Patriot Act II (draft)

Source document:

http://www.pbs.org/now/politics/patriot2-hi.pdf

Backgrounder information and anaysis

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

DOMESTIC SECURITY ENHANCEMENT ACT OF 2003

SECTION-BY-SECTION ANALYSIS

Title I: Enhancing National Security Authorities

Subtitle A: Foreign Intelligence Surveillance Act Amendments

Section 101: Individual Terrorists as Foreign Powers.

Under 50 U.S.C. § 1801(a)(4), the definition of "foreign power" includes groups that engage in international terrorism, but does not reach unaffiliated individuals who do so. As a result, investigations of "lone wolf" terrorists or "sleeper cells" may not be authorized under FISA. Such investigations therefore must proceed under the stricter standards and shorter time periods set forth in Title III, potentially resulting in unnecessary and dangerous delays and greater administrative burden. This provision would expand FISA's definition of "foreign power" to include all persons, regardless of whether they are affiliated with an international terrorist group, who engage in international terrorism.

Section 102: Clandestine Intelligence Activities by Agent of a Foreign Power.

FISA currently defines "agent of a foreign power" to include a person who knowingly engages in clandestine intelligence gathering activities on behalf of a foreign power--but only if those activities "involve or may involve a violation of" federal criminal law. Requiring the additional showing that the intelligence gathering violates the laws of the United States is both unnecessary and counterproductive, as such activities threaten the national security regardless of whether they are illegal. This provision would expand the definitions contained in 50 U.S.C. § 1801(b)(2)(A) & (B). Any person who engages in clandestine intelligence gathering activities for a foreign power would qualify as an "agent of a foreign power," regardless of whether those activities are federal crimes.

Section 103: Strengthening Wartime Authorities Under FISA.

Under 50 U.S.C. §§ 1811, 1829 & 1844, the Attorney General may authorize, without the prior approval of the FISA Court, electronic surveillance, physical searches, or the use of pen registers for a period of 15 days following a congressional declaration of war. This wartime exception is unnecessarily narrow; it may be invoked only when Congress formally has declared war, a rare event in the nation's history and something that has not occurred in more than sixty years. This provision would expand FISA's wartime exception by allowing the wartime exception

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

to be invoked after Congress authorizes the use of military force, or after the United States has suffered an attack creating an national emergency.

Section 104: Strengthening FISA's Presidential Authorization Exception.

50 U.S.C. § 1802 allows the Attorney General to authorize electronic surveillance for up to a year, without the FISA Court's prior approval, in two narrow circumstances: (1) if the surveillance is are directed solely at communications between foreign powers; or (2) if the surveillance is directed solely at the acquisition of technical intelligence, other than spoken communications, from property under the exclusive control of a foreign power. In addition, the Attorney General must certify that there is no substantial likelihood that such surveillance will acquire the communications of U.S. persons. (In essence, § 1802 authorizes the surveillance of communications between foreign governments, and between a foreign government and its embassy.) Section 1802 is of limited use, however, because it explicitly prohibits efforts to acquire spoken communications. (No such limitation exists in the parallel exception for physical searches, 50 U.S.C. § 1822(a), under which agents presumably could infiltrate a foreign power's property for the purpose of overhearing conversations.) This provision would enhance the presidential authorization exception by eliminating the requirement that electronic surveillance cannot be directed at the spoken communications of foreign powers.

Section 105: Law Enforcement Use of FISA Information.

50 U.S.C. § 1806(b) currently prohibits the disclosure of information "for law enforcement purposes" unless the disclosure includes a statement that the information cannot be used in a criminal proceeding without the Attorney General's advance authorization. This provision would amend § 1806(b) to give federal investigators and prosecutors greater flexibility to use FISA-obtained information. Specifically, it would eliminate the requirement that the Attorney General personally approve the use of such information in the criminal context, and would substitute a requirement that such use be approved by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or an Assistant Attorney General designated by the Attorney General.

Section 106: Defense of Reliance on Authorization.

50 U.S.C. § 1809(b) and 1827(b) create a defense for agents who engage in unauthorized surveillance or searches, or who disclose information without authorization, if they were relying on an order issued by the FISA Court. However, there does not appear to be a statutory defense for agents who engage in surveillance or searches pursuant to FISA authorities under which no prior court approval is required--e.g., pursuant to FISA's wartime exception (50 U. S.C. §§ 1811, 1829 & 1844), or FISA's presidential authorization exception (50 U.S.C. § 1802 & 1822(a)). This provision would clarify that the "good faith reliance" defense is available, not just when

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

agents are acting pursuant to a FISA Court order, but also when they are acting pursuant to a lawful authorization from the President or the Attorney General.

Section 107: Pen Registers in FISA Investigations.

50 U.S.C. § 1842(a)(1) makes FISA pen registers available in investigations of non-U.S. persons to "obtain foreign intelligence information." But for U.S. persons, the standard is much higher: in cases involving U.S. persons, pen registers are only available "to protect against international terrorism or clandestine intelligence activities." Perversely, this appears to be stricter than the standard for pen registers under Title III, which requires only that it be shown that the information "is relevant to an ongoing criminal investigation." 18 U.S.C. § 3123(a)(1). This provision would amend § 1842(a)(1) by eliminating the stricter standard for U.S. persons. Specifically, FISA pen registers would be available in investigations of both U.S. persons and non-U.S. persons whenever they could be used "to obtain foreign intelligence information."

Section 108: Appointed Counsel in Appeals to FISA Court of Review.

Under FISA, proceedings before the FISA Court and the Court of Review are conducted ex parte. As a result, when the Court of Review meets to consider an appeal by the United States, there is no party to defend the judgment of the court below. The FISA Court of Review thus is obliged to interpret sensitive and complicated statutes without the benefit of the adversary process. This provision would amend FISA to permit the FISA Court of Review, in its discretion, to appoint a lawyer, with appropriate security credentials, to defend the judgment of the FISA Court, when the United States appeals a ruling to the FISA Court of Review. It would also provide for the compensation of a lawyer so appointed by the FISA Court of Review.

Sec. 109: Enforcement of Foreign Intelligence Surveillance Court Orders.

The Foreign Intelligence Surveillance Act does not specify the means for enforcement of orders issued by the Foreign Intelligence Surveillance Court. Thus, for example, if a person refuses to comply with an order of the court to cooperate in the installation of a pen register or trap and trace device under 50 U.S.C. § 1842(d), or an order to produce records under 50 U.S.C. § 1861, existing law provides no clearly defined recourse to secure compliance with the court's order. This section remedies this omission by providing that the Foreign Intelligence Surveillance Court has the same authority as a United States district court to enforce its orders, including the authority to impose contempt sanctions in case of disobedience.

Sec. 110: Technical Correction Related to the USA PATRIOT Act.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Section 204 of the USA PATRIOT Act clarified that intelligence exceptions from the limitations on interception and disclosure of wire, oral, and electronic communications continue to apply, notwithstanding section 216 of the Act. Section 224 sunsetted several provisions of the Act on December 31, 2005. Although section 216 was not included in the sunset provision, section 204's clarifying language was sunsetted. If not corrected, this anomaly will result in the loss of valuable and necessary intelligence exemptions to the pen register and trap and trace provisions after December 31, 2005. This provision would eliminate this anomaly and treat the clarifying language of section 204 the same as section 216.

Sec. 111. International Terrorist Organizations as Foreign Powers.

Groups engaged in international terrorism are included under the definition of "foreign power" in FISA. See 50 U.S.C. § 1801(a)(4). However, for certain purposes--including the duration of surveillance orders and the definition of what constitutes a "United States person"--they are effectively excluded from the concept of foreign powers, and accorded the more protected treatment that FISA provides to other entities. This section amends FISA so that international terrorist organizations are consistently treated as foreign powers for these purposes.

More specifically, there are basically two sets within the FISA definition of "foreign power" under 50 U.S.C. § 1801(a): (i) A paragraph (1)-(3) set, which includes foreign governments, foreign factions, and entities that foreign governments openly acknowledge they direct and control. (ii) A paragraph (4)-(6) set, which includes groups engaged in international terrorism or preparations therefor, foreign-based political organizations not substantially composed of U.S. persons, and entities directed and controlled by foreign governments.

50 U.S.C. §§ 1805(e) and 1824(d) define the authorization periods for electronic surveillance and physical searches under FISA. The basic authorization and extension periods are 90 days, but longer for surveillance and searches relating to certain foreign powers. Specifically, the authorization and extension periods for foreign powers in the paragraph (1)(3) set--foreign governments, foreign factions, and entities for which foreign governments openly acknowledge direction and control--are up to a year. In contrast, for foreign powers in the paragraph (4)-(6) set--international terrorist organizations, foreign-base political organizations not substantially composed of U.S. persons, and entities directed and controlled by foreign governments--the initial authorization period is no more than 90 days. The extension period for foreign powers in the paragraph (4)-(6) set is also no more than 90 days, unless certain restrictions and special finding requirements are satisfied. (Specifically, the extension period may be up to a year for an order relating to a foreign-based political organization not substantially composed of U.S. persons or an order relating to an entity directed and controlled by a foreign government, and up to a year for an order relating to an international terrorist organization that is not a U.S. person, if the judge finds probable cause to believe that no communication or property of any individual U.S. person will be acquired.)

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Another context in which different types of "foreign powers" are treated differently is the FISA definition of "United States person." United States persons have a more protected status under FISA for certain purposes, such as dissemination of information. The existing definition of "United States person" in 50 U.S.C. § 1801(i) categorically excludes a corporation or association which is a foreign power--but only if it falls in the paragraph (1)-(3) set.

The effect of the foregoing provisions is that, even if probable cause is established that a group is an international terrorist organization, it may be subject only to brief periods of surveillance absent renewal, and it may be accorded the protected status of a United States person. The amendments in this section will facilitate the investigation of threats to the national security posed by such groups by reassigning them to the less protected status now accorded to foreign powers in the paragraph (1)-(3) set. Thus, the normal authorization and extension periods for surveillance of international terrorist organizations would be up to a year, and corporations and associations which are international terrorist organizations would not be treated as United States persons under FISA.

Subtitle B: Enhancement of Law Enforcement Investigative Tools

Section 121: Definition of Terrorist Activities.

This section adds a definition of "terrorist activities" to the definitional section for the chapter of the criminal code governing electronic surveillance (chapter 119). The definition encompasses criminal acts of domestic and international terrorism as defined in 18 U.S.C. § 2331, together with related preparatory, material support, and criminal activities. The same definition of terrorist activities would also apply through cross-referencing provisions, see 18 U.S.C. § 2711(1) and 3127(1) (as amended), in the chapters of the criminal code that govern accessing stored communications and the use of pen registers and trap and trace devices (chapters 121 and 206).

The surveillance chapters of the criminal code contain many provisions which state that the authorized surveillance activities may be carried out as part of "criminal investigations." Section 121 also adds a provision to 18 U.S.C. § 2510 which specifies that "criminal investigations" include all investigations of criminal terrorist activities, to make it clear that the full range of authorized surveillance techniques are available in investigations of "terrorist activities" under the new definition.

Section 122: Inclusion of Terrorist Activities as Surveillance Predicates.

This section adds terrorist activities, as defined under the amendment of section 121, and four specific offenses that are likely to be committed by terrorists (the offenses defined by 18 U.S.C. § 37, 930(c), 956, and 1993), as explicit predicates for electronic surveillance and monitoring. It further adds an explicit reference to terrorist activities to the provision authorizing electronic

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

surveillance without a court order in emergency situations--18 U.S.C. § 2518(7)--and makes conforming changes in the corresponding provision (18 U.S.C. § 3125) for using pen registers and trap and trace devices without a court order in emergency situations.

The final subsection of this section modifies the definition of "court of competent jurisdiction" in 18 U.S.C. § 3127(2), to correct an unintended effect of amendments in sections 216(c)(1) and 220 of the USA PATRIOT Act. The purpose of the amendments was to authorize courts having jurisdiction over an offense to issue orders for pen registers and trap and trace devices, and search warrants for the disclosure of e-mails, which could be executed outside of their districts. However, the language utilized inadvertently created a lack of clarity concerning the continued validity of the pre-existing authority of the courts to issue such orders and warrants for execution within their own districts (regardless of whether they have "jurisdiction over the offense").

This threatens to be a serious practical problem when information gathering in the United States is needed in response to requests by foreign law enforcement agencies to assist in foreign terrorism (or other criminal investigations) and to fulfill the United States' obligations under mutual legal assistance treaties, and in the context of investigations relating to crimes committed on U.S. military bases abroad, because in those cases the U.S. courts generally do not have jurisdiction over the offense. This section corrects the problem in relation to pen register and trap and trace orders through definitional language that explicitly includes both a court with jurisdiction over the offense or activities being investigated, and a court in the district in which the order will be executed. A parallel correction for the problem relating to search warrants for e-mails appears in section 125(b) of this bill.

Section 123: Extension of Authorized Periods Relating to Surveillance and Searches in Investigations of Terrorist Activities.

In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court held for the first time that government wiretapping was subject to the Fourth Amendment. In response, Congress enacted Title III of the 1968 Omnibus Crime Control and Safe Streets Act, 28 U.S.C. §§ 2510-2522, which governs electronic surveillance for all federal criminal offenses. Congress also subsequently enacted the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2701-2712, which addresses government access to stored communications, and established statutory standards and procedures for the use of pen registers and trap and trace devices, 18 U.S.C. §§ 3121-3127. Further, because Katz and progeny specifically stated that the Court did not hold that the same Fourth Amendment restrictions applied with respect to the activities of foreign powers and their agents, in 1978 Congress enacted the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-1862, which establishes standards applicable to surveillance of foreign powers and agents of foreign powers--including electronic surveillance, physical searches, and use of pen registers and trap and trace devices--in relation to the investigation of such matters as international terrorism and espionage.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Congress has not provided separate statutory standards governing investigations of wholly domestic threats to the national security, particularly domestic terrorism. Thus, such investigations are subject to the time limits set forth in Title III. However, the Supreme Court in United States v. United States District Court ("Keith"), 407 U.S. 297 (1972), explicitly recognized that domestic security investigations would require different standards than those set forth in Title III:

"We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of 'ordinary crime.' The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime."

Id. at 322. Because domestic security investigations were subject to Title III, despite these considerations, the Court invited Congress to legislate new and different standards for such investigations:

"Given [the] potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."

Id.

In Keith, the court noted that, with respect to surveillance in domestic security cases, "the time and reporting requirements need not be so strict as those in § 2518." Id. at 323. This section accepts the Court's invitation and extends, in investigations of terrorist activities, a number of statutory time limits or periods relating to electronic surveillance or monitoring and searches. The specific changes are:

(1) Amend 18 U.S.C. § 2518(5) to extend the normal duration of electronic surveillance orders in investigations of terrorist activities from 30 days to 90 days.

(2) Amend 18 U.S.C. § 2518(6), which provides that an electronic surveillance order may require periodic progress reports to the judge who issued the order "at such intervals as

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

the judge may require." As amended, the provision would not allow reports to be required at shorter intervals than 30 days in investigations of terrorist activities.

(3) Amend 18 U.S.C. § 2705, which permits delaying notification concerning the accessing of a person's stored electronic communications where specified "adverse results" would result from the notification. As amended, the provision would include endangerment of the national security as a specified adverse result that permits delaying notification.

(4) Amend 18 U.S.C. § 3123 to extend the normal authorization periods for pen registers and trap and trace devices in investigations of terrorist activities from 60 days to 120 days.

Section 124: Multi-function Devices

Electronic manufacturers increasingly are producing devices that are capable of performing multiple functions--e.g., cell phones that also can send e-mail like a Blackberry, and that include a calendar like a Palm Pilot. Multiple functions are also illustrated by ordinary home computers, which may, for example, be used to send and receive e-mail messages, to engage in oral communications through an Internet phone service, to store sent and received messages, and to store other information. Current law does not make it clear that the authorization (e.g., under an electronic surveillance order) to monitor one of a device's functions also entails the authority to monitor other functions.

This section accordingly amends 18 U.S.C. § 2518(4) to make it clear that authorization of electronic surveillance with respect to a device, unless otherwise specified, may be relied on to intercept and access communications through any of the device's functions. The section also effectively allows a search warrant for other information retrievable from the device (whether or not related to the intercepted communications) to be combined with the electronic surveillance order, and makes conforming changes in the chapters relating to accessing stored communications and pen registers and trap and trace devices.

The section further incorporates a correction for an unintended consequence of amendments in section 220 of the USA PATRIOT Act. As discussed in relation to section 122 of the bill above, amendments designed to authorize courts having jurisdiction over an offense to issue search warrants for the disclosure of e-mails outside of their districts have inadvertently clouded the pre-existing authority of the courts to issue such orders and warrants for execution within their own districts. This section corrects the problem by amending the pertinent language in 18 U.S.C. § 2703(b)(1)(A) and (c)(1)(A) to refer to a court in a district in which a provider of electronic communications service is located, as well as a court having jurisdiction over the offense or activities under investigation.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Section 125: Nationwide Search Warrants in Terrorism Investigations.

Federal Rule of Criminal Procedure 41(a)(3) currently authorizes judges in one district to issue search warrants that are valid in another district, if the crime being investigated is "domestic terrorism or international terrorism" as defined in 18 U.S.C. § 2331. But § 2331 sets forth an extremely narrow definition of terrorism, as it is limited to "violent acts or acts dangerous to human life." Thus section 2331 arguably does not include investigations into terrorist financing, or other crimes that terrorists are likely to commit. As a result, a federal judge sitting in New York would be able to issue a search warrant that is valid in California in an investigation of a plot to bomb a building, but arguably could not issue the same warrant if the investigation concerned the raising of money to support terrorist operations.

This provision would expand the types of terrorism crimes for which judges may issue search warrants that are valid nationwide. Specifically, it would authorize nationwide search warrants in investigations of the offenses listed in 18 U.S.C. § 2332b(g)(5)(B), including computer crimes, attacks on communications infrastructure, and providing material support to terrorists or terrorist organizations.

Section 126: Equal Access to Consumer Credit Reports.

In recent years, it has become increasingly apparent that law enforcement investigators need access to suspected terrorists' banking information to determine their connections to terrorist organizations, including financial ties. The current version of 15 U.S.C. § 1681b(a)(1) allows investigators to obtain a suspect's credit report-the first step in locating his banking recordsonly in response to a court order or a federal grand jury subpoena. As a result, law enforcement cannot obtain a suspect's banking information without issuing multiple timeconsuming subpoenas. In some cases, it can take a series of three subpoenas--first to the credit reporting agency, then to the suspect's creditors, then to the suspect's banks--and a period of nine to 12 weeks to learn where a suspected terrorist keeps his accounts. Perversely, the law makes it far easier for private entities to obtain an individual's credit reports; under 15 U.S.C. § 1681b(a)(3)(F), a private entity can obtain--usually within minutes--a credit report on anyone in the United States so long as it has a "legitimate business need" for the information.

This provision would enable the government to obtain credit reports on virtually the same terms that private entities may. Specifically, it would amend § 1681b(a)(1) to allow law enforcement officers to obtain credit reports upon their certification that they will use the information only in connection with their duties to enforce federal law. This certification parallels the existing requirement that a private entity must have a "legitimate business need" before obtaining a credit report. In addition, to avoid alerting terrorists that they are under investigation, this provision would prohibit (absent court approval) disclosing to a consumer the fact that law enforcement has sought his credit report.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Section 127: Autopsy Authority.

Autopsies of the victims of terrorist attacks and other deadly crimes, as well as other persons, can be an effective way of obtaining information about the perpetrators. In addition to revealing the cause of death, autopsies sometimes enable law enforcement to retrieve forensic evidence (such as bomb fragments) from the deceased's body. The primary need for federal autopsy authority arises in the case of offenses, including acts of terrorism, outside the United States. At present, however, except in cases involving military personnel, the United States has no statutory authority to conduct autopsies. When a non-military United States national dies abroad as a result of a possible offense against the United States, the victim's body typically must be transported back to the United States before an autopsy can be performed; this may significantly delay both the return of the loved one's remains to family members, as well as cause significant delays in the criminal investigation.

This provision would create federal authority, in the Attorney General, to conduct autopsies when necessary or appropriate in the conduct of federal criminal investigations. This authority is not limited and may be delegated to other officers. This proposal is not intended to result in the hiring of medical examiners by federal law enforcement agencies. Rather, the autopsies will be performed by local coroners, private forensics investigators, or the Armed Forces Medical Examiner and his staff.

Section 128: Administrative Subpoenas in Terrorism Investigations.

The Department of Justice currently has the authority to issue administrative subpoenas in investigations of a wide variety of federal offenses, including health-care fraud, see 18 U.S.C. § 3486(a)(1)(A), immigration violations, see 8 U.S.C. § 1225(a), and false claims against the United States, see 31 U.S.C. § 3733. But administrative subpoenas are not available in investigations of terrorism, even though the consequences of a terrorist attack are far more dire than committing simple fraud against the United States government. As a result, lawenforcement personnel are required to seek grand jury subpoenas before individuals who may have information relevant to a terrorism investigation can be compelled to testify or provide documents.

This provision would extend the existing administrative-subpoena authorities into investigations involving domestic or international terrorism. It also would prohibit a subpoena recipient from disclosing to any other person (except to a lawyer in order to obtain legal advice) the fact that he has received a subpoena. This proposal would not give the Justice Department a unilateral, unreviewable authority to compel production of documents relevant to a terrorism investigation. If recipients refuse to comply with subpoenas, the Justice Department would have to ask a court to enforce them. And subpoena recipients would retain the ability, as they do in other contexts, to ask a court to quash the subpoena. See, e.g., In re Administrative Subpoena, John Doe, D.P.M., 253 F.3d 256 (6th Cir. 2001).

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Sec. 129: Strengthening Access to and Use of Information in National Security Investigations.

This section is primarily concerned with correcting problems and weaknesses in provisions authorizing the use of "national security letters." In substance, national security letters are administrative subpoenas that may be issued by FBI officials--or in some instances, other authorized government officials-to obtain specified types of records or information for use in national security investigations. The existing national security letter provisions include the following:

(1) 18 U.S.C. § 2709--Providing FBI access, in connection with investigations of international terrorism or espionage, to certain electronic communication transactional records maintained by communication service providers.

(2) Section 625(a)-(b) of the Fair Credit Reporting Act (15 U.S.C. § 168 Iu(a)(b))--Providing FBI access, in connection with investigations of international terrorism or espionage, to certain consumer information maintained by consumer reporting agencies.

(3) Section 626 of the Fair Credit Reporting Act (15 U.S.C. § 1681v)--Providing access to consumer reports and other consumer information maintained by consumer reporting agencies, where needed by government agencies authorized to investigate or carry out intelligence or analysis activities related to international terrorism.

(4) Section 1114(a)(5) of the Right to Financial Privacy Act (12 U.S.C. § 3414(a)(5))--Providing FBI access, in connection with investigations of international terrorism or espionage, to financial records maintained by financial institutions.

(5) Section 802(a) of the National Security Act of 1947 (50 U.S.C. § 436(a))--Providing access by authorized investigative agencies to financial records and information, consumer reports, and travel records in relation to a person having access to classified information, based on indications that the person has disclosed or may disclose classified information to a foreign power.

Problems under these provisions include the following: (1) The statutes in which the national security letter provisions appear generally prohibit persons from disclosing that they have received these requests for information, to safeguard the integrity of the terrorism and espionage investigations in which national security letters are used. However, they specify no penalty for persons who make such unlawful disclosures. (2) While these statutes create a legal obligation for the recipient to provide the requested information, they do not specify any procedures for judicial enforcement in case the recipient refuses to comply with the request. (3) The scope of the national security letter provisions on the terrorism side is generally limited to international

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

terrorism; however, the distinction between international and domestic terrorism is increasingly elusive in contemporary circumstances. (4) These provisions are restrictive regarding the sharing of information among federal agencies with relevant responsibilities. This is in conflict with current needs and with the broad principles favoring the sharing of intelligence among federal agencies under the USA PATRIOT Act.

Subsection (a) of this section provides appropriate penalties for violations of the nondisclosure provisions of the national security letter provisions. Currently, 18 U. S.C. § 1510(b) makes it an offense for an officer of a financial institution to notify other persons about a grand jury subpoena or an administrative subpoena issued by the Department of Justice for records of the financial institution. The offense is punishable by up to a year of imprisonment, or up to five years of imprisonment if the disclosure was made with the intent to obstruct a judicial proceeding. Similarly, 18 U.S.C. § 1510(d) makes it an offense, punishable by up to five years of imprisonment, for an insurance company employee to notify other persons about a grand jury subpoena for records with intent to obstruct a judicial proceeding.

Subsection (a) of this section adds a parallel offense (proposed 18 U.S.C. § 1510(e)) covering violations of the non-disclosure requirements of the national security letter provisions described above. As with current 18 U.S.C. § 1510(b), the offense would be a misdemeanor punishable by up to a year of imprisonment, but would be punishable by up to five years of imprisonment if the unlawful disclosure was committed with the intent to obstruct the terrorism or espionage investigation. In addition to providing appropriate penalties for unlawful disclosure of national security letter requests, the same penalties would apply to: (i) violation of the non-disclosure requirement under 50, U. S .C. § 1861(d) for orders of the Foreign Intelligence Surveillance Court requiring the production of records, documents, and other tangible things in connection with investigations to obtain foreign intelligence information about non-United States persons or to protect against international terrorism or espionage, and (ii) violation of the non-disclosure provision of proposed 18 U.S.C. § 2332f(d) in section 129 of this bill, relating to administrative subpoenas in terrorism investigations.

The national security letter provisions make compliance with the request for information mandatory. See 12 U.S.C. § 3414(a)(5)(A); 15 U.S.C. § 1681u(a)-(b), 1681v(a); 18 U.S.C. § 2709(a); 50 U.S.C. § 436(c). However, they make no provision for judicial enforcement in case this legal obligation is not met. Subsection (b) of this section authorizes the Attorney General to seek judicial enforcement in such cases. This is similar, for example, to the existing judicial enforcement provision in 18 U.S.C. § 3486(c) for administrative subpoenas under that section.

Subsection (c) of this section amends the national security letter provisions relating to electronic communication transactional records, consumer credit information, and financial institution records, so that they apply in investigations of all types of terrorist activities. The specific amendments involve substituting, for current references in these provisions to

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

investigations relating to "international terrorism," references to investigations relating to "terrorist activities." The latter notion is defined in proposed 18 U.S.C. § 2510(20) in section 121 of this bill so as to include domestic, as well as international, terrorism. The limitation to international terrorism in existing law is an impediment to the effective use of national security letters because it may not be apparent in the early stages of a terrorism investigation-or even after it has continued for some time-whether domestic or international terrorism is involved. The Oklahoma City bombing and the anthrax letter incidents illustrate this point. Moreover, in the current circumstances, domestic terrorists who attempt to ally with or are inspired to emulate international terrorists are an increasing concern. The dangers posed to the national security by such persons may be comparable to those posed by international terrorists, and national security letters should likewise be an available tool in the investigation of their criminal activities.

Subsection (d) of this section deletes or modifies language in the national security letter provisions which unduly limits information sharing among federal agencies. For example, 18 U.S.C. § 2709 is the national security letter provision for electronic communication transactional records. Subsection (d) of § 2709 states that the FBI may disseminate information and records obtained pursuant to that section only as provided in guidelines approved by the Attorney General "for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency." The reference to guidelines that relate to "foreign intelligence collection and foreign counterintelligence investigations" is inconsistent with the amendment proposed in subsection (c) of this section to extend the scope of 18 U.S.C. § 2709 to include investigations of domestic terrorism, as well as international terrorism. The restrictive language regarding information sharing with other federal agencies is in conflict with the principles favoring broad sharing of intelligence among federal agencies under section 203 of the USA PATRIOT Act (Pub. L. 107-56).

Subsection (c) of this section accordingly deletes the restrictive language quoted above in 18 U.S.C. § 2709(d), so that it states simply that the FBI may disseminate information and records obtained under § 2709 only as provided in guidelines approved by the Attorney General. Subsection (c) also makes similar changes in the other national security letter provisions. The general effect of the amendments is to remove existing impediments to the sharing of information obtained by means of national security letters in terrorism and espionage investigations with other federal agencies having relevant responsibilities.

Title II: Protecting National Security Information

Section 201: Prohibition of Disclosure of Terrorism Investigation Detainee Information.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

In certain instances, the release of information about persons detained in connection with terrorism investigations could have a substantial adverse impact on the United States' security interests, as well as the detainee's privacy. Cf. North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 217-19 (3d Cir. 2002). Publicizing the fact that a particular alien has been detained could alert his coconspirators about the extent of the federal investigation and the imminence of their own detention, thus provoking them to flee to avoid detention and prosecution or to accelerate their terrorist plans before they can be disrupted.

Although existing Freedom of Information Act (FOIA) exemptions 7(A), 7(C), and 7(F) (5 U.S.C. § 552(b)(7)) permit the government to protect information relating to detainees, defending this interpretation through litigation requires extensive Department of Justice resources, which would be better spent detecting and incapacitate terrorists. This provision thus establishes a specific authority under Exemption 3 of the FOIA to clarify what is already implicit in various FOIA exemptions: the government need not disclose information about individuals detained in investigations of terrorism until disclosure occurs routinely upon the initiation of criminal charges.

Section 202: Distribution of "Worst Case Scenario" Information.

Section 112(r) of the Clean Air Act, 42 U. S.C. § 7412(r), requires private companies that use potentially dangerous chemicals to submit to the Environmental Protection Agency a "worst case scenario" report detailing what would be the impact on the surrounding community of release of the specified chemicals. Such reports are a roadmap for terrorists, who could use the information to plan attacks on the facilities.

This provision would revise section 112(r)(7)(H) of the Clean Air Act to better manage access to information contained in "worst case scenario" reports. This revised section would continue to allow such information to be shared with federal and state officials who are responsible for preventing or responding to accidental or criminal releases. However, the revised section will require that public access be limited to "read-only" methods, and only to those persons who live or work in the geographical area likely to be affected by a worst-case release from a facility.

Section 203: Information Relating to Capitol Buildings.

The Congressional Accountability Act of 1995, 2 U.S.C. § 1301 et seq., establishes the Office of Compliance, a congressional office that has the power to enforce OSHA standards with respect to the working conditions of legislative branch employees. OSHA often assists the Office in its work, see 2 USC. § 1382(e) & 1385(b), and therefore the agency sometimes obtains securitysensitive information (e.g., the layout of government buildings, and the location of air circulation equipment and ventilation ducts). Terrorists may be able to obtain this information from OSHA via a FOIA request. To ensure that congressional officials can provide necessary information with

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

the assurance that it will not be publicly released, this provision makes clear that such information is exempt from disclosure under FOIA Exemption 3.

Section 204: Ex Parte Authorizations Under Classified Information Procedures Act.

Under the current version of the Classified Information Procedures Act, 18 U.S.C. App. 3 § 116, courts have discretion over whether to approve the government's request for a CIPA authorization-which enables the submission of sensitive evidence ex parte and in camera. See 18 U.S.C. App. 3 § 4 ("The court may permit the United States to make a request for such authorization [for a protective order] in the form of a written statement to be inspected by the court alone." (emphasis added)). As a result, the government is forced to divert valuable resources to litigating this question. And even worse, a request for confidentiality itself can be a security breach: the government risks disclosing sensitive national-security information simply by explaining in open court why the information should be redacted. See, e.g., United States v. Rezaq, 899 F. Supp. 697, 707 (D.D.C. 1995) (government's CIPA pleadings must be served "on the defendant and then litigated in an adversarial hearing").

This provision would amend CIPA to provide that courts shall allow the United States to make a request for a CIPA authorization ex parte and in camera. This amendment would not affect the showing that the United States is required to make in order to obtain a protective order, but by replacing "may" with "shall," the United States will be able to obtain the court's guidance in every case in which classified information may potentially be discoverable, without risking disclosure of the very secrets that it seeks to protect. See United States v. Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (upholding the use under CIPA of ex parte, in camera hearings and written submissions by the government when the court is required to make discovery determinations).

Section 205: Exclusion of United States Security Requirements from Gross Income of Protected Officials.

Under current tax law, certain federal officials--those whose movements are restricted, or who are required to use specific facilities, for their physical protection in the interest of the United States' national security--may be taxed on the value of these protective "services." See 26 C.F.R. 1.132-5(m) (describing the circumstances under which police protection and related transportation expenses may be deemed to be working condition fringe benefits). Due to the recent terrorist threats, an increasing and variable number of government officials--including Cabinet and subcabinet officers, congressional leaders, and Justices of the Supreme Court--have begun to receive protective services, and now find themselves taxed on the value of these services.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Accordingly, this provision would add a provision to the Internal Revenue Code to clarify that required security measures jointly determined by the Secretary of the Treasury, the Attorney General, and the Director of Central Intelligence, are excludable from the gross income of the protected officials. This provision is limited to provisions from appropriate fluids to be consistent with restrictions on the receipt of private funds for public purposes, and to ensure that the exclusion is limited to the public security purpose.

Section 206: Grand Jury Information in Terrorism Cases.

This section amends Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure to make witnesses and persons to whom subpoenas are directed subject to grand jury secrecy rules in cases where serious adverse consequences may otherwise result, including danger to the national security or to the life or physical safety of an individual, flight from prosecution, destruction of or tampering with evidence, intimidation of a potential witness, or other serious jeopardy to an investigation. The provision would permit witnesses and recipients of grand jury subpoenas to consult with counsel regarding the subpoena and any testimony, but would impose the same secrecy obligations on counsel.

Title III: Enhancing Investigations of Terrorist Plots

Subtitle A: Terrorism Identification Database

Section 301: Short Title.

This provision indicates that Title III, Subtitle B may be referred to as the "Terrorist Identification Database Act of 2003."

Section 302: Collection and Use of Identification Information from Suspected Terrorists and Other Sources.

Current law permits the FBI to establish an index to collect DNA identification records of persons convicted of certain crimes, and DNA samples recovered from crime scenes and unidentified human remains. 42 U.S.C. § 14132. However, the law does not directly address the FBI's authority to collect and use DNA samples of terrorists or those suspected of terrorism. It would be extremely beneficial to clarify how DNA samples from suspects, such as samples taken from unlawful combatants at Guantanaino Bay, can be used as necessary for counterterrorism and law-enforcement purposes. Section 302 would allow the Attorney General or Secretary of Defense to collect, analyze, and maintain DNA samples and other identification information from "suspected terrorists"--i.e., (1) persons suspected of engaging in terrorism as defined in 18 U.S.C. § 2331 (1) & (5), or committing an offense described in 18 U.S.C. § 2332b(g)(5)(B), or persons conspiring or attempting to do so; (2) enemy combatants or other battlefield detainees;

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(3) persons suspected of being members of a terrorist organization; and (4) certain classes of aliens including those engaged in activity that endangers national security.

Section 303: Establishment of Database to Facilitate Investigation and Prevention of Terrorist Activities.

This provision would allow the Attorney General to establish databases of DNA records pertaining to the terrorists or suspected terrorists from whom DNA samples or other identification information have been collected. All federal agencies, including the Department of Defense and probation offices, would be required to give the Attorney General, for inclusion in the databases, any DNA records, fingerprints, or other identification information that can be collected under this Subtitle. This provision also allows the Attorney General to use the information to detect, investigate, prosecute, prevent, or respond to terrorist activities, or other unlawful activities by suspected terrorists. In addition, the Attorney General would be able to share the information with other federal, state, local, or foreign agencies for the same purposes.

Section 304: Definitions.

This section would establish definitions for the terms "DNA sample" and "DNA analysis." It also would define "suspected terrorist," which describes the class of individuals from whom the Attorney General may acquire DNA samples and other identification information, and whose information may be included in DNA databases.

Section 305: Existing Authorities.

This provision would establish that the new authorities created by this Subtitle are in addition toy authorities that may exist under any other source of law. It also would provide that this Subtitle shall not construed to preclude the receipt, collection, analysis, maintenance, or dissemination of evidence or information pursuant to any other source of law.

Section 306: Conditions of Release.

This provision would amend several portions of the United States Code to clarify that terrorists or suspected terrorists who are under any form of federal supervision or conditional release, including parole, are subject to this Subtitle's provisions. These individuals would be in the physical custody of the United States but for an act of governmental discretion. This section would require such individuals to cooperate in the collection of a DNA sample as a condition of supervision or conditional release.

Subtitle B: Facilitating Information Sharing and Cooperation

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Section 311: State and Local Information Sharing.

Section 203 and other provisions of the USA PATRIOT Act broadened authority to share information among federal agencies that may be relevant to the detection and prevention of terrorism, and to obtain otherwise confidential information for use in terrorism investigations. That Act, however, did not adequately address the need for enhanced information sharing authority in relation to state and local officials and foreign governments, who are the critical partners of the United States in investigating terrorist crimes and preventing future terrorist attacks. This section of the bill would provide further authority for sharing of consumer credit information, visa-related information, and educational records information with state and local law enforcement, thereby enacting the remainder of the information sharing proposals that have been proposed legislatively and endorsed by the Administration and the Department of Justice. See Letter of Assistant Attorney General Daniel J. Bryant to Honorable Patrick J. Leahy concerning S. 1615 (April 30, 2002).

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

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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 modern 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 emergencyservices 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

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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 o 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 Immigration 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 any 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

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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 WMD 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

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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 (§ 3142(f)(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

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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 commerce. 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. § 3583(j), 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.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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 reimprisonment 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 in 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. § 3583(j) 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. § 3583(j) 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

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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--such 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

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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 filly $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

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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.I. 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 taxexempt organizations under section 501 of the Internal Revenue Code can retain their taxexempt status. And individuals who contribute to these designated "terrorist organizations" still are able to deduct those contributions.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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.

This section adds three terrorism-related provisions to the list of specified unlawful activities that serve as predicates for the money laundering statute, 18 U.S.C. § 1956. Subsection (a) adds as a RICO predicate the offense in 18 U.S.C. § 1960 (relating to illegal money transmitting businesses), which has the effect of making this offense a money laundering predicate through the cross-reference in 18 U.S.C. § 1956(b)(7)(A). Subsection (b) directly adds as money laundering predicates the new terrorist-financing offense in 18 U.S.C. § 2339C and the offense of misusing social security numbers under 42 U.S.C. § 408.

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

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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) ("[S]pecific 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. Schffer, 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.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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 expertiseissues 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.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

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. § 123 1(b), to provide additional options where the alien cannot be removed to any country currently specified in the statute.

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

A BILL

To enhance the domestic security of the United States of America, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE. -- This Act may be cited as the "Domestic Security Enhancement Act
of 2003."
(b) TABLE OF CONTENTS. -- The table of contents of this Act is as follows:
Sec. 1. Short Title; Table of Contents.
TITLE I -- ENHANCING NATIONAL SECURITY AUTHORITIES
Subtitle A: Foreign Intelligence Surveillance Act Amendments
Sec. 101. Individual Terrorists as Foreign Powers.
Sec. 102. Clandestine Intelligence Activities by Agent of a Foreign Power.
Sec. 103. Strengthening Wartime Authorities Under FISA.
Sec. 104. Strengthening FISA's Presidential Authorization Exception.
Sec. 105. Law Enforcement Use of FISA Information.
Sec. 106. Defense of Reliance on Authorization.
Sec. 107. Pen Registers in FISA Investigations.
Sec. 108. Appointed Counsel in Appeals to FISA Court of Review.

- 1 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Sec. 109. Enforcement of Foreign Intelligence Surveillance Court Orders.
Sec. 110. Technical Correction Related to the USA PATRIOT Act.
Sec. 111. International Terrorist Organizations as Foreign Powers.
Subtitle B: Enhancement of Law Enforcement Investigative Tools
Sec. 121. Definition of Terrorist Activities.
Sec. 122. Inclusion of Terrorist Activities as Surveillance Predicates.
Sec. 123. Extension of Authorized Periods Relating to Surveillance and Searches in
Investigations of Terrorist Activities.
Sec. 124. Multi-function Devices.
Sec. 125. Nationwide Search Warrants in Terrorism Investigations.
Sec. 126. Equal Access to Consumer Credit Reports.
Sec. 127. Autopsy Authority.
Sec. 128. Administrative Subpoenas in Terrorism Investigations
Sec. 129. Strengthening Access to and Use of Information in National Security
Investigations.
TITLE II -- PROTECTING NATIONAL SECURITY INFORMATION
Sec. 201. Prohibition of Disclosure of Terrorism Investigation Detainee Information.
Sec. 202. Distribution of "Worst Case Scenario" Information.
Sec. 203. Information Relating to Capitol Buildings.
Sec. 204. Ex Parte Authorizations Under Classified Information Procedures Act.

- 2 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Sec. 205. Exclusion of United States Security Requirements from Gross Income of
Protected Officials.
Sec. 206. Grand Jury Information in Terrorism Cases.
TITLE III -- ENHANCING INVESTIGATIONS OF TERRORIST PLOTS
Subtitle A: Terrorism Identification Database
Sec. 301. Short Title.
Sec. 302. Collection and Use of Identification Information from Suspected Terrorists and
Other Sources.
Sec. 303. Establishment of Database to Facilitate Investigation and Prevention of Terrorist
Activities.
Sec. 304. Definitions.
Sec. 305. Existing Authorities.
Sec. 306. Conditions of Release.
Subtitle B: Facilitating Information Sharing and Cooperation
Sec. 311. State and Local Information Sharing.
Sec. 312. Appropriate Remedies with Respect to Law Enforcement Surveillance Activities.
Sec. 313. Disclosure of Information.
Subtitle C: Facilitating International Terrorism Investigations
Sec. 321 Authority to Seek Search Warrants and Orders to Assist Foreign States.
Sec. 322. Extradition Without Treaties and for Offenses Not Covered by an Existing Treaty.

- 3 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

TITLE IV -- ENHANCING PROSECUTION AND PREVENTION OF TERRORIST
CRIMES
Subtitle A: Increased Penalties and Protections Against Terrorist Acts
Sec. 401. Terrorism Hoaxes.
Sec. 402. Providing Material Support to Terrorism.
Sec. 403. Weapons of Mass Destruction.
Sec. 404. Use of Encryption to Conceal Criminal Activity.
Sec. 405. Presumption for Pretrial Detention in Cases Involving Terrorism, Firearms,
Explosives, or Serious Violent Felonies.
Sec. 406. "Mass Transportation Vehicle" Technical Correction.
Sec. 407. Acts of Terrorism Transcending National Boundaries.
Sec. 408. Postrelease Supervision of Terrorists.
Sec. 409. Suspension, revocation, and denial of certificates for civil aviation or national
security reasons.
Sec. 410. No Statute of Limitations for Terrorism Offenses.
Sec. 411. Penalties for Terrorist Murders.
Subtitle B: Incapacitating Terrorism Financing
Sec. 421. Increased Penalties for Terrorism Financing.
Sec. 422. Money Laundering Through Hawalas.
Sec. 423. Suspension of Tax-Exempt Status of Designated Terrorist Organizations.

- 4 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Sec. 424. Denial of Federal Benefits to Terrorists.
Sec. 425. Corrections to Financing of Terrorism Statute.
Sec. 426: Terrorism-Related Specified Activities for Money Laundering.
Sec. 427: Assets of Persons Committing Terrorist Acts Against Foreign Countries or
International Organizations.
Sec. 428: Technical and Conforming Amendments Relating to the USA PATRIOT ACT.
TITLE V -- ENHANCING IMMIGRATION AND BORDER SECURITY
Sec. 501. Expatriation of Terrorists.
Sec. 502. Enhanced Criminal Penalties for Violations of Immigration and Nationality Act.
Sec. 503. Inadmissibility and Removability of National Security Aliens or Criminally Charged
Aliens.
Sec. 504. Expedited Removal of Criminal Aliens.
Sec. 505. Clarification of Continuing Nature of Failure-to-Depart Offense, and Deletion of
Provisions on Suspension of Sentence.
Sec. 506. Additional Countries of Removal.
Title I: Enhancing National Security Authorities
Subtitle A: Foreign Intelligence Surveillance Act Amendments
Sec. 101: Individual Terrorists as Foreign Powers.

- 5 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Section 101(a)(4) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(a)(4)) is amended by inserting "or individual" after "group".
Sec. 102: Clandestine Intelligence Activities by Agent of a Foreign Power.
Section 101(b)(2)(A) and (B) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801(b)(2)(A) and (B)) are each amended by striking ", which" and all that follows
through "States"
Sec. 103: Strengthening Wartime Authorities Under FISA.
Sections 111, 309, and 404 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1811, 1829, and 1844) are each amended by inserting after "Congress" the following:
", the enactment of legislation authorizing the use of military force, or an attack on the United
States, its territories or possessions, or its armed forces creating a national emergency."
Sec. 104: Strengthening FISA's Presidential Authorization Exception.
Section 102(a)(1)(A)(ii) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1802(a)(1)(A)(ii)) is amended by striking ", other than the spoken communications of
individuals,".
Sec. 105: Law Enforcement Use of FISA Information.
Sections 106(b), 305(c), and 405(b) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1806(b), 1825(c), and 1845(b)) are each amended by striking "the Attorney
General" and inserting "the Attorney General, the Deputy Attorney General, the Associate
Attorney General, or an Assistant Attorney General designated by the Attorney General".
Sec. 106: Defense of Reliance on Authorization.

- 6 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(a) Section 109 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(b))
is amended by inserting after "jurisdiction" the following: "or was authorized by and
conducted pursuant to the authorization of the President or the Attorney General".
(b) Section 307(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1827(b)) is amended by inserting after 'jurisdiction" the following: "or was authorized by and
conducted pursuant to the authorization of the President or the Attorney General".
Sec. 107: Pen Registers in FISA Investigations.
Section 402(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1842(a)(1)) is amended by striking "not concerning" and all that follows through "intelligence
activities".
Sec. 108: Appointed Counsel in Appeals to FISA Court of Review.
Section 103(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b))
is amended by inserting after the first sentence the following: "The court of review in its
discretion may appoint counsel, with appropriate security clearance, to defend the denial of
the application, and such counsel shall be compensated as provided for representation in an
appellate court case under section 3006A(d) of title 18, United States Code.".
Sec. 109: Enforcement of Foreign Intelligence Surveillance Court Orders.
Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is
amended by --
(1) redesignating subsection (d) as subsection (e); and
(2) inserting after subsection (c) the following:
"(d) Enforcement of court's orders.

- 7 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"The court established by subsection (a) shall have the same authority as a United States
district court to enforce its orders, including the authority to punish any disobedience of such
orders as contempt of court.".
Sec. 110: Technical Correction Related to the USA PATRIOT Act.
Section 224(a) of Pub. L. 107-56 is amended by inserting "204," before "205".
Sec. 111. International Terrorist Organizations as Foreign Powers.
(a) Section 101(i) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(i)) is amended by striking "or (3)" and inserting "(3), or (4)".
(b) Section 105(e) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1805(e)) is amended --
(1) in paragraph (1), by striking "or (3)" and inserting "(3), or (4)"; and
(2) in paragraph (2), by striking "or against a foreign power as defined in section
101(a)(4) that is not a United States person,".
(c) Section 304(d) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1824(d)) is amended --
(1) in paragraph (1), by striking "or (3)" and inserting "(3), or (4)"; and
(2) in paragraph (2), by striking "or against a foreign power, as defined in section
101(a)(4), that is not a United States person,".
Subtitle B: Enhancement of Law Enforcement Surveillance Tools
Sec. 121: Definition of Terrorist Activities.
(a) Section 2510 of title 18, United States Code, is amended --

- 8 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(1) by redesignating paragraphs (20) and (21) as paragraphs (22) and (23)
respectively; and
(2) by inserting after paragraph (19) the following:
"(20) 'terrorist activities' means an offense described in section
2332b(g)(5)(B), an offense involved in or related to domestic or international terrorism as
defined in section 2331, or a conspiracy or attempt to engage in such conduct;
"(21) 'criminal investigation' includes any investigation of terrorist activities;".
(b) Section 3127(1) of title 18, United States Code, is amended by inserting "'terrorist
activities', 'criminal investigation'," after "service',".
Sec. 122: Inclusion of Terrorist Activities as Surveillance Predicates.
(a) Section 2516 of title 18, United States Code, is amended --
(1) in subsection (1)
(A) in paragraph (c)
(i) by inserting before "section 1992 (relating to wrecking trains)" the
following: "section 37 (relating to violence at international airports), section
930(c) (relating to attack on federal facility with firearm), section 956 (conspiracy
to harm persons or property overseas),"; and
(ii) by inserting before "a felony violation of section 1028" the following:
"section 1993 (relating to mass transportation systems),".
(B) in paragraph (q), by striking all that follows the semicolon;
(C) by redesignating paragraph (r) as paragraph (s); and
(D) by inserting after paragraph (q) the following:

- 9 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(r) terrorist activities; or"; and
(2) in subsection (2)
(A) by inserting "or activities" before "as to which", and
(B) by inserting "terrorist activities or" before "the commission".
(b) Section 2518(7)(a) of title 18, United States Code, is amended --
(1) by redesignating subparagraphs (ii) and (iii) as subparagraphs (iii) and (iv)
respectively; and
(2) by inserting after subparagraph (i) the following:
"(ii) terrorist activities,".
(c) Section 3123(b)(1)(D) of title 18, United States Code, is amended by inserting "or
activities" after "offense".
(d) Section 3125(a)(1) of title 18, United States Code, is amended --
(1) in subparagraph (A), by striking "or" at the end;
(2) by redesignating subparagraph (B) as subparagraph (D); and
(3) by inserting after subparagraph (A) the following:
"(B) terrorist activities;
"(C) conspiratorial activities threatening the national security interest; or".
(t) Section 3127(2)(A) of title 18, United States Code, is amended to read as
follows:
"(A) any district court of the United States (including a magistrate judge of such a
court) or any United States court of appeals that--

- 10 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(i) has jurisdiction over the offense or activities being investigated;
"(ii) is in or for a district in which the provider of wire or electronic
communication service is located; or
"(iii) is in or for a district in which a landlord, custodian, or other person
subject to section 3124(a) or (b) is located; or".
Sec. 123: Extension of Authorized Periods Relating to Surveillance and Searches in
Investigations of Terrorist Activities.
(a) Section 2518 of title 18, United States Code, is amended --
(1) in subsection (5)
(A) in the first sentence, by inserting "or, in the case of an interception relating to
terrorist activities, ninety days" after "thirty days";
(B) in the second sentence, by striking "Such thirty-day period begins" and
inserting "These periods begin";
(C) in the fourth sentence, by inserting "or, in the case of an interception relating
to terrorist activities, ninety days" after "thirty days"; and
(D) in the fifth sentence
(i) by striking "practicable," and inserting "practicable and"; and
(ii) by striking ", and must terminate" and all that follows through "thirty
days."; and
(2) in subsection (6), by inserting in the second sentence after "require" the following:
"so long as no interval is less than thirty days in the case of an interception relating to
terrorist activities".

- 11 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(b) Section 2705(a)(2)(A) and (b)(1) of title 18, United States Code, are amended by
inserting "or the national security" after "individual".
(c) Section 3123(c)(1) and (2) of title 18, United States Code, are amended by inserting
after "or, in an investigation of terrorist activities, 120 days" after "sixty days".
Sec. 124: Multi-function Devices
(a) Section 2518(4) of title 18, United States Code, is amended by inserting at the end the
following: "Where a communication device to be monitored under an order authorizing the
interception of a wire, oral, or electronic communication is capable of performing multiple
functions, communications transmitted or received through any function performed by the
device may be intercepted and accessed unless the order specifies otherwise and, upon a
showing as for a search warrant, the order may authorize the retrieval of other information
(whether or not constituting or derived from a communication whose interception the order
authorizes) from the device.".
(b) Section 2703 of title 18, United States Code, is amended --
(1) in subsection (a), by striking "court with jurisdiction over the offense under
investigation or equivalent State warrant" and inserting "court in a district in which the
provider is located or that has jurisdiction over the offense or activities under
investigation or equivalent State warrant or pursuant to a court order issued under
section 2518"; and
(2) in subsections (b)(1)(A) and (c)(1)(A), by striking "court with jurisdiction over
the offense under investigation or equivalent State warrant" and inserting "court in a
district in which the provider is located or that has jurisdiction over the offense or

- 12 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

activities under investigation or equivalent State warrant or a court order issued under
section 2518".
(c) Section 3123(b) of title 18, United States Code, is amended by inserting at the end the
following as a flush last sentence: "Where the order relates t& a communication device
capable of performing multiple functions, a pen register or trap and trace device may be used
with respect to communications transmitted or received through any function of the device
unless the order specifies otherwise.".
Sec. 125: Nationwide Search Warrants in Terrorism Investigations.
Rule 41 (a)(3) of the Federal Rules of Criminal Procedure is amended --
(1) by inserting "or of an offense listed in 18 U.S.C. § 2332b(g)(5)(B))" after
"2331)"; and
(2) by inserting "or offense" after "the terrorism".
Sec. 126: Equal Access to Consumer Credit Reports.
Section 168 1b(a)(1) of title 15, United States Code is amended by striking "grand jury"
and inserting "grand jury, or the request of a law enforcement officer upon his certification
that the information will be used only in connection with his duties to enforce federal law, in
which case the disclosure to such law enforcement officer will not be disclosed to the
consumer to whom such report relates without further order of a federal court".
Sec. 127: Autopsy Authority.
(a) Chapter 31 of title 28, United States Code, is amended by adding at the end the
following:
"§ 530C. Autopsy authority in criminal investigations

- 13 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"Notwithstanding any other provision of law, the Attorney General may, when
deemed necessary or appropriate in the conduct of a criminal investigation, take
custody of, and order an autopsy and related scientific or medical tests to be
performed on the body of, a deceased person. To the extent consistent with the needs
of the autopsy or of specific scientific or medical tests, the Attorney General shall
take such steps as necessary to respect the provisions of any applicable law protecting
religious beliefs of the deceased person or the deceased persons family. Before
ordering an autopsy or related tests under this section, the Attorney General shall
endeavor to inform the family of the deceased person, if known, that the autopsy shall
be performed. After the autopsy and any related tests have been performed, the
remains of the deceased person shall be returned as soon as practicable to that
deceased person's family, if known.".
(b) The table of sections for chapter 31 of title 28, United States Code, is amended by
inserting at the end: "530C. Autopsy authority in criminal investigations.".
Sec. 128. Administrative Subpoenas in Terrorism Investigations.
(a) [N GENERAL- Chapter 113B of title 18, United States Code, is amended by inserting
after section 2332e the following:
"Sec. 2332f. Administrative subpoenas in terrorism investigations.
"(a) AUTHORIZATION OF USE--In any investigation with respect an offense listed in
section 2332b(g)(5)(B) or an offense involved in or related to international or domestic
terrorism as defined in section 2331, the Attorney General may subpoena witnesses, compel
the attendance and testimony of witnesses, and require the production of any records
(including books, papers, documents, electronic data, and other tangible things that constitute
or contain evidence) that he finds relevant or material to the investigation. A subpoena under

- 14 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

this section shall describe the records or items required to be produced and prescribe a return
date within a reasonable period of time within which the records or items can be assembled
and made available. The attendance of witnesses and the production of records may be
required from any place in any State or in any territory or other place subject to the
jurisdiction of the United States at any designated place of hearing; except that a witness shall
not be required to appear at any hearing more than 500 miles distant from the place where he
was served with a subpoena. Witnesses summoned under this section shall be paid the same
fees and mileage that are paid to witnesses in the courts of the United States.
"(b) SERVICE--A subpoena issued under this section may be served by any person
designated in the subpoena as the agent of service. Service upon a natural person may be
made by personal delivery of the subpoena to him or by certified mail with return receipt
requested. Service may be made upon a domestic or foreign corporation or upon a
partnership or other unincorporated association that is subject to suit under a common name,
by delivering the subpoena to an officer, to a managing or general agent, or to any other
agent authorized by appointment or by law to receive service of process. The affidavit of the
person serving the subpoena entered by him on a true copy thereof shall be sufficient proof of
service.
"(c) ENFORCEMENT--In the case of the contumacy by, or refusal to obey a subpoena
issued to, any person, the Attorney General may invoke the aid of any court of the United
States within whose jurisdiction the investigation is carried on or the subpoenaed person
resides, carries on business, or may be found, to compel compliance with the subpoena. The
court may issue an order requiring the subpoenaed person, in accordance with the subpoena,
to appear, to produce records, or to give testimony touching the matter under investigation.
Any failure to obey the order of the court may be punished by the court as contempt thereof

- 15 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Any process under this subsection may be served in any judicial district in which the person
may be found.
"(d) NON-DISCLOSURE REQUIREMENTS--No person shall disclose to any other
person that a subpoena was received or records provided pursuant to this section, other than
to (i) those persons to whom such disclosure is necessary in order to comply with the
subpoena, (ii) an attorney to obtain legal advice with respect to testimony or the production
of records in response to the subpoena, and (iii) other persons as permitted by the Attorney
General. Any person who receives a disclosure under this subsection shall be subject to the
same prohibition of disclosure.
"(e) IMMUNITY FROM CIVIL LIABILITY- Any person, including officers, agents, and
employees, who in good faith produce the records or items requested in a subpoena shall not
be liable in any court of any State or the United States to any customer or other person for
such production or for non-disclosure of that production to the customer or other person, in
compliance with the terms of a court order for non-disclosure.".
(b) TECHNICAL AND CONFORMING AMENDMENT- The analysis for chapter 113B
of title 18, United States Code, is amended by inserting after the item relating to section
2332e the following:
"Sec. 2332f. Administrative subpoenas in terrorism investigations".
Sec. 129: Strengthening Access to and Use of Information in National Security
Investigations.
(a) VIOLATION OF NONDISCLOSURE PROVISIONS FOR NATIONAL
SECURITY LETTERS AND COURT ORDERS. -- Section 1510 of title 18, United States
Code, is amended by adding at the end the following:

- 16 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(e) Whoever violates section 2709(c) or 2332f(d) of this title, section 625(d) or 626(c)
of the Fair Credit Reporting Act, section 1114(a)(3) or (5)(D) of the Right to Financial
Privacy Act, section 802(b) of the National Security Act of 1947, or section 501(d) of the
Foreign Intelligence Surveillance Act of 1978, shall be imprisoned for not more than one
year, and if the violation is committed with the intent to obstruct an investigation or judicial
proceeding, shall be imprisoned for not more than. five years.".
(b) JUDICIAL ENFORCEMENT OF NATIONAL SECURITY LETTERS. -- Chapter
113B of title 18, United States Code, is amended --
(1) in the chapter analysis, by inserting before the item relating to section 2333 the
following:
"2332g. Enforcement of requests for information."; and
(2) by inserting before section 2333 the following:
"§ 2332g. Enforcement of requests for information
"In the case of a refusal to comply with a request for records, a report, or other
information made to any person under section 2709(b) of this title, section 625(a) or (b) or
626(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial
Privacy Act, or section 802(a) of the National Security Act of 1947, the Attorney General
may invoke the aid of any court of the United States within whose jurisdiction the
investigation is carried on or the person resides, carries on business, or may be found, to
compel compliance with the request. The court may issue an order requiring the person to
comply with the request. Any failure to obey the order of the court may be punished by the
court as contempt thereof. Any process under this section maybe served in any judicial
district in which the person may be found.".

- 17 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(c) USE OF NATIONAL SECURITY LETTERS IN THE INVESTIGATION OF
TERRORIST ACTIVITIES. -- (1) Section 2709(b)(1) and (2) of title 18, United States
Code, are each amended by striking "international terrorism" and inserting "terrorist activities
(as defined in section 2510)".
(2) Sections 625(a), (b), and (c) and 626(a) of the Fair Credit Reporting Act (15
U.S.C. 1681u(a), (b), and (c) and 1681v(a)) are each amended by striking "international
terrorism" and inserting "terrorist activities (as defined in section 2510 of title 18, United
States Code)".
(3) Section 1114(a) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)) is
amended --
(A) in paragraph (1)(C), by striking "international terrorism" and inserting
"terrorist activities (as defined in section 2510 of title 18, United States Code)"; and
(B) in paragraph (5)(A), by striking "for foreign counter intelligence purposes to
protect against international terrorism" and inserting "to protect against terrorist
activities".
(d) SHARING OF INTELLIGENCE AMONG FEDERAL AGENCIES. -- (1) Section
2709(d) of title 18, United States Code, is amended by striking "for foreign" and all that
follows through "such agency".
(2) Section 625(f) of the Fair Credit Reporting Act (15 U.S.C. 1681u(f)) is amended --
by striking "not" and all that follows through "investigation." and inserting the following:
"disseminate information obtained pursuant to this section only as provided in guidelines
approved by the Attorney General.".

- 18 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(3) Section 626(a) of the Fair Credit Reporting Act (15 U.S.C. 1681v(a)) is amended --
by striking "conduct or such investigation, activity or analysis" and inserting the
following: "conduct of such investigation, activity or analysis, and such government
agency may disclose the contents of that report or information to another government
agency authorized to engage in such investigation, activity or analysis".
(4) Section 1114(a)(5)(B) of the Right to Financial Privacy Act (12 U.S.C.
3414(a)(5)(B)) is amended by striking "for foreign" and all that follows through "such
agency"
(5) Section 802(e)(3) of the National Security Act of 1947 (50 U.S.C. 436(e)(3)) is
amended by striking "clearly".
Title II: Protecting National Security Information
Sec. 201: Prohibition of Disclosure of Terrorism Investigation Detainee Information.
Notwithstanding section 552 of title 5, United States Code, or any other provision of law,
no officer, employee, or agency of the United States shall disclose, without the prior
determination of the Attorney General or the Director of Central Intelligence that such
disclosure will not adversely impact the national security interests of the United States, the
names or other identifying information relating to any alien who is detained within the United
States, or any individual who is detained outside the United States, in the course of any
investigation of international terrorism until such time as such individual is served with a
criminal indictment or information.
Sec. 202: Distribution of "Worst Case Scenario" Information.

- 19 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(a) SHORT TITLE. This section may be cited as the "Community Protection from
Chemical Terrorism Act."
(b) FINDINGS. Congress finds that
(1) the nationwide threat of terrorist attacks has greatly increased since September 11,
2001;
(2) government-mandated publicly available information on worst-case scenario
accidents at chemical facilities provides a blueprint that terrorists may use to plan and
carry out terrorist attacks;
(3) improved protections are necessary to prevent terrorists from using information
described in paragraph (2) to target and attack local communities; and
(4) while communities have a right to know about the use of chemicals in their
communities, communities also have the right not to allow terrorists to use such
information to destroy the communities.
(c) SAFE USAGE OF CHEMICAL INFORMATION. Section 112(r)(7) of the Clean
Air Act (42 U.S.C. 7412(r)(7)) is amended by deleting subparagraph (H) and inserting in lieu
thereof
"(H) ACCESS TO OFF-SITE CONSEQUENCE ANALYSIS INFORMATION
--
"(i) DEFINITIONS -- In this subparagraph:
"(I) CRIMINAL RELEASE -- The term 'criminal release' means an
emission of a regulated substance into the ambient air from a stationary source
that is caused, in whole or in part, by a criminal act.

- 20 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(II) DISTANCE TO ENDPOINT -- The term 'distance to endpoint'
means the radius of the area of an accidental release or a criminal release.
"(III) MEMBER OF THE PUBLIC -- The term 'member of the public'
means --
"(aa) an individual who is not an official user; and
"(bb) an official user who is not carrying out an official use.
"(IV) OFFICIAL USE -- The term 'official use' means an action of a
Federal, State, or local government agency, or an entity referred to in
subclause (V)(ee), that is intended to carry out a function necessary to
prevent, plan for, or respond to an accidental release or a criminal release.
"(V) OFFICIAL USER- The term 'official user' means
"(aa) an officer or employee of the United States;
"(bb) an officer or employee of an agent or contractor of the United
States;
"(cc) an officer or employee of a State or local government;
"(dd) an officer or employee of an agent or contractor of a State or
local government; and
"(ee) an officer or employee or an agent or contractor of an entity that
has been given, by a State or local government, responsibility for
preventing, planning for, or responding to accidental releases or criminal
releases.

- 21 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(VI) OFF-SITE CONSEQUENCE ANALYSIS INFORMATION -- The
term 'off-site consequence analysis information' means
"(aa) any information in a risk management plan, including in the
executive summary of the plan, that consists of, identifies, or describes or
identifies, with respect to a worst-case or alternative release scenario for a
toxic release or flammable release
"(AA) the name, physical state, or concentration of a chemical;
"(BB) the quantity released, release rate, or duration of the release;
"(CC) the topography, whether urban or rural;
"(DD) the distance to endpoint;
"(EE) the estimated residential population, public receptors, or
environmental receptors within the distance to endpoint;
"(FF) any map or other graphic depiction used to illustrate a
scenario; and
"(GG) the prevention program designed to prevent or mitigate the
release; and
"(bb) any information derived from the information described in item
(aa) (including any statewide or national ranking of stationary sources
derived from the information described in item (aa)) that is not publicly
available from a source other than a risk management plan.
"(VII) READ-ONLY ACCESS -The term 'read-only access' means
access that --

- 22 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(aa) allows the reading of information; but
"(bb) does not allow removal, mechanical reproduction, or other
duplication (including notetaking) of information.
"(VIII) RISK MANAGEMENT PLAN -- The term 'risk management
plan' means a risk management plan registered with the Administrator by an
owner or operator of a stationary source under subparagraph (B)(iii).
"(IX) STATE OR LOCAL OFFICIAL USER -- The term 'State or local
official user' means an official user described in any of items (cc) through (ee)
of subclause (V).
"(ii) AVAILABILITY UNDER FREEDOM OF INFORMATION ACT --
"(I) IN GENERAL -- Off-site consequence analysis information shall not
be made available under section 552 of title 5, United States Code.
"(II) APPLICABILITY -- Subclause (VI) applies to off-site consequence
analysis information obtained or developed by the Administrator before, on, or
after the date of enactment of this subparagraph.
"(iii) ACCESS BY MEMBERS OF THE PUBLIC TO OFF-SITE
CONSEQUENCE ANALYSIS INFORMATION -- Except as provided in this
clause, notwithstanding any other provision of law, no member of the public shall
have access to offsite consequence analysis information. The Administrator, in
consultation with the Attorney General, shall establish procedures to allow a
member of the public read-only access to offsite consequence analysis
information that does not disclose the identity or location of any facility or any
information from which the identity or location of any facility could be deduced.

- 23 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(iv) ACCESS BY STATE OR LOCAL OFFICIAL USERS TO OFF-SITE
CONSEQUENCE ANALYSIS INFORMATION -- The Administrator shall allow
access by a State or local official user, for official use, to off-site consequence
analysis information relating to stationary sources located in the State or local
official user's State or in a contiguous State, or in any case where the off-site
consequence analysis indicates that release would require, under existing mutual
aid agreements, a response by that State or local jurisdiction.
"(v) PROHIBITION ON DISCLOSURE BY OFFICIAL USERS
"(I) IN GENERAL
"(aa) PROHIBITION -- No official user shall knowingly disclose
off-site consequence analysis information in any form to any member of
the public, except to the extent that such disclosure is for official use or is
otherwise authorized under this subparagraph.
"(bb) EXTENT OF DISCLOSURE FOR OFFICIAL USE -- Under
item (aa), an official user may disclose for official use only the quantity of
off-site consequence analysis information that is necessary for the purpose
of preventing, planning for, or responding to accidental releases or
criminal releases.
"(II) CRIMINAL PENALTIES -- Notwithstanding section 113, a violation
of subclause (I) shall be punished as a Class A misdemeanor under section
3559 of title 18, United States Code.
"(III) NOTICE -- The Administrator shall provide to each official user
who receives off-site consequence analysis information --

- 24 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(aa) notice of the definition of official use and examples of actions
that do and actions that do not fall within that definition; and
"(bb) notice of the prohibition established by subclause (I) and the
penalties established by subclause (II).
"(vi) EFFECT ON STATE OR LOCAL LAW
"(I) IN GENERAL -- Subject to subclause (II), this subparagraph
supersedes any provision of State or local law that is inconsistent with this
subparagraph.
"(II) AVAILABILITY OF INFORMATION UNDER STATE LAW
Nothing in this subparagraph precludes a State from making available data on
the off-site consequences of chemical releases collected in accordance with
State law.
"(N) AVAILABILITY OF INFORMATION- Information that is
developed by the Attorney General, or requested by the Attorney General and
received from a covered stationary source, for the purpose of preparing the
report or conducting the review under this clause, shall not be disclosed or
released under the Freedom of Information Act (5 U. S.C. 552).
"(vii) AUTHORIZATION OF APPROPRIATIONS -- There are authorized to
be appropriated to the Administrator and the Attorney General such sums as are
necessary to carry out this subparagraph, to remain available until expended.".
Sec. 203: Information Relating to Capitol Buildings
Notwithstanding section 552 of title 5, United States Code, or any other provision of law,
information provided by the Office of Compliance or the Architect of the Capitol to any

- 25 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

officer, employee or agency of the Executive Branch of government relating to the United
States Capitol and related buildings, shall not be disclosed under section 552(a) of title 5
United States Code, by such Executive Branch officer, employee or agency.
Sec. 204: Ex Parte Authorizations Under Classified Information Procedures Act.
Section 4 of the Classified Information Procedures Act (18 U.S.C. App. 3) is hereby
amended by deleting the "may" in the second sentence and inserting "shall".
Sec. 205: Exclusion of United States Security Requirements from Gross Income of
Protected Officials
The Internal Revenue Code of 1986 is amended --
(a) by redesignating section 140 as section 141, and
(b) by inserting after section 139 the following:
"§ 140 Personnel security interests of the United States
"Gross income shall not include any amount expended from appropriated funds
that the Secretary of the Treasury, the Attorney General, and the Director of Central
Intelligence, or their designees, shall jointly determine is required to provide for the
security of officers or employees of the United States and otherwise in the interests of
the United States. The Secretary of the Treasury, the Attorney General and the
Director of Central Intelligence, acting jointly, may determine the scope of protective
services required by class of official or otherwise, and such determinations shall not
be publicly disclosed."
Sec. 206. Grand Jury Information in Terrorism Cases.
Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure is amended --

- 26 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(1) in clause (vi), by striking "or" at the end;
(2) in clause (vii), by striking the period at the end and inserting"; or"; and
(3) by inserting at the end the following:
"(viii) a witness or a person to whom a subpoena is directed, if there is
reason to believe that otherwise there may result a danger to the national
security or to the life or physical safety of an individual, flight from
prosecution, destruction of or tampering with evidence, intimidation of a
potential witness, or other serious jeopardy to an investigation and if the
witness or person is notified of the prohibition of disclosure. Such a witness
or person may consult with counsel prior to testifying before the grand jury or
responding to the subpoena and shall notify such counsel of the prohibition of
disclosure, and such counsel shall be subject to the same prohibition of
disclosure.".
Title III: Enhancing Investigations of Terrorist Plots
Subtitle A: Terrorism Identification Database
Sec. 301: Short Title.
This Subtitle may be cited as the "Terrorist Identification Database Act of 2003."
Sec. 302: Collection and Use of Identification Information from Suspected Terrorists
and Other Sources.
(a) COLLECTION AND RECEIPT OF DNA SAMPLES, FINGERPRINTS, AND
OTHER INFORMATION. --

- 27 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(1) COLLECTION FROM SUSPECTED TERRORISTS IN CUSTODY OR
UNDER SUPERVISION OR ON CONDITIONAL RELEASE. --
(A) DEPARTMENT OF JUSTICE. -- The Attorney General, and any other
official or agency designated by the Attorney General, shall have the authority to
collect DNA samples, fingerprints, and other identification information from any
suspected terrorist who is in the custody of the Attorney General, the United States
Marshal Service, the Bureau of Prisons, or the Immigration and Naturalization
Service. A Federal official or agency so designated by the Attorney General shall
collect DNA samples, fingerprints, and other identification information from any such
person as directed by the Attorney General.
(B) PROBATION OFFICERS. -- Upon the request of the Attorney General, the
probation office responsible for the supervision under Federal law of an individual on
probation, parole, or supervised release shall collect DNA samples, fingerprints, and
other identification information from any suspected terrorist.
(C) DEPARTMENT OF DEFENSE. -- The Secretary of Defense, and any other
official or agency within the Department of Defense designated by the Secretary, shall
have the authority to collect DNA samples, fingerprints, and other identification
information from any suspected terrorist who is in the custody of, or being detained
by, the Department of Defense. A Federal official or agency so designated by the
Secretary shall collect DNA samples, fingerprints, and other identification information
from any such person as directed by the Secretary.
(D) COLLECTION PROCEDURES. -- Any official authorized under paragraph
(A), (B), or (C) to collect a DNA sample from a suspected terrorist may use or
authorize the use of such means as are reasonably necessary to collect a DNA sample

- 28 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

from any such suspected terrorist who refuses to cooperate in the collection of the
sample.
(E) CRIMINAL PENALTY. -- An individual from whom the collection of a
DNA sample is authorized under subsection (a)(1) who fails to cooperate in the
collection of that sample shall be
(i) guilty of a class A misdemeanor; and
(ii) punished in accordance with title 18, United States Code.
(2) COLLECTION OR RECEIPT OF OTHER IDENTIFICATION
INFORMATION. -- The Attorney General, the Secretary of Defense, or other
designated official or agency, may also collect and receive, either directly or from another
Federal, State, local, or foreign government agency, or other appropriate source
(A) DNA samples, fingerprints, and other identification information of any
suspected terrorist, regardless of whether he or she is in custody or under supervision,
where such samples or information are voluntarily provided by the suspected terrorist
or otherwise lawfully acquired from any source;
(B) DNA samples, fingerprints, and other identification information that have
been recovered from the scenes of terrorist activities, including unidentified human
remains, or that have been recovered from any item that may have been handled by a
suspected terrorist; and
(C) DNA samples, fingerprints, and other identification information of any
person, where such samples or information are voluntarily provided by the person and
may assist in the investigation and identification of terrorists and the prevention of
terrorism.

- 29 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(b) COLLECTION, ANALYSIS, STORAGE, AND MAINTENANCE OF DNA
SAMPLES, FINGERPRINTS, AND OTHER INFORMATION.
(1) ANALYSIS AND USE OF SAMPLES. -- The Attorney General shall have the
authority to analyze DNA samples, fingerprints, and other information collected or
received under subsection (a) or that has been lawfully acquired under any other source
of law. Any such analysis of DNA samples shall be conducted in conformity with the
quality assurance standards issued by the Director of the Federal Bureau of Investigation
under section 210303 of the Violent Crime Control and Law Enforcement Act of 1994
(42 U.S.C. 14131).
(2) AGREEMENTS WITH OTHER ENTITIES CONCERNING DNA SAMPLES.
-- The Attorney General may enter into agreements with Federal agencies, with units of
State or local government, or with private entities, to assist in the collection, analysis,
storage, or maintenance of the DNA samples described in paragraph (1).
Sec. 303: Establishment of Database to Facilitate Investigation and Prevention of
Terrorist Activities.
(a) DATABASES.
(1) The Attorney General may establish one or more databases of DNA records,
fingerprints, and other identification information
(A) that was collected or received under section 2(a);
(B) that was obtained as a result of any analysis conducted under section 2(b);
and
(C) that is information of the kind described in section 2(a) or 2(b), but which
may have been collected or received before the effective date of this Act.

- 30 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(2) Any federal agency, including the Department of Defense and any probation
office, shall provide to the Attorney General, for inclusion in such databases as may be
established, any DNA records, fingerprints, and other identification information described
in paragraph (1). As directed by the Attorney General, any DNA records, fingerprints,
and other identification information described in paragraph (1) shall be included in the
databases authorized by this section.
(b) USES. --
(1) GENERALLY. -- The Attorney General may use DNA records, fingerprints, and
other identification information contained in the databases described in subsection (a) for
the purposes of detecting, investigating, prosecuting, preventing, or responding to
terrorist activities, or other criminal or unlawful activities by suspected terrorists, and may
share the information with other Federal, State, local, or foreign agencies only for these
purposes. In addition, the Attorney General may use and disclose the information for
other purposes and to other entities and persons to the extent permitted by law.
(2) DATABASE SEARCHES. -. The Attorney General may search information in
the databases described in subsection (a) against the national DNA index established by
section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42
U.S.C. 14132), the Integrated Automated Fingerprint Identification System of the Federal
Bureau of Investigation, other databases maintained by Federal, State, or local law
enforcement agencies, and other appropriate databases as determined by the Attorney
General. Authorized searches of any such DNA, fingerprint, law enforcement, or other
appropriate database as determined by the Attorney General may also be made against the
databases described in subsection (a).

- 31 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(3) POPULATION STATISTICS DATABASE. -- If personally identifiable
information is removed, the DNA records maintained in the databases described in
subsection (a) may be used and disclosed for quality control and protocol development
purposes and for a population statistics database
(c) RELATION TO OTHER LAWS.
(1) IN GENERAL. -- Except as provided in paragraph (2), DNA samples and records
and other information described in this section may be used and disclosed in conformity
with this section, notwithstanding any limitation on the use or disclosure of such samples,
records, or information under the DNA Identification Act of 1994 (42 U.S.C. 14131-
14134), the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135-14135e),
or any other law.
(2) RELATION TO THE PRIVACY ACT. --
(A) The databases established under this section shall be deemed to be systems of
records within the full scope of the exemption in subsection (j)(2) of section 552a of
title 5, United States Code (the Privacy Act), and therefore exempt from any
provisions of such section other than those specifically enumerated in such subsection
(j)(2).
(B) Section 552a of title 5, United States Code, is amended --
(i) in subsection (a)(8)(B) --
(I) by striking "or" at the end of subparagraph (vii);
(II) by adding "or" at the end of subparagraph (viii); and
(III) by adding at the end the following new subparagraph:

- 32 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(ix) matches performed pursuant to section 3 of the Terrorist
Identification Database Act of 2002;"; and
(ii) in subsection (b)(7)
(I) by striking "to another" and inserting "(A) to another";
(II) by striking "sought;" and inserting "sought; or"; and
(III) by adding at the end the following new paragraph:
"(B) pursuant to section 3 of the Terrorist Identification Database
Act of 2002;".
Sec. 304: Definitions.
As used in this Act:
(1) The term "DNA sample" means a tissue, fluid, or other bodily sample of an individual
on which a DNA analysis can be carried out.
(2) The term "DNA analysis" means analysis of the deoxyribonucleic acid (DNA)
identification information in a bodily sample.
(3) The term "suspected terrorist" means any person as to whom the Attorney General or
the Secretary of Defense, as appropriate, has determined that there is reason to. believe
(A) has engaged in terrorism as defined in section 2331(1) or 2331(5) of title 18,
United States Code, or has committed an offense described in section 2332b(g)(5)(B) of
such title, or who has conspired or attempted to do so;
(B) is an enemy combatant, a prisoner of war, or other battlefield detainee;
(C) is a member of a terrorist organization designated as such pursuant to section 219
of the Immigration and Nationality Act;

- 33 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(D) is an alien who is described in section 212(a)(3)(A)(i), 212(a)(3)(A)(iii),
212(a)(3)(B), 212(a)(3)(F), 237(A)(4)(a)(i), 237(a)(4)(iii), or 237(a)(4)(B) of the
Immigration and Nationality Act, or who is engaged in any other activity that endangers
the national security of the United States.
Sec. 305: Existing Authorities.
The authorities granted under this Act are in addition to any authorities that may exist
under any other source of law. Nothing in this Act shall be construed to preclude the receipt,
collection, analysis, maintenance, or dissemination of evidence or information pursuant to any
other source of law.
Sec. 306: Conditions of Release.
(a) CONDITIONS OF PROBATION. -- Section 3563(a)(9) of title 18, United States
Code, is amended by striking the period at the end and inserting "or section 3 of the Terrorist
Identification Database Act of 2002.".
(b) CONDITIONS OF SUPERVISED RELEASE. -- Section 3583(d) of title 18, United
States Code, is amended by striking the period after "the DNA Analysis Backlog Elimination
Act of 2000" and inserting "or section 3 of the Terrorist Identification Database Act of
2002.".
(c) CONDITIONS OF PAROLE. -- Section 4209 of title 18, United States Code, insofar
as such section remains in effect with respect to certain individuals, is amended by inserting
before "or section 1565 of title 10." the following: ", section 3 of the Terrorist Identification
Database Act of 2002,".
(d) CONDITIONS OF RELEASE GENERALLY. -- If the collection of a DNA sample
from an individual under any form of supervision or conditional release is authorized pursuant

- 34 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

to section 2(a) of this Act, the individual shall cooperate in the collection of a DNA sample as
a condition of that supervision or conditional release.
Subtitle B: Facilitating Information Sharing and Cooperation
Sec. 311: State and Local Information Sharing.
(a) CONSUMER INFORMATION. -Section 626(a) of the Fair Credit Reporting Act
(15 U.S.C. 1681v(a)) is amended by adding at the end the following: "The recipient of that
consumer report or information may further disclose the contents of that report or
information to law enforcement personnel of a State or political subdivision of a State
(including the chief executive officer of that State or political subdivision who has the
authority to appoint or direct the chief law enforcement officer of that State or political
subdivision) to assist the official receiving that information in the performance of the official
duties of that official. Any chief executive officer or law enforcement personnel of a State or
political subdivision of a State who receives information pursuant to this subsection shall only
use that information consistent with such guidelines as the Attorney General shall issue to
protect confidentiality.".
(b) VISA INFORMATION. -- Section 222(f) of the Immigration and Nationality Act (8
U.S.C. 1202 (f)) is amended --
(1) in paragraph (1), by striking the period at the end and inserting a semicolon;
(2) by redesignating paragraph (2) as paragraph (3); and
(3) by inserting after paragraph (1) the following:
"(2) the Secretary of State may provide copies of any record 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,

- 35 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

or any information contained in those records, to law enforcement personnel of a
State or political subdivision of a State (including the chief executive officer of
that State or political subdivision who has the authority to appoint or direct the
chief law enforcement officer of that State or political subdivision) to assist the
official receiving that information in the performance of the official duties of that
official, and any chief executive officer or law enforcement personnel of a State or
political subdivision of a State who receives information pursuant to this
paragraph shall only use that information consistent with such guidelines as the
Attorney General shall issue to protect confidentiality; and"
(c) EDUCATIONAL RECORDS INFORMATION. -- Section 444(j)(1)(B) of the
General Education Provisions Act (20 U.S.C. 1232g(j)(1)(B)) and section 408(c)(1)(B) of
the National Education Statistics Act of 1994 (20 U.S.C. 9007(c)(1)(B)) are each amended --
(1) by inserting after "disseminate" the following: "(including disclosure of such
reports, records, and information to law enforcement personnel of a State or political
subdivision of a State, including the chief executive officer of that State or political
subdivision who has the authority to appoint or direct the chief law enforcement officer of
that State or political subdivision, to assist the official receiving that information in the
performance of the official duties of that official)"; and
(2) by adding at the end the following: "Any chief executive officer or law
enforcement personnel of a State or political subdivision of a State who receives
information pursuant to this paragraph shall only use that information consistent with
those guidelines.".
Sec. 312: Appropriate Remedies with Respect to Law Enforcement Surveillance
Activities

- 36 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(a) Requirements for relief. --
(1) Prospective relief. --
(A) Prospective relief in any civil action with respect to law enforcement
surveillance activities shall extend no further than necessary to correct the current and
ongoing violation of the Federal right of a particular plaintiff or plaintiffs. The court
shall not grant or approve any prospective relief unless the court finds that such relief
is narrowly drawn, extends no further than necessary to correct the violation of the
Federal right, and is the least intrusive means necessary to correct the violation of the
Federal right. The court shall give substantial weight to any adverse impact on
national security, public safety, or the operation of a criminal justice system caused by
the relief.
(B) The court shall not order any prospective relief that requires a government
official to refrain from exercising his authority under applicable law, unless
(i) Federal law requires such relief to be ordered;
(ii) the relief is necessary to correct the violation of a Federal right; and
(iii) no other relief will correct the violation of the Federal right.
(C) Nothing in this section shall be construed to authorize the courts, in
exercising their remedial powers, to repeal or detract from otherwise applicable
limitations on the remedial powers of the courts.
(2) Preliminary injunctive relief -- In any civil action with respect to law
enforcement surveillance activities, to the extent otherwise authorized by law, the court
may enter a temporary restraining order or an order for preliminary injunctive relief
Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to

- 37 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

correct the harm the court finds requires preliminary relief, and be the least intrusive
means necessary to correct that harm. The court shall give substantial weight to any
adverse impact on public safety or the operation of a criminal justice system caused by the
preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in
tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire on
the date that is 90 days after its entry, unless the court makes the findings required under
subsection (a)(1) for the entry of prospective relief and makes the order final before the
expiration of the 90-day period.
(b) Termination of relief. --
(1) Termination of prospective relief. --
(A) In any civil action with respect to law enforcement surveillance activities in
which prospective relief is ordered, such relief shall be terminable upon the motion of
any party or intervener
(i) 2 years after the date the court granted or approved the prospective relief;
(ii) 1 year after the date the court has entered an order denying termination of
prospective relief under this paragraph; or
(iii) in the case of an order issued before September 11, 2001, immediately.
(B) Nothing in this section shall prevent the parties from agreeing to terminate or
modify relief before the relief is terminated under subparagraph (A).
(2) Immediate termination of prospective relief. -- In any civil action with respect to
law enforcement surveillance activities, a defendant or intervener shall be entitled to the
immediate termination of any prospective relief if the relief was approved or granted in
the absence of a finding by the court that the relief is narrowly drawn, extends no further

- 38 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

than necessary to correct a current and ongoing violation of the Federal right, and is the
least intrusive means necessary to correct the violation of the Federal right.
(3) Limitation. Prospective relief shall not terminate if the court makes written
findings based on the record that prospective relief remains necessary to correct a current
and ongoing violation of the Federal right, extends no further than necessary to correct
the violation of the Federal right, and that the prospective relief is narrowly drawn and the
least intrusive means to correct the violation.
(4) Termination or modification of relief -- Nothing in this section shall prevent any
party or intervener from seeking modification or termination before the relief is
terminable under paragraph (1) or (2), to the extent that modification or termination
would otherwise be legally permissible.
(c) Settlements. --
(1) Consent decrees. -- In any civil action with respect to law enforcement
surveillance activities, the court shall not enter or approve a consent decree unless it
complies with the limitations on relief set forth in subsection (a).
(2) Private settlement agreements. --
(A) Nothing in this section shall preclude parties from entering into a private
settlement agreement that does not comply with the limitations on relief set forth in
subsection (a), if the terms of that agreement are not subject to court enforcement
other than the reinstatement of the civil proceeding that the agreement settled.
(B) Nothing in this section shall preclude any party claiming that a private
settlement agreement has been breached from seeking in State court any remedy
available under State law.

- 39 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(d) State law remedies. The limitations on remedies in this section shall not apply to
relief entered by a State court based solely upon claims arising under State law
(e) Procedure for motions affecting prospective relief. --
(1) Generally. -- The court shall promptly rule on any motion to modify or terminate
prospective relief in a civil action with respect to law enforcement surveillance activities.
Mandamus shall lie to remedy any failure to issue a prompt ruling on such a motion.
(2) Automatic stay. -- Any motion to modify or terminate prospective relief made
under subsection (b) shall operate as a stay during the period --
(A)(i) beginning on the 30th day after such motion is filed, in the case of a
motion made under paragraph (1) or (2) of subsection (b); or
(ii) beginning on the 180th day after such motion is filed, in the case of a
motion made under any other law; and
(B) ending on the date the court enters a final order ruling on the motion.
(3) Postponement of automatic stay. -- The court may postpone the effective date of
an automatic stay specified in subsection (e)(2)(A) for not more than 60 days for good
cause. No postponement shall be permissible because of general congestion of the
court's calendar.
(4) Order blocking the automatic stay. -- Any order staying, suspending, delaying, or
barring the operation of the automatic stay described in paragraph (2) (other than an
order to postpone the effective date of the automatic stay under paragraph (3)) shall be
treated as an order refusing to dissolve or modify an injunction and shall be appealable
pursuant to section 1292(a)(1) of title 28, United States Code, regardless of how the
order is styled or whether the order is termed a preliminary or a final ruling.

- 40 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(f) Definitions. -- As used in this section --
(1) the term "consent decree" means any relief entered by the court that is based in
whole or in part upon the consent or acquiescence of the parties but does not include
private settlements;
(2) the term "civil action with respect to law enforcement surveillance activities"
means any civil proceeding arising under Federal law with respect to the use of
investigative methods by Federal, State, and local law enforcement officials, including
(but not limited to) overt surveillance; covert surveillance; electronic surveillance;
intelligence gathering; undercover operations; the use of informants; and the recording,
filing, retention, indexing or dissemination of information obtained through these
methods, including the dissemination of such information to other Federal, state, or local
law enforcement officials.
(3) the term "private settlement agreement" means an agreement entered into among
the parties that is not subject to judicial enforcement other than the reinstatement of the
civil proceeding that the agreement settled;
(4) the term "prospective relief" means all relief other than compensatory monetary
damages (but not including relief necessary to remedy discrimination based on race, color,
religion, sex, or national origin in violation of a Federal right);
(5) the term "relief' means all relief in any form that may be granted or approved by
the court, and includes consent decrees but does not include private settlement
agreements;
(6) "State" means a State, the District of Columbia, and any commonwealth,
territory, or possession of the United States.

- 41 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Sec. 313: Disclosure of Information.
Notwithstanding any other law, a commercial or business entity, and any employee or
agent of such a commercial or business entity, shall not be subject to civil liability in any court
for the voluntary provision or disclosure of information to a Federal law enforcement agency,
based on a reasonable belief that the information may assist in the investigation or prevention
of terrorist activities (as defined in section 2510 of title 18, United States Code).
Subtitle C: Facilitating International Terrorism Investigations
Sec. 321: Authority to Seek Search Warrants and Orders to Assist Foreign States.
Section 1782 of title 28, United States Code, is amended --
(1) in the first sentence, by deleting "thing" and inserting in lieu thereof "thing, or may
issue a warrant for the seizure of evidence under Federal Rule of criminal Procedure 41 or an
order permitting the use of a trap and trace or pen register technology under 18 U.S.C. § 3121,
et seq.,", and
(2) by adding at the end thereof, "An order authorizing a search or the use of trap and
trace or pen register technology may be issued only in accordance with the procedures
established by the statutes and rules applicable to United States criminal prosecutions.".
Sec. 322: Extradition Without Treaties and for Offenses Not Covered by an Existing 18
Treaty.
19 (a) Chapter 209 of title 18, United States Code, is amended by adding at the end the
following:
"Sec. 3197. Extradition for Offenses Not Covered by an Existing Treaty.

- 42 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(a) The provisions of this Chapter shall also be construed to permit the
extradition of any person, regardless of nationality, to any country with which an
extradition treaty or convention remains in force, and the procedures set forth in this
Chapter and in the treaty or convention shall apply, even if the offense for which
extradition is requested is not expressly included in a list of extraditable crimes in such
treaty or convention, if
"(1) the offense for which extradition is sought is punishable by more than one
year's imprisonment in the requesting state;
"(2) the conduct with which the person is charged or convicted, had it
occurred in the United States, would constitute an offense punishable by more
than one year's imprisonment; and
"(3) the requesting state affirms, through the diplomatic channel, that it would
grant reciprocal extradition for similar conduct in response to a request made by
the United States."
(b) Chapter 209 of title 18, United States Code, is amended by adding at the end the
following:
"Sec. 3198. Extradition absent a treaty
"(a) SERIOUS OFFENSE DEFINED -- In this section, the term 'serious offense'
means conduct that would be --
"(1) an offense described in any multilateral treaty to which the United States
is a party that obligates parties --
"(A) to extradite alleged offenders found in the territory of the parties; or

- 43 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(B) submit the case to the competent authorities of the parties for
prosecution; or
"(2) conduct that, if that conduct occurred in the United States, would
constitute
"(A) a crime of violence (as defined in section 16);
"(B) the distribution, manufacture, importation or exportation of a
controlled substance (as defined in section 201 of the Controlled Substances
Act (21 U.S.C. 802);
"(C) bribery of a public official; misappropriation, embezzlement or theft
of public funds by or for the benefit of a public official;
"(D) obstruction of justice, including payment of bribes to jurors or
witnesses;
"(E) the laundering of monetary instruments, as described in section 1956,
if the value of the monetary instruments involved exceeds $100,000;
"(F) fraud, theft, embezzlement, or commercial bribery if the aggregate
value of property that is the object of all of the offenses related to the conduct
exceeds $100,000;
"(G) counterfeiting, if the, obligations, securities or other items
counterfeited, have an apparent value that exceeds $100,000;
"(II) a crime against children under chapter 109A or section 2251, 2251A,
2252, or 2252A; or

- 44 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(I) a conspiracy or attempt to commit any of the offenses described in
any of subparagraphs (A) through (II), or aiding and abetting a person who
commits any such offense.
"(b) AUTHORIZATION OF FILING --
"(1) IN GENERAL -- If a foreign government makes a request for the
extradition of a person who is charged with or has been convicted of an offense
within the jurisdiction of that foreign government, and no extradition treaty is in
force between the United States and the foreign government, the Attorney
General may authorize the filing of a complaint for extradition pursuant to
subsections (c) and (d).
"(2) FILING AND TREATMENT OF COMPLAINTS --
"(A) IN GENERAL -- A complaint authorized under paragraph (1) shall
be filed pursuant to section 3184.
"(B) PROCEDURES- With respect to a complaint filed under paragraph
(1), procedures of sections 3184 and 3186 shall be followed as if the offense
were a 'crime provided for by such treaty' as described in section 3184.
"(c) CRITERIA FOR AUTHORIZATION OF COMPLAINTS -- The Attorney
General may authorize the filing of a complaint described in subsection (b) only upon
a certification --
"(1) by the Attorney General, that in the judgment of the Attorney General
"(A) the offense for which extradition is sought is a serious offense; and

- 45 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(B) submission of the extradition request would be important to the law
enforcement interests of the United States or otherwise in the interests of
justice; and
"(2) by the Secretary of State, that in the judgment of the certifying official,
based on information then known --
"(A) submission of the request would be consistent with the foreign policy
interests of the United States;
"(B) the facts and circumstances of the request, including humanitarian
considerations, do not appear likely to present a significant impediment to the
ultimate surrender of the person if found extraditable; and
"(C) the foreign government submitting the request is not submitting the
request in order to try or punish the person sought for extradition primarily on
the basis of the race, religion, nationality, or political opinions of that person.
"(d) LIMITATIONS ON DELEGATION AND JUDICIAL REVIEW --
"(1) DELEGATION BY ATTORNEY GENERAL; JUDICIAL REVIEW --
The authorities and responsibilities of the Attorney General under subsection (c)
may be delegated only to the Deputy Attorney General.
"(2) DELEGATION -- The authorities and responsibilities of the Secretary of
State set forth in this subsection may be delegated only to the Deputy Secretary of
State.

- 46 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(3) LIMITATION ON JUDICIAL REVIEW -- The authorities and
responsibilities set forth in this subsection are not subject to judicial review.
"(e) CASES OF URGENCY --
"(1) N GENERAL -- In any case of urgency, the Attorney General may, with
the concurrence of the Secretary of State and before any formal certification
under subsection (c), authorize the filing of a complaint seeking the provisional
arrest and detention of the person sought before the receipt of documents or other
proof in support of a formal request for extradition.
"(2) FILING OF COMPLAINTS, ORDER BY JUDICIAL OFFICER --
"(A) FILING -- A complaint filed under this subsection shall be filed in the
same manner as provided in section 3184.
"(B) ORDERS Upon the filing of a complaint under subparagraph (A)
and a finding that the facts recited in the complaint constitutes probable cause
to believe that a serious crime was committed by the person sought, the
appropriate judicial officer may issue an order for the provisional arrest and
detention of the person.
"(C) RELEASES -- If, not later than 45 days after the arrest, the formal
request for extradition and documents in support of that are not received by
the Department of State, the appropriate judicial officer may order that a
person detained pursuant to this subsection be released from custody.
"(f) HEARINGS --

- 47 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(1) IN GENERAL -- Subject to subsection (II), upon the filing of a complaint
for extradition and receipt of documents or other proof in support of the request
of a foreign government for extradition , the appropriate judicial officer shall hold
a hearing to determine whether the person sought for extradition is extraditable.
"(2) CRITERIA FOR EXTRADITION -- Subject to subsection (g) in a
hearing conducted under paragraph (1), the judicial officer shall find a person
extraditable if the officer finds --
"(A) probable cause to believe that the person before the judicial officer is
the person sought in the foreign country of the requesting foreign
government;
"(B) probable cause to believe that the person before the judicial officer
committed the offense for which that person is sought, or was duly convicted
of that offense in the foreign country of the requesting foreign government;
"(C) that the conduct upon which the request for extradition is based, if
that conduct occurred within the United States, would be a serious offense
punishable by imprisonment for more than 10 years under the laws of
"(i) the United States; 18 "(ii) the majority of the States in the United States; or
"(iii) of the State in which the fugitive is found; and
"(D) no defense to extradition under subsection (f) has been established.
"(g) LIMITATION OF EXTRADITION --

- 48 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(1) IN GENERAL -- A judicial officer shall not find a person extraditable
under this section if the person has established that the offense for which
extradition is sought is --
"(A) an offense for which the person is being proceeded against, or has
been tried or punished, in the United States; or
"(B) apolitical offense.
"(2) POLITICAL OFFENSES -- For purposes of this section, a political
offense does not include --
"(A) a murder or other violent crime against the person of a head of state
of a foreign state, or of a member of the family of the head of state;
"(B) an offense for which both the United States and the requesting
foreign government have the obligation pursuant to a multilateral international
agreement to --
"(i) extradite the person sought; or
"(ii) submit the case to the competent authorities for decision as to
prosecution; or
"(C) a conspiracy or attempt to commit any of the offenses referred to in
subparagraph (A) or (B), or aiding or abetting a person who commits or
attempts to commit any such offenses.
"(II) LIMITATIONS ON FACTORS FOR CONSIDERATION AT HEARINGS
--

- 49 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(1) IN GENERAL -- At a hearing conducted under subsection (a), the
judicial officer conducting the hearing shall not consider issues regarding
"(A) humanitarian concerns;
"(B) the nature of the judicial system of the requesting foreign
government; and
"(C) whether the foreign government is seeking extradition of a person for
the purpose of prosecuting or punishing the person because of the race,
religion, nationality or political opinions of that person.
"(2) CONSIDERATION BY SECRETARY OF STATE -- The issues referred
to in paragraph (1) shall be reserved for consideration exclusively by the Secretary
of State as described in subsection (c)(2).
"(3) ADDITIONAL CONSIDERATION -- Notwithstanding the certification
requirements described in subsection (c)(2), the Secretary of State may, within the
sole discretion of the Secretary --
"(A) in addition to considering the issues referred to in paragraph (I) for
purposes of certifying the filing of a complaint under this section, consider
those issues again in exercising authority to surrender the person sought for
extradition in carrying out the procedures under section 3184 and 3186; and
"(B) impose conditions on surrender including those provided in
subsection (i).
"(1) CONDITIONS OF SURRENDER; ASSURANCES --

- 50 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(1) IN GENERAL -- The Secretary of State may --
"(A) impose conditions upon the surrender of a person sought for
extradition under this section; and
"(B) require such assurances of compliance with those conditions, as the
Secretary determines to be appropriate.
"(2) ADDITIONAL ASSURANCES -- In addition to imposing conditions and
requiring assurances under paragraph (1), the Secretary shall demand, as a
condition of the extradition of the person that is sought for extradition --
"(A) in every case, an assurance the Secretary determines to be
satisfactory that the person shall not be tried or punished for an offense other
than the offense for which the person has been extradited, absent the consent
of the United States; and
"(B) in a case in which the offense for which extradition is sought is
punishable by death in the foreign country of the requesting foreign
government and is not so punishable under the applicable laws in the United
States, an assurance the Secretary determines to be satisfactory that the death
penalty
"(i) shall not be imposed; or
"(ii) if imposed, shall not be carried out.".
(c) Chapter 309 of title 18, United States Code, is amended --

- 51 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(1) in section 3181, by inserting ", other than sections 3197 and 3198," after "The
provisions of this chapter" each place that term appears; and
(2) in section 3186, by striking "or 3185" and inserting ", 3185, 3197 or 3198".
(d) The table of sections for chapter 209 of title 28, United States Code, is amended by
inserting at the end the following:
"3197. Extradition for offenses not covered by an existing treaty."
"3198. Extradition absent a treaty.".
Title IV: Enhancing Prosecution and Prevention of Terrorist Crimes
Subtitle A: Increased Penalties and Protections Against Terrorist Acts
Sec. 401: Terrorism Hoaxes.
(a) PROHIBITION ON HOAXES -- Chapter 47 of title 18, United States Code, is
amended by inserting after section 1036 the following:
"Sec. 1037. False information and hoaxes
"(a) CRIMINAL VIOLATION -- Whoever engages in any conduct,
with intent to convey false or misleading information, under circumstances
where such information may reasonably be believed and where such
information concerns an activity which would constitute a violation of section
175, 229, 831, or 2332a, shall be fined under this title or imprisoned not more
than 5 years, or both.

- 52 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(b) CIVIL ACTION -Whoever engages in any conduct, with intent
to convey false or misleading information, under circumstances where such
information concerns an activity which would constitute a violation of section
175, 229, 831, or 2332a, is liable in a civil action to any party incurring
expenses incident to any emergency or investigative response to that conduct,
for those expenses.
"(c) REIMBURSEMENT -- The court, in imposing a sentence on a
defendant who has been convicted of an offense under subsection (a), shall
order the defendant to reimburse any person or entity incurring any expenses
incident to any emergency or investigative response to that conduct, for those
expenses. For the purpose of this provision, a State or local government, or
private not-for-profit organization that provides fire or rescue services that is
dispatched and responds to such an emergency shall be entitled to the greater
of actual costs of response or $1,000. A person ordered to make
reimbursement under this subsection shall be jointly and severally liable for
such expenses with each other person, if any, who is ordered to make
reimbursement under this subsection for the same expenses. An order of
reimbursement under this subsection shall, for the purposes of enforcement, be
treated as a civil judgment.".

- 53 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(b) CLERICAL AMENDMENT -- The table of sections at the beginning of chapter
47 of title 18, United States Code, is amended by adding after the item for section 1036 the
following: "1037. False information and hoaxes.".
Sec. 402: Providing Material Support to Terrorism.
(a) Section 2339A(a) of title 18, United States Code, is amended by --
(1) designating the first sentence as paragraph (1);
(2) designating the second sentence as paragraph (3);
(3) inserting after "for life." the following:
"(2) Whoever, in or affecting interstate or foreign commerce,
or while outside the United States and a national of the United States
(as defined in section 1203(c)) or a legal entity organized under the
laws of the United States (including any of its States, districts,
commonwealth, territories or possessions), 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, an act of
international or domestic terrorism (as defined in section 2331), or in
the preparation for, or in carrying out, the concealment or escape from
the commission of any such act, or attempts or conspires to do so,
shall be punished as provided under paragraph (1)."; and
(4) by inserting "act or" after "underlying".

- 54 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(b) Section 2331(1)(B) and (5)(B) of title 18, United States Code, are each amended --
by inserting "by their nature or context" after "appear".
(c) Section 2339A(b) of title 18, United States Code,, is amended by adding at the end
the following: "The term 'training' means instruction or teaching designed to impart a
specific skill.".
(d) Section 2339B(g)(4) of title 18, United States Code, is amended to read as
follows:
"(4) the term 'material support or resources' has the same meaning as
in section 2339A (including the definition of 'training' in that section), except
that no person may be prosecuted under this section in connection with the
term 'personnel' unless that person has knowingly provided, attempted to
provide, or conspired to provide a terrorist organization with one or more
individuals (which may be or include himself) to work in concert with the
organization or under its direction or control;".
Sec. 403: Weapons of Mass Destruction.
(a) EXPANSION OF JURISDICTIONAL BASES AND SCOPE. Section 2332a of
title 18, United States Code, is amended by
(1) amending paragraph (a)(2) to read as follows:
"(2) against any person or property within the United States,
and

- 55 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(A) the mail or any facility of interstate or foreign
commerce is used in furtherance of the offense;
"(B) such property is used in interstate or foreign
commerce or in an activity that affects interstate or foreign
commerce;
"(C) any perpetrator travels in or causes another to
travel in interstate or foreign commerce in furtherance of the
offense; or
"(D) the offense, or the results of the offense, affect
interstate or foreign commerce, or, in the case of a threat,
attempt, or conspiracy, would have affected interstate or
foreign commerce;";
(2) in paragraph (a)(3), deleting the comma at the end and inserting "; or";
(3) in subsection (a), adding the following at the end:
"(4) against any property within the United States that is
owned, leased, or used by a foreign government,";
(4) in paragraph (c)(1), deleting "and" at the end;
(5) in paragraph (c)(2), deleting the period at the end and inserting "; and";
and
(6) in subsection (c), inserting the following at the end:

- 56 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(3) the term 'property' includes all real and personal
property."
(b) RESTORATION OF THE COVERAGE OF CHEMICAL WEAPONS. Section
2332a of title 18, United States Code, as amended by subsection (a), is further amended by
(1) in the caption, deleting "certain";
(2) in subsection (a), deleting "(other than a chemical weapon as that term is
defined in section 229F)"; and
(3) in subsection (b), deleting "(other than a chemical weapon (as that term is
defined in section 229F))".
(c) CONFORMING AMENDMENT TO NEW SELECT AGENT
REGULATIONS. -- (1) Section 175b(a)(1) of title 18, United States Code, is amended by
striking "as a select agent in Appendix A" and all that follows and inserting the following: "as
a non-overlap or overlap select biological agent or toxin in [sections 73.4 and 73.5] of title
42, Code of Federal Regulations, pursuant to section 351 A of the Public Health Service Act,
and is not exempted under [section 73.6] of title 42, Code of Federal Regulations.".
(2) The amendment made by paragraph (1) shall take effect at the same time
that [sections 73.4, 73.5, and 73.6] of title 42, Code of Federal Regulations, become
effective.
Sec. 404: Use of Encryption to Conceal Criminal Activity.
(a) Part I of title 18, United States Code, is amended by inserting after chapter
123 the following:

- 57 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"CHAPTER 124 ENCRYPTED WIRE OR ELECTRONIC
COMMUNICATIONS AND STORED ELECTRONIC INFORMATION
"Sec. 2801. Unlawful use of encryption
"(a) Any person who, during the commission of a felony under
Federal law, knowingly and willfully encrypts any incriminating
communication or information relating to that felony --
"(1) in the case of a first offense under this section,
shall be imprisoned not more than 5 years, fined under this title,
or both; and
"(2) in the case of a second or subsequent offense
under this section, shall be imprisoned not more than 10 years,
fined under this title, or both.
"(b) The terms 'encrypt' and 'encryption' refer to the
scrambling (and descrambling) of wire communications, electronic
communications, or electronically stored information, using
mathematical formulas or algorithms in order to preserve the
confidentiality, integrity, or authenticity of, and prevent unauthorized
recipients from accessing or altering, such communications or
information."
(b) The table of Chapters is amended by inserting after to Chapter 123, the following:

- 58 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"Chapter 124 -Encrypted Wire or Electronic Communications and
Stored Electronic Information"
Sec. 405. Presumption for Pretrial Detention in Cases Involving Terrorism.
Section 3142 of title 18, United States Code, is amended --
(1) in subsection (e) --
(A) by inserting "or" before "the Maritime"; and
(B) by striking ", or an offense under section 924(c), 956(a), or 2332b of title
18 of the United States Code" and inserting ", an offense under section 924(c), or an
offense described in section 2332b(g)(5)(B)"; and
(2) in subsections (f)(1)(A) and (g)(1), by inserting "or an offense described in section
2332b(g)(5)(B)" after "violence".
Sec. 406: "Mass Transportation Vehicle" Technical Correction.
(a) Section 1993 of title 18, United States Code, is amended --
(1) in paragraph (7), by deleting "and" at the end;
(2) in paragraph (8), by deleting the period at the end in inserting in lieu
thereof"; and"; and
(3) by inserting at the end thereof the following:
"(9) The term 'vehicle' means any carriage or other
contrivance used, or capable of being used, as a means of
transportation on land, water, or throughout the air.".

- 59 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(b) The title of chapter 97 of title 18, United States Code, is amended to read
"RAILROADS AND OTHER MASS TRANSPORTATION SYSTEMS".
(c) The table of chapters for Part I of title 18, United States Code, is amended in
the item relating to chapter 97 by amending the title to read "Railroads and other mass
transportation systems".
(d) The title of section 1993 of title 18, United States Code, is amended by adding
"on land, water, or through the air" after "systems".
(e) The table of sections for chapter 97 of title 18, United States Code, is amended in
the item relating to section 1993 by adding "on land, water, or through the air" after
"systems".
Sec. 407: Acts of Terrorism Transcending National Boundaries.
(a) Section 2332b of title 18, United States Code, is amended --
(1) in subsection (a)(1), by inserting "in a case" before "involving";
(2) in subsection (b)(1)(A), by inserting "any person travels in interstate or
foreign commerce or" before "the mail"; and
(3) in subsection (g) --
(A) by amending paragraph (1) to read as follows:
"(1) the term 'conduct transcending national
boundaries' means conduct engaged in --

- 60 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(A) by the defendant or another person outside
of the United States, in addition to conduct occurring in
the United States;
"(B) at the instigation of a foreign power or of a
person outside of the United States; or
"(C) in furtherance of an objective of a foreign
power or of a person outside of the United States.";
(B) in paragraph (4), by striking "and" at the end;
(C) in paragraph (5), by striking the period at the end and inserting ";
and"; and
(D) by inserting at the end the following:
"(6) the term 'foreign power' has the meaning given
that term in section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801).".
(b) Section 1958 of title 18, United States Code, is amended --
(1) in subsection (a), by striking "facility in" and inserting "facility of'; and
(2) in subsection (b)(2), by inserting "or foreign" after "interstate".
Sec. 408: Postrelease Supervision of Terrorists.
Section 3583 of title 18, United States Code, is amended --
(1) in subsection (e)(3), by inserting "on any such revocation" after "required to
serve";

- 61 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(2) in subsection (h), by striking "that is less than the maximum term of imprisonment
authorized under subsection (e)(3)"; and
(3) in subsection (j) --
(A) by striking ", the commission" and all that follows through "person," ; and
(B) by inserting "and the sentence for any such offense shall include a term of
supervised release of at least 10 years" before the period.
Sec. 409: Suspension, Revocation, and Denial of Certificates for Civil Aviation or
National Security Reasons.
Chapter 447 of title 49, United States Code, is amended --
(1) in the chapter analysis, by inserting at the end the following:
"44727. Suspension, revocation, and denial of certificates for civil aviation or national
security reasons."; and
(2) by inserting at the end the following:
"§ 44727. Suspension, revocation, and denial of certificates for civil aviation or
national security reasons
"(a) Suspension of Certificate. --
"(1) Notification of Initial Threat Determination. -- The Under
Secretary of Transportation for Security or designee shall notify the
Administrator of the Federal Aviation Administration of the identity of
"(A) any holder of a certificate issued by the Administrator
under this chapter on whom the Under Secretary or designee has

- 62 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

served an initial determination that the certificate holder poses a threat
to civil aviation or national security; or
"(B) any holder of a certificate issued by the Administrator
under this chapter on whom the Under Secretary or designee has
served an initial determination that an individual who has a controlling
or ownership interest in the certificate holder poses a threat to civil
aviation or national security by virtue of that interest.
"(2) Suspension. -- The Administrator of the Federal Aviation Administration
shall issue an order suspending any certificate identified by the Under Secretary or
designee pursuant to paragraph (1)(A) or (B). The Administrator's order of
suspension shall be immediately effective and remain effective until --
"(A) the Administrator withdraws the order; or
"(B) the Administrator issues an order revoking the certificate.
The Administrator's order of suspension is not subject to administrative or judicial
review.
"(3) Opportunity to Respond to Initial Threat determination. -- The
Under Secretary or designee shall afford certificate holders and persons with a
controlling or ownership interest identified in paragraph (1)(A) or (B) notice and an
opportunity to respond to an initial determination that the certificate holders or
persons pose a threat to civil aviation or national security prior to the issuance of a
final threat determination.

- 63 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(4) Judicial Review of Initial Threat Determination. -- The initial
determination by the Under Secretary or designee that a certificate holder or person
with a controlling or ownership interest identified in subsection (a)(1)(A) or (B) poses
a threat to civil aviation or national security is not subject to judicial review.
"(b) Revocation of Certificate. --
"(1) Notification of Final Threat Assessment. -- The Under Secretary or
designee shall notify the Administrator of the identity of any certificate holder
described in subsection (a)(1)(A) or (B) on whom
"(A) a withdrawal of initial threat determination has been served; or
"(B) a final threat determination has been served.
The Under Secretary or designee must issue either a withdrawal or final threat
determination within 60 days of the notification of initial threat determination.
"(2) Revocation. -- The Administrator shall issue an order revoking the
certificate held by a certificate holder described in subsection (a)(1)(A) or (B) on
whom the Under Secretary or designee has served a final determination that the
certificate holder poses a threat to civil aviation or national security or that a person
who has a controlling or ownership interest in the certificate holder poses a threat to
civil aviation or national security by virtue of that interest. The Administrator's order
of revocation shall be immediately effective.
"(3) Review of Final Threat Determination and Order of Revocation --

- 64 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(A) A final threat determination by the Under Secretary or designee
or an order of revocation issued by the Administrator with regard to a person
who is neither a citizen nor permanent resident alien of the United States is
not subject to administrative or judicial review.
"(B) A person who is a citizen or permanent resident alien of the
United States disclosing a substantial interest in a final threat determination by
the Under Secretary or designee under paragraph (1) and an order of
revocation issued by the Administrator under paragraph (2) may seek review
of those actions by filing a petition for review in the United States Court of
Appeals for the District of Columbia Circuit or in the court of appeals of the
United States for the circuit in which the person resides. The petition for
review must be filed not later than 30 days after the issuance of the order of
revocation. The court may allow the petition to be filed after the 30th day
only if there are reasonable grounds for not filing by the 30th day. The court's
review is limited to determining whether it was arbitrary, capricious, or
otherwise not according to law for the Under Secretary to make the final
threat determination and for the Administrator to issue the order of
revocation.
"(C) In any judicial review of the Under Secretary's determination and
the Administrator's order under paragraphs (1) and (2), if the actions were
based on classified information (as defined in section 1(a) of the Classified

- 65 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Information Procedures Act) or sensitive security information (as defined in
regulations issued under section 40119(b) of this title) such information may
be submitted to the reviewing court ex parte and in camera.
"(d) Denial of Certificate. --
"(1) Notification of Threat Determination. -- The Under Secretary or
designee shall notify the Administrator of the identity of
"(A) any person on whom the Under Secretary or designee has served
an initial or final determination that the person poses a threat to civil aviation
or national security; or
"(B) any entity on whom the Under Secretary or designee has served
an initial or final determination that a person who has a controlling or
ownership interest in the entity poses a threat to civil aviation or national
security by virtue of that interest.
"(2) Denial.--The Administrator may not issue a certificate to any person or
entity identified in paragraph (1) unless the Under Secretary or designee has
withdrawn a determination that the person poses a threat. A denial of certificate
based on an initial threat determination is not subject to administrative or judicial
review.
"(3) Opportunity to Respond to initial Threat determination. -- The
Under Secretary or designee shall afford applicants for certificates and persons with a
controlling or ownership interest identified in paragraph (1)(A) or (B) notice and an

- 66 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

opportunity to respond to an initial determination that an applicant for a certificate or
person with a controlling or ownership interest in an applicant poses a threat to civil
aviation or national security prior to the issuance of a final determination of threat
assessment.
"(4) Review of Initial Threat Determination. -- The initial determination by
the Under Secretary or designee that an applicant for a certificate or person with a
controlling ownership interest in an applicant poses a threat to civil aviation or
national security is not subject to judicial review.
"(5) Review of Final Threat Determination and Certificate Denial. --
"(A) A final threat determination by the Under Secretary or designee
and the denial of certificate by the Administrator under this subsection with
regard to person who is not a citizen or resident alien of the United States is
not subject to administrative or judicial review.
"(B) A citizen or permanent resident alien of the United States may
seek review of a final threat determination by the Under Secretary or designee
and denial by the Administrator under this subsection by filing a petition for
review in the United States Court of Appeals for the District of Columbia
Circuit or in the court of appeals of the United States for the circuit in which
the person resides. The petition for review must be filed no later than the 30th
day after the issuance of the denial. The court may allow the petition to be
filed after the 30th day only if there are reasonable grounds for not filing by

- 67 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

the 30th day. The court's review is limited to determining whether it was
arbitrary, capricious, or otherwise not according to law for the Under
Secretary to make the final threat determination and for the Administrator to
deny a certificate.
"(C) In any judicial review of the Under Secretary's final threat
determination and the Administrator's denial, if the actions were based on
classified information (as defined in section 1(a) of the Classified Information
Procedures Act) or sensitive security information (as defined in regulations
issued under section 40119(b) of this title) such information may be submitted
to the reviewing court ex parte and in camera.
"(e) Coordination with the Attorney General -- Nothing in this section is intended
to alter any provisions in section 44939 of this title. The Under Secretary shall coordinate
any request to the Administrator of the Federal Aviation Administration under this section
with the Attorney General on matters within the Attorney General's jurisdiction under section
44939.".
Sec. 410. No Statute of Limitations for Terrorism Crimes.
(a) Section 3286(b) of title 18, United States Code, is amended by striking", if the
commission" and all that follows through "person".
(b) The amendment made by this section shall apply to the prosecution of any offense
committed before, on, or after the date of the enactment of this section.
Sec. 411: Penalties for Terrorist Murders.

- 68 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(a) Chapter 113B of title 18, United States Code, is amended --
(1) in the chapter analysis, by inserting at the end the following:
"2339D. Terrorist offenses resulting in death."; and
(2) by inserting at the end the following:
"2339D. Terrorist offenses resulting in death
"A person who, in the course of an offense listed in section 2332b(g)(5)(B) or of
terrorist activities (as defined in section 2510), 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.".
(b) Section 3592(c)(1) of title 18, United States Code, is amended by inserting
"section 2339D (terrorist offenses resulting in death)," after "destruction),".
Subtitle B: Incapacitating Terrorism Financing
Sec. 421: Increased Penalties for Terrorism Financing.
Section 206 of the International Emergency Economic Powers Act (50 U.S.C. §
1705) is amended --
(1) in subsection (a), by deleting "$10,000" and inserting "$50,000".
(2) in subsection (b), by deleting "$50,000" and inserting "$250,000"; and by
deleting "ten years" and inserting "twenty years".
Sec. 422: Money Laundering Through Hawalas.
19 Section 1956 of title 18, United States Code, is amended by adding at the end the
following:

- 69 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(j)(1) For the purposes of subsections (a)(1) and (a)(2), a transaction,
transportation, transmission, or transfer of funds shall be considered to be one
involving the proceeds of specified unlawful activity, if the transaction, transportation,
transmission, or transfer is part of a set of parallel or dependent transactions, any one
of which involves the proceeds of specified unlawful activity.
"(2) As used in this section, a "dependent transaction" is one that
completes or complements another transaction or one that would not have
occurred but for another transaction.
Sec. 423: Suspension of Tax-Exempt Status of Designated Foreign Terrorist
Organizations.
(a) Section 501 (relating to exemption from tax on corporations, certain trusts, etc.)
is amended by redesignating subsection (p) as subsection (q) and by inserting after subsection
(o) the following new subsection:
"(p) SUSPENSION OF TAX-EXEMPT STATUS OF DESIGNATED
TERRORIST ORGANIZATIONS.
"(1) IN GENERAL. The exemption from tax under subsection (a)
with respect to any organization shall be suspended during any period in
which the organization is a designated terrorist organization.
"(2) DESIGNATED TERRORIST ORGANIZATION. For purposes
of this subsection, the term 'designated terrorist organization' means an
organization which

- 70 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(A) is designated as a terrorist organization by an Executive
Order or under the authority of
"(i) section 212(a)(3) or 219 of the Immigration and
Nationality Act,
"(ii) the International Emergency Economic Powers
Act, or
"(iii) section 5 of the United Nations Participation Act,
or
"(B) is a person listed in or designated by an Executive Order
as supporting terrorist activity (as defined in section 212(a)(3)(B) of
the Immigration and Nationality Act) or terrorism (as defined in
section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal
Years 1988 and 1989).
"(3) DENIAL OF DEDUCTION. No deduction shall be allowed
under section 170, 545(b)(2), 556(b)(2), 642(c), 2055, 2106(a)(2), or 2522
for any contribution to an organization during the period such organization is
a designated terrorist organization.
"(4) DENIAL OF ADMINISTRATIVE OR JUDICIAL
CHALLENGE OF SUSPENSION OR DENIAL OF DEDUCTION.
Notwithstanding section 7428 or any other provision of law, no organization
or other person may challenge a suspension under paragraph (1), a

- 71 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

determination or listing under paragraph (2), or a denial of a deduction under
paragraph (3) in any administrative or judicial proceeding relating to the
organization's Federal tax liability.
"(5) CREDIT OR REFUND IN CASE OF ERRONEOUS
DESIGNATION.
"(A) IN GENERAL If an erroneous designation of an
organization pursuant to I or more of the provisions of law described
in paragraph (2) results in an overpayment of income tax for any
taxable year with respect to such organization, credit or refund (with
interest) with respect to such overpayment shall be made.
"(B) WAIVER OF LIMITATIONS. If credit or refund of any
overpayment of tax described in subparagraph (A) is prevented at any
time before the close of the 1-year period beginning on the date of the
determination of such credit or refund by the operation of any law or.
rule of law (including res judicata), such refund or credit may
nevertheless be made or allowed if claim therefor is filed before the
close of such period.".
(b) If the tax exemption of any organization is suspended under section 501(p) of the
Internal Revenue Code of 1986 (as added by subsection (a)), the Internal Revenue Service
shall update the listings of tax-exempt organizations and shall publish appropriate notice to

- 72 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

taxpayers of such suspension and of the fact that contributions to such organization are not
deductible during the period of such suspension.
Sec. 424: Denial of Federal Benefits to Terrorists.
Chapter 1 13B of title 18, United States Code, is amended --
(1) in the chapter analysis, by adding at the end the following:
"2339C. Denial of federal benefits to terrorists"; and
(2) by adding at the end the following:
"§ 2339C. Denial of federal benefits to terrorists
"(a) In general. -Any individual who is convicted of an offense listed
in section 2332b(g)(5)(B) shall, as provided by the court on motion of the
government, be ineligible for any or all Federal benefits for any term of years
or for life.
"(b) Definition. -- As used in this section, 'Federal benefit' has the
meaning given that term in section 421(d) of the Controlled Substances Act
(21 U.S.C. 862(d)).
Sec. 425: Corrections to Financing of Terrorism Statute.
(a) Section 2339C(c)(2) of title 18, United States Code, is amended by --
(1) striking "resources, or funds" and inserting "resources, or any funds or
proceeds of such funds";
(2) in subparagraph (A), striking "were provided" and inserting "are to be
provided, or knowing that the support or resources were provided,"; and

- 73 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(3) in subparagraph (B)--
(A) striking "or any proceeds of such funds"; and
(B) striking "were provided or collected" and inserting "are to be
provided or collected, or knowing that the funds were provided or collected,".
(b) Section 2339C(e) is amended by
(1) striking "and" at the end of paragraph (12);
(2) redesignating paragraph (13) as paragraph (14); and
(3) inserting after paragraph (12) the following new, paragraph:
"(13) the term 'material support or resources' has the same meaning as in
section 2339A(b) of this title; and".
(c) Section 2332b(g)(5)(B) of title 18, United States Code, is amended by inserting
")" after "2339C (relating to financing of terrorism".
Sec. 426: Terrorism-Related Specified Activities for Money Laundering.
(a) AMENDMENTS TO RICO. -- Section 1961(1) of title 18, United States Code, is
amended --
(1) in subparagraph (B), by inserting "section 1960 (relating to illegal money
transmitters)," before "sections 2251"; and
(2) in subparagraph (F), by inserting "section 274A ( relating to unlawful
employment of aliens)," before "section 277".

- 74 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(b) AMENDMENTS TO SECTION 1956(c)(7).-- Section 1956(c)(7)(D) of title 18,
United States Code, is amended by
(1) striking "or section 2339A or 2339B or 2339B" and inserting "section
2339A or 2339B";
(2) inserting ", or section 2339C (relating to financing of terrorism)" before
"of this title"; and
(3) striking "or any felony violation of the Foreign Corrupt Practices Act" and
inserting "any felony violation of the Foreign Corrupt Practices Act, or any violation
of section 208 of the Social Security Act (relating to obtaining funds through misuse
of a social security number)".
Sec. 427: Assets of Persons Committing Terrorist Acts Against Foreign Countries or
International Organizations.
Section 981(a)(1)(G) of title 18, United States Code, is amended by --
(1) striking "or" at the end of clause (ii);
(2) striking the period at the end of clause (iii) and inserting "; or"; and
(3) inserting the following after clause (iii):
"(iv) of any individual, entity, or organization engaged
in planning or perpetrating any act of international terrorism
(as defined in section 2331) against any international
organization (as defined in section 209 of the State Department
Basic Authorities Act of 1956) or against any foreign

- 75 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

Government, its citizens or residents, or their property. Where
the property sought for forfeiture is located beyond the
territorial boundaries of the United States, an act in furtherance
of such planning or perpetration must have occurred within the
jurisdiction of the United States.".
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. 10756 is amended by striking "title 18" and.
inserting "title 28".
(3) Section 53 18(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 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(A) in the chapter analysis, by inserting at the end the following:
"987. Anti-terrorist forfeiture protection."; and
(B) by inserting at the end the following:
"§ 987. Antiterrorist forfeiture protection
"(a) Right to contest. -- An owner of property that is confiscated under this chapter
or any other provision of law relating to the confiscation of assets of suspected international
terrorists, may contest that confiscation by filing a claim in the manner set forth in the Federal
Rules of Civil Procedure (Supplemental Rules for Certain Admiralty and Maritime Claims),
and asserting as an affirmative defense that --
"(1) the property is not subject to confiscation under such provision of law; or
"(2) the innocent owner provisions of section 983(d) apply to the case.
"(b) Evidence. -- In considering a claim filed under this section, a court may admit
evidence that is otherwise inadmissible under the Federal Rules of Evidence, if the court
determines that the evidence is reliable, and that compliance with the Federal Rules of
Evidence may jeopardize the national security interests of the United States.
"(c) Clarifications. --
"(1) Protection of rights. -- The exclusion of certain provisions of Federal law
from the definition of the term 'civil forfeiture statute' in section 983(i) shall not be
construed to deny an owner of property the right to contest the confiscation of assets
of suspected international terrorists under --
"(A) subsection (a) of this section;

- 77 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(B) the Constitution; or
"(C) subchapter II of chapter 5 of title 5, United States Code
(commonly known as the 'Administrative Procedure Act').
"(2) Savings clause. -- Nothing in this section shall limit or otherwise affect
any other remedies that may be available to an owner of property under section 983
or any other provision of law.".
(2) Subsections (a), (b), and (c) of section 316 of Pub. L. 107-56 are repealed.
(c) CONFORMING AMENDMENTS CONCERNING CONSPIRACIES. --
(1) Section 33(a) of title 18, United State Code is amended by inserting "or
conspires" before "to do any of the foregoing".
(2) Section 1366(a) of title 18, United State Code, is amended by --
(A) striking "attempts" each time it appears and inserting "attempts or
conspires"; and
(B) inserting ", or if the object of the conspiracy had been achieved,"
after "the attempted offense had been completed".
Title V: Enhancing Immigration and Border Security
Sec. 501: Expatriation of Terrorists.
Section 349 of the Immigration and Nationality Act (8 U.S.C. 1481) is amended
(1) by amending subsection (a)(3) to read as follows:
"(3) (A) entering, or serving in, the armed forces of a foreign state if --

- 78 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(i) such armed forces are engaged in hostilities against the United
States; or
"(ii) such person serves as a commissioned or non-commissioned
officer, or
"(B) joining or serving in, or providing material support (as defined in
section 2339A of title 18, United States Code) to, a terrorist organization
designated under section 212(a)(3) or 219 or designated under the
International Emergency Economic Powers Act, if the organization is engaged
in hostilities against the United States, its people, or its national security
interests."; and
(2) by adding at the end of subsection (b) the following: "The voluntary commission
or performance of an act described in subsection (a)(3)(A)(i) or (B) shall be prima facie
evidence that the act was done with the intention of relinquishing United States nationality.".
Sec. 502: Enhanced Criminal Penalties for Violations of Immigration and Nationality
Act.
(a) ENTRY CRIMES. -- Section 275(a)(1) of the Immigration and Nationality Act (8
U.S.C. 1325(a)(1)) is amended by
(1) striking "6 months" and inserting "one year"; and
(2) striking "2 years" and inserting "3 years".
(b) REENTRY AFTER REMOVAL -- Section 276 of the Immigration and
Nationality Act (8 U.S.C. 1326) is amended --

- 79 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(1) in subsection (a), by striking "2 years" and inserting "3 years"; and
(2) in subsection (b)(3), by striking "10 years" and inserting "20 years".
(c) ALIEN SMUGGLING. -- Section 274(a)(2)(A) of the Immigration and
Nationality Act (8 U.S.C. 1324(a)(2)(A)) is amended by striking "one year" and inserting "3
years".
(d) REGISTRATION OFFENSES. -- (1) Section 264(e) of the Immigration and
Nationality Act (8 U.S.C. 1304(e)) is amended by striking "be fined not to exceed $100 or be
imprisoned not more than 30 days" and inserting "be fined under title 18, United States Code,
or imprisoned not more than 90 days".
(2) Section 266 of the Immigration and Nationality Act (8 U.S.C. 1306) is
amended --
(A) in subsection (b), by striking "be fined not to exceed $200 or be
imprisoned not more than thirty days" and inserting "be fined under title 18,
United States Code, or imprisoned not more than six months"; and
(B) in subsection (c), by striking "be fined not to exceed $1000, or be
imprisoned not more than six months" and inserting "be fined under title 18,
United States Code, or imprisoned not more than one year".
(e) UNLAWFUL VOTING. -Section 611(b) of title 18, United States Code, is
amended by striking "one year" and inserting "three years".
Sec. 503: Inadmissibility and Removability of National Security Aliens or Criminally
Charged Aliens.

- 80 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(a) Section 212(a)(3) of the Immigration and Nationality Act, as amended, is
amended by adding at the end thereof the following new subparagraphs:
"(G) An alien whose entry or proposed activities in the United States
the Attorney General has reason to believe would pose a danger to the
national security of the United States as defined in section 219(c)(2) of the
Act is inadmissible.
"(II) An alien whom the Attorney General has reason to believe is
charged with or has committed a serious criminal offense in a country other
than the United States is inadmissible.".
(b) Section 237(a)(4) of Immigration and Nationality Act is amended by adding at
the end thereof the following new subparagraphs:
"(E) An alien whose presence or activities in the United States the
Attorney General has reason to believe pose a danger to the national security
of the United States, as defined in section 219(c)(2) of the Act is removable.
"(F) An alien whom the Attorney General has reason to believe is
charged with or has committed a serious criminal offense in a country other
than the United States is removable.".
Sec. 504: Expedited Removal of Criminal Aliens.
(a) The caption of Section 238 of the Immigration and Nationality Act is amended to
read as follows: "EXPEDITED REMOVAL OF CRIMINAL ALIENS".

- 81 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(b) Section 238(b) of the Immigration and Nationality Act is amended to read as
follows:
"(b) Removal of Criminal Aliens. --
"(1) The Attorney General may, in the case of an alien
described in paragraph (2), determine the deportability of such alien,
and issue an order of removal pursuant to the procedures set forth in
this subsection or section 240.
"(2) An alien is described in this paragraph if the alien,
whether or not admitted into the United States, was convicted of any
criminal offense covered in 237(a)(2)(A)(iii), (B), (C), or (D), without
regard to its date of commission.
"(3) The Attorney General in his discretion may at any time
execute any order described in paragraph (1), except during the 14
calendar day period after the date that such order was issued, unless
waived by the alien, in order that the alien has an opportunity to apply
for judicial review under section 242, or if the removal has been stayed
under section 242(f)(2) of the Act. Notwithstanding any other
provision of law including section 2241 of title 28, United States
Code, no court other than a court of appeals pursuant to its
jurisdiction under section 242 of this Act shall have jurisdiction to
review or set aside any order, action, or decision taken or issued

- 82 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

pursuant to this subsection. Review in the court of appeals shall be
limited to determining whether the petitioner (i) is an alien and (ii) is
subject to a final judgment of conviction for an offense covered in
section 237(a)(2)(A)(iii), (B), (C), or (D).
"(4) Proceedings before the Attorney General under this
subsection shall be in accordance with such regulations as the
Attorney General shall prescribe. The Attorney General shall provide
that --
"(A) the alien is given reasonable notice of the charges
and of the opportunity described in subparagraph (C);
"(B) the alien shall have the privilege of being
represented (at no expense to the government) by such
counsel, authorized to practice in such proceedings, as the
alien shall choose;
"(C) the alien has a reasonable opportunity to inspect
the evidence and rebut the charges;
"(D) a determination is made for the record that the
individual upon whom the notice for the proceeding under this
section is served (either in person or by mail) is, in fact, the
alien named in such notice;
"(E) a record is maintained for judicial review, and

- 83 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

"(F) the final order of removal is not adjudicated by the
same person who issues the charges.
"(5) No alien described in this section shall be eligible for any
relief from removal that the Attorney General may grant in the
Attorney General's discretion."
(c) Section 238(c) of the Immigration and Nationality Act relating to judicial removal
is amended to read as follows:
"(d) Stipulated judicial order of deportation. -- The United States
Attorney may, pursuant to Federal Rule of Criminal Procedure 11, enter into a
plea agreement which calls for the alien to waive the right to notice and a
hearing under this section, and stipulate to the entry of a judicial order of
deportation from the United States as a condition of the plea agreement or as
a condition of probation or supervised release, or both. The United States
district court, in both felony and misdemeanor cases, and a United States
magistrate judge in misdemeanor cases, may accept such a stipulation and
shall have jurisdiction to enter a judicial order of deportation pursuant to the
terms of such stipulation."
(d) Section 242(f)(2) of the Immigration and Nationality Act is amended to read as
follows:
"(2) Particular cases. -- Notwithstanding any other provision of law, no
court shall enjoin or stay, whether temporarily or otherwise, the removal of

- 84 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

any alien pursuant to a final order under this section unless the alien shows by
clear and convincing evidence that the entry or execution of such order is
prohibited as a matter of law."
Sec. 505: Clarification of Continuing Nature of Failure-to-Depart Offense, and
Deletion of Provisions on Suspension of Sentence.
(a) Subparagraph (A) of section 243(a)(1) of the Immigration and Nationality Act (8
U.S.C. 1253(a)(1)) is amended to read as follows:
"(A) willfully --
"(1) fails or refuses to depart from the United States within a period of
30 days from the date of the final order of removal under administrative
processes, or if judicial review is had, then from the date of the final order of
the court; or
"(2) remains in the United States more than 30 days after the date of the
final is had, then more than 30 days after the date of the final order of the
court,".
(b) Section 243 of the Immigration and Nationality Act (8 U.S.C.253) is amended
by striking--
(1) paragraph (3) of subsection (a); and
(2) subsection (b).
Sec. 506. Additional Removal Authorities.

- 85 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

(a) Section 241(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(1)) is
amended by inserting at the end the following:
"(D) OTHER PLACES OF REMOVAL. --
"(i) The Attorney General may direct that the alien be removed
to another country or region if the Attorney General determines that
removal to any country specified in the preceding subparagraphs is
impracticable, inadvisable or impossible.
"(ii) The Attorney General may direct that an alien be removed
to any country or region regardless of whether the country or region
has a government, recognized by the United States or otherwise."
(b) Section 241(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(1)) is
amended by inserting at the end the following:
"(G) OTHER PLACES OF REMOVAL. --
"(i) The Attorney General may direct that the alien be removed
to another country or region if the Attorney General determines that
removal to any country specified in the preceding subparagraphs is
impracticable, inadvisable, or impossible.
"(ii) The Attorney General may direct that an alien be removed
to any country or region regardless of whether the country or region
has a government, recognized by the United States or otherwise.".

- 86 -

CONFIDENTIAL -- NOT FOR DISTRIBUTION
Draft--January 9, 2003

- 87 -

END DOCUMENT