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DOMESTIC SECURITY ENHANCEMENT ACT OF 2003 |
Section 312: Appropriate Remedies with Respect to Law Enforcement Surveillance Activities. During the 1970s and 1980s, some law enforcement agencies-e.g., the New York City Police Department-entered consent decrees that limit such agencies from gathering information about organizations and individuals that may be engaged in terrorist activities and other criminal wrongdoing. See, e.g., Handschu v. Special Servs. Div., 605 F. Supp. 1384 (S.D.N.Y. 1985), aff d, 787 F.2d 828 (2d Cir. 1986). As a result, they lack the ability to use the full range of investigative techniques that are lawful under the Constitution, and that'are available to the FBI. (For example, the Attorney General's investigative guidelines authorize agents, subject to certain restrictions, to attend public places and events "on the same terms and conditions as members of the public generally.") The consent decrees also handicap officers in their efforts to share information with other law enforcement agencies, including federal law enforcement agencies such as the FBI. These problems threaten to frustrate the operations of the federal-state-local Joint Terrorism Task Forces, and could prevent effective cooperation at all levels of government in antiterrorism efforts. As the United States Court of Appeals for the Seventh Circuit explained (before September 11) in discussing one consent decree, as a result of such a decree "the public safety is insecure and the prerogatives of local government scorned. To continue federal judicial micromanagement of local investigations of domestic and international terrorist activities ... is to undermine the federal system and to trifle with the public safety." Alliance to End Repression v. City of Chicago, 237 F.3d 799, 802 (7th Cir. 2001). This proposal would discontinue most consent decrees that could impede terrorism investigations conducted by federal, state or local law enforcement agencies. It would immediately terminate most decrees that were enacted before September 11, 2001 (including New York City's). All surviving decrees would have to be necessary to correct a current and ongoing violation of a Federal right, extend no further than necessary to correct the violation of the Federal right, and be narrowly drawn and the least intrusive means to correct the violation. This provision is modeled on the Prison Litigation Reform Act, 18 U.S.C. § 3626, which terminated many prison-related consent decrees and which repeatedly has been upheld by the courts. Section 312 does not apply to consent decrees or injunctions remedying discrimination based on race, color, religion, sex, or national origin, and therefore would not affect decrees or injunctions involving allegations of racial profiling. Section 313: Disclosure of Information. This provision provides protection against civil liability for businesses and their personnel who voluntarily provide information to federal law enforcement agencies to assist in the investigation and prevention of terrorist activities. The purpose of the provision is to encourage voluntary cooperation and assistance in counterterrorism efforts by private entities and individuals. Subtitle C: Facilitating International Terrorism Investigations Section 321: Authority to Seek Search Warrants and Orders to Assist Foreign States. 28 U.S.C. § 1782 does not clearly authorize the United States to obtain search warrants in response to requests from foreign governments; it only clearly applies to subpoenas. Nor is it clear that federal law enforcement can obtain orders under the pen register/trap and trace statute at foreign governments' requests. As a result, the United States can seek search warrants only if we have entered into a treaty with the foreign government that contains a provision authorizing us to do so (and, naturally, only if the foreign government has set forth facts sufficient to establish probable cause). The same is true of pen/trap orders. The United States therefore may find itself in a situation where it cannot assist a foreign government in one of its criminal investigations, which is hardly an effective way of encouraging foreign allies to assist our own counterterrorism investigations. This provision would modify federal law to clarify that the United States may seek search warrants, pen/trap orders, and ECPA orders, in response to the requests of foreign governments. Doing so will enhance our ability to assist foreign law enforcement investigations, as well as promote better cooperation from foreign allies when we seek evidence from within their borders. Section 322: Extradition Without Treaties and for Offenses Not Covered by an Existing Treaty. Many of the United States' older extradition treaties contain "lists" or "schedules" of extraditable offenses that reflect only those serious crimes in existence at the time the treaties were negotiated. (For. example, our treaty with Egypt dates from 1874, and our treaty with Great Britain which includes Pakistan dates from the 1930s.) As a result, these older treaties often fail to include more modern offenses, such as money laundering, computer crimes, and certain crimes against children. While some old treaties are supplemented by newer multilateral terrorism treaties, extradition is possible under these newer treaties only if the other country is also a party to the multinational treaty, leaving gaps in coverage. Additionally, absent a few narrow exceptions, U.S. law permits the extradition of offenders to a foreign nation only when there is a treaty or convention in force with that country or a statute conferring such authority upon the executive branch. See Valentine v. United States, 299 U.S. 5, 8 (1936). At present, there are close to seventy countries in the world with which the U.S. has no extradition treaty at all. This means that the U.S. can become a "safe haven" for some foreign criminals, and that we cannot take advantage of some countries' willingness to surrender fugitives to us in the absence of an extradition treaty these nations usually require at least the possibility of reciprocity. This provision would amend current extradition law to: (1) authorize the U.S. to extradite offenders to treaty partners for modem crimes that may not be included in our older list treaties with those countries; and (2) provide for on a case-by-case basis and with the approval of the Attorney General and the Secretary of State extradition from the United States for serious crimes even in the absence of an extradition treaty. Title IV: Enhancing Prosecution and Prevention of Terrorist Crimes Subtitle A: Increased Penalties and Protections Against Terrorist Acts Section 401: Terrorism Hoaxes. In the wake of the anthrax attacks in the fall of 2001, a number of individuals chose to perpetrate terrorism hoaxes (e.g., sending unidentified white powder in a letter with the intent that the recipient believe it to be anthrax). Such hoaxes divert law-enforcement and emergency services resources, and thus impede our ability to respond to actual terrorist events. Current federal law does not adequately address the problem of hoaxes relating to various weapons of mass destruction. At present, the primary way to prosecute terrorism hoaxes is to use "threat" statutes-e.g., 18 U.S.C. § 2332a, which criminalizes certain threats to use a weapon of mass destruction, and 18 U.S.C. § 876, which criminalizes the use of the mails to threaten injury to a person. But some terrorism hoaxes are simply false reports that cannot easily be characterized as outright threats. This section would amend federal law to create a new prohibition on terrorism hoaxes. In particular, it would (1) make it unlawful to knowingly convey false or misleading information, where the information reasonably may be believed, and concerns criminal activity relating to weapons of mass destruction; (2) require criminal defendants to reimburse any person, including the United States, State and local first responders who incur expenses incident to an emergency or investigative response to the terrorism hoax; and (3) authorize a civil action for such expenses. Section 402: Providing Material Support to Terrorism. 18 U.S.C. § 2339A's prohibition on providing material support to terrorists is unnecessarily narrow; it currently does not reach all situations where material support or resources are provided to facilitate the commission of "international terrorism" Rather, § 2339A only encompasses those acts of international terrorism which are prohibited by some other federal statute. Because, unlike the existing underlying offenses in § 2339A(a), "international terrorism" per se is not an offense under Title 18, it is prudent to establish unassailable constitutional bases for prohibiting such support. The first basis is if the material support is in or affects interstate or foreign commerce. The second basis is the regulation and control over the activities of U.S. nationals and U.S. legal entities who are outside the United States. Such control is based on, among others, the United States' constitutional foreign affairs power. In addition, this section amends the definition of "international terrorism" to make it clear that it covers acts which by their nature appear to be intended for the stated purposes. Hence, there would be no requirement to show that the defendants actually had such an intent. (There is a conforming amendment to the definition of "domestic terrorism" to maintain the existing parallel between the two definitions.) Second, one court of appeals recently has questioned whether the current prohibition in 18 U.S.C. § 2339B on providing "training" or "personnel" to terrorist organizations designated under section 219 of the Inmiigration and Nationality Act are unconstitutionally vague. See Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), cert. denied, 121 S. Ct. 1226 (2001). But see United States v. Lindh, _ F. Supp. 2d _ (E.D. Va. 2002) (rejecting the holding of Humanitarian Law Project). Subsection (b) would amend the pertinent statutes to remove and possible doubts about the scope of the prohibition. In particular, "training" would now be defined as "instruction or teaching designed to impart a specific skill." And criminal liability for "personnel" would apply to "knowingly provid[ing], attempt[ing] to provide, or conspir[ing] to provide a terrorist organization with one or more individuals (including himself) to work in concert with it or under its direction or control." Section 403: Weapons of Mass Destruction. At present, the federal weapons of mass destruction statute, 18 U.S.C. § 2332a, contains only one of the several constitutional bases for asserting federal jurisdiction over a terrorist attack involving weapons of mass destruction in certain circumstances: if the attack is against a person or property and "affect[s] interstate commerce." Id. § 2332a(a)(2). This provision would amend the statute to specifically cover property and persons in three other circumstances where federal jurisdiction constitutionally can be asserted: (1) if the mail or any facility of interstate or foreign commerce is used in furtherance of the offense; (2) if the attacked property is used in interstate or foreign commerce, or in an activity that affects interstate or foreign commerce; or (3) if any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense. Second, with respect to attacks on government buildings, the WMD statute only applies to attacks on property owned by the United States. It currently does not directly criminalize attacks on foreign governments' property in the United States. This section therefore amends the statute, in new Subsection 2332a(a)(4), to provide for jurisdiction where the property against which the weapon of mass destruction is directed is property within the United States that is owned, leased, or used by a foreign government. (The term "foreign government" is defined in 18 U.S.C. § 11.) Third, the current version of the WIVM statute does not prohibit the use of chemical weapons; in fact, it expressly states that it does not apply to attacks carried out with "a chemical weapon as that term is defined in section 229F." 18 U.S.C. § 2332a(a), (b). This restriction was added in the implementing legislation for the Chemical Weapons Convention on October 22, 1998. Removing "chemical weapons" from the ambit of the WMD statute has proven improvident, as it has created needless factual confusion in situations where the WMD contains explosive materials but no toxic chemicals, and where it contains toxic chemicals in addition to the explosive material. Since most chemical weapons will always contain some explosive material in order to cause the dispersal of the toxic chemical, it makes little sense to arbitrarily limit the scope of the use of WMD statute since the damage resulting from its use can be caused by either the explosive material, or the toxic chemicals, or a combination of both. Restoring "chemical weapons" to the scope of the WMD statute eliminates a defendant's ability to make technical arguments that the prosecutor has charged under the wrong statute. In addition to making the foregoing changes in the WMD statute, this section includes a technical amendment to 18 U.S.C. 175b (relating to biological agents and toxins), to correct a cross-reference to a related regulation which has been modified. Section 404: Use of Encryption to Conceal Criminal Activity. In recent years, terrorists and other criminals have begun to use encryption technology to conceal their communications when planning and conducting criminal activity. Title 18 of the United States Code currently contains no prohibition on the use of encrypted communications to plan or facilitate crimes. This proposal would amend federal law to provide that any person. who, during the commission of or the attempt to commit a federal felony, knowingly and willfully uses encryption technology to conceal any incriminating communication or information relating to that felony, be imprisoned for an additional period of not fewer than 5 years. These additional penalties are warranted to deter the use of encryption technology to conceal criminal activity. In addition, it does not address the issue of whether software companies and internet service providers should give law enforcement access to "keys" for the purposes of decoding intercepted communications. Sec. 405. Presumption for Pretrial Detention in Cases Involving Terrorism Defendants in federal cases who are accused of certain crimes are presumptively denied pretrial release. 18 U.S.C. § 3142(e). Specifically, for these crimes, there is a rebuttable presumption that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community." The list of crimes currently includes drug offenses carrying maximum prison terms of 10 years or more, but it does not include most terrorism offenses. Thus, persons accused of many drug offenses are presumptively to be detained before trial, but no comparable presumption exists for persons accused of most terrorist crimes. This section would amend 18 U.S.C. § 3142(e) to presumptively deny release to persons charged with crimes listed in 18 U.S.C. § 2332b(g)(5)(B), which contains a standard list of offenses that are likely to be committed by terrorists. This presumption is warranted because of the unparalleled magnitude of the danger to the United States and its people posed by acts of terrorism, and because terrorism is typically engaged in by groups - many with international connections - that are often in a position to help their members flee or go into hiding. In addition to adding terrorism offenses to those creating a presumption in favor of detention, this section makes conforming changes in a provision describing offenses for which pretrial detention may be considered (§ 31420(1)) and in a provision identifying factors to be considered by the judicial officer in determining whether the defendant's appearance and public safety can reasonably be assured through release conditions (§ 3142(g)(1)). Section 406 "Mass Transportation Vehicle" Technical Correction. Richard Colvin Reid has been charged with attempting to blow up American Airlines Flight 63 with bombs concealed in his shoes, while over the Atlantic Ocean en route from Paris to Miami. The plane was immediately diverted to Boston. A federal grand jury sitting in the District of Massachusetts promptly indicted Reid on a variety of federal charges, including 18 U.S.C. § 1993, which prohibits wrecking a "mass transportation vehicle." (Section 1993 authorizes an aggravated penalty of up to life imprisonment when a passenger was on the mass transportation vehicle, whereas an ordinary charge under 18 U.S.C. § 32(b) permits only a 20-year prison term where no death resulted.) The phrase "mass transportation" in section 1993 is defined by a cross-reference to 49 U.S.C. § 5302(a)(7) (the term also includes schoolbus, charter, and sightseeing transportation, 18 U.S.C. § 1993(c)(5)). In contrast to the phrase "mass transportation," the word "vehicle" has no explicit definition in section 1993, nor is it defined in section 5302. Reid argued that an airplane is not a "vehicle" as that term is used in section 1993, and the district court dismissed that count of the indictment. See United States v. Reid, 206 F. Supp. 2d 132 (D. .Mass. 2002) (citing McBoyle v. United States, 283 U.S. 25 (1931) (holding that an "aircraft" is not a "vehicle" under 1 U.S.C. § 4)). This proposal specifically provides a definition of "vehicle" for the purpose of 18 U.S.C. § 1993. This definition is broad, including any apparatus that may be used as a vehicle. This provision also would make technical amendments to the relevant chapter and section names. Section 407: Acts of Terrorism Transcending National Boundaries. 18 U.S.C. § 2332b covers killings and other serious violent crimes against persons in the United States, where "conduct transcending national boundaries" is involved. Among other grounds, federal jurisdiction exists if "any facility of interstate or foreign commerce is used in furtherance of the offense," or if the offense affects interstate or foreign commerce. However, the statute's jurisdictional predicates are narrower than the limits contained in the Constitution. For example, the predicates do not include travel in interstate or foreign commerce in furtherance of the offense. This proposal would expand the bases for federal jurisdiction under § 2332b, including as a jurisdictional predicate travel in interstate or foreign commerce in furtherance of the offense. The current version of § 2332b is deficient for the additional reason that it defines "facility of interstate or foreign commerce" to have the same meaning given that term in 18 U.S.C. § 1958(b)(2). But § 1958(b)(2) only defines "facility of interstate commerce" (to include "means of transportation and communication"), and makes no mention of foreign connnerce. As a result, § 2332b is ambiguous on whether the same stipulation-that "means of transportation and communication" constitute a "facility of ... commerce"-applies with respect to facilities of foreign commerce. This section therefore would correct 18 U.S.C. § 1958(b)(2) so that it refers to "facility of interstate or foreign commerce" rather than simply "facility of interstate commerce." Section 408: Postrelease Supervision of Terrorists. Section 812 of the USA PATRIOT Act added 18 U.S.C. § 35836), which authorizes up to lifetime postrelease supervision for the perpetrators of terrorist offenses. In contrast, the maximum supervision period for the most serious crimes under the general rule of 18 U.S.C. § 3583(b) is five years, and for most offenses it is three years or less. The reform adopted in the USA PATRIOT Act reflects the continuing danger to the United States and its people that convicted terrorists may pose even after completion of a term of imprisonment, and legislative recognition that involvement by offenders in terrorism may be the result of persistent (or lifelong) ideological commitments that will not simply disappear within a few years of release. This section of the bill makes conforming amendments needed to ensure the effectiveness of the, USA PATRIOT Act reform. In part, it makes conforming amendments in provisions affecting re-imprisonment on revocation of supervised release based on violations of release conditions. Currently, 18 U.S.C. § 3583(e)(3) limits imprisonment following revocation to five years in case of a class A felony, three years in case of a class B felony, two years in case of a class C or D felony, and one year otherwise. The amendments ir this section do not change these maximum periods of reimprisonment, but they amend § 3583(e)(3) to make it clear that they are limitations on reimprisonment based on a particular revocation, rather than limits on aggregate reimprisonment for an offender who persistently violates release conditions and is subject to multiple revocations on that basis. The bill also makes a complementary change in 18 U.S.C. § 3583(h). Section 3583(h) currently provides that the court may impose a term of supervised release to follow reimprisonment based on revocation of release-but not if the maximum reimprisonment term allowed by § 3583(e)(3) was imposed. Thus, the court is barred from imposing the maximum reimprisonment term-even if the maximum term is fully warranted by the nature of the offender's violation of release conditions and resulting danger to the public-if the court wants to preserve the option of providing further supervision for the offender once the term of reimprisonment is over. Since this limitation works against the effective supervision of released terrorists and protection of the public, the bill proposes that it be eliminated. In addition, this section provides that the sentence for a terrorist offense within the scope of 18 U.S.C. § 35836) must include a term of supervised release of at least 10 years. By way of comparison, provisions of the drug laws that authorize extended postrelease supervision periods for certain drug offenses mandate that the sentence impose supervision terms of at least 10 years, eight years, six years, five years, four years, three years, two years, or one year for various offenses and offenders. See 21 U.S.C. § 841. The corresponding proposal for terrorists in this bill reflects -the judgment that persons convicted of terrorist crimes generally pose a sufficient public safety concern that they should uniformly be subject to observation for a substantial period of time following release. This does not curtail the court's normal authority to revisit the period of supervision imposed in the sentence at any time after one year of release, and to shorten or terminate supervision if appropriate. See 18 U.S.C. § 3583(e)(1). It does, however, reflect a judgment that the period of monitoring and oversight for offenders convicted of terrorist crimes should at least be 10 years following release, unless the court affirmatively determines thereafter that further supervision is unwarranted. This section broadens the class of offenses subject to extended supervision periods under 18 U.S.C. § 35836) by deleting a limitation to offenses which result in, or create a foreseeable risk of, death or serious injury. With this amendment, the provision includes all offenses in the standard list of crimes likely to be committed by terrorists and supporters of terrorism (see 18 U.S.C. § 2332b(g)(5)(B)). The existing limitation could complicate or prevent the imposition of appropriate supervision, periods on persons convicted of non-violent terrorist offenses-such as a cyberterrorism attack on the United States that results in tens of billions of dollars of economic damage-and on persons who provide the essential financial or other material support for the apparatus of terrorism, but do not directly engage themselves in violent terrorist acts. The continuing danger posed to the national security by such persons may be no less than that posed by the direct perpetrators of terrorist violence, and the courts should be afforded the same degree of discretion in prescribing postrelease supervision in their cases. Section 409: Suspension, Revocation, and Denial of Certificates for Civil Aviation or National Security Reasons. This section provides procedures for the suspension, revocation, and denial of pilot certificates in relation to persons who pose a threat to civil aviation or national security. There is an immediate practical need for clarification and confirmation of the authority of the Under Secretary of Transportation for Security and the Federal Aviation Administration (FAA) in this area because there are several pending challenges to FAA revocations by persons whose certificates were revoked following notification that they "were known to pose, or suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety" (49 U.S.C. 114(h)(2)). Section 410: No Statute of Limitations for Terrorism Crimes. This section broadens the class of offenses that may be prosecuted without limitation of time under 18 U.S.C. § 3286(b) by deleting a limitation to offenses which result in, or create a foreseeable risk of, death or serious injury. With this amendment, the provision includes all offenses in the standard list of crimes likely to be committed by terrorists and supporters of terrorism (see 18 U.S.C. § 2332b(g)(5)(B)). The existing limitation could complicate or prevent the prosecution of persons convicted of non-violent terrorist offenses-much as a cyberterrorism attack on the United States that results in tens of billions of dollars of economic damage-and of persons who provide the essential financial or other material support for the apparatus of terrorism, but do not directly engage themselves in violent terrorist acts. The continuing danger posed to the national security by such persons may be no less than that posed by the direct perpetrators of terrorist violence, and they should not be entitled to permanent immunity from prosecution merely because they have succeeded in avoiding identification and apprehension for some period of time. Section 411: Penalties for terrorist murders. Existing law does not consistently provide adequate maximum penalties for fatal acts of terrorism For example, in a case in which a terrorist caused massive loss of life by sabotaging a national defense installation in violation of 18 U.S.C. § 2155, sabotaging a nuclear: facility in violation of 42 U.S.C. §.2284, or destroying an energy facility in violation of 18 U.S.C. § 1366, there would be no possibility of imposing the death penalty under the statutes defining these offenses because they contain no death penalty authorizations. In contrast, dozens of other federal violent crime provisions authorize up to life imprisonment or the death penalty in cases where victims are killed. There are also cross-cutting provisions which authorize these sanctions for specified classes of offenses whenever death results, such as 18 U.S.C. § 2245, which provides that a person who, in the course of a sexual abuse offense, "engages in conduct that results in the death of a person, shall be punished by death or imprisoned for any term of years or for life." This section similarly authorizes uniformly up to life imprisonment or the death penalty for conduct resulting in death that occurs in the course of the offenses likely to be committed by terrorists that are listed in 18 U.S.C. § 2232b(g)(5)(B) or in the course of terrorist activities as defined in 18 U.S.C. § 2510 under the amendment in section 121 of this bill. This section also adds the new provision covering terrorist offenses resulting in death (proposed 18 U.S.C. § 2339D) to the list of offenses in 18 U.S.C. § 3592(c)(1) whose commission permits the jury to consider imposition of the death penalty. This will make the option of capital punishment available more consistently in cases involving fatal terrorist crimes. The imposition of capital punishment in such cases will continue to be subject to the requirement under 18 U.S.C. § 3591 that the offender have a high degree of culpability with respect to the death of the victim or victims, and to the requirement that the jury conclude that the death penalty is warranted under the standards and procedures of 18 U.S.C. § 3593. Subtitle B: Incapacitating Terrorism Financing Section 421: Increased Penalties for Terrorism Financing. At present, the maximum civil penalty for violations of the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq., is only $10,000 per violation, see 50 U.S.C. § 1705. This is a relatively mild maximum fine; the civil penalty for violations of the Clean Water Act, for example, is fully $25,000 for each day the violation persists. See 33 U.S.C. § 1319(d). IEEPA's modest civil penalty may not adequately deter individuals who are considering engaging in economic transactions that finance terrorist organizations, or otherwise trading with prohibited persons. And given the severity of terrorist threats, and the consequences of a successful terrorist attack, the United States should be able to punish those who finance terrorism at least as severely as it can punish polluters. This proposal therefore would amend IEEPA to increase the maximum civil penalty amount from $10,000 per violation to $50,000 per violation. Section 422: Money Laundering Through Hawalas Under federal law, a financial transaction constitutes a money laundering offense only if the funds involved in the transaction represent the proceeds of some criminal offense. See 18 U.S.C. § 1956(a)(1) (`represents the proceeds of some form of unlawful activity"); 18 U.S.C. § 1957(f)(2) ("property constituting, or derived from, proceeds obtained from a criminal offense"). There is some uncertainty, however, as to whether the "proceeds element" is satisfied as to all aspects of a money laundering scheme when two or more transactions are conducted in parallel. For example, consider the following transaction: A sends drug proceeds to B, who deposits the money in Bank Account 1. Simultaneously or subsequently, B takes an equal amount of money from Bank Account 2 and sends it to A, or to a person designated by A. The first transaction from A to B clearly satisfies the proceeds element of the money laundering statute, but there is some question as to whether second transaction-the one that involves only funds withdrawn from Bank Account 2-does so. The question has become increasingly important because such parallel transactions are the technique used to launder money through hawalas and the Black Market Peso Exchange. Several courts have addressed related issues, holding that both parts of the parallel or later transaction (sometimes called a "dependent" transaction because it would not have occurred but for the first transaction) involve criminal proceeds for purposes of the money laundering statute. See United States v. Covey, 232 F.3d 641 (8th,Cir. 2000) (where defendant receives cash from drug dealer, and gives drug dealer checks drawn on own funds in return, transfer of checks is a money laundering offense involving SUA proceeds); United States v. Mankarious, 151 F.3d 694 (7th Cir. 1998) (if check constituting SUA proceeds is deposited in bank account, and second check is written on that account, second check constitutes proceeds, even if first check has not yet cleared); United States v. Farrington, 2000 WL 1751996 (D.V.1. 2000) (if check constituting SUA proceeds is deposited into bank account, and second check is drawn on same account on same day, second check is SUA proceeds, even though first check has not yet cleared). This proposal is intended to remove all uncertainty on this point by providing that all constitute parts of a set of parallel or dependent transactions involve criminal proceeds if one such transaction does so. Section 423: Suspension of Tax-Exempt Status of Designated Foreign Terrorist Organizations. A group that the United States formally designates as a "terrorist organization" is liable, among many measures, to have their assets frozen and their members barred from entering the United States. However, under current law, "terrorist organizations" that have registered as tax exempt organizations under section 501 of the Internal Revenue Code can retain their tax-exempt status. And individuals who contribute to these designated "terrorist organizations" still are able to deduct those contributions. This section amends section 501 of the Internal Revenue Code to suspend automatically the tax exempt status of any group upon its designation as a "terrorist organization" under the several authorities. It also denies deductions for any donations made to such organizations during the period of suspension. Section 424: Denial of Federal Benefits to Terrorists. Current law allows federal courts to deny federal benefits to persons who have been convicted of drug-trafficking or drug-possession crimes. 21 U.S.C. § 862. As a result, these convicts can be prohibited, for periods of up to life, from receiving grants, contracts, loans, professional licenses, or commercial licenses that are provided by a federal agency or out of appropriated funds. But despite the fact that terrorism is at least as dangerous to the United States' national security as drug offenses, there presently is no legal authority to deny federal benefits to persons who have been convicted of terrorism crimes. This section would eliminate this inconsistency, and ensure that the same disincentives that the law creates with respect to drug crimes are available in the terrorism context, as well. Specifically, it would give federal courts the authority to deny federal benefits to any person convicted of an offense listed in 18 U.S.C. 2332b(g)(5)(B). Section 425: Corrections to Financing of Terrorism Statute. This section corrects a number of drafting errors in the recently enacted financing of terrorism statute, 18 U.S.C. § 2339C, and supplies a definition for the term "material support or resources" as used in that statute by cross-referencing the existing definition in 18 U.S.C. 2339A(b). Section 426:
Terrorism-related specified activities for money laundering. Section 427: Assets of Persons Committing-Terrorist Acts Against Foreign Countries or International Organizations. The USA PATRIOT Act enacted a new forfeiture provision at 18 U.S.C. § 981(a)(1)(G) pertaining to the assets of any person planning or perpetrating an act of terrorism against the United States. This section adds a parallel provision pertaining to the assets of any person planning or perpetrating an act of terrorism against a foreign state or international organization while acting within the jurisdiction of the United States. Section 428: Technical and Conforming Amendments Relating to the USA PATRIOT Act. This section makes a number of corrections relating to provisions of the USA PATRIOT Act, mostly affecting money laundering or asset forfeiture. While essentially technical in nature, these amendments are critical, because typographical and other errors in the USA PATRIOT Act provisions are preventing prosecutors from fully utilizing that Act's tools. For example, certain new forfeiture authorities enacted by that Act refer to a non-existent statute, 31 U.S.C. § 5333, where 31 U.S.C. § 5331 is intended. Subsection (a) makes technical corrections to a number of provisions in the USA PATRIOT Act. Subsection (b) codifies section 316(a)-(c) of that Act as 18 U.S.C. § 987. Subsection (c) adds explicit language covering conspiracies to two offenses likely to be committed by terrorists (18 U.S.C. §§ 33 and 1366), conforming to section 811 of the USA PATRIOT Act, which added conspiracy language to other terrorism offense provisions. Title V: Enhancing Immigration and Border Security Section 501: Expatriation of Terrorists. Under 8 U.S.C. § 1481, an American can lose his citizenship by voluntarily, and with the intent to relinquish nationality, taking any of a number of actions, including: (1) obtaining Nationality in a foreign state; (2) taking an oath of allegiance to a foreign state; and, most importantly, (3) serving in the armed forces of a foreign state that are engaged in hostilities against the United States. The current expatriation statute does not, however, provide for the relinquishing of citizenship in cases where an American serves in a hostile foreign terrorist organization. It thus fails to take account of the myriad ways in which, in the modern world, war can be waged against the United States. This provision would amend 8 U.S.C. § 1481 to make clear that, just as an American can relinquish his citizenship by serving in a hostile foreign army, so can he relinquish his citizenship by serving in a hostile terrorist organization. Specifically, an American could be expatriated if, with the intent to relinquish nationality, he becomes a member of, or provides material support to, a group that the United States has designated as a "terrorist organization," if that group is engaged in hostilities against the United States. This provision-also would make explicit that the intent to relinquish nationality need not be manifested in words, but can be inferred from conduct. The Supreme Court already has recognized that intent can be inferred from conduct. See, e.g., Vance v. Terrazas, 444 U.S. 252, 260 (1980) (recognizing that the "intent to relinquish citizenship... . [can be] expressed in words or . . . found as a fair inference from proved conduct"); see also King v. Rogers, 463 F.2d 1188, 1189 (9th Cir. 1972) ("[Specific subjective intent to renounce United States citizenship ... may [be] prove[d] ... by evidence of an explicit renunciation, acts inconsistent with United States citizenship, or by affirmative voluntary act[s] clearly manifesting a decision to accept [foreign] nationality." (citations omitted)); United States v. Schiffer, 831 F. Supp. 1166, 1194 (E.D. Pa 1993) ("Specific intent may . . . be proven by evidence of what steps the alleged expatriate did or did not take in connection with his expatriating acts."), aff d without opinion, 31 F.3d 1175 (3rd Cir. 1994). Specifically, this proposal would make service in a hostile army or terrorist group prima facie evidence of an intent to renounce citizenship. Section 502: Enhanced Criminal Penalties for Violations of Immigration and Nationality Act. Aliens all too frequently flaunt the requirements of the Immigration and Nationality Act because that statute does not include effective criminal deterrence. There are minimal criminal penalties directly attached to fundamental violations, or there is no effective prosecution of fraudulent documents, marriage fraud, or unlawful employment of aliens. Criminal penalties in some cases are misdemeanors or require that a pattern and practice of violations be shown to warrant felony punishment. This provision would amend the INA to increase the penalties for a number of immigration crimes, including unlawful entries, alien-smuggling crimes, crimes involving fraud, and failures to depart. Section 503: Inadmissibility and Removability of National Security Aliens or Criminally Charged Aliens. The Attorney General does not have sufficient authority to bar an alien from the United States, or to remove an alien from the United States, on the basis of national security. The direct authority for barring admission or removing an alien does not provide sufficient authority for action based strictly on national security grounds. This provision would give the Attorney General sufficient authority to deny admission to the United States, or to remove from the United States, those individuals whom the Attorney General has reason to believe would pose a danger to the national security of the United States, based on the statutory definition of "national security" under the Act in connection with the designation of foreign terrorist organizations. The new ground of admissibility, and the new ground of removal, would parallel the authority currently granted to the Secretary of State in INA § 212(a)(3)(C)(i) to determine that an alien's entry or activities the Secretary has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States, thereby making the alien excludable. In this case, the Attorney, General must have reason to believe that the alien poses a danger to the national security of the United States and may deny admission. In addition, this provision would give the Attorney General the authority to bar from the United States aliens who have been convicted of, or charged with, serious crimes in other countries. Section 504: Expedited Removal of Criminal Aliens. Current law provides for the expedited removal of aliens in very limited circumstances. Expedited removal enables the government to quickly remove from the United States certain aliens who have been convicted of certain crimes, and renders the aliens ineligible for "discretionary relief." The expedited removal authorities (set forth in section 238(b) of the Immigration and Nationality Act, 8 U.S.C. § 1228(b)) only apply to nonpermanent resident aliens. In addition, only "aggravated felonies" can trigger expedited removal. But once an alien has been convicted of a criminal offense, any additional administrative process is unnecessary: a court has already found, beyond a reasonable doubt, that the alien has committed the acts which render him removable. Nor is there any reason to distinguish between aliens who are permanent residents and aliens who are not: for both types of aliens, the fact of a criminal conviction suffices to establish that a person is removable. This provision would strengthen the existing expedited removal authorities in several ways. First, it would expand the individuals subject to expedited removal to include all aliens, not just nonpermanent residents. Second, it would expand the expedited-removal-triggering crimes to include some of the offenses listed in INA § 237(a)(2)(A), (B), (C) & (D), including possession of controlled substances, firearms offenses, espionage, sabotage, treason, threats against the President, violations of the Trading with the Enemy Act, draft evasion, and certain alien smuggling crimes. Perversely, many of these offenses are far more serious than "aggravated felonies," and yet at present do not trigger expedited removal. In addition, this provision would curtail the authorities for contested judicial removal currently codified at INA § 238(c) (8 U.S.C. § 1228(c)). Contested judicial removal has been seldom utilized because its procedures are unduly cumbersome. They require the prosecutor and district judge to try immigration relief issues which are outside their areas of expertise-issues that particularly in the criminal context are properly committed to the Attorney General's discretion. The existing process also requires the INS Commissioner to make multiple submissions, once in presenting the immigration charges and basis, and then in responding to any relief request the aliens might make in the proceeding. The entire process significantly expands the scope of the criminal trial. The proposal to expand the streamlined administrative process to cover more aliens and more crimes would render contested judicial removal largely superfluous. This amendment would, however, preserve stipulated judicial orders as under existing subsection (c)(5). The amendment also would correct a technical error in the section numbering. Section 505: Clarification of Continuing Nature of Failure-to-Depart Offense, and Deletion of Provisions on Suspension of Sentence. The existing offense of failing to depart is defined in section 243(a)(1)(A) of the Immigration and Nationality Act (8 U.S.C. § 1253(a)(1)(A)). The statute applies to an alien's failure to depart "within a period of 90 days from the date of the final order." While this provision reasonably can be interpreted as a continuing offense, it is conceivable that aliens who have willfully remained in the United States for several years after a final order of removal might claim that prosecution is barred by the 5 year period of limitations. (18 U. S.C. § 3282). This amendment would clarify existing law by making it explicit that a willful failure to depart is a continuing offense. Specifically, it would amend section 243(a)(1)(A) to expressly state that it is unlawful for any alien against whom a final order of removal is outstanding willfully to remain in the United States more than 90 days after the date of the final order of removal under administrative processes, or if judicial review is had, then more than 90 days after the final order of the court. Subsection (b) of this proposal eliminates the authority of courts under 8 U.S.C. § 1253(a) to suspend for good cause the sentence of an alien convicted of failure to depart. This authority is inconsistent with the general principles of federal sentencing law, including the 1984 Sentencing Reform Act which, among other things, abolished suspension of sentence generally for federal offenses. The ability of courts to suspend sentences for failure to depart renders the potential criminal penalties for this offense ineffective. The Department does not expect that subsection (b) would be applied retroactively to offenders whose offenses occurred prior to the date of enactment. Section 506: Additional Removal Authorities. This. section augments the specification of places to which aliens may be removed under 8 U.S.C. § 1231(b), to provide additional options where the alien cannot be removed to any country currently specified in the statute. TITLE I - ENHANCING NATIONAL SECURITY AUTHORITIES Subtitle A: Foreign Intelligence Surveillance Act Amendments Sec. 101. Individual
Terrorists as Foreign Powers. TITLE II - PROTECTING NATIONAL SECURITY INFORMATION Sec. 201.
Prohibition of Disclosure of Terrorism Investigation Detainee Information.
Sec. 202. Distribution of "Worst Case Scenario" Information. TITLE III - ENHANCING INVESTIGATIONS OF TERRORIST PLOTS Subtitle A: Terrorism Identification Database Sec. 301. Short
Title. Subtitle B: Facilitating Information Sharing and Cooperation Sec. 311. State and
Local Information Sharing. Subtitle C: Facilitating International Terrorism Investigations Sec. 321. Authority
to Seek Search Warrants and Orders to Assist Foreign States. TITLE IV - ENHANCING PROSECUTION AND PREVENTION OF TERRORIST CRIMES Subtitle A: Increased Penalties and Protections Against Terrorist Acts Sec. 401. Terrorism
Hoaxes. Subtitle B: Incapacitating Terrorism Financing Sec. 421. Increased
Penalties for Terrorism Financing. TITLE V - ENHANCING IMMIGRATION AND BORDER SECURITY Sec. 501.
Expatriation of Terrorists. Sec. 428: Technical and Conforming Amendments Relating to the USA PATRIOT Act. (a) TECHNICAL CORRECTIONS.- (1) Sections 5312(a)(3)(C) and 5324(b) of title 31 are amended by striking "5333" each time it appears -and inserting "5331". (2) Section 322 of
Pub. L. 107-56 is amended by striking "title 18" and. (3) Section 5318(k)(1)(B) of title 31, United States Code, is amended by striking "5318A(f)(1)(B)" and inserting "5318A(e)(1)(B)". (4) Section 5332(a)(1) of title 31, United States Code, is amended by striking "article of luggage" and inserting "article of luggage or mail". (5) Section 1956(b)(3) and (4) of title 18, United States Code, are amended by striking "described in paragraph (2)" each time it appears; and (6) Section 981 (k) of title 18, United States Code, is amended by striking "foreign bank" each time it appears and inserting "foreign bank or financial institution". (b) CODIFICATION OF SECTION 316. - (1) Chapter 46-of title 18, United States Code, is amended -76- (A) in the chapter analysis, by inserting at the end the following: "987. Anti-terrorist forfeiture protection."; and adding at the end the following: "§ 987.
Anti-terrorist forfeiture protection |