for 48 hours before making a decision as to charging the
alien with a crime or removable offense (except that in the
event of emergency or other extraordinary circumstance, an
additional reasonable time is allowed). The INS uses this time
to establish an alien's true identity, to check domestic and
foreign databases for information about the alien, and to
liaise with law enforcement agencies.
The Act provides a mechanism whereby the Attorney General
can certify an alien as a suspected terrorist (or for espionage
or certain other offenses) and detain him for 7 days before
charging. If no charges are filed by the end of this period,
the alien must be released. Otherwise, the Attorney General
shall maintain custody of the alien until the alien is removed
from the U.S. or found not to be inadmissible or deportable.
The Attorney General or Deputy Attorney General (with no
power of delegation) may certify an alien as a terrorist if
they have reasonable grounds to believe that the alien is a
terrorist. Judicial review as to certification or detention is
limited to habeas corpus review in the U.S. District Court for
the District of Columbia. Such judicial review shall include
review of the merits of the decision to certify an alien as a
terrorist.
The alien shall be maintained in custody irrespective of
any relief from removal granted the alien, until the Attorney
General determines that the alien no longer warrants
certification. However, if an alien detained pursuant to this
section was ordered removed as a terrorist (or on the other
grounds allowing certification) and has not been removed within
90 days and is unlikely to be removed in the reasonably
foreseeable future, the alien may be detained for additional
periods of up to 6 months if the Attorney General demonstrates
that release will not protect the national security of the
United States or ensure the public's safety.
The Attorney General must submit a report to Congress on
the use of this section every 6 months.
Section 204. Changes in Conditions for Granting Asylum
The Act clarifies that even if the INS charges an alien for
purposes of removal or deportation with a non terrorist-based
offense, if the alien seeks asylum, the INS can seek to oppose
its grant by providing evidence that the alien is a terrorist.
Section 205. Multilateral Cooperation Against Terrorists
The Records of the State Department pertaining to the
issuance of or refusal to issue visas to enter the U.S. are
confidential and can be used only in the formulation and
enforcement of U.S. law. The Act provides that the government
can provide such records to a foreign government on a case-by-
case basis for the purpose of preventing, investigating, or
punishing acts of terrorism.
Section 206. Requiring Sharing by the Federal Bureau of Investigation
of Certain Criminal Record Extracts with other Federal Agencies
in Order to Enhance Border Security
The Act provides that the Justice Department shall provide
to the State Department and the INS access to the criminal
history record information contained in the National Crime
Information Center's Interstate Identification Index, Wanted
Persons File, and to any other files maintained by the NCIC
that may be mutually agreed upon by the Justice Department and
the official to be provided access, for purposes of determining
whether a visa applicant or an applicant for admission has a
criminal history record. Such access shall be provided by means
of extracts of the records for placement in the State
Department's automated visa lookout database or other
appropriate database. The State Department shall establish the
conditions for the use of the information in order to limit the
redissemination of the information, to ensure that it is used
solely to determine whether to issue a visa, to ensure the
security, confidentiality and destruction of the information,
and to protect any privacy rights of the subjects of the
information.
Section 207. Inadmissibility of Aliens Engaged in Money Laundering
The Act makes inadmissible any alien who the government
knows or had reason to believe is a money launderer. The
Secretary of State shall create a watchlist, to be checked
before the issuance of a visa or admission into the U.S., which
identifies persons who are known or suspected of money
laundering.
Section 208. Program to Collect Information Relating to Nonimmigrant
Foreign Students and Other Exchange Program Participants
The Act amends the foreign student tracking system created
by the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996. The Act advances the date by which the system must
be fully operational and provides that students who are
nationals of countries that have repeatedly provided support
for acts of international terrorism may be assessed a higher
fee than other foreign students. In addition, the Act provides
that the Attorney General shall provide to the Secretary of
State and the Director of the FBI the information collected by
the system.
Section 209. Protection of Northern Border
The Act authorizes the appropriation of funds necessary to
triple the number of Border Patrol personnel in each State
along the northern border and the number of INS inspectors at
each port of entry along the northern border. The Act also
authorizes $50 million to the INS for purposes of making
improvements in technology for monitoring the northern border.
Subtitle B--Preservation of Immigration Benefits for Victims of
Terrorism
It is certain that some aliens fell victim to the terrorist
attacks on the U.S. on September 11. This subtitle endeavors to
modify the immigration laws to provide humanitarian relief to
these victims and their family members.
Section 211. Special Immigrant Status
The Act provides permanent resident status through the
special immigrant program to an alien who was the beneficiary
of a petition filed (on or before September 11) to grant the
alien permanent residence as an employer-sponsored immigrant or
of an application for labor certification (filed on or before
September 11), if the petition or application was rendered null
because of the disability of the beneficiary or loss of
employment of the beneficiary due to physical damage to, or
destruction of, the business of the petitioner or applicant as
a direct result of the terrorist attacks on September 11, or
because of the death of the petitioner or applicant as a direct
result of the terrorist attacks. Permanent residence would be
granted to an alien who was the spouse or child of an alien who
was the beneficiary of a petition filed on or before September
11 to grant the beneficiary permanent residence as a family-
sponsored immigrant (as long as the spouse or child follows to
join not later than September 11, 2003). Permanent residence
would be granted to the beneficiary of a petition for a
nonimmigrant visa as the spouse or the fiance (and their
children) of a U.S. citizen where the petitioning citizen died
as a direct result of the terrorist attack. The section also
provides permanent resident status to the grandparents of a
child both of whose parents died as a result of the terrorist
attacks, if either of such deceased parents was a citizen of
the U.S. or a permanent resident.
Section 212. Extension of Filing or Reentry Deadlines
The Act provides that an alien who was legally in a
nonimmigrant status and was disabled as a direct result of the
terrorist attacks on September 11 (and his or her spouse and
children) may remain lawfully in the U.S. (and receive work
authorization) until the later of the date that his or her
status normally terminates or September 11, 2002. Such status
is also provided to the nonimmigrant spouse and children of an
alien who died as a direct result of the terrorist attacks.
The Act provides that an alien who was lawfully present as
a nonimmigrant at the time of the terrorist attacks will be
granted 60 additional days to file an application for extension
or change of status if the alien was prevented from so filing
as a direct result of the terrorist attacks. Also, an alien who
was lawfully present as a nonimmigrant at the time of the
attacks but was then unable to timely depart the U.S. as a
direct result of the attacks will be considered to have
departed legally if doing so before November 11. An alien who
was in lawful nonimmigrant status at the time of the attacks
(and his or her spouse and children) but not in the U.S. at
that time and was then prevented from returning to the U.S. in
order to file a timely application for an extension of status
as a direct result of the terrorist attacks will be given 60
additional days to file an application and will have his or her
status extended 60 days beyond the original due date of the
application.
Under current law, winners of the fiscal year 2001
diversity visa lottery must enter the U.S. or adjust status by
September 30, 2001. The Act provides that such an alien may
enter the U.S. or adjust status until April 1, 2002, if the
alien was prevented from doing so by September 30, 2001 as a
direct result of the terrorist attacks. If the visa quota for
the 2001 diversity visa program has already been exceeded, the
alien shall be counted under the 2002 program. Also, if a
winner of the 2001 lottery died as a direct result of the
terrorist attacks, the spouse and children of the alien shall
still be eligible for permanent residence under the program.
The ceiling placed on the number of diversity immigrants shall
not be exceeded in any case.
Under the Act, in the case of an alien who was issued an
immigrant visa that expires before December 31, 2001, if the
alien was unable to timely enter the U.S. as a direct result of
the terrorist attacks, the validity shall be extended until
December 31.
Under the Act, in the case of an alien who was granted
parole that expired on or after September 11, if the alien was
unable to enter the U.S. prior to the expiration date as a
direct result of the terrorist attacks, the parole is extended
an additional 90 days.
Under the Act, in the case of an alien granted voluntary
departure that expired between September 11 and October 11,
2001, voluntary departure is extended an additional 30 days.
Section 213. Humanitarian Relief for Certain Surviving Spouses and
Children
Current law provides that an alien who was the spouse of a
U.S. citizen for at least 2 years before the citizen died shall
remain eligible for immigrant status as an immediate relative.
This also applies to the children of the alien. The Act
provides that if the citizen died as a direct result of the
terrorist attacks, the 2 year requirement is waived.
The Act provides that if an alien spouse, child, or
unmarried adult son or daughter had been the beneficiary of an
immigrant visa petition filed by a permanent resident who died
as a direct result of the terrorist attacks, the alien will
still be eligible for permanent residence. In addition, if an
alien spouse, child, or unmarried adult son or daughter of a
permanent resident who died as a direct result of the terrorist
attacks was present in the U.S. on September 11 but had not yet
been petitioned for permanent residence, the alien can self-
petition for permanent residence.
The Act provides that an alien spouse or child of an alien
who 1) died as a direct result of the terrorist attacks and 2)
was a permanent resident (petitioned-for by an employer) or an
applicant for adjustment of status for an employment-based
immigrant visa, may have his or her application for adjustment
adjudicated despite the death (if the application was filed
prior to the death).
Section 214. ``Age-Out'' Protection for Children
Under current law, certain visas are only available to an
alien until the alien's 21st birthday. The Act provides that an
alien whose 21st birthday occurs this September and who is a
beneficiary for a petition or application filed on or before
September 11 shall be considered to remain a child for 90 days
after the alien's 21st birthday. For an alien whose 21st
birthday occurs after this September, (and who had a petition
for application filed on his or her behalf on or before
September 11) the alien shall be considered to remain a child
for 45 days after the alien's 21st birthday.
Section 215. Temporary Administrative Relief
The Act provides that temporary administrative relief may
be provided to an alien who was lawfully present on September
10, was on that date the spouse, parent or child of someone who
died or was disabled as a direct result of the terrorist
attacks, and is not otherwise entitled to relief under any
other provision of Subtitle B.
Section 216. Evidence of Death, Disability, or Loss of Employment
The Attorney General shall establish appropriate standards
for evidence demonstrating that a death, disability, or loss of
employment due to physical damage to, or destruction of, a
business, occurred as a direct result of the terrorist attacks
on September 11. The Attorney General is not required to
promulgate regulations prior to implementing Subtitle B.
Section 217. No Benefit to Terrorists or Family Members of Terrorists
No benefit under Subtitle B shall be provided to anyone
culpable for the terrorist attacks on September 11 or to any
family member of such an individual.
Section 218. Definitions
The term ``specified terrorist activity'' means any
terrorist activity conducted against the Government or the
people of the U.S. on September 11, 2001.
Title III--Criminal Justice
Subtitle A--Substantive Criminal Law
Section 301. Statute of Limitations for Prosecuting Terrorism Offenses
Current law provides that certain offenses, which are
generally associated with terrorist activity, are subject to a
either a 5-year or 8-year statute of limitations (18 U.S.C.
Sec. 3282 and 18 U.S.C. Sec. 3286). This section amends current
law to provide no statute of limitations exists for certain of
these crimes (the most serious) and a 15-year statute of
limitation for others.
Specifically, under this section, the prosecution may bring
a case at any time for any ``Federal terrorism offense,'' which
must be shown to be ``calculated to influence or affect the
conduct of government by intimidation or coercion or to
retaliate against government conduct.''
The prosecution may bring a case at any time for any of the
underlying offenses listed in this section that are generally
the most serious crimes related to terrorism (without regard to
the ``calculated to influence'' element). The prosecution may
bring a case within 15 years for any other crimes listed in
this section that are typically related to terrorist
activities.
This provision applies to any crime committed before, on,
or after enactment of this section.
Section 302. Alternative Maximum Penalties for Terrorism Crimes
Under current law, penalties for certain offenses
associated with terrorist activity are capped at twenty-years
maximum imprisonment (some are capped at 10 years). This
section changes current law to allow a judge to sentence a
terrorist to prison for any number of years, up to life, for
any offense that is defined as a ``Federal terrorism offense.''
To prove a ``Federal terrorism offense,'' the prosecution must
prove both the elements of the underlying crime and that the
crime was calculated to influence or affect the conduct of
government by intimidation or coercion or to retaliate against
government conduct.
This section does not impose a mandatory life sentence. It
simply gives the sentencing judge discretion to impose
increased penalties by the bill language ``may be sentenced to
life imprisonment.''
Section 303. Penalties for Terrorist Conspiracies
Under current law, many, but not all, of the crimes that
are considered to be linked to terrorism include provisions to
allow prosecution for attempts or conspiracies to commit such
offenses. This section brings the remaining terrorists related
crimes into conformity with existing provisions of the law to
ensure that any person who attempts to commit or conspires to
commit a ``Federal terrorism offense'' (as defined in 18 U.S.C.
Sec. 25(2)) or any crime related to terrorism (included in
section 309(2)) will be subject to the same penalties as those
that may be imposed upon one who actually commits that offense,
including the new enhanced penalties listed above (in section
301).
This provision prohibits a person convicted of a conspiracy
or attempt to commit a crime from being sentenced to death.
This provision is consistent with current and long-standing
drug laws under title 21 of the U.S. Code.
Section 304. Terrorism Crimes as RICO Predicates
Terrorism, like traditional organized crime, is often
characterized by a continuing pattern of criminal activity.
This provision gives prosecutors the same tools to bring
terrorists to justice as they have for organized crime.
This provision would allow any ``Federal terrorism
offense'' or any of the most serious crimes related to
terrorism to be prosecuted using the Racketeer Influenced and
Corrupt Organization provisions (title 18, chapter 96) of the
1970 Organized Crime Control Act of 1970. The RICO provisions
in the bill do create new crimes. These provisions merely
enhance the civil and criminal consequences of certain crimes
that have been deemed RICO predicates by Congress and provide
better investigative and prosecutorial tools to identify and
prove crimes.
RICO may currently be used against any person who invests
in or acquires an interest in, or conducts or participates in
the affairs of an enterprise which engages in or whose
activities affect interstate or foreign commerce through the
collection of an unlawful debt or the patterned commission of
various State and Federal crimes. Violations of law prosecuted
under RICO are subject to fines, forfeitures, or imprisonment
for not more than 20 years or life (18 U.S.C. Sec. 1963),
depending on the penalties allowed under the predicate
offenses. Anyone injured by a RICO violation may recover treble
damages, court costs, and attorney fees under the civil RICO
laws.
The pattern of activity element of RICO requires the
commission of two or more predicate offenses that are clearly
related and suggest either a continuity of criminal activity or
the threat of such continuity of criminal activity (18 U.S.C.
Sec. 1961(5)). This provision allows the prosecution to
establish a pattern of ongoing activity related to terrorism.
Section 305. Biological Weapons
Currently under title 18 U.S.C. Sec. 175, anyone who
knowingly develops, produces, stockpiles, transfers, acquires,
retains, or possesses any biological agent, toxin, or delivery
system for use as a weapon or knowingly assists a foreign state
or organization to do so or attempts, threatens, or conspires
to do so, may be fined or imprisoned or both. The terms
``biological agent,'' ``toxin'' and ``delivery system'' as used
in this section are defined in 18 U.S.C. Sec. 178.
This section changes the definition of what is considered
to be prohibited behavior ``for use as a weapon'' to include
the development, production, transfer, acquisition, retention
or possession of any biological agent, toxin, or delivery
system other than for a prophylactic, protective, or other
peaceful purpose. This changes current law by expanding the
scope of the term for ``use as a weapon'' to include use of any
biological materials or transfer of any such materials where no
legitimate purpose can be shown.
This section also creates a new offense punishable by a
fine or up to 10 years in prison for knowingly possessing a
biological agent or toxin of any type or quantity that is not
reasonably justified for any peaceful purpose. This offense was
created to deter persons from possessing any biological agent
or toxin or any quantity of a biological agent that is not
absolutely necessary for a legitimate purpose. This provision
is included to prevent terrorists from targeting facilities
that use biological agents or toxins in their business or from
stockpiling biological agents or toxins. This prohibition does
not apply to governmental activity authorized under the
National Security Act of 1947.
This section also prohibits any alien from a country
recognized by the Secretary of State as supporting
international terrorism from possessing, receiving or
transporting a biological agent or toxin. It also prohibits
possession, receipt or transportation of biological agents or
toxins by many of those who are forbidden to own firearms under
United States law. Penalties for violation of this section
range from a fine to 10 years imprisonment or both.
Section 306. Support of Terrorism Through Expert Advice or Assistance
Under title 18 U.S.C. Sec. 2339A, it is a crime to provide
material support for certain terrorist activities. This section
expands the list of terrorist related crimes for which
assistance is prohibited. (see section 309 below).
The definition of providing material support to terrorists
in title 18 is expanded to include providing ``expert advice or
assistance.'' This will only be a crime if it is provided
``knowing or intending that [the expert advice or assistance]
be used in preparation for, or in carrying out,'' any ``Federal
terrorism offense'' (as defined in 18 U.S.C. Sec. 25) or any of
the crimes related to terrorism listed under section 309(2).
Section 307. Prohibition Against Harboring
Under title 18 U.S.C. Sec. 792, to harbor or conceal an
individual one knows or has reason to believe has committed or
is about to commit a crime of espionage against the United
States is a crime punishable by up to 10 years in prison. This
section amends the law to create a similar (but not identical)
prohibition against harboring someone who one knows has
committed or is about to commit any of the enumerated crimes
generally associated with terrorist activity. This section also
provides extraterritorial jurisdiction over any violation of
this section.
Section 308. Post-Release Supervision of Terrorists
Currently, under title 18 U.S.C. Sec. 3583, the length of
time for post-release supervision is based on the severity of
the crime. This section changes current law to allow a person
convicted of a ``Federal terrorism offense'' to be under
supervision for as long as the sentencing judge determines is
necessary up to life.
Section 309. Definitions
This section adds a new section to current law under title
18 to define ``Federal terrorism offense.'' It uses the current
definition of a ``Federal crime of terrorism'' included in 18
U.S.C. Sec. 2332b(g)(5) and expands it to include underlying
crimes related to biological weapons; possession, production or
transfer of chemical weapons; harboring terrorists; fraud,
theft or extortion related to computers; disclosure of
identities of covert agents; assault on a flight crew member
with a dangerous weapon; endangering human life by carrying an
explosive or incendiary device on an aircraft; or homicide or
attempted homicide committed on an aircraft.
Under this section, a crime is only considered to be a
``Federal terrorism offense'' if it can be proven to be
``calculated to influence or affect the conduct of government
by intimidation or coercion; or to retaliate against government
conduct.''
Additionally, any attempt or conspiracy to commit any
violation of this section is considered a ``Federal terrorism
offense'' and therefore will be subject to the same penalties.
This section also adds the definition of ``domestic
terrorism'' to title 18 U.S.C. Sec. 2331 which currently
defines ``international terrorism.'' This new definition is
used in this legislation.
Section 310. Civil Damages
This section amends Sec. 2707(c) that allows for civil
damages against those who violate the provisions of Sec. 2703.
Under current law, in no case shall a person entitled to
recover damages receive less than the sum of $1,000. This
section would increase that amount to $10,000.
Title III--Criminal Justice
Subtitle B--Criminal Procedure
Section 351. Single-Jurisdiction Search Warrants for Terrorism
Rule 41(a) of the Federal Rules of Criminal Procedure
currently requires that a search warrant be obtained within the
judicial district where the property to be searched is located.
The only exception is where property or a person now in the
district might leave before the warrant is executed. This
restriction often causes unnecessary delays and burdens on law
enforcement officers investigating terrorist activities that
have occurred across multiple judicial districts. These delays
can have serious adverse consequences on an ongoing terrorism
investigation.
Section 351 amends rule 41(a) to provide that in an
investigation of domestic or international terrorism a search
warrant can be obtained in any district court of the United
States, or any United States Court of Appeals, having
jurisdiction over the offense being investigated. It permits
the prosecution to obtain a warrant from the judge in the
district where the investigation is being conducted, regardless
of where the property to be searched is located.
Section 352. DNA Identification of Terrorists
The DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C.
Sec. 14135a(d)(1)) governs the collection of DNA samples from
convicted felons and includes a number of Federal crimes for
which the DNA samples are required to be collected. Present
law, however, does not cover a number of crimes that may be
committed by terrorists. Currently, offenses relating to
murders on hijacked aircraft, to blowing up buildings or to
murder of U.S. nationals abroad are not qualifying Federal
offenses for purposes of DNA sample collection. This new
section extends DNA sample collection to all persons convicted
of Federal terrorism offenses (as defined in 18 U.S.C.
Sec. 25).
Section 353. Grand Jury Matters
Rule 6(e)(3)(A) of the Federal Rules of Criminal Procedure
provides for an exception to the otherwise prohibited
disclosure of matters occurring before the grand jury. This Act
amends rule 6(e) to permit the sharing of grand jury
information that pertains to international or domestic
terrorism, or national security, to a limited group of
officials (including the President and Vice President) so long
as they are performing official duties. The government is
required to apply to the court in order to disclose the grand
jury material. Permitting the sharing of certain grand jury
information with those in the intelligence community will
assist in the investigation of terrorist crimes and protect the
national security.
Section 354. Extraterritoriality
Chapter 113B of title 18 (18 U.S.C. Sec. 2331 et. seq.)
sets forth the crimes of terrorism, including acts of terrorism
across national boundaries. Under current law, certain
terrorism crimes can be prosecuted by the United States
regardless of where they are committed. For example, section
2333b (terrorism transcending national boundaries) and section
2332a (use of weapons of mass destruction). There are, however,
no explicit extraterritoriality provisions in other statutes
that may be violated by terrorists. This section of the bill
clarifies that extraterritorial Federal jurisdiction exists for
any Federal terrorism offense.
Section 355. Jurisdiction over crimes committed at the United States
facilities abroad.
Title 18 U.S.C. Sec. 7 entitled ``Special Maritime and
Territorial Jurisdiction of the United States defined'' is a
critical means of jurisdiction for Diplomatic Security agents.
Certain statutes are limited to the scope of 18 U.S.C. Sec. 7,
such as 18 U.S.C. Sec. 114 (Maiming), 18 U.S.C. Sec. 1111
(Murder), 18 U.S.C. Sec. 1112 (Manslaughter), 18 U.S.C.
Sec. 1113 (Attempt to commit Murder or Manslaughter), and 18
U.S.C.Sec. 2243(a) (Sexual Abuse of a minor). In the year 2000,
extraterritoriality regarding U.S. embassies and U.S. embassy
housing overseas was the subject of differing interpretations
by judicial circuits.
Diplomatic Security agents have operated under the legal
precedent of United States v. Erdos, 474 F2d 157 (4th Cir.,
1973), which held that an Embassy was within the special
maritime and territorial jurisdiction of the United States.
This precedent is now being challenged. This section would make
it clear that embassies and embassy housing of the United
States in foreign states are included in the special maritime
and territorial jurisdiction of the United States. This section
does not apply to members of the Armed Forces because they
would already be subject to the special maritime and
territorial jurisdiction of the United States under title 18
U.S.C. Sec. 3261(a).
Section 356. Special Agent authorities.
This section amends Sec. 37(a) of the State Department
Basic Authorities Act (22 U.S.C. Sec. 2709(a)), which sets
forth the authorities of special agents in the Diplomatic
Security Service. It both clarifies and enhances the scope of
authorities of special agents in order that they can better
fulfill their responsibilities.
First, this provision places special agents on a par with
other Federal law enforcement officers by enabling them to
obtain and execute search and arrest warrants as well as obtain
and serve subpoenas or summonses issued under the authority of
the United States. Under current law, special agents may
exercise these investigatory authorities only for offenses
involving passport or visa issuance. They cannot exercise these
essential authorities, for example, with respect to the
protection of foreign officials or the Secretary of State.
Currently, a special agent on protective detail who identifies
an individual outside the Secretary of State's residence who is
the subject of a warrant for planning the assassination of the
Secretary of State cannot execute that warrant.
Second, this section expands and clarifies the scope of
special agent's authority to arrest individuals without a
warrant when a Federal offense is committed in their presence,
and to make arrests for felonies if they have reasonable
grounds to believe that the person to be arrested has committed
or is committing such felony. It also would enable special
agents to arrest individuals interfering in their protective
functions (see below) or without having to rely on local law
enforcement officials.
Third, this provision would subject an individual to a
criminal misdemeanor penalty who interferes with a special
agent, or another Federal law enforcement agent temporarily
detailed in support of the Diplomatic Service protective
mission. This is similar to a provision that pertains to
interference with Secret Service agents or other Federal law
enforcement officers detailed to assist the Secret Service in
its protective mission (18 U.S.C. Sec. 3056(d)).
Title IV--Financial Infrastructure
Section 401. Laundering the Proceeds of Terrorism
This section amends title 18 U.S.C. Sec. 1956(c)(7)(D),
which prohibits conducting or attempting to conduct a financial
transaction knowing that the property involved represents the
proceeds of a specified unlawful activity, by adding a further
predicate offense to the list of specified unlawful activities
in order to provide a more comprehensive coverage of the crime
of money-laundering related to terrorism. 18 U.S.C. Sec. 2339B,
which prohibits providing material support or resources to
foreign terrorist organizations, would be added to the list of
crimes which define the term ``specified unlawful activity.''
Section 402. Material Support for Terrorism
This section amends the definition of ``material support or
resources'' under title 18 U.S.C. Sec. 2339A, which currently
is defined as ``currency or other financial securities,
financial services, lodging, training, safehouses, false
documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel,
transportation, and other physical assets, except medicine or
religious materials.'' This section would replace the term
``other financial securities'' with the phrase ``monetary
instruments or financial securities.'' This change would allow
for a broader range of monetary instruments to be included
within the scope of ``material support or resources.''
Section 403. Assets of Terrorist Organizations
This section would amend 18 U.S.C. Sec. 981 to expressly
provide that any property used to commit or facilitate the
commission of, derived from, or otherwise involved in a Federal
crime of terrorism (as defined in 18 U.S.C. Sec. 2331) is
subject to civil forfeiture provisions. Currently, only the
``proceeds'' of a crime of terrorism are subject to civil
forfeiture provisions.
Section 404. Technical Clarification Relating to Provision of Material
Support to Terrorism
This section would clarify that the exceptions for food and
agricultural products to the nation's Trade Sanctions Programs
provided for in the Trade Sanctions Reform and Export
Enhancement Act of 2000 shall not limit the provisions of 18
U.S.C. 2339A or 2339B which prohibit providing material support
or resources to terrorists and terrorist organizations. With
this section, it is clear that anyone who provides food and
agricultural products in support of terrorist activity will
still be subject to criminal prosecution under sections 2339A
and 2339B and will not be able to hide behind the exceptions to
the Trade Sanctions Program.
Section 405. Disclosure of Tax Information in terrorism and nation
security investigations
This section amends 26 U.S.C. 6103(i)(3) to permit the
disclosure of return information by the Internal Revenue
Service to the extent necessary to the head of any Federal law
enforcement agency in order to assist in the investigation of
terrorist incidents, threats, or activities. The disclosure may
also be made upon the particularized request of the head of a
Federal law enforcement agency. The section also provides that,
upon the application of a person appointed by the President and
confirmed by the Senate, return information shall be open to
inspection by, or disclosure to, officers and employees of the
Department of Justice and the Department of Treasury engaged in
the collection or analysis of intelligence information
concerning terrorist organizations or activities. Such
information may be disseminated to other agencies only for use
in analysis of and investigation into terrorist activities.
Section 406. Extraterritorial Jurisdiction
Generally, 18 U.S.C. 1029 prohibits the production, use, or
trafficking of counterfeit access devices. Access devices are
any card, code, account number, pin number or other means of
account access that can be used to obtain money, goods,
services, or any other thing of value. This section would add a
new paragraph that would make any person outside the
jurisdiction of the United States criminally liable for a
violation of 18 U.S.C. 1029 if the offense involves an access
device issued , owned, managed, or controlled by a financial
institution within the jurisdiction of the United States and
the person transports, delivers, conveys, or otherwise stores,
or holds within the jurisdiction of the United States, the
proceeds of such offense or property derived therefrom.
Depending on the persons level of involvement, the maximum
penalty ranges from 10 to 20 years imprisonment.
Title V--Emergency Authorizations
Section 501. Office of Justice Programs
This section removes any caps or limitations available
under the Victim's of Crime Fund to address the needs of the
victims of the terrorist attacks of September 11, 2001. This
provision specifically allows the funds allocated for
responding to the needs of victims of terrorism within the
United States to be awarded to victim service organizations,
public agencies (Federal, State and local), and non-
governmental organizations that provide assistance to victims
of crime. This section makes changes to the public safety
officer benefits (PSOB) programs to provide for public safety
officers disabled in the September 11, 2001, terrorist acts and
the rescue efforts associated with these acts.
Section 502. Attorney General's Authority to Pay Rewards
This section specifies that any reward offered by the
Attorney General in connection with hijackings or terrorist
acts shall not be subject to spending limitations or count
toward any aggregate spending limitations.
Section 503. Limited Authority to Pay Overtime
Under the Department of Justice Appropriations Act for FY
2001, overtime pay for INS agents was limited to $30,000. This
section removes the limitation on overtime pay that was
included in DOJ Appropriations Act for 2001 for border patrol
and other INS agents.
Section 504. Department of State Reward Authority
This section amends the reward program operated by the
Secretary of State, which provides rewards for information that
assists in the prevention of acts of terrorism, narcotics
trafficking, and other criminal activities. In addition to the
information the Secretary of State is authorized to make
rewards for, this section would authorize the Secretary to
offer rewards for information that leads to ``dismantling an
organization'' or information regarding the ``identification or
location of an individual holding a leadership position in a
terrorist organization.'' This section also amends the
Secretary of States rewards program to increase the maximum
payment allowed to $10 million or more if the Secretary
personally determines that an offer or payment is essential to
the national security interests of the United States.
Section 505: Authorization of Funds for DEA Police Training in South
and Central Asia
An amendment offered by Mr. Hyde, which was adopted by the
Committee, created a new Section 505 of the bill. Section 505
authorizes $5,000,000 for FY 2002 for regional antidrug
training in the Republic of Turkey by the Drug Enforcement
Administration for police, as well as increased precursor
chemical control efforts in the South and Central Asia region.
One source of funding for the activities of the Taliban and
Al Qaida is drug trafficking in heroin. Most of the chemicals
necessary for the production of heroin come from South and
Central Asia. Once the heroin is produced, most of it is
smuggled through Turkey for sale in Europe. This section will
provide assistance to train Turkish and South and Central Asian
law enforcement to combat drug trafficking at all stages in the
production and transportation of heroin.
Section 506: Public Safety Officer Benefits
Currently, payments are made to families of public safety
officers killed or officers disabled in the line of duty. This
provision will increase the authorized payment level from
$100,000 to $250,000 for any death or disability occurring on
or after January 1, 2001.
Title VI--Dam Security
Section 601. Security of Reclamation Dams, Facilities, and Resources
Section 2805(a) of the Reclamation Recreation Management
Act of 1992 (16 U.S.C. 460l-33(a)) provides that the Secretary
of the Interior shall promulgate such regulations as are
necessary to ensure the protection and well-being of the public
with respect to the use of Reclamation lands and ensure the
protection of resource values. This section of the bill
provides that any person who violates any regulation
promulgated by the Secretary of the Interior under 16 U.S.C.
460l-33(a) shall be fined, imprisoned not more than 6 months,
or both. This section also provides that the Secretary may
authorize law enforcement personnel from the Department of the
Interior, other Federal agencies, or law enforcement personnel
of any State or local government to act as law enforcement
officers within a Reclamation project or on Reclamation lands.
This will ensure that an appropriate penalty will be attached
to any violation of regulations intended to protect the public
safety on Reclamation lands and that law enforcement officers
will be available to enforce those regulations.
Title VII--Miscellaneous
Section 701. Employment of Translators by the Federal Bureau of
Investigations
There is a great need to increase the number of translators
available to the Federal Bureau of Investigation in order to
assist in the war on terrorism. This section authorizes the
Director of the Federal Bureau of Investigation to expedite the
employment of personnel as translators to support
counterterrorism investigations and operations. This section
also directs the FBI to establish such security requirements as
are necessary for these translators and to report to Congress
regarding the status of translators employed by the Department
of Justice.
Section 702. Review of the Department of Justice
In the wake of several significant incidents of security
lapses and breach of regulations, there has arisen the need for
independent oversight of the Federal Bureau of Investigations.
Oversight of the Federal Bureau of Investigations is currently
under the jurisdiction of the Department of Justice Office of
Professional Responsibility. This section directs the Inspector
General of the Department of Justice to appoint a Deputy
Inspector General for Civil Rights, Civil Liberties, and the
Federal Bureau of Investigations who shall be responsible for
supervising independent oversight of the FBI until September
30, 2004. This section also directs the Deputy Inspector to
review all information alleging abuses of civil rights, civil
liberties, and racial and ethnic profiling by employees of the
Department of Justice, which could include allegations of
inappropriate profiling at the border.
Section 703. Feasability study on use of biometric identifier scanning
system with access to the FBI Integrated Automated Fingerprint
Identification System at overseas consular posts and points of
entry to the United States
Requires the Attorney General to conduct a study of the
feasibility of utilizing a biometric identifier (fingerprint)
scanning system at consular offices and points of entry into
the United States to identify aliens who may be wanted in
connection with criminal or terrorist investigations in the
United States or abroad. A biometric fingerprint scanning
system is a sophisticated computer scanning technology that
analyzes a persons fingerprint and compares the measurement
with a verified sample digitally stored in the system. The
accuracy of these systems is claimed to be above 99.9%. The
biometric identifier system contemplated by this section would
have access to the database of the Federal Bureau of
Investigation Integrated Automated Fingerprint Identification
System. The section requires that the Attorney General shall
submit a summary of the findings of the study to Congress
within 90 days.
Section 704. Study of access
Requires the Federal Bureau of Investigation to study and
report to Congress, not later than December 31, 2002, on the
feasibility of providing to airlines access via computer to the
names of passengers who are suspected of terrorist activity by
Federal officials. This section authorizes to be appropriated
for fiscal years 2002 through 2003 not more than $250,000 to
conduct this study and report to Congress.
Section 705. Enforcement of certain anti-terrorism judgments
Under current law, 18 U.S.C. Sec. 1604, a foreign state is
immune from the jurisdiction of the courts of the United
States. There are general exceptions to this law set forth in
18 U.S.C. Sec. 1605. One of those exceptions, 18 U.S.C.
Sec. 1605(a)(7), provides that a foreign state shall not be
immune from the jurisdiction of the courts of the United States
in cases where personal injury or death has occurred as a
result of a terrorist act. 18 U.S.C. Sec. 1610(f)(1)(A) allows
any judgment in such a case to be enforced against the property
in the United States of foreign state that would otherwise be
immune, including embassy property. However, 18 U.S.C.
Sec. 1610(f)(3) allows the President to waive this exception in
the interests of national security. Section 705 would limit the
President's ability to waive the exception in 18 U.S.C.
Sec. 1610(f)(1)(A). Under this section, the President's waiver
authority would not apply to assets of a foreign state in the
United States that have been used for any nondiplomatic purpose
and assets that have been sold to a third party (the proceeds
from the sale of such assets would be subject to seizure).
Title VIII--Private Security Officer Quality Assurance
Section 801. Short Title
This section is cited as the ``Private Security Officer
Quality Assurance Act of 2001''.
Section 802. Findings
Private security officers are much more prominent in
society today than years ago. Members of the public are
increasingly likely to have contact with these individuals and
often mistake them for law enforcement officers. It is
important that private security officers are qualified, well-
trained individuals to supplement the work of sworn law
enforcement officers.
Section 803. Background Checks
An association of employers of private security officers
may submit fingerprints or other methods of identification to
the Attorney General for purposes of State licensing or
certification. The Attorney General may prescribe any necessary
regulations related to security, confidentiality, accuracy,
use, dissemination of this information and may impose such fees
which may be necessary.
Section 804. Sense of Congress
It is the sense of Congress that States should participate
in the background check system.
Section 805. Definitions
This section defines terms related to this title.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 1--GENERAL PROVISIONS
Sec.
1. Repealed.
* * * * * * *
25. Federal terrorism offense defined.
* * * * * * *
Sec. 7. Special maritime and territorial jurisdiction of the United
States defined
The term ``special maritime and territorial jurisdiction of
the United States'', as used in this title, includes:
(1) * * *
* * * * * * *
(9)(A) With respect to offenses committed by or
against a United States national, as defined in section
1203(c) of this title--
(i) the premises of United States
diplomatic, consular, military, or other United
States Government missions or entities in
foreign states, including the buildings, parts
of buildings, and the land appurtenant or
ancillary thereto, irrespective of ownership,
used for purposes of those missions or
entities; and
(ii) residences in foreign states and the
land appurtenant or ancillary thereto,
irrespective of ownership, used for purposes of
those missions or entities or used by United
States personnel assigned to those missions or
entities, except that this paragraph does not
supercede any treaty or international agreement
in force on the date of the enactment of this
paragraph.
(B) This paragraph does not apply with respect to
an offense committed by a person described in section
3261(a).
* * * * * * *
Sec. 25. Federal terrorism offense defined
As used in this title, the term ``Federal terrorism
offense'' means an offense that is--
(1) is calculated to influence or affect the
conduct of government by intimidation or coercion; or
to retaliate against government conduct; and
(2) is a violation of, or an attempt or conspiracy
to violate- section 32 (relating to destruction of
aircraft or aircraft facilities), 37 (relating to
violence at international airports), 81 (relating to
arson within special maritime and territorial
jurisdiction), 175, 175b (relating to biological
weapons), 229 (relating to chemical weapons), 351(a)-
(d) (relating to congressional, cabinet, and Supreme
Court assassination and kidnaping), 791 (relating to
harboring terrorists), 831 (relating to nuclear
materials), 842(m) or (n) (relating to plastic
explosives), 844(f) or (i) (relating to arson and
bombing of certain property), 930(c), 956 (relating to
conspiracy to injure property of a foreign government),
1030(a)(1), 1030(a)(5)(A), or 1030(a)(7) (relating to
protection of computers), 1114 (relating to protection
of officers and employees of the United States), 1116
(relating to murder or manslaughter of foreign
officials, official guests, or internationally
protected persons), 1203 (relating to hostage taking),
1361 (relating to injury of Government property or
contracts), 1362 (relating to destruction of
communication lines, stations, or systems), 1363
(relating to injury to buildings or property within
special maritime and territorial jurisdiction of the
United States), 1366 (relating to destruction of an
energy facility), 1751(a)-(d) (relating to Presidential
and Presidential staff assassination and kidnaping),
1992, 2152 (relating to injury of fortifications,
harbor defenses, or defensive sea areas), 2155
(relating to destruction of national defense materials,
premises, or utilities), 2156 (relating to production
of defective national defense materials, premises, or
utilities), 2280 (relating to violence against maritime
navigation), 2281 (relating to violence against
maritime fixed platforms), 2332 (relating to certain
homicides and other violence against United States
nationals occurring outside of the United States),
2332a (relating to use of weapons of mass destruction),
2332b (relating to acts of terrorism transcending
national boundaries), 2339A (relating to providing
material support to terrorists), 2339B (relating to
providing material support to terrorist organizations),
or 2340A (relating to torture);
(3) section 236 (relating to sabotage of nuclear
facilities or fuel) of the Atomic Energy Act of 1954
(42 U.S.C. 2284);
(4) section 601 (relating to disclosure of
identities of covert agents) of the National Security
Act of 1947 (50 U.S.C. 421); or
(5) any of the following provisions of title 49:
section 46502 (relating to aircraft piracy), the second
sentence of section 46504 (relating to assault on a
flight crew with a dangerous weapon), section
46505(b)(3), (relating to explosive or incendiary
devices, or endangerment of human life by means of
weapons, on aircraft), section 46506 if homicide or
attempted homicide is involved, or section 60123(b)
(relating to destruction of interstate gas or hazardous
liquid pipeline facility) of title 49.
* * * * * * *
CHAPTER 10--BIOLOGICAL WEAPONS
Sec.
175. Prohibitions with respect to biological weapons.
* * * * * * *
175b. Possession by restricted persons.
* * * * * * *
Sec. 175. Prohibitions with respect to biological weapons
(a) * * *
(b) Additional Offense.--Whoever knowingly possesses any
biological agent, toxin, or delivery system of a type or in a
quantity that, under the circumstances, is not reasonably
justified by a prophylactic, protective, or other peaceful
purpose, shall be fined under this title, imprisoned not more
than 10 years, or both.
[(b)] (c) Definition.--For purposes of this [section, the]
section--
(1) the term ``for use as a weapon'' [does not
include] includes the development, production,
transfer, acquisition, retention, or possession of any
biological agent, toxin, or delivery system for other
than prophylactic, protective, or other peaceful
[purposes.] purposes, and
(2) the terms biological agent and toxin do not
encompass any biological agent or toxin that is in its
naturally-occurring environment, if the biological
agent or toxin has not been cultivated, collected, or
otherwise extracted from its natural source.
* * * * * * *
Sec. 175b. Possession by restricted persons
(a) No restricted person described in subsection (b) shall
ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any biological agent or toxin, or
receive any biological agent or toxin that has been shipped or
transported in interstate or foreign commerce, if the
biological agent or toxin is listed as a select agent in
subsection (j) of section 72.6 of title 42, Code of Federal
Regulations, pursuant to section 511(d)(1) of the Antiterrorism
and Effective Death Penalty Act of 1996 (Public Law 104-132),
and is not exempted under subsection (h) of such section 72.6,
or Appendix A of part 72 of such title; except that the term
select agent does not include any such biological agent or
toxin that is in its naturally-occurring environment, if the
biological agent or toxin has not been cultivated, collected,
or otherwise extracted from its natural source.
(b) As used in this section, the term ``restricted person''
means an individual who--
(1) is under indictment for a crime punishable by
imprisonment for a term exceeding 1 year;
(2) has been convicted in any court of a crime
punishable by imprisonment for a term exceeding 1 year;
(3) is a fugitive from justice;
(4) is an unlawful user of any controlled substance
(as defined in section 102 of the Controlled Substances
Act (21 U.S.C. 802));
(5) is an alien illegally or unlawfully in the
United States;
(6) has been adjudicated as a mental defective or
has been committed to any mental institution; or
(7) is an alien (other than an alien lawfully
admitted for permanent residence) who is a national of
a country as to which the Secretary of State, pursuant
to section 6(j) of the Export Administration Act of
1979 (50 U.S.C. App. 2405(j)), section 620A of chapter
1 of part M of the Foreign Assistance Act of 1961 (22
U.S.C. 2371), or section 40(d) of chapter 3 of the Arms
Export Control Act (22 U.S.C. 2780(d)), has made a
determination that remains in effect that such country
has repeatedly provided support for acts of
international terrorism.
(c) As used in this section, the term ``alien'' has the
same meaning as that term is given in section 1010(a)(3) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(3)), and the
term ``lawfully'' admitted for permanent residence has the same
meaning as that term is given in section 101(a)(20) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(20)).
(d) Whoever knowingly violates this section shall be fined
under this title or imprisoned not more than ten years, or
both, but the prohibition contained in this section shall not
apply with respect to any duly authorized governmental activity
under title V of the National Security Act of 1947.
* * * * * * *
CHAPTER 37--ESPIONAGE AND CENSORSHIP
Sec.
791. Prohibition against harboring.
792. Harboring or concealing persons.
* * * * * * *
Sec. 791. Prohibition against harboring
Whoever harbors or conceals any person who he knows has
committed, or is about to commit, an offense described in
section 25(2) or this title shall be fined under this title or
imprisoned not more than ten years or both. There is
extraterritorial Federal jurisdiction over any violation of
this section or any conspiracy or attempt to violate this
section. A violation of this section or of such a conspiracy or
attempt may be prosecuted in any Federal judicial district in
which the underlying offense was committed, or in any other
Federal judicial district as provided by law.
* * * * * * *
CHAPTER 46--FORFEITURE
* * * * * * *
Sec. 981. Civil forfeiture
(a)(1) The following property is subject to forfeiture to
the United States:
(A) * * *
* * * * * * *
(G) All assets, foreign or domestic--
(i) of any person, entity, or organization
engaged in planning or perpetrating any act of
domestic terrorism or international terrorism
(as defined in section 2331) against the United
States, citizens or residents of the United
States, or their property, and all assets,
foreign or domestic, affording any person a
source of influence over any such entity or
organization;
(ii) acquired or maintained by any person
for the purpose of supporting, planning,
conducting, or concealing an act of domestic
terrorism or international terrorism (as
defined in section 2331) against the United
States, citizens or residents of the United
States, or their property; or
(iii) derived from, involved in, or used or
intended to be used to commit any act of
domestic terrorism or international terrorism
(as defined in section 2331) against the United
States, citizens or residents of the United
States, or their property.
* * * * * * *
CHAPTER 47--FRAUD AND FALSE STATEMENTS
* * * * * * *
Sec. 1029. Fraud and related activity in connection with access devices
(a) * * *
* * * * * * *
(h) Any person who, outside the jurisdiction of the United
States, engages in any act that, if committed within the
jurisdiction of the United States, would constitute an offense
under subsection (a) or (b) of this section, shall be subject
to the fines, penalties, imprisonment, and forfeiture provided
in this title if--
(1) the offense involves an access device issued,
owned, managed, or controlled by a financial
institution, account issuer, credit card system member,
or other entity within the jurisdiction of the United
States; and
(2) the person transports, delivers, conveys,
transfers to or through, or otherwise stores, secrets,
or holds within the jurisdiction of the United States,
any article used to assist in the commission of the
offense or the proceeds of such offense or property
derived therefrom.
* * * * * * *
CHAPTER 95--RACKETEERING
* * * * * * *
Sec. 1956. Laundering of monetary instruments
(a) * * *
* * * * * * *
(c) As used in this section--
(1) * * *
* * * * * * *
(7) the term ``specified unlawful activity''
means--
(A) * * *
* * * * * * *
(D) an offense under section 32 (relating
to the destruction of aircraft), section 37
(relating to violence at international
airports), section 115 (relating to
influencing, impeding, or retaliating against a
Federal official by threatening or injuring a
family member), section 152 (relating to
concealment of assets; false oaths and claims;
bribery), section 215 (relating to commissions
or gifts for procuring loans), section 351
(relating to congressional or Cabinet officer
assassination), any of sections 500 through 503
(relating to certain counterfeiting offenses),
section 513 (relating to securities of States
and private entities), section 542 (relating to
entry of goods by means of false statements),
section 545 (relating to smuggling goods into
the United States), section 549 (relating to
removing goods from Customs custody), section
641 (relating to public money, property, or
records), section 656 (relating to theft,
embezzlement, or misapplication by bank officer
or employee), section 657 (relating to lending,
credit, and insurance institutions), section
658 (relating to property mortgaged or pledged
to farm credit agencies), section 666 (relating
to theft or bribery concerning programs
receiving Federal funds), section 793, 794, or
798 (relating to espionage), section 831
(relating to prohibited transactions involving
nuclear materials), section 844 (f) or (i)
(relating to destruction by explosives or fire
of Government property or property affecting
interstate or foreign commerce), section 875
(relating to interstate communications),
section 956 (relating to conspiracy to kill,
kidnap, maim, or injure certain property in a
foreign country), section 1005 (relating to
fraudulent bank entries), 1006 (relating to
fraudulent Federal credit institution entries),
1007 (relating to Federal Deposit Insurance
transactions), 1014 (relating to fraudulent
loan or credit applications), 1032 (relating to
concealment of assets from conservator,
receiver, or liquidating agent of financial
institution), section 1111 (relating to
murder), section 1114 (relating to murder of
United States law enforcement officials),
section 1116 (relating to murder of foreign
officials, official guests, or internationally
protected persons), section 1201 (relating to
kidnapping), section 1203 (relating to hostage
taking), section 1361 (relating to willful
injury of Government property), section 1363
(relating to destruction of property within the
special maritime and territorial jurisdiction),
section 1708 (theft from the mail), section
1751 (relating to Presidential assassination),
section 2113 or 2114 (relating to bank and
postal robbery and theft), section 2280
(relating to violence against maritime
navigation), section 2281 (relating to violence
against maritime fixed platforms), or section
2319 (relating to copyright infringement),
section 2320 (relating to trafficking in
counterfeit goods and services),, section 2332
(relating to terrorist acts abroad against
United States nationals), section 2332a
(relating to use of weapons of mass
destruction), section 2332b (relating to
international terrorist acts transcending
national boundaries), or section 2339A or 2339B
(relating to providing material support to
terrorists) of this title, section 46502 of
title 49, United States Code,, a felony
violation of the Chemical Diversion and
Trafficking Act of 1988 (relating to precursor
and essential chemicals), section 590 of the
Tariff Act of 1930 (19 U.S.C. 1590) (relating
to aviation smuggling), section 422 of the
Controlled Substances Act (relating to
transportation of drug paraphernalia), section
38(c) (relating to criminal violations) of the
Arms Export Control Act, section 11 (relating
to violations) of the Export Administration Act
of 1979, section 206 (relating to penalties) of
the International Emergency Economic Powers
Act, section 16 (relating to offenses and
punishment) of the Trading with the Enemy Act,
any felony violation of section 15 of the Food
Stamp Act of 1977 (relating to food stamp
fraud) involving a quantity of coupons having a
value of not less than $5,000, any violation of
section 543(a)(1) of the Housing Act of 1949
(relating to equity skimming), or any felony
violation of the Foreign Corrupt Practices Act;
or
* * * * * * *
CHAPTER 96--RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
* * * * * * *
Sec. 1961. Definitions
As used in this chapter--
(1) ``racketeering activity'' means (A) any act or
threat involving murder, kidnapping, gambling, arson,
robbery, bribery, extortion, dealing in obscene matter,
or dealing in a controlled substance or listed chemical
(as defined in section 102 of the Controlled Substances
Act), which is chargeable under State law and
punishable by imprisonment for more than one year; (B)
any act which is indictable under any of the following
provisions of title 18, United States Code: Section 201
(relating to bribery), section 224 (relating to sports
bribery), sections 471, 472, and 473 (relating to
counterfeiting), section 659 (relating to theft from
interstate shipment) if the act indictable under
section 659 is felonious, section 664 (relating to
embezzlement from pension and welfare funds), sections
891-894 (relating to extortionate credit transactions),
section 1028 (relating to fraud and related activity in
connection with identification documents), section 1029
(relating to fraud and related activity in connection
with access devices), section 1084 (relating to the
transmission of gambling information), section 1341
(relating to mail fraud), section 1343 (relating to
wire fraud), section 1344 (relating to financial
institution fraud), section 1425 (relating to the
procurement of citizenship or nationalization
unlawfully), section 1426 (relating to the reproduction
of naturalization or citizenship papers), section 1427
(relating to the sale of naturalization or citizenship
papers), sections 1461-1465 (relating to obscene
matter), section 1503 (relating to obstruction of
justice), section 1510 (relating to obstruction of
criminal investigations), section 1511 (relating to the
obstruction of State or local law enforcement), section
1512 (relating to tampering with a witness, victim, or
an informant), section 1513 (relating to retaliating
against a witness, victim, or an informant), section
1542 (relating to false statement in application and
use of passport), section 1543 (relating to forgery or
false use of passport), section 1544 (relating to
misuse of passport), section 1546 (relating to fraud
and misuse of visas, permits, and other documents),
sections 1581-1588 (relating to peonage and slavery),
section 1951 (relating to interference with commerce,
robbery, or extortion), section 1952 (relating to
racketeering), section 1953 (relating to interstate
transportation of wagering paraphernalia), section 1954
(relating to unlawful welfare fund payments), section
1955 (relating to the prohibition of illegal gambling
businesses), section 1956 (relating to the laundering
of monetary instruments), section 1957 (relating to
engaging in monetary transactions in property derived
from specified unlawful activity), section 1958
(relating to use of interstate commerce facilities in
the commission of murder-for-hire), sections 2251,
2251A, 2252, and 2260 (relating to sexual exploitation
of children), sections 2312 and 2313 (relating to
interstate transportation of stolen motor vehicles),
sections 2314 and 2315 (relating to interstate
transportation of stolen property), section 2318
(relating to trafficking in counterfeit labels for
phonorecords, computer programs or computer program
documentation or packaging and copies of motion
pictures or other audiovisual works), section 2319
(relating to criminal infringement of a copyright),
section 2319A (relating to unauthorized fixation of and
trafficking in sound recordings and music videos of
live musical performances), section 2320 (relating to
trafficking in goods or services bearing counterfeit
marks), section 2321 (relating to trafficking in
certain motor vehicles or motor vehicle parts),
sections 2341-2346 (relating to trafficking in
contraband cigarettes), sections 2421-24 (relating to
white slave traffic), (C) any act which is indictable
under title 29, United States Code, section 186
(dealing with restrictions on payments and loans to
labor organizations) or section 501(c) (relating to
embezzlement from union funds), (D) any offense
involving fraud connected with a case under title 11
(except a case under section 157 of this title), fraud
in the sale of securities, or the felonious
manufacture, importation, receiving, concealment,
buying, selling, or otherwise dealing in a controlled
substance or listed chemical (as defined in section 102
of the Controlled Substances Act), punishable under any
law of the United States, (E) any act which is
indictable under the Currency and Foreign Transactions
Reporting Act, [or] (F) any act which is indictable
under the Immigration and Nationality Act, section 274
(relating to bringing in and harboring certain aliens),
section 277 (relating to aiding or assisting certain
aliens to enter the United States), or section 278
(relating to importation of alien for immoral purpose)
if the act indictable under such section of such Act
was committed for the purpose of [financial gain.]
financial gain, or (G) any act that is a Federal
terrorism offense or is indictable under any of the
following provisions of law: section 32 (relating to
destruction of aircraft or aircraft facilities),
37(a)(1) (relating to violence at international
airports), 175 (relating to biological weapons), 229
(relating to chemical weapons), 351(a)-(d) (relating to
congressional, cabinet, and Supreme Court assassination
and kidnaping), 831 (relating to nuclear materials),
842(m) or (n) (relating to plastic explosives), 844(f)
or (i) when it involves a bombing (relating to arson
and bombing of certain property), 930(c) when it
involves an attack on a Federal facility, 1114 when it
involves murder (relating to protection of officers and
employees of the United States), 1116 when it involves
murder (relating to murder or manslaughter of foreign
officials, official guests, or internationally
protected persons), 1203 (relating to hostage taking),
1362 (relating to destruction of communication lines,
stations, or systems), 1366 (relating to destruction of
an energy facility), 1751(a)-(d) (relating to
Presidential and Presidential staff assassination and
kidnaping), 1992 (relating to trainwrecking), 2280
(relating to violence against maritime navigation),
2281 (relating to violence against maritime fixed
platforms), 2332a (relating to use of weapons of mass
destruction), 2332b (relating to acts of terrorism
transcending national boundaries), 2339A (relating to
providing material support to terrorists), 2339B
(relating to providing material support to terrorist
organizations), or 2340A (relating to torture) of this
title; section 236 (relating to sabotage of nuclear
facilities or fuel) of the Atomic Energy Act of 1954
(42 U.S.C. 2284); or section 46502 (relating to
aircraft piracy) or 60123(b) (relating to destruction
of interstate gas or hazardous liquid pipeline
facility) of title 49;
* * * * * * *
CHAPTER 113B--TERRORISM
* * * * * * *
Sec.
2331. Definitions.
* * * * * * *
2332c. Attempts and conspiracies.
* * * * * * *
2338. [Exclusive] Federal jurisdiction.
* * * * * * *
Sec. 2331. Definitions
As used in this chapter--
(1) the term ``international terrorism'' means
activities that--
(A) * * *
(B) appear to be intended (or to have the
effect)--
(i) * * *
* * * * * * *
(iii) to affect the conduct of a
government [by assassination or
kidnapping] (or any function thereof)
by mass destruction, assassination, or
kidnapping (or threat thereof); and
* * * * * * *
(3) the term ``person'' means any individual or
entity capable of holding a legal or beneficial
interest in property; [and]
(4) the term ``act of war'' means any act occurring
in the course of--
(A) * * *
* * * * * * *
(C) armed conflict between military forces
of any origin[.]; and
(5) the term ``domestic terrorism'' means
activities that--
(A) involve acts dangerous to human life
that are a violation of the criminal laws of
the United States or of any State; and
(B) appear to be intended (or to have the
effect)--
(i) to intimidate or coerce a
civilian population;
(ii) to influence the policy of a
government by intimidation or coercion;
or
(iii) to affect the conduct of a
government (or any function thereof) by
mass destruction, assassination, or
kidnapping (or threat thereof).
* * * * * * *
Sec. 2332b. Acts of terrorism transcending national boundaries
(a) * * *
* * * * * * *
(g) Definitions.--As used in this section--
(1) * * *
* * * * * * *
(5) the term ``Federal crime of terrorism'' means
an offense that--
(A) * * *
(B) [is a violation of--
[(i) section 32 (relating to
destruction of aircraft or aircraft
facilities), 37 (relating to violence
at international airports), 81
(relating to arson within special
maritime and territorial jurisdiction),
175 (relating to biological weapons),
351 (relating to congressional,
cabinet, and Supreme Court
assassination, kidnapping, and
assault), 831 (relating to nuclear
materials), 842 (m) or (n) (relating to
plastic explosives), 844(e) (relating
to certain bombings), 844 (f) or (i)
(relating to arson and bombing of
certain property), 930(c), 956
(relating to conspiracy to injure
property of a foreign government), 1114
(relating to protection of officers and
employees of the United States), 1116
(relating to murder or manslaughter of
foreign officials, official guests, or
internationally protected persons),
1203 (relating to hostage taking), 1361
(relating to injury of Government
property or contracts), 1362 (relating
to destruction of communication lines,
stations, or systems), 1363 (relating
to injury to buildings or property
within special maritime and territorial
jurisdiction of the United States),
1366 (relating to destruction of an
energy facility), 1751 (relating to
Presidential and Presidential staff
assassination, kidnapping, and
assault), 1992, 2152 (relating to
injury of fortifications, harbor
defenses, or defensive sea areas), 2155
(relating to destruction of national
defense materials, premises, or
utilities), 2156 (relating to
production of defective national
defense materials, premises, or
utilities), 2280 (relating to violence
against maritime navigation), 2281
(relating to violence against maritime
fixed platforms), 2332 (relating to
certain homicides and other violence
against United States nationals
occurring outside of the United
States), 2332a (relating to use of
weapons of mass destruction), 2332b
(relating to acts of terrorism
transcending national boundaries),
2332c, 2339A (relating to providing
material support to terrorists), 2339B
(relating to providing material support
to terrorist organizations), or 2340A
(relating to torture);
[(ii) section 236 (relating to
sabotage of nuclear facilities or fuel)
of the Atomic Energy Act of 1954 (42
U.S.C. 2284); or
[(iii) section 46502 (relating to
aircraft piracy) or section 60123(b)
(relating to destruction of interstate
gas or hazardous liquid pipeline
facility) of title 49] is a Federal
terrorism offense.
Sec. 2332c. Attempts and conspiracies
(a) Except as provided in subsection (c), any person who
attempts or conspires to commit any Federal terrorism offense
shall be subject to the same penalties as those prescribed for
the offense, the commission of which was the object of the
attempt or conspiracy.
(b) Except as provided in subsection (c), any person who
attempts or conspires to commit any offense described in
section 25(2) shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.
(c) A death penalty may not be imposed by operation of this
section.
* * * * * * *
Sec. 2338. [Exclusive] Federal jurisdiction
There is extraterritorial Federal jurisdiction over any
Federal terrorism offense and any offense under this chapter,
in addition to any extraterritorial jurisdiction that may exist
under the law defining the offense, if the person committing
the offense or the victim of the offense is a national of the
United States (as defined in section 101 of the Immigration and
Nationality Act) or if the offense is directed at the security
or interests of the United States. The district courts of the
United States shall have exclusive jurisdiction over an action
brought under this chapter.
Sec. 2339A. Providing material support to terrorists
(a) Offense.--Whoever, within the United States, provides
material support or resources or conceals or disguises the
nature, location, source, or ownership of material support or
resources, knowing or intending that they are to be used in
preparation for, or in carrying out, [a violation of section
32, 37, 81, 175, 351, 831, 842 (m) or (n), 844 (f) or (i),
903(c), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751,
1992, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, 2332c, or
2340A of this title or section 46502 of title 49] any Federal
terrorism offense or any offense described in section 25(2), or
in preparation for, or in carrying out, the concealment or an
escape from the commission of any such [violation,] offense,
shall be fined under this title, imprisoned not more than 10
years, or both. A violation of this section may be prosecuted
in any Federal judicial district in which the underlying
offense was committed, or in any other Federal judicial
district as provided by law.
(b) Definition.--In this section, the term ``material
support or resources'' means currency [or other financial
securities] or monetary instruments or financial securities,
financial services, lodging, training, expert advice or
assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal
substances, explosives, personnel, transportation, and other
physical assets, except medicine or religious materials.
* * * * * * *
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
Sec.
2510. Definitions.
* * * * * * *
[2515. Prohibition of use as evidence of intercepted wire or oral
communications.]
2515. Prohibition of use as evidence of intercepted wire, oral, or
electronic communications.
* * * * * * *
Sec. 2510. Definitions
As used in this chapter--
(1) ``wire communication'' means any aural transfer
made in whole or in part through the use of facilities
for the transmission of communications by the aid of
wire, cable, or other like connection between the point
of origin and the point of reception (including the use
of such connection in a switching station) furnished or
operated by any person engaged in providing or
operating such facilities for the transmission of
interstate or foreign communications or communications
affecting interstate or foreign commerce [and such term
includes any electronic storage of such communication];
* * * * * * *
(7) ``Investigative or law enforcement officer''
means any officer of the United States or of a State or
political subdivision thereof, who is empowered by law
to conduct investigations of or to make arrests for
offenses enumerated in this chapter, and any attorney
authorized by law to prosecute or participate in the
prosecution of such offenses, and (for purposes only of
section 2517 as it relates to foreign intelligence
information as that term is defined in section 101(e)
of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801(e))) any Federal law enforcement,
intelligence, national security, national defense,
protective, immigration personnel, or the President or
Vice President of the United States;
* * * * * * *
(14) ``electronic communications system'' means any
wire, radio, electromagnetic, photooptical or
photoelectronic facilities for the transmission of wire
or electronic communications, and any computer
facilities or related electronic equipment for the
electronic storage of such communications;
* * * * * * *
(17) ``electronic storage'' means--
(A) * * *
(B) any storage of such communication by an
electronic communication service for purposes
of backup protection of such communication;
[and]
(18) ``aural transfer'' means a transfer containing
the human voice at any point between and including the
point of origin and the point of reception[.];
(19) ``protected computer'' has the meaning set
forth in section 1030; and
(20) ``computer trespasser'' means a person who
accesses a protected computer without authorization and
thus has no reasonable expectation of privacy in any
communication transmitted to, through, or from the
protected computer.
Sec. 2511. Interception and disclosure of wire, oral, or electronic
communications prohibited
(1) * * *
(2)(a) * * *
* * * * * * *
(f) Nothing contained in this chapter or chapter 121, or
section 705 of the Communications Act of 1934, shall be deemed
to affect the acquisition by the United States Government of
foreign intelligence information from international or foreign
communications, or foreign intelligence activities conducted in
accordance with otherwise applicable Federal law involving a
foreign electronic communications system, utilizing a means
other than electronic surveillance as defined in section 101 of
the Foreign Intelligence Surveillance Act of 1978, and
procedures in this chapter [or chapter 121], chapter 121, or
chapter 206 and the Foreign Intelligence Surveillance Act of
1978 shall be the exclusive means by which electronic
surveillance, as defined in section 101 of such Act, and the
interception of domestic [wire and oral] wire, oral, and
electronic communications may be conducted.
* * * * * * *
(i) It shall not be unlawful under this chapter for a
person acting under color of law to intercept the wire or
electronic communications of a computer trespasser, if--
(i) the owner or operator of the protected computer
authorizes the interception of the computer
trespasser's communications on the protected computer;
(ii) the person acting under color of law is
lawfully engaged in an investigation;
(iii) the person acting under color of law has
reasonable grounds to believe that the contents of the
computer trespasser's communications will be relevant
to the investigation; and
(iv) such interception does not acquire
communications other than those transmitted to or from
the computer trespasser.
(j) With respect to a voluntary or obligatory disclosure of
information (other than information revealing customer cable
viewing activity) under this chapter, chapter 121, or chapter
206, subsections (c)(2)(B) and (h) of section 631 of the
Communications Act of 1934 do not apply.
* * * * * * *
Sec. 2515. Prohibition of use as evidence of intercepted [wire or oral]
wire, oral, or electronic communications
[Whenever any wire or oral communication has been
intercepted] (a) Except as provided in subsection (b), whenever
any wire, oral, or electronic communication has been
intercepted, or any electronic communication in electronic
storage has been disclosed, no part of the contents of such
communication and no evidence derived therefrom may be received
in evidence in any trial, hearing, or other proceeding in or
before any court, grand jury, department, officer, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or a political subdivision thereof
if the disclosure of that information would be in violation of
this chapter or chapter 121.
(b) Subsection (a) does not apply to the disclosure, before
a grand jury or in a criminal trial, hearing, or other criminal
proceeding, of the contents of a communication, or evidence
derived therefrom, against a person alleged to have
intercepted, used, or disclosed the communication in violation
of this chapter, or chapter 121, or participated in such
violation.
* * * * * * *
Sec. 2517. Authorization for disclosure and use of intercepted wire,
oral, or electronic communications
(1) Any investigative or law enforcement officer who, by
any means authorized by this chapter or under the circumstances
described in section 2515(b), has obtained knowledge of the
contents of any wire, oral, or electronic communication, or
evidence derived therefrom, may disclose such contents to
another investigative or law enforcement officer to the extent
that such disclosure is appropriate to the proper performance
of the official duties of the officer making or receiving the
disclosure.
(2) Any investigative or law enforcement officer who, by
any means authorized by this chapter or under the circumstances
described in section 2515(b), has obtained knowledge of the
contents of any wire, oral, or electronic communication or
evidence derived therefrom may use such contents to the extent
such use is appropriate to the proper performance of his
official duties.
* * * * * * *
Sec. 2518. Procedure for interception of wire, oral, or electronic
communications
(1) * * *
* * * * * * *
(3) Upon such application the judge may enter an ex parte
order, as requested or as modified, authorizing or approving
interception of wire, oral, or electronic communications within
the territorial jurisdiction of the court in which the judge is
sitting (and outside that jurisdiction but within the United
States in the case of a mobile interception device authorized
by a Federal court within such jurisdiction), if the judge
determines on the basis of the facts submitted by the applicant
that--
(a) * * *
* * * * * * *
(c) normal investigative procedures have been tried
and have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous; and
* * * * * * *
(7) Notwithstanding any other provision of this chapter,
any investigative or law enforcement officer, specially
designated by the Attorney General, the Deputy Attorney
General, the Associate Attorney General, or by the principal
prosecuting attorney of any State or subdivision thereof acting
pursuant to a statute of that State, who reasonably determines
that--
(a) * * *
* * * * * * *
may intercept such wire, oral, or electronic communication if
an application for an order approving the interception is made
in accordance with this section within forty-eight hours after
the interception has occurred, or begins to occur. In the
absence of an order, such interception shall immediately
terminate when the communication sought is obtained or when the
application for the order is denied, whichever is earlier. In
the event such application for approval is denied, or in any
other case where the interception is terminated without an
order having been issued, the contents of any wire, oral, or
electronic communication intercepted shall be treated as having
been obtained in violation of this chapter, and an inventory
shall be served as provided for in [subsection (d)] subsection
(8)(d) of this section on the person named in the application.
* * * * * * *
(10)(a) Any aggrieved person in any trial, hearing, or
proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of the United States, a
State, or a political subdivision thereof, may move to suppress
the contents of any wire [or oral], oral, or electronic
communication intercepted pursuant to this chapter, or evidence
derived therefrom, on the grounds that--
(i) * * *
* * * * * * *
(iii) the interception was not made in conformity
with the order of authorization or approval[.];
except that no suppression may be ordered under the
circumstances described in section 2515(b). Such motion shall
be made before the trial, hearing, or proceeding unless there
was no opportunity to make such motion or the person was not
aware of the grounds of the motion. If the motion is granted,
the contents of the intercepted wire [or oral], oral, or
electronic communication, or evidence derived therefrom, shall
be treated as having been obtained in violation of this
chapter. The judge, upon the filing of such motion by the
aggrieved person, may in his discretion make available to the
aggrieved person or his counsel for inspection such portions of
the intercepted communication or evidence derived therefrom as
the judge determines to be in the interests of justice.
* * * * * * *
[(c) The remedies and sanctions described in this chapter
with respect to the interception of electronic communications
are the only judicial remedies and sanctions for
nonconstitutional violations of this chapter involving such
communications.]
* * * * * * *
Sec. 2520. Recovery of civil damages authorized
(a) * * *
* * * * * * *
(c) Computation of Damages.--(1) * * *
(2) In an action under this section by a citizen or legal
permanent resident of the United States against the United
States or any Federal investigative or law enforcement officer
(or against any State investigative or law enforcement officer
for disclosure or unlawful use of information obtained from
Federal investigative or law enforcement officers), the court
may assess as damages whichever is the greater of--
(A) the sum of actual damages suffered by the
plaintiff and any profits made by the violator as a
result of the violation; or
(B) statutory damages of whichever is the greater
of $100 a day for each day of violation or $10,000.
[(2)] (3) In any other action under this section, the court
may assess as damages whichever is the greater of--
(A) the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a
result of the violation; or
(B) statutory damages of whichever is the greater
of $100 a day for each day of violation or $10,000.
(d) Defense.--A good faith reliance on--
(1) * * *
* * * * * * *
(3) a good faith determination that section 2511(3)
or 2511(2)(i) of this title permitted the conduct
complained of;
* * * * * * *
(f) Improper Disclosure Is Violation.--Any disclosure or
use by an investigative or law enforcement officer of
information beyond the extent permitted by section 2517 is a
violation of this chapter for purposes of section 2520(a).
(g) Administrative Discipline.--If a court determines that
the United States or any agency or bureau thereof has violated
any provision of this section and the court finds that the
circumstances surrounding the violation raise questions of
whether or not an officer or employee thereof acted willfully
or intentionally with respect to the violation, the agency or
bureau shall promptly initiate a proceeding to determine
whether or not disciplinary action is warranted against the
officer or employee who was responsible for the violation. In
such case, if the head of the agency or bureau determines
discipline is not appropriate, he or she shall report his or
her conclusions and the reasons therefor to the Deputy
Inspector General for Civil Rights, Civil Liberties, and the
Federal Bureau of Investigation.
(h) Actions Against the United States.--Any action against
the United States shall be conducted under the procedures of
the Federal Tort Claims Act. Any award against the United
States shall be deducted from the budget of the appropriate
agency or bureau employing or managing the officer or employee
who was responsible for the violation.
* * * * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
Sec.
2701. Unlawful access to stored communications.
[2702. Disclosure of contents.
[2703. Requirements for governmental access.]
2702. Voluntary disclosure of customer communications or records.
2703. Required disclosure of customer communications or records.
* * * * * * *
[Sec. 2702. Disclosure of contents]
Sec. 2702. Voluntary disclosure of customer communications or records
(a) Prohibitions.--Except as provided in subsection (b)--
(1) * * *
(2) a person or entity providing remote computing
service to the public shall not knowingly divulge to
any person or entity the contents of any communication
which is carried or maintained on that service--
(A) * * *
(B) solely for the purpose of providing
storage or computer processing services to such
subscriber or customer, if the provider is not
authorized to access the contents of any such
communications for purposes of providing any
services other than storage or computer
processing[.]; and
(3) a provider of remote computing service or
electronic communication service to the public shall
not knowingly divulge a record or other information
pertaining to a subscriber to or customer of such
service (not including the contents of communications
covered by paragraph (1) or (2)) to any governmental
entity.
(b) [Exceptions.--A person or entity] Exceptions for
Disclosure of Communications.--A provider described in
subsection (a) may divulge the contents of a communication--
(1) * * *
* * * * * * *
(6) to a law enforcement agency--
(A) if the contents--
(i) * * *
(ii) appear to pertain to the
commission of a crime; [or]
(B) if required by section 227 of the Crime
Control Act of 1990[.]; or
(C) if the provider reasonably believes
that an emergency involving immediate danger of
death or serious physical injury to any person
requires disclosure of the information without
delay.
(c) Exceptions for Disclosure of Customer Records.--A
provider described in subsection (a) may divulge a record or
other information pertaining to a subscriber to or customer of
such service (not including the contents of communications
covered by subsection (a)(1) or (a)(2))--
(1) as otherwise authorized in section 2703;
(2) with the lawful consent of the customer or
subscriber;
(3) as may be necessarily incident to the rendition
of the service or to the protection of the rights or
property of the provider of that service;
(4) to a governmental entity, if the provider
reasonably believes that an emergency involving
immediate danger of death or serious physical injury to
any person justifies disclosure of the information; or
(5) to any person other than a governmental entity.
* * * * * * *
[Sec. 2703. Requirements for governmental access]
Sec. 2703. Required disclosure of customer communications or records
(a) [Contents of Electronic] Contents of wire or electronic
Communications in Electronic Storage.--A governmental entity
may require the disclosure by a provider of electronic
communication service of the [contents of an electronic]
contents of a wire or electronic communication, that is in
electronic storage in an electronic communications system for
one hundred and eighty days or less, only pursuant to a warrant
issued [under the Federal Rules of Criminal Procedure] using
the procedures described in the Federal Rules of Criminal
Procedure by a court with jurisdiction over the offense under
investigation or equivalent State warrant. A governmental
entity may require the disclosure by a provider of electronic
communications services of the [contents of an electronic]
contents of a wire or electronic communication that has been in
electronic storage in an electronic communications system for
more than one hundred and eighty days by the means available
under subsection (b) of this section.
(b) [Contents of Electronic] Contents of wire or electronic
Communications in a Remote Computing Service.--(1) A
governmental entity may require a provider of remote computing
service to disclose the contents of [any electronic] any wire
or electronic communication to which this paragraph is made
applicable by paragraph (2) of this subsection--
(A) without required notice to the subscriber or
customer, if the governmental entity obtains a warrant
issued [under the Federal Rules of Criminal Procedure]
using the procedures described in the Federal Rules of
Criminal Procedure by a court with jurisdiction over
the offense under investigation or equivalent State
warrant; or
* * * * * * *
(2) Paragraph (1) is applicable with respect to [any
electronic] any wire or electronic communication that is held
or maintained on that service--
(A) * * *
* * * * * * *
(c) Records Concerning Electronic Communication Service or
Remote Computing Service.--(1)(A) [Except as provided in
subparagraph (B), a provider of electronic communication
service or remote computing service may disclose a record or
other information pertaining to a subscriber to or customer of
such service (not including the contents of communications
covered by subsection (a) or (b) of this section) to any person
other than a governmental entity.
[(B) A provider of electronic communication service or
remote computing service shall disclose a record or other
information pertaining to a subscriber to or customer of such
service (not including the contents of communications covered
by subsection (a) or (b) of this section) to a governmental
entity only when] A governmental entity may require a provider
of electronic communication service or remote computing service
to disclose a record or other information pertaining to a
subscriber to or customer of such service (not including the
contents of communications) only when the governmental entity--
(i) obtains a warrant issued [under the Federal
Rules of Criminal Procedure] using the procedures
described in the Federal Rules of Criminal Procedure by
a court with jurisdiction over the offense under
investigation or equivalent State warrant;
(ii) obtains a court order for such disclosure
under subsection (d) of this section;
(iii) has the consent of the subscriber or customer
to such disclosure; [or]
(iv) submits a formal written request relevant to a
law enforcement investigation concerning telemarketing
fraud for the name, address, and place of business of a
subscriber or customer of such provider, which
subscriber or customer is engaged in telemarketing (as
such term is defined in section 2325 of this title)[.];
or
(v) seeks information pursuant to subparagraph (B).
[(C)] (B) A provider of electronic communication service or
remote computing service shall disclose to a governmental
[entity the name, address, local and long distance telephone
toll billing records, telephone number or other subscriber
number or identity, and length of service of a] entity the--
(i) name;
(ii) address;
(iii) local and long distance telephone connection
records, or records of session times and durations;
(iv) length of service (including start date) and
types of service utilized;
(v) telephone or instrument number or other
subscriber number or identity, including any
temporarily assigned network address; and
(vi) means and source of payment (including any
credit card or bank account number);
of a subscriber to or customer of such service [and the types
of services the subscriber or customer utilized,] when the
governmental entity uses an administrative subpoena authorized
by a Federal or State statute or a Federal or State grand jury
or trial subpoena or any means available under subparagraph
[(B)] (A).
* * * * * * *
(e) No Cause of Action Against a Provider Disclosing
Information Under This Chapter.--No cause of action shall lie
in any court against any provider of wire or electronic
communication service, its officers, employees, agents, or
other specified persons for providing information, facilities,
or assistance in accordance with the terms of a court order,
warrant, subpoena, [or certification] certification, or
statutory authorization under this chapter.
* * * * * * *
(g) Reports Concerning the Disclosure of the Contents of
Electronic Communications.--
(1) By January 31 of each calendar year, the judge
issuing or denying an order, warrant, or subpoena, or
the authority issuing or denying a subpoena, under
subsection (a) or (b) of this section during the
preceding calendar year shall report on each such
order, warrant, or subpoena to the Administrative
Office of the United States Courts--
(A) the fact that the order, warrant, or
subpoena was applied for;
(B) the kind of order, warrant, or subpoena
applied for;
(C) the fact that the order, warrant, or
subpoena was granted as applied for, was
modified, or was denied;
(D) the offense specified in the order,
warrant, subpoena, or application;
(E) the identity of the agency making the
application; and
(F) the nature of the facilities from which
or the place where the contents of electronic
communications were to be disclosed.
(2) In January of each year the Attorney General or
an Assistant Attorney General specially designated by
the Attorney General shall report to the Administrative
Office of the United States Courts--
(A) the information required by
subparagraphs (A) through (F) of paragraph (1)
of this subsection with respect to each
application for an order, warrant, or subpoena
made during the preceding calendar year; and
(B) a general description of the
disclosures made under each such order,
warrant, or subpoena, including--
(i) the approximate number of all
communications disclosed and, of those,
the approximate number of incriminating
communications disclosed;
(ii) the approximate number of
other communications disclosed; and
(iii) the approximate number of
persons whose communications were
disclosed.
(3) In June of each year, beginning in 2003, the
Director of the Administrative Office of the United
States Courts shall transmit to the Congress a full and
complete report concerning the number of applications
for orders, warrants, or subpoenas authorizing or
requiring the disclosure of the contents of electronic
communications pursuant to subsections (a) and (b) of
this section and the number of orders, warrants, or
subpoenas granted or denied pursuant to subsections (a)
and (b) of this section during the preceding calendar
year. Such report shall include a summary and analysis
of the data required to be filed with the
Administrative Office by paragraphs (1) and (2) of this
subsection. The Director of the Administrative Office
of the United States Courts is authorized to issue
binding regulations dealing with the content and form
of the reports required to be filed by paragraphs (1)
and (2) of this subsection.
* * * * * * *
Sec. 2707. Civil action
(a) * * *
* * * * * * *
(c) Damages.--(1) The court may assess as damages in a
civil action under this section the sum of the actual damages
suffered by the plaintiff and any profits made by the violator
as a result of the violation, but in no case shall a person
entitled to recover receive less than the sum of [$1,000]
$10,000. If the violation is willful or intentional, the court
may assess punitive damages. In the case of a successful action
to enforce liability under this section, the court may assess
the costs of the action, together with reasonable attorney fees
determined by the court.
(2) In an action under this section by a citizen or legal
permanent resident of the United States against the United
States or any Federal investigative or law enforcement officer
(or against any State investigative or law enforcement officer
for disclosure or unlawful use of information obtained from
Federal investigative or law enforcement officers), the court
may assess as damages whichever is the greater of--
(A) the sum of actual damages suffered by the
plaintiff and any profits made by the violator as a
result of the violation; or
(B) statutory damages of $10,000.
* * * * * * *
(f) Improper Disclosure Is Violation.--Any disclosure or
use by an investigative or law enforcement officer of
information beyond the extent permitted by section 2517 is a
violation of this chapter for purposes of section 2707(a).
(g) Administrative Discipline.--If a court determines that
the United States or any agency or bureau thereof has violated
any provision of this section and the court finds that the
circumstances surrounding the violation raise questions of
whether or not an officer or employee thereof acted willfully
or intentionally with respect to the violation, the agency or
bureau shall promptly initiate a proceeding to determine
whether or not disciplinary action is warranted against the
officer or employee who was responsible for the violation. In
such case, if the head of the agency or bureau determines
discipline is not appropriate, he or she shall report his or
her conclusions and the reasons therefor to the Deputy
Inspector General for Civil Rights, Civil Liberties, and the
Federal Bureau of Investigation.
(h) Actions Against the United States.--Any action against
the United States shall be conducted under the procedures of
the Federal Tort Claims Act. Any award against the United
States shall be deducted from the budget of the appropriate
agency or bureau employing or managing the officer or employee
who was responsible for the violation.
* * * * * * *
Sec. 2709. Counterintelligence access to telephone toll and
transactional records
(a) * * *
(b) Required Certification.--The Director of the Federal
Bureau of Investigation, or his designee in a position not
lower than Deputy Assistant Director, may--
(1) request the name, address, length of service,
and local and long distance toll billing records, or
electronic communication transactional records of a
person or entity if the Director (or his designee in a
position not lower than Deputy Assistant Director)
certifies in writing to the wire or electronic
communication service provider to which the request is
[made that--
[(A) the name, address, length of service,
and toll billing records sought are relevant to
an authorized foreign counterintelligence
investigation; and
[(B) there are specific and articulable
facts giving reason to believe that the person
or entity to whom the information sought
pertains is a foreign power or an agent of a
foreign power as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801); and] made that the name,
address, length of service, and toll billing
records sought are relevant to an authorized
foreign counterintelligence investigation; and
(2) request the name, address, and length of
service of a person or entity if the Director (or his
designee in a position not lower than Deputy Assistant
Director) certifies in writing to the wire or
electronic communication service provider to which the
request is [made that--
[(A) the information sought is relevant to
an authorized foreign counterintelligence
investigation; and
[(B) there are specific and articulable
facts giving reason to believe that
communication facilities registered in the name
of the person or entity have been used, through
the services of such provider, in communication
with--
[(i) an individual who is engaging
or has engaged in international
terrorism as defined in section 101(c)
of the Foreign Intelligence
Surveillance Act or clandestine
intelligence activities that involve or
may involve a violation of the criminal
statutes of the United States; or
[(ii) a foreign power or an agent
of a foreign power under circumstances
giving reason to believe that the
communication concerned international
terrorism as defined in section 101(c)
of the Foreign Intelligence
Surveillance Act or clandestine
intelligence activities that involve or
may involve a violation of the criminal
statutes of the United States.] made
that the information sought is relevant
to an authorized foreign
counterintelligence investigation.
* * * * * * *
Sec. 2711. Definitions for chapter
As used in this chapter--
(1) the terms defined in section 2510 of this title
have, respectively, the definitions given such terms in
that section; [and]
(2) the term ``remote computing service'' means the
provision to the public of computer storage or
processing services by means of an electronic
communications system[.]; and
(3) the term ``court of competent jurisdiction''
has the meaning given that term in section 3127, and
includes any Federal court within that definition,
without geographic limitation.
* * * * * * *
CHAPTER 203--ARREST AND COMMITMENT
Sec.
3041. Power of courts and magistrates.
* * * * * * *
[3059A. Special rewards for information relating to certain financial
institution offenses.
[3059B. General reward authority.]
* * * * * * *
[Sec. 3059. Rewards and appropriations therefor
[(a)(1) There is authorized to be appropriated, out of any
money in the Treasury not otherwise appropriated, the sum of
$25,000 as a reward or rewards for the capture of anyone who is
charged with violation of criminal laws of the United States or
any State or of the District of Columbia, and an equal amount
as a reward or rewards for information leading to the arrest of
any such person, to be apportioned and expended in the
discretion of, and upon such conditions as may be imposed by,
the Attorney General of the United States. Not more than
$25,000 shall be expended for information or capture of any one
person.
[(2) If any of the said persons shall be killed in
resisting lawful arrest, the Attorney General may pay any part
of the reward money in his discretion to the person or persons
whom he shall adjudge to be entitled thereto but no reward
money shall be paid to any official or employee of the
Department of Justice of the United States.
[(b) The Attorney General each year may spend not more than
$10,000 for services or information looking toward the
apprehension of narcotic law violators who are fugitives from
justice.
[(c)(1) In special circumstances and in the Attorney
General's sole discretion, the Attorney General may make a
payment of up to $10,000 to a person who furnishes information
unknown to the Government relating to a possible prosecution
under section 2326 which results in a conviction.
[(2) A person is not eligible for a payment under paragraph
(1) if--
[(A) the person is a current or former officer or
employee of a Federal, State, or local government
agency or instrumentality who furnishes information
discovered or gathered in the course of government
employment;
[(B) the person knowingly participated in the
offense;
[(C) the information furnished by the person
consists of an allegation or transaction that has been
disclosed to the public--
[(i) in a criminal, civil, or
administrative proceeding;
[(ii) in a congressional, administrative,
or General Accounting Office report, hearing,
audit, or investigation; or
[(iii) by the news media, unless the person
is the original source of the information; or
[(D) when, in the judgment of the Attorney General,
it appears that a person whose illegal activities are
being prosecuted or investigated could benefit from the
award.
[(3) For the purposes of paragraph (2)(C)(iii), the term
``original source'' means a person who has direct and
independent knowledge of the information that is furnished and
has voluntarily provided the information to the Government
prior to disclosure by the news media.
[(4) Neither the failure of the Attorney General to
authorize a payment under paragraph (1) nor the amount
authorized shall be subject to judicial review.
[Sec. 3059A. Special rewards for information relating to certain
financial institution offenses
[(a)(1) In special circumstances and in the Attorney
General's sole discretion, the Attorney General may make
payments to persons who furnish information unknown to the
Government relating to a possible prosecution under section
215, 225, 287, 656, 657, 1001, 1005, 1006, 1007, 1014, 1032,
1341, 1343, 1344, or 1517 of this title affecting a depository
institution insured by the Federal Deposit Insurance
Corporation or any other agency or entity of the United States,
or to a possible prosecution for conspiracy to commit such an
offense.
[(2) The amount of a payment under paragraph (1) shall not
exceed $50,000 and shall be paid from the Financial Institution
Information Award Fund established under section 2569 of the
Financial Institutions Anti-Fraud Enforcement Act of 1990.
[(b) A person is not eligible for a payment under
subsection (a) if--
[(1) the person is a current or former officer or
employee of a Federal or State government agency or
instrumentality who furnishes information discovered or
gathered in the course of his government employment;
[(2) the furnished information consists of
allegations or transactions that have been disclosed to
a member of the public in a criminal, civil, or
administrative proceeding, in a congressional,
administrative, or General Accounting Office report,
hearing, audit or investigation, from any other
government source, or from the news media unless the
person is the original source of the information;
[(3) the person is an institution-affiliated party
(as defined in section 3(u) of the Federal Deposit
Insurance Act, 12 U.S.C. 1813(u)) which withheld
information during the course of any bank examination
or investigation authorized pursuant to section 10 of
such Act (12 U.S.C. 1820) who such party owed a
fiduciary duty to disclose;
[(4) the person is a member of the immediate family
of the individual whose activities are the subject of
the declaration or where, in the discretion of the
Attorney General, it appears the individual could
benefit from the award; or
[(5) the person knowingly participated in the
violation of the section with respect to which the
payment would be made.
[(c) For the purposes of subsection (b)(2), the term
``original source'' means a person who has direct and
independent knowledge of the information on which the
allegations are based and has voluntarily provided the
information to the Government prior to the disclosure.
[(d) Neither the failure of the Attorney General to
authorize a payment nor the amount authorized shall be subject
to judicial review.
[(e)(1) A person who--
[(A) is discharged, demoted, suspended, threatened,
harassed, or in any other manner discriminated against
in the terms and conditions of employment by an
employer because of lawful acts done by the person on
behalf of the person or others in furtherance of a
prosecution under any of the sections referred to in
subsection (a) (including provision of information
relating to, investigation for, initiation of,
testimony for, or assistance in such a prosecution);
and
[(B) was not a knowing participant in the unlawful
activity that is the subject of such a prosecution,
may, in a civil action, obtain all relief necessary to make the
person whole.
[(2) Relief under paragraph (1) shall include--
[(A)(i) reinstatement with the same seniority
status;
[(ii) 2 times the amount of back pay plus interest;
and
[(iii) interest on the backpay,
that the plaintiff would have had but for the discrimination;
and
[(B) compensation for any special damages sustained
as a result of the discrimination, including litigation
costs and reasonable attorney's fees.
[Sec. 3059B. General reward authority
[(a) Notwithstanding any other provision of law, the
Attorney General may pay rewards and receive from any
department or agency funds for the payment of rewards under
this section to any individual who assists the Department of
Justice in performing its functions.
[(b) Not later than 30 days after authorizing a reward
under this section that exceeds $100,000, the Attorney General
shall give notice to the respective chairmen of the Committees
on Appropriations and the Committees on the Judiciary of the
Senate and the House of Representatives.
[(c) A determination made by the Attorney General to
authorize an award under this section and the amount of any
reward authorized shall be final and conclusive, and not
subject to judicial review.]
Sec. 3059. Rewards and appropriation therefor
(a) In General.--Subject to subsection (b), the Attorney
General may pay rewards in accordance with procedures and
regulations established or issued by the Attorney General.
(b) Limitations.-- The following limitations apply with
respect to awards under subsection (a):
(1) No such reward, other than in connection with a
terrorism offense or as otherwise specifically provided
by law, shall exceed $2,000,000.
(2) No such reward of $250,000 or more may be made
or offered without the personal approval of either the
Attorney General or the President.
(3) The Attorney General shall give written notice
to the Chairmen and ranking minority members of the
Committees on Appropriations and the Judiciary of the
Senate and the House of Representatives not later than
30 days after the approval of a reward under paragraph
(2);
(4) Any executive agency or military department (as
defined, respectively, in sections 105 and 102 of title
5) may provide the Attorney General with funds for the
payment of rewards.
(5) Neither the failure to make or authorize such a
reward nor the amount of any such reward made or
authorized shall be subject to judicial review.
(c) Definition.--In this section, the term ``reward'' means
a payment pursuant to public advertisements for assistance to
the Department of Justice.
* * * * * * *
CHAPTER 204--REWARDS FOR INFORMATION CONCERNING TERRORIST ACTS AND
ESPIONAGE
* * * * * * *
Sec. 3072. Determination of entitlement; maximum amount; Presidential
approval; conclusiveness
The Attorney General shall determine whether an individual
furnishing information described in section 3071 is entitled to
a reward and the amount to be paid. [A reward under this
section may be in an amount not to exceed $500,000. A reward of
$100,000 or more may not be made without the approval of the
President or the Attorney General personally. A determination
made by the Attorney General or the President under this
chapter shall be final and conclusive, and no court shall have
power or jurisdiction to review it.]
* * * * * * *
[Sec. 3075. Authorization for appropriations
[There are authorized to be appropriated, without fiscal
year limitation, $5,000,000 for the purpose of this chapter.]
* * * * * * *
CHAPTER 206--PEN REGISTERS AND TRAP AND TRACE DEVICES
Sec.
3121. General prohibition on pen register and trap and trace device
use; exception.
* * * * * * *
3128. Civil action.
* * * * * * *
Sec. 3121. General prohibition on pen register and trap and trace
device use; exception
(a) * * *
* * * * * * *
(c) Limitation.--A government agency authorized to install
and use a pen register or trap and trace device under this
chapter or under State law shall use technology reasonably
available to it that restricts the recording or decoding of
electronic or other impulses to the dialing, routing,
addressing, and signaling information utilized in [call
processing] the processing and transmitting of wire and
electronic communications.
* * * * * * *
Sec. 3123. Issuance of an order for a pen register or a trap and trace
device
[(a) In General.--Upon an application made under section
3122 of this title, the court shall enter an ex parte order
authorizing the installation and use of a pen register or a
trap and trace device within the jurisdiction of the court if
the court finds that the attorney for the Government or the
State law enforcement or investigative officer has certified to
the court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal
investigation.]
(a) In General.--
(1) Upon an application made under section
3122(a)(1), the court shall enter an ex parte order
authorizing the installation and use of a pen register
or trap and trace device anywhere within the United
States, if the court finds that the attorney for the
Government has certified to the court that the
information likely to be obtained by such installation
and use is relevant to an ongoing criminal
investigation. The order shall, upon service thereof,
apply to any person or entity providing wire or
electronic communication service in the United States
whose assistance may facilitate the execution of the
order. Whenever such an order is served on any person
or entity not specifically named in the order, upon
request of such person or entity, the attorney for the
Government or law enforcement or investigative officer
that is serving the order shall provide written or
electronic certification that the assistance of the
person or entity being served is related to the order.
(2) Upon an application made under section
3122(a)(2), the court shall enter an ex parte order
authorizing the installation and use of a pen register
or trap and trace device within the jurisdiction of the
court, if the court finds that the State law-
enforcement or investigative officer has certified to
the court that the information likely to be obtained by
such installation and use is relevant to an ongoing
criminal investigation.
(b) Contents of Order.--An order issued under this
section--
(1) shall specify--
(A) the identity, if known, of the person
to whom is leased or in whose name is listed
the telephone line or other facility to which
the pen register or trap and trace device is to
be attached or applied;
(B) the identity, if known, of the person
who is the subject of the criminal
investigation;
[(C) the number and, if known, physical
location of the telephone line to which the pen
register or trap and trace device is to be
attached and, in the case of a trap and trace
device, the geographic limits of the trap and
trace order; and]
(C) the attributes of the communications to
which the order applies, including the number
or other identifier and, if known, the location
of the telephone line or other facility to
which the pen register or trap and trace device
is to be attached or applied, and, in the case
of an order authorizing installation and use of
a trap and trace device under subsection
(a)(2), the geographic limits of the order; and
* * * * * * *
(d) Nondisclosure of Existence of Pen Register or a Trap
and Trace Device.--An order authorizing or approving the
installation and use of a pen register or a trap and trace
device shall direct that--
(1) * * *
(2) the person owning or leasing the line or other
facility to which the pen register or a trap and trace
device is attached[, or who has been ordered by the
court] or applied, or who is obligated by the order to
provide assistance to the applicant, not disclose the
existence of the pen register or trap and trace device
or the existence of the investigation to the listed
subscriber, or to any other person, unless or until
otherwise ordered by the court.
* * * * * * *
Sec. 3124. Assistance in installation and use of a pen register or a
trap and trace device
(a) * * *
* * * * * * *
(d) No Cause of Action Against a Provider Disclosing
Information Under This Chapter.--No cause of action shall lie
in any court against any provider of a wire or electronic
communication service, its officers, employees, agents, or
other specified persons for providing information, facilities,
or assistance in accordance with [the terms of] a court order
under this chapter or request pursuant to section 3125 of this
title.
* * * * * * *
Sec. 3127. Definitions for chapter
As used in this chapter--
(1) the terms ``wire communication'', ``electronic
communication'', [and] ``electronic communication
service'', and ``contents'' have the meanings set forth
for such terms in section 2510 of this title;
(2) the term ``court of competent jurisdiction''
means--
[(A) a district court of the United States
(including a magistrate of such a court) or a
United States Court of Appeals; or]
(A) any district court of the United States
(including a magistrate judge of such a court)
or any United States court of appeals having
jurisdiction over the offense being
investigated; or
(B) a court of general criminal
jurisdiction of a State authorized by the law
of that State to enter orders authorizing the
use of a pen register or a trap and trace
device;
(3) the term ``pen register'' means a device or
process which records or decodes [electronic or other
impulses which identify the numbers dialed or otherwise
transmitted on the telephone line to which such device
or process is attached] dialing, routing, addressing,
or signaling information transmitted by an instrument
or facility from which a wire or electronic
communication is transmitted (but not including the
contents of such communication), but such term does not
include any device or process used by a provider or
customer of a wire or electronic communication service
for billing, or recording as an incident to billing,
for communications services provided by such provider
or any device or process used by a provider or customer
of a wire communication service for cost accounting or
other like purposes in the ordinary course of its
business;
(4) the term ``trap and trace device'' means a
device or process which captures the incoming
electronic or other impulses which identify the
originating number [of an instrument or device from
which a wire or electronic communication was
transmitted;] or other dialing, routing, addressing,
and signaling information reasonably likely to identify
the source of a wire or electronic communication (but
not including the contents of such communication);
* * * * * * *
Sec. 3128. Civil action
(a) Cause of Action.--Except as provided in section
3124(d), any person aggrieved by any violation of this chapter
may in a civil action recover from the person or entity which
engaged in that violation such relief as may be appropriate.
(b) Relief.--In any action under this section, appropriate
relief includes--
(1) such preliminary and other equitable or
declaratory relief as may be appropriate;
(2) damages under subsection (c) and punitive
damages in appropriate cases; and
(3) a reasonable attorney's fee and other
litigation costs reasonably incurred.
(c) Damages.--In any action under this section, the court
may assess as damages whichever is the greater of--
(1) the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a
result of the violation; or
(2) statutory damages of $10,000.
(d) Limitation.--A civil action under this section may not
be commenced later than 2 years after the date upon which the
claimant first has a reasonable opportunity to discover the
violation.
(e) Improper Disclosure Is Violation.--Any disclosure or
use by an investigative or law enforcement officer of
information beyond the extent permitted by section 2517 is a
violation of this chapter for purposes of section 3128(a).
(f) Administrative Discipline.--If a court determines that
the United States or any agency or bureau thereof has violated
any provision of this section and the court finds that the
circumstances surrounding the violation raise questions of
whether or not an officer or employee thereof acted willfully
or intentionally with respect to the violation, the agency or
bureau shall promptly initiate a proceeding to determine
whether or not disciplinary action is warranted against the
officer or employee who was responsible for the violation. In
such case, if the head of the agency or bureau determines
discipline is not appropriate, he or she shall report his or
her conclusions and the reasons therefor to the Deputy
Inspector General for Civil Rights, Civil Liberties, and the
Federal Bureau of Investigation.
(g) Actions Against the United States.--Any action against
the United States shall be conducted under the procedures of
the Federal Tort Claims Act. Any award against the United
States shall be deducted from the budget of the appropriate
agency or bureau employing or managing the officer or employee
who was responsible for the violation.
* * * * * * *
CHAPTER 213--LIMITATIONS
3281. Capital offenses.
* * * * * * *
[3286. Extension of statute of limitation for certain terrorism
offenses.]
3286. Terrorism offenses.
* * * * * * *
[Sec. 3286. Extension of statute of limitation for certain terrorism
offenses
[Notwithstanding section 3282, no person shall be
prosecuted, tried, or punished for any non-capital offense
involving a violation of section 32 (aircraft destruction),
section 37 (airport violence), section 112 (assaults upon
diplomats), section 351 (crimes against Congressmen or Cabinet
officers), section 1116 (crimes against diplomats), section
1203 (hostage taking), section 1361 (willful injury to
government property), section 1751 (crimes against the
President), section 2280 (maritime violence), section 2281
(maritime platform violence), section 2332 (terrorist acts
abroad against United States nationals), section 2332a (use of
weapons of mass destruction), 2332b (acts of terrorism
transcending national boundaries), or section 2340A (torture)
of this title or section 46502, 46504, 46505, or 46506 of title
49, unless the indictment is found or the information is
instituted within 8 years after the offense was committed.]
Sec. 3286. Terrorism offenses
(a) An indictment may be found or an information instituted
at any time without limitation for any Federal terrorism
offense or any of the following offenses:
(1) A violation of, or an attempt or conspiracy to
violate, section 32 (relating to destruction of
aircraft or aircraft facilities), 37(a)(1) (relating to
violence at international airports), 175 (relating to
biological weapons), 229 (relating to chemical
weapons), 351(a)-(d) (relating to congressional,
cabinet, and Supreme Court assassination and
kidnaping), 791 (relating to harboring terrorists), 831
(relating to nuclear materials), 844(f) or (i) when it
relates to bombing (relating to arson and bombing of
certain property), 1114(1) (relating to protection of
officers and employees of the United States), 1116, if
the offense involves murder (relating to murder or
manslaughter of foreign officials, official guests, or
internationally protected persons), 1203 (relating to
hostage taking), 1751(a)-(d) (relating to Presidential
and Presidential staff assassination and kidnaping),
2332(a)(1) (relating to certain homicides and other
violence against United States nationals occurring
outside of the United States), 2332a (relating to use
of weapons of mass destruction), 2332b (relating to
acts of terrorism transcending national boundaries) of
this title.
(2) Section 236 (relating to sabotage of nuclear
facilities or fuel) of the Atomic Energy Act of 1954
(42 U.S.C. 2284);
(3) Section 601 (relating to disclosure of
identities of covert agents) of the National Security
Act of 1947 (50 U.S.C. 421).
(4) Section 46502 (relating to aircraft piracy) of
title 49.
(b) An indictment may be found or an information instituted
within 15 years after the offense was committed for any of the
following offenses:
(1) Section 175b (relating to biological weapons),
842(m) or (n) (relating to plastic explosives), 930(c)
if it involves murder (relating to possessing a
dangerous weapon in a Federal facility), 956 (relating
to conspiracy to injure property of a foreign
government), 1030(a)(1), 1030(a)(5)(A), or 1030(a)(7)
(relating to protection of computers), 1362 (relating
to destruction of communication lines, stations, or
systems), 1366 (relating to destruction of an energy
facility), 1992 (relating to trainwrecking), 2152
(relating to injury of fortifications, harbor defenses,
or defensive sea areas), 2155 (relating to destruction
of national defense materials, premises, or utilities),
2156 (relating to production of defective national
defense materials, premises, or utilities), 2280
(relating to violence against maritime navigation),
2281 (relating to violence against maritime fixed
platforms), 2339A (relating to providing material
support to terrorists), 2339B (relating to providing
material support to terrorist organizations), or 2340A
(relating to torture).
(2) Any of the following provisions of title 49:
the second sentence of section 46504 (relating to
assault on a flight crew with a dangerous weapon),
section 46505(b)(3), (relating to explosive or
incendiary devices, or endangerment of human life by
means of weapons, on aircraft), section 46506 if
homicide or attempted homicide is involved, or section
60123(b) (relating to destruction of interstate gas or
hazardous liquid pipeline facility) of title 49.
* * * * * * *
CHAPTER 227--SENTENCES
SUBCHAPTER A--GENERAL PROVISIONS
* * * * * * *
Sec. 3559. Sentencing classification of offenses
(a) * * *
* * * * * * *
(e) Authorized Terms of Imprisonment for Terrorism
Crimes.--A person convicted of any Federal terrorism offense
may be sentenced to imprisonment for any term of years or for
life, notwithstanding any maximum term of imprisonment
specified in the law describing the offense. The authorization
of imprisonment under this subsection is supplementary to, and
does not limit, the availability of any other penalty
authorized by the law describing the offense, including the
death penalty, and does not limit the applicability of any
mandatory minimum term of imprisonment, including any mandatory
life term, provided by the law describing the offense.
* * * * * * *
SUBCHAPTER D--IMPRISONMENT
* * * * * * *
Sec. 3583. Inclusion of a term of supervised release after imprisonment
(a) * * *
* * * * * * *
(j) Supervised Release Terms for Terrorism Offenses.--
Notwithstanding subsection (b), the authorized terms of
supervised release for any Federal terrorism offense are any
term of years or life.
* * * * * * *
----------
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
* * * * * * *
TABLE OF CONTENTS
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN
INTELLIGENCE PURPOSES
401. Definitions.
* * * * * * *
Sec. 407. Penalties.
Sec. 408. Civil liability.
[TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
PURPOSES
[501. Definitions.
[502. Access to certain business records for foreign intelligence and
international terrorism investigations.
[503. Congressional oversight.]
TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
PURPOSES
Sec.
501. Access to certain business records for foreign intelligence and
international terrorism investigations.
502. Congressional oversight.
* * * * * * *
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
application for an order
Sec. 104. (a) Each application for an order approving
electronic surveillance under this title shall be made by a
Federal officer in writing upon oath or affirmation to a judge
having jurisdiction under section 103. Each application shall
require the approval of the Attorney General based upon his
finding that it satisfies the criteria and requirements of such
application as set forth in this title. It shall include--
(1) * * *
* * * * * * *
(7) a certification or certifications by the
Assistant to the President for National Security
Affairs or an executive branch official or officials
designated by the President from among those executive
officers employed in the area of national security or
defense and appointed by the President with the advice
and consent of the Senate--
(A) * * *
(B) [that the] that a significant purpose
of the surveillance is to obtain foreign
intelligence information;
* * * * * * *
issuance of an order
Sec. 105. (a) * * *
* * * * * * *
(c) An order approving an electronic surveillance under
this section shall--
(1) * * *
(2) direct--
(A) * * *
(B) that, upon the request of the
applicant, a specified communication or other
common carrier, landlord, custodian, or other
specified person, or, in circumstances where
the Court finds that the actions of the target
of the electronic surveillance may have the
effect of thwarting the identification of a
specified person, such other persons, furnish
the applicant forthwith all information,
facilities, or technical assistance necessary
to accomplish the electronic surveillance in
such a manner as will protect its secrecy and
produce a minimum of interference with the
services that such carrier, landlord,
custodian, or other person is providing that
target of electronic surveillance;
* * * * * * *
(e)(1) An order issued under this section may approve an
electronic surveillance for the period necessary to achieve its
purpose, or for ninety days, whichever is less, except that an
order under this section shall approve an electronic
surveillance targeted against a foreign power, as defined in
section 101(a), (1), (2), or (3), or an agent of a foreign
power, as defined in section 101(b)(1)(A), for the period
specified in the application or for one year, whichever is
less.
* * * * * * *
civil liability
Sec. 110. (a) Civil Action.--An aggrieved person, other
than a foreign power or an agent of a foreign power, as defined
in section 101 (a) or (b)(1)(A), respectively, who has been
subjected to an electronic surveillance or about whom
information obtained by electronic surveillance of such person
has been disclosed or used in violation of section 109 shall
have a cause of action against any person or entity who
committed such violation and shall be entitled to recover--
[(a)] (1) actual damages, but not less than
liquidated damages of [$1,000] $10,000 or $100 per day
for each day of violation, whichever is greater;
[(b)] (2) punitive damages; and
[(c)] (3) reasonable attorney's fees and other
investigation and litigation costs reasonably incurred.
(b) Limitation.--A civil action under this section may not
be commenced later than 2 years after the date upon which the
claimant first has a reasonable opportunity to discover the
violation.
(c) Administrative Discipline.--If a court determines that
the United States or any agency or bureau thereof has violated
any provision of this section and the court finds that the
circumstances surrounding the violation raise questions of
whether or not an officer or employee thereof acted willfully
or intentionally with respect to the violation, the agency or
bureau shall promptly initiate a proceeding to determine
whether or not disciplinary action is warranted against the
officer or employee who was responsible for the violation. In
such case, if the head of the agency or bureau determines
discipline is not appropriate, the head shall report
conclusions for the determination and the reasons therefor to
the Deputy Inspector General for Civil Rights, Civil Liberties,
and the Federal Bureau of Investigation.
(d) Actions Against the United States.--Any action against
the United States shall be conducted under the procedures of
the Federal Tort Claims Act. Any award against the United
States shall be deducted from the budget of the appropriate
agency or bureau employing or managing the officer or employee
who was responsible for the violation.
* * * * * * *
TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
APPLICATION FOR AN ORDER
Sec. 303. (a) Each application for an order approving a
physical search under this title shall be made by a Federal
officer in writing upon oath or affirmation to a judge of the
Foreign Intelligence Surveillance Court. Each application shall
require the approval of the Attorney General based upon the
Attorney General's finding that it satisfies the criteria and
requirements for such application as set forth in this title.
Each application shall include--
(1) * * *
* * * * * * *
(7) a certification or certifications by the
Assistant to the President for National Security
Affairs or an executive branch official or officials
designated by the President from among those executive
branch officers employed in the area of national
security or defense and appointed by the President, by
and with the advice and consent of the Senate--
(A) * * *
(B) [that the] that a significant purpose
of the search is to obtain foreign intelligence
information;
* * * * * * *
ISSUANCE OF AN ORDER
Sec. 304. (a) * * *
* * * * * * *
(d)(1) An order issued under this section may approve a
physical search for the period necessary to achieve its
purpose, or for [forty-five] 90 days, whichever is less, except
that an order under this section shall approve a physical
search targeted against a foreign power, as defined in
paragraph (1), (2), or (3) of section 101(a), or an agent of a
foreign power, as defined in section 101(b)(1)(A), for the
period specified in the application or for one year, whichever
is less.
* * * * * * *
Sec. 308. (a) Civil Action.--An aggrieved person, other
than a foreign power or an agent of a foreign power, as defined
in section 101 (a) or (b)(1)(A), respectively, of this Act,
whose premises, property, information, or material has been
subjected to a physical search within the United States or
about whom information obtained by such a physical search has
been disclosed or used in violation of section 307 shall have a
cause of action against any person or entity who committed such
violation and shall be entitled to recover--
(1) actual damages, but not less than liquidated
damages of [$1,000] $10,000 or $100 per day for each
day of violation, whichever is greater;
(2) punitive damages; and
(3) reasonable attorney's fees and other
investigative and litigation costs reasonably incurred.
(b) Limitation.--A civil action under this section may not
be commenced later than 2 years after the date upon which the
claimant first has a reasonable opportunity to discover the
violation.
(c) Administrative Discipline.--If a court determines that
the United States or any agency or bureau thereof has violated
any provision of this section and the court finds that the
circumstances surrounding the violation raise questions of
whether or not an officer or employee thereof acted willfully
or intentionally with respect to the violation, the agency or
bureau shall promptly initiate a proceeding to determine
whether or not disciplinary action is warranted against the
officer or employee who was responsible for the violation. In
such case, if the head of the agency or bureau determines
discipline is not appropriate, the head shall report the
conclusions for the determination and the reasons therefor to
the Deputy Inspector General for Civil Rights, Civil Liberties,
and the Federal Bureau of Investigation.
(d) Actions Against the United States.--Any action against
the United States shall be conducted under the procedures of
the Federal Tort Claims Act. Any award against the United
States shall be deducted from the budget of the appropriate
agency or bureau employing or managing the officer or employee
who was responsible for the violation.
* * * * * * *
TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
pen registers and trap and trace devices for foreign intelligence and
international terrorism investigations
Sec. 402. (a) * * *
* * * * * * *
(c) Each application under this section shall require the
approval of the Attorney General, or a designated attorney for
the Government, and shall include--
(1) the identity of the Federal officer seeking to
use the pen register or trap and trace device covered
by the application; and
(2) a certification by the applicant that the
information likely to be obtained from the telephone
line to which the pen register or trap and trace device
is to be attached, or the communication instrument or
device to be covered by the pen register or trap and
trace device is relevant to an ongoing foreign
intelligence or international terrorism investigation
being conducted by the Federal Bureau of Investigation
under guidelines approved by the Attorney General[;
and].
[(3) information which demonstrates that there is
reason to believe that the telephone line to which the
pen register or trap and trace device is to be
attached, or the communication instrument or device to
be covered by the pen register or trap and trace
device, has been or is about to be used in
communication with--
[(A) an individual who is engaging or has
engaged in international terrorism or
clandestine intelligence activities that
involve or may involve a violation of the
criminal laws of the United States; or
[(B) a foreign power or agent of a foreign
power under circumstances giving reason to
believe that the communication concerns or
concerned international terrorism or
clandestine intelligence activities that
involve or may involve a violation of the
criminal laws of the United States.]
* * * * * * *
penalties
Sec. 407. (a) Prohibited activities.--A person is guilty of
an offense if the person intentionally--
(1) installs or uses a pen register or trap and
trace device under color of law except as authorized by
statute; or
(2) discloses or uses information obtained under
color of law by using a pen register or trap and trace
device, knowing or having reason to know that the
information was obtained through using a pen register
or trap and trace device not authorized by statute.
(b) Defense.--It is a defense to a prosecution under
subsection (a) that the defendant was a law enforcement or
investigative officer engaged in the course of his official
duties and the pen register or trap and trace device was
authorized by and conducted pursuant to a search warrant or
court order of a court of competent jurisdiction.
(c) Penalties.--An offense described in this section is
punishable by a fine of not more than $10,000 or imprisonment
for not more than five years, or both.
(d) Federal Jurisdiction .--There is Federal jurisdiction
over an offense under this section if the person committing the
offense was an officer or employee of the United States at the
time the offense was committed.
civil liability
Sec. 408. (a) Civil Action.--An aggrieved person, other
than a foreign power or an agent of a foreign power, as defined
in section 101(a) or (b)(1)(A), respectively, who has been
subjected to a pen register or trap and trace device or about
whom information obtained by a pen register or trap and trace
device has been disclosed or used in violation of section 407
shall have a cause of action against any person or entity who
committed such violation and shall be entitled to recover--
(1) actual damages, but not less than liquidated
damages of $10,000, whichever is greater;
(2) punitive damages; and
(3) reasonable attorney's fees and other
investigation and litigation costs reasonably incurred.
(b) Limitation.--A civil action under this section may not
be commenced later than 2 years after the date upon which the
claimant first has a reasonable opportunity to discover the
violation.
(c) Administrative Discipline.--If a court determines that
the United States or any agency or bureau thereof has violated
any provision of this section and the court finds that the
circumstances surrounding the violation raise questions of
whether or not an officer or employee thereof acted willfully
or intentionally with respect to the violation, the agency or
bureau shall promptly initiate a proceeding to determine
whether or not disciplinary action is warranted against the
officer or employee who was responsible for the violation. In
such case, if the head of the agency or bureau determines
discipline is not appropriate, the head shall report the
conclusions for the determination and the reasons therefor to
the Deputy Inspector General for Civil Rights, Civil Liberties,
and the Federal Bureau of Investigation.
(d) Actions Against the United States.--Any action against
the United States shall be conducted under the procedures of
the Federal Tort Claims Act. Any award against the United
States shall be deducted from the budget of the appropriate
agency or bureau employing or managing the officer or employee
who was responsible for the violation.
TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
PURPOSES
[definitions
[Sec. 501. As used in this title:
[(1) The terms ``foreign power'', ``agent of a
foreign power'', ``foreign intelligence information'',
``international terrorism'', and ``Attorney General''
shall have the same meanings as in section 101 of this
Act.
[(2) The term ``common carrier'' means any person
or entity transporting people or property by land,
rail, water, or air for compensation.
[(3) The term ``physical storage facility'' means
any business or entity that provides space for the
storage of goods or materials, or services related to
the storage of goods or materials, to the public or any
segment thereof.
[(4) The term ``public accommodation facility''
means any inn, hotel, motel, or other establishment
that provides lodging to transient guests.
[(5) The term ``vehicle rental facility'' means any
person or entity that provides vehicles for rent,
lease, loan, or other similar use to the public or any
segment thereof.
[access to certain business records for foreign intelligence and
international terrorism investigations
[Sec. 502. (a) The Director of the Federal Bureau of
Investigation or a designee of the Director (whose rank shall
be no lower than Assistant Special Agent in Charge) may make an
application for an order authorizing a common carrier, public
accommodation facility, physical storage facility, or vehicle
rental facility to release records in its possession for an
investigation to gather foreign intelligence information or an
investigation concerning international terrorism which
investigation is being conducted by the Federal Bureau of
Investigation under such guidelines as the Attorney General
approves pursuant to Executive Order No. 12333, or a successor
order.
[(b) Each application under this section--
[(1) shall be made to--
[(A) a judge of the court established by
section 103(a) of this Act; or
[(B) a United States Magistrate Judge under
chapter 43 of title 28, United States Code, who
is publicly designated by the Chief Justice of
the United States to have the power to hear
applications and grant orders for the release
of records under this section on behalf of a
judge of that court; and
[(2) shall specify that--
[(A) the records concerned are sought for
an investigation described in subsection (a);
and
[(B) there are specific and articulable
facts giving reason to believe that the person
to whom the records pertain is a foreign power
or an agent of a foreign power.
[(c)(1) Upon application made pursuant to this section, the
judge shall enter an ex parte order as requested, or as
modified, approving the release of records if the judge finds
that the application satisfies the requirements of this
section.
[(2) An order under this subsection shall not disclose that
it is issued for purposes of an investigation described in sub-
section (a).
[(d)(1) Any common carrier, public accommodation facility,
physical storage facility, or vehicle rental facility shall
comply with an order under subsection (c).
[(2) No common carrier, public accommodation facility,
physical storage facility, or vehicle rental facility, or
officer, employee, or agent thereof, shall disclose to any
person (other than those officers, agents, or employees of such
common carrier, public accommodation facility, physical storage
facility, or vehicle rental facility necessary to fulfill the
requirement to disclose information to the Federal Bureau of
Investigation under this section) that the Federal Bureau of
Investigation has sought or obtained records pursuant to an
order under this section.]
access to certain business records for foreign intelligence and
international terrorism investigations
Sec. 501. (a) In any investigation to gather foreign
intelligence information or an investigation concerning
international terrorism, such investigation being conducted by
the Federal Bureau of Investigation under such guidelines as
the Attorney General may approve pursuant to Executive Order
No. 12333 (or a successor order), the Director of the Federal
Bureau of Investigation or a designee of the Director (whose
rank shall be no lower than Assistant Special Agent in Charge)
may make an application for an order requiring the production
of any tangible things (including books, records, papers,
documents, and other items) that are relevant to the
investigation.
(b) Each application under this section--
(1) shall be made to--
(A) a judge of the court established by
section 103(a) of this Act; or
(B) a United States magistrate judge under
chapter 43 of title 28, United States Code, who
is publicly designated by the Chief Justice of
the United States to have the power to hear
applications and grant orders for the release
of records under this section on behalf of a
judge of that court; and
(2) shall specify that the records concerned are
sought for an investigation described in subsection
(a).
(c)(1) Upon application made pursuant to this section, the
judge shall enter an ex parte order as requested requiring the
production the tangible things sought if the judge finds that
the application satisfies the requirements of this section.
(2) An order under this subsection shall not disclose that
it is issued for purposes of an investigation described in
subsection (a).
(d) A person who, in good faith, produces tangible things
under an order issued pursuant to this section shall not be
liable to any other person for such production. Such production
shall not be deemed to constitute a waiver of any privilege in
any other proceeding or context.
congressional oversight
Sec. [503.] 502. (a) On a semiannual basis, the Attorney
General shall fully inform the Permanent Select Committee on
Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate concerning all requests
for records under this title.
* * * * * * *
----------
SECTION 624 OF THE FAIR CREDIT REPORTING ACT
(Public Law 90-321)
Sec. 624. Disclosures to FBI for counterintelligence purposes
(a) Identity of Financial Institutions.--Notwithstanding
section 604 or any other provision of this title, a consumer
reporting agency shall furnish to the Federal Bureau of
Investigation the names and addresses of all financial
institutions (as that term is defined in section 1101 of the
Right to Financial Privacy Act of 1978) at which a consumer
maintains or has maintained an account, to the extent that
information is in the files of the agency, when presented with
a written request for that information, signed by the Director
of the Federal Bureau of Investigation, or the Director's
designee, which certifies compliance with this section. The
Director or the Director's designee may make such a
certification only if the Director or the Director's designee
has determined in [writing that--
[(1) such information is necessary for the conduct
of an authorized foreign counterintelligence
investigation; and
[(2) there are specific and articulable facts
giving reason to believe that the consumer--
[(A) is a foreign power (as defined in
section 101 of the Foreign Intelligence
Surveillance Act of 1978) or a person who is
not a United States person (as defined in such
section 101) and is an official of a foreign
power; or
[(B) is an agent of a foreign power and is
engaging or has engaged in an act of
international terrorism (as that term is
defined in section 101(c) of the Foreign
Intelligence Surveillance Act of 1978) or
clandestine intelligence activities that
involve or may involve a violation of criminal
statutes of the United States.]
writing that such information is necessary for the conduct of
an authorized foreign counterintelligence investigation.
(b) Identifying Information.--Notwithstanding the
provisions of section 604 or any other provision of this title,
a consumer reporting agency shall furnish identifying
information respecting a consumer, limited to name, address,
former addresses, places of employment, or former places of
employment, to the Federal Bureau of Investigation when
presented with a written request, signed by the Director or the
Director's designee, which certifies compliance with this
subsection. The Director or the Director's designee may make
such a certification only if the Director or the Director's
designee has determined in [writing that--
[(1) such information is necessary to the conduct
of an authorized counterintelligence investigation; and
[(2) there is information giving reason to believe
that the consumer has been, or is about to be, in
contact with a foreign power or an agent of a foreign
power (as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978).]
writing that such information is necessary for the conduct of
an authorized foreign counterintelligence investigation.
(c) Court Order for Disclosure of Consumer Reports.--
Notwithstanding section 604 or any other provision of this
title, if requested in writing by the Director of the Federal
Bureau of Investigation, or a designee of the Director, a court
may issue an order ex parte directing a consumer reporting
agency to furnish a consumer report to the Federal Bureau of
Investigation, upon a showing in [camera that--
[(1) the consumer report is necessary for the
conduct of an authorized foreign counterintelligence
investigation; and
[(2) there are specific and articulable facts
giving reason to believe that the consumer whose
consumer report is sought--
[(A) is an agent of a foreign power, and
[(B) is engaging or has engaged in an act
of international terrorism (as that term is
defined in section 101(c) of the Foreign
Intelligence Surveillance Act of 1978) or
clandestine intelligence activities that
involve or may involve a violation of criminal
statutes of the United States.]
camera that the consumer report is necessary for the conduct of
an authorized foreign counterintelligence investigation.
* * * * * * *
----------
SECTION 203 OF THE INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT
grant of authorities
Sec. 203. (a)(1) At the times and to the extent specified
in section 202, the President may, under such regulations as he
may prescribe, by means of instructions, licenses, or
otherwise--
(A) investigate, regulate, or prohibit--
(i) * * *
(ii) transfers of credit or payments
between, by, through, or to any banking
institution, to the extent that such transfers
or payments involve any interest of any foreign
country or a national thereof, or
[(iii) the importing or exporting of
currency or securities; and]
(iii) the importing or exporting of
currency or securities,
by any person, or with respect to any property, subject
to the jurisdiction of the United States;
(B) investigate, block during the pendency of an
investigation for a period of not more than 90 days
(which may be extended by an additional 60 days if the
President determines that such blocking is necessary to
carry out the purposes of this Act), regulate, direct
and compel, nullify, void, prevent or prohibit, any
acquisition, holding, withholding, use, transfer,
withdrawal, transportation, importation or exportation
of, or dealing in, or exercising any right, power, or
privilege with respect to, or transactions involving,
any property in which any foreign country or a national
thereof has any [interest;] interest, by any person, or
with respect to any property, subject to the
jurisdiction of the United States; and
[by any person, or with respect to any property, subject to the
jurisdiction of the United States.]
(C) when a statute has been enacted authorizing the
use of force by United States armed forces against a
foreign country, foreign organization, or foreign
national, or when the United States has been subject to
an armed attack by a foreign country, foreign
organization, or foreign national, confiscate any
property, subject to the jurisdiction of the United
States, of any foreign country, foreign organization,
or foreign national against whom United States armed
forces may be used pursuant to such statute or, in the
case of an armed attack against the United States, that
the President determines has planned, authorized,
aided, or engaged in such attack; and
(i) all right, title, and interest in any
property so confiscated shall vest when, as,
and upon the terms directed by the President,
in such agency or person as the President may
designate from time to time,
(ii) upon such terms and conditions as the
President may prescribe, such interest or
property shall be held, used, administered,
liquidated, sold, or otherwise dealt with in
the interest of and for the benefit of the
United States, except that the proceeds of any
such liquidation or sale, or any cash assets,
shall be segregated from other United States
Government funds and shall be used only
pursuant to a statute authorizing the
expenditure of such proceeds or assets, and
(iii) such designated agency or person may
perform any and all acts incident to the
accomplishment or furtherance of these
purposes.
* * * * * * *
----------
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TABLE OF CONTENTS
Title I--General
Sec. 101. Definitions.
* * * * * * *
[Sec. 105. Liaison with internal security officers.]
Sec. 105. Liaison with internal security officers and data exchange.
* * * * * * *
Title II--Immigration
* * * * * * *
chapter 4--inspection, apprehension, examination, exclusion, and
removal
* * * * * * *
Sec. 236A. Mandatory detention of suspected terrorists; habeas corpus;
judicial review.
TITLE I--GENERAL
* * * * * * *
liaison with internal security officers and data exchange
Sec. 105. (a) Liaison With Internal Security Officers.--The
Commissioner and the Administrator shall have authority to
maintain direct and continuous liaison with the Directors of
the Federal Bureau of Investigation and the Central
Intelligence Agency and with other internal security officers
of the Government for the purpose of obtaining and exchanging
information for use in enforcing the provisions of this Act in
the interest of [the internal security of] the internal and
border security of the United States. The Commissioner and the
Administrator shall maintain direct and continuous liaison with
each other with a view to a coordinated, uniform, and efficient
administration of this Act, and all other immigration and
nationality laws.
(b) Criminal History Record Information.--The Attorney
General and the Director of the Federal Bureau of Investigation
shall provide the Secretary of State and the Commissioner
access to the criminal history record information contained in
the National Crime Information Center's Interstate
Identification Index, Wanted Persons File, and to any other
files maintained by the National Crime Information Center that
may be mutually agreed upon by the Attorney General and the
official to be provided access, for the purpose of determining
whether a visa applicant or applicant for admission has a
criminal history record indexed in any such file. Such access
shall be provided by means of extracts of the records for
placement in the Department of State's automated visa lookout
database or other appropriate database, and shall be provided
without any fee or charge. The Director of the Federal Bureau
of Investigation shall provide periodic updates of the extracts
at intervals mutually agreed upon by the Attorney General and
the official provided access. Upon receipt of such updated
extracts, the receiving official shall make corresponding
updates to the official's databases and destroy previously
provided extracts. Such access to any extract shall not be
construed to entitle the Secretary of State to obtain the full
content of the corresponding automated criminal history record.
To obtain the full content of a criminal history record, the
Secretary of State shall submit the applicant's fingerprints
and any appropriate fingerprint processing fee authorized by
law to the Criminal Justice Information Services Division of
the Federal Bureau of Investigation.
(c) Reconsideration.--The provision of the extracts
described in subsection (b) may be reconsidered by the Attorney
General and the receiving official upon the development and
deployment of a more cost-effective and efficient means of
sharing the information.
(d) Regulations.--For purposes of administering this
section, the Secretary of State shall, prior to receiving
access to National Crime Information Center data, promulgate
final regulations--
(1) to implement procedures for the taking of
fingerprints; and
(2) to establish the conditions for the use of the
information received from the Federal Bureau of
Investigation, in order--
(A) to limit the redissemination of such
information;
(B) to ensure that such information is used
solely to determine whether to issue a visa to
an individual;
(C) to ensure the security,
confidentiality, and destruction of such
information; and
(D) to protect any privacy rights of
individuals who are subjects of such
information.
* * * * * * *
TITLE II--IMMIGRATION
Chapter 1--Selection System
* * * * * * *
asylum
Sec. 208. (a) * * *
(b) Conditions for Granting Asylum.--
(1) * * *
(2) Exceptions.--
(A) In general.--Paragraph (1) shall not
apply to an alien if the Attorney General
determines that--
(i) * * *
* * * * * * *
(v) the alien is [inadmissible
under] described in subclause (I),
(II), (III), or (IV) of section
212(a)(3)(B)(i) or [removable under]
described in section 237(a)(4)(B)
(relating to terrorist activity),
unless, in the case only of an alien
[inadmissible under] described in
subclause (IV) of section
212(a)(3)(B)(i), the Attorney General
determines, in the Attorney General's
discretion, that there are not
reasonable grounds for regarding the
alien as a danger to the security of
the United States; or
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
general classes of aliens ineligible to receive visas and ineligible
for admission; waivers of inadmissibility
Sec. 212. (a) Classes of Aliens Ineligible for Visas or
Admission.--Except as otherwise provided in this Act, aliens
who are inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be admitted to
the United States:
(1) * * *
(2) Criminal and related grounds.--
(A) * * *
* * * * * * *
(I) Money laundering.--Any alien--
(i) who a consular officer or the
Attorney General knows, or has reason
to believe, has engaged, is engaging,
or seeks to enter the United States to
engage, in an offense which is
described in section 1956 of title 18,
United States Code (relating to
laundering of monetary instruments); or
(ii) who a consular officer or the
Attorney General knows is, or has been,
a knowing aider, abettor, assister,
conspirator, or colluder with others in
an offense which is described in such
section;
is inadmissible.
(3) Security and related grounds.--
(A) * * *
(B) Terrorist activities.--
(i) In general.--Any alien who--
(I) has engaged in a
terrorist activity[,];
(II) a consular officer or
the Attorney General knows, or
has reasonable ground to
believe, is engaged in or is
likely to engage after entry in
any terrorist activity (as
defined in clause (iii))[,];
(III) has, under
circumstances indicating an
intention to cause death or
serious bodily harm, incited
terrorist activity[,];
[(IV) is a representative
(as defined in clause (iv)) of
a foreign terrorist
organization, as designated by
the Secretary under section
219, which the alien knows or
should have known is a
terrorist organization or]
(IV) is a representative
of--
(a) a foreign
terrorist organization,
as designated by the
Secretary of State
under section 219; or
(b) a political,
social, or other
similar group whose
public endorsement of
terrorist activity the
Secretary of State has
determined undermines
the efforts of the
United States to reduce
or eliminate terrorist
activities;
(V) is a member of a
foreign terrorist organization,
as designated by the Secretary
under section 219[,]; or
(VI) has used the alien's
prominence within a foreign
state or the United States to
endorse or espouse terrorist
activity, or to persuade others
to support terrorist activity
or a terrorist organization, in
a way that the Secretary of
State has determined undermines
the efforts of the United
States to reduce or eliminate
terrorist activities;
is inadmissible. An alien who is an
officer, official, representative, or
spokesman of the Palestine Liberation
Organization is considered, for
purposes of this Act, to be engaged in
a terrorist activity.
(ii) Terrorist activity defined.--
As used in this Act, the term
``terrorist activity'' means any
activity which is unlawful under the
laws of the place where it is committed
[(or which, if committed in the United
States,] (or which, if it had been or
were to be committed in the United
States, would be unlawful under the
laws of the United States or any State)
and which involves any of the
following:
(I) The highjacking or
sabotage of any conveyance
(including an aircraft, vessel,
or vehicle).
* * * * * * *
(V) The use of any--
(a) * * *
(b) [explosive or
firearm] explosive,
firearm, or other
object (other than for
mere personal monetary
gain),
with intent to endanger,
directly or indirectly, the
safety of one or more
individuals or to cause
substantial damage to property.
* * * * * * *
[(iii) Engage in terrorist activity
defined.--As used in this Act, the term
``engage in terrorist activity'' means
to commit, in an individual capacity or
as a member of an organization, an act
of terrorist activity or an act which
the actor knows, or reasonably should
know, affords material support to any
individual, organization, or government
in conducting a terrorist activity at
any time, including any of the
following acts:
[(I) The preparation or
planning of a terrorist
activity.
[(II) The gathering of
information on potential
targets for terrorist activity.
[(III) The providing of any
type of material support,
including a safe house,
transportation, communications,
funds, false documentation or
identification, weapons,
explosives, or training, to any
individual the actor knows or
has reason to believe has
committed or plans to commit a
terrorist activity.
[(IV) The soliciting of
funds or other things of value
for terrorist activity or for
any terrorist organization.
[(V) The solicitation of
any individual for membership
in a terrorist organization,
terrorist government, or to
engage in a terrorist
activity.]
(iii) Engage in terrorist activity
defined.--As used in this Act, the term
``engage in terrorist activity'' means,
in an individual capacity or as a
member of an organization--
(I) to commit a terrorist
activity;
(II) to plan or prepare to
commit a terrorist activity;
(III) to gather information
on potential targets for a
terrorist activity;
(IV) to solicit funds or
other things of value for--
(a) a terrorist
activity;
(b) an organization
designated as a foreign
terrorist organization
under section 219; or
(c) a terrorist
organization described
in clause (v)(II), but
only if the solicitor
knows, or reasonably
should know, that the
solicitation would
further a terrorist
activity;
(V) to solicit any
individual--
(a) to engage in
conduct otherwise
described in this
clause;
(b) for membership
in a terrorist
government;
(c) for membership
in an organization
designated as a foreign
terrorist organization
under section 219; or
(d) for membership
in a terrorist
organization described
in clause (v)(II), but
only if the solicitor
knows, or reasonably
should know, that the
solicitation would
further a terrorist
activity; or
(VI) to commit an act that
the actor knows, or reasonably
should know, affords material
support, including a safe
house, transportation,
communications, funds, transfer
of funds or other material
financial benefit, false
documentation or
identification, weapons
(including chemical,
biological, and radiological
weapons), explosives, or
training--
(a) for the
commission of a
terrorist activity;
(b) to any
individual who the
actor knows, or
reasonably should know,
has committed or plans
to commit a terrorist
activity;
(c) to an
organization designated
as a foreign terrorist
organization under
section 219; or
(d) to a terrorist
organization described
in clause (v)(II), but
only if the actor
knows, or reasonably
should know, that the
act would further a
terrorist activity.
* * * * * * *
(v) Terrorist organization
defined.--As used in this subparagraph,
the term ``terrorist organization''
means--
(I) an organization
designated as a foreign
terrorist organization under
section 219; or
(II) with regard to a group
that is not an organization
described in subclause (I), a
group of 2 or more individuals,
whether organized or not, which
engages in, or which has a
significant subgroup which
engages in, the activities
described in subclause (I),
(II), or (III) of clause (iii).
(vi) Special rule for material
support.--Clause (iii)(VI)(b) shall not
be construed to include the affording
of material support to an individual
who committed or planned to commit a
terrorist activity, if the alien
establishes by clear and convincing
evidence that such support was afforded
only after such individual permanently
and publicly renounced, rejected the
use of, and had ceased to engage in,
terrorist activity.
* * * * * * *
(F) Endangerment.--Any alien who the
Secretary of State, after consultation with the
Attorney General, or the Attorney General,
after consultation with the Secretary of State,
determines has been associated with a terrorist
organization and intends while in the United
States to engage solely, principally, or
incidentally in activities that could endanger
the welfare, safety, or security of the United
States is inadmissible.
* * * * * * *
designation of foreign terrorist organizations
Sec. 219. (a) Designation.--
(1) In general.--The [Secretary] official specified
under subsection (d) is authorized to designate an
organization as a foreign terrorist organization in
accordance with this subsection if the [Secretary]
official specified under subsection (d) finds that--
(A) * * *
(B) the organization engages in terrorist
activity (as defined in section
[212(a)(3)(B));] 212(a)(3)(B)), engages in
terrorism (as defined in section 140(d)(2) of
the Foreign Relations Authorization Act, Fiscal
Years 1988 and 1989 (22 U.S.C. 2656f(d)(2)), or
retains the capability and intent to engage in
terrorist activity or to engage in terrorism
(as so defined); and
(C) the terrorist activity or terrorism of
the organization threatens the security of
United States nationals or the national
security of the United States.
(2) Procedure.--
[(A) Notice.--Seven days before making a
designation under this subsection, the
Secretary shall, by classified communication--
[(i) notify the Speaker and
Minority Leader of the House of
Representatives, the President pro
tempore, Majority Leader, and Minority
Leader of the Senate, and the members
of the relevant committees, in writing,
of the intent to designate a foreign
organization under this subsection,
together with the findings made under
paragraph (1) with respect to that
organization, and the factual basis
therefor; and
[(ii) seven days after such
notification, publish the designation
in the Federal Register.]
(A) Notice.--
(i) In general.--Seven days before
a designation is made under this
subsection, the Secretary of State
shall, by classified communication,
notify the Speaker and minority leader
of the House of Representatives, the
President pro tempore, majority leader,
and minority leader of the Senate, the
members of the relevant committees, and
the Secretary of the Treasury, in
writing, of the intent to designate a
foreign organization under this
subsection, together with the findings
made under paragraph (1) with respect
to that organization, and the factual
basis therefor.
(ii) Publication of designation.--
The Secretary of State shall publish
the designation in the Federal Register
seven days after providing the
notification under clause (i).
(B) Effect of designation.--
(i) For purposes of section 2339B
of title 18, United States Code, a
designation under this subsection shall
take effect upon publication under
subparagraph (A)(ii).
(ii) Any designation under this
subsection shall cease to have effect
upon an Act of Congress disapproving
such designation.
(C) Freezing of assets.--Upon notification
under [paragraph (2),] subparagraph (A)(i), the
Secretary of the Treasury may require United
States financial institutions possessing or
controlling any assets of any foreign
organization included in the notification to
block all financial transactions involving
those assets until further directive from
either the Secretary of the Treasury, Act of
Congress, or order of court.
(3) Record.--
(A) In general.--In making a designation
under this subsection, the [Secretary] official
specified under subsection (d) shall create an
administrative record.
(B) Classified information.--The
[Secretary] official specified under subsection
(d) may consider classified information in
making a designation under this subsection.
Classified information shall not be subject to
disclosure for such time as it remains
classified, except that such information may be
disclosed to a court ex parte and in camera for
purposes of judicial review under subsection
[(c)] (b).
(4) Period of designation.--
(A) * * *
(B) Redesignation.--The [Secretary]
official specified under subsection (d) may
redesignate a foreign organization as a foreign
terrorist organization for an additional 2-year
period at the end of the 2-year period referred
to in subparagraph (A) (but not sooner than 60
days prior to the termination of such period)
upon a finding that the relevant circumstances
described in paragraph (1) still exist. The
official specified under subsection (d) may
also redesignate such organization at the end
of any 2-year redesignation period (but not
sooner than 60 days prior to the termination of
such period) for an additional 2-year period
upon a finding that the relevant circumstances
described in paragraph (1) still exist. Any
redesignation shall be effective immediately
following the end of the prior 2-year
designation or redesignation period unless a
different effective date is provided in such
redesignation. The procedural requirements of
paragraphs (2) and (3) shall apply to a
redesignation under this subparagraph.
* * * * * * *
(6) Revocation based on change in circumstances.--
(A) In general.--The [Secretary] official
specified under subsection (d) may revoke a
designation made under paragraph (1) or a
redesignation made under paragraph (4)(B) if
the [Secretary] official specified under
subsection (d) finds that--
(i) the circumstances that were the
basis for the designation or
redesignation have changed in such a
manner as to warrant revocation [of the
designation]; or
(ii) the national security of the
United States warrants a revocation [of
the designation].
(B) Procedure.--The procedural requirements
of paragraphs (2) [through (4)] and (3) shall
apply to a revocation under this paragraph.
(C) Effective date.--Any revocation shall
take effect on the date specified in the
revocation or upon publication in the Federal
Register if no effective date is specified.
(7) Effect of revocation.--The revocation of a
designation under paragraph (5) or (6), or the
revocation of a redesignation under paragraph (6),
shall not affect any action or proceeding based on
conduct committed prior to the effective date of such
revocation.
(8) Use of designation in trial or hearing.--If a
designation under this subsection has become effective
under paragraph [(1)(B),] (2)(B), or if a redesignation
under this subsection has become effective under
paragraph (4)(B) a defendant in a criminal action or an
alien in a removal proceeding shall not be permitted to
raise any question concerning the validity of the
issuance of such designation or redesignation as a
defense or an objection at any trial or hearing.
* * * * * * *
(c) Definitions.--As used in this section--
(1) * * *
(2) the term ``national security'' means the
national defense, foreign relations, or economic
interests of the United States; and
(3) the term ``relevant committees'' means the
Committees on the Judiciary, Intelligence, and Foreign
Relations of the Senate and the Committees on the
Judiciary, Intelligence, and International Relations of
the House of Representatives[; and].
[(4) the term ``Secretary'' means the Secretary of
State, in consultation with the Secretary of the
Treasury and the Attorney General.]
(d) Implementation of Duties and Authorities.--
(1) By secretary or attorney general.--Except as
otherwise provided in this subsection, the duties under
this section shall, and authorities under this section
may, be exercised by--
(A) the Secretary of State--
(i) after consultation with the
Secretary of the Treasury and with the
concurrence of the Attorney General; or
(ii) upon instruction by the
President pursuant to paragraph (2); or
(B) the Attorney General--
(i) after consultation with the
Secretary of the Treasury and with the
concurrence of the Secretary of State;
or
(ii) upon instruction by the
President pursuant to paragraph (2).
(2) Concurrence.--The Secretary of State and the
Attorney General shall each seek the other's
concurrence in accordance with paragraph (1). In any
case in which such concurrence is denied or withheld,
the official seeking the concurrence shall so notify
the President and shall request the President to make a
determination as to how the issue shall be resolved.
Such notification and request of the President may not
be made before the earlier of--
(A) the date on which a denial of
concurrence is received; or
(B) the end of the 60-day period beginning
on the date the concurrence was sought.
(3) Exception.--It shall be the duty of the
Secretary of State to carry out the procedural
requirements of paragraphs (2)(A) and (6)(B) of
subsection (a) in all cases, including cases in which a
designation or revocation is initiated by the Attorney
General.
* * * * * * *
Chapter 3--Issuance of Entry Documents
* * * * * * *
applications for visas
Sec. 222. (a) * * *
* * * * * * *
(f) [The records] (1) Subject to paragraphs (2) and (3),
the records of the Department of State and of diplomatic and
consular offices of the United States pertaining to the
issuance or refusal of visas or permits to enter the United
States shall be considered confidential and shall be used only
for the formulation, amendment, administration, or enforcement
of the immigration, nationality, and other laws of the [United
States, except that in the discretion of the Secretary of State
certified copies of such records may be made available to a
court which certifies that the information contained in such
records is needed by the court in the interest of the ends of
justice in a case pending before the court.] United States.
(2) In the discretion of the Secretary of State, certified
copies of such records may be made available to a court which
certifies that the information contained in such records is
needed by the court in the interest of the ends of justice in a
case pending before the court.
(3)(A) Subject to the provisions of this paragraph, the
Secretary of State may provide copies of records of the
Department of State and of diplomatic and consular offices of
the United States (including the Department of State's
automated visa lookout database) pertaining to the issuance or
refusal of visas or permits to enter the United States, or
information contained in such records, to foreign governments
if the Secretary determines that it is necessary and
appropriate.
(B) Such records and information may be provided on a case-
by-case basis for the purpose of preventing, investigating, or
punishing acts of terrorism. General access to records and
information may be provided under an agreement to limit the use
of such records and information to the purposes described in
the preceding sentence.
(C) The Secretary of State shall make any determination
under this paragraph in consultation with any Federal agency
that compiled or provided such records or information.
(D) To the extent possible, such records and information
shall be made available to foreign governments on a reciprocal
basis.
* * * * * * *
Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal
* * * * * * *
mandatory detention of suspected terrorists; habeas corpus; judicial
review
Sec. 236A. (a) Detention of Terrorist Aliens.--
(1) Custody.--The Attorney General shall take into
custody any alien who is certified under paragraph (3).
(2) Release.--Except as provided in paragraphs (5)
and (6), the Attorney General shall maintain custody of
such an alien until the alien is removed from the
United States or found not to be inadmissible or
deportable, as the case may be. Except as provided in
paragraph (6), such custody shall be maintained
irrespective of any relief from removal for which the
alien may be eligible, or any relief from removal
granted the alien, until the Attorney General
determines that the alien is no longer an alien who may
be certified under paragraph (3).
(3) Certification.--The Attorney General may
certify an alien under this paragraph if the Attorney
General has reasonable grounds to believe that the
alien--
(A) is described in section
212(a)(3)(A)(i), 212(a)(3)(A)(iii),
212(a)(3)(B), 237(a)(4)(A)(i),
237(a)(4)(A)(iii), or 237(a)(4)(B); or
(B) is engaged in any other activity that
endangers the national security of the United
States.
(4) Nondelegation.--The Attorney General may
delegate the authority provided under paragraph (3)
only to the Deputy Attorney General. The Deputy
Attorney General may not delegate such authority.
(5) Commencement of proceedings.--The Attorney
General shall place an alien detained under paragraph
(1) in removal proceedings, or shall charge the alien
with a criminal offense, not later than 7 days after
the commencement of such detention. If the requirement
of the preceding sentence is not satisfied, the
Attorney General shall release the alien.
(6) Limitation on indefinite detention.--An alien
detained under paragraph (1) who has been ordered
removed based on one or more of the grounds of
inadmissibility or deportability referred to in
paragraph (3)(A), who has not been removed within the
removal period specified under section 241(a)(1)(A),
and whose removal is unlikely in the reasonably
foreseeable future, may be detained for additional
periods of up to six months if the Attorney General
demonstrates that the release of the alien will not
protect the national security of the United States or
adequately ensure the safety of the community or any
person.
(b) Habeas Corpus and Judicial Review.--Judicial review of
any action or decision relating to this section (including
judicial review of the merits of a determination made under
subsection (a)(3) or (a)(6)) is available exclusively in habeas
corpus proceedings initiated in the United States District
Court for the District of Columbia. Notwithstanding any other
provision of law, including section 2241 of title 28, United
States Code, except as provided in the preceding sentence, no
court shall have jurisdiction to review, by habeas corpus
petition or otherwise, any such action or decision.
* * * * * * *
Sec. 237. (a) Classes of Deportable Aliens.--Any alien
(including an alien crewman) in and admitted to the United
States shall, upon the order of the Attorney General, be
removed if the alien is within one or more of the following
classes of deportable aliens:
(1) * * *
* * * * * * *
(4) Security and related grounds.--
(A) * * *
[(B) Terrorist activities.--Any alien who
has engaged, is engaged, or at any time after
admission engages in any terrorist activity (as
defined in section 212(a)(3)(B)(iii)) is
deportable.]
(B) Terrorist activities.--Any alien is
deportable who--
(i) has engaged, is engaged, or at
any time after admission engages in
terrorist activity (as defined in
section 212(a)(3)(B)(iii));
(ii) is a representative (as
defined in section 212(a)(3)(B)(iv))
of--
(I) a foreign terrorist
organization, as designated by
the Secretary of State under
section 219; or
(II) a political, social,
or other similar group whose
public endorsement of terrorist
activity--
(a) is intended and
likely to incite or
produce imminent
lawless action; and
(b) has been
determined by the
Secretary of State to
undermine the efforts
of the United States to
reduce or eliminate
terrorist activities;
or
(iii) has used the alien's
prominence within a foreign state or
the United States--
(I) to endorse, in a manner
that is intended and likely to
incite or produce imminent
lawless action and that has
been determined by the
Secretary of State to undermine
the efforts of the United
States to reduce or eliminate
terrorist activities, terrorist
activity; or
(II) to persuade others, in
a manner that is intended and
likely to incite or produce
imminent lawless action and
that has been determined by the
Secretary of State to undermine
the efforts of the United
States to reduce or eliminate
terrorist activities, to
support terrorist activity or a
terrorist organization (as
defined in section
212(a)(3)(B)(v)).
* * * * * * *
----------
SECTION 641 OF THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT
RESPONSIBILITY ACT OF 1996
SEC. 641. PROGRAM TO COLLECT INFORMATION RELATING TO NONIMMIGRANT
FOREIGN STUDENTS AND OTHER EXCHANGE PROGRAM
PARTICIPANTS.
(a) * * *
* * * * * * *
(e) Funding.--
(1) * * *
* * * * * * *
(4) Amount and use of fees.--
(A) Establishment of amount.--The Attorney
General shall establish the amount of the fee
to be imposed on, and collected from, an alien
under paragraph (1). Except as provided in
subsection (g)(2), the fee imposed on any
individual may not exceed $100. The amount of
the fee shall be based on the Attorney
General's estimate of the cost per alien of
conducting the information collection program
described in this section, except that, in the
case of an alien admitted under section
101(a)(15)(J) of the Immigration and
Nationality Act as an au pair, camp counselor,
or participant in a summer work travel program,
the fee shall not exceed $40, except that, in
the case of an alien admitted under section
101(a)(15)(J) of the Immigration and
Nationality Act as an au pair, camp counselor,
or participant in a summer work travel program,
the fee shall not exceed $35. In the case of an
alien who is a national of a country, the
government of which the Secretary of State has
determined, for purposes of section 6(j)(1) of
the Export Administration Act of 1979 (50
U.S.C. App. 2405(j)(1)), has repeatedly
provided support for acts of international
terrorism, the Attorney General may impose on,
and collect from, the alien a fee that is
greater than that imposed on other aliens
described in paragraph (3).
* * * * * * *
(f) Joint Report.--[Not later than 4 years after the
commencement of the program established under subsection (a),]
Not later than 120 days after the date of the enactment of the
PATRIOT Act of 2001, the Attorney General, the Secretary of
State, and the Secretary of Education shall jointly submit to
the Committees on the Judiciary of the Senate and the House of
Representatives a report on the operations of the program and
the feasibility of expanding the program to cover the nationals
of all countries.
(g) Worldwide Applicability of the Program.--
(1) Expansion of program.--Not later than [12
months] 120 days after the submission of the report
required by subsection (f ), the Attorney General, in
consultation with the Secretary of State and the
Secretary of Education, shall commence expansion of the
program to cover the nationals of all countries.
* * * * * * *
(h) Data Exchange.--Notwithstanding any other provision of
law, the Attorney General shall provide to the Secretary of
State and the Director of the Federal Bureau of Investigation
the information collected under subsection (a)(1).
[(h)] (i) Definitions.--As used in this section:
(1) * * *
* * * * * * *
----------
FEDERAL RULES OF CRIMINAL PROCEDURE
* * * * * * *
III. INDICTMENT AND INFORMATION
Rule 6. The Grand Jury
(a) * * *
* * * * * * *
(e) Recording and Disclosure of Proceedings.
(1) * * *
* * * * * * *
(3) Exceptions.
(A) * * *
* * * * * * *
(C) Disclosure otherwise prohibited by this
rule of matters occurring before the grand jury
may also be made--
(i) * * *
* * * * * * *
(iii) when the disclosure is made
by an attorney for the government to
another federal grand jury; [or]
(iv) when permitted by a court at
the request of an attorney for the
government, upon a showing that such
matters may disclose a violation of
state criminal law, to an appropriate
official of a state or subdivision of a
state for the purpose of enforcing such
law[.]; or
(v) when permitted by a court at
the request of an attorney for the
government, upon a showing that the
matters pertain to international or
domestic terrorism (as defined in
section 2331 of title 18, United States
Code) or national security, to any
Federal law enforcement, intelligence,
national security, national defense,
protective, immigration personnel, or
to the President or Vice President of
the United States, for the performance
of official duties.
* * * * * * *
IX. SUPPLEMENTARY AND SPECIAL PROCEEDINGS
* * * * * * *
Rule 41. Search and Seizure
(a) Authority To Issue Warrant. Upon the request of a
federal law enforcement officer or an attorney for the
government, a search warrant authorized by this rule may be
issued (1) by a federal magistrate judge, or a state court of
record within the federal district, for a search of property or
for a person within the district and (2) by a federal
magistrate judge for a search of property or for a person
either within or outside the district if the property or person
is within the district when the warrant is sought but might
move outside the district before the warrant is executed and
(3) in an investigation of domestic terrorism or international
terrorism (as defined in section 2331 of title 18, United
States Code), by a Federal magistrate judge in any district
court of the United States (including a magistrate judge of
such court), or any United States Court of Appeals, having
jurisdiction over the offense being investigated, for a search
of property or for a person within or outside the district.
* * * * * * *
----------
SECTION 3 OF THE DNA ANALYSIS BACKLOG ELIMINATION ACT OF 2000
SEC. 3. COLLECTION AND USE OF DNA IDENTIFICATION INFORMATION FROM
CERTAIN FEDERAL OFFENDERS.
(a) * * *
* * * * * * *
(d) Qualifying Federal Offenses.--(1) The offenses that
shall be treated for purposes of this section as qualifying
Federal offenses are the following offenses under title 18,
United States Code, as determined by the Attorney General:
(A) * * *
* * * * * * *
(G) Any Federal terrorism offense (as defined in
section 25 of title 18, United States Code).
[(G)] (H) Any attempt or conspiracy to commit any
of the above offenses.
* * * * * * *
----------
STATE DEPARTMENT BASIC AUTHORITIES ACT OF 1956
TITLE I--BASIC AUTHORITIES GENERALLY
* * * * * * *
SEC. 36. DEPARTMENT OF STATE REWARDS PROGRAM.
(a) * * *
(b) Rewards Authorized.--In the sole discretion of the
Secretary (except as provided in subsection (c)(2)) and in
consultation, as appropriate, with the Attorney General, the
Secretary may pay a reward to any individual who furnishes
information leading to--
(1) * * *
* * * * * * *
(4) the arrest or conviction in any country of any
individual aiding or abetting in the commission of an
act described in paragraph (1), (2), or (3); [or]
(5) the prevention, frustration, or favorable
resolution of an act described in paragraph (1), (2),
or (3)[.], including by dismantling an organization in
whole or significant part; or
(6) the identification or location of an individual
who holds a leadership position in a terrorist
organization.
* * * * * * *
(d) Funding.--
(1) * * *
[(2) Limitation.--No amount of funds may be
appropriated under paragraph (1) which, when added to
the unobligated balance of amounts previously
appropriated to carry out this section, would cause
such amounts to exceed $15,000,000.
[(3) Allocation of funds.--To the maximum extent
practicable, funds made available to carry out this
section should be distributed equally for the purpose
of preventing acts of international terrorism and for
the purpose of preventing international narcotics
trafficking.]
[(4)] (2) Period of availability.--Amounts
appropriated under paragraph (1) shall remain available
until expended.
(e) Limitations and Certification.--
[(1) Maximum amount.--No reward paid under this
section may exceed $5,000,000.]
(1) Amount of award.--
(A) Except as provided in subparagraph (B),
no reward paid under this section may exceed
$10,000,000.
(B) The Secretary of State may authorize
the payment of an award not to exceed
$25,000,000 if the Secretary determines that
payment of an award exceeding the amount under
subparagraph (A) is important to the national
interest of the United States.
* * * * * * *
special agents
Sec. 37. (a) General Authority.--Under such regulations as
the Secretary of State may prescribe, special agents of the
Department of State and the Foreign Service may--
(1) * * *
[(2) For the purpose of conducting such
investigation--
[(A) obtain and execute search and arrest
warrants,
[(B) make arrests without warrant for any
offense concerning passport or visa issuance or
use of the special agent has reasonable grounds
to believe that the person has committed or is
committing such offense, and
[(C) obtain and serve subpoenas and
summonses issued under the authority of the
United States;]
(2) in the course of performing the functions set
forth in paragraphs (1) and (3), obtain and execute
search and arrest warrants, as well as obtain and serve
subpoenas and summonses, issued under the authority of
the United States;
(3) protect and perform protective functions
directly related to maintaining the security and safety
of--
(A) * * *
* * * * * * *
(F) an individual who has been designated
by the President or President-elect to serve as
Secretary of State, prior to that individual's
appointment.
* * * * * * *
[(5) arrest without warrant any person for a
violation of section 111, 112, 351, 970, or 1028 , of
title 18, United States Code--
[(A) in the case of a felony violation, if
the special agent has reasonable grounds to
believe that such person--
[(i) has committed or is committing
such violation; and
[(ii) is in or is fleeing from the
immediate area of such violation; and
[(B) in the case of a felony or misdemeanor
violation, if the violation is committed in the
presence of the special agent.]
(5) in the course of performing the functions set
forth in paragraphs (1) and (3), make arrests without
warrant for any offense against the United States
committed in the presence of the special agent, or for
any felony cognizable under the laws of the United
States if the special agent has reasonable grounds to
believe that the person to be arrested has committed or
is committing such felony.
* * * * * * *
(d) Interference With Agents.--Whoever knowingly and
willfully obstructs, resists, or interferes with a Federal law
enforcement agent engaged in the performance of the protective
functions authorized by this section shall be fined under title
18 or imprisoned not more than one year, or both.
(e) Persons Under Protection of Special Agents.--Whoever
engages in any conduct--
(1) directed against an individual entitled to
protection under this section, and
(2) which would constitute a violation of section
112 or 878 of title 18, United States Code, if such
individual were a foreign official, an official guest,
or an internationally protected person, shall be
subject to the same penalties as are provided for such
conduct directed against an individual subject to
protection under such section of title 18.
* * * * * * *
----------
INTERNAL REVENUE CODE OF 1986
* * * * * * *
Subtitle F--Procedure and Administration
* * * * * * *
CHAPTER 61--INFORMATION AND RETURNS
* * * * * * *
Subchapter B--Miscellaneous Provisions
* * * * * * *
SEC. 6103. CONFIDENTIALITY AND DISCLOSURE OF RETURNS AND RETURN
INFORMATION.
(a) General Rule.--Returns and return information shall be
confidential, and except as authorized by this title--
(1) * * *
(2) no officer or employee of any State, any local
law enforcement agency receiving information under
subsection (i)(7)(A), any local child support
enforcement agency, or any local agency administering a
program listed in subsection (l)(7)(D) who has or had
access to returns or return information under this
section, and
* * * * * * *
(i) Disclosure to Federal Officers or Employees for
Administration of Federal Laws not Relating to Tax
Administration.--
(1) * * *
* * * * * * *
(3) Disclosure of return information to apprise
appropriate officials of criminal or terrorist
activities or emergency circumstances.--
(A) * * *
* * * * * * *
(C) Terrorist activities, etc.--
(i) In general.--Except as provided
in paragraph (6), the Secretary may
disclose in writing return information
(other than taxpayer return
information) that may be related to a
terrorist incident, threat, or activity
to the extent necessary to apprise the
head of the appropriate Federal law
enforcement agency responsible for
investigating or responding to such
terrorist incident, threat, or
activity. The head of the agency may
disclose such return information to
officers and employees of such agency
to the extent necessary to investigate
or respond to such terrorist incident,
threat, or activity.
(ii) Disclosure to the department
of justice.--Returns and taxpayer
return information may also be
disclosed to the Attorney General under
clause (i) to the extent necessary for,
and solely for use in preparing, an
application under paragraph (7)(D).
(iii) Taxpayer identity.--For
purposes of this subparagraph, a
taxpayer's identity shall not be
treated as taxpayer return information.
(iv) Termination.--No disclosure
may be made under this subparagraph
after December 31, 2003.
(4) Use of certain disclosed returns and return
information in judicial or administrative
proceedings.--
(A) Returns and taxpayer return
information.--Except as provided in
subparagraph (C), any return or taxpayer return
information obtained under paragraph (1) or
(7)(C) may be disclosed in any judicial or
administrative proceeding pertaining to
enforcement of a specifically designated
Federal criminal statute or related civil
forfeiture (not involving tax administration)
to which the United States or a Federal agency
is a party--
(i) * * *
* * * * * * *
(B) Return information (other than taxpayer
return information).--Except as provided in
subparagraph (C), any return information (other
than taxpayer return information) obtained
under paragraph (1), (2), [or (3)(A)] (3)(A) or
(C), or (7) may be disclosed in any judicial or
administrative proceeding pertaining to
enforcement of a specifically designated
Federal criminal statute or related civil
forfeiture (not involving tax administration)
to which the United States or a Federal agency
is a party.
* * * * * * *
(6) Confidential informants; impairment of
investigations.--The Secretary shall not disclose any
return or return information under paragraph (1), (2),
(3)(A) or(C), (5), [or (7)] (7), or (8) if the
Secretary determines (and, in the case of a request for
disclosure pursuant to a court order described in
paragraph (1)(B) or (5)(B), certifies to the court)
that such disclosure would identify a confidential
informant or seriously impair a civil or criminal tax
investigation.
(7) Disclosure upon request of information relating
to terrorist activities, etc.--
(A) Disclosure to law enforcement
agencies.--
(i) In general.--Except as provided
in paragraph (6), upon receipt by the
Secretary of a written request which
meets the requirements of clause (iii),
the Secretary may disclose return
information (other than taxpayer return
information) to officers and employees
of any Federal law enforcement agency
who are personally and directly engaged
in the response to or investigation of
terrorist incidents, threats, or
activities.
(ii) Disclosure to state and local
law enforcement agencies.--The head of
any Federal law enforcement agency may
disclose return information obtained
under clause (i) to officers and
employees of any State or local law
enforcement agency but only if such
agency is part of a team with the
Federal law enforcement agency in such
response or investigation and such
information is disclosed only to
officers and employees who are
personally and directly engaged in such
response or investigation.
(iii) Requirements.--A request
meets the requirements of this clause
if--
(I) the request is made by
the head of any Federal law
enforcement agency (or his
delegate) involved in the
response to or investigation of
terrorist incidents, threats,
or activities, and
(II) the request sets forth
the specific reason or reasons
why such disclosure may be
relevant to a terrorist
incident, threat, or activity.
(iv) Limitation on use of
information.--Information disclosed
under this subparagraph shall be solely
for the use of the officers and
employees to whom such information is
disclosed in such response or
investigation.
(B) Disclosure to intelligence agencies.--
(i) In general.--Except as provided
in paragraph (6), upon receipt by the
Secretary of a written request which
meets the requirements of clause (ii),
the Secretary may disclose return
information (other than taxpayer return
information) to those officers and
employees of the Department of Justice,
the Department of the Treasury, and
other Federal intelligence agencies who
are personally and directly engaged in
the collection or analysis of
intelligence and counterintelligence
information or investigation concerning
terrorists and terrorist organizations
and activities. For purposes of the
preceding sentence, the information
disclosed under the preceding sentence
shall be solely for the use of such
officers and employees in such
investigation, collection, or analysis.
(ii) Requirements.--A request meets
the requirements of this subparagraph
if the request--
(I) is made by an
individual described in clause
(iii), and
(II) sets forth the
specific reason or reasons why
such disclosure may be relevant
to a terrorist incident,
threat, or activity.
(iii) Requesting individuals.--An
individual described in this
subparagraph is an individual--
(I) who is an officer or
employee of the Department of
Justice or the Department of
the Treasury who is appointed
by the President with the
advice and consent of the
Senate or who is the Director
of the United States Secret
Service, and
(II) who is responsible for
the collection and analysis of
intelligence and
counterintelligence information
concerning terrorists and
terrorist organizations and
activities.
(iv) Taxpayer identity.--For
purposes of this subparagraph, a
taxpayer's identity shall not be
treated as taxpayer return information.
(C) Disclosure under ex parte orders.--
(i) In general.--Except as provided
in paragraph (6), any return or return
information with respect to any
specified taxable period or periods
shall, pursuant to and upon the grant
of an ex parte order by a Federal
district court judge or magistrate
under clause (ii), be open (but only to
the extent necessary as provided in
such order) to inspection by, or
disclosure to, officers and employees
of any Federal law enforcement agency
or Federal intelligence agency who are
personally and directly engaged in any
investigation, response to, or analysis
of intelligence and counterintelligence
information concerning any terrorist
activity or threats. Return or return
information opened pursuant to the
preceding sentence shall be solely for
the use of such officers and employees
in the investigation, response, or
analysis, and in any judicial,
administrative, or grand jury
proceedings, pertaining to any such
terrorist activity or threat.
(ii) Application for order.--The
Attorney General, the Deputy Attorney
General, the Associate Attorney
General, any Assistant Attorney
General, or any United States attorney
may authorize an application to a
Federal district court judge or
magistrate for the order referred to in
clause (i). Upon such application, such
judge or magistrate may grant such
order if he determines on the basis of
the facts submitted by the applicant
that--
(I) there is reasonable
cause to believe, based upon
information believed to be
reliable, that the taxpayer
whose return or return
information is to be disclosed
may be connected to a terrorist
activity or threat,
(II) there is reasonable
cause to believe that the
return or return information
may be relevant to a matter
relating to such terrorist
activity or threat, and
(III) the return or return
information is sought
exclusively for use in a
Federal investigation,
analysis, or proceeding
concerning terrorist activity,
terrorist threats, or terrorist
organizations.
(D) Special rule for ex parte disclosure by
the irs.--
(i) In general.--Except as provided
in paragraph (6), the Secretary may
authorize an application to a Federal
district court judge or magistrate for
the order referred to in subparagraph
(C)(i). Upon such application, such
judge or magistrate may grant such
order if he determines on the basis of
the facts submitted by the applicant
that the requirements of subclauses (I)
and (II) of subparagraph (C)(ii) are
met.
(ii) Limitation on use of
information.--Information disclosed
under clause (i)--
(I) may be disclosed only
to the extent necessary to
apprise the head of the
appropriate Federal law
enforcement agency responsible
for investigating or responding
to a terrorist incident,
threat, or activity, and
(II) shall be solely for
use in a Federal investigation,
analysis, or proceeding
concerning terrorist activity,
terrorist threats, or terrorist
organizations.
The head of such Federal agency may
disclose such information to officers
and employees of such agency to the
extent necessary to investigate or
respond to such terrorist incident,
threat, or activity.
(E) Termination.--No disclosure may be made
under this paragraph after December 31, 2003.
[(7)] (8) Comptroller general.--
(A) Returns available for inspection.--
Except as provided in subparagraph (C), upon
written request by the Comptroller General of
the United States, returns and return
information shall be open to inspection by, or
disclosure to, officers and employees of the
General Accounting Office for the purpose of,
and to the extent necessary in, making--
(i) * * *
* * * * * * *
(p) Procedure and Recordkeeping.--
(1) * * *
* * * * * * *
(3) Records of inspection and disclosure.--
(A) System of recordkeeping.--Except as
otherwise provided by this paragraph, the
Secretary shall maintain a permanent system of
standardized records or accountings of all
requests for inspection or disclosure of
returns and return information (including the
reasons for and dates of such requests) and of
returns and return information inspected or
disclosed under this section. Notwithstanding
the provisions of section 552a(c) of title 5,
United States Code, the Secretary shall not be
required to maintain a record or accounting of
requests for inspection or disclosure of
returns and return information, or of returns
and return information inspected or disclosed,
under the authority of subsections (c), (e),
(f)(5), (h)(1), (3)(A), or (4), (i)(4), or
[(7)(A)(ii)] (8)(A)(ii), (k)(1), (2), (6), (8),
or (9) (l)(1), (4)(B), (5), (7), (8), (9),
(10), (11), (12), (13), (14), (15), (16), or
(17) (m) or (n). The records or accountings
required to be maintained under this paragraph
shall be available for examination by the Joint
Committee on Taxation or the Chief of Staff of
such joint committee. Such record or accounting
shall also be available for examination by such
person or persons as may be, but only to the
extent, authorized to make such examination
under section 552a(c)(3) of title 5, United
States Code.
* * * * * * *
(C) Public report on disclosures.--The
Secretary shall, within 90 days after the close
of each calendar year, furnish to the Joint
Committee on Taxation for disclosure to the
public a report with respect to the records or
accountings described in subparagraph (A)
which--
(i) provides with respect to each
Federal agency, each agency, body, or
commission described in subsection (d),
(i)(3)(B)(i) or (7)(A)(ii) or (l)(6),
and the General Accounting Office the
number of--
(I) * * *
* * * * * * *
(4) Safeguards.--Any Federal agency described in
subsection (h)(2), (h)(5), (i)(1), (2), (3), [or (5),]
(5), or (7), (j)(1), (2) or (5), (k)(8), (l)(1), (2),
(3), (5), (11), (13), (14), or (17) or (o)(1), the
General Accounting Office, the Congressional Budget
Office, or any agency, body, or commission described in
subsection (d), (i)(3)(B)(i) or (7)(A)(ii) or (l)(6),
(7), (8), (9), (12), (15), or (16) or any other person
described in subsection (l)(16) shall, as a condition
for receiving returns or return information--
(A) * * *
* * * * * * *
(F) upon completion of use of such returns
or return information--
(i) * * *
(ii) in the case of an agency
described in subsections (h)(2),
(h)(5), (i)(1), (2), (3), [or (5),] (5)
or (7), (j)(1), (2) or (5), (k)(8),
(l)(1), (2), (3), (5), (10), (11),
(12), (13), (14), (15), or (17) or
(o)(1), the General Accounting Office,
or the Congressional Budget Office,
either--
(I) * * *
* * * * * * *
(6) Audit of procedures and safeguards.--
(A) * * *
(B) Records of inspection and reports by
the comptroller general.--The Comptroller
General shall--
(i) maintain a permanent system of
standardized records and accountings of
returns and return information
inspected by officers and employees of
the General Accounting Office under
subsection [(i)(7)(A)(ii)]
(i)(8)(A)(ii) and shall, within 90 days
after the close of each calendar year,
furnish to the Secretary a report with
respect to, or summary of, such records
or accountings in such form and
containing such information as the
Secretary may prescribe, and
* * * * * * *
CHAPTER 75--CRIMES, OTHER OFFENSES, AND FORFEITURES
* * * * * * *
Subchapter A--Crimes
* * * * * * *
PART I--GENERAL PROVISIONS
* * * * * * *
SEC. 7213. UNAUTHORIZED DISCLOSURE OF INFORMATION.
(a) Returns and Return Information.--
(1) * * *
(2) State and other employees.--It shall be
unlawful for any person (not described in paragraph
(1)) willfully to disclose to any person, except as
authorized in this title, any return or return
information (as defined in section 6103(b)) acquired by
him or another person under subsection (d),
(i)(3)(B)(i) or (7)(A)(ii), (l)(6), (7), (8), (9),
(10), or (12), (15), or (16) or (m)(2), (4), (5), (6),
or (7) of section 6103. Any violation of this paragraph
shall be a felony punishable by a fine in any amount
not exceeding $5,000, or imprisonment of not more than
5 years, or both, together with the costs of
prosecution.
* * * * * * *
----------
OMNIBUS CONSOLIDATED AND EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT,
1999
(Public Law 105-277)
DIVISION A--OMNIBUS CONSOLIDATED APPROPRIATIONS
That the following sums are appropriated, out of any money
in the Treasury not otherwise appropriated, for the several
departments, agencies, corporations and other organizational
units of the Government for the fiscal year 1999, and for other
purposes, namely:
Sec. 101(a). * * *
* * * * * * *
(b) For programs, projects or activities in the
Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act, 1999, provided as follows,
to be effective as if it had been enacted into law as the
regular appropriations Act:
AN ACT Making appropriations for the Departments of Commerce, Justice,
and State, the Judiciary, and related agencies for the fiscal year
ending September 30, 1999, and for other purposes.
TITLE I--DEPARTMENT OF JUSTICE
* * * * * * *
General Provisions--Department of Justice
* * * * * * *
Sec. 112. Notwithstanding any other provision of law,
during fiscal year 1999, the Assistant Attorney General for the
Office of Justice Programs of the Department of Justice--
(1) may make grants, or enter into cooperative
agreements and contracts, for the Office of Justice
Programs and the component organizations of that Office
(including, notwithstanding any contrary provision of
law (unless the same should expressly refer to this
section), any organization that administers any program
established in title 1 of Public Law 90-351); and
(2) shall have final authority over all functions,
including any grants, cooperative agreements, and
contracts made, or entered into, for the Office of
Justice Programs and the component organizations of
that Office (including, notwithstanding any contrary
provision of law (unless the same should expressly
refer to this section), any organization that
administers any program established in title 1 of
Public Law 90-351).
* * * * * * *
----------
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS ACT, 2000
(Public Law 106-113)
TITLE I--DEPARTMENT OF JUSTICE
* * * * * * *
General Provisions--Department of Justice
* * * * * * *
Sec. 108. (a) Notwithstanding any other provision of law,
for fiscal year 2000, the Assistant Attorney General for the
Office of Justice Programs of the Department of Justice--
(1) may make grants, or enter into cooperative
agreements and contracts, for the Office of Justice
Programs and the component organizations of that Office
(including, notwithstanding any contrary provision of
law (unless the same should expressly refer to this
section), any organization that administers any program
established in title 1 of Public Law 90-351); and
(2) shall have final authority over all functions,
including any grants, cooperative agreements and
contracts made, or entered into, for the Office of
Justice Programs and the component organizations of
that Office (including, notwithstanding any contrary
provision of law (unless the same should expressly
refer to this section), any organization that
administers any program established in title 1 of
Public Law 90-351), except for grants made under the
provisions of sections 201, 202, 301, and 302 of the
Omnibus Crime Control and Safe Streets Act of 1968, as
amended; and sections 204(b)(3), 241(e)(1), 243(a)(1),
243(a)(14) and 287A(3) of the Juvenile Justice and
Delinquency Prevention Act of 1974, as amended.
* * * * * * *
----------
SECTION 1404B OF THE VICTIMS OF CRIME ACT OF 1984
SEC. 1404B. COMPENSATION AND ASSISTANCE TO VICTIMS OF TERRORISM OR MASS
VIOLENCE.
(a) * * *
(b) Victims of Terrorism Within the United States.--The
Director may make supplemental grants as provided in section
1402(d)(5) to States for eligible crime victim compensation and
assistance programs, to victim service organizations, to public
agencies (including Federal, State, or local governments), and
to non-governmental organizations that provide assistance to
victims of crime, to provide emergency relief, including crisis
response efforts, assistance, training, and technical
assistance, for the benefit of victims of terrorist acts or
mass violence occurring within the United States and may
provide funding to United States Attorney's Offices for use in
coordination with State victim compensation and assistance
efforts in providing emergency relief.
* * * * * * *
----------
SECTION 1 OF THE ACT OF SEPTEMBER 18, 2001
(Public Law 107-37)
AN ACT To provide for the expedited payment of certain benefits for a
public safety officer who was killed or suffered a catastrophic injury
as a direct and proximate result of a personal injury sustained in the
line of duty in connection with the terrorist attacks of September 11,
2001.
SECTION 1. EXPEDITED PAYMENT FOR HEROIC PUBLIC SAFETY OFFICERS.
Notwithstanding the limitations of subsection (b) of
section 1201 or the provisions of subsections (c), (d), and (e)
of such section or section 1202 of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3796, 3796a),
upon certification (containing identification of all eligible
payees of benefits under section 1201) by a public agency that
a public safety officer employed by such agency was killed or
suffered a catastrophic injury producing permanent and total
disability as a direct and proximate result of a personal
injury sustained in the line of duty as described in section
[1201(a)] 1201 of such Act in connection with the rescue or
recovery efforts related to the terrorist attacks of September
11, 2001, the Director of the Bureau of Justice Assistance
shall authorize payment to qualified beneficiaries, said
payment to be made not later than 30 days after receipt of such
certification, benefits described under subpart 1 of part L of
such Act (42 U.S.C. 3796 et seq.).
----------
CRIME CONTROL ACT OF 1990
(Public Law 101-647)
* * * * * * *
TITLE XXV--BANKING LAW ENFORCEMENT
* * * * * * *
Subtitle H--Actions Against Persons Committing Bank Fraud Crimes
* * * * * * *
CHAPTER 1--DECLARATIONS PROVIDING NEW CLAIMS TO THE UNITED STATES
* * * * * * *
SEC. 2565. RIGHTS OF DECLARANTS; PARTICIPATION IN ACTIONS, AWARDS.
(a) * * *
* * * * * * *
(c) Criminal Conviction.--(1) When the United States obtains
a criminal conviction and the Attorney General determines that
the conviction was based in whole or in part on the information
contained in a valid declaration filed under section 2561, [the
declarant shall have the right to receive not less than $5,000
and not more than $100,000, any such award to be paid from the
Financial Institution Information Award Fund established under
section 2569.] the Attorney General may, in the Attorney
General's discretion, pay a reward to the declaring.
* * * * * * *
[(e) Prohibition of Double Awards.--(1) No person shall
receive both an award under this section and a reward under
either section 34 of the Federal Deposit Insurance Act or
section 3509A of title 18, United States Code, for providing
the same or substantially similar information.
[(2) When a person qualifies for both an award under this
section and a reward under either section 34 of the Federal
Deposit Insurance Act or section 3509A of title 18, United
States Code, for providing the same or substantially similar
information, the person may notify the Attorney General in
writing of the person's election to seek an award under this
section or a reward under such other section.]
* * * * * * *
[SEC. 2569. FINANCIAL INSTITUTION INFORMATION AWARD FUND.
[(a) Establishment.--There is established in the United
States Treasury a special fund to be known as the Financial
Institution Information Award Fund (referred to as the
``Fund'') which shall be available to the Attorney General
without fiscal year limitation to pay awards to declarants
pursuant to section 2565(c) and to pay special rewards pursuant
to section 3059A of title 18, United States Code.
[(b) Authorization of Appropriations.--There are authorized
to be appropriated to the Fund such funds as are necessary to
maintain the Fund at a level not to exceed $5,000,000.]
* * * * * * *
----------
DEPARTMENT OF JUSTICE APPROPRIATIONS ACT, 2001
* * * * * * *
TITLE I--DEPARTMENT OF JUSTICE
* * * * * * *
Immigration and Naturalization Service
salaries and expenses
For expenses necessary for the administration and
enforcement of the laws relating to immigration,
naturalization, and alien registration, as follows:
enforcement and border affairs
For salaries and expenses for the Border Patrol program,
the detention and deportation program, the intelligence
program, the investigations program, and the inspections
program, including not to exceed $50,000 to meet unforeseen
emergencies of a confidential character, to be expended under
the direction of, and to be accounted for solely under the
certificate of, the Attorney General; purchase for police-type
use (not to exceed 3,165 passenger motor vehicles, of which
2,211 are for replacement only), without regard to the general
purchase price limitation for the current fiscal year, and hire
of passenger motor vehicles; acquisition, lease, maintenance
and operation of aircraft; research related to immigration
enforcement; for protecting and maintaining the integrity of
the borders of the United States including, without limitation,
equipping, maintaining, and making improvements to the
infrastructure; and for the care and housing of Federal
detainees held in the joint Immigration and Naturalization
Service and United States Marshals Service's Buffalo Detention
Facility, $2,547,057,000; of which not to exceed $10,000,000
shall be available for costs associated with the training
program for basic officer training, and $5,000,000 is for
payments or advances arising out of contractual or reimbursable
agreements with State and local law enforcement agencies while
engaged in cooperative activities related to immigration; of
which not to exceed $5,000,000 is to fund or reimburse other
Federal agencies for the costs associated with the care,
maintenance, and repatriation of smuggled illegal aliens:
[Provided, That none of the funds available to the Immigration
and Naturalization Service shall be available to pay any
employee overtime pay in an amount in excess of $30,000 during
the calendar year beginning January 1, 2001:] Provided further,
That uniforms may be purchased without regard to the general
purchase price limitation for the current fiscal year: Provided
further, That, in addition to reimbursable full-time equivalent
workyears available to the Immigration and Naturalization
Service, not to exceed 19,783 positions and 19,191 full-time
equivalent workyears shall be supported from the funds
appropriated under this heading in this Act for the Immigration
and Naturalization Service: Provided further, That none of the
funds provided in this or any other Act shall be used for the
continued operation of the San Clemente and Temecula
checkpoints unless the checkpoints are open and traffic is
being checked on a continuous 24-hour basis.
citizenship and benefits, immigration support and program direction
For all programs of the Immigration and Naturalization
Service not included under the heading ``Enforcement and Border
Affairs'', $578,819,000, of which not to exceed $400,000 for
research shall remain available until expended: Provided, That
not to exceed $5,000 shall be available for official reception
and representation expenses: Provided further, That the
Attorney General may transfer any funds appropriated under this
heading and the heading ``Enforcement and Border Affairs''
between said appropriations notwithstanding any percentage
transfer limitations imposed under this appropriation Act and
may direct such fees as are collected by the Immigration and
Naturalization Service to the activities funded under this
heading and the heading ``Enforcement and Border Affairs'' for
performance of the functions for which the fees legally may be
expended: Provided further, That not to exceed 40 permanent
positions and 40 full-time equivalent workyears and $4,300,000
shall be expended for the Offices of Legislative Affairs and
Public Affairs: Provided further, That the latter two
aforementioned offices shall not be augmented by personnel
details, temporary transfers of personnel on either a
reimbursable or non-reimbursable basis, or any other type of
formal or informal transfer or reimbursement of personnel or
funds on either a temporary or long-term basis: Provided
further, That the number of positions filled through non-career
appointment at the Immigration and Naturalization Service, for
which funding is provided in this Act or is otherwise made
available to the Immigration and Naturalization Service, shall
not exceed four permanent positions and four full-time
equivalent workyears: [Provided further, That none of the funds
available to the Immigration and Naturalization Service shall
be used to pay any employee overtime pay in an amount in excess
of $30,000 during the calendar year beginning January 1, 2001:]
Provided further, That funds may be used, without limitation,
for equipping, maintaining, and making improvements to the
infrastructure and the purchase of vehicles for police-type use
within the limits of the Enforcement and Border Affairs
appropriation: Provided further, That, in addition to
reimbursable full-time equivalent workyears available to the
Immigration and Naturalization Service, not to exceed 3,100
positions and 3,150 full-time equivalent workyears shall be
supported from the funds appropriated under this heading in
this Act for the Immigration and Naturalization Service:
Provided further, That, notwithstanding any other provision of
law, during fiscal year 2001, the Attorney General is
authorized and directed to impose disciplinary action,
including termination of employment, pursuant to policies and
procedures applicable to employees of the Federal Bureau of
Investigation, for any employee of the Immigration and
Naturalization Service who violates policies and procedures set
forth by the Department of Justice relative to the granting of
citizenship or who willfully deceives the Congress or
department leadership on any matter.
* * * * * * *
----------
SECTION 1201 OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1986
payments
Sec. 1201. (a) In any case in which the Bureau of Justice
Assistance (hereinafter in this part referred to as the
``Bureau'') determines, under regulations issued pursuant to
this part, that a public safety officer has died as the direct
and proximate result of a personal injury sustained in the line
of duty, the Bureau shall pay a benefit of [$100,000] $200,000,
adjusted in accordance with subsection (h), as follows:
(1) * * *
* * * * * * *
----------
SECTION 2805 OF THE RECLAMATION RECREATION MANAGEMENT ACT OF 1992
SEC. 2805. MANAGEMENT OF RECLAMATION LANDS.
(a) Administration.--(1) * * *
* * * * * * *
(3) Any person who violates any such regulation which is
issued pursuant to this Act shall be fined under title 18,
United States Code, imprisoned not more than 6 months, or both.
Any person charged with a violation of such regulation may be
tried and sentenced by any United States magistrate judge
designated for that purpose by the court by which such judge
was appointed, in the same manner and subject to the same
conditions and limitations as provided for in section 3401 of
title 18, United States Code.
(4) The Secretary may--
(A) authorize law enforcement personnel from the
Department of the Interior to act as law enforcement
officers to maintain law and order and protect persons
and property within a Reclamation project or on
Reclamation lands;
(B) authorize law enforcement personnel of any
other Federal agency that has law enforcement
authority, with the exception of the Department of
Defense, or law enforcement personnel of any State or
local government, including Indian tribes, when deemed
economical and in the public interest, and with the
concurrence of that agency or that State or local
government, to act as law enforcement officers within a
Reclamation project or on Reclamation lands with such
enforcement powers as may be so assigned them by the
Secretary to carry out the regulations promulgated
under paragraph (2);
(C) cooperate with any State or local government,
including Indian tribes, in the enforcement of the laws
or ordinances of that State or local government; and
(D) provide reimbursement to a State or local
government, including Indian tribes, for expenditures
incurred in connection with activities under
subparagraph (B).
(5) Officers or employees designated or authorized by the
Secretary under paragraph (4) are authorized to--
(A) carry firearms within a Reclamation project or
on Reclamation lands and make arrests without warrants
for any offense against the United States committed in
their presence, or for any felony cognizable under the
laws of the United States if they have reasonable
grounds to believe that the person to be arrested has
committed or is committing such a felony, and if such
arrests occur within a Reclamation project or on
Reclamation lands or the person to be arrested is
fleeing therefrom to avoid arrest;
(B) execute within a Reclamation project or on
Reclamation lands any warrant or other process issued
by a court or officer of competent jurisdiction for the
enforcement of the provisions of any Federal law or
regulation issued pursuant to law for an offense
committed within a Reclamation project or on
Reclamation lands; and
(C) conduct investigations within a Reclamation
project or on Reclamation lands of offenses against the
United States committed within a Reclamation project or
on Reclamation lands, if the Federal law enforcement
agency having investigative jurisdiction over the
offense committed declines to investigate the offense
or concurs with such investigation.
(6)(A) Except as otherwise provided in this paragraph, a
law enforcement officer of any State or local government,
including Indian tribes, designated to act as a law enforcement
officer under paragraph (4) shall not be deemed a Federal
employee and shall not be subject to the provisions of law
relating to Federal employment, including those relating to
hours of work, rates of compensation, employment
discrimination, leave, unemployment compensation, and Federal
benefits.
(B) For purposes of chapter 171 of title 28, United States
Code, popularly known as the Federal Tort Claims Act, a law
enforcement officer of any State or local government, including
Indian tribes, shall, when acting as a designated law
enforcement officer under paragraph (4) and while under Federal
supervision and control, and only when carrying out Federal law
enforcement responsibilities, be considered a Federal employee.
(C) For purposes of subchapter I of chapter 81 of title 5,
United States Code, relating to compensation to Federal
employees for work injuries, a law enforcement officer of any
State or local government, including Indian tribes, shall, when
acting as a designated law enforcement officer under paragraph
(4) and while under Federal supervision and control, and only
when carrying out Federal law enforcement responsibilities, be
deemed a civil service employee of the United States within the
meaning of the term ``employee'' as defined in section 8101 of
title 5, and the provisions of that subchapter shall apply.
Benefits under this subchapter shall be reduced by the amount
of any entitlement to State or local workers' compensation
benefits arising out of the same injury or death.
(7) Nothing in paragraphs (3) through (9) shall be
construed or applied to limit or restrict the investigative
jurisdiction of any Federal law enforcement agency, or to
affect any existing right of a State or local government,
including Indian tribes, to exercise civil and criminal
jurisdiction within a Reclamation project or on Reclamation
lands.
(8) For the purposes of this subsection, the term ``law
enforcement personnel'' means employees of a Federal, State, or
local government agency, including an Indian tribal agency, who
have successfully completed law enforcement training approved
by the Secretary and are authorized to carry firearms, make
arrests, and execute service of process to enforce criminal
laws of their employing jurisdiction.
(9) The law enforcement authorities provided for in this
subsection may be exercised only pursuant to rules and
regulations promulgated by the Secretary and approved by the
Attorney General.
* * * * * * *
----------
TITLE 28, UNITED STATES CODE
* * * * * * *
PART IV--JURISDICTION AND VENUE
* * * * * * *
CHAPTER 87--DISTRICT COURTS; VENUE
* * * * * * *
Sec. 1391. Venue generally
(a) * * *
* * * * * * *
(f) A civil action against a foreign state as defined in
section 1603(a) of this title may be brought--
(1) * * *
* * * * * * *
(3) in any judicial district in which the agency or
instrumentality is licensed to do business or is doing
business, if the action is brought against an agency or
instrumentality of a foreign state as defined in
section [1603(b)] 1603(b)(1) of this title; or
* * * * * * *
CHAPTER 97--JURISDICTIONAL IMMUNITIES OF FOREIGN STATES
* * * * * * *
Sec. 1603. Definitions
For purposes of this chapter--
(a) * * *
[(b) An ``agency or instrumentality of a foreign state''
means any entity--] (b) An ``agency or instrumentality of a
foreign state'' means--
(1) any entity--
[(1)] (A) which is a separate legal person,
corporate or otherwise, and
[(2)] (B) which is an organ of a foreign
state or political subdivision thereof, or a
majority of whose shares or other ownership
interest is owned by a foreign state or
political subdivision thereof, and
[(3)] (C) which is neither a citizen of a
State of the United States as defined in
section 1332 (c) and (d) of this title, nor
created under the laws of any third country[.];
and
(2) for purposes of sections 1605(a)(7) and
1610(a)(7) and (f), any entity as defined under
subparagraphs (A) and (B) of paragraph (1), and
subparagraph (C) of paragraph (1) shall not apply.
* * * * * * *
Sec. 1610. Exceptions to the immunity from attachment or execution
(a) * * *
* * * * * * *
(f)(1)(A) Notwithstanding any other provision of law,
including but not limited to section 208(f) of the Foreign
Missions Act (22 U.S.C. 4308(f)), and except as provided in
subparagraph (B), any property with respect to which financial
transactions are prohibited or regulated pursuant to section
5(b) of the Trading with the Enemy Act (50 U.S.C. App. 5(b)),
section 620(a) of the Foreign Assistance Act of 1961 (22 U.S.C.
2370(a)), sections 202 and 203 of the International Emergency
Economic Powers Act (50 U.S.C. 1701-1702), or any other
proclamation, order, regulation, or license issued pursuant
thereto, shall be subject to execution or attachment in aid of
execution of any judgment relating to a claim for which a
foreign state [(including any agency or instrumentality or such
state)] (including any agency or instrumentality of such
state), except to the extent of any punitive damages awarded
claiming such property is not immune under section 605(a)(7).
* * * * * * *
(C) Notwithstanding any other provision of law, moneys due
from or payable by the United States (including any agency or
instrumentality thereof) to any state against which a judgment
is pending under section 1605(a)(7) shall be subject to
attachment and execution with respect to that judgment, in like
manner and to the same extent as if the United States were a
private person, except to the extent of any punitive damages
awarded.
* * * * * * *
[(3) Waiver.--The President may waive any provision
of paragraph (1) in the interest of national security.]
(3)(A) Subject to subparagraph (B), upon determining on an
asset-by-asset basis that a waiver is necessary in the national
security interest, the President may waive this subsection in
connection with (and prior to the enforcement of) any judicial
order directing attachment in aid of execution or execution
against any property subject to the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular
Relations.
(B) A waiver under this paragraph shall not apply to--
(i) if property subject to the Vienna Convention on
Diplomatic Relations or the Vienna Convention on
Consular Relations has been used for any nondiplomatic
purpose (including use as rental property), the
proceeds of such use; or
(ii) if any asset subject to the Vienna Convention
on Diplomatic Relations or the Vienna Convention on
Consular Relations is sold or otherwise transferred for
value to a third party, the proceeds of such sale or
transfer.
(C) In this paragraph, the term ``property subject to the
Vienna Convention on Diplomatic Relations or the Vienna
Convention on Consular Relations'' and the term ``asset subject
to the Vienna Convention on Diplomatic Relations or the Vienna
Convention on Consular Relations'' mean any property or asset,
respectively, the attachment in aid of execution or execution
of which would result in a violation of an obligation of the
United States under the Vienna Convention on Diplomatic
Relations or the Vienna Convention on Consular Relations, as
the case may be.
(4) For purposes of this subsection, all assets of any
agency or instrumentality of a foreign state shall be treated
as assets of that foreign state.
* * * * * * *
Committee Jurisdiction Letters
Markup Transcript
BUSINESS MEETING
WEDNESDAY, OCTOBER 3, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:00 p.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order. As
the first order of business today, I would like to welcome two
Members appointed to the Judiciary Committee last night.
First, I would like to welcome back Ed Bryant to the
Committee after a leave of absence. Our distinguished colleague
has represented the Seventh District of Tennessee since 1994,
and we are glad to have him back in our ranks. Mr. Bryant will
rank after Mr. Goodlatte.
I would also like to welcome to the Committee Mike Pence.
Mr. Pence is a freshman who represents the Second District of
Indiana, and we are very glad to have you both on the Committee
as we consider this important legislation before us today.
Mr. Conyers. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Michigan.
Mr. Conyers. May we join in that, saying welcome to our two
colleagues.
Chairman Sensenbrenner. Absolutely.
Now, pursuant to notice, I call up the bill H.R. 2975, the
Patriot Act of 2001, for purposes of markup and move as
favorable recommendation to the House. Without objection, the
bill will be considered as read and open for amendment by
title, except that a manager's amendment offered by the
Chairman and Ranking Minority Member may be considered at any
point during the consideration of this bill.
[The bill, H.R. 2975, follows:]
Chairman Sensenbrenner. Let me say that this is a little
bit different than the procedure that we have utilized in the
past. The entire bill is open for amendment, but I believe that
for purposes of better order and better debate, if we did it
title by title, we could concentrate on the issues presented in
each title. Hearing the unpleasant noise of bells in my right
ear, let me now recess the Committee until after the second
vote.
Let me say that it is the Chair's intention to continue
this markup through the classified briefing that is being held
across the street beginning at 4:00 o'clock, because it is
important that the Committee report this bill out today, and it
is also the Chair's intention to keep the Committee in session
until we have a final vote on reporting the bill out. The
Committee is now recessed until after the second vote.
[Recess.]
Chairman Sensenbrenner. The Committee will be in order. The
Chair notes the presence of a working quorum, and when the
Committee recessed the bill had been called up and unanimous
consent had been granted to consider the bill by title. In
order to speed things up, I would like to limit opening
statements to Mr. Conyers and myself. Without objection, all
Members' opening statements may be included in the record at
this point.
The Chair will now recognize himself for an opening
statement.
On September 11th, not only our Nation but our entire way
of life was attacked. From the moment that the first plane
smashed into the North Twin Tower, our lives were changed
forever. The sordid acts of the 19 men and the elaborate
network of organizations that support their cause have opened
our eyes to the clear and present danger that threatens our
great country. Now that our blinders have been removed, the
question is how we will act to help prevent future attacks.
Today we meet with one purpose in mind, to provide law
enforcement with important additional tools to help prevent
this sort of catastrophe from ever happening on U.S. soil
again. A true patriot is one who loves, supports and defends
his or her country. In the days and weeks following this
horrific act, it has become clear to the world that the United
States is a nation of patriots who through the selfless act of
the New York firefighters and rescue workers, the heroism of
the passengers on Flight 93, the charitable donations of our
citizens' blood and money and the proud display of our most
enduring symbol of freedom, the American flag. The united
efforts of this country are reflected in the bipartisan efforts
of this bill, which I was pleased to introduce with the Ranking
Member, Mr. Conyers, along with the cosponsorship of 18
bipartisan Members of this Committee.
The bill represents the essence of compromise. The left is
not completely happy with this bill, and neither is the right,
but certainly does not represent the Justice Department's wish
list. I think it means we have got it just about right. We are
considering this legislation today because the rules of war on
terrorism are vastly different than the wars this country has
fought in the past. We are uncertain who the enemy is. We are
uncertain where the enemy is. We are more uncertain than ever
before about the next move of the enemy. Because of this
uncertainty, we have had to change the way we think about the
safety and security of our country and its people. We must
develop new weapons for the protection against this new kind of
war.
It is important that this new approach to safety and
security that is required us to take action today. The
bipartisan legislation we are considering today will give law
enforcement new weapons to fight a new kind of war. Terrorists
have weapons that law enforcement cannot protect against right
now. Technology has made extraordinary advances, but those
advances in the wrong hand have made us more vulnerable to
attack.
Attorney General Ashcroft testified before the Judiciary
Committee that, quote, we are today sending our troops into the
modern field of battle with antique weapons, unquote. Indeed,
it cannot be denied that law enforcement tools created decades
ago were crafted for rotary telephones, not e-mail, the
Internet, mobile communications and voicemail. Thus, the
Patriot Act modernizes surveillance capabilities by ensuring
that pen register and trap and trace court orders apply to new
technologies such as the Internet and can be executed in
multiple jurisdictions anywhere in the United States.
Criminal provisions dealing with stored electronic
communications will be updated to allow law enforcement to
seize stored voicemail messages in the same way they can seize
a taped answering machine message. Additionally under this bill
the court may authorize a pen register or trap-trace order that
follows the person from cell phone to cell phone, rather than
requiring law enforcement to return to court every time the
person switches cell phones.
The bill, consistent with our constitutional system of
government, still requires a judge to approve wiretap search
warrants and registers and trap-trace devices. The Patriot Act
also toughens our substantive criminal law statutes in order to
treat crimes of terrorism with the same level of importance as
the most serious crimes in our country, and it expands the
definition of support of terrorism for which a person could be
prosecuted to include providing expert advice to terrorists or
harboring terrorists or concealing a suspected terrorist.
Of equal importance, the bill will not do anything to take
away the freedoms of innocent citizens. Of course, we all
recognize that the fourth amendment to the Constitution
prevents the government from conducting unreasonable searches
and seizures, and that is why the Patriot Act will not change
the United States's Constitution or the rights guaranteed to
citizens of this country under the Bill of Rights.
Of course, the first civil right of every American is to be
free of domestic terrorism, and this bill ensures that right by
strengthening our Nation's law enforcement for the protection
of all Americans and to ensure domestic tranquility.
We have produced the means to address many of the
shortcomings of current law, and to improve our law enforcement
ability to eradicate terrorism from our borders while
preserving the civil liberties of our citizens.
I would like to thank both my staff and the minority staff
for their extensive work and collaboration in drafting this
legislation.
I am also grateful for the cooperation of the Bush
Administration, particularly for making Justice Department
officials available to brief Members of this Committee at
almost any time and place.
I urge the Members of this Committee to support this
delicate compromise legislation and the important purpose it
will serve in fighting terrorism in this country and abroad.
I believe there is an unquestionable need for this bill. In
fact, I am convinced our homeland security depends upon it.
At this time, I yield to the gentleman from Michigan for
whatever comments he cares to make.
Mr. Conyers. Thank you, Chairman Sensenbrenner, and our
thanks to the 16 Members on the Democratic side for having
invited us to work with you in crafting this bill. In my tenure
on the Committee, I have not experienced the degree of
cooperation between the majority and minority that has been
displayed over the last 2 weeks on a bill as complex and as
possibly contentious as this. There is still work to be done,
but we are off to a good start.
I also advance my thanks to you for preserving regular
order on this matter. It is well known that many prefer that
the Administration proposal be taken directly to the floor, but
I believe that in the national interest order is preserved, and
we reach a better result by taking the additional time required
to go through this Committee and by getting some of the
bothersome details as correct as we can.
There is no doubt we are subject to conflicting instincts
and inclinations on this bill. Protecting civil liberties and
fighting terrorism in the wake of a national tragedy is not an
easy thing to do. My friends in law enforcement tell me that
they can be trusted not to abuse the sweeping new powers that
they have requested, and I love to believe my friends in law
enforcement. I wish that I could be confident that that would
occur, but history has proven otherwise, regardless of what
political party might have been in charge.
During the Civil War Abraham Lincoln suspended the writ of
habeas corpus. In the wake of World War I, we experienced the
Pommer raids when thousands of immigrants were wrongfully
detained, beaten and deported. World War II brought about the
shameful internship of Japanese American citizens. The Korean
War led to the era of McCarthyism, guilt by association, and
the Vietnamese War resulted in the FBI digging into the
personal lives of those opposed to the Administration policy.
There have also been anguish, sometimes strident cries, for
a rush to judgment. Let us get this out fast. Now, Chairman
Sensenbrenner and I have both sought to expedite this process
as much as possible. At the same time, the Founding Fathers did
not intend the Congress to be a passive part of government,
especially in times of crisis when the Bill of Rights may be
threatened. So as much as I want to help John Ashcroft do his
job as effectively as possible, it would be irresponsible to
give him a blank check.
On the other hand, my many friends in the civil liberties
community tell me that there is no need to broaden the wiretap
and surveillance laws. After much consideration, I have come to
the conclusion that it is appropriate to update our laws to
reflect 21st century reality. In the age of disposable cell
phones, it makes sense to authorize multi-point wiretaps. I am
sympathetic to the Attorney General when he complains we have
given him more tools to fight organized crime than terrorism,
but with these new powers must come accountability, additional
accountability. This is why I insisted on extending the
statutory exclusionary rule, increasing penalties for violating
our surveillance laws and creating a new office in the
Department of Justice to oversee civil liberties abuses.
We also insisted the legislation be written in a manner
that does not treat immigrants as our enemies. Diversity, after
all, is our great strength, not our weakness, and each day
every immigrant who has reached our shores is still entitled to
dignity, respect and at least due process. That is why
indefinite detention without evidence or court review has no
place in our legal system.
What we come to in closing is the old question, is this a
perfect bill? Well, but it does represent a marked improvement
over the Administration's initial proposal. As a matter of
fact, I am having a side by side of the original Ashcroft
proposals with the bill that is now before us at this moment.
Among other things, I am hoping we can tighten the bill to
safeguard innocent Americans from being subject to CIA
snooping. It is imperative that as we hold this markup and move
on to the floor, we continue to work together in good faith and
to seek common ground. Our Nation deserves no less, and I am
grateful to all of the Members of this Committee and our staffs
for the work that they have done thus far.
[The prepared statement of Mr. Issa follows:]
Prepared Statement of the Honorable Darrell Issa, a Representative in
Congress From the State of California
Thank you, Mr. Chairman and Ranking Member Conyers, for expediting
the markup of H.R. 2975, ``The PATRIOT Act of 2001,'' to the full
Judiciary Committee. I also want to thank the Judiciary Committee Staff
for their time and expertise in working with the Justice Department,
the President and individual Members of the Judiciary Committee in
putting together this bill. H.R. 2975 will give the Justice Department
the pertinent tools to investigate, apprehend and prosecute the
perpetrators of terrorism, while at the same time preserving the civil
liberties of all Americans.
As our nation recovers from the terrifying attacks on September
11th, it is apparent that the FBI, CIA and the INS were not
sufficiently coordinated and currently do not have sufficient access to
shared information in order to prevent future attacks. Immediate
remedies are needed to apprehend the terrorists that planned these
heinous acts and those that are plotting for the future. The Judiciary
Committee has an opportunity to approve a bill that will give
additional surveillance measures and greater abilities to prosecute
terrorists to the Justice Department so they may better combat
terrorism. But thoughtful consideration is needed in order to avoid the
latent abuse of our rights as U.S. citizens by our own government.
The Justice Department has asked this Congress for many of the
provisions included in this bill, and I am certain that the Judiciary
Committee will be asked to provide additional tools to intelligence
agencies in the future as terrorism reveals itself in different forms.
The success resulting from this bill should not be measured by how many
terrorists we apprehend, but in terms of the number of lives saved by
our deliberate action today.
I thank the Chairman for scheduling this markup today of H.R. 2975
and urge my colleagues to support final passage of this bill.
Chairman Sensenbrenner. I thank the gentleman from
Michigan.
Are there amendments? Gentleman from Illinois.
Mr. Hyde. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Mr. Chairman, I have a number of them. The
number----
Chairman Sensenbrenner. Please turn your mike on.
The Clerk. I have several amendments.
Chairman Sensenbrenner. Okay. Title I is open to amendment
at any point. Is the gentleman from Illinois' amendment to
title I--okay. This is a title III amendment. Are there any
amendments to title I?
Mr. Boucher. Mr. Chairman.
Chairman Sensenbrenner. Gentleman from Virginia.
Mr. Boucher. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R.----
Mr. Boucher. I ask unanimous consent, Mr. Chairman, that
the amendment be considered as read.
Chairman Sensenbrenner. Well, let us have the Clerk pass
some of them out.
The Clerk. Amendment to H.R. 2975, offered by Messrs.
Boucher, Goodlatte and Cannon. Insert at the end of title I the
following: Section----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentleman from Virginia is recognized
for 5 minutes.
[The amendment follows:]
Mr. Boucher. Thank you very much, Mr. Chairman. It is my
pleasure to join with our colleagues Messrs. Goodlatte and
Cannon, in offering this amendment. It would merely ensure that
nothing in the act imposes a mandate on communications service
providers to redesign or modify their equipment, their
facilities, their services, their features of system
configuration in order to comply with the mandates of this act.
The Department of Justice has indicated that it does not intend
that any such burden be placed on communications service
providers. The amendment merely reflects that intent and would
prevent any provision from being interpreted as imposing such a
mandate.
Mr. Chairman, I----
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Boucher.--think this is noncontroversial, and I would
be pleased to yield to the gentleman.
Chairman Sensenbrenner. I thank the gentleman for yielding.
This is a constructive provision to the bill and it says the
bill will not impose any technological obligation on any
provider of wire electronic communications service. That is not
the intent of the bill, and I think that this clarifies this.
Mr. Conyers. Would the gentleman yield?
Mr. Boucher. I would be pleased to yield.
Mr. Conyers. I would like the gentleman from Virginia to
know that I think this is a constructive addition to the bill.
Mr. Boucher. I thank the Chairman and the Ranking Member
and I would be----
Mr. Goodlatte. Would the gentleman yield?
Mr. Boucher. I would be pleased to yield.
Mr. Goodlatte. I think this is a constructive addition to
the bill. As you know, there have been a great many concerns
regarding previous laws that have been passed, particularly
COLEA, that have imposed inordinate burdens on the
telecommunications industry. Sometimes those things are
necessary and appropriate, sometimes not, but simply to do it
without understanding what the costs are and so on is not the
way to go. We have done that before, and we run into a lot of
difficulties as a result. So this amendment is a good one, and
I appreciate the Chairman accepting it.
Mr. Boucher. I thank the gentleman.
Chairman Sensenbrenner. The question is on adoption of the
amendment of the gentleman from Virginia, Mr. Boucher. Those in
favor will signify by saying aye. Opposed, no. The ayes appear
to have it. The ayes have it and the amendment is agreed to.
Are there further amendments to title I?
Mr. Goodlatte. Mr. Chairman.
Chairman Sensenbrenner. The other gentleman from Virginia,
Mr. Goodlatte.
Mr. Goodlatte. Mr. Chairman, I move to strike the last
word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Goodlatte. Mr. Chairman, I have an amendment at the
desk which, based upon conversations with you and with Chairman
Smith, I do not intend to offer, but I want to reach an
understanding with the Chair as to how he intends to approach
this problem. The amendment deals with the issue of defining
what is content when you move pen register and trap and trace
legislation on to the Internet. As you know, when you use those
devices to capture outgoing e-mails, incoming e-mails, movement
around the Internet to different Web sites and so on, you can
secure a great deal more information than you get in the
equivalent when you do something on the telephone, where
basically all you get is the telephone number made or the
telephone number received.
I am referring to things like the subject headers on e-
mails, like the second and third and below level URLs, which
are the indications of, once you visit a Web site, what exactly
you are looking at on the Web site. If someone were able to
follow somebody as they surfed the Internet and saw every
single page they looked at, they could write quite a convincing
dossier about that individual without ever having obtained any
court approval to obtain that level of information.
We have attempted to work on language. We do have language
that we have shown to other Members of the Committee that we
have not yet reached agreement on, but it would be very helpful
if there were report language included within that made clear
that this legislation does not include content and gave some
definition of what that content is.
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Goodlatte. I would yield.
Chairman Sensenbrenner. The gentleman states what the
intent of the legislation is precisely, and that is that the
pen register and trap and trace provisions are not to get into
content of these types of electronic communications but merely
where they have come from and where they go to. We will work on
getting appropriate report language in the Committee report and
further work with the gentleman as well as with the Justice
Department as this legislation moves through the process just
to make sure that there is not an expansive definition of
content.
Ms. Lofgren. Would the gentleman yield?
Mr. Goodlatte. Yes, I would yield to the gentlelady from
California.
Ms. Lofgren. Just briefly. I thank the gentleman for
yielding. I am glad that this is going to be addressed in the
report. I think it is worth stating also that in the
discussions that we had at a staff level, and Members as well,
with the Justice Department and the White House, they made it
very clear that they agreed with this, and this is not an
argument. It is just a clarification, and I think that is
important for the public to know, and I thank the gentleman for
yielding.
Mr. Goodlatte. The gentlewoman is correct. I am happy to
yield to the gentleman from Texas, the Chairman of the
Subcommittee.
Mr. Smith. Thank you, Mr. Goodlatte. I do appreciate your
consulting with me earlier about your amendments and the intent
behind those amendments, and I just want to make clear that
while I think report language is acceptable, I want to make
sure that the report language does not in any way indicate that
we are rolling back current law. I think you agree with that.
Mr. Goodlatte. I do agree with that. We have no intention
of rolling back current law. We simply want to make clear that
when the law says you cannot get content without getting a
court order, that that will apply to content on the Internet.
We need to define that, because it is different than content
when it comes to telephone calls.
Mr. Boucher. Would the gentleman yield?
Mr. Goodlatte. I will yield to the gentleman from Virginia.
Mr. Boucher. I thank the gentleman very much for bringing
this concern before the Committee today. I share the concern
the gentleman has announced that the message line on e-mail and
the Web pages within a given Web site should not be accessible
to law enforcement simply through the very minimal standards
that attach to the use of a pen registered device, and I think
the gentleman has raised a very important concern, and I want
to thank Chairman Sensenbrenner for agreeing to work with us as
we address this concern between now and the time this measure
reaches the floor.
Mr. Goodlatte. I thank the Chairman also and yield back my
time.
Chairman Sensenbrenner. Are there amendments to title I?
The gentlewoman from California, Ms. Waters.
Ms. Waters. I have an amendment at the desk and I move to--
--
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R. 2975, offered by Ms. Waters,
Page 13, Line 23 in paren section 108, strike ``without
geographic limitation'' and insert ``in any district in which
significant activities related to the terrorism may have
occurred.''.
Page 91, Line 2, section 351, insert significant before
activities.
[The amendment follows:]
Ms. Waters. Mr. Chairman?
Chairman Sensenbrenner. Let me make the observation before
recognizing the gentlewoman that an amendment to section 351 is
not in order, because that is the title III. Does the
gentlewoman wish to modify her amendment to delete that part of
it?
Ms. Waters. Well, I thought, Mr. Chairman, that that part
of it would be consistent with the Page 13, Line 23, section
108. I think if you did not amend both of them, you would have
conflicting sections.
Chairman Sensenbrenner. Without objection, the gentlewoman
from California will be granted unanimous consent to amend both
titles on this amendment. Hearing none, so ordered, and the
gentlewoman is recognized for 5 minutes.
Ms. Waters. Thank you very much. There are two provisions
of H.R. 2975 that deal with nationwide service of search
warrants. Section 108 of title I applies to electronic evidence
and section 351 of title III deals with warrants and criminal
procedure. As written, both sections would allow the government
to apply for search warrants in any jurisdiction throughout the
United States. This greatly expanded jurisdiction is not
limited by requirement that there be a connection between the
court and the place where the crime occurred. It would
encourage the government to engage in forum shopping, applying
for search warrants to judges that it knows will not give close
scrutiny to the applications. It would also mean that the
government can apply to courts and jurisdictions far from where
the actual search occurs so that it becomes very difficult, if
not impossible, for the person being searched to challenge the
search.
I understand the government's interest in nationwide
searches as a way to deal with the increasing use of electronic
information. At the same time, we must be careful not to allow
too much opportunity for forum shopping. My amendment would
strike a balance between those two competing interests by
requiring that warrants be issued in districts in which
significant activities related to the terrorism may have
occurred. The amendment would limit the ability of the
government to forum shop, while still accommodating the
government's need to obtain warrants quickly.
This is a minor but important technical change to H.R.
2975. I would urge your support of the amendment. I would think
that my colleagues would not want significant activities to
have occurred in California and the government go and shop to
get a search warrant in Mississippi. It just doesn't make good
sense. I would ask for an aye vote.
Chairman Sensenbrenner. Will the gentlewoman yield back the
balance of her time?
Ms. Waters. I yield back the balance of my time.
Chairman Sensenbrenner. I recognize myself for 5 minutes in
opposition to the amendment. The current law creates
unnecessary delays and burdens for the government in the
investigation of terrorist activities and networks that span a
number of districts, and should the amendment of the
gentlewoman from California be adopted, there can be terrorist
activity in a certain part of the country, a search warrant can
be issued, and at the speed of light an e-mail can be sent to
another part of the country and the government would then have
to go into court and get another search warrant in order to
execute it. This could allow valuable evidence to slip through
the fingers of the government, and a single nationwide search
warrant would not allow that to happen. I believe that limiting
search warrant applications in terrorism cases only to
districts where there is significant terrorism activity will
not solve the problem of unnecessary delays and burdens, since
terrorism knows no boundaries and would not limit itself to any
particular point in the country.
I would furthermore point out that one of the essential
parts of the compromise that this bill represents is the 2-year
sunset provision. If there are abuses such as those of the
concern of the gentlewoman from California, this Committee will
have an ample opportunity to review those abuses at the time
there is legislation introduced to extend the sunset provision
to some future date.
So for all of these reasons, I would urge the Committee to
reject the amendment and yield back the balance of my time.
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Watt. Mr. Chairman, may I make a parliamentary inquiry?
Chairman Sensenbrenner. The gentleman will state his
parliamentary inquiry.
Mr. Watt. Some of us are confused about which bill we are
marking up, what we are using as the markup vehicle, because
this----
Chairman Sensenbrenner. It is the printed H.R. 2975, and
unanimous consent was granted to consider this bill by title.
So amendments to title I are in order at this time.
Mr. Watt. Is it this bill?
Chairman Sensenbrenner. I believe so.
Mr. Watt. Because this--the amendments don't seem to
correspond with this bill. I guess that is what is raising
the--people seem to be working off of some--something other----
Mr. Delahunt. Would the gentleman yield?
Mr. Watt. Who am I yielding to?
Mr. Delahunt. Mr. Delahunt of Massachusetts.
Mr. Watt. Mr. Delahunt, yes.
Mr. Delahunt. I think the amendment really refers to--no. I
am speaking to page 13. It should be page 14, line 2.
Mr. Watt. Well, not if you were using the other--some other
draft that we received yesterday, I think is what everybody
seems to be amending.
Chairman Sensenbrenner. Well, I think we know where this
amendment--this particular amendment fits in. Let me ask those
who are planning to offer amendments to make sure that the page
and line numbers are properly stated on the amendment so that
everybody knows where it fits in in the bill.
Mr. Nadler. Would the gentleman yield?
Mr. Watt. I will yield to the gentleman if he allows me to.
Mr. Nadler. Mr. Chairman, I think there is a copy entitled
H.R. ``blank'' to Sensenbrenner and Mr. Conyers, which is not
the--with an October 2nd date on it, and I think that is what
we are using--most of us are using to--for the purposes of
amendment.
Ms. Waters. If the gentleman will yield, I think that----
Chairman Sensenbrenner. I am informed by my counsel that
before there is a printed version, the legislative counsel was
instructed to draft the sections in the Xerox version; and
after the printed version appeared on the scene, the alleged
counsel was instructed to draft to that. So I guess it depends
upon how early the amendments were drafted. Without objection,
the page and line numbers are conformed on the gentlewoman from
California's amendment to the printed version of the bill, and
again the Chair would reiterate his request that those who are
planning on offering amendments later on in the process make
the page and line numbers refer to the printed version of today
rather than the Xeroxed version of yesterday.
Mr. Berman. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from California, Mr. Berman, seek recognition?
Mr. Berman. I move to strike the last----
Chairman Sensenbrenner. Well, there presently is the Waters
amendment that is pending.
Mr. Berman. It is just--it is to strike the last word in
order to----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. The summary of 108 put out by the staff says
that the court with the jurisdiction over the investigation, is
the court to issue the warrant directly. That of course doesn't
appear in the language in section 108, and I am wondering if
staff can clarify if that is true, because if that is true then
it wouldn't be forum shopping, because that would be the court
that would have the ability to issue the warrant.
Chairman Sensenbrenner. I believe that section 101 defines
court of competent jurisdiction, and 108 references back to
that.
Mr. Berman. All right. So that in 101----
Chairman Sensenbrenner. Would the gentleman yield? The
clarification of that will be in the manager's amendment that
will be offered at the end of title I.
Mr. Berman. So that--you are telling me that on 108, to get
this sort of national search warrant, you have to go to the
court which has jurisdiction over the--where the investigation
is----
Chairman Sensenbrenner. The court with jurisdiction over
the offense under investigation.
Mr. Berman. So at----
Ms. Waters. Or.
Mr. Berman. Or what? I yield to the gentlelady from
California for the ``or.''.
Ms. Waters. Or the United States Court of Appeals having
jurisdiction over the offense being investigated or----
Mr. Berman. I can't hear you. Tell us what line you are
reading.
Ms. Waters. All right. We are trying to find the right bill
that we are working from. The section that you are referring
to, Congressman Berman, states in a District Court of United
States, including a magistrate----
Mr. Berman. Could you just tell us the page you are reading
from?
Ms. Waters. On page 7, line 14.
Mr. Berman. The court of competent jurisdiction. Okay.
Ms. Waters. In a District Court of the United States,
including a magistrate judge of such a court or any United
States Court of Appeals having jurisdiction over the offense
being investigated or.
Mr. Berman. Well, then, all right. That is very different
language than the summary, which talks about it----
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Berman. All right. But that is the--in other words, the
``or'' doesn't refer to other jurisdictions. The ``or'' refers
to----
Ms. Waters. What does it refer to?
Mr. Berman. A pen register. In other words--right.
Ms. Waters. What does ``or'' refer to, somebody?
Mr. Berman. Here are the different courts of competent
jurisdiction. For a pen register----
Mr. Frank. Would the gentleman yield?
Mr. Berman. Yeah. The question really is, is what comes
after the ``or'' in the original----
Mr. Frank. If the gentleman would yield, the ``or'' is in
the original statute. That then would be picking up most of the
original statute. So somebody would have to go to the code, but
the ``or'' would refer to whatever is in the existing statute
the way that is written.
Mr. Berman. I mean, if the intention here is to limit the
ability to grant this national warrant to the place where the
district----
Ms. Waters. Significant activity.
Mr. Berman.--or the Court of Appeals has jurisdiction over
the offense being investigated, then it is--it does deal with
the issue of the forum shopping, and the concern that causes
this amendment to rise. Is it the intention in proposing this
to have that be the place where they have to go?
Mr. Delahunt. Would the gentleman yield?
Chairman Sensenbrenner. If the gentleman would yield, this
restricts forum shopping. The ``or'' is existing statute. The
new language for the nationwide search warrant is the court of
competent jurisdiction in the district or, in the case of Court
of Appeals, in the circuit where the offense being investigated
has arisen.
Ms. Waters. Go ahead.
Mr. Delahunt. Mr. Chairman.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. For what purpose, the gentleman
from Massachusetts?
Mr. Delahunt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Delahunt. I just want to be clear, because I think that
the gentlelady has a point, and if I may, I am going to try to
summarize what I think her concern is in terms of the forum
shopping, but, however, the intention--and maybe it is not
adequately expressed in the Committee bill in terms of the--as
she describes it, forum shopping. I think it is the intention
of the Committee and the legislative intent here is the court
of jurisdiction where the offense is committed would be the
court where the application for the nationwide search warrant
would be applied for.
Ms. Waters. That is right.
Mr. Delahunt. If I am correct, I believe it is the position
of the Chair that that is consistent with his understanding of
the Committee's proposal and that it would be taken care of.
The language would be taken care of in a manager's amendment.
Ms. Waters. Would the gentleman yield?
Mr. Delahunt. I will yield to the gentlelady.
Ms. Waters. First of all, let us make it very clear, even
though I don't like the idea of being able to get these search
warrants attached to the person and, you know, all over the
United States, et cetera, or all over wherever. This amendment
is simply trying to say that you must get the search warrant in
the jurisdiction where the significant activity took place.
Now, you can take that search warrant and go all over the
United States with it, but you have to get it in the correct
jurisdiction, and I don't think there is any language in this
bill that ties it down. This allows for forum shopping where
you could get the search warrant any place, and the person who
would want to contest it may have to travel a long distance to
contest it. I mean, I just think that we can perfect the
language----
Mr. Delahunt. I think it is the intention here that the
government is seeking to stay in one place, if you will, where
the offense allegedly occurred rather than doing exactly what
you are saying, traveling all over the country because of the
speed with which these terrorist groups now operate. So, in
other words, if an offense was committed in Los Angeles, that
the Federal District Court in Los Angeles would provide the
venue for an application for a search warrant.
Ms. Waters. Right.
Mr. Delahunt. That search warrant, once approved, could be
executed in New York or Boston or anywhere. Is that what the
gentlelady----
Ms. Waters. That is absolutely true. That is exactly what
we are trying to do. If you are suggesting that that is what
the bill intends to do and if you are suggesting for the Chair
that they will clean it up in the manager's amendment, then the
job is done.
Mr. Delahunt. I ask the Chair if that----
Mr. Scott. Would the gentleman yield?
Mr. Delahunt. I will yield to the gentleman, but first the
gentleman from California, Mr. Berman.
Mr. Berman. I think the Chairman, by his representation,
made it clear that it is--you go to the court--the District
Court or the Court of Appeals which has jurisdiction over the
offense being investigated. That is where you have to go.
Because I think the two issues you have raised,
Ms. Waters, are both right. The notion of forum shopping
and then the question of the attack. But as I understand it
practically speaking, you attack a search warrant in the
context of a trial where the evidence is seized in that search
and you are still able to do that wherever that trial takes
place. So there you don't have to go back to the original court
which issued the search warrant. You go to the court where the
prosecution is underway and you seek to throw out the evidence
gathered in the search warrant, and you can attack the validity
of the search warrant at that time. So I think in a way both of
your concerns are quite legitimate, but both are answered by
the definition of the court of competent jurisdiction.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Massachusetts.
Mr. Frank. Mr. Chairman, and let me further respond to the
legitimate concerns----
Chairman Sensenbrenner. Does the gentleman from
Massachusetts seek his own time?
Mr. Frank. Yes, I do.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. Thank you, Mr. Chairman. The gentleman asked
what came after the ``or.'' I think one of the things we are
going to need to do is keep the relevant volumes of the code
on, because what comes after the ``or'' is what is already in
the code. It isn't amended. And the fear I think was, well,
``or'' what? And here is what the ``or what.'' the ``or''
actually--what we are amending is the Federal jurisdiction. The
``or'' is the State jurisdiction and here is what comes after
the ``or.'' it is 3127(2)(B). The ``or'' is a court of general
criminal jurisdiction of a State authorized by the law of that
State to enter orders authorizing the use of a pen register, et
cetera. And that is not being amended.
So that is the answer. We are amending in here the Federal
jurisdiction, and we are leaving the current statute with
regard to State jurisdiction unchanged.
Chairman Sensenbrenner. If the gentleman will yield.
Mr. Frank. Yes.
Chairman Sensenbrenner. We are drafting an addition to the
manager's amendment that I think hits this point. It is
presently being Xeroxed off, so I would like to ask the
forbearance of the Committee. Perhaps if the gentlewoman would
withdraw her amendment without prejudice to reoffering it if
she doesn't like what is in the manager's amendment.
Ms. Waters. I have no problems with that, Mr. Chairman.
Okay.
Mr. Frank. Mr. Chairman--I am sorry. I will yield to the
gentlewoman.
Ms. Waters. If what you are suggesting to me is that we
both understand what we are trying to do and that you are not
opposed to it--I am certainly not trying to do anything other
than get it in the proper jurisdiction of significant
activity--then I have no problems with withdrawing it and
having you work on it and clean it up.
Chairman Sensenbrenner. The amendment is withdrawn, at
least temporarily. Are there further amendments?
Mr. Frank. Mr. Chairman, I just wanted to finish. I would
hope we would have volumes of the code on, because there will
be other dangling prepositions that----
Chairman Sensenbrenner. Will the staff bring volumes of the
code and a thesaurus on dangling prepositions?
Are there further amendments?
Mr. Schiff. Would the Chairman yield on that last point?
Chairman Sensenbrenner. The gentleman from California.
Mr. Schiff. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized
for----
Mr. Schiff. The only precaution that I would offer in the
redrafting, to address the gentlelady's concerns, is that while
we all have the events of September 11th very much in mind,
that may not be the archetype investigation. There may not
always be a clear court of jurisdiction over the offense. There
may be in fact many courts of jurisdiction. If, for example,
you are investigating a conspiracy to commit a terrorist act
which has not yet taken place, the conspiracy is an offense but
you cannot necessarily say that a conspiracy between terrorists
operating in Canada, in Boston, in New York and in Dallas has a
nexus in only one jurisdiction. And so we don't want to draft
the language to preclude law enforcement going to an
appropriate court and getting jurisdiction going after the
genesis of a terrorist case.
Chairman Sensenbrenner. If the gentleman will yield, I
think the gentleman has correctly stated what is in this bill,
is that it could be any court where there is terrorist
activity. An offense can occur in many jurisdictions, but if it
is running investigations.
Mr. Scott. Would the gentleman yield?
Mr. Schiff. Yes.
Chairman Sensenbrenner. The time belongs to the gentleman
from California.
Mr. Scott. Sometimes we make a differentiation between
venue and jurisdiction. The court can have jurisdiction but it
may not be the right venue. Some of these crimes are not
multijurisdictional. Most of it is in one place, and what the
gentlelady from California is saying, that if you are going to
pick a judge, you ought to have the judge--ought to have some
connection to the crime, that you couldn't have one judge in
Oklahoma issuing all the search warrants for the country. If
the crime has been committed in California, you ought to go to
a California judge. If it has been done in California, New
York, Illinois, you can go to any of the judges and they can
issue all the warrants for the case. But the judge ought to
have some connection to the crime.
Chairman Sensenbrenner. If the gentleman would yield, I
think the change to the manager's amendment addresses these
concerns. If we can go on to something else and then come back
to this when everybody sees what the language that is being
proposed will do, I think we can expedite the business of the
Committee.
Are there further amendments?
Ms. Waters. Would the gentleman yield? Will you yield,
please, sir, before you move off of this point?
Chairman Sensenbrenner. Well, the time belongs to the
gentleman from Virginia.
Ms. Waters. Who has the time?
Chairman Sensenbrenner. Excuse me. The gentleman from
Massachusetts, Mr. Frank, has the time.
Mr. Frank. I have an amendment, Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Massachusetts
has an amendment at the desk. The Clerk will report the
amendment.
Mr. Frank. There is a pencilled change in the one that--
have you got the one with the pencil change that says title I?
The Clerk. No, sir.
Chairman Sensenbrenner. Without objection, the amendment
will be designated as an amendment to title I. It was drafted
as an amendment to various statutory sections, all of which are
in the Criminal Code.
Mr. Frank. Thank you, Mr. Chairman.
Chairman Sensenbrenner. Without objection, so ordered. The
Clerk will report the amendment.
The Clerk. Amendment to H.R. 2975----
Mr. Frank. I would ask that it be considered as read, Mr.
Chairman.
Chairman Sensenbrenner. Without objection, so ordered. And
the gentleman from Massachusetts is recognized for 5 minutes.
[The amendment follows:]
Mr. Frank. Mr. Chairman, we have had some conversations
about this and it is a subject I have talked about
considerably. We will be in this bill enhancing surveillance
authority. People are nervous about that. I am a supporter of
enhanced surveillance authority properly used. Indeed, much of
this bill is going to be an effort to give authority and then
have safeguards to prevent abuses. I was struck this morning at
a hearing in the Financial Services Committee when the
Secretary of Treasury was asked what he thought about a money
laundering bill sponsored by Mr. LaFalce and Senator Kerry. He
said I am for it as soon as you put in the right due process
provisions, and I think that is what we are trying to
appropriately do here.
What this amendment does is to build on existing statutes,
which give a remedy to an individual who has been the subject
of surveillance and then has had that information
inappropriately leaked. Obviously that information is to be
used in intelligence. It is to be used in criminal proceedings.
The statute authorizes uses. My amendment would not change or
diminish in any way the authorized uses.
The current statute, as it has been pointed out by the
Justice Department, also does allow you to sue if some of your
information is released but not others. We gather information
in various ways. There has also been some ambiguity indeed
about whether or not someone whom that information has been
appropriately released; i.e., outside the statutory scheme, can
sue the government. Most of the courts have said yes. It has to
do with an interpretation of the word ``entity.'' I think we
want to clear that up. We also want to make it explicit that
inappropriate disclosure is a violation, not a criminal
violation here but a civil violation.
Mr. Frank. So what the amendment does is as follows: First,
it says that wherever we gather information, whether it is pen
register, trace and trap or wiretap or whatever, wiretap under
one statute, wiretap under FISA, if information gained during
the surveillance is inappropriately released, if it winds up on
the White House desk and somebody leaks it, if J. Edgar Hoover
tells bad stories about you, then you have a right to go in
under the Federal Tort Claims Act as the aggrieved party and
sue. If you can prove your case--and the statute has a minimum
of statutory damages. It has been 1,000. This would raise it to
10,000, not a huge amount, but enough to make sure that it is
worthwhile.
It also then says that if someone goes in and wins the
lawsuit against the government, because surveilled information
has been inappropriately leaked, the head of that bureau or
agency either must initiate disciplinary proceedings against
the leaker or explain in writing to the newly created Assistant
Inspector General for Civil Liberties why that wasn't done.
There is no perfect way, but I am trying to increase the
negative incentive for this kind of leaking. We have had
situations in the past--and by the way, when we think about it,
that is what most people are afraid of was surveillance. In
fact, if you are surveilled and nothing criminal comes out or
nothing that leads you to law enforcement difficulty and the
information is then appropriately totally kept secret, you are
probably not going to be too upset.
The problem comes when the human beings, often politically
motivated by either party who are in charge, will in some cases
use this and will use embarrassing information. Embarrassing
information was released about Martin Luther King.
Let me say, Mr. Chairman, if there is in fact anybody who
could be totally surveilled and not be embarrassed by some of
the information released, that person has my sympathy. That
kind of is a dull life to live. I would think any of us would
not want to say, hey, nothing about me could ever be released
to my embarrassment. This is a way I think to reassure people
about the surveillance. It is not perfect, but it does build on
a basic scheme.
I yield to the Chairman.
Chairman Sensenbrenner. We are prepared to accept this
amendment. I think the gentleman's points are very well taken,
and maybe there ought to be quantified damages for
embarrassment due to these leaks.
Mr. Conyers. I thank the gentleman for the yielding and I
would not want to disparage those who may be more virtuous than
some of us on the Committee. But are lawyers compensated for
this proposal, Mr. Frank?
Mr. Frank. Yes, if you win. Also the damages, the 10,000 is
a statutory minimum, if in fact you can show under the Federal
Tort Claims Act, you can show other damages. Remember, under
the Federal Tort Claims Act, punitive damages are not allowed
because by definition, the Federal Government is never bad. But
actual damages, if you were otherwise hurt, those would be
allowed under the Federal Tort Claims Act.
Mr. Nadler. Mr. Chairman.
Chairman Sensenbrenner. The gentleman's time has expired.
Question is on the floor. Gentleman from New York, Mr. Nadler
is recognized for 5 minutes.
Mr. Nadler. Thank you, Mr. Chairman. I am glad to hear that
this amendment is being accepted. I just have a question about
it, Mr. Frank. You say in the first line of the amendment and
actually under the section, ``by a citizen or long term
permanent citizen.'' what does long term mean?
Mr. Frank. It is supposed to be legal. I would ask
unanimous consent that somebody misinterpreted LPR, ``legal
permanent resident,'' not ``long term.''.
Chairman Sensenbrenner. Without objection, the amendment is
so modified.
Mr. Nadler. One other modification. I think you mean that
the parentheses in that same section should be, ``or against
any State investigative or law enforcement officer,'' and the
parentheses should be closed there.
Mr. Frank. Yes. I ask unanimous consent to correct my
parentheses.
Chairman Sensenbrenner. Without objection, the second
modification is agreed to. The question is on----
Ms. Lofgren. Mr. Chairman, I have a question. I would move
to strike the last word.
Chairman Sensenbrenner. The time belongs to the gentleman
from New York, Mr. Nadler.
Mr. Nadler. I yield.
Ms. Lofgren. The question is this. If you are a permanent
resident of the United States and you are identified in the
media as the perpetrator of a violent terrorist act and you
decide to sue under the statute--you believe it has been
leaked--is there a procedure under the Federal Tort Claims Act
that mirrors that which exists under the criminal law where
the--if the defense involved disclosure of national security
information, that that procedure could be done in camera?
Mr. Frank. If the gentleman from New York would yield. I
assume that would be information that was gathered under FISA
and still be covered by FISA. I would make that explicit.
Ms. Lofgren. In the amendment it says it shall be governed
under the Federal Tort Claims Act--the procedures will all be
under the Federal Tort Claims Act.
Mr. Frank. I apologize. It was certainly my intention that
anything gathered under FISA would be covered by all of the
FISA rules. And I would ask unanimous consent that when we got
to corrective changes, that we make that change.
Ms. Lofgren. Thank you very much, and I yield back.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Massachusetts, Mr. Frank. Those
in favor will signify by saying aye. Opposed no. The ayes
appear to have it. The ayes have it and the amendment is agreed
to.
Are there further amendments? The gentleman from
California, Mr. Berman.
Mr. Berman. Mr. Chairman, I have an amendment, which is at
the desk--I have several. This one is to make consistent the
standards for disclosure of foreign intelligence information.
Chairman Sensenbrenner. Clerk will report the amendment.
The Clerk. Amendment to H.R. 2975 offered by Mr. Berman,
to make consistent the standards for disclosure of foreign
intelligence information. A----
Mr. Berman. I ask unanimous consent.
Chairman Sensenbrenner. If we can wait until the amendments
are distributed.
The Clerk.--of the bill on page 10. On line 1, insert the
following after parens--quotation, information, end quote,
inside parentheses as defined in 50 U.S.----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and open for amendment at any point. The
gentleman from California is recognized for 5 minutes.
[The amendment follows:]
Mr. Berman. Thank you, Mr. Chairman. First, I do want to
say how much I appreciate the efforts you and the Ranking
Member and the Committee staff have made since this proposal
first came over from the Justice Department and since the
Committee hearing last week to make this a piece of legislation
that I believe will be supported by most, if not all, both
sides of the aisle. I am cosponsor of the bill and I intend to
vote for it. But I do think there are still some issues that
need to be fixed and this is one of them.
Very appropriately, the Justice Department has asked for
the ability to allow information discovered in the context of a
criminal investigation, whether it is a--through a grand jury
testimony in a proceeding, whether it is through a regular
criminal investigation, whether it is through an electronic
wiretap or electronic surveillance or whether it is tax
information to be shared where you are dealing with foreign
intelligence information, to share that with the agencies
involved in gathering, disseminating and acting on foreign
intelligence information.
There is--particularly now and perhaps before, there is a
compelling case for allowing that kind of information sharing.
The proposal that was originally submitted I think was--in
several respects was too loose. It allowed information sharing
with any government employee and without any limits as to the
purpose. The version now before us has made some significant
changes. If it is grand jury information that is going to be
shared, this has to be done through a court order. I don't
think one needs a court order in the context of either the
regular criminal investigation or in the context of the sharing
of tax information. But I do think the bill is deficient in
that where you are going with a Title III wiretap and
information sharing under that electronic surveillance that the
court that supervised and made the decision to grant permission
for the electronic surveillance should be considered before the
information is shared.
So one part of this amendment requires the court to
intervene in that process. The second effort is to try and put
some greater limit on the people who can get this foreign
intelligence information. And we have taken language that was
used by the Ways and Means Committee in limiting who can see
this. The legislation now before us by virtue of the Chairman
and the Ranking Member's efforts limits this information to
people in the Department of Defense, the CIA, the Department of
State, other protected agencies, including the Secret Service.
I think that is the basic group of agencies that are allowed to
see this, to people in their official performance of their
official duties.
I agree with the limitation on the agencies, but I believe
the limitation to people in the performance of their official
duties is very vague and unclear and at least in theory could
allow huge numbers of people in those agencies who have no
business seeing this foreign intelligence information, allow
them to get this information even though there is no relevance
to anything that they are particularly doing. And I have
substituted some different language used on the tax information
that would limit the information from a grand jury, from a
court ordered electronic surveillance or for a general criminal
investigation. I understand there are concerns about that
language, and perhaps we can have a colloquy on that.
The other two amendments I understand are acceptable to
Chairman Sensenbrenner. One defines foreign intelligence
information in the fashion in which it is defined in the
Foreign Intelligence Surveillance Act, FISA. It picks up that
definition and with respect to all of these floor information
sharing provisions. And finally, it removes the provision under
criminal investigations for notwithstanding any other provision
of law which negates the obligations and limitations both for
grand jury information sharing and electronic--court ordered
electronic surveillance information sharing.
So we have tried to put all of these into one amendment and
I am prepared to make--when I get a sense from the Chairman of
his reaction to this amendment, I am prepared to seek unanimous
consent to scale back this amendment.
Chairman Sensenbrenner. The gentleman's time has expired.
The Chair will recognize himself for 5 minutes and not take all
of the time. I believe that the material on the gentleman's
amendment, line 1 of section 103 and on page 23, lines 23 and
24 of section 154, is very meritorious, and I would hope that
that would be split out of the rest of the amendment and be
adopted.
The material on line 3 of section 103, at the end of
section 103, the material that is added on page 24, line 4 and
on page 92, line 3, I think needs a little bit more work, and I
would pledge to work with the gentleman from California between
now and the time this bill comes to the floor or in conference
Committee to be able to attempt to fine-tune these items. I
think the gentleman is going in the right direction.
Three of the points I think were across the goal line and
the other ones I think we are getting there.
Mr. Berman. In that case, Mr. Chairman, with the
understanding that we don't have any kind of agreement on this
issue, I still would like to understand why it is not
appropriate to seek a court order from the court that allowed
the electronic surveillance for purposes of title III criminal
investigations before you shared. Understanding that is
something we will have to discuss further and accepting very
much your indication of the willingness to try and more clearly
limit the number of people in these agencies who will get this
foreign intelligence information and that we will work on
language between now and the Rules Committee, I would ask
unanimous consent to----
Mr. Conyers. Would the gentleman yield? Is it your
intention, Mr. Berman, to modify your amendment here and move
on with that part that might win the approval of the majority
of the Committee or to shove the entire matter to work on it
under the Sensenbrenner promise?
Mr. Berman. I don't want to test what part would win the
majority of the Committee. And therefore I was going to take
the guidance from the Chairman and simply scale back my
amendment to include the--tying the definition under FISA and
the removal of the language, notwithstanding any other
provision of law, and leave the amendment with those provisions
in and strike the other provisions and work out the limitation
on people who get the information between now and the Rules
Committee.
Mr. Conyers. I hold my high compliment and praise for you
until that takes place.
Chairman Sensenbrenner. Just so that we are clear on what
is agreed to and what is on the table for further discussion,
without objection, the amendment is modified to include the
language in section 103 on page 10, line 1. The language in
section 154 of the bill on page 23, lines 23 and 24 and the
rest of what is in the amendment will be deleted. Under that
understanding, without objection, the amendment is so modified.
The question is asked----
Ms. Lofgren. Mr. Chairman.
Chairman Sensenbrenner. Gentlewoman from California.
Ms. Lofgren. I do have a concern and perhaps it could be
alleviated through the discussion and reflection in the
Committee report. But taking a look at the limitations in the
immigration area where people would be responding to terrorist
incidents, threats or activities, generally that is not a task
of the Immigration Service. I can foresee, although a
completely made-up hypothetical, let us say that we through
intelligence sources find out that a particular country has--
there has been birth record fraud and that was found through
FISA means. But the promulgator of the student visa regulations
needs to have an understanding of what is occurring in order to
draft these regulations so that the fraud from that particular
country is--gets, say, for example, special scrutiny or
biometrics or something of that nature. I just think that--I
agree with the gentleman's desire to limit this to people whose
business it is to know about it, but I am fearful that the
language in here may be too restrictive. And I am wondering if
we could--I don't mind doing it today, but between now and the
floor, work through and invite the Justice Department as well
to come up with some further----
Mr. Berman. Will the gentlelady yield?
Ms. Lofgren. Yes.
Mr. Berman. That is exactly the point I think the Chairman
perhaps was making and, based on his recognition that the
present bill doesn't adequately limit the number of people and
that perhaps my proposal limits it too much, we are going to
try and find an acceptable middle ground here.
Ms. Lofgren. But we are going to vote on this right now?
Mr. Berman. No. I have withdrawn that part from the
amendment.
Mr. Delahunt. Would the gentlelady yield?
Ms. Lofgren. I will yield.
Mr. Delahunt. I suggest maybe that Mr. Berman and the Chair
and appropriate staffs could work out language which would
provide for special designations in terms of the officials who
would have--would be privy to this particular information. I am
sure there are ways to work it out, and I am confident.
Mr. Berman. I do think that is one way to skin this cat.
You authorize each agency to develop a list of people
appropriate or positions appropriate to receive this
information.
Ms. Lofgren. I thank the Chairman, and I think I had
misunderstood which was coming in and which was going out, and
I yield back.
Chairman Sensenbrenner. The question is on the Berman
amendment, as modified. Those in favor will signify by saying
aye. Opposed, no. The ayes appear to have it. The ayes have it,
and the amendment as modified is agreed to.
Are there further amendments? Gentleman from Michigan.
Mr. Conyers. Might I strike the last word only to remind
the Chair and the membership that at 4:00 o'clock we had a
briefing classified with the Joint Chiefs of Staff, the State
Department and the Defense Department, and a number of Members
have indicated that they thought it in their interest to attend
such a meeting. I offer this reluctantly because we are going
at a nice clip, but at the same time we are under a--I don't
think that these members of the executive branch have summoned
us through our leadership to the floor for a secret briefing
for nothing, and I think that it may be more appropriate that
we retire with the agreement and understanding that we will
return as soon as that briefing is over.
Chairman Sensenbrenner. The Chair announced at the
beginning of this markup at 2:00 o'clock that it is important
for preserving the jurisdiction of this Committee that this
Committee report this bill out today so that the Committee
report can be filed no later than Monday. It is the intention
of the leadership to bring this bill up on the floor next week.
We have a number of amendments that are left to be debated. I
do not wish to keep Members of the Committee here until late at
night.
At the time this markup was scheduled, the secret briefing
had not been noticed. That happened earlier today. With all due
respect, all of us have got conflicts on our time, and I
believe that it is important that this Committee continue on
with its markup.
Mr. Conyers. May I point out, Mr. Chairman, that it was our
leadership that scheduled the secret meeting. It wasn't the
Committee, and I am sure that they had under contemplation that
this Committee would be meeting at this time. That was also
scheduled. So would it be too much to observe that the
leadership apparently had taken that into consideration?
Chairman Sensenbrenner. If the gentleman will yield, I
don't believe that they did that, and the leadership has told
me that we have to get this bill out today. This is
particularly important, since I understand the mysterious
terrorism bill might be on the full Senate floor tomorrow.
Mr. Chabot. Would the gentleman yield?
Chairman Sensenbrenner. I yield to the gentleman from Ohio.
Mr. Chabot. I share some of the concerns with the gentleman
from Michigan and could we perhaps hold votes or roll votes
until after the hearing is over. That might be some middle
ground that might make some sense.
Chairman Sensenbrenner. The gentlelady from Texas.
Ms. Jackson Lee. Mr. Chairman, I can't thank you enough for
the persistence you have given to this bill and the bipartisan
negotiations that have taken place. I would only suggest that a
meeting called of this level warrants the full participation of
the Members here, whether there can be a compromise that
Members are able to go over for 30 minutes from 4:00 to 4:30 to
hear whatever the presentations are----
Chairman Sensenbrenner. Without objection, the Committee is
recessed until 4:30. And again, we are going to finish this
bill tonight.
Mr. Conyers. May I thank the Chair for his indulgence.
[recess.]
Chairman Sensenbrenner. I ask that a dragnet be set out
into both conference rooms and ask the Members to return and so
as not to prejudice anybody, it is my intention while people
are coming back from the briefing to take up the two
noncontroversial bills and dispose of them and then go back to
the terrorism bill.
We will now return to the antiterrorism bill. When the
Committee recessed, title I was considered as read and open for
amendment at any point.
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts, Mr. Delahunt, seek recognition?
Mr. Delahunt. Mr. Chairman, I have an amendment at the
desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R. 2975, offered by Mr. Delahunt.
Mr. Delahunt. I ask unanimous consent that it be considered
as read.
Chairman Sensenbrenner. Without objection, so ordered.
The gentleman is recognized for 5 minutes.
[The amendment follows:]
Mr. Delahunt. Thank you, Mr. Chairman. I intend to withdraw
this amendment in recognition of the effort in terms of the
consensus that has been developed between yourself and the
Ranking Member and Members of the Committee to report out a
bill that reflects a thoughtful consensus. Before I describe
the amendment, however, which as I said I won't press, but I
think it is important to raise a concern that I have and I know
that others share.
Let me commend you, Mr. Chairman, and the Ranking Member
for having followed regular order. We have had time to
deliberate, to review, to assimilate and analyze, and as a
result, we have a vastly improved product that was presented to
us 2 weeks ago. I think this happens to be a very good moment
in the history of this particular Committee and a good moment
for the Nation, because clearly this is a far superior product
than what was initially presented.
The amendment would modify section 153 of the bill to
retain the current primary purpose standard for initial
applications for electronic surveillance and physical search
orders under FISA, the Foreign Intelligence Surveillance Act.
But it would permit extensions of those orders to meet the
lower significant purpose standard currently in--or in the bill
that is before us now.
The FISA statute sets up a special judicial regime for
considering surveillance and search recourse in the foreign
intelligence context. Current law requires the Attorney General
or certain other high officials to certify that the purpose of
the wiretap or search is to obtain foreign intelligence
information.
Now, this requirement has been interpreted by a court
decision to mean that foreign intelligence gathering must be
the primary purpose of the application, although that phrase
does not occur in the statute. The proponents of the weaker
significant purpose standard argue that the change is needed to
enable Federal authorities to share foreign intelligence
information with criminal investigators in complex terrorism
cases without having to go back and get a so-called title III
order, which has different standards, and it is reflective of
what occurs in a traditional criminal investigation by Federal
law enforcement agencies.
Now, civil liberties advocates argue, and appropriately so,
that the weakest standard will enable the Federal authorities
to obtain a FISA order where foreign intelligence gathering is
not their real purpose, thus invading the probable cause
requirements under title III. This amendment is an attempt to
strike a balance, and I would hope that Members of the
Committee would consider it as the legislation moves forward
between those two competing concerns.
It would help allay fears of abuse by requiring that the
initial application meet the current threshold, the primary
purpose standard. But once the FISA court has made the
determination that the applicants are engaged in legitimate
bona fide intelligence gathering evidence, the amendment would
remove the current disincentive to information sharing by
authorizing the certifying authorities to meet the low standard
that is embraced in this bill.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Delahunt. Would you give me some additional time, max?
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts.
Mr. Frank. I yield to my colleague from Massachusetts.
Chairman Sensenbrenner. The gentleman from Massachusetts is
recognized for 5 minutes and yields to the other gentleman from
Massachusetts.
Mr. Delahunt. I thank the gentleman from Massachusetts. As
I was saying, under current law an application to extend
wiretap or search authority must meet the same standard as in
the original application, yet the reality is, is that as
terrorism investigations evolve and expand, the intelligence
gathering purpose can become increasingly intertwined with
ongoing criminal investigations, and it does create a risk a
vital foreign intelligence gathering effort that has been
properly authorized initially under FISA will be unable to
continue because it no longer meets the purpose test that is
required to be certified.
By minimizing that risk, this amendment would facilitate
legitimate information sharing, and it would do so without
creating a risk that criminal wiretaps and searches will be
undertaken without a proper showing of probable cause.
Finally, it is my opinion that the amendment will increase
the likelihood that section 153 will be upheld under the fourth
amendment. I have reviewed the Justice Department's
constitutional analysis of the significant purpose standard,
and while it is well crafted, I think it fails. The bill fails
constitutional muster. The bill is being taken up during a
national emergency, when arguably judicial deference is at its
highest point. No one can predict what the court will do months
or years from now, and I think we would be wise to write a
provision that has a greater chance of withstanding security.
With that, I understand that maybe one of my colleagues
wishes to speak on the amendment, but otherwise I yield back to
the gentleman, my friend from Massachusetts.
Chairman Sensenbrenner. Does the gentleman from
Massachusetts wish to withdraw his amendment?
Mr. Frank. Well, first, Mr. Chairman, I think I have said
all I want to say on this subject. So I yield back.
Chairman Sensenbrenner. Can we auction time? Going once.
Mr. Scott. Would the gentleman yield?
Mr. Frank. Well, I will take back my time if the gentleman
from Virginia doesn't have an objection.
Mr. Scott. Thank you. This is an important amendment,
because without it, it would allow the foreign intelligence
standard to be used for an initial investigation, when in fact
the primary purpose is the criminal investigation, and you are
doing this without the probable cause. In fact, the FISA
standard, which is intelligence gathering, can be used, as the
gentleman from Massachusetts said, as an excuse to evade the
probable cause standard.
So the standard is--I mean, there is no standard. You
basically are profiling to determine who is going to be
investigated. Now, remember this is not just terrorism that we
are investigating. You could have routine criminal
investigations going on without a probable cause that a crime
has been committed. You are just intelligence gathering. The
gentleman from Massachusetts, by his amendment, would suggest
at least the beginning of this thing ought to be, if it is
primarily a criminal investigation, ought to be a criminal
investigation with a criminal investigation standard. If you
are going to evade that standard, the primary purpose ought to
have been at least the Foreign Intelligence Surveillance Act
standard for a foreign intelligence investigation.
I would hope that the amendment would be adopted or at
least the language or spirit of it be incorporated later on. I
yield back.
Mr. Delahunt. Mr. Chairman.
Mr. Frank. I would yield to my friend from Massachusetts.
Mr. Delahunt. At this time, Mr. Chairman, I move to
withdraw my amendment.
Chairman Sensenbrenner. The amendment is withdrawn.
The gentleman from Virginia, Mr. Scott. Do you have an
amendment?
Mr. Scott. I have an amendment, Mr. Chairman. It is SEC
152.001.
Chairman Sensenbrenner. The Clerk will first find the
correct amendment and then report it.
The Clerk. Amendment to H.R. 2975 offered by Mr. Scott:
Page 23, line 14, strike the second comma and insert ``only for
such periods of time when the target's presence at the location
of the place where the electronic surveillance is to be
conducted has been ascertained by the applicant and when the
electronic surveillance is conducted on the target.''.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes in support of his amendment.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, this
amendment would clarify that when you have this roving wiretap
being conducted under FISA, that you have to ascertain that the
target is actually at the place where the tap is being
conducted and actually the one using the phone. As is
otherwise, the tapping apparatus should not be turned on, or if
it is on, it should be turned off as clear--as soon as it is
clear the target is not using the phone.
Now, the standard under FISA is less than the criminal side
standard, in that you only have to show relevance to a foreign
intelligence gathering information investigation rather than
showing probable cause. When you have this roving wiretap, any
phone that the target may be using can be bugged. So the phones
of innocent citizens such as the next-door neighbor or other
acquaintances of the target may be tapped as soon as it is
ascertained that the person may be using that phone. We want to
make sure that the target is the only one being listened in to,
not the privacy of the next-door neighbor or others.
In fact, even pay phones will be tapped under this process,
and people unrelated to the investigation who don't even know
the target shouldn't have their private conversations listened
in on.
In fact, under FISA, you are not necessarily doing
terrorism. It is any foreign intelligence information
gathering, and if this is not adopted, anybody using the corner
pay phone might have their innocent conversations involving
their health care, their psychiatric or marital problems or
financial problems listened in on if we do not ascertain that
it is the target using the phone, not some other innocent
party.
It is my understanding, Mr. Chairman, that this is what we
have been told they are trying to do, and we just want that in
the statute so people will be comfortable that if they use the
corner pay phone that some foreign--and agent of a foreign
government might also use, that their private conversations are
still private.
Chairman Sensenbrenner. The gentleman yields back.
The gentleman from Tennessee, Mr. Bryant.
The gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman. I oppose the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. Thank you, Mr. Chairman. Very briefly, I am
going to ask my colleagues to oppose the amendment. Current
minimization requirements for FISA wiretaps are classified, and
Mr. Scott's amendment adversely affects current law with
respect to the FISA wiretaps. And in effect, as we have seen
with many of the amendments today, unfortunately this amendment
would roll back current law.
The Attorney General guidelines to the extent that they can
be discussed in an unclassified meeting already require the
government to verify that the agent of the foreign power is
using the facility in question before they can intercept that
facility, and, Mr. Chairman, if I could suggest that we work
with Mr. Scott about his desire to draft legislative language
dealing with the ascertainment issue between now and the floor,
and if you will consider withdrawing the amendment, I know that
you and I will work in good faith with him.
If the amendment is not withdrawn, I would urge my
colleagues to oppose the amendment. Once again, we should not
roll back existing law.
Mr. Scott. Would the gentleman yield?
Mr. Smith. I will be happy to yield to the gentleman from
Virginia, Mr. Scott.
Mr. Scott. I would ask the gentleman whether or not these
FISA intelligence gathering taps can be done on people who are
not involved in terrorism?
Mr. Smith. Mr. Scott, to reclaim my time, I don't know that
that can be guaranteed. Quite frankly, that gets into
classified information I will be glad to discuss with you, but
I know that that is the intent.
Mr. Berman. Would the gentleman yield?
Mr. Scott. I will yield to the gentleman from California--
--
Mr. Smith. Excuse me. The gentleman from North Carolina, or
to the gentleman from California? Mr. Berman, yes.
Mr. Berman. Well, my understanding, just from preparing for
this markup, is that a FISA wiretap is directed against a
foreign power or the agent of a foreign power where there is--
they have satisfied the FISA court that there is relevant
information on a foreign intelligence matter. It is not just
simply focused on terrorism. It can be focused on espionage or
any other foreign intelligence information. That is an existing
law.
Mr. Smith. That is my understanding, Mr. Berman. If that is
the question.
Mr. Scott. Would the gentleman yield? Again?
Mr. Smith. I will yield to Mr. Scott, yes.
Mr. Scott. I would ask whether or not this information
gathering can be gathering information on things that aren't
even crimes? It could be the political situation back at home
of the foreign agent. That would be intelligence gathering. Can
you get a wiretap for that kind of thing?
Mr. Berman. Would the gentleman yield?
Mr. Smith. To my understanding, that is what FISA is all
about. That is correct.
Mr. Berman. FISA has a definition of foreign intelligence
information. We have in fact just adopted that definition on
the information sharing amendment. If you would give me a
moment, I can read it to you, but it covers--I mean, it covers
matters within that definition on different kinds of foreign
operations.
Chairman Sensenbrenner. Will the gentleman from Texas
yield? I do have the foreign intelligence information
definition.
Mr. Smith. Okay. I will be happy to yield to the Chairman.
Chairman Sensenbrenner. The FISA act says, quote, foreign
intelligence information means information that relates to and
if concerning the United States person is necessary to the
ability of the United States to protect against, A, actual or
potential attack or other grave hostile acts of a foreign power
or an agent of a foreign power, B, sabotage or international
terrorism by a foreign power or an agent of a foreign power or,
C, clandestine intelligence activities by an intelligence
service or network of a foreign power or by an agent of a
foreign power, or information with respect to a foreign power
or foreign territory that relates to and if concerning the
United States person is necessary to the national defense or
the security of the United States and the conduct of the
foreign affairs of the United States, unquote.
Mr. Watt. Would the gentleman yield?
Mr. Smith. I will be happy to yield to the gentleman from
North Carolina.
Mr. Watt. I am concerned that you are inquiring about the
wrong thing. I thought Mr. Scott's concern was not so much what
FISA covers, what the roving wiretap would cover, but who it
would cover. Is it limited solely to agents of a foreign
government, and if so, then you would--wouldn't there have to
be some ascertainment that that agent of the foreign government
was using the phone rather than--and wouldn't it be cut off if
somebody other than the agent of the foreign government were
using the phone?
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Watt. Mr. Chairman.
Chairman Sensenbrenner. For what purpose the gentleman from
North Carolina----
Mr. Watt. I move to strike the last word----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt.--and I will yield to Mr. Smith or Mr. Berman to
perhaps answer the question.
Mr. Smith. Mr. Watt, let me try to respond briefly to your
point, and I think you did accurately describe Mr. Scott's
concern. We are advised by the Department of Justice and I am a
little constrained in what I can say, quite frankly, at their
advice, but we are advised by the Department of Justice that
their ability to impede the actions of terrorists would be
constrained under the language in Mr. Scott's amendment.
Mr. Delahunt. Would the gentleman from Texas yield?
Mr. Smith. Just a minute. And that is why I offered a while
ago to sit down with Mr. Scott and with the Department of
Justice between now and the floor to see if we couldn't satisfy
their concerns, but I am afraid to some extent some of these
concerns by the Department of Justice simply cannot be
discussed in open court.
Mr. Delahunt. Does the gentleman yield?
Mr. Watt. I will yield to the gentleman Mr. Berman and then
to Mr. Delahunt.
Mr. Berman. The one concern--I have no idea exactly what
the classified guidelines are regarding what happens. It is
limited to an agent not of a foreign government but of a
foreign power, which can include a government. It can also
include a foreign terrorist organization. I have no idea what
the classified guidelines say, but the one question I have
about the gentleman's amendment is it looks to me like this
amendment would limit--might limit what is now given to them
under existing law rather than simply--in other words, the
amendment is dealing with the multipoint authority and the
roving wiretap, but it looks to me like the language applies
whether it is a roving wiretap or it is a traditional wiretap,
and I just feel uncomfortable voting to restrict existing law
without understanding--I would like to make sure that we are
not doing that.
Mr. Watt. I yield to Mr. Delahunt.
Mr. Delahunt. I have before me a copy of the FISA act, and
the object of a surveillance must be either a foreign power,
which can include a foreign government or component thereof,
whether or not recognized by the United States, a variety of
other enumerated groups, including a group engaged in
international terrorism or activities in preparation thereof,
as well as an agent of a foreign power which can be any person
other than the United States person, and activities have to
be----
Mr. Watt. You are answering the wrong question. The
question is can you monitor the phone conversations either with
a roving wiretap or with a nonroving wiretap of somebody who is
not the agent of a foreign power or a government. It doesn't
help me to know what a foreign power or government is defined
as. This limits it to that person and to the target, and that
may be already the case.
Mr. Schiff. Would the gentleman yield?
Mr. Delahunt. Just give me a moment. There is in the
application for the surveillance, the wiretap under FISA, the
need or the necessity in the application to outline so-called
minimization procedures, and those, however, are classified.
Mr. Watt. Mr. Schiff.
Mr. Schiff. Thank you. I think as I read this, the
amendment does not go beyond or limit existing law. Rather, it
limits the new multipoint authority proposed in the bill,
because under current law a court can order identified parties
to assist in the installation of these wiretaps. The multipoint
authority says where they are trying to thwart an investigation
the court can order that specified persons or other such
persons also have to assist and then law enforcement has the
discretion to go to these other persons and say that they are
bound by this order.
So I think that it limits the additional power in the bill.
The question I think raises whether it places too great a
limitation, because I think what is really at stake in the
proposed amendment is the difficulty of knowing when to turn on
and when to turn off the wiretap, and that involves----
Chairman Sensenbrenner. The time of the gentleman from
North Carolina has expired. For what purpose the gentleman from
Alabama, Mr. Bachus, seek recognition?
Mr. Bachus. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Bachus. Let me say this. The conversation we are having
I think goes even beyond this amendment, and I think it answers
the question of the gentleman from North Carolina about how far
the government can go in the surveillance, and that really the
answer to the question is the Constitution gives the President
the right to conduct foreign affairs, and every President since
George Washington has exercised its duty to defend and protect
our country.
Now, there have been people since our country began, since
the first President, have questioned this constitutional right.
There have been a lots said about it, but there--and some
people don't like that, quite frankly. They don't think that
ought to be the law, but the law is that the President has the
authority to conduct foreign affairs and to protect and defend
the country from all foreign powers, agents, operative,
terrorists.
Mr. Scott. Would the gentleman yield?
Mr. Bachus. And let me further say that under this power,
and it is well established, they have the right to electronic
surveillance. They have the right to conduct domestic covert
searches, and they can do this without judicial authority. I
mean, they don't----
Mr. Berman. Would the gentleman yield?
Mr. Bachus. They don't have to have judicial approval for
this. And they cannot--not only can they have surveillance of a
foreign agent, but they can also have surveillance of a U.S.
citizen suspected of giving aid or comfort to an enemy.
Mr. Berman. Would the gentleman yield?
Mr. Bachus. And one thing about these amendments and one
thing about anything in this bill that limits the ability of
the President to do this is are we tying his hands of a
constitutional right and really a duty and an obligation, not
only a constitutional right but a duty and an obligation of the
President to take these actions to defend the country? And if
we had any doubt about whether he ought to have that right, it
ought to have been resolved on September the 11th.
Mr. Scott. Would the gentleman yield?
Mr. Bachus. I will yield.
Mr. Scott. Thank you. The problem is--if it was confined to
foreign affairs, it wouldn't be a problem. What the problem is,
is that you are using this as your criminal law, because you
are going back and forth, and interrelationship between FISA
and the criminal wiretap is the thing, and we just--and the
gentleman from Massachusetts' amendment pointed out that you
have eliminated the primary purpose, and so the primary purpose
in these wiretaps could be a criminal investigation, and that
is why we are trying to get some----
Mr. Bachus. What I am saying, as long as any part of that
surveillance, any part of that search is related to the
conducting of foreign affairs; i.e., defending the country,
protecting our national interests----
Mr. Berman. Would the gentleman yield?
Mr. Bachus. To conduct that surveillance, and a lot of what
I think the President is requesting and the Administration is
requesting this body to do, well, they already have the power
to do.
Mr. Schiff. Would the gentleman yield?
Mr. Bachus. But I think we ought to support it as opposed
to restrict it. But this is very basic. It is a
constitutional----
Chairman Sensenbrenner. The time belongs to the gentleman
from Alabama.
Mr. Schiff. Mr. Chairman?
Mr. Bachus. To conduct foreign affairs.
Chairman Sensenbrenner. For what purpose does the gentleman
from California, Mr. Berman, seek recognition?
Mr. Berman. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. There is this funny other part of the
Constitution about unreasonable searches and seizures, but--
which does constrain----
Mr. Bachus. If the gentleman will yield for that. That
applies to U.S. citizens and to some----
Mr. Berman. First of all, we have to clarify a couple of
things. You can be a U.S. citizen and be an agent of a foreign
power and be subject to a FISA search surveillance order.
Secondly, your notion that there has to be no judicial
intervention, I don't know where you are getting that from.
Even if it is from gathering from U.S. persons or--who are
agents of foreign powers, in the United States my understanding
is you have to go either to a court, a regular court of
jurisdiction if it is a criminal investigation or to the FISA
court if it is a foreign intelligence matter and get judicial
approval. That is in the law. So I thought I----
Mr. Bachus. We have created that court, but prior to that
court's existence----
Chairman Sensenbrenner. The time belongs to the gentleman
from California.
Mr. Berman. So I just want to make those two points, but
there are two different issues. Mr. Delahunt was raising the
issue of the purpose. Now Mr. Scott is raising the issue in the
context of the expansion of authority for the roving wiretap.
Mr. Scott. Who else you can listen in to under the excuse
of going after the target?
Mr. Berman. But that is an issue--I mean, I think there is
an answer to that issue. I just am not smart enough to know it,
but I think that is an issue under existing authority and under
this new authority, and my guess is, there is a--it is dealt
with--I mean, I know the FISA law very specifically talks about
this, but then I think there is--I yield to the gentleman from
California who seems to actually know something about this law.
Mr. Schiff. I thank the gentleman for yielding. Under
existing law if you think someone who is an agent of a foreign
power is going to be using a certain electronic communication,
you can go to third parties to get assistance to do a wiretap
on that line, and if you think they are going to move from one
line to the other, you can go back to court and get authority
to go to another line. You don't have to make the showing that
is requested in this amendment that they are only going to be
there for the time, et cetera, which you only may be able to
ascertain by listening in on the line. I am not sure how you
will know in advance necessarily when they will be using that
line.
Under the bill, I think the Sensenbrenner-Conyers bill,
which has been narrowed from the Attorney General's proposal,
the bill says that where a significant purpose is this foreign
intelligence purpose and where there is--the court finds that
the action of the target may have the effect of thwarting
identification because they are going from line to line to
line, where you have met those standards, you can get an order
that doesn't specify just simply one custodian that you can go
to for the wiretap but gives you the flexibility to move
quickly, because when we are talking about an era where, as the
Chairman refers to, uses disposable cell phones, they may only
use that line for one conversation, and if you have to wait to
ascertain that they are using that line out of a very
legitimate concern that maybe someone else is using that line,
the conversation may be there and gone before you have actually
established the ability to do the intercept.
Mr. Berman. Can I just reclaim my time? Just to take what
you said, if the guy is in a hotel, under this new authority
that this bill would provide you don't have to just name the
custodian of the phone lines at the hotel, because if he is
going to go to another hotel the next night you can use that
warrant, that order, to get the unnamed hotel that he ends up
at on the next night to also enforce that order.
Mr. Scott. But can you also listen in to next night's guest
at the last hotel?
Mr. Berman. My guess is you can't, but that is a guess. You
know he has checked out. You can't be purposely listening to
other people, but this is true whether it is a stationary
wiretap or a roving wiretap. In other words, these are good
questions, but they are about existing law, as well as about
the new authority under the law. That is my only point.
Ms. Waters. Mr. Chairman?
Mr. Frank. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts--Mr. Frank, I think you have already been
recognized, haven't you?
Mr. Frank. No. That was on Mr. Delahunt's amendment.
Chairman Sensenbrenner. Okay. Then the gentleman is
recognized for 5 minutes.
Mr. Frank. Thank you, Mr. Chairman. I ask to strike the
requisite number of words to raise a question because I am not
fully aware. This is an example of I think a problem many of us
have in terms of the bill. Thanks to the collaboration of the
Chairman and the Ranking Minority Member, the bill has been
focused, and I find myself in this instance and in many others
in agreement with the way it is conceptualized; that is, yes,
clearly given the evolution of communications, wiretap
authority should catch up with the mobility of communications.
The question I have here, as elsewhere, is have we done the
best job of executing that agreed upon concept? The point that
the gentleman from Virginia is raising is this, and I think he
is not here objecting to the notion of the multiple
wiretapping. What he is saying is that does, however--once you
have gone from the one phone in one place to multiple phones,
you have increased law enforcement's ability to catch up with
the people you are surveilling, which is good, but you have
also widened the net so that innocent people might get swept up
in it. And that is the response to the gentleman from Alabama.
The gentleman from Virginia's concern is precisely American
citizens or others whose conversations may be overheard because
we now have this broader authority. And so the question is how
do we do the best we can? We will never get it to perfection,
so that you get the legitimate target of the surveillance
listened to on this phone and that phone but not other people,
and this--one of the things--I have been looking at it here and
it does talk about the minimization procedures, and I would
yield if anyone--I know my friend in the law enforcement--the
experience of my friend. What are the minimization procedures?
I would yield to the gentleman from Massachusetts.
Mr. Delahunt. Well, again they are different under the so-
called FISA act but they exist. Let us presume that in the
hypothetical--in a hypothetical situation where it is the
target, it is not a roving wiretap but it is a phone, they
still have to comply, the government does, with minimization
procedures. For example, if the son or daughter gets on the
phone and the conversation is overheard, then there will be,
even though it is not the same as in a typical criminal
investigation, minimization requirements.
Mr. Frank. Would the gentleman yield?
Mr. Delahunt. Yes.
Mr. Frank. Minimization procedure is what we might call in
a more technical word hanging up. I mean, I guess----
Mr. Delahunt. Exactly.
Mr. Frank. Let me ask my friend from Virginia----
Mr. Schiff. Would the gentleman yield?
Mr. Frank. Yes, I will.
Mr. Schiff. I just want to clarify. It is not necessarily
correct that minimization means hanging up. Depending whether
or not it is FISA or criminal procedure, the procedure may
actually mean leaving on the machine but not----
Mr. Frank. Not listening.
Mr. Schiff. Not listening or----
Mr. Frank. I have heard that. I know they are going to be
tough. But it is a tough issue that we understand. But here is
my question to the gentleman from Virginia and this may be
alleviated. If in fact finding out that the target is there and
ascertainment of the target, if those are conditions precedent,
then I think there is a problem. The question is--I mean, if
you require that before they can do this they have to know this
with some degree of assuredness, that can be a problem. If in
fact they can be told to try but if they find out that it
wasn't the target, et cetera, then immediately they have to
bring in the minimization procedures, then I think it is less
of a problem.
So the question is, do they have to have--how clear do they
have to be about this beforehand, or does this mean that once
they have done some of this wiretapping, if in fact it turns
out they don't meet these conditions, then they immediately
have to get into the minimization. I yield to the gentleman
from Virginia.
Mr. Scott. The intent is that if you have put a bug on a
pay phone to track down a named target, that you don't listen
in on everybody----
Mr. Frank. Well, I think the gentleman has answered the
question. It makes me feel better about the amendment; that is,
it is not his intention to prevent putting the bug on the pay
phone. It is the requirement that very strict minimization
procedures be followed on any of these phones that are tapped
or other communications, as soon as it becomes clear that it is
not the right target. Is that--I would yield to the gentleman.
Mr. Scott. That is the point. Mr. Chairman, the gentleman
from Texas has indicated a willingness to work on this, and I
am willing to withdraw the amendment with that understanding. I
prolonged the discussion for the purpose of venting what the
various concerns were.
Mr. Frank. I hope this is the model that is--on a lot of
these we have conceptual agreement and a lot of work may be
done to make sure we have it right.
Chairman Sensenbrenner. The amendment is withdrawn. Are
there further amendments to title I.
If not, the Chairman offers a manager's amendment on behalf
of himself and the gentleman from Michigan, and the Clerk will
report the amendment.
The Clerk. Technical amendment offered by Mr. Sensenbrenner
and Mr. Conyers.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendments follow:]
Chairman Sensenbrenner. The Chair will recognize himself
briefly to explain the amendment.
First, there are technical corrections which changes two
numbers. Second, it includes provisions in that unanimously
agreed to and amendments by the gentleman from Illinois, Mr.
Hyde, and the gentleman from California, Mr. Berman, as
previously agreed to.
The Chair yields back the balance of his time.
The question is on----
Ms. Lofgren. Mr. Chairman, we don't even have a copy of
this yet.
Chairman Sensenbrenner. The gentleman from Michigan, do you
have a statement? The gentleman from Michigan is recognized for
5 minutes.
Mr. Conyers. Thank you, Mr. Chairman. With reference to the
manager's amendment, I want to begin by thanking you for
including a number of Members' suggestions from our side that
are involved in the manager's amendment, and I think that
argues for wide support on the Committee for it.
First, we contain language requested by the gentleman from
California, Mr. Berman, which would provide the Department of
Justice with the authority to designate terrorist organizations
concurrently with the Secretary of State to safeguard against
wrongful designation. The Secretary and Attorney General would
have mutual veto power over designations.
The second item I would bring to your attention would
incorporate an amendment suggested by the gentlelady from
California, Ms. Waters, which would help prevent forum shopping
by law enforcement by ensuring that nationwide warrants are
brought in a court with jurisdiction over the subject matter of
the investigation relative to the amendment that she proposed
earlier.
Third, we contain in the manager's provision a useful
clarification that provides Internet service providers written
certification when they are issued roving wiretap orders.
Finally, we contain authorizations for additional law
enforcement funding, as well as the study of biometric
identification at border checkpoints requested by the gentleman
from Illinois, former Chairman Hyde.
I think those are important provisions that would make this
a palatable manager's amendment for most of the Committee
Members.
Mr. Frank. Mr. Chairman.
Chairman Sensenbrenner. Does the gentleman yield back his
time?
Mr. Conyers. Yes, sir.
Chairman Sensenbrenner. For what purpose the gentleman from
Massachusetts?
Mr. Frank. To strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. I want to speak in support of this amendment. I
want to thank the Chairman and the Ranking Minority Member for
working so well together constructively, both substantively and
procedurally, and I think if we--and I realize not everybody is
going to be for this bill and there are going to be differences
and there are some amendments I would like to see, but if you
go back to where we were a few weeks ago when we got the
package and some people were expecting it done very rapidly, I
think the procedure and the substance both held up very well,
and as a Member of the minority, I want to particularly express
what I think many of us on our side feel towards our Ranking
Member.
This is a very difficult issue. It is a particularly
difficult issue for him in a lot of ways, and his role in this
has really been a model of responsibility, and even those who
still have some disagreements on it I think now are much more
on point, I think join me in expressing their very deep
admiration for the leadership he has shown along with you, Mr.
Chairman.
Chairman Sensenbrenner. The gentleman yields back his time.
Mr. Berman. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from California, Mr.
Berman.
Mr. Berman. Yes, Mr. Chairman. I--perhaps this is just an
inquiry--I want to speak to one section in title I, but it is
just to strike the last word and make a point.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. I would like to turn the Committee's attention
to section 105 relating to computer trespassers and ask if the
Chairman might with his staff take a look at this provision
between now and the time this bill goes to the floor. The bill
allows the government under this provision at the request of
Internet service providers--this deals with the computer
trespassers and cyber attacks, and there are some very
important provisions in here, but I think it is drafted in a
fashion that is too open-ended because it doesn't limit the
intercepts that law enforcement can undertake at the request of
an Internet service provider or other owner of a protected
computer. It doesn't limit the intercepts to the user's--the
authorized user's communications to or through the protected
commuter in the course of an attack or a hacking.
This bill, I hope inadvertently--by the way it is drafted,
this provision seems to allow a nonjudicially supervised tap of
the home telephone of the unauthorized computer user, allows to
read the e-mails of that unauthorized computer user or monitor
their Web surfing. And by including the wire as well as the
electronic communications, it makes it pretty clear that this
allows telephone taps of somebody who happens to be a cyber
attacker. I support the intercepting of the cyber attacker's
communications through the unprotected computer, but the notion
that in this situation and only in this situation we are going
to let the owner of the unprotected computer get law
enforcement to wiretap that person's phone without ever going
to court I think is a terrible overreach.
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Berman. I will be happy to.
Chairman Sensenbrenner. I think the gentleman makes a good
point. We will take a look at it between now and going to the
floor.
Mr. Conyers. Would the gentleman yield?
Mr. Berman. Be happy to.
Mr. Conyers. I want to commend him for raising this,
because it is an important thing that I know you and your staff
have been working on and that we might be able to get some of
the rough edges off of it, and I will join the Chairman in that
undertaking.
Mr. Berman. I appreciate that, and with that I yield back
the balance of my time, except I want to thank you for
including one of my amendments in your manager's amendment.
Mr. Weiner. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia, Mr. Scott, seek recognition?
Mr. Scott. Strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I have two questions, one on the
amendment involving the jurisdiction over the offense being
investigated. The jurisdiction and venue are sometimes used
interchangeably. Is it the legislative intent, Mr. Chairman,
that the word ``jurisdiction'' would include venue? I mean, you
could have an armed robbery at a location--Federal location in
Virginia. You could try it in California if the defendant
didn't object. You have jurisdiction, but that wouldn't be the
venue, and my question is whether jurisdiction includes the
idea of venue in addition to just subject matter jurisdiction.
Chairman Sensenbrenner. What was the question?
Mr. Scott. On your amendment it says jurisdiction over the
offense being investigated, whether the----
Chairman Sensenbrenner. The gentleman from Texas I believe
has the answer.
Mr. Scott. Whether the term ``jurisdiction'' would include
venue as well as jurisdiction, because if you are investigating
an armed robbery at Fort Monroe in Virginia, you could actually
try it in California if the defendant didn't object. You have
subject matter jurisdiction, but I think the idea is that you
are trying to find a judge in the venue where the offense is
being investigated and whether the legislative intent of the
word ``jurisdiction'' includes venue. And I will yield to the
gentleman from Texas.
Mr. Smith. Thank you, Mr. Scott. I will try to provide an
answer to you. First of all, I am looking at the language under
definitions C-1, court of competent jurisdiction, A, where it
says any District Court in the United States, including the
Magistrate Court or any United States Court of Appeals having
jurisdiction over the offense being investigated. That is a
narrowing of the definition of venue just to the jurisdiction
of the offense, and so in other words venue is not as broad as
I think you may think it is.
Mr. Scott. Well, let me ask it specifically. If the offense
is at Fort Monroe in Virginia, can a California judge issue a
search warrant, because they would have jurisdiction but not
venue?
Mr. Smith. Right, if the gentleman would yield, I think in
most cases the answer is no but it depends on where it is
investigated. If it happens to be investigated in California,
yes, but that is not likely. I think it is typically going to
be the place where the offense occurred or close to it.
Mr. Scott. Well, maybe if I just ask that someone look at
that issue to make sure the words are--mean what they appear to
mean.
Mr. Smith. I assume the words mean what they say, but if
not, we will take a look at it and discuss it between now and
the floor.
Mr. Scott. Reclaiming my time, Mr. Chairman, I would ask
either you or the Ranking Member on the--or Mr. Berman or on
the Berman amendment where you are talking about designation of
foreign terrorist organizations. I am seeing this for the first
time. If you are designated, do you ever have an opportunity to
be heard, and how does that work?
Mr. Berman. That is a very good question. My colleague from
New York seems to be clear with the--no, he is just raising
his. All right. He is gesturing. It is not a judicial or quasi-
judicial process. It is an executive branch function where you
put the organization on the list, and then this is the law we
passed in 1996 and a whole lot of things happen when you are on
that list. The manager's amendment, that portion of it that
involves this, right now the Secretary of State has the sole
power to do it. This would give the Secretary of State the
power under existing definitions. It doesn't change any of the
definitions. It doesn't change any of the definitions, but it
allows--it says the Attorney General has to concur, and if he
refuses--and then gives the Attorney General to name options
and gives the Secretary of State the obligation to concur, and
if there is no concurrence it forces the decision to the White
House and to the President.
But I do have--I do have an answer now to--there is a
process. Once the organization is placed on the list, not later
than 30--an organization not later than 30 days after the
publication of that designation, an organization designated as
a foreign terrorist organization may seek judicial review of
the designation in the U.S. Court of Appeals for the D.C.
Circuit. And the----
Chairman Sensenbrenner. Time of the gentleman has expired.
Is the preference of the Committee to stay here until 2:00
o'clock in the morning or not?
This is a manager's amendment, which presumably was agreed
to. For what purpose does the gentleman from New York seek
recognition?
Mr. Nadler. Mr. Chairman, I just want to clarify the point
of this amendment. As I understand it, I would like Mr. Berman
to--just to tell me if I am understanding this correctly. As I
understand it, the point of this amendment is to narrow the
existing law. It doesn't change the method of designation at
all, except to say that whereas the Secretary of State
designates a foreign terrorist organization now under current
law, he could only do it under future law if he also got the
agreement of the Attorney General, the theory being that the
Secretary of State may do it more on a political level, given
foreign policy considerations. The Attorney General's
concurrence hopefully will be based more on some legal
considerations.
So this doesn't change the process other than by saying
that you need two people's concurrence, whereas under current
law only one person can do it. So it in effect makes it a
little harder to designate--I don't know about harder, but it
makes it--it gives a little check on it, a little check that we
don't have now.
Mr. Berman. Would the gentleman yield?
Mr. Nadler. Yes.
Mr. Berman. That is one effect. The other effect, though, I
have to tell you is part of why I introduced the amendment. In
some cases the Secretary of State for all kinds of
sophisticated diplomatic reasons will decide not to name an
organization which meets the definition as a foreign terrorist
organization, and your reasons are compelling or perhaps they
are because the desk officer for the particular country where
that organization is based says that will screw up some
commercial deal that we are having with that country, and so I
wanted the Attorney General to be empowered to name
organizations, and then if the Secretary of State refuses to
concur with that, let the President decide whether the--that
organization--whether the diplomatic reasons not to name that
organization are so compelling that the Attorney General's
request should be denied. So it both narrows in one sense and
broadens in another sense.
Mr. Nadler. Reclaiming my time, I think it is a very good
amendment, because essentially what it does is make it a little
more based on legal criterion rather than on political or
commercial criterion which may hold too much sway now. So I
commend the gentleman and I support the amendment.
Chairman Sensenbrenner. For what purpose does the gentleman
from Georgia seek recognition?
Mr. Barr. To strike the last word just for purposes of
clarifying.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Barr. It is my understanding, Mr. Chairman, that the
intent of that portion of your manager's amendment that relates
to section 351 is intended to ensure conformity with other
similar provisions regarding the obtaining of search warrants,
and it is not the intent of the Chairman to broaden beyond the
language in the draft bill the courts that could issue the
search warrants?
Chairman Sensenbrenner. If the gentleman will yield, the
answer to the question is yes.
Mr. Barr. I think then, reclaiming my time, Mr. Chairman,
the only thing I would urge is when we come up with a final
draft here to--I think grammatically that could be made
absolutely clear, which is not the case in the current
language, but I appreciate the gentleman's recognition to that
fact. I think it just was--it is lacking a couple of commas.
Chairman Sensenbrenner. For what purpose does the gentleman
from New York, Mr. Weiner, seek recognition?
Mr. Weiner. For the purpose of just asking--to strike the
last.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Weiner. I note in the Berman portion of the manager's
amendment the reference to section 202, 8 U.S.C., is that
notions and groups that will be targeted by this added
enforcement ability, and I just want to clarify, because it was
a question that came up when the President spoke to Congress.
He listed many organizations, and he left out Hamas and
Hezbollah. When he issued an executive order freezing assets,
he listed organizations that would be frozen, left out Hamas
and Hezbollah, two organizations, the only two I know of, that
have actually engaged in terrorist activity since September
11th, including yesterday. And I just want to make sure that my
understanding is correct, that despite the President taking
that position, this bill includes all of the organizations that
were included in the immigration law as of 1996 that include
Hamas and Hezbollah. Is that your understanding, Mr. Berman?
Mr. Berman. This amendment doesn't affect any organizations
that have been put on the list. Both of those organizations are
on the list.
Mr. Weiner. Then Mr. Chairman, it is your understanding
that the entire bill refers to that same universe of
organizations that were delineated in 1996?
Chairman Sensenbrenner. If they are on the list, this bill
applies to those that are on the list.
Mr. Weiner. Thank you, Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the
gentlelady from California, Ms. Waters, seek recognition?
Ms. Waters. Thank you very much, Mr. Chairman. I have an
amendment that--it is an easy amendment, and----
Chairman Sensenbrenner. The question is on the manager's
amendment, which is pending.
Ms. Waters. Yes. I have an amendment to the manager's
amendment.
Chairman Sensenbrenner. The Clerk will report the amendment
to the manager's amendment.
The Clerk. Amendment to the manager's amendment to H.R.
2975 offered by Ms. Waters. Insert in line 7 after the period
the following: It shall be unlawful for any memorandum of
understanding between law enforcement agencies to provide that
there is no requirement to report any drug trafficking
activities.
[The amendment follows:]
Ms. Waters. Mr. Chairman----
Chairman Sensenbrenner. The gentlelady is recognized for 5
minutes.
Ms. Waters. Mr. Chairman and Members, this amendment is
prompted based on information that I learned about memorandums
of understanding between the Justice Department and the CIA as
it related to their involvement with the Contras. During the
time that our Administration was supporting the Contras in the
Nicaragua, where there was a war going on between the Contras
and the Sandinistas, it is well known now that our intelligence
agencies turned a blind eye toward drug trafficking, and they
had an actual memorandum of understanding that they did not
have to report drug trafficking.
The reason for that was the Contras were trafficking drugs
as one way of paying for their war activities, but what we
discovered during that conflict was both the Sandinistas and
the Contras were trafficking in drugs, and everybody turned a
blind eye.
We are dealing now with Afghanistan, where we know the
Taliban, for example, is dealing in poppies and trafficking in
drugs. I also suspect that the opposition may also start to do
that if they are not already doing it. And since you have an
amendment in this amendment that would put some money in for
the DEA agency supposedly to deal with training in antidrug
information, I want to make sure that never again will our
government have a memorandum of understanding that our CIA or
the DEA or the DIA or anybody else does not have to report drug
trafficking when they encounter it and when they experience it
and when they see it.
I would ask for an aye vote.
Chairman Sensenbrenner. I recognize myself in opposition to
the amendment. First of all, this is a question of oversight
that this Committee should be doing. It should not be
statutory.
But secondly, I don't know if the gentlewoman from
California heard about the speech that British Prime Minister
Blair gave yesterday to the Labor Party Annual Conference
somewhere in the United Kingdom. I watched part of it on CNN,
and one of the things the Prime Minister Blair said is that 90
percent of the heroin that is sold on the streets of Great
Britain is furnished by Osama bin Laden's al Qaeda
organization, and the Brits who are buying heroin on the street
are helping Osama bin Laden's terrorist activity.
Chairman Sensenbrenner. Now what the gentlewoman's
amendment says is that there can't be a memorandum of
understanding between law enforcement agencies to deal with
this question. And not only is the heroin that the----
Ms. Waters. That is not true, Mr. Chairman.
Chairman Sensenbrenner. I have the floor. This is what the
Prime Minister of Great Britain had to say to his party's
annual conference. And he said--and I saw it on TV and others
could have seen it on TV--that anybody who bought heroin in
Great Britain had a good chance of helping finance what the bin
Laden organization was doing. What the gentlewoman's amendment
does is hamstring the ability of law enforcement to be able to
enter into memorandums of understanding to deal with this
issue.
Ms. Waters. Will the gentleman yield? Because he is
misrepresenting what my amendment does.
Chairman Sensenbrenner. No, I will not yield. I could have
got the amendment on a point of order on nongermaneness.
I would urge the Members to vote against the amendment and
yield back the balance of my time.
Ms. Waters. Mr. Chairman, that is patently unfair. You have
misrepresented what my amendment does.
Chairman Sensenbrenner. The gentleman from Michigan, for
what purpose do you----
Mr. Conyers. To strike the requisite number----
Chairman Sensenbrenner. Gentleman is recognized for 5
minutes.
Mr. Conyers. Mr. Chairman, gentlelady from California and
Members of the Committee, my comment, without going to the
efficacy of the Waters' amendment is that a manager's amendment
is purportedly agreed to by the Committee. And if we are to
open it up to many very excellent proposals that could be
offered, we have just voided the whole reason for having a
manager's amendment.
The reason I make this point now is that we currently have
asked staffs to begin preparing a second manager's amendment to
expedite the process which we will vent through to all of the
Members that, where there is concurrence, we can move ahead
more quickly. And that is the purpose.
So my request, before I yield to the gentlelady, is that we
begin by withdrawing this amendment; and if there is some
appropriate other place in our procedure to deal with it, we
ought to do it. But I would urge the Members not to assume that
there is some reason to reopen the manager's amendment. Because
I concede quickly that there are many other modifications that
we could make, but the whole idea is to get this package
through so we can get to other amendments.
Ms. Waters. Will you give me some time?
Mr. Conyers. So if the gentlelady--I thought she wanted me
to yield. Well, then, I yield.
Ms. Waters. Mr. Conyers, I could withdraw it, but I refuse
to do it until it is clarified, until my amendment is defined
and understood. There is no way of misunderstanding what this
amendment does. This amendment simply says that you cannot have
law enforcement agencies agreeing that they are not going to
report drug trafficking. Now the Chairman misrepresented what
this amendment does. I will not withdraw it----
Mr. Nadler. Would the gentleman yield?
Mr. Conyers. I will let the gentlelady finish her
statement.
Ms. Waters. I will not withdraw it as long as the Chairman
is misrepresenting what it is. This is designed to do exactly
what the Prime Minister and others were talking about. This
business of going in and taking sides and allowing the side
that you are supporting to deal in drugs and turning your head
must stop. We have discovered that this is what was done with
the Contras, and we should not allow it to be done under any
circumstances.
Mr. Conyers. I thank the gentlelady for making clear the
terms under which she would require a withdrawal, and I urge
the Chairman to proffer the necessary statement that would
allow us to withdraw this so that we could move forward.
Chairman Sensenbrenner. Gentleman yield? So proffered.
Mr. Conyers. With pleasure.
Ms. Waters. I am sorry. I didn't hear you.
Mr. Conyers. It was directed to the Chairman.
Ms. Waters. Did he say something?
Mr. Conyers. Not yet--he did----
Chairman Sensenbrenner. I said, so proffered.
Mr. Conyers.--in interpretation, he apologized profusely
for his misunderstanding and total misinterpretation of this
one-sentence amendment.
Ms. Waters. I accept the stingy apology.
Chairman Sensenbrenner. The amendment is withdrawn.
The question is on the manager's amendment. Those in favor
will signify by saying aye. Opposed, no.
The ayes appear to have it. The ayes have it. The manager's
amendment is agreed to.
Are there further amendments to title I? If not, title I is
closed.
Title II, labeled Aliens Engaging in Terrorist Activity, is
now considered as read and open for amendment at any point
pursuant to the unanimous consent agreement.
Are there amendments to title II?
The gentleman from Illinois, Mr. Hyde.
Mr. Hyde. Thank you, Mr. Chairman. I have an amendment at
the desk.
Chairman Sensenbrenner. The clerk will report the
amendment. I believe this is Hyde 104 relating to money
laundering--110 relating to money laundering.
The Clerk. Amendment to H.R. 2975 offered by Mr. Hyde.
At the----
Mr. Hyde. Mr. Speaker, I ask unanimous consent that further
reading of the reading be dispensed with.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Hyde. Mr. Chairman, the practice of money laundering
has long been used by drug dealers, rogue governments and other
criminals to hide their ill-gotten assets and to finance their
illegal activities. International terrorists like those who
high-jacked four airliners and attacked the World Trade Center
and the Pentagon on September 11 engaged in money laundering to
finance their organizations and carry out their terrorist acts.
Money laundering is prevalent in countries with weak or
underdeveloped banking systems such as those in the Caribbean,
Latin America, Asia and Africa. Mr. Ballenger, a Member of our
House, initially brought these issues to light after his
travels to Latin America and has worked diligently in finding
ways to fight money laundering.
This amendment is a cumulative effort of Mr. Ballenger, Mr.
Tom Lantos, the Ranking Member of the International Relations
Committee, and myself. The purpose of this amendment is very
simple. It is to provide consular officers of the United States
with specific authority to deny a U.S. Visa to individuals who
are known to be or suspected of engaging in money laundering.
It is intended to make it more difficult for those who engage
in money laundering to gain legal entrance into the United
States and to gain access to U.S. Financial institutions. It is
modeled after the authority of consular offices to deny entry
to drug traffickers.
The Secretary of State, after consultation with the
Attorney General, the Secretary of the Treasury and the
Director of Central Intelligence, will develop a money
laundering watch list from which the consular office may check
prior to issuing a visa.
I respectfully request the Committee adopt----
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Hyde. I am happy to yield.
Chairman Sensenbrenner. I believe this amendment is very
constructive and am prepared to accept it and urge the
Committee to adopt it.
Mr. Frank. Would the gentleman yield?
I also agree to the amendment being a worthy one. But I
just wanted to note the gentleman from California and I spent
the morning in a hearing of the Financial Services Committee on
the whole subject of money laundering; and it was represented
by Secretary of the Treasury O'Neil and then some law
enforcement people, including from the Treasury and the FBI and
Justice, that money laundering--I admit that the gentleman from
Alabama was there and presided over the hearing--and it
reminded me there is an important piece of this that hasn't yet
really come forward.
I gather we as the Judiciary Committee have the main part
of the jurisdiction. The gentleman from Illinois has made a
good step forward. But I would hope, Mr. Chairman, that--I
gather the Administration is just in the process of sending up
its bill; and I would just inquire, because the fact that that
was left out kind of raised some questions, where are we? If
the gentleman from Illinois would yield.
Chairman Sensenbrenner. Would the gentleman from Illinois
yield to me?
Mr. Hyde. I yield.
Chairman Sensenbrenner. This amendment is drafted
specifically as an amendment to the Immigration and Nationality
Act so as to avoid a sequential referral to the Financial
Services Committee. I believe there has to be a separate anti-
money laundering bill which I think most of us will support
here, but that is not in the jurisdiction of our Committee but
in the jurisdiction----
Mr. Frank. If the gentleman from Illinois would yield
again. What they tell me is some of the way the Administration
is drafting it, we may have jurisdiction. So I would hope that
maybe pretty soon we would sit with the people at Financial
Services and work out a plan. They said they would talk about
amending title XVIII.
I thought, as the gentleman from Wisconsin did, that it
wouldn't be the jurisdiction here. But apparently there was
some sense from the Financial Services that it might come here.
I would note that it should be something we should moving
on quickly.
Mr. Hyde. Sheila Jackson Lee, would you like to be
recognized?
Ms. Jackson Lee. Mr. Chairman--and two Mr. Chairmans
sitting next to each other--frankly, I think the present state
of immigration laws of which this particular amendment is
amending doesn't specifically have language prohibiting a
person from entering the country if they are laundering money.
But it is clear that the financing of terrorism is a key
concern, both in terms of the investigation and in terms of
prohibiting further terrorism.
I would only say that I want us to be very concerned about
broadening the criteria for inadmissibility. But I believe that
this particular prohibition in light of what we are trying to
do is reasonable and it may provide an incentive. The word may
go out, if you are money laundering, don't come here, which
will be helpful to us. So I would support this amendment.
I know that you and Mr. Lantos have worked on it, and I
support it. My only caveat is that we are cautioned for
broadening the basis of inadmissibility as it may impact
immigrants who are coming here on nothing but legal terms.
I yield to the gentlelady from California.
Ms. Lofgren. Strike the last word.
Chairman Sensenbrenner. Recognize the gentlewoman for 5
minutes.
Ms. Lofgren. I think clearly, under the current act, the
consular officer or the Attorney General has the ability to
exclude individuals who engage in money laundering activities
anyhow. So I don't mind being duplicative in this amendment. I
plan to vote for it.
But what I am particularly concerned about and the reason
why I wanted to mention this is the state of the technology to
actually implement this plan, which is a good one, along with
some of the other things we are doing, is simply not there in
many of the consular offices as well as the immigration
service. I am, therefore, particularly glad that this amendment
is before us and highlighting once again the need to put in
technology tools to make sure that what we pass actually works.
And I yield back.
Chairman Sensenbrenner. The question is on the----
Mr. Bachus. Mr. Chairman----
Chairman Sensenbrenner. For what purpose is Mr. Bachus
seeking recognition?
Mr. Bachus. Mr. Chairman, I am going to support this
amendment.
Chairman Sensenbrenner. Gentleman is recognized for 5
minutes.
Mr. Bachus. Thank you. I do think--one of the things that
we in our money laundering hearings that we have had in
Financial Services is that there needs to be better
coordination between the agencies and between our immigration
agencies and our law enforcement agencies. I think this is
consistent with what we have seen is necessary. I do. I think
maybe the Financial Services Committee will look at it. But I
do not believe--I think they will obviously look at it because
it does deal with some sections that they also exercise
jurisdiction over, but I can't speak for them. But I would
think that it is consistent with what we are doing.
Chairman Sensenbrenner. Gentleman yield back?
Question is--gentleman from Virginia, Mr. Scott.
Mr. Scott. I move to strike the last word.
Chairman Sensenbrenner. Gentleman is recognized for 5
minutes.
Mr. Scott. I ask whether or not someone whose name is put
on this list ever has an opportunity to be heard to suggest
that the one who is money laundering is actually somebody with
the same name and it is not them. Do they have an opportunity
to be heard to get off the list?
Mr. Hyde. Yes. The answer is yes. If you are wrongfully
included on any list, I should think that you could go to where
the list originates and plead your case, because--and if they
kept you on, you would have a cause for litigation. So I think
these are practically worked out.
There is judicial review, I am advised, of a removal order.
So there is judicial review.
Mr. Frank. Gentleman would yield to me?
Mr. Scott. Gentleman from Massachusetts.
Mr. Frank. I can support this amendment. But part of the
problem is on removal there would be judicial review. But if we
are talking about denial of a visa, American consuls who are
being asked to grant a visa are, as far as I know, the only
officials of the American government who make an absolutely and
completely totally unreviewable decision. A consul's decision
to say no to a visa to someone who is not an American, to
someone who is overseas--the ambassador cannot technically and
legally overrule them. Those of us who have intervened have
been told that, and it is simply not paper. So in removal, it
is true.
As I said, I still support the amendment, but it is one
thing I hope this Committee will address. I tried to raise it
before. But we ought to be clear. The decision of an American
consular officer to deny a visa is absolutely unreviewable by
any other official or judicial or executive branch official.
Chairman Sensenbrenner. The time belongs to the gentleman
from Virginia.
Mr. Scott. Yield back.
Chairman Sensenbrenner. Question is on the Hyde amendment.
Those in favor will signify by saying aye. Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Further amendments to title II?
Gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I have an amendment at
the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Nadler. The amendment offered by Nadler and Jackson
Lee.
Chairman Sensenbrenner. Which amendment specifically?
Mr. Nadler. Page 52, strike line 15.
The Clerk. Amendment offered by Mr. Nadler and Ms. Jackson
Lee to H.R. 2975.
On page 52, strike line 15 and all that----
Mr. Nadler. Mr. Chairman, I ask unanimous consent to waive
the reading of the amendment.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from New York is
recognized for 5 minutes subject to the gentleman from
Pennsylvania's reservation.
Mr. Nadler. Thank you, Mr. Chairman.
This amendment, which I am offering along with the
gentlewoman from Texas, the gentleman from California and the
gentlewoman from California, Ms. Lofgren, is very simple. As
currently drafted the bill would allow the government to
communicate with a foreign government with respect--with the
country of origin of an applicant for asylum--political asylum
in this country for the purpose of obtaining information about
whether the asylum applicant perhaps is really a terrorist or
terrorist agent. And it is perfectly fine.
Unfortunately, the provision has been drafted so broadly
that legitimate applicants for political asylum who are in fact
fleeing persecution in a foreign country could be rewarded for
their yearning to be free in the United States by having Uncle
Sam in effect inform on them to the secret police of the
foreign country, possibly resulting in their families back home
getting murdered by the foreign government secret police.
This power was not sought by the Department of Justice. It
wasn't even in the Attorney General's bill. Giving it to the
government without drafting it properly so that we don't
endanger the lives of the families of applicants for political
asylum would be an outrageous abuse of our laws and of our
belief that people are entitled to seek freedom for themselves
and their families on our shores.
How many times have political dissidents been punished by
totalitarian regimes by being separated for life from their
families or by finding out that a parent is in the gulag or
perhaps murdered? We do not want to place our government on the
side of these terrible practices by telling a murderous foreign
government whom to murder.
I don't think that is the intent of this bill. But,
unfortunately, it could be the effect of this provision if it
is not amended.
What this amendment proposes is straightforward. The
amendment would limit the information that our government could
give to a foreign government while seeking information from
that government so as to bar the foreign government from
figuring out which of its citizens is seeking asylum in the
United States. The U.S. Government is--would be perfectly free
to seek and obtain information from foreign governments to
properly identify potential terrorist threats, but it must not,
in so doing, reveal information that would enable that foreign
government to figure out which of its citizens are subject to
seeking political asylum here. We must not reveal, in effect,
to the secret police of a foreign government who is defecting--
who is defecting from that tyranny and seeking political asylum
here.
This amendment would leave the government free to obtain
whatever information it needed to determine the bona fides of
the asylum application, to decide whether there is a genuine
freedom seeker or perhaps a terrorist or foreign agent. But, in
so doing, the amendment would protect the genuine, sincere
asylum seeker from being identified to the secret police or
some nasty foreign government and him--not him, but his family
left behind suffering the consequences. I would hope--it is
simply protection that I would hope everyone would agree to.
Chairman Sensenbrenner. The gentleman from Pennsylvania
insist upon his point of order?
Mr. Gekas. We do not.
Chairman Sensenbrenner. The gentleman from Pennsylvania
seek recognition?
Mr. Gekas. I do. I thank the Chair.
We oppose the amendment and ask the Members to vote no. The
current language in the bill effectively removes a bar on the
disclosure of information that the alien is a terrorist. In
other words, what this language does in the bill, which now the
gentleman from New York wants to change, is to allow our
government to disclose that the alien is or is a potential
terrorist. The gentleman's amendment puts back the bar and
prevents our government from disclosing that the alien is a
terrorist. We oppose the amendment.
Mr. Nadler. Would the gentleman yield?
Mr. Gekas. Yeah.
Mr. Nadler. I don't think you are reading the amendment
correctly. The amendment says, information contained in or
pertaining to an asylum application, records pertaining to any
credible feared determination conducted pursuant to section so
and so and records pertaining to any reasonable feared
determination are confidential and shall not be disclosed
without the written consent of the applicant. But section 2 of
the amendment says, the requirement of confidentiality set
forth in paragraph 1 does not prohibit the Attorney General
from requesting or receiving information from other governments
as parts of an investigation to determine whether an alien is
described in section 2, et cetera, of this act provided the
Attorney General does not disclose to an unauthorized person,
A, the fact that the alien is an applicant for asylum or, B,
information, including but not limited to specific facts
sufficient to give rise to an inference that the applicant has
applied for asylum or similar relief.
In other words, it allows the government to get whatever
information it requires. It simply says you cannot tell a
foreign government information that would lead the foreign
government to conclude that so and so is requesting political
asylum in the United States.
I don't know to whom you are talking about disclosing. If
our government concludes that an applicant for asylum is a
terrorist, it simply excludes him. We don't want to disclose
this to the foreign government, which presumably knows it. What
we don't want to disclose to the foreign government is who is
seeking asylum. If the foreign government is sending a
terrorist here, they know it. All that is necessary for our
government to do is to determine whether he is a terrorist or
not.
The amendment specifically says they can get whatever
information they need to make that determination. If our
government determines that an asylum applicant is a terrorist,
foreign agent or whatever, they simply say, no, you can't come
into this country.
Chairman Sensenbrenner. Would the gentleman yield to the
gentleman from Pennsylvania?
Mr. Gekas. I yield to the lady from Texas.
Ms. Jackson Lee. I will wait to strike the last word.
Mr. Gekas. Well, let the lady proceed, and I will set my
own time.
Chairman Sensenbrenner. You already have your time.
Mr. Gekas. I will ask somebody to yield time.
Chairman Sensenbrenner. Gentlewoman from Texas seek
recognition?
Ms. Jackson Lee. I thank the gentleman very much.
I would like to ask my colleagues to consider this
amendment and determine that we are not putting a bar or block
in the midst of information that may be exchanged on the
grounds that an individual is a terrorist. The issue of this
particular amendment is to avoid the broadness of interfering
or putting in jeopardy an innocent asylum seeker.
I think the interesting point that was made is that the
Attorney General himself did not ask for this information or
did not ask for this provision. We do not at this point know
under what conditions a number of the perpetrators, the 19
perpetrators, came into this country. So we don't have a basis
as to whether or not you could attribute that they were here on
the seeking of asylum. Therefore, we are leaping to any
conclusions that we would be helping to thwart terrorism by
providing this broad depth of giving information, therefore
jeopardizing lives not only of the seeker but of the family
members as well.
I think the exception in the section allows for exchange of
information if information is either found out or if someone is
so designated as a terrorist, section 2 on page 53. What we are
simply trying to do is to limit the transfer of information
that would be detrimental to an innocent asylum seeker.
I again emphasize to my colleagues that the immigration
section is a very delicate section because it draws a lot of
attention. Let us immediately close our doors, let us
immediately attribute terrorism to all of those who are under
the immigration laws, and I suggest that that should not be the
case. Immigration does not equate to terrorism, and the only
thing we are trying to do is to eliminate the unwiseness of
sharing this information that would be detrimental to innocent
individuals warranting asylum and warranting the protection of
this country. I would ask my colleagues to support this
amendment offered by Mr. Nadler and several others of my
colleagues and myself.
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia, Mr. Goodlatte, seek recognition?
Mr. Goodlatte. Mr. Chairman, I move to strike the last
word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Goodlatte. I am pleased to yield to the gentleman from
Pennsylvania.
Mr. Gekas. I thank the gentleman for yielding.
I stand on the first statement that I made, in effect that
this amendment calls for the prohibition of disclosure by the
Attorney General to any unauthorized person in the language of
the amendment itself, the fact that the alien is an applicant
for asylum. That goes against--directly against the language in
the bill which does authorize the government in its discretion
to disclose the fact that the alien is an applicant for asylum.
And from what we have gleaned in determining this language, it
does not do harm to the relatives or the other rationale that
the gentleman gave for his amendment. So I ask----
Mr. Delahunt. Would the gentleman yield for a question?
What would be the purpose of the provision in the bill to
disclose to a foreign government that an individual had applied
for an asylum? In your original statement, you mention
terrorism. I don't see where there is any nexus at all between
the information that an individual has applied for asylum and
terrorism. Explain that, if you would.
Mr. Goodlatte. I yield further to the gentleman from
Pennsylvania.
Mr. Gekas. This would permit the government or our side
to--knowing this is a potential terrorist or for other reasons
that it would not be appropriate to grant asylum to disclose
that information.
Mr. Berman. Would the gentleman yield?
Mr. Gekas. Let us do a triple yield.
Mr. Conyers. Would the gentleman yield to me?
It could be that the government would want the applicant's
family bumped off. That is the only reason I can think of.
Mr. Berman. Would you yield further?
Ms. Jackson Lee. Would the gentleman yield?
Mr. Berman. This has no constraint whatsoever on the
ability of our government to get information about the asylum
seeker. The Nadler amendment makes no constraint. It just says,
don't--when you are going, don't tell unauthorized people he is
seeking asylum. Try and get information. When they say why do
you want the information, say maybe because we want to put him
on the watch list. Because we want to indict him. Because we
are concerned. We heard that he might be a terrorist, and we
want to know about it. Don't tell that person--don't tell the
unauthorized person, meaning the foreign government, that this
person who is fleeing from that government is seeking asylum
because then that government in certain situations might well
go to family or close friends of that person who are in the
country and do harm to them.
That is all he says, is don't tell him that he is seeking
asylum. It doesn't constrain what we can get. It only limits
quite narrowly what we can tell the foreign government.
Ms. Jackson Lee. Would the gentleman yield?
Mr. Gekas. Double yield.
Mr. Nadler. I just don't understand one thing. The
government--yes, Mr. Gekas is correct. The amendment would say
that the government can't disclose the information that so and
so is seeking political asylum. My question is, who has
business to know that? The government knows it is seeking
political asylum. The government has to decide whether to grant
it. The government has to find out if his political asylum
claim is valid, if he is a terrorist or narcotics seller or
whatever. It has to gather information. It doesn't have to give
anybody information.
Mr. Goodlatte. Reclaim my time to give the gentleman from
Pennsylvania an opportunity to respond.
Mr. Gekas. I am confused by the assertions that are being
made here. The main language in our bill prohibits the
granting--the information from--bars the asking of this
information or giving this information.
Excuse me. Here we go.
Your amendment, does it not say that the Attorney General
does not--shall not disclose to any unauthorized person the
fact that an alien is an applicant for asylum?
Mr. Nadler. Yes. But it also says he can ask anybody for
information he needs to determine if the guy is a terrorist or
should get asylum or anything else.
Mr. Gekas. Why is it important to you then to force the
Attorney General not to disclose the fact that the alien is an
applicant for asylum?
Chairman Sensenbrenner. The time of the gentleman from
Virginia, who has been very blissfully silent, to the
appreciation of everybody, has expired.
The gentleman from Massachusetts, Mr. Frank.
Mr. Frank. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. I would implore my friend from Pennsylvania to
look at this. I don't think he has a problem with this
amendment.
Let me put it this way. We have a policy part in this
government known as ``don't ask, don't tell'', which I don't
like. What the gentleman from New York is now proposing is a
different policy. It is, ``ask, don't tell''.
We have an asylum process. The gentleman from Pennsylvania
says, well, you have got to be able to tell the person deciding
on the asylum whether he is a terrorist or not. That is not
affected by the amendment.
It is, after all, the American government--we are talking
about a potential asylee who is in America or somewhere where
he has access to the American government. All this amendment
says is that the American government may ask of that host
government or any other government in the world, do you know
anything bad about this person? Do you know anything that I
should know about him? All the amendment says in that process,
do not disclose to other people, presumably the host government
where the person is fleeing, that he is trying to get asylum
here.
No one who is empowered to make the decision on whether or
not the person is eligible for asylum is denied any of the
necessary information by this amendment. This amendment doesn't
say that the Justice Department can't talk to Treasury, et
cetera, et cetera. The decisionmaker about whether or not the
individual gets asylum in the U.S. Is not in any way
constrained from information here.
All this amendment says is--I realize it is worded in a
complex way, but all it says is, get whatever information you
need about this individual from any source anywhere, but please
don't--don't give away the fact that he or she is an applicant
for asylum. Because in case the person isn't a terrorist and we
do grant them asylum, you may not want to tip that government
off.
It does not prevent the United States government
decisionmakers from getting one iota of the information they
need to turn down the asylum. All it says is, in the process of
gathering information from foreign governments from anybody you
want to, go ahead and find out if this person should be turned
down and make the decision. Just don't tell the government that
might have an animus against that person where he still might
have family that he has applied for asylum.
Mr. Gekas. Doesn't it come down to a policy decision as to
whether we owe the foreign government the----
Mr. Frank. That is the policy decision. And here is the
question----
Mr. Gekas. It is inherent in the main act.
Mr. Frank. First of all, be very clear, this does not
affect the information we get to decide whether or not the
person is a terrorist. So the gentleman says, do we owe it to
the government? Well, it depends on which government. Do we owe
the government of Iraq anything or the government of Iran?
Mr. Gekas. That is what the Attorney General has to decide.
Mr. Frank. What we are saying is, as a matter of policy, if
someone is applying for asylum, we do not think you should give
that away. If in fact the person turns out to be eligible for
asylum--after all, this comes at an early point before we
know--and the gentleman believes and we all have worked--if
someone applies for the asylum procedure, they ask, as they are
entitled to under this amendment, whether or not there is
anything bad. Nothing bad comes forward, and we grant the
person asylum.
Wouldn't it have been a good idea to have told his host
government in advance that he was applying for the asylum? If
he is turned down for asylum, then there is no problem. But the
question is, pending the application, pending the decision,
should we put that person or people close to him or her at risk
by disclosing to the host government the individual has applied
for asylum?
I would yield.
Mr. Gekas. I am bound a little bit by the thrust of the
Administration's offer here on the proposed bill that the
Attorney General should have----
Mr. Frank. Let me say that I think binding yourself to
somebody else's thrust is not always a good idea. I mean, the
point is, I understand the Administration asked that----
Mr. Gekas. They didn't ask for it.
Mr. Frank. The point is this----
Chairman Sensenbrenner. The time belongs to the gentleman
from Massachusetts, and he has our undivided attention.
Mr. Frank. The gentleman from Pennsylvania would say--and
we are working with the Administration, but it is not a good
idea to say that until the Administration signs off on
something we can't accept it. My guess is I don't think they
anticipated this. They were, I think, interested in making sure
they got all the information they needed. I don't believe that
this Administration feels that it is important for them to be
able to tell a host government from which someone is applying
for asylum that that person is applying for asylum.
I yield to the gentleman from New York.
Mr. Nadler. A number of years ago----
Chairman Sensenbrenner. For what purpose does the gentleman
from Texas seek recognition?
Mr. Smith. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. Mr. Chairman--and I will be very brief. To me,
the biggest problem with this amendment--and I am looking at
the words under section (E)(2) that provide the Attorney
General does not disclose to any unauthorized person that the
alien is an applicant for asylum. The problem here is there are
going to be many foreign countries who, unless you tell them
that the individual has applied for asylum, are simply not
going to be willing to give us the information the Attorney
General needs as to whether the individual who has applied is a
terrorist or has terrorist connections or not.
The reason for that is that many foreign countries have
very strict privacy codes, and they would be prohibited from
giving us that information. So the whole rationale is to allow
the foreign countries to have us a reason to give us the
information that we need, and that is a major flaw in this
amendment.
I yield back the balance of my time.
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia, Mr. Scott, seek recognition?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. I yield to the gentlelady from Texas.
Ms. Jackson Lee. I thank the gentleman from Virginia.
There are two major points here--probably several major
points. First of all, Barney had ask and tell. This is fishers
of men and women. This is throwing a vast net to get every
single person that is applying for asylum. And so the--and that
is what the bill does as presently written.
At the same time, in contrast, where we are trying to go,
which is to give law enforcement additional tools, it gives the
Attorney General no enhanced investigatory tools. The Attorney
General can get all of the information that he or she desires
in the present--without this particular expansion. But what it
does do is the sacredness that we hold to asylum seekers in
general, which is that they are coming here out of a--both
impression and reality of oppression and the need for safety,
we are now throwing this vast net to say that you have the
option of doing this for every single asylum seeker. We don't
even have a criteria.
What we are suggesting is that that is too broad, and you
do nothing to enhance the investigation that we are attempting
to do which is to find terrorists and bring them to justice.
Find terrorists and bring them to justice. So I am not sure,
Mr. Gekas, and I would be willing to yield, what we get out of
this particular amendment. Who is to say that any foreign
country is going to want to give you information for someone
who is seeking asylum or is going to be advantaged to you in
your investigation?
What we are trying to do here, as I understand it, is give
tools to be able to weed out terrorists and to prevent
terrorists' acts. I cannot see where this might do so in
jeopardizing those innocent individuals, vast numbers of
individuals and their families who may be seeking asylum.
My time----
Chairman Sensenbrenner. Gentleman from Virginia.
Mr. Scott. I yield to the gentleman from Pennsylvania.
Mr. Gekas. All I am trying to do here is to give the
benefit of the doubt to the Attorney General where this Nadler
amendment prevents him from disclosing that the alien is an
applicant for asylum. I am giving the Attorney General the
benefit of the doubt to make that judgment in his discretion.
That is what I am upholding here, and that is why I asked the
Members to vote no on this amendment.
Mr. Scott. I yield to the gentleman from New York.
Mr. Nadler. Thank you.
Mr. Chairman and Members of the Committee, certain things
ought to be protected. In the 1960's, Simas Kudirka, a
Lithuanian seaman, defected from the Soviet Union in the port
of New York or Boston; and because of rather shameful actions
by our government, he was handed back to the Soviet Union. And
I think he died in the gulag, as a result of which a future
Secretary of State, Henry Kissinger, said we would never do
that again.
What this amendment attempts to do is very analogous to
that situation. You cannot always trust every future Attorney
General or Deputy Attorney General or consul to make the right
decision. What this says is, get whatever information you need
to make the decisions with respect to political asylum, but
don't tell the Soviet Union, don't tell the Ayatollahs who from
their country is seeking to defect to the United States so they
can arrange the murder or torture of his relatives. That
doesn't make sense.
We have--the United States Government has to make the
decision, is this a real, sincere, bona fide applicant for
asylum to whom we will grant asylum or is this someone we don't
trust, to whom we won't grant asylum? If we make that decision,
we will go back. But we shouldn't tell.
This amendment inhibiting in any way the ability of the
Secretary of State or whoever to get whatever information he
needs, all we are saying is you can't tell the secret police of
that foreign government that so and so is applying for
political asylum, just as we should not have--not only return,
we should never have informed the Soviet Union who was applying
for a political asylum so that their relatives went to the
gulag.
Ms. Lofgren. Would the gentleman yield for a question?
Mr. Gekas. The only question I ask, are there no
circumstances under which the Attorney General should give the
information that you would bar?
Mr. Nadler. The problem is this. No, there aren't; and I
will tell you why. If someone is seeking to move to the United
States from England and we want to ask England if this guy is a
terrorist, he is not going to be applying for political asylum.
He is going to be applying for regular immigration.
Mr. Bachus. Mr. Chairman.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Bachus. Mr. Chairman.
Chairman Sensenbrenner. Gentleman from Alabama, Mr. Bachus.
Mr. Bachus. Mr. Chairman, where did 205(B) come from? I
mean, it hasn't been in any earlier drafts. I don't know if
anybody has asked that question.
Ms. Jackson Lee. Would the gentleman from Alabama yield?
Mr. Bachus. I don't know if this was something the
Administration requested.
Ms. Jackson Lee. Would the gentleman yield?
Chairman Sensenbrenner. If the gentleman will yield, the
Administration did not request 205(B).
Mr. Bachus. What I am suggesting, we can take care of the
whole problem by striking 205(B).
Chairman Sensenbrenner. The question is on the Nadler
amendment. Before----
Ms. Jackson Lee. Would the gentleman yield?
Chairman Sensenbrenner. The time belongs the gentleman from
Alabama.
Mr. Bachus. I will yield.
Ms. Jackson Lee. Your question, is what we were trying to
answer? And, as I said, I think our point is here we want to
give the kind of investigatory needs that the Attorney General
has. But let me refer you to 8 CFR 208.6. The Attorney General
has those powers if he or she needs them--emergency powers and
that can be utilized. So my colleagues, without them asking for
it----
Mr. Nadler. Would the gentlelady yield?
Mr. Bachus. I am just going to suggest striking 205(B).
Anybody opposed to striking 205(B)?
Chairman Sensenbrenner. Does the gentleman want to offer
that as an amendment to this amendment?
Mr. Bachus. I offer that as an amendment to this amendment.
Ms. Jackson Lee. I would accept it as----
Chairman Sensenbrenner. Without objection, the amendment to
the amendment is agreed to. So now the amendment is striking
section 205(B). The question is on the Nadler amendment as
modified by the Bachus modification. Those in favor will
signify by saying aye. Those opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment as modified is agreed to.
Further amendments to title II? The Chair, on behalf of
himself and Mr. Conyers, now offers a manager's amendment; and
the clerk will report the amendment.
The Clerk. Manager's amendment to H.R. 2975.
Mr. Conyers. Mr. Chairman, I ask that the amendment be
considered as read.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendments follow:]
Chairman Sensenbrenner. The Chair will yield to the
gentleman from Michigan to discuss what is in the manager's
amendment.
Mr. Conyers. Ladies and gentlemen of the Committee, I want
to thank the Chairman, both our staffs and you for considering
seven additional proposals that will shorten our work for this
evening considerably.
The first consideration in the second manager's amendment
has been a provision worked out between ourselves and the
Department of Justice to craft an amendment to the bill's
extra-territoriality provision to ensure that it contains
safeguards passed by this Committee last year. So we continue
these provisions into the present legislation.
Second is the amendment that deals with survivor benefits
for public safety officers, which is increased from $100,000
per family to $250,000 per family is included.
Third, the Keller amendment, which would study the
feasibility of sharing law enforcement information about
terrorists with airlines, is included therein.
Fourth, the gentleman from Georgia Mr. Barr's amendment
limits decisionmaking to high-ranking Department of Justice
officials for the purpose of ensuring public accountability.
Number five, another Barr amendment, which is entitled
Public Safety Officers Quality Assurance Provision, which
enhances the ability of private security companies to conduct
background checks on prospective employees, this has already
passed the Committee and the House unanimously in previous
Congresses.
Six, the Cannon of Utah provision entitled Justice for
Victims of Terrorism, which would enhance the ability of
victims of terrorism to collect money from states that sponsor
terrorism. This provision also passed the Committee and the
House unanimously last year.
Finally, the Nadler-Jackson Lee amendment on indefinite
detention, which would require the Attorney General to
demonstrate every 6 months that a person being detained after
removal proceedings are completed is being detained to protect
the national security of the United States or the safety of our
communities.
This, ladies and gentlemen, contains the essential seven
provisions in the second manager's amendment; and I implore
your considered support.
Chairman Sensenbrenner. Reclaiming my time, let me say that
is as a result of a bipartisan effort that has been worked out
by the staffs on both sides. One of the purposes of this is to
shorten the time that we are all here, and I would urge the
Members to speedily adopt this amendment and yield back the
balance of my time.
For what purpose does the gentleman from Virginia seek
recognition?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. Gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I would like to ask Mr. Cannon, on
his amendment involving terrorist judgments, is that similar to
the bill we had allowing victims to sue foreign governments in
the United States and get a judgment last year?
Mr. Cannon. I think what the gentleman is referring to is
the bill we passed out of this Committee last year, and I
believe this is virtually identical to that bill.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, to save time, I would just announce that if a
separate vote were taken, I would oppose this particular
amendment. And yield back the balance of my time.
Chairman Sensenbrenner. Okay. The question is on the----
Ms. Jackson Lee. Mr. Chairman----
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas seeks recognition?
Ms. Jackson Lee. To make an inquiry as well.
First of all, to Mr. Cannon, I believe this is an
initiative that is impacting some constituents in my district.
This will allow that if there is an action that you have
against or a judgment that you may have received in a foreign
country, you get to enforce it here or a foreign country?
Mr. Cannon. This bill allows you to enforce it here against
assets that are frozen by the United States.
Ms. Jackson Lee. Against assets that----
Mr. Cannon. Have been frozen by the United States.
Ms. Jackson Lee. You have access as a United States citizen
for an injury caused by a foreign government in a foreign land?
You have access to assets here in the United States?
Mr. Cannon. That are assets frozen of the terrorist state
which are not currently available for execution.
Ms. Jackson Lee. And so if you have been injured by that
terrorist state and have a judgment or a proceeding in our
courts, you have access to those assets?
Mr. Cannon. That is correct.
[The prepared statement of Mr. Cannon follows:]
Prepared Statement of the Honorable Chris Cannon, a Representative in
Congress From the State of Utah
Mr. Chairman,
Let me first thank you and the ranking member for all your hard
work on the legislation before us. The Sensenbrenner-Conyers ``PATRIOT
Act'' is the product of much bi-partisan discussion and compromise over
the last two weeks, and I am pleased to be an original co-sponsor.
However, one important change in the law to fight terrorism and
compensate its victims was not included.
I am offering an amendment today to allow access to the frozen
assets of terrorist sponsor states for American victims of
international terrorism who obtain judgments against those terrorist
sponsor states.
This Committee and Congress have passed virtually identical
legislation three times that would allow Americans who are victims of
terrorist acts to sue the state-sponsors of terrorism for compensation
from their frozen assets. Most recently in the 106th Congress we passed
this legislation, then known as H.R. 3485 by Rep. McCollum, on voice
vote in June of 2000. The legislation passed the House floor on
suspension of the rules in July, 2000. I would be happy to provide a
more lengthy legislative history of this provision to any Members who
are interested.
Congress has repeatedly stated its intent that victims of terrorist
activities should be compensated from the blocked assets of terrorist
sponsoring states. However, despite that intent, a few lower-level
bureaucrats at the State Department have refused to release these funds
to victims' families even after they have been awarded compensation.
Under current law, Americans who have been victimized by state-
subsidized terrorism and are eligible to enforce court judgments
against the assets of a terrorist state have had to essentially hire
lobbyists and write special legislation to receive their awarded funds.
Some victims have gotten compensated. Many have not.
That is bad policy. American victims deserve better.
Now we are faced with the specter of thousands of family members
whose loved ones died in the September 11th attacks being unable to get
just compensation. Congress must act again to fix this situation
permanently.
Under My Amendment:
(1) LAmerican victims of state-sponsored international terrorism
will all have equal access to the courts and to blocked assets. A small
but important token of justice. Nobody will be entitled to mandatory
payments--the President's discretion is preserved. On an asset by asset
basis the President can continue to hold certain assets from judgment
if necessary for national security or diplomatic purposes.
(2) LWe impose immediate financial costs on states that sponsor
terrorism. Freezing assets for 20 years and giving them back to
terrorist states does not impose such costs. At present, terrorism is a
cheap way to pursue war against Americans. Unless the US finds ways to
make it more costly, terrorists (and states which sponsor terrorism)
have no economic incentive to stop. By imposing a direct and immediate
cost, this amendment represents one effective financial tool against
terrorists and also helps their victims.
(3) LTerrorist sponsor states will no longer be able to use their
diplomatic and intelligence agencies and state owned enterprises to
support terrorists with financial impunity. Currently, terrorism
sponsoring states use their wholly owned and controlled agencies and
instrumentalities to raise, launder and distribute funds to terrorist
cells, sometimes even within the US! Ironically, these agencies and
instrumentalities can claim ``foreign sovereign immunity'' against
victims and US courts because of their relationship with the terrorist
sponsoring states. By exposing these agencies and instrumentalities to
liability, the US can further increase the cost of sponsoring terrorism
and go after the sources of funding for these organizations and cells.
Let me say in closing, the United States will most certainly make
the terrorists responsible for the attacks of September 11th pay for
their acts.
By passing our amendment, we will also make states that sponsor
terrorists pay a financial price for their actions--and that price will
be paid to their victims.
I yield back my time.
Ms. Jackson Lee. Let me thank you very much. And let me
finally conclude by thanking the bipartisan effort for helping
us to eliminate the indefinite suspension, which was something
that none of us would want to support.
I yield back.
Chairman Sensenbrenner. The question is on the second
manager's amendment. Those in favor will signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Further amendments to title II? The gentlewoman from
California, Ms. Lofgren.
Ms. Lofgren. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 2975 offered by Ms. Lofgren.
Ms. Lofgren. I ask unanimous consent that the amendment be
considered as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. Mr. Chairman, although this is hard work for
us all, I think we have achieved a lot, not only today but in
the last week. And I want to thank not only Mr. Conyers but
yourself for the leadership that you have shown in putting a
team together to work through these very difficult issues.
I also wanted to take a moment to thank the staffs, both
the majority and the minority staff, as well as the Justice
Department and White House and others. I think they have worked
so hard and really done a good job, and I just wanted to take a
chance to thank them and appreciate them.
This bill does make some changes that we are prepared to
make. I am a cosponsor of the bill. And part of the fail-safe,
if you will, is that we have put sunset provisions in title I.
Now that doesn't mean that we are going to let these provisions
go away, but it is going to force the Congress to review how it
is worked and to see if there are problems and to fix the
problems if we discover them. I think all of us feel good about
that mechanism to make us really look at this if something
turns out in a way that is unanticipated. We don't need a
sunset clause in order to do that, but I think it is probably
useful to make us do it. And, therefore, this amendment would
put the same sunset clause on title II as was in place in title
I with the exception of 206, which is the protection of the
northern border provisions that obviously doesn't need the same
kind of review.
I hope we can adopt this so it will help us with the
discipline we will need to review this section of the act along
with the others, although, as I discussed with some Members, we
don't have to have this adopted in order to review this in 2
years time.
I will not proceed further. I think it is a simple
amendment, and I yield back the balance of my time.
Chairman Sensenbrenner. The Chair will recognize himself in
opposition to the amendment.
I believe that there is an essential difference between the
sunset that is contained in title I, which largely involves
electronic surveillance and all that we have talked about
during our debate on title I, and the changes in title II
relative to the immigration status of persons who are
affiliated with terrorist organizations.
Chairman Sensenbrenner. The sunset title I allows the
Congress and this Committee and our counterpart in the other
body specifically to review whether Federal agencies have
complied with the law and whether they have had appropriate
disciplinary action for rogue agents that may have strayed from
the guarantees contained in the Constitution, in the laws; and
I think that it is important that there be a review outside the
Justice Department on whether the Justice Department has
fulfilled the mandates under the law.
With aliens who are allegedly or are suspected to be
affiliated with terrorist organizations, there really isn't a
review that we can do on that, and they aren't going to change
their inclination and what type of terroristic acts they plan
on committing in the United States at the stroke of 12:00 on
December 31th in the year 2003. So I believe that there is
justification for having these changes made permanent, because
as the President has said, we are in this for the long haul.
Terrorism is not going to go away. We are not dealing with
the behavior, or alleged misbehavior, of employees and agents
at the Federal Government. Here, we are dealing with who is
admissible to the country, who can stay in the country, and if
they are affiliated with terrorist organizations. I don't think
we want them here, and we should not allow the clock to run out
on that.
So I would urge the Members of the Committee to reject this
amendment, even though it is very well intentioned, and I yield
back the balance of my time.
The question is on the Lofgren amendment. Those in favor
will say aye.
Opposed, no.
The noes appear to have it. The noes have it. The Lofgren
amendment is not agreed to.
Are there further amendments?
The gentleman from New York, Mr. Weiner.
Mr. Weiner. Thank you, Mr. Chairman. I have an amendment at
the desk.
[The amendment follows:]
Chairman Sensenbrenner. The Clerk will report the
amendment.
A point of order is reserved by the gentleman from Texas,
Mr. Smith.
The Clerk. Mr. Chairman, there are two--Weiner 01.
Chairman Sensenbrenner. Weiner 01, and the clerks will
distribute Weiner 01.
The Clerk. Amendment to H.R. 2975 offered by Mr. Weiner. At
the end of subtitle A of title----
Mr. Weiner. I ask that it be considered as read, Mr.
Chairman.
The Clerk.--insert the following and amend the----
Mr. Weiner. Mr. Chairman, I move the amendment be
considered as read.
Chairman Sensenbrenner. Without objection, so ordered. And
the gentleman is recognized for 5 minutes, subject to the
reservation of the gentleman from Texas.
Mr. Weiner. Thank you, Mr. Chairman.
Mr. Chairman, we had a real problem in this country with
the student exchange visitor system that we have. Between 1999
and 2000, the State Department issued more than 3,300--almost
3,400 student visas from countries that are on the U.S.
terrorism watch list, and we have seen the results of the fact
that we have no way of knowing where many of those--where many
of those students are, what movement they have had within or
without the country, any change of academic status that they
might have had, any disciplinary action that might have been
against them, any crimes that they might have committed while
here in the United States.
In 1996, this Congress tried to get a handle on this by
creating a system, the Student and Exchange Visitor Information
System, to track this information. It has been implemented at a
woefully slow rate of speed; and unfortunately, on September
11th, we saw that the gaps in the system exist. Hani Hanjour,
believed to be one of the hijackers on the flight that hit the
Pentagon, was in the country on a student visa that allowed him
to study English at Holy Names College in Oakland, California.
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Weiner. Certainly I will, sir.
Chairman Sensenbrenner. This amendment is a winner, and I
would urge the Committee to adopt it and would urge the
gentleman from Texas to withdraw his reservation. If he makes a
point of order, it will be overruled.
Mr. Smith. Mr. Chairman, I just withdrew my point of order.
Chairman Sensenbrenner. Point of order is withdrawn.
Mr. Weiner. Well, Weiner can spot a winner, so he yields
back the balance of his time.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from California seek recognition?
Ms. Lofgren. To strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. On the amendment that--for Mr. Weiner, we--as
we all know, we have a provision in this, and Mr. Weiner has
referenced, in current law that has not been implemented. It
has gotten extensions.
There is no way we would ever extend it again, but I also
think we need to draw the attention of the appropriators of
this issue, because part of the problem on this implementation
is that there hasn't been financing to implement it. And I am
not opposed to fee-driven implementation, but I have no idea
whether that is actually adequate to implement it.
So I just wanted to raise that issue and to see whether we
couldn't get some action from the Appropriations--to the
appropriator for this purpose, which is enormously important. I
yield back the balance of my time.
Mr. Frank. Mr. Chairman.
Chairman Sensenbrenner. For what purpose----
Mr. Frank. Strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. Mr. Chairman, we work long hours and sometimes
our attention is bad, and I apologize, but I would like to go
back to the amendment of the gentleman from New York because I
have read it and I do have some questions about it.
It says, ``In the case of an alien who is a national of a
country, the government of which'' . . . ``has repeatedly
provided support for acts of international terrorism, the
Attorney General may impose on, and collect from, the alien a
fee greater than imposed other aliens.''.
I apologize if we raised this before, but what if--if there
is no nexus between the alien, the student and the policies of
the government, are we impugning every student from a
particular country?
So I would yield to the gentleman from New York.
Mr. Weiner. I think what my amendment seeks to acknowledge
is that there is heightened attention paid to students that
come here from places like Iran, whether we think that is a
good thing or bad thing--and I think it is a good thing--that
added attention and added reporting requirements that might be
necessary and added enforcement activities warrant having
higher fees coming from the----
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Weiner. I will.
Chairman Sensenbrenner. I note that the gentleman from New
York's amendment is permissive. It says the Attorney General
may impose a higher fee. That means that if you have a student
from Afghanistan who is anti-Taliban, the Attorney General can
impose a lower fee, but if you have a pro-Taliban student, the
Attorney General can sock it to him.
Mr. Frank. Mr. Chairman, I must say I think I probably
would have voted against this if I hadn't not been paying
attention, which is partly my fault--mostly my fault; but I
would hope that at least we would make a record of what the
Chairman had said and that it would be in the report that there
is no automatic imputation of the sins of the government to the
student and that----
Chairman Sensenbrenner. The gentleman will further yield?
Mr. Frank. Let me finish.
--in that absence, some showing that there was some
predisposition that we wouldn't be doing that.
Now I would yield.
Chairman Sensenbrenner. The staff is directed to have the
report so state, should this amendment be adopted.
Mr. Frank. I thought it was already adopted.
Chairman Sensenbrenner. No.
Mr. Weiner. You really weren't paying attention, were you,
Barney?
Mr. Frank. I thought that you had adopted it. Well, then, I
take most of what I said back that was procedural, nothing
substantive, and even--I would speak against it, the problem of
penalizing the student, that this is discretionary.
It may well be, but when we are talking about students who
are coming from governments that are pretty unattractive
governments and requiring the student to speak out against it,
it could be a problem.
I understand, looking at visas and looking at why people
come here, but literally what this does is it gives discretion
to the Attorney General to visit the sins of the government on
the students.
I know we say it may cost a little more money, but
obviously we are not doing this because of the fiscal impact,
and I think it has an unfortunate effect. Many of these
students are being twice victimized. They are being victimized
by living in the country----
Mr. Weiner. Would the gentleman yield? In fact, I would say
to the gentleman that it was partially a fiscal analysis on
figuring out a way to pay for the fact that I think the program
should be accelerated, and that is the basis of what the
amendment does. And what we are seeking to do is exactly what
the Chairman said, offer as a possibility of the way to fund
this, to say that, look, if you had added expenses tracking
down countries because of the nation that they came from, which
is a reasonable thing, that the Attorney General has the
ability----
Mr. Frank. But here is the problem with that, and that is,
the cost is incurred--when you are checking on a student, what
if you find out that this is not a student who is a problem.
They still have incurred the cost, and if the rationale is cost
recovery, then an innocent student could be the occasion for
cost recovery, because you have got to look at them.
It seems to me we are singling out individuals from
countries because they are bad countries, and I wish we would
stick to the bad countries. If the individual shouldn't be let
in, that is a visa issue; but if the individual passes muster
and he is not in money laundering and these other things, I
really don't see any reason why we should single him or her out
for a higher fee. Then when you say we are telling the FBI----
Ms. Lofgren. Would the gentleman yield?
Mr. Frank. I would yield.
Ms. Lofgren. I can understand the--Mr. Weiner's rationale
that if there is additional scrutiny, you need to pay for it,
but as I am listening to this debate, singling out student
visas, what about B-1 visas? What about J visas?
I think we should work on this between now and the floor to
make sure that we have got a system that works. And I yield
back.
Chairman Sensenbrenner. The question is on the Weiner
amendment. Those in favor will signify by saying aye.
Opposed, no.
The noes appear to have it.
Mr. Weiner. I ask for a recorded vote, reluctantly.
Chairman Sensenbrenner. A recorded vote is requested.
Mr. Frank. You are going to have to pay the stenographer's
fee for this recorded vote.
Mr. Cannon. Would the Chairman consider another oral vote
so we can have more clarity?
Chairman Sensenbrenner. Okay. Without objection, the
previous vote is vitiated.
Hearing none, so ordered.
Mr. Frank. I reserve the right to object, Mr. Chairman. Let
us have the record vote.
Chairman Sensenbrenner. We will have a record vote if the
gentleman from Massachusetts insists. Those in favor will as
your names are called answer aye. Those opposed will vote no.
The question is on adoption of the Weiner amendment, and
the Clerk will call the roll.
The Clerk. Mr. Hyde.
Mr. Hyde. Aye.
The Clerk. Mr. Hyde votes aye.
Mr. Gekas?
[No response.]
The Clerk. Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble votes aye.
Mr. Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith votes aye.
Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Bryant.
Mr. Bryant. Aye.
The Clerk. Mr. Bryant votes aye.
Mr. Chabot?
[No response.]
The Clerk. Mr. Barr.
Mr. Barr. Aye.
The Clerk. Mr. Barr votes aye.
Mr. Jenkins.
Mr. Jenkins. Yes.
The Clerk. Mr. Jenkins votes aye.
Mr. Cannon.
Mr. Cannon. Aye.
The Clerk. Mr. Cannon votes aye.
Mr. Graham?
[No response.]
The Clerk. Mr. Bachus.
Mr. Bachus. Pass.
The Clerk. Mr. Bachus passes.
Mr. Hostettler.
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler votes aye.
Mr. Green.
Mr. Green. Aye.
The Clerk. Mr. Green votes aye.
Mr. Keller.
Mr. Keller. Aye.
The Clerk. Mr. Keller votes aye.
Mr. Issa.
Mr. Issa. Aye.
The Clerk. Mr. Issa votes aye.
Ms. Hart.
Ms. Hart. Aye.
The Clerk. Ms. Hart votes ayes.
Mr. Flake.
Mr. Flake. Aye.
The Clerk. Mr. Flake votes aye.
Mr. Pence.
Mr. Pence. Aye.
The Clerk. Mr. Pence votes aye.
Mr. Conyers.
Mr. Conyers. No.
The Clerk. Mr. Conyers votes no.
Mr. Frank.
Mr. Frank. No.
The Clerk. Mr. Frank votes no.
Mr. Berman.
Mr. Berman. No.
The Clerk. Mr. Berman votes no.
Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler.
Mr. Nadler. Pass.
The Clerk. Mr. Nadler passes.
Mr. Scott.
Mr. Scott. No.
The Clerk. Mr. Scott votes no.
Mr. Watt.
Mr. Watt. No.
The Clerk. Mr. Watt votes no.
Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren votes aye.
Ms. Jackson Lee? Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters.
Ms. Waters. No.
The Clerk. Ms. Waters votes no.
Mr. Meehan.
Mr. Meehan. No.
The Clerk. Mr. Meehan votes no.
Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler votes aye.
Ms. Baldwin.
Ms. Baldwin. No.
The Clerk. Ms. Baldwin votes no.
Mr. Weiner.
Mr. Weiner. Aye.
The Clerk. Mr. Weiner votes aye.
Mr. Schiff.
Mr. Schiff. Pass.
The Clerk. Mr. Schiff passes.
Mr. Chairman.
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there additional Members who
wish to record or change their votes?
The gentleman from California?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Chairman Sensenbrenner. The gentleman from Ohio.
Mr. Chabot. Aye.
Chairman Sensenbrenner. The gentleman from Virginia.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Chairman Sensenbrenner. The gentleman from New York.
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye.
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. Aye, Mr. Chairman.
Chairman Sensenbrenner. Mr. Schiff was that an aye?
Mr. Schiff. Yes.
The Clerk. Mr. Schiff, aye.
Chairman Sensenbrenner. Further Members--the gentleman from
Tennessee.
Mr. Jenkins. Am I recorded?
Chairman Sensenbrenner. Is the House Member from Tennessee,
Mr. Jenkins, recorded?
The Clerk. I don't have Mr. Jenkins recorded.
Mr. Jenkins. Yes.
The Clerk. Aye. Mr. Jenkins, aye.
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye.
Chairman Sensenbrenner. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Chairman Sensenbrenner. Are all Members recorded correctly?
If so, the Clerk will report.
The Clerk. Mr. Chairman, there are 25 ayes and 8 nays.
Chairman Sensenbrenner. The amendment is agreed to.
Further amendments to title II?
Ms. Jackson Lee. I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment, and could the gentlewoman designate which of her
many amendments she is offering now?
Ms. Jackson Lee. Thank you. I am not sure how to designate,
but it deals with the Federal courts and the ability to file in
Federal courts.
Chairman Sensenbrenner. The Clerk will report the
amendment.
Ms. Jackson Lee. Judicial review.
Chairman Sensenbrenner. If the gentlewoman from Texas can
inform the Clerk what the number in the top left-hand corner
is, the Clerk will be able to correctly report her amendment.
Ms. Jackson Lee. 003.
The Clerk. Thank you.
Mr. Chairman, I don't have 003.
Chairman Sensenbrenner. None of the clerks have amendment
003. Would the gentlewoman from Texas like to try again with
another amendment?
Ms. Jackson Lee. No. I am going to wait until they find it.
Chairman Sensenbrenner. Okay. Further amendments to title
II? Are there further amendments to title II? If not, title II
is closed.
Ms. Jackson Lee. Mr. Chairman, there are further amendments
to title II.
Chairman Sensenbrenner. Well, nobody offered amendments to
title II.
Ms. Jackson Lee. I cannot--I am trying to get the Clerk--I
have a number of them there. What am I supposed to do?
I can read them out and they can find them. 007.
Chairman Sensenbrenner. Would the gentlewoman yield? Do you
have a copy of your amendment?
Ms. Jackson Lee. I would be happy to yield, and I have
copies here for them to review if they would desire to do so.
Chairman Sensenbrenner. The Clerk does not have 003. I
offered to allow the gentlewoman from Texas to----
Ms. Jackson Lee. 007.
Chairman Sensenbrenner. Okay. Without objection, the
closure of title II will be vitiated.
For what purpose does the gentlewoman from Texas seek
recognition?
Ms. Jackson Lee. I have an amendment 007. I have a number
of amendments.
Chairman Sensenbrenner. The Clerk will report Ms. Jackson
Lee's 007.
Ms. Jackson Lee. I thank the Chairman.
[The amendment follows:]
The Clerk. Amendment to H.R. 2975 offered by Ms. Jackson
Lee of Texas.
In section 206(3) of the bill, strike ``making''----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read, and the gentlewoman from Texas will be
recognized for 5 minutes.
Ms. Jackson Lee. Thank you, Mr. Chairman. I hope I will not
take the full 5 minutes.
This is an important step that this legislation has taken,
and that is to recognize the importance of strengthening the
law enforcement responsibilities, as well as the law
enforcement tools at the Canadian border.
Certainly we have been friends of both our----
Chairman Sensenbrenner. Would the gentlewoman yield?
Ms. Jackson Lee. I would be happy to yield.
Chairman Sensenbrenner. We are prepared to accept this
amendment.
Mr. Conyers. Would the gentlewoman yield?
Ms. Jackson Lee. I will be happy to yield.
Mr. Conyers. We feel this is a very important amendment,
and we would accept it.
Ms. Jackson Lee. Well, I thank you very much, and if I
could just conclude, I thank the both the Chairman and the
Ranking Member.
This is to give more detail and more direction to the kind
of technology and the kind of coordination that should go on
between Canada and the United States, between the Canadian
police, the Federal Bureau of Investigation and the kind of
technology that should be used. And I thank the gentleman for
accepting it, and I yield back my time.
Chairman Sensenbrenner. Okay. The question is on Jackson
Lee 007. Those in favor will signify by saying aye.
Those opposed, no.
The ayes appear to have it. The ayes have it and the
amendment is agreed to.
Ms. Jackson Lee. I have another amendment, Mr. Chairman.
Chairman Sensenbrenner. Are there further amendments to
title II?
Ms. Jackson Lee. 003.
Chairman Sensenbrenner. Does the Clerk have 003?
The Clerk. No, Mr. Chairman. We don't have 003.
Chairman Sensenbrenner. The Clerk does not have 003.
I am informed that the Democratic photocopier is broke
because it has blown a fuse, burnt too many amendments.
Would you like to use ours?
Okay. Mr. Conyers will be writing them out in longhand.
Without 003, does the gentlewoman from Texas have another
amendment?
Ms. Jackson Lee. Yes, 174
[The amendment follows:]
Chairman Sensenbrenner. Does the Clerk have 174?
The Clerk. Yes, sir.
Chairman Sensenbrenner. The Clerk will report amendment
174.
The Clerk. Amendment to H.R. 2975 offered from--offered by
Ms. Jackson Lee of Texas. ``at the end of subtitle A of title
II of the bill, insert the following: Section'' blank, ``Study
on Targeting Individuals for''----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and the gentlewoman from Texas is recognized
for 5 minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
This has been a trying couple of weeks for all of us who
have tried to balance the respect for diversity, the respect
for the recognition of the contributions that immigrants who
come from all parts of the world make to the United States.
The President has been uniquely forthright in indicating
that this effort and tragedy is not an attack on the Islamic
faith. It is not an attack on Muslims. It is not an attack on
people of certain parts of the world.
As we ensure that our borders are safe and as we ensure
that our communities are safe, I believe it is extremely
important for us to turn words into action to ensure that there
is no special emphasis on those of a particular heritage in
terms of being stopped at places where there is enhanced
security.
This is a simple request for there to be a study at the
point of inspections under section 235 of the Immigration and
Nationality Act and to determine whether there is targeting
based on race ethnicity or gender because of suspicion that the
individual may be inadmissible under our Immigration and
Nationality Act and to provide a report. This is to give
credence to the comments being made by our President.
We all know that there have been terrible incidents that
don't relate particularly to targeting, but we do know that
there have been stoppings and that we found that individuals
have been completely innocent. We want to give the tools to the
Attorney General to be able to enforce the tools that he has or
to enforce against those who are involved in terrorist
activities, but we also want to protect the innocent; and I
would ask my colleagues to support this amendment.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
While we in the Congress want to eliminate all forms of terrorism,
and give law enforcement officers the appropriate tools to accomplish
this goal, it is vitally necessary that it be done in a fair,
thoughtful and equitable manner without violating the basic tenants of
our democratic principles; which are freedom, due process, and civil
rights.
It is imperative that we eliminate as well as prevent all forms of
targeting by law enforcement officers along the border and throughout
the United States that could solely be based on race, ethnic origin,
gender, or sexual orientation. Therefore, it is imperative that the
Civil Rights Division of the U.S. Department of Justice conduct a study
for the collection and reporting of nationwide data on traffic stops
along the borders and throughout the United States.
Last April, the 9th Circuit Court of Appeals ruled that Border
Patrol Agents may not consider an individual's ``Hispanic appearance''
as a fact deciding whether to stop motorists for questions near the
U.S.-Mexico border. The Court held that, ``Stops based on race or
ethnic appearance send the underlying message to all our citizens that
those who are not white are judged by the color of their skin alone . .
. that they are in effect assumed to be potential criminals first and
individuals second.'' While the Court has spoken, it is time that the
Congress get involved in this issue.
Chairman Sensenbrenner. Does the gentlewoman yield back?
Ms. Jackson Lee. I yield back at this time, yes.
Chairman Sensenbrenner. For what purpose does the gentleman
from Michigan, Mr. Conyers, seek recognition?
Mr. Conyers. I rise in reluctant opposition.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Conyers. I will explain why.
First of all, we have a racial profiling bill that the
gentlelady is a--she is a very strong supporter of, and we are
in negotiations that have begun in the Department of Justice
that are ongoing, and we are in the process of coming up with a
much larger bill.
My recommendation to my friend in Texas is that we include
the particularities of immigration and profiling, which is a
very important part of our racial profiling bill--include this
and then accompanying examination of it, because all of this
has been, I think, pretty well documented. But we can go into
it with greater particularity, because doing it this way could
give way to several different kinds of examinations on other
levels.
The bill that we are all on--almost all of the Members,
many of the Members in the Committee--has successfully passed
the entire House in one session. It passed the Committee twice
last year.
So it is for these reasons that we want to keep all this
together. And I would urge that we either withdraw this
amendment with the appreciation----
Ms. Jackson Lee. Would the gentleman yield?
Mr. Conyers.--that we would incorporate it into our larger
study or that we would--if it is not withdrawn, that we would
probably have to oppose it.
And I yield to my friend.
Ms. Jackson Lee. I thank the gentleman.
The gentleman knows the great respect I have for him. Let
me raise my concerns as to why I propose this amendment at this
time, and that is, of course, not to be caught up in the moment
of what we are trying to do. But this bill is moving with all
due and deliberate speed to be on the floor of the House next
week.
My concern is--and I would be delighted to work with the
gentleman. My concern is that as we implement this legislation,
as it is passed, as the President signs it, will we have
difficulty in the enhanced inspections and security processes
at the border; and at the border, will we then have a troubling
circumstance of--while we are attempting to thwart terroristic
activities and those who would come into our country on the
basis of terroristic activities, would we also be hampering the
innocent?
I would be happy to work with the gentleman in any
compromise that we have in terms of how the bill that I so
enthusiastically support. Would we be able to move that quickly
now for a markup or a hearing in the very near future?
Mr. Conyers. Well, let me agree with the gentlelady that
these are important considerations in a bill that is moving
quite rapidly; and I would point out that we are now creating
within this bill a Deputy Attorney General for Civil Rights and
Civil Liberties to really get on top of this. So I don't think
that we are going to lose any of the support, especially for a
study.
I think we can go beyond that in the present bill that is
moving with such rapidity.
Ms. Jackson Lee. Would the gentleman yield just for a
moment?
Is there a possibility to have report language or some
comment about the unfair targeting of----
Mr. Conyers. Absolutely. No question about it.
Ms. Jackson Lee. And let me add, then, if language
precisely could be written that has report language in it, or
is in the report language frankly, that emphasizes this problem
that I see coming, and if we can work together with this
language in the larger bill, I would be happy to withdraw it at
this time.
Mr. Conyers. Can I ask the gentlelady to join with me in
drawing up the language?
Ms. Jackson Lee. I yield back to the gentleman. It is his
time.
Mr. Conyers. Well, does the gentlelady withdraw her
amendment?
Ms. Jackson Lee. I will withdraw the amendment, working
with you on the report language.
Chairman Sensenbrenner. The amendment is withdrawn.
Further amendments to title----
Ms. Jackson Lee. 003, has that been found? Thank you very
much.
[The amendment follows:]
Chairman Sensenbrenner. The Clerk will report the long-lost
003.
Ms. Jackson Lee. Thank you, Mr. Chairman.
The Clerk. ``amendment to H.R. 2975, offered by Ms. Jackson
Lee of Texas. In section 236A(b) of the Immigration and
Nationality Act, as proposed to be inserted by section 203 of
the bill, strike `in the United States District Court for the
District of Columbia' and insert `initiated in any district
court of the United States.' ''
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentlewoman from Texas is recognized
for 5 minutes.
Ms. Jackson Lee. I do recognize, Mr. Chairman, that the
rights of legal aliens and, of course, undocumented individuals
are different from those of American citizens, but I would
offer to say that this is a simplistic and not detrimental
amendment, and that is to allow the appeal of a person's
detention in any district court in the United States.
I make note that restricting this review to the District
Court of the District of Columbia would be rendering the review
almost meaningless to those who may need it and who are in
different parts of the country. If a detainee is a resident of
my home State of Texas, for instance, we would be in fact
ensuring that previously retained counsel, witnesses in that
person's defense, their family, other resources which might be
available to the person close to home would have no possibility
of participating in the proceedings.
We do realize that this legislation will capture or
incorporate the guilty, and it will also help the innocent,
meaning those who are innocent of terroristic activities. They
may have other violations, but they certainly would not be
defined as terrorists. To take them away from their
jurisdictions in their particular State diminishes their
ability to present a defense; and do we actually believe that
it is possible to respect the concerns of due process for this
person if we have allowed for a review, no matter how great the
scope, limited to a particular court, thereby limiting the
resources that they have to present their case?
I would ask my colleagues to view this as a technical
change allowing the courts of other areas to review these
cases. It is atypical to find much diversion in immigration
case law, and if there is a question that the Ninth Circuit
would be different from the D.C. Circuit and the Fifth Circuit,
I think that there is a consistency under the laws; and I would
ask that the amendment be accepted.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
Mr. Chairman, my amendment would strike the portion of section 203
that limits judicial review of detention decisions to the U.S. District
Court in the District of Columbia. Instead, my amendment would permit
review in any district court.
It is my concern, Mr. Chairman, that by restricting this review to
the District Court in the District of Columbia we would be rendering
the review almost meaningless to those who need it most. If a detainee
is a resident of my home state of Texas, for instance, we would in fact
be ensuring that previously retained counsel, witnesses in his defense,
family, and other resources which might be made available to him closer
to home, would have no possibility of participating in the proceedings.
Do we actually believe that it is possible to respect the concerns
for due process for this person if we have allowed for a review, no
matter how great the scope, which by its technical structure does not
allow for appropriate access to every available resource? This
endangers our most cherished constitutional protections for judicial
review in an entirely unreasonable way.
The provision of section 203 that limits review to the District
Court of the District of Columbia so minimizes the potential to affect
change on the alien's behalf that it the virtually eliminates the
protections afforded by review, and should therefore be amended as I
have proposed.
Chairman Sensenbrenner. Does the gentlewoman yield back?
Mr. Smith. I am trying to find out where you are amending
the bill.
Ms. Jackson Lee. It is 48, line 15 in the bill.
Thank you.
Chairman Sensenbrenner. Does the gentlewoman yield back?
Ms. Jackson Lee. I assume that I have to yield back. I
can't reserve my time.
Chairman Sensenbrenner. No, you can't.
Ms. Jackson Lee. Thank you.
Chairman Sensenbrenner. For what purpose does the gentleman
from Texas, Mr. Smith, seek recognition?
Mr. Smith. Mr. Chairman, I oppose the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. Mr. Chairman, first of all, let me say that the
Chairman of the Immigration Subcommittee, Mr. Gekas, has left
for a long-standing commitment and will be gone for another 15
minutes or so; and in his absence, he has asked me to fill in
for him, which I am happy to do.
Mr. Chairman, actually the reason to oppose this amendment
is provided by the author of the amendment in one of the last
statements that she just made, where she expressed concern
about, quote, ``much diversity in immigration case law.''.
Under the base bill, mandating exclusive jurisdiction for
judicial review of any action or decision to detain a suspected
terrorist under proposed section 236A of the INA will lead to
consistent application of the law. That is why we need to
oppose this amendment. We don't want to make it inconsistent,
as the gentlewoman mentioned a while ago.
There is no procedural value to a district court decision,
and therefore no district court judge is required to follow the
decision of any other district court judge. While there is no
Presidential value to a decision of a judge of the D.C.
District Court, decisions of the D.C. District Court are
binding on all D.C. District Court judges. The circuit court
decision, unless reviewed by the Supreme Court, is the law with
respect to this provision.
While other circuit court decisions are binding on the
district courts within their jurisdiction, allowing venue in
any district court, as this amendment would do, could result in
11 different rules for application review of section 236A from
the 11 different circuit courts.
Venue in the District Court for the District of Columbia is
consistent with other mandatory venue provisions in the act.
The act provides that judicial review of determinations under
the expedited removal provisions and implementation of the
expedited removal provision is available only in the D.C.
District Court. Most importantly, the decision of the judge
after a hearing before the alien terrorist removal court may
only be appealed to the D.C. District Court.
So, Mr. Chairman, again the reason to oppose the amendment
is because it would allow for so many inconsistent rulings and
determinations of immigration law; and I, like the gentleman
from Texas, would like to avoid that diversity in immigration
case law.
So I urge my colleagues to oppose the amendment and vote
for the consistent application of the law as is found in the
underlying bill.
Mr. Hyde. Would the gentleman yield?
Mr. Smith. I will be more than happy to yield to the
gentleman from Illinois.
Mr. Hyde. I just would like to remind the Committee that in
the 1964 Voting Rights Act we had quite a battle over the
requirement by the drafters and the perpetrators of the bill
requiring that any litigation be brought in the Circuit Court
of the District of Columbia.
I felt that was an imposition. If you had a litigation to
correct circumstances having to do with the voting rights act
in Greenville, South Carolina, or Memphis, Tennessee, there was
a U.S. District Court nearby perfectly qualified to hear that
case, but no you had to get on the Greyhound bus and come to
Washington and file it in the district court here.
So the notion that you have one court to file these types
of litigation in is not new. It has been around at least----
Mr. Frank. Would the gentleman yield?
Mr. Hyde.--in the Voting Rights Act.
Mr. Smith. I thank the gentleman from Illinois for his
comments, and now I will be happy to yield to the gentleman
from Massachusetts.
Mr. Frank. The gentleman from Illinois didn't finish his
sentence. Has he changed his mind on that position that he
wants opposed? Is that the punch line?
Mr. Hyde. I am not comfortable with forcing people into a
particular court.
Mr. Frank. So the gentleman will vote for the amendment?
Mr. Hyde. I think we have a court system that is spread out
over the country to accommodate the people.
On the other hand, there is something to be said for
consistency in a particularly technical area of the law, and
they are talking about immigration; but I frankly come down on
the side of supporting the amendment and deploring the rigidity
of the Voting Rights Act requiring you to go to that court.
Mr. Barr. Would the gentleman yield?
Chairman Sensenbrenner. The time belongs to the gentleman
from Texas.
Mr. Barr. Would the gentleman yield?
Mr. Smith. I will be happy to yield to the gentleman from
Georgia, Mr. Barr.
Mr. Barr. Thank you. I just wanted to associate myself with
the remarks of the distinguished former Chairman and current
Chairman of the International Relations Committee in support of
this amendment.
Mr. Smith. Mr. Chairman, I yield back the balance of my
time.
Chairman Sensenbrenner. The question is on----
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Michigan Mr.
Conyers.
Mr. Conyers. Mr. Chairman, as one of the people that was
around when the original Voter Rights Act was enacted, maybe
not the only person but one of the people, I think our former
Chairman, his memory has--he was getting ready to come on
board, but at any rate, I want to express the concerns
articulated by the gentlemen from Illinois and Georgia that
there is merit in reconsidering this proposal. I would not like
at this hour for anything untoward to happen to this idea, and
I would implore the gentlelady from Texas to withdraw this so
that we can all examine this without it having met some
untimely demise at this hour at night, and I assure you we will
give it our considered and concerned examination, because it
may not have gotten this in the consideration of 57 other
amendments to this bill and I would yield to her now if it is
her inclination.
Ms. Jackson Lee. First of all, let me thank the Ranking
Member, because he above all has a great history, and let me
thank both Mr. Barr and Mr. Hyde. I would imagine there may be
others that appreciate the position that the particular
individual is put in, but if I might qualify the distinction on
the Voter Rights Act, though, I don't want to discourage my
supporters. This probably has even more weight because these
individuals are detained, and so they are not even able to get
on the Greyhound bus and get to the D.C. Courts.
This is troubling for me, Mr. Conyers. This is I think an
important change in this legislation, and I would be interested
as to whether there is a procedure or a new way to determine
what our support is on this legislation, on this particular
amendment, because I don't want to lose the opportunity to have
it in, and I don't want to jeopardize it, as you have
mentioned, and the Chairman is being very kind in his indulging
us on this.
Mr. Conyers. It is a legitimate concern on your part. So I
will assure you that I will vote for it and we will dispose of
this amendment tonight.
Mr. Delahunt. Would the gentleman from Michigan yield?
Mr. Conyers. With pleasure.
Mr. Delahunt. I think probably we should just go and have a
vote on it at this point in time, but I can't just let the
remarks of the gentleman from Texas go without a response in
terms of consistency. Well, presumably the substantive law is
not be inconsistent throughout the entire United States. The
standards hopefully are the same. I mean, when you talk about
inconsistency, if I could ask my friend from Texas what he
means specifically, I would be interested in an answer.
Chairman Sensenbrenner. The time belongs to the gentleman
from Michigan.
Mr. Conyers. Well, I have no further comments. I will yield
to the gentleman.
Mr. Berman. I just hope that if we are going to have a
rollcall vote, we know it is going to be a rollcall vote that
prevails in favor of the amendment, because otherwise I would
take the gentleman from Michigan's suggestion that in the
spirit of the way a number of things have been worked out up to
tonight and which I anticipate can be worked out between now
and the time this bill comes to the floor, we--a record vote
losing an important issue like this could be more damaging than
the gentleman from Michigan suggested.
Ms. Jackson Lee. Would the gentleman yield? I don't know
whose time it is.
Mr. Conyers. Of course.
Ms. Jackson Lee. This is a very important issue, as several
are to me. And obviously I do not--I do hear from Mr. Hyde and
Mr. Barr, and I thank them. I am not hearing from a number of
other Members. But I would say this to my colleagues on the
other side of the aisle. This is an issue that would warrant
bipartisanship. This is an issue simply that gives access to
courts who have done it before.
If there are no further Members on the other side willing
to indicate by their public acknowledgment that they would vote
for this, it is of such value and importance to me that I will
at this time withdraw it so that we can be sure that it is in
the language of the bill. That is more important to me than
to----
Chairman Sensenbrenner. The amendment is withdrawn.
Ms. Jackson Lee.--jeopardize this not passing.
Chairman Sensenbrenner. The amendment is withdrawn. You
don't need unanimous consent for the author to withdraw an
amendment.
For what purpose does the gentleman from Massachusetts----
Mr. Frank. To strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. I want to express my appreciation to the
gentleman from Texas. It is clear this is an issue about which
there is legitimate division, and I just wanted to urge the
gentleman from Texas--I know we want to do this--to work with
the Chairman and the Ranking Member. There are potential
compromises. Forcing people to come to Washington imposes some
hardships on them. There could be some alleviation. There are
questions of counsel. There are questions of compensation. I
think this is something that could be worked out and perhaps
even wind up with some beneficial approach that would
compensate people for this, because I just want to say I
appreciate what the gentleman did, and many of us who intend
ultimately to support the bill at this stage want to express
this is not the last we hear of this and think there is room
for some kinds of compromise that will preserve the legal
requirements that we are trying to get at but alleviate the
hardships that would be caused.
Mr. Watt. Would the gentleman yield just briefly?
Mr. Frank. Yes, I will yield to my friend from North
Carolina.
Mr. Watt. In the process of doing that, I would like to
point out that there was a very strong basis for doing what was
done under the Voting Rights Act at the time it was done,
because to have judges deciding voting rights issues sitting on
district courts in the South at that time was just not a
practical thing to do.
Mr. Frank. As I said, I think we will take note that this
is a very important issue and it is one of the ones that I hope
we will be able to work out before we come to the floor next
week.
Chairman Sensenbrenner. Further amendments to title II?
Ms. Jackson Lee. Yes, Mr. Chairman. I have an amendment at
the desk, Line 961.
Chairman Sensenbrenner. The Clerk will report Jackson Lee
961.
The Clerk. Mr. Chairman, I don't have 961.
Chairman Sensenbrenner. The Clerk does not have 961. Are
there further amendments----
Ms. Jackson Lee. Mr. Chairman, I would be happy to have it
Xeroxed. I am not sure--all of our amendments were in. They
were in. We would like to have the opportunity to have----
Chairman Sensenbrenner. The Clerk will look again to see if
Jackson Lee 961 is in the pile of any of the three of you up
there.
The Clerk. Mr. Chairman, there is an amendment here 961,
with no name.
Chairman Sensenbrenner. Does the gentlewoman from Texas
wish to claim maternity to no-name 961?
Ms. Jackson Lee. It is the Jackson Lee amendment, thank
you. Yes, thank you, Mr. Chairman.
Chairman Sensenbrenner. The Clerk will report the newly
found amendment.
The Clerk. Amendment to H.R. 2975 offered by Ms. Jackson
Lee. Add at the end the following: Title, blank, hate crimes
section, prohibition of certain acts of violence. Section 245
of title 18, United States Code, as amended.
Mr. Smith. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. Point of order is reserved. Without
objection, the amendment will be considered as read, and the
gentlewoman from Texas, Ms. Jackson Lee, will be recognized for
5 minutes, subject to the reservation of the point of order.
[The amendment follows:]
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I would
ask that my entire statement be put in the record.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
Mr. Chairman:
I offer this amendment to establish enhanced penalties for persons
who commit acts of violence against other persons because of the actual
or perceived race, color, religion, national origin, gender, sexual
orientation, or disability of any person.
Under my amendment, a perpetrator who willfully commits a crime
motivated by hate shall be imprisoned a minimum of 10 years or fined,
or both; or imprisoned up to life and fined, or both, if the crime
results in death, kidnapping, or aggravated sexual abuse, or an attempt
of any of these crimes.
Hate crimes are not new; they have been around for as long as
civilizations have existed.
Today, we know that hate crimes still exist and that they are not
like any other type of crime. They are committed only because the
victim is different from the victimizer.
On September 11, 2001, United States citizens were brutally
terrorized in New York City and Washington, D.C. But the effects
rippled across our entire nation and beyond. Thousands of lives
perished as a result of these unthinkable terrorist acts allegedly
carried out by members of the extremist Islamic group led by Osama bin
Laden.
The backlash of these attacks has put American against American.
Murders and attacks against citizens resembling Middle Easterners have
occurred. Innocent people died because they looked like the Islamic
extremists allegedly responsible for the September 11th tragedies.
The FBI and Justice Department were investigating 40 alleged hate
crimes across the country involving reported attacks on citizens and
religious institutions.
In Mesa, Arizona, Balbir Singh Sodhi, a Sikh Indian immigrant, was
shot to death because he was dark-skinned, bearded, and wore a turban.
Frank Silva Roque executed shootings at two Mesa gas stations, one of
which Sodhi owned, and a house Roque had sold to an Afghan couple.
Roque, who allegedly killed Sodhi as part of a multiple-incident
shooting rampage, was charged with first-degree murder, three counts of
drive-by shooting, three counts of attempted first-degree murder, and
three counts of endangerment.
According to police reports, Roque pulled up to a Chevron station
on the afternoon of September 15 and fired at Sodhi. Roque then headed
to a Mobile station 10 miles away, where he fired several shots at the
back of a Lebanese-American clerk but missed.
In the third incident, police believe Roque drove to a home he once
owned and fired at the front door. One victim, who is of Afghan
descent, was about to open the front door to leave when he heard the
shots.
Sergeant Mike Goulet said the police were not classifying the
shootings as hate crimes.
However, Special Assistant County Attorney Barnett Lotstein is
alleging the motive behind these heinous crimes is hate. Arizona does
not have a hate-crimes criminal charge per se, but the law does allow
the court to consider the motivation as an aggravating factor in
sentencing. It could make the difference between a 25-year to life
sentence and life in prison without parole.
Because Sikh attire bears a superficial resemblance to bin Laden's,
attackers in the United States have targeted Sikh men as well as
Muslims and Arabs in an apparent racial and religious backlash since
the attacks. Male Sikhs, who are neither Arab nor Muslim, wear
untrimmed beards and turbans that cover their uncut hair as a vestige
of the centuries of battles they fought against Muslim conquerors of
the Punjab, a region now divided between India and Pakistan.
In Dallas, police have been investigating the death of Waqar Hasan,
a 46-year old Pakistani Muslim. In Irving, a mosque was covered in
bullets. In Denton, a mosque was firebombed.
Personal attacks based on religion and appearances represent the
kind of oppression that Americans have opposed all around the world.
This isn't the first time hate motivated crimes have taken the
lives of innocent people. When are we going to act? Are we going to
continue to sit around and pray that it'll go away? Or are we just
waiting until someone we love is taken away from us by an act of hate?
Now, more than ever, we need legislation to punish crimes motivated
by hate against ethnicity, religion, and gender. These crimes cannot be
tolerated. It is our responsibility as elected lawmakers to ensure that
our citizens are able to live their lives without fear of how they
look, who they worship, and who they love. Many Sikhs fear attacks by
their neighbors, stay in their homes, only go out in groups, and try
not to travel after dark. We must ensure that we feel safe where we
are.
The strength of our country lies in the differences of its
citizens. We must work together to make stronger anti-hate crime laws
in order to preserve our values of freedom and tolerance.
Chairman Sensenbrenner. Without objection.
Ms. Jackson Lee. I will speak to the intent of this
particular legislation, and I want to recognize that there is
an existing hate crimes initiative that is going through this
House. I am disappointed that we have not had an opportunity to
have hearings in this session or to have a markup.
Mr. Chairman, there is no order in this room.
Chairman Sensenbrenner. The gentlewoman from Texas is
correct. The Committee will be in order. That includes the
staff. The gentlewoman may proceed.
Ms. Jackson Lee. We are facing some enormous cliffs to
climb starting from September 11th, 2001. We have to in our
heart find the values that we cherish of a quality and
democracy, respect for the individual, and at the same time
have the strength of character to respond to the tragedy and
the devastation that happened to our fellow Americans and many
others.
This legislation is to ensure that we hold true to our
values. It is legislation to acknowledge a Sikh Indian in Mesa,
Arizona, an immigrant, shot to death because he was dark
skinned, bearded, and wore a turban. The individual who
executed the shootings at two Mesa gas stations, one of which
the deceased owned and a house that the perpetrator had sold to
an Afghan couple. The individual who killed Mr. Saw as part of
a multiple incident shooting rampage was charged with first
degree murder, three counts of drive-by shooting, three counts
of attempted first degree murder and three counts of
endangerment, but he made the point that he was happy to have
shot them and that clearly he would have done it again.
He fired several shots at a Lebanese American Clerk but
missed. He was clearly on a rampage. He was clearly acting out
of hate. He was clearly seeking to intimidate a large group of
individuals.
I think this terrorist bill would be that much more
enhanced if we added legislation that would condemn any acts of
individuals that would believe that they could be in place of
law enforcement and go about our community shooting and maiming
those who did not look like them, whether they wore a turban,
whether they did prayer 6 days a week, whether they dressed in
the full regalia of the many Muslim women or they covered their
faces. I think it is important that a statement about hate
crimes be included in this legislation.
What it does is it says Americans will not be intimidated
to become like the perpetrators. We will not be hateful. We
will not undermine our values. We will not be frightened into
undermining our values. What we will do is that we will stand
for what is right, and that is prevent the heinous acts against
innocent individuals. The acts on September 11th were heinous.
They were outrageous. We must Sikh and bring to justice the
terrorists. We must respond. But we also must deal a blow to
those who would hatefully go about injuring the innocent.
With that, I yield back my time and ask my colleagues to
support this amendment.
Chairman Sensenbrenner. Does the gentleman from Texas
insist upon his point of order?
Mr. Smith. Mr. Chairman, on the way to insisting on my
point of order let me also make the point that no noncitizen
outside the United States has the constitutional right to free
speech, but I do press my point of order simply because the
amendment does not meet the fundamental purpose test and, more
specifically, this is title II dealing with immigration. The
amendment deals with criminal law, particularly hate crime, and
so I do insist on my point of order.
Chairman Sensenbrenner. For the reasons stated the point of
order is sustained.
Are there further amendments to title II? If not, title II
is closed.
Title III, entitled Criminal Justice, is now open for
amendment. Are there amendments to title III? For what purpose
does the gentleman from Virginia seek recognition?
Mr. Scott. Mr. Chairman, I have an amendment at the desk
Scott 021.
Chairman Sensenbrenner. The Clerk will report Scott 021.
The Clerk. Amendment to H.R. 2975 offered by Mr. Scott. In
the matter proposed to be added to section 3559 of title 18,
United States Code by section 302, strike ``federal terrorism
offense'' and insert ``offense listed in section 3286.''
Mr. Scott. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes.
Mr. Scott. Mr. Chairman, I would like to handle en bloc
this amendment and the amendment designated Scott No. 4, en
bloc. They are very similar.
Chairman Sensenbrenner. The Clerk will report Scott 4.
The Clerk. Amendment to H.R. 2975 offered by Mr. Scott. In
the matter proposed to be added to section 3583 of title 18,
United States Code by section 308, strike ``Federal terrorism
offense'' and insert ``offense listed in Section 3286.''
Chairman Sensenbrenner. Without objection, the amendments
will be considered en bloc. Hearing none, so ordered and the
gentleman from Virginia is recognized for 5 minutes.
[The amendments follow:]
Mr. Scott. Mr. Chairman, this amendment would limit the
application of these sections to the same types of crime to
which we limited RICO and total removal of statute of
limitations. Under section 302, in several courtrooms of
terrorism for which the maximum penalty is now only 5 years
would suddenly be subject to a life sentence even though they
do not involve any threat to human safety and only involve
relatively minor property damage or sometimes not at all. They
are offenses which clearly are not the kinds of offenses that
we think of when we talk about antiterrorism offenses, and so
on both sections we want to strike ``Federal terrorism
offense,'' which includes some fairly minor offenses and use
the same language we used in other sections to restrict this to
actual terrorism offenses.
I yield back.
Chairman Sensenbrenner. The Chair recognizes himself in
opposition to the amendments en bloc. Section 302 allows a
judge to impose a life sentence only if the crime is listed as
a Federal terrorism offense and it is shown to have the intent
to influence, coerce or retaliate against the government.
Section 308 allows a judge to impose lifetime supervision on a
criminal after release from prison, only if the person who is
convicted of one of the offenses listed in section 309 and the
intent element is met. These amendments would have the result
of limiting the possibility of a life sentence only to crimes
of Federal terrorism that are not subject to any statute of
limitations. The amendment would have the effect of limiting
supervision of a criminal act or prison for any term of years
up to life, as the judge deems necessary, only to crimes of
Federal terrorism that are not subject to this statute of
limitations. The alternative maximum penalty section does not
create a mandatory life sentence. The post release supervision
section does not mandate that the judge impose a lifetime
supervision of a convicted criminal. A judge may only impose
the life sentence if the jury makes a finding beyond a
reasonable doubt that the crime was calculated to effect
government conduct or retaliate against the government. A judge
may only impose lifetime supervision of a criminal after
finding beyond a reasonable doubt that the crime was calculated
to affect government conduct or retaliate against the
government. The judge would still have the discretion to impose
lesser sentences if he feels the crime does not warrant a life
sentence. The judge would still have the discretion to impose
less than lifetime supervision if he feels the criminal does
not pose a threat to society or national security.
This is a matter to be determined in the courtroom. The two
Scott amendments take it away from the judge.
Certain crimes such as computer-related crimes may not be
seen as serious enough to warrant a life sentence or lifetime
supervision, but if someone damages 911 or the air traffic
control system, it could result in serious injury or death to
many people. Federal terrorism offenses have been narrowed
already from the Administration request to get at only the most
serious offenses.
This amendment would not allow a life sentence for crimes
such as train wrecking, destruction of a hazardous liquid
pipeline facility, possession of biological agents such as
anthrax, bringing in explosives on an aircraft or destruction
or sabotage of national defense materials, even when those
crimes are shown to be done with an intent to commit terrorism.
The amendment would not allow a judge to impose lifetime
supervision for someone convicted for serious crimes such as
assault on a flight crew with a dangerous weapon, train
wrecking, destruction of a hazardous liquid pipeline facility,
possession of biological agents, bringing in explosives on an
aircraft or destruction or sabotage of national defense
materials even when those crimes are shown with the intent to
commit terrorism.
I ask the Committee to reject the amendment and yield back.
Mr. Conyers. Mr. Chairman.
Chairman Sensenbrenner. Gentleman from Michigan.
Mr. Conyers. Mr. Chairman, I rise with the feeling that
underneath the two Scott amendments is the consideration that a
lifetime supervision sentence should be reserved for the most
heinous offenses and that it is antithetical to an effective
criminal justice system that we have this created into our
criminal justice penalties to be perhaps used widely, but
perhaps not used widely, and so I wanted to commend the
gentleman from Virginia for what I consider to be the reasoning
behind that and assure him that this discussion is very
important, and I think that more and more people will study
this and recognize that it is a very reasonable way of putting
some restrictions around what is a very strong punishment.
[7:50 p.m.]
Mr. Scott. Would the gentleman yield?
Mr. Conyers. Of course.
Mr. Scott. Under the definition of any Federal terrorism
offense and affecting governmental actions, would that actually
cover student demonstrations where you have--where someone gets
in a fight when you are trying to get your college to divest
from investments in South Africa?
Mr. Conyers. Theoretically, it is possible. We would hope
that the judiciary would be as rational in their understanding
of this provision as I think the membership of this Committee
is.
Mr. Scott. Would the gentleman yield? And that is why we
limited it to just those offenses listed in section 3286, which
are the serious offenses and would exclude student
demonstrations, violence at--getting into a fight during a
demonstration, which are not the kinds of crimes for which a
life sentence would be appropriate.
Mr. Conyers. Well, the gentleman is merely drawing this a
little bit more carefully with the recognition that if it is
not written in with these limitations, it could be misused. And
there is no reason for us to be putting something--proposing
something into law when we know very well that the limiting
amendments that you have offered would help make it clear. And
I think it would be a more effective instrument of punishment
were it prescribed by the parameters that are suggested in the
amendments.
Chairman Sensenbrenner. The time of the gentleman has
expired. The question is on the adoption of the Scott
amendments en bloc. Those in favor will signify by saying aye.
Opposed, no. The ayes appear to have it. The ayes have it, and
the amendment is agreed to. Further amendments to title III?
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. For what purpose the gentleman from
Virginia seek recognition?
Mr. Scott. I have an amendment at the desk. Number 3.
Chairman Sensenbrenner. Clerk will report Scott 3.
The Clerk. Amendment to H.R. 2975 offered by Mr. Scott.
Page 83, line 10, before ``crime,'' insert ``Federal
terrorism.''.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes.
Mr. Scott. Mr. Chairman, this involves people who cannot
possess biological agents or toxins. Section 305 lists the
kinds of people that cannot--that are called restrictive
persons and people who have been, for example, convicted of a
crime--convicted of a felony, adjudicated mentally defective or
been committed to a mental institution, an alien who is a
national of a country which has been certified by the Secretary
of State. But it also--a person who is a fugitive from justice.
But it also includes, Mr. Chairman, one is who is under
indictment for a crime punishable by imprisonment to a term of
more than 1 year.
Now the person hasn't been convicted of anything, just
accused of something. It is important that we maintain a
principle that people are presumed innocent until proven
guilty. This amendment would restrict those people who are
under indictment to those who are under indictment for a
Federal terrorism offense. If you are indicted for that, you
could be a restricted person. Without this amendment, Mr.
Chairman, a pharmacist could be charged with Medicare fraud or
a scientist who otherwise could possess such material could be
charged with writing a bad check. And during the pendency of
the trial at which they may even be found innocent, they would
not be able to continue in their normal professional duties.
I think this would allow those who are actual terrorists
not to possess those materials, but it would not be so broad as
to cover people who are charged and may in fact be innocent of
crimes that have nothing to do with terrorism. I yield back.
Chairman Sensenbrenner. Gentleman yields back. What purpose
does the gentleman from Texas seek recognition?
Mr. Smith of Texas. I oppose the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. Thank you, Mr. Chairman. I just want my
colleagues to be aware that section 305 provides for a list of
persons who are prohibited from having access to a biological
agent or toxin. This list was based on prohibitions on who can
own handguns, but it has been limited further from that list.
The list, in fact, has been narrowed from the Administration
bill. Biological agents in the hands of someone accused of a
felony such as murder, kidnapping or assault with a deadly
weapon could be extremely dangerous.
This amendment would amend the list of persons who are
prohibited from access to biological agents to those who have
been indicted for a felony that was also a Federal terrorism
offense. The list of persons restricted from access is based on
the list of persons who are unable to use a gun with one
exception. It has been narrowed from these provisions to
eliminate persons convicted of domestic violence offenses.
Mr. Chairman, a person whom the law does not recognize as
safe enough to possess a handgun should not be given access to
something even more lethal. Mr. Chairman, I urge my
colleagues----
Mr. Scott. Would the gentleman yield?
Mr. Smith. Mr. Chairman, I will yield to the gentleman from
Virginia.
Mr. Scott. Did I understand you to say that if you are
under indictment for any felony, you cannot possess a handgun?
Mr. Smith. Reclaiming my time, the amendment would amend
the list of persons who are prohibited from access to
biological agents to those who have been indicted for a felony
that was also a Federal terrorism offense.
Mr. Scott. Well, would the gentleman yield?
Mr. Smith. Yes.
Mr. Scott. That would be the effect of the amendment. The
bill would restrict people from possessing biological agents if
they have been indicted for any felony. I thought I heard you
say that if you are under indictment, you cannot--for a felony
you cannot possess a handgun.
Mr. Smith. Let me reclaim my time. I am not sure the
gentleman understands. And the point is that anybody who has
been indicted for a felony is not going to be allowed to handle
or have access to the biological agent or toxin.
Mr. Scott. Mr. Chairman, I thought I heard the gentleman
say that if you have been indicted for a felony, you could not
possess a handgun. That is where the list came from. It is my
understanding that you have to be convicted of a felony to lose
your right to possess a handgun.
Mr. Smith. Well, the underlying bill--to reclaim my time--
says that if you have been prohibited from owning a handgun
with the one exception of domestic violence, you cannot, under
the underlying bill, you cannot then handle the toxin or the
biological agent.
Mr. Scott. Again, I don't mean to press the point, but if
you are under indictment, can you possess--if you are under
indictment for a felony, can you possess a handgun? I thought I
heard you say----
Mr. Smith. That is a separate question, and I don't know
the answer to it.
Chairman Sensenbrenner. The gentleman from Texas yield
back?
Mr. Smith. Let me respond to the gentleman's question. You
can apparently possess a handgun if you are under indictment,
and that is all. However, if you are under indictment, you
cannot possess the biological agent or toxin. Does that----
Mr. Scott. Under the bill. And my amendment would say if
you are under an indictment for a terrorism offense, you can't
possess them. But if you are a pharmacist under indictment for
Medicare fraud, you ought not be prevented during the pendency
of that indictment from continuing being a pharmacist,
especially if he be found not guilty.
Chairman Sensenbrenner. Gentleman from Texas has a minute
left.
Mr. Smith. I am getting some help, Mr. Chairman. It is my
understanding that, for instance, the example given by Mr.
Scott, if you are under indictment for Medicare fraud, you
would not be able to possess the biological agent or toxin.
Mr. Scott. Under the bill. What about a handgun?
Mr. Smith. I am told that that would not prevent you from
owning or possessing a handgun as well.
Chairman Sensenbrenner. The time of the gentleman from
Texas has expired.
Mr. Frank. Mr. Chairman.
Chairman Sensenbrenner. Gentleman from Massachusetts.
Mr. Frank. Move to strike the last word.
Chairman Sensenbrenner. Gentleman is recognized for 5
minutes.
Mr. Frank. I want to ask a question of my friend from
Virginia. Originally, I must say I would be inclined not to
support his amendment, but I think I may not have fully
understood the definition of biological agent or toxin, because
his question leads me to think that there was a
misunderstanding. I would ask the gentleman from Virginia, part
of the question, I think, may be what the definition--some of
us may not be fully familiar with the definition of biological
agent or toxin. In other words, what you are saying is
forbidding someone from possessing a biological agent or toxin
would keep the person from being a pharmacist or perhaps a
physician's assistant.
I yield to the gentleman to describe the substance that you
couldn't use. I presume we are not only talking about terribly
dangerous things.
Mr. Scott. I don't have the definition of ``agents'' in
front of me, but they exempt toxins naturally occurring in the
environment if the biological agent has not been cultivated, or
collected----
Mr. Frank. If it were to keep you from being a pharmacist,
that is one thing. But I am reluctant without having a better
understanding. If anyone else understands that and could define
the biological agent or toxin, I would be glad to yield. But I
think that is what my vote turns on, how dangerous do you have
to be to meet this if it is listed as a select agent? Do we
have a list of what these are? Are there such substances that
are really in normal daily use?
Mr. Scott. If the gentleman would yield, anybody can
possess them unless you are a restricted person.
Mr. Frank. I understand that. But the question is whether
or not that is a real hardship or whether we should or
shouldn't restrict people. I understand what it says. But I was
looking at what--how dangerous--I guess the answer is how
dangerous these are and, in the alternative, what legitimate
uses are there to these things that you would have people--
where people would be at such a disadvantage.
Well, I am being handed a definition, which I am not going
to be able to read in time. The definition is if it is
something dangerous. But I guess I am really not in a position
and unless--I would need some more reassurance that these were
not dangerous and harmful and that they had a lot of very good
and beneficial use and effects.
I yield to the gentleman.
Mr. Scott. If anybody can possess them, they can't be that
dangerous. Any run of the mill person off the street who is not
under indictment can possess them. I mean they can't----
Mr. Frank. That is not necessarily the case. There may be
some other qualifications. You talk about a pharmacist. A
pharmacist can have a lot of things that I can't have. So the
fact----
Mr. Scott. I don't have the section in front of me.
Mr. Frank. I yield to the gentleman.
Mr. Scott. I said I can't answer the question.
Mr. Frank. I yield back, Mr. Chairman.
Chairman Sensenbrenner. The question is on Scott 20. Those
in favor will signify by saying aye. Opposed, no. No. The noes
appear to have it. The noes have it. The amendment is not
agreed to.
Further amendments to title III? If not, title III is
closed.
Mr. Scott. Mr. Chairman, I am sorry. I have an amendment at
the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
Mr. Scott. Number 6.
Chairman Sensenbrenner. Does the Clerk have anything to say
about what little gems are in her pile?
The Clerk. Amendment to H.R. 2975 offered by Mr. Scott.
Page 90, beginning on line 6, strike ``appear to be intended or
have the effect'' and insert ``are intended.''.
Chairman Sensenbrenner. Gentleman from Virginia is
recognized for 5 minutes.
[The amendment follows:]
Mr. Scott. Mr. Chairman, this will tighten up the
definition of domestic terrorism in the bill. All of us are
intent on preventing terrorism and providing law enforcement
the tools they need to do their work. My concern is that this
bill's present definition of domestic terrorism is too broad
and unclear and would include activities that few of us would
define as domestic terrorism. The present wording of quote,
appear to be intended or have the effect, unquote, will allow
someone to be accused of an act of domestic terrorism based on
appearances or effects without the traditional intent required.
And it will kick in the bill's provisions for a single
jurisdiction search warrant, seizing of assets, sharing of
grand jury information. And those who are prosecuted under the
``appear to be intended or to have the effect'' definition of
domestic terrorism is subject to application of the RICO
statute, elimination of statute of limitations, use of enhanced
penalties without proving intent.
This amendment would make certain that only those
individuals who had the traditional means to do a terrorist act
are investigated and prosecuted as terrorists, not the
protester at an abortion, not the student protester who is
sitting out in the dean's office.
I would ask that you support the amendment, and I yield
back.
Chairman Sensenbrenner. I recognize myself in opposition to
the amendment. The language in the bill is based upon the
current law definition of international terrorism, which is
included in 18 U.S.C. 2331, with a significant exception, and
that is that the violent act is more precisely defined so as to
exclude from the definition of domestic terrorism student
protest. That is excluded.
What the amendment of the gentleman from Virginia proposes
to do is to require a tougher standard of proof for domestic
terrorism than for international terrorism. So if the people
who crashed the plane into the Pentagon and the World Trade
Center were home grown terrorists rather than those who came
from overseas and lived, the prosecutors would have had a much
tougher standard of proof, and I don't think that is really
what he want because terrorism is terrorism and the people who
die and are maimed, or dead or who have been maimed. The
question is really a question for the trier of fact, whether it
be the court or the jury, to determine. And it is difficult to
prove exactly what is on someone's mind. That is the subjective
standard that is best determined not legislatively, but by the
jury that hears the case or, if it is a court trial, by the
judge himself.
So I would ask that the amendment be rejected and yield
back my time.
The question is on the Scott amendment No. 6. Those in
favor will signify by saying aye. Opposed, no. The noes appear
to have it. The noes have it. The amendment is not agreed to.
Further amendments to title III? If there are none, title
III is closed.
Mr. Scott. Mr. Chairman.
Chairman Sensenbrenner. Mr. Scott?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. Gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I just learned that there may be a
technical amendment with the amendment we adopted about
lifetime supervision and penalties. And I would like to
reconsider--move to reconsider the vote we took on amendments 2
and 4. Unanimous consent to vitiate the vote.
Chairman Sensenbrenner. The question is unanimous consent
to vitiate the Scott amendments en bloc adopted earlier.
Without objection, the vote on adoption has been vitiated. The
question now is on adoption of the amendments. The gentleman
from Virginia.
Mr. Scott. Mr. Chairman, I would ask to withdraw the
amendment so that the technical problem can be addressed
between here and the floor.
Chairman Sensenbrenner. The amendment is withdrawn. The
amendments en bloc are withdrawn. Are there further amendments
to title III? Hearing none, title III is closed at last.
Title IV, relating to financial infrastructure, is now open
for amendment at any point. Are there amendments to title IV?
Are there amendments to title IV? If not, title IV is closed.
Next, title V, emergency authorization, is open for
amendments at any point. Are there amendments to title V? Are
there amendments to title V? If not, title V is closed. Next
open for amendment is title VI, relating to dam security, which
is not in the jurisdiction of this Committee, but on the
Committee on Resources. Are there amendments to title VI? If
not, title VI is closed.
Finally, title VII, miscellaneous, is now open for
amendment at any point. Are there amendments to title VII? For
what purpose does the gentlewoman from California, Ms. Waters,
seek recognition?
Ms. Waters. I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
Mr. Smith. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. The point of order is reserved by
the gentleman from Texas.
The Clerk. Amendment offered by Ms. Waters to H.R. 2975,
the PATRIOT Act of 2001. Add to the end the following: From the
50 million in funds made available for obligation annually from
the Fund for Victims of International Terrorism (section 2003,
Public Law 106-386, Oct. 2000), compensation of $1.5 million
shall be paid in FY 2002 to each survivor of the 12 American
citizens killed in the 1998 terrorist bombings of the American
embassies in Kenya and Tanzania; in addition this Fund shall be
available for----
Ms. Waters. Unanimous consent to dispense with the reading
of the bill.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentlewoman from California is
recognized for 5 minutes subject to the reservation of the
point of order.
[The amendment follows:]
Ms. Waters. Thank you very much. Mr. Chairman and Members,
in 1998, two United States embassies were bombed in Africa, one
in Kenya and one in Tanzania. It was where I first heard the
name of Osama bin Laden, who was indicted for the bombing of
these embassies. Twelve American citizens were killed in those
bombings. These attacks represent attacks against America and
need our attention.
As we all know, embassy personnel are often targeted
because they represent the United States in a foreign country.
The families of those victims have never been compensated. The
brother and father of a young woman who worked for the United
States Congress died in those bombings. Ms. Edith Barkley is a
heartbroken woman who believes that her country has turned its
back on her.
While Foreign Service officers assume a reasonable level of
risk in accepting a foreign assignment, they should not have to
bear the burden of murder at the hands of terrorists without
compensation for their surviving families. The fact that those
families to date have received no compensation is even more
alarming in light of the fact that the families of those that
were killed in the accidental bombing of the Chinese Embassy in
Serbia in 1999 received 1.5 million each. I agree with the U.S.
Decision to provide compensation for those families, but we
must not neglect the families of Americans who were lost in
Kenya and Tanzania.
At this time, when we are working on an antiterrorism bill,
I think it is appropriate to fully provide compensation for the
1998 victims' families.
I think it is worth mentioning that the State Department
failed to comply with its own regulations to warn embassy
personnel that intelligence information confirmed the existence
of active terrorist activity in East Africa. The State
Department also disregarded the repeated request of the Kenyan
Ambassador for greater security to protect the embassy and its
personnel.
It is a travesty that these disregards of policy may have
contributed to a loss of American life. It is a shame that we
have not acted sooner to compensate the families, but it would
be improper for us to address the needs arising out of the
September 11 attacks while ignoring what happened in 1998.
My amendment does not allocate new funds. It simply
provides for the distribution of funds already allocated in the
Fund for Victims of International Terrorism to the families of
the 1998 bombing victims.
I seek your support for this amendment that will finally
address the need that we in Congress have overlooked for too
long. If Osama bin Laden is responsible for those bombings and
those murders, we should compensate those victims the same way
we are doing for these victims who were killed or were harmed
September 11. It is the same terrorists committing acts against
Americans, whether they be on American soil or foreign soil. I
think it is time that we took care of this. It is just a small
amount of money, and I would ask my colleagues to please
support this amendment.
Chairman Sensenbrenner. Gentlewoman yield back the balance
of her time?
Ms. Waters. I yield back the balance of my time.
Chairman Sensenbrenner. Gentleman from Texas insists upon
his point of order.
Mr. Smith. Mr. Chairman, I do, but I also might offer a
suggestion to the gentlewoman from California, and that is that
the fund from which she wants to obtain these payments is $50
million. If you total up the compensation that is suggested by
this amendment, it would be over $7 billion, so I don't think
the $50 million would cover it.
Ms. Waters. I beg your pardon? What did you say?
Mr. Smith. I don't want to go into any detail, but the
amendment that you offered says compensation of 1.5 million for
each of the individuals involved in the terrorist attacks.
Chairman Sensenbrenner. The question was, does the
gentleman insist upon his point of order?
Mr. Smith. Yes, I do insist on my point of order.
Chairman Sensenbrenner. Gentleman please state his point of
order. The gentleman is recognized to make his point of order.
Ms. Waters. Will the gentleman yield?
Chairman Sensenbrenner. The gentleman has to make his point
of order for the Chair to rule on it. The regular order is for
the gentleman who has reserved a point of order, when he is
called upon, to either make his point of order or forever hold
his peace.
Mr. Smith. Mr. Chairman, the amendment is out of order
because it is an appropriation and I will insist on the point
of order.
Chairman Sensenbrenner. The gentleman from Texas makes his
point of order. Does the gentlewoman wish to speak on the point
of order?
Ms. Waters. Yes. I would like to speak on the point of
order. First of all, I wanted to correct him about the amount
that is involved. We are talking about 12 Americans that were
killed, which comes to about $18 million. In addition to that,
I would like unanimous consent----
Chairman Sensenbrenner. Would the gentlewoman please speak
to the point of order that this is an appropriation on an
authorization bill? That is what the point of order is and that
is what the Chair has to decide.
Ms. Waters. Recognizing that that may be a problem, I ask
unanimous consent to authorize rather than appropriate.
Unanimous consent.
Chairman Sensenbrenner. The Chair has to rule on the point
of order. It is an appropriation, which is not in the
jurisdiction of the Committee. The Chair sustains the point of
order.
Ms. Waters. Unanimous consent.
Mr. Frank. Mr. Chairman, parliamentary inquiry.
Chairman Sensenbrenner. The gentleman from Massachusetts
will state his inquiry.
Mr. Frank. If the gentlewoman were now to offer a fresh
amendment which says compensation of 1.5 million is authorized
to be appropriated for each of the 12 survivors, would that be
in order?
Chairman Sensenbrenner. Under the unanimous consent
agreement on how this bill is to be considered, the answer is
no, because we have gone past the title on emergency
authorizations.
Mr. Frank. I thought we were talking about--what is the
definition of ``miscellaneous''? Miscellaneous did not seem to
be me to be an exclusive----
Chairman Sensenbrenner. Title V specifically related to
emergency authorizations. Without objection, title V is
reopened so that the gentlewoman from California can offer a
properly drafted emergency authorization amendment. Does the
gentlewoman from California have an amendment?
Mr. Frank. I think she may not be able to read it.
Ms. Waters. I have an amendment that has been roughly drawn
up that would be an appropriate amendment, that would do the
authorization, and I do not have----
Chairman Sensenbrenner. The Clerk will report the
amendment.
Mr. Frank. If the gentlewoman gives it to me, I could read
it.
Chairman Sensenbrenner. The gentleman from Massachusetts
wish to become the Clerk of the Committee?
Mr. Frank. No, Mr. Chairman. I wish to be the Assistant
Clerk for purpose of reading something that might be hard to
read and then hand it to the Clerk.
Chairman Sensenbrenner. Well, we will count the minority's
salary allocation as the result of the new duties of the
gentleman from Massachusetts.
Mr. Frank. The amendment--as I worked on the drafting with
the guidance of the Parliamentarian, the amendment would say
``compensation of 1.5 million is authorized to be appropriated
in fiscal year 2002 for each survivor of the 12 American
citizens killed in the 1998 terrorist bombing,'' through the
semicolon after ``Tanzania.''.
Chairman Sensenbrenner. If everybody will cool it, I think
we will get this right if we have a little bit of time and
people do not jump into the breach. Will the gentleman from
Massachusetts like to try?
Mr. Frank. Let me ask a parliamentary inquiry. The
intention was that there would be 1.5 million for each survivor
family and it would be divided among those--for each victim.
Chairman Sensenbrenner. We are talking about a million-and-
a-half for each victim divided among the survivors.
Mr. Frank. I would ask unanimous consent to offer orally an
amendment that would say, it is authorized to be appropriated
compensation of $1.5 million for each victim of the 1998
terrorist bombings of the American embassies in Kenya and
Tanzania to be divided equally among the survivors of those
victims--to the estate of each victim.
Mr. Smith. Mr. Chairman, I am still going to reserve a
point of order.
Chairman Sensenbrenner. Point of order is reserved.
Mr. Conyers. Mr. Chairman, I ask unanimous consent to make
this suggestion, that, namely, we do have the gist of an
excellent idea for which there seems to be a fair amount of
support. Could this be added to the list of matters that you
and I and staff ought to repair to tomorrow?
Chairman Sensenbrenner. That is an excellent suggestion.
And let me say that personally, I have a problem with a
million-and-a-half compensation when we are only giving
$152,000 in compensation to the deceased firefighters and
emergency personnel who died at the collapse of the World Trade
Center. I think there has to be some type of proportionality
involved in this. And to give 10 times more to these victims
than we are giving to our own public safety personnel, I just
don't think is fair.
Mr. Conyers. Mr. Chairman, could we invite the gentlelady
from California to join with our staff in these considerations?
Chairman Sensenbrenner. Absolutely.
Mr. Conyers. I thank you very much.
Mr. Frank. Either me or the Clerk is going to come to that
meeting.
Chairman Sensenbrenner. Are there further amendments to
title VII, Miscellaneous? Hearing none, title VII is closed.
And the question now occurs on the motion to report the bill
favorably, as amended. The Chair will order a rollcall. Those
in favor of reporting the bill favorably as amended will as
your names are called answer aye. Those opposed, no. And the
Clerk will call the roll.
The Clerk. Mr. Hyde.
Mr. Hyde. Aye.
The Clerk. Mr. Hyde votes aye.
Mr. Gekas.
Mr. Gekas. Aye.
The Clerk. Mr. Gekas votes aye.
Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble votes aye.
Mr. Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith votes aye.
Mr. Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly votes aye.
Mr. Goodlatte.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte votes aye.
Mr. Bryant.
Mr. Bryant. Aye.
The Clerk. Mr. Bryant votes aye.
Mr. Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot votes aye.
Mr. Barr.
Mr. Barr. Aye.
The Clerk. Mr. Barr votes aye.
Mr. Jenkins.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins votes aye.
Mr. Cannon.
Mr. Cannon. Aye.
The Clerk. Mr. Cannon votes aye.
Mr. Graham.
Mr. Graham. Aye.
The Clerk. Mr. Graham votes aye.
Mr. Bachus.
Mr. Bachus. Aye.
The Clerk. Mr. Bachus votes aye.
Mr. Hostettler.
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler votes aye.
Mr. Green.
Mr. Green. Aye.
The Clerk. Mr. Green votes aye.
Mr. Keller.
Mr. Keller. Aye.
The Clerk. Mr. Keller votes aye.
Mr. Issa.
Mr. Issa. Aye.
The Clerk. Mr. Issa votes aye.
Ms. Hart.
Ms. Hart. Aye.
The Clerk. Ms. Hart votes aye.
Mr. Flake.
Mr. Flake. Aye.
The Clerk. Mr. Flake votes aye.
Mr. Pence.
Mr. Pence. Aye.
The Clerk. Mr. Pence votes aye.
Mr. Conyers.
Mr. Conyers. Aye.
The Clerk. Mr. Conyers votes aye.
Mr. Frank.
Mr. Frank. Aye.
The Clerk. Mr. Frank votes aye.
Mr. Berman.
Mr. Berman. Aye.
The Clerk. Mr. Berman votes aye.
Mr. Boucher.
Mr. Boucher. Aye.
The Clerk. Mr. Boucher votes aye.
Mr. Nadler.
Mr. Nadler. Aye.
The Clerk. Mr. Nadler votes aye.
Mr. Scott.
Mr. Scott. Aye.
The Clerk. Mr. Scott votes aye.
Mr. Watt.
Mr. Watt. Aye.
The Clerk. Mr. Watt votes aye.
Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren votes aye.
Ms. Jackson Lee.
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee votes aye.
Ms. Waters.
Ms. Waters. Pass.
The Clerk. Ms. Waters passes.
Mr. Meehan.
Mr. Meehan. Aye.
The Clerk. Mr. Meehan votes aye.
Mr. Delahunt.
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt votes aye.
Mr. Wexler.
[no response.]
The Clerk. Ms. Baldwin.
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin votes aye.
Mr. Weiner.
Mr. Weiner. Aye.
The Clerk. Mr. Weiner votes aye.
Mr. Schiff.
Mr. Schiff. Aye.
The Clerk. Mr. Schiff votes aye.
Mr. Sensenbrenner.
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Sensenbrenner votes aye.
Chairman Sensenbrenner. Are there additional Members in the
room who desire to cast or change their votes?
The Clerk. Ms. Waters, you passed?
Ms. Waters. I better vote for something. Miscellaneous
section, VII, that caused me to vote aye.
The Clerk. Ms. Waters votes aye.
Chairman Sensenbrenner. Are there additional Members who
desire to cast or change their votes? The gentleman from South
Carolina--if not, the Clerk will report.
Chairman Sensenbrenner. The gentlewoman from Texas.
The Clerk. Ms. Jackson Lee, you are recorded as an aye.
Chairman Sensenbrenner. Clerk will report.
The Clerk. Mr. Chairman, there is 36 ayes and zero nays.
Chairman Sensenbrenner. And the bill is favorably reported.
Without objection, the bill will be reported in the form of it
was a single amendment in the nature of a substitute,
reflecting the amendments that were agreed to today.
Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
And all Members will be given 2 days, as provided by the House
rules, in which to submit additional dissenting, supplemental
or minority views.
Now if I may have everybody's attention for a minute, the
Chair wants to make a statement. I would like to congratulate
everybody who has worked on this project for a job well done.
There have been many hours that have been put in by the Members
and staff on both sides of the aisle. The Justice Department
has been extremely cooperative in giving information on very
short notice and has participated in these negotiations.
When I first announced that I wanted the regular order to
prevail in Committee consideration of this bill, Columnist
Robert Novak took a shot at me, saying that all I wanted to do
was slow it down and to goof it up. Mr. Novak, we have shown
that you are wrong, and I think that this shows that with
respect to conflicting viewpoints and a bipartisan approach,
the legislative process works, and everybody who has
participated in this deserves the credit. We are all the
winners. The terrorists are the losers.
And the Committee is adjourned.
[Whereupon, at 8:30 p.m., the Committee was adjourned.]
Additional Views of the Honorable Barney Frank
I do not remember in my 21 years in the House of
Representatives an issue that was more difficult to deal with
than the subject matter of this bill. The terrible fact, made
so tragically clear on September 11, that we are menaced by a
group of fiendish, technically skilled, suicidal mass
murderers, obviously requires us to respond by enhancing our
ability to defend ourselves. Doing this in a manner that is
fully consistent with our liberties, our privacy, and the right
to be free from arbitrary mistreatment that is so important to
Americans requires a great deal of thought, and even after
working together on it thoroughly, no one should be sure that
we have achieved the appropriate balance. That is why I am
pleased that the bill worked out by Chairman Sensenbrenner and
Ranking Minority Member Conyers included a sunset provision. We
have in this bill entrusted law enforcement officials with
enhanced ability to monitor our lives. They now have the
responsibility to do this in a manner that will allay the fears
of those who think the bill goes too far, and these powers will
be renewed 2 years from now, I believe, only if those entrusted
with them demonstrate that this trust was entirely well placed.
I write here to comment particularly on one part of the
bill--unfortunately, a part not subject to the 2 year
expiration date--which related directly to work I have done in
my service in the House, and which I agreed to with some
reluctance. When I arrived in Congress in 1981, we had on our
statute books a law dating from the McCarthy era, known as the
McCarran-Walter Act, which, among other things, severely
restricted entry into the United States of foreigners whose
political views various Americans found objectionable.
Throughout the period from the 50's up to the 80's, America was
frequently embarrassed when State Department or Justice
Department officials acting under this authority excluded from
America distinguished literary and political figures, lest they
utter words too upsetting for what some people apparently
considered to be our tender ears. Indeed, those who are today
critical of what they deride as ``political correctness''
should reflect that at no point in our history have we ever
done more to enact a binding legal code of ``political
correctness'' then during the period when the McCarran-Walter
Act was in effect.
Fortunately, in 1990, Congress as part of an overall
immigration bill largely obliterated this set of restrictions
on what Americans can hear, and President Bush signed the bill.
I was privileged at that time to work with then Republican
Senator Alan Simpson to reinstate freedom of expression as part
of American immigration law.
And I stress here that we are talking about freedom of
expression and debate within our own country when we deal with
the exclusion of people with unpopular political views. Some of
my colleagues have correctly pointed out that residents of
foreign countries who have no legal connection to America do
not have constitutional rights, including those of freedom of
expression. But Americans have such rights, and it is the right
of Americans to hear, debate with, and learn from others that
is impinged when we exclude people because we find their
political views unpopular, unsettling or dangerous.
One of the concerns I had with the original draft of the
bill submitted to us by the Justice Department was its effect
on the work done by Senator Simpson, myself and others in 1990
to establish freedom of expression as a principle in American
immigration law.
The bill would have allowed the exclusion of visa
applicants who had ``endorsed or espoused terrorist activity.''
Obviously we have not just the right but the obligation to keep
out of our country people who would come here to organize acts
of violence, and we have a right to exclude those who have
engaged in such activity overseas. But the mere ``espousal or
endorsement'' of terrorist activity casts far too wide a net of
exclusion. This is after all a grant of authority to American
immigration officials in an area that is unchecked by judicial
power--since there is no judicial review of any decision to
deny a visa. Given our history, it is entirely likely that such
a grant of authority would have led to the exclusion of people
who had written about the right of oppressed people to respond
with violence against their oppressors, and in specific cases,
it almost certainly would at various points in our fairly
recent history have been used to exclude supporters of the
African National Congress, or the Irish Republican Army.
Indeed, former Israeli Prime Minister Menachem Begin was once
considered a terrorist because of his leadership of an anti-
British organization in pre-independence Israel; Nelson Mandela
was similarly characterized as a terrorist by his own
government and by, sadly, some in our own; and Gerry Adams was
excluded from the U.S. as a terrorist for years until Bill
Clinton wisely reversed that and invited him to the U.S. in a
move that helped move forward serious peace efforts in the
north of Ireland. And it should be noted that the exclusion of
Gerry Adams came even after we had changed the law, which
indicates that no amendment to the law was necessary for
administration officials to be able to act--again without any
judicial recourse from those excluded--to take steps that they
thought necessary to protect our internal security.
Given this history, I was very concerned that the
``endorsed or espoused'' language could lead to a renewal of
some restriction on people whom Americans should continue to
have the right to hear if they so choose. For this reason, I
was very pleased that one of the amendments to the Justice
Department bill added by the House Committee's consideration
affected this exclusion section. Specifically, the exclusion
now applies not to anyone who endorses or espouses, but rather
to anyone who ``has used the alien's prominence within a
foreign state or the United States to endorse or espouse
terrorist activity, or to persuade others to support terrorist
activity or a terrorist organization, in a way that the
Secretary of State has determined undermines the efforts of the
United States to reduce or eliminate terrorist activities''.
Thus, the exclusion is not a blanket one on people who
``endorse or espouse'' activity that some might classify as
terrorist, but rather can only be invoked if the Secretary of
State finds that this is more than mere expression of opinion,
but in fact affects our efforts to prevent terrorist activity.
This is for those who believe firmly in freedom of expression a
crucial distinction, between the expression of opinion and
general advocacy, which a free society should protect, and on
the other hand efforts which are part of organized activity
that result in actual terrorism.
As in many other areas of this particular bill, this
difference is easier to conceptualize than it may be to carry
out in practice. So I write these additional views to stress
that for me and others on the committee, our acceptance of this
particular phrase is based on our understanding that it is not
an effort to exclude people whose advocacy of particular ideas
might be unpopular at a given time in America--justly or not--
but rather is an effort to empower our officials to exclude
people whose efforts have in fact facilitated to ``terrorist
activities''. Again, I wish that this had been one of the
sunsetted provisions, but even though it is not, I hope that
those entrusted with enforcing it understand that if it is used
in an abusive fashion, the way in which exclusionary provisions
were used in the 50's, 60's, 70's and 80's, many of us will
launch an effort to undo it when Congress returns in 2 years or
so to this general subject.
Finally, while on the subject of the power of words, I want
also to express my disagreement with the decision to construct
an awkward title for this bill so that it yields the acronym
``PATRIOT.'' Only my strong commitment to freedom of expression
in general keeps me from filing legislation to ban the use of
acronyms in general in legislative work. But I think that the
use of this particular one is especially unfortunate. The
outburst of very vocal patriotism on the part of virtually all
of us that has been part of our national response to the
September 11 mass murders is a source of pride to me and
others. It is entirely legitimate for those of us who are proud
of America to reaffirm our patriotism at a time when enemies of
freedom attack us. But invoking the word PATRIOT in the context
of this bill gives the unfortunate impression that those who
disagree with it are not patriots. I voted for the bill, and I
am pleased with the work that we did collectively to provide
for enhanced law enforcement powers in a way that I believe is
consistent with American liberty and privacy. But I fully
respect those who disagree with our work, and I wish we had not
chosen a title for the bill that in any way reflects on their
good faith in expressing that disagreement.
Barney Frank.
Additional Views of the Honorable Robert C. Scott
The amendment to H.R. 2975 offered by, Mr. Cannon and
adopted by the Committee in a manager amendment to the bill, is
essentially the same as H.R. 3485, passed by the Committee in
the 106th Congress. I have the same concerns with this part of
H.R. 2975 as I expressed with H.R. 3485. Accordingly, I
incorporate below as additional views to H.R. 2975, the
relevant parts of my questions and comments during the
Committee markup of H.R. 3485, along with the relevant parts of
the Agency Views in a joint letter submitted by the Federal
Departments of State and Treasury expressing their concerns
during the consideration of H.R. 3485:
Scott Comments from the Transcript of the 6/21/2000 Judiciary Committee
Markup of H.R. 3485:
Mr. Scott. Mr. Chairman, would the gentleman yield
for another question or two?
Mr. McCollum. Certainly.
Mr. Scott. You said there is escape for diplomatic
property. Is there an escape if the President views the
attachment of foreign property inconsistent with
national security? Is there a national security
interest exception where the President can override
this?
Mr. McCollum. Initially, in the language that was
there, it was a broad override of national security.
Now we are narrowing this bill and saying that
commercial assets, he cannot override if it is
commercial in the United States. But he can for
diplomatic.
Mr. Scott. Would this allow attachment of assets of
the foreign government outside of the United States?
Mr. McCollum. No, it would not.
Mr. Scott. So you could not execute a judgement if
the property of the terrorist state were in Canada, for
example?
Mr. McCollum. That is correct.
Mr. Scott. Could you give us a little sense of this
would work if the shoe were on the other foot and an
Iraqi who was bombed on the Persian Gulf got a
judgement in Iraq and wanted to attach assets that the
government might have in Iraq.
Mr. McCollum. First of all, if the gentleman will
yield, the bill does not pertain to that. We would not
provide any opportunity for that to occur in this bill.
Mr. Scott. No. If the shoe were on the other foot and
Iraq were to pass a similar bill and accuse us in Iraq
of terrorism.
Mr. McCollum. Sure. If the gentleman will yield. That
is an argument diplomatically made by our State
Department and a concern you and I have heard I am
sure, Mr. Scott, many times when we get into these
situations where State Department never wants us to do
anything that might encourage another state to respond
in like kind. The terrorist, by very nature, would
potentially do that, and certainly that is possible.
But I do not believe that we have business assets or
property assets in jeopardy in Iraq. And we compensate
those who are injured in those situations anyway. The
problem is that there is no compensation for those who
have been injured on our side, and we do compensate
those who are injured abroad if we injure them.
Mr. Scott. Thank you.
Joint Agency Views of the Departments of State and Treasury from House
Report No. 106-733
Agency Views
TREASURY DEPUTY SECRETARY STUART E. EIZENSTAT,
DEFENSE DEPARTMENT;
UNDER SECRETARY FOR POLICY WALTER SLOCOMBE;
AND STATE DEPARTMENT UNDER SECRETARY FOR POLICY THOMAS
PICKERING TESTIMONY BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
Mr. Chairman and Members of the Committee:
We are submitting this joint testimony as envisaged by the
letters of Deputy Secretary Eizenstat of April 12 to Committee
Chairman Hyde and Subcommittee Chairman Smith in response to
letters to Secretary Summers and Secretary Albright from
Chairman Hyde, inviting them or their designees to testify
before this subcommittee on April 13 concerning H.R. 3485, the
``Justice for Victims of Terrorism Act.'' Deputy Secretary
Eizenstat has worked extensively on this issue for the
Administration over the past 18 months, and we, on behalf of
our Departments, join him in presenting our views on this
proposed legislation. We share your goal that U.S. victims of
terrorism and their families receive justice and compensation
for their suffering. We are actively engaged with the Congress
in ongoing discussions to resolve the complex issues identified
and to address the needs of victims of terrorism. We also
appreciate the opportunity to submit this statement into the
record.
Let us begin by expressing the Administration's and our own
genuine and personal sympathy to victims of international
terrorism--an evil that this administration has led the world
in combating. It is the responsibility of the United States
Government to do everything possible to protect American lives
from international terrorism and other heinous acts. People
like Mr. Flatow, Mr. Anderson, Mr. Cicippio, Mr. Jacobsen, and
Mr. Reed and their families, and the families of the Brothers
to the Rescue pilots, deserve support in their goal of finding
fair and just compensation for their grievous losses and
unimaginable experiences. Those of us who have met with them
have been touched by their suffering and impressed with their
strength and determination to seek justice. We understand their
frustrations and the frustrations that have led the sponsors of
this legislation to introduce it. We are dedicated to working
with the Congress to achieve the goal of obtaining compensation
for the victims and their families. But we feel strongly that
this must be done in a way that is consistent with the broad
national interests and international obligations of the United
States.
It is obvious that the states involved here--states that we
have publicly branded as sponsors of terrorism--do not view the
United States as a friendly environment in which to conduct
financial transactions. As part of our efforts to combat
terrorism, we impose a wide range of economic sanctions against
state sponsors of terrorism in order to deprive them of the
resources to fund acts of terrorism and to affect their
conduct. Because of these measures, terrorism list states
engage in minimal economic activity in the United States. In
many cases, the only assets that states which sponsor terrorism
have in the United States are either blocked or diplomatic
property. Such property should not be available for attachment
and execution of judgments, for very good reasons involving the
interests of the entire nation, which are described in detail
below. As much as we join the sponsors of this bill in desiring
to have victims of international terrorism and the heinous acts
of the Cuban Air Force compensated, it would be unwise to
ignore these reasons and prejudice the interests of all our
citizens for this purpose.
This question is complex and fraught with difficulties. For
this reason, last year, we proposed, among other things, that a
commission be established to review all aspects of the problems
presented by acts of international terrorism. Such a commission
would have specifically studied the issue of compensation with
the goal of recommending proposals to the President and to the
Congress to help the victims and their families receive
compensation in a manner that would not impinge upon important
U.S. national interests. While this proposal was not taken up,
we believe this approach still has merit.
H.R. 3485, though born of good intentions, is fundamentally
flawed. The legislation would have five principal negative
effects, all of which would be seriously damaging to important
U.S. interests, and would, at the end of the day, result in
substantial U.S. taxpayer liability.
First, blocking of assets of terrorist states is one of the
most significant economic sanctions tools available to the
President. The proposed legislation would undermine the
President's ability to combat international terrorism and other
threats to national security by permitting the wholesale
attachment of blocked property, thereby depleting the pool of
blocked assets and depriving the U.S. of a source of leverage
in ongoing and future sanctions programs, such as was used to
gain the release of our citizens held hostage in Iran in 1981
or in gaining information about POW's and MIA's as part of the
normalization process with Vietnam.
Second, it would cause the U.S. to violate its
international treaty obligations to protect and respect the
immunity of diplomatic and consular property of other nations,
and would put our own diplomatic and consular property around
the world at risk of copycat attachment, with all that such
implies for the ability of the United States to conduct
diplomatic and consular relations and protect personnel and
facilities.
Third, it would create a race to the courthouse benefitting
one small, though deserving, group of Americans over a far
larger group of deserving Americans. For example, in the case
of Cuba, many Americans have waited decades to be compensated
for both the loss of property and the loss of the lives of
their loved ones. This would leave no assets for their claims
and others that may follow. Even with regard to current
judgment holders, it would result in their competing for the
same limited pool of assets, which would be exhausted very
quickly and might not be sufficient to satisfy all judgments.
Fourth, it would breach the longstanding principle that the
United States Government has sovereign immunity from
attachment, thereby preventing the U.S. Government from making
good on its debts and international obligations and potentially
causing the U.S. taxpayer to incur substantial financial
liability, rather than achieving the stated goal of forcing
Iran to bear the burden of paying these judgments. The
Congressional Budget Office (``CBO'') has recognized this by
scoring the legislation at $420 million, the bulk of which is
associated with the Foreign Military Sales (``FMS'') Trust
Fund. Such a waiver of sovereign immunity would expose the
Trust Fund to writs of attachment, which would inject an
unprecedented and major element of uncertainty and
unreliability into the FMS program by creating an exception to
the processes and principles under which the program operates.
Fifth, it would direct courts to ignore the separate legal
status of states and their agencies and instrumentalities,
overturning Supreme Court precedent and basic principles of
corporate law and international practice by making state
majority owned corporations liable for the debts of the state
and establishing a dangerous precedent for government-owned
enterprises like the U.S. Overseas Private Investment
Corporation (``OPIC''). As the Washington Post observed in a
fall 1999 editorial, ``Victims of terrorism certainly should be
compensated, but a mechanism that permits individual recovery
to take precedence over significant foreign policy interests is
flawed.'' The proposed legislation would indeed seriously
compromise important national security, foreign policy, and
other clear national interests, and discriminate among and
between past and future U.S. claimants.
For all these reasons, explained in more detail below, the
Administration strongly opposes the proposed legislation.
(1) Attachment of Blocked and Diplomatic Property and the Elimination
of the Effectiveness of Our Blocking Programs
The Administration has grave concerns with the provisions
of the proposed legislation that seek to nullify the
President's waiver of the 1998 FSIA amendments and thereby
permit attachment of blocked and diplomatic property. The
ability to block assets represents one of the primary tools
available to the United States to deter aggression and
discourage or end hostile actions against U.S. citizens abroad.
Our efforts to combat threats to our national security posed by
terrorism list countries such as Iraq, Libya, Cuba, and Sudan
rely in significant part upon our ability to block the assets
of those countries.
Blocking assets permits the United States to deprive those
countries of resources that they could use to harm our
interests, and to disrupt their ability to carry out
international financial transactions. By placing the assets of
such countries in the sole control of the President, blocking
programs permit the President at anytime to withhold
substantial benefits from countries whose conduct we abhor, and
to offer a potential incentive to such countries to reform
their conduct. Our blocking programs thus provide the United
States with a unique and flexible form of leverage over
countries that engage in threatening conduct.
The Congress has recognized the need for the President to
be able to regulate the assets of foreign states to meet
threats to the U.S. national security, foreign policy, and
economy. In both the International Emergency Economic Powers
Act and the Trading with the Enemy Act, the Congress has
provided the President with statutory authority for regulating
foreign assets. On the basis of this authority and foreign
policy powers under the Constitution, Presidents have blocked
property and interests in property of foreign states and
foreign nationals that today amount to over $3.5billion.
The Supreme Court has also recognized the importance of the
President's blocking authority, stating that such blocking
orders ``permit the President to maintain the foreign assets at
his disposal for use in negotiating the resolution of a
declared national emergency. The frozen assets serve as a
`bargaining chip' to be used by the President when dealing with
a hostile country.'' Dames & Moore v. Regan, 453 U.S. 654, 673
(1981).
The leverage provided by blocked assets has proved central
to our ability to protect important U.S. national security and
foreign policy interests. The most striking example is the Iran
Hostage Crisis. The critical bargaining chip the United States
had to bring to the table in an effort to resolve the crisis
was the almost $10 billion in Iranian Government assets that
the President had blocked shortly after the taking of our
embassy. Because the return of the blocked assets was one of
Iran's principal conditions for the release of the hostages, we
would not have been able to secure the safe release of the
hostages and to settle thousands of claims of U.S. nationals if
those blocked assets had not been available. This settlement
with Iran also resulted in the eventual payment of $7.5 billion
in claims to or for the benefit of U.S. nationals against Iran.
In the case of Vietnam, the leverage provided by
approximately $350 million in blocked assets, combined with
Vietnam's inability to gain access to U.S. technology and
trade, played an important role in persuading Vietnam's
leadership to address important U.S. concerns in the
normalization process. These concerns included assistance in
accounting for POWs and MIAs from the Vietnam War, accepting
responsibility for over $200 million in U.S. claims which had
been adjudicated by the Foreign Claims Settlement Commission,
and moderating Vietnamese actions in Cambodia.
In addition, blocked assets have helped us to secure
equitable settlements of claims of U.S. nationals against such
countries as Romania, Bulgaria, and Cambodia in the context of
normalization of relations. These results could not have been
achieved without effective blocking programs.
However, our blocking programs simply cannot function, and
cannot serve to protect these important interests, if blocked
assets are subject to attachment and execution by private
parties, as the proposed legislation would permit. The need to
deal with the increasing demands for information on assets,
blocked and unblocked, of these terrorism list governments as
monetary judgments are awarded would seriously disrupt the
operations of the treasury Department in administering the
blocking programs. These demands would greatly impair
Treasury's investigative functions through the release of
deliberative process and enforcement related materials thereby
divulging sensitive operational details and raising important
issues of confidentiality with U.S. banks and others who
provide information on assets. Additionally, the ability to use
blocked assets as leverage against foreign states that threaten
U.S. interest is essentially eliminated if the President is
unable to preserve and control the disposition of such assets.
Private rights of execution against blocked assets would
permanently rob the President of the leverage blocking provides
by depleting the pool of blocked assets.
In the Cuban and Iranian contexts, for example, the value
of judgments (including both compensatory and punitive damages)
won by the Brothers to the Rescue families exceeds the total
known value of the blocked assets of Cuba in the United States,
and the value of the judgment won by the Flatow family, or the
former Beirut Hostages, exceeds the total known value of the
blocked assets of the Government of Iran in the United States.
Attachment of these blocked assets to satisfy private judgments
in these and similar cases would leave no remaining assets of
terrorism list governments in the President's control, denying
the President an important source of leverage and seriously
weakening his hand in dealing with threats to our national
security.
In addition, the prospect of future attachments by private
parties would place a perpetual cloud over the President's
ongoing control of all blocked assets programs. This would
further undermine the President's ability to use such assets as
leverage in negotiations, even where attachments had not yet
occurred.
Put simply, permitting attachment of blocked assets would
likely seriously undermine the use of our blocking programs as
a key tool for combating threats against our national security
and, in the Iranian context, would not even achieve the goal of
full payment of the compensatory damages of all existing
judgments against Iran.
(2) Our Obligation and Interest in Protecting Diplomatic Property
The proposed legislation also could cause the United States
to violate our obligations under international law to protect
diplomatic and consular property, and would undermine the legal
protections for such property on which we rely every day to
protect the safety of our diplomatic and consular property and
personnel abroad. Even though the current legislation arguably
provides protection for a slightly broader range of diplomatic
property than previous legislative proposals, it is still
fundamentally flawed in its failure to permit the President to
protect properties, including consular properties, some
diplomatic bank accounts, diplomatic residences, and properties
of foreign missions to international organizations, which
international law obligates us to protect.
The United States' legal obligation to prevent the
attachment of diplomatic and consular property could not be
clearer. Protection of diplomatic property is required by the
Vienna Convention on Diplomatic Relations, to which the United
States and all of the states against which suits presently may
be brought under the 1996 amendments to the FSIA are parties.
Under Article 45 of the Vienna Convention on Diplomatic
Relations we are obligated to protect the premises of
diplomatic missions, together with their real and personal
property and archives, of countries with which we have severed
diplomatic relations or are in armed conflict. This would
include diplomatic residences owned by the foreign state.
Likewise, under Article 27 of the Vienna Convention on
Consular Relations, the same protection is required for
consular premises, property, and archives. Attachment of any of
the types of property covered by the Vienna Conventions on
Diplomatic and Consular Relations could place the United States
in violation of our obligations under international law.
The proposed legislation would only permit the President to
ensure the protection of a narrow portion of the property
covered by the Vienna Conventions, and would thereby place the
United States in violation of our legal obligations. In
addition, the proposed legislation as drafted could cause us to
breach our obligations to ensure the inviolability of missions
to the United Nations, pursuant to the UN Headquarters
Agreement and the General Convention on Privileges and
Immunities.
Our national interest in the protection of diplomatic
property could not be clearer or more important. [Italic for
emphasis] The United States owns over 3,000 buildings and other
structures abroad that it uses as embassies, consulates,
missions to international organizations, and residences for our
diplomats. The total value of this property is between $12 and
$15 billion.
Because we have more diplomatic property and personnel
abroad than any other country, we are more at risk than any
other country if the protections for diplomatic and consular
property are eroded. [Italic for emphasis] If we flout our
obligations to protect the diplomatic and consular property of
other countries, then we can expect other countries to target
our diplomatic property when they disagree strongly with our
policies or actions. Defending our national interests abroad at
times makes the United States unpopular with some foreign
governments. We should not give those states who wish the
United States ill an easy means to strike at us by declaring
diplomatic property fair game.
In the specific case of Iran, attachment of Iran's
diplomatic and consular properties could also result in
substantial U.S. taxpayer liability. Iran's diplomatic and
consular properties in the United States are the subject of a
claim brought by Iran against the United States before the Iran
U.S. Claims Tribunal. The Iran U.S. Claims Tribunal is an
arbitration court located at The Hague in the Netherlands. It
was established as part of the agreement between Iran and the
United States that freed the U.S. hostages in Iran and resolved
outstanding claims that were then pending between the United
States and Iran. Pursuant to this agreement and awards of the
Tribunal, Iran has paid $7.5 billion in compensation to or for
the benefit of U.S. nationals. The Tribunal also has
jurisdiction over certain claims between the two governments.
Although we are contesting Iran's claim vigorously, the
Tribunal could find that the United States should have
transferred Iran's diplomatic and consular property to it in
1981. If it does so and the properties are not available
because they have been liquidated to pay private judgments, the
U.S. taxpayer would have to bear the cost of compensating Iran
for the value of the properties. Under the Algiers Accords,
Tribunal awards against the governments are enforceable in the
courts of any country, under the laws of that country.
(3) Equity Among Claimants
We are also deeply concerned that the proposed legislation
would frustrate equity among U.S. nationals with claims against
terrorism list states. It would create a winner take all race
to the courthouse, arbitrarily permitting recovery for the
first, or first few, claimants from limited available assets,
leaving other similarly situated claimants with no recovery at
all. In fact, it wouldtake away assets potentially available to
them.
However, the Alejandre, Flatow, and Anderson cases do not
represent the only claims of U.S. nationals against Cuba and
Iran. No other claimants would benefit at all from the proposed
legislation; indeed this legislation would seriously prejudice
their interests.
In the case of Cuba, the U.S. Foreign Claims Settlement
Commission (``FCSC'') has certified 5,911 claims of U.S.
nationals against the Government of Cuba, totaling
approximately $6 billion with interest, dating back to the
early 1960's. Contrary to statements made at the April 13
hearing, these include not just expropriation claims, but also
the wrongful death claims of family members of two individuals
whom the Cuban Government executed after summary trial for
alleged crimes against the Cuban state. Other claims relate to
the Castro Government's seizure of homes and businesses from
U.S. nationals. These claimants have waited over 35 years
without receiving compensation for their losses. This bill will
not help them at all.
The same situation applies with respect to Iran. In
addition to the Flatow and Anderson plaintiffs, who have
judgments for compensatory and punitive damages totaling $589
million, former hostages who were held captive in Lebanon--
David Jacobsen, Joseph Cicippio, Frank Reed, and their
families--collectively have won a judgment against Iran
totaling $65 million. Additional suits against Iran are
currently pending in the Federal District courts.
Moreover, given the nature of these regimes, it remains
possible that in spite of our substantial efforts to combat
terrorism, foreign terrorist states will commit future acts in
violation of the rights of U.S. nationals, which may give rise
to claims against them. If such incidents occur, these
claimants will also have an interest in being compensated.
Against this background, in which outstanding judgments for
compensatory and substantial punitive damages far exceed
available funds, the proposed legislation would permit the
first claimants to reach the courthouse to deplete all the
available assets of terrorism list governments, leaving nothing
for other similarly situated claimants to satisfy even
compensatory damages they are awarded. Satisfaction of the
judgments in the Alejandre, Flatow, and Anderson cases would
come at the expense of all other claimants against Cuba and
Iran, both past and future.
In sum, permitting the attachment of blocked and diplomatic
properties in individual cases, as the proposed legislation
would do, would undermine our ability to combat threats to our
national security, violate our obligations under international
law, place our diplomatic and consular properties and personnel
abroad at risk, and lead to arbitrary inequities in the
treatment of similarly situated U.S. nationals with claims
against foreign governments.
(4) Breaching the Sovereign Immunity of the United States
We are equally concerned about the provision of the
proposed legislation that would permit garnishment of debts of
the United States. Not only would this provision breach the
long established principle that the United States Government
has sovereign immunity from garnishment actions, it would
seriously undermine our Foreign Military Sales program, which
is an important tool supporting U.S. national security policy
and strategy, by creating an exception to the processes and
principles under which the program operates that has not
existed in the program's 40year history.
By allowing plaintiffs to attempt to tap the FMS Trust Fund
to satisfy their judgments, the entire FMS program would be
jeopardized as foreign customers question whether funds they
are required to pay under the FMS program might be at risk of
diversion or attachment. H.R. 3485 would therefore inject a
major element of uncertainty and unreliability into the FMS
program.
Additionally, foreign governments make prepayments into the
FMS Trust Fund to ensure payment of U.S. suppliers for products
and services provided to foreign governments in USG approved
sales of defense products and services. Under section 37 of the
Arms Export Control Act, these funds are available solely for
payments to U.S. suppliers, and for refunds to foreign
purchasers in connection with such sales. If the FMS Trust Fund
can be exposed to attachment through an act of Congress for
purposes other than ensuring payment for arms sales, not only
may foreign governments simply question the wisdom of engaging
in such transactions with the United States, but payments to
U.S. suppliers would be threatened.
The proposed legislation also will negatively affect our
defense industrial base. If passed as currently written, not
only will U.S. defense firms be uncertain about whether and
when they will be paid, but our ability to maintain open
production lines needed to support the U.S. military, which the
FMS program greatly facilitates, also would be disrupted.
We have heard that the intent of the proposed legislation
is to ``make terrorist states pay.'' However, exposing the
Iranian FMS Trust Fund account (``Iran FMS account'') to
attachment will not cause Iran to pay. Here too, at the end of
the day, the U.S. taxpayer will bear this burden if this fund
is tapped. The United States will have to pay Iran whatever
amount in the Iran FMS account is held by the Iran U.S. Claims
Tribunal to be owed to Iran. The current balance of the Iran
FMS account, which is approximately$400 million, is the subject
of Iran's multibillion dollar claim against the United States
before the Tribunal, arising out of the Iran FMS program.
Depleting Iran's FMS account through attachment by the
plaintiffs in no way discharges any obligation to Iran the U.S.
Government may ultimately be determined to have by the
Tribunal. And if Iran prevails on its claims, it can seek to
enforce its award against U.S. property anywhere in the world,
since the awards of the Iran U.S. Claims Tribunal are
enforceable in the courts of any country. Any Tribunal award
that cannot be satisfied from the Iranian FMS account will have
to be satisfied with U.S. government funds. Thus American
taxpayers, rather than Iran, would actually pay under H.R.
3485. CBO's cost estimate for the bill has been confirmed that
the legislation would cost the Treasury, and hence the
taxpayer, $420 million, most of which is associated with the
FMS Trust Fund.
This provision is also of particular concern because it
would prevent the United States from meeting its obligations to
make payments in satisfaction of awards the Tribunal renders
against the United States. Instead, the proposed legislation
would permit private parties to garnish the funds of the U.S.
Government in order to collect such payments before they reach
Iran. Even without this change in the law, there have been
efforts in the Flatow case to garnish the payment of a $6
million Tribunal award in Iran's favor. It is important to
understand that allowing private litigants to garnish amounts
we owe Iran under Tribunal awards would not discharge the U.S.
Government's liability to Iran to pay such money. For example,
if the efforts in the Flatow case had succeeded, the Flatow
family would have received $6 million, but the United States
still would have owed Iran $6 million under the unpaid award.
And again because the awards of the Iran U.S. Claims Tribunal
are enforceable in the courts of any country, Iran can seek to
enforce awards against U.S. property in other countries if we
do not pay them voluntarily. [Italic for emphasis]
Permitting garnishment of the payment of such awards could
thus result in the U.S. taxpayer paying twice: once when a
private claimant garnishes the payment, and a second time upon
Iran's successful enforcement of the still unsatisfied award
against us abroad. Because the judgments against Iran received
by these plaintiffs total in the hundreds of millions of
dollars, permitting garnishment of debts owed by the United
States to Iran as a means of satisfying these judgments could
cost the U.S. taxpayer hundreds of millions of dollars.
Finally, while we are vigorously contesting all of Iran's
claims at the Tribunal, if we are unable to pay even the
smallest awards against us, our position before the Tribunal in
all other claims will clearly be undermined.
(5) Eliminating Legal Separateness of Agencies and Instrumentalities
There are also significant problems with the provision of
the proposed legislation that would change the way the FSIA
defines a foreign state's agencies and majority owned or
controlled instrumentalities for terrorism list countries where
there is a terrorism related judgment against it. This
provision would overturn the Congress's own considered judgment
when it passed the FSIA in1976, as well as existing Supreme
Court case law and basic principles of corporate and
international law. In addition, it would prejudice the
interests of U.S. citizens and corporations who invest abroad.
This provision would make corporations that are majority
owned or controlled by a terrorism list foreign government
liable for terrorism related judgments awarded against that
government. The Congress recognized the danger of this position
when it passed the FSIA in 1976. The Conference Report to that
bill observed that ``[i]f U.S. law did not respect the separate
juridical identities of different agencies or
instrumentalities, it might encourage foreign jurisdictions to
disregard the juridical divisions between different U.S.
corporations or between a U.S. corporation and its independent
subsidiary.''
We are concerned that this proposal to disregard separate
legal personality, although limited in the bill to terrorism
list states and their majority owned entities, could create the
perception that the United States is unreliable as a location
for banking or investment. Especially for companies with
linkages to foreign governments, such a provision could be
viewed as an expansion of U.S. economic sanctions. It could
raise concerns about the United States as a safe financial
center and about the likelihood of possible legal actions
against their assets in the United States. This perception
could undermine the competitive ability of U.S. financial firms
to lead privatizations abroad and to attract banking business
and investments to the United States.
In addition, if the United States were to ``pierce the
corporate veil'' in this manner, there could well be similar
actions in foreign countries. Foreign countries may enact
similar changes to their law or foreign courts might disregard
the separate status of private, U.S. owned companies in cases
where a litigant had a judgment against the U.S. Government.
Compared to the billions of dollars the United States
Government and private U.S. interests have invested abroad, the
blocked assets of terrorism list state entities, agencies, and
instrumentalities located in the United States are small. In
the case of Iran, we do not have a comprehensive picture of
Iranian assets in the United States that might be affected by
this proposed legislation. There is currently no blocking of
Iranian assets in the United States (other than the residual of
property blocked during the Hostage Crisis), and thus no
obligation on the part of U.S. persons to report specific
information on them.
U.S. citizens, corporations, the United States Government,
and taxpayers have far more money invested abroad than those of
any other country, and thus have more to lose if investment
protections such as those provided by the presumption of
separate status is eroded. [Italic for emphasis] If we saddle
the investors of other countries with the debts of foreign
governments with which they are co-investors, as the proposed
legislation would do, then we can expect U.S. investors and
taxpayers to pay a considerably higher price when other
governments follow our example.
Finally, disregarding separate legal personality as
provided for in this proposal could possibly lead to
substantial U.S. taxpayer liability for takings claims in U.S.
courts and possibly before international fora.
We are grateful for this opportunity to address a very
important subject involving the fight against terrorism,
compensation for victims, and critical national interests.
Unfortunately, however, the concerns raised here indicate that
the 1996 amendment waiving sovereign immunity and creating a
judicial cause of action for damages arising from acts of
terrorism has not met its goals of providing compensation to
victims and deterring terrorism. In fact, if blocked assets
were exhausted to compensate the families, which would be the
result of this bill, the leverage to affect the conduct of the
terrorism list states would be lost along with the blocked
assets. We are not happy that these suits have not led to
recovery for families who have brought cases under the 1996
amendment. A system that has to date left no recovery option
other than one that conflicts with U.S. national interests and
would result in substantial U.S. taxpayer liability is not an
acceptable system.
We have been giving this a very hard look and have been
working with several Members of Congress to address this
difficult problem. We are anxious to continue doing so.
Together, we hope to formulate immediate and longer term
approaches that will address the concerns--of compensation for
terrorist acts and the U.S. national interests and
international obligations--that we all share in a much more
satisfactory way. Most importantly, we believe that, for a
workable and effective solution, we need a careful and
deliberative review of the issues, informed by our experience
since the1996 amendment.
As mentioned earlier, we suggested last year that the
Administration and Congress commit to a joint commission to
review all aspects of the problem, and to recommend to the
President and the Congress proposals to find ways to help these
families receive compensation, in a way consistent with our
overall national interests and international obligations. We
believe that this is the best way to deal with these issues and
that it therefore merits further consideration. We believe that
such a commission should be one of stature and with the right
expertise to confront all the hard issues we have discussed
today--including the lack of effective remedies in these cases
because of sanctions against terrorism list countries under
U.S. law, which are absolutely necessary to maintain.
A fundamental principle for this joint commission--by
definition--would be the need to inventory outstanding claims
and develop an effective and fair mechanism for compensation of
victims of terrorism. The commission should be encouraged to
think broadly, including consideration of avenues other than
the judicial one created by the 1996 amendment.
We hope discussions on the Commission and the broader issue
of compensation for victims of terrorism will yield a solution
that best addresses all parties' respective interests. Again,
we are committed to working together with you, members of this
Subcommittee, and others to find nonlegislative and legislative
means to achieve our shared goal of fair and just compensation
for victims of terrorism.
Robert C. Scott.
Additional Views of the Honorable Sheila Jackson Lee
I was gratified to participate in the bi-partisan effort
that led to a unanimous vote of the full House Committee on the
Judiciary to favorably report H.R. 2975, the PATRIOT Act of
2001 to the full House for floor consideration. However, I
would like to share my additional views on this bill since some
of the issues that are of paramount concern to me were not
addressed at the mark-up.
I am concerned that although there is language in the bill
that allocates $50 Million for technology to improve security
along the Northern Border, that there was no language in the
bill that specifically made clear what it is the Congress is
trying to do.
The most effective way to prevent the admission of
terrorists is to develop the ability to identify them and deny
them access, ideally at the visa post and as a last resort at
the port of entry. There should be language that enhances
technology for security and enforcement at the northern border,
such as infrared technology and technology that enhances
coordination between the Governments of Canada and the United
States generally and specifically between Canadian police and
the Federal Bureau of Investigation.
The best enforcement strategy should be a regional one that
will ultimately focus key screening efforts at the two
countries' external borders through the use of joint
intelligence and harmonized lookouts.
If each of the law enforcement agencies work together: the
D.E.A., the U.S. Customs Service, the INS, the Department of
Justice and the Royal Canadian Mounted Police (RCMP), this will
be an effective way of increasing public safety than spending
billions of dollars (in infrastructure costs alone) to develop
an entry-exit control system that offers no added enforcement
value.
Secondly, while we in the Congress want to eliminate all
forms of terrorism, and give law enforcement officers the
appropriate tools to accomplish this goal, it is vitally
necessary that it be done in a fair, thoughtful and equitable
manner without violating the basic tenants of our democratic
principles; which are freedom, due process, and civil rights.
It is imperative that we eliminate as well as prevent all
forms of targeting by law enforcement officers along the border
and throughout the United States interior that could solely be
based on race, ethnic origin, gender, or sexual orientation.
Therefore, it is imperative that the Civil Rights Division of
the U.S. Department of Justice conduct a study for the
collection and reporting of nationwide data on traffic stops
along the borders and throughout the United States.
Last April, the 9th Circuit Court of Appeals ruled that
Border Patrol Agents may not consider an individual's
``Hispanic appearance'' as a fact deciding whether to stop
motorists for questions near the U.S.-Mexico border. The Court
held that, ``Stops based on race or ethnic appearance send the
underlying message to all our citizens that those who are not
white are judged by the color of their skin alone . . . that
they are in effect assumed to be potential criminals first and
individuals second. While the Court has spoken, it is time that
the Congress get involved in this issue.
Lastly, another issue that is of paramount concern to me is
the issue of Hate Crimes. The PATRIOT bill should contain
language that establishes enhanced penalties for persons who
commit acts of violence against other persons because of the
actual or perceived race, color, religion, national origin,
gender, sexual orientation, or disability of any person.
A perpetrator who willfully commits a crime motivated by
hate shall be imprisoned a minimum of 10 years or fined, or
both; or imprisoned up to life and fined, or both, if the crime
results in death, kidnaping, or aggravated sexual abuse, or an
attempt of any of these crimes.
Hate crimes are not new; they have been around for as long
as civilizations have existed.
Today, we know that hate crimes still exist and that they
are not like any other type of crime. They are committed only
because the victim is different from the victimizer.
On September 11, 2001, United States citizens were brutally
terrorized in New York City and Washington, D.C. But the
effects rippled across our entire nation and beyond. Thousands
of lives perished as a result of these unthinkable terrorist
acts allegedly carried out by members of the extremist Islamic
group led by Osama bin Laden.
The backlash of these attacks has put American against
American. Murders and attacks against citizens resembling
Middle Easterners have occurred. Innocent people died because
they looked like the Islamic extremists allegedly responsible
for the September 11th tragedies.
Personal attacks based on religion and appearances
represent the kind of oppression that Americans have opposed
all around the world.
Now, more than ever, we need legislation to punish crimes
motivated by hate against ethnicity, religion, and gender.
These crimes cannot be tolerated. It is our responsibility as
elected lawmakers to ensure that our citizens are able to live
their lives without fear of how they look, who they worship,
and who they love.
The strength of our country lies in the differences of its
citizens. We must work together to make stronger anti-hate
crime laws in order to preserve our values of freedom and
tolerance.
Sheila Jackson Lee.
Additional Views of the Honorable Maxine Waters
I am pleased that the Judiciary Committee spoke in support
of my amendment to H.R. 2975 that will provide authorization
for funds to compensate the 12 U.S. citizens who were victims
of the 1998 bombings of the U.S. embassies in Kenya and
Tanzania. Osama bin Laden was indicted in those bombings, but
those victims have never received compensation for the level of
pain and suffering they have endured. The amendment will
authorize the appropriation of $1.5 million for each victim of
those bombings, for a total of $18 million. The amount
requested was based on the compensation we provided to the 1999
victims of the accidental bombing of the Chinese embassy in
Serbia, which was also $1.5 million per victim.
As we are considering a bill to deal with terrorism and its
effects, it is very appropriate that the bill direct funding to
compensate previous terrorism victims who have not yet received
any compensation. I am heartened that the Committee agreed to
develop language to include in H.R. 2975 that will provide that
compensation.
I continue to have concerns about several aspects of H.R.
2975 that threaten to erode our civil liberties. However, I
believe that we have improved the bill dramatically from the
one that was originally presented to Congress 2 weeks ago.
Maxine Waters.