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SURVEILLANCE, INFORMATION AND EVIDENCE GATHERING AND THE FOREIGN INTELLIGENCE SURVEILLANCE COURT (FISA)
Four year sunset on sections 206 and 215 (Foreign Intelligence Court orders for multipoint, or `roving,' wiretaps and for business records requested under the Foreign Intelligence Surveillance Act (FISA). )
Enables the use of multipoint, or `roving,' wiretaps in FISA investigations. The FISA court must find that the possibility of the target thwarting surveillance is based on specific facts in the application and the order must describe the specific target in detail when authorizing a roving wiretap for a target whose identity is not known. It is equired that in the event the government begins directing surveillance at a new facility or place where the nature and location of each of the facilities or places was unknown at the time the surveillance order was issued, the government must notify the issuing FISA court on an ongoing basis for all multipoint surveillance authority, which addresses concerns of some that the open-ended authorization to surveil new locations could be abused.
Adds new wiretap offenses related to terrorism. Adds new `wiretap predicates' which relate to crimes of terrorism. Those predicates include 1violence at international airports; animal enterprise terrorism; arson within special maritime and territorial jurisdiction; biological agents; nuclear and weapons of mass destruction threats; explosive materials; possession of weapons in Federal facilities; conspiracy to harm persons or property overseas; aggravated identity theft; killing Federal employees; killing certain foreign officials; attacks of mass transit; torture; harboring terrorists; terrorist military training; and structuring transactions to evade reporting requirements. In addition to these sections, assault on a flight crew member with a dangerous weapon; and certain weapons offenses aboard an aircraft. Adds computer fraud and abuse offenses as predicates for title III wiretaps.
FBI needs to aver that a `significant' purpose of a FISA order request is to gather foreign intelligence; before the Act, the FBI needed to show that obtaining foreign intelligence was the `primary purpose' of the order.
The effect of letting the status quo continue is that evidence obtained from a FISA warrant under FISA's statutory `probable cause' standard can be given to non-terror criminal prosecutors who are governed by the higher standard of 4th Amendment probable cause. In fact, the lower standard FISA warrant can be sought for criminal prosecution purposes, as long as terrorism or national intelligence is some small part of the reason.
FBI can access voice mails the same way it accesses e-mails and authorizes nationwide service with a single search warrant.
Increase civil liability for unauthorized disclosure of pen/trap, wiretap, e-mail, or FISA information.
Requires the FISA court to publish its rules and report to the House and Senate Judiciary Committees of the use of the emergency employments of electronic surveillance, physical searches, and pen register and trap and trace devices.
Library and Other Records:
Business evidence including tangible things must be `relevant' to an authorized preliminary or full investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities. The provision also requires a statement of facts to be included in the application that shows there are reasonable grounds to believe the tangible things sought are relevant. The provision requires high-level approval, (FBI Director) and specific congressional reporting, of requests for certain sensitive categories of records, such as library, bookstore, tax return, firearms sales, educational, and medical records.
Authorization for surveillance of non-US Citizens is for 120 days. A renewal can be granted for up to one year. Pen register/trap and trace surveillance is authorized to a period of one year in cases where the government certified that the information likely to be obtained is foreign intelligence information not concerning a U.S. person.
Department of Justice Inspector General can conduct an audit on the effectiveness and use of section 215 and submit an unclassified report of the audit to the House and Senate Committees on the Judiciary and Intelligence.
Sneak and Peek
Codifies existing procedures of delayed notice: Delayed notice is that a court has expressly authorized investigators to delay temporarily notifying a subject that a search warrant has been executed (i.e., a court-ordered search has occurred). A Federal judge must find that there is probable cause to believe that a crime has been or is about to be committed and that evidence of that crime or the fruits or instrumentalities of that crime will be found at the location to be searched. A compromise between the House and Senate defines a reasonable delay as up to 30 days for an initial request, or on a later date certain if the facts justify, and extensions of up to 90 days unless the facts justify longer.
Internet Activities:
Allows Internet service providers to disclose voluntarily the contents of electronic communications, as well as subscriber information, in emergencies involving immediate danger of death or serious physical injury.
DEFINING TERRORISTS AND PROVIDING MATERIAL SUPPORT
Extends the sunset of section 6001(b) of the Intelligence Reform and Terrorism Prevention Act (IRTPA) by 4 years. (an `Agent of a foreign power' for any person other than a United States person, includes a person who `engages in international terrorism or activities in preparation thereof.' This definition reaches `lone wolf' terrorists engaged in international terrorism.)
Makes section 6603 of the IRTPA permanent. (amended the law to address court concerns on the constitutionality of the prohibition of providing material support to terrorists.)
Makes it a crime to surveil, photograph, videotape, diagram, or to otherwise collect information with the intent to plan or assist in planning any of the acts of terrorism. Updates the definition of `dangerous weapons' to cover box cutters and other previously unrecognized weapons; and expanding the types of prohibited attacks to include causing the release of a hazardous material, a biological agent, or toxin near the property of a railroad carrier or mass transportation system. The conference report restricts the death penalty against inchoate offenses, but retains the death penalty for aggravated offenses.
Any property used to commit or facilitate the commission of, derived from, or otherwise involved in a Federal crime of terrorism is subject to civil forfeiture provisions. Prior to the USA PATRIOT Act, only the `proceeds' of a crime of terrorism were subject to civil forfeiture provisions. This section extends forfeiture to include property used in or derived from `trafficking in nuclear, chemical, biological, or radiological weapons technology or material.'
Amends the current definition of `Federal crime of terrorism,' to include new predicate offenses.
NATIONAL SECURITY LETTERS
Otherwise prohibited from talking to anyone about receiving a national security letter, the recipient of a national security letter (NSL) may consult with an attorney and challenge the NSL in court. The recipient of an NSL may petition for an order modifying or setting aside the request in the U.S. district court for the district in which that person or entity does business or resides. Government can ask for contempt of court ruling if the Letter confidentiality rules are violated and non-compliance can bring up to five years imprisonment, a fine, or both. The Attorney General is required to submit to Congress the annual aggregate number of requests made concerning different U.S. persons. Such reporting will permit the public to see some of the same data Congress sees in conducting its oversight responsibilities of the DOJ. Requires the Inspector General of DOJ to conduct an audit of the effectiveness and the use of the NSL authority.
SMUGGLING AND DRUG TRAFFICKING
It is unlawful for any person knowingly to ship, possess, sell, distribute or purchase contraband cigarettes. Provisions are extended to cover contraband smokeless tobacco; reducing the number of cigarettes that trigger application of the CCTA (Contraband Cigarette Trafficking Act) from 60,000 to 10,000; imposing reporting requirements on persons, except for tribal governments, who engage in delivery sales of more than 10,000 cigarettes or 500 single-unit cans or packages of smokeless tobacco in a single month; requiring the destruction of cigarettes and smokeless tobacco seized and forfeited under the CCTA; and authorizing State and local governments, and certain persons who hold Federal tobacco permits, to bring causes of action against violators of the CCTA
Federal crime to engage in drug trafficking to benefit terrorists. Modifies the proof requirements of the House-passed bill to clarify that a person must have knowledge that the person or organization has engaged or engages in terrorist activity or terrorism.
Increases the penalty for smuggling from imprisonment for not more than 5 years to imprisonment for not more than 20 years. Creates a new criminal offense for illegally smuggling goods from the United States and establishes a maximum penalty of 10 years imprisonment.
Reclassifies pseudoephedrine, phenylpropanolamine, and ephedrine as Schedule Listed Chemicals; reduces the Federal pertransaction sales limit for SLCs from 9 grams to 3.6 grams (the amount recently proposed by the Administration); requires behind-the-counter storage or locked cabinet storage of SLCs; requires that regulated sellers (retail distributors and pharmacies) maintain a written log of purchases; restricts monthly sales to no more than 9.0 grams per purchaser; imposes similar requirements on Internet sellers and mobile retail vendors; and requires each regulated seller to submit a certification that it is in compliance with these requirements.
Extends the Attorney General's existing authority to set production quotas for certain controlled substances to pseudoephedrine, ephedrine, and phenylpropanolamine. Currently, domestic production of these chemicals is not very high, as most is imported. With the adoption of the import quotas in section 715 of this Act , however, the Attorney General would require corresponding authority within the U.S. if domestic production were to increase. Current law (as amended) would allow manufacturers to apply for increases in their production quotas. Extends the Attorney General's existing authority to set import quotas for controlled substances (see 21 U.S.C. Sec. 952) to pseudoephedrine, ephedrine, and phenylpropanolamine. This section allows registered importers to apply for temporary or permanent increases in a quota to meet legitimate needs. The. Attorney General is required to act on all such applications within 60 days.
Closes a loophole in the current regulatory system for imports and exports of precursor chemicals for methamphetamine and other synthetic drugs. Under current law, a company that wants to import or export pseudoephedrine or another precursor chemical must either notify the Department of Justice 15 days in advance of the import or export; or be a company that has previously imported or exported a precursor and is proposing to sell the chemicals to a customer with whom the company has previously dealt.
A problem can arise, however, when the sale that the importer or exporter originally planned falls through. When this happens, the importer or exporter must quickly find a new buyer for the chemicals on what is called the `spot market'--a wholesale market. Sellers are often under pressure to find a buyer in a short amount of time, meaning that they may be tempted to entertain bids from companies without a strong record of preventing diversion.
Importers of meth precursor chemicals are required to file with Federal regulators the detailed information about the chain of distribution of imported chemicals (from the manufacturer to the shores of the U.S.). This provision will assist U.S. law enforcement agencies to better track where meth precursors come from, and how they get to the U.S. At present, very little information exists about the international `chain of distribution' for these chemicals, hindering effective controls.
Mandates a separate section of the current State Department report on major drug producing and transit countries (see 22 U.S.C. 2291h), identifying the five largest exporters of major methamphetamine precursor chemicals, and the five largest importers that also have the highest rate of methamphetamine production or diversion of these chemicals to the production of methamphetamine. If any of those countries was not fully cooperating with U.S. law enforcement in implementing their responsibilities under international drug control treaties, there would be consequences for their eligibility for U.S. aid, similar to those faced by the major drug trafficking nations under current law.
Creates an added deterrent for anyone who misuses a facilitated entry program, such as special entry lanes and other quicker ways to enter the US, to smuggle methamphetamine or its precursor chemicals. An additional penalty of up to 15 years. imprisonment is added to the punishment for the base offense. If convicted, an individual would also be permanently barred from using a fastpass system.
Clarifies that current penalties for cultivating illegal drugs on Federal property also apply to manufacturing synthetic drugs {such as methamphetamine). Methamphetamine `cooks' frequently move their operations to parks, national forests, and other public lands, causing serious environmental damage. This criminal penalty can help deter such destructive conduct.
Imposes life imprisonment on a leader of a drug trafficking organization convicted of trafficking in very large quantities of a drug, and receiving very large profits from that activity. This new provision reduces the threshold amount of methamphetamine (from 300 to 200 times the threshold for base violations) and profits from methamphetamine (from $10 million to $5 million), while still applying the life imprisonment penalty only to. true `kingpins'--the ringleaders of methamphetamine trafficking organizations. An offender who manufactures methamphetamine at a location where a child resides or is present, and imposes a consecutive. sentence of up to an additional 20 years imprisonment.
Clarifies existing law imposing the obligation of restitution for environmental cleanup costs on persons involved in meth production and trafficking. The recent decision of the Eighth Circuit Court of Appeals in United States v. Lachowski (405 F3d 696, 8th Cir. 2005) has undermined the ability of the Federal government to seek cleanup costs. from methamphetamine traffickers who are convicted only of methamphetamine possession--even when the methamphetamine lab in question was on the
defendant's own property.
Proposes that drug courts, full-service judiciaries that handle drug cases from the perspective not only of punishment but prevention and rehabilitation, be established at a federal level. Authorizes $99 million for fiscal years 2006 to 2010 for grants to State and local law enforcement agencies to assist in the investigation of methamphetamine traffickers and to reimburse the DEA for assistance in cleaning up methamphetamine laboratories. Authorizes grants to States to assist in treatment of children who have been endangered by living at a residence where methamphetamine has been manufactured or distributed.
Authorizes the Attorney General to award grants to address the use of methamphetamine among pregnant and parenting women offenders to promote public safety, public health, family permanence and well being.
CIVIL AND PRIVACY RIGHTS AND LIABILITY PROTECTION
It is the sense of the Congress that no American citizen should be the target of a criminal investigation solely as a result of that person's lawful political activity or membership in a non-violent political organization. During the many congressional hearings held on the PATRIOT Act, both in open and classified settings, there has been absolutely no evidence adduced that the Department of Justice or the FBI has used the powers conferred by law to investigate anyone based on his or her participation in the political process.
Immunity from civil liability (other than for gross negligence or intentional misconduct) for anyone other than a fire equipment manufacturer who donates fire equipment to volunteer fire companies.
Requires the Attorney General to report to Congress on Department of Justice use or development of pattern-based data-mining technology.
It is a sense of the Congress that the victims of terrorist attacks should have access to the assets of terrorists.
Any death-penalty eligible defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services will be entitled to the appointment of one or more attorneys and the furnishing of such other services.
AIRCRAFT AND MARITIME VESSELS
Prohibits the destruction of aircraft or aircraft facilities, to address the increasing number of reports to the Federal Aviation Administration of the intentional aiming of lasers into airplane cockpits. The amendment makes it illegal to interfere with or disable a pilot or air navigation facility operator with the intent to endanger the safety of any person or with reckless disregard for the safety of human life.
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Death penalty prosecutions for air piracy crimes occurring before the 1994 Federal Death Penalty Act would permit the imposition of the death penalty upon an individual convicted of air piracy offenses resulting in death where those offenses occurred after enactment of the Antihijacking Act of 1974 but before the enactment of the Federal Death Penalty Act of 1994. This provision would cover a small, but important category of defendants, including those responsible for the December 1984 hijacking of Kuwait Airways flight 221 and the murder of two American United States Agency for International Development employees, William Stanford and Charles Hegna; the June 1985 hijacking of TWA flight 847 and the murder of Navy diver Robert Stethem; the November 1985 hijacking of Egyptair flight 648 and the murder of American servicewoman Scarlett Rogenkamp as well as 56 other passengers; and the September 1986 hijacking of Pan Am flight 73 and the murder of American citizens Rajesh Kumar and Surendra Patel, as well as at least 19 other passengers and crew.
Fraudulent access to transport facilities includes seaports and waterfronts within its scope, and increases the penalties for violating these provisions from a maximum of 5 years to 10 years.
Refusal to stop a vessel,' by itself, is not currently a crime. This section amends title 18 of the United States Code to make it a crime for a vessel operator knowingly to fail to slow or stop a ship once ordered to do so by a Federal law enforcement officer; for any person on board a vessel to impede boarding or other law enforcement action authorized by Federal law; or for any person on board a vessel to provide false information to a Federal law enforcement officer. Any violation of this section will be punishable by a fine and/or imprisonment for a maximum term of 5 years.
Makes it a crime to intentionally damage or tamper with any maritime navigational aid maintained by the Coast Guard or under its authority, if such act endangers the safe navigation of a ship. In addition, this section amends title 18 of the United States Code to make it a crime to knowingly place in waters any device that is likely to damage a vessel or its cargo, interfere with a vessel's safe navigation, or interfere with maritime commerce. Any violation of this provision will be punishable by a fine and/or a maximum term of imprisonment for life, and if death results, an offense could be punishable by a sentence of death.
Makes it a crime to knowingly and intentionally transport aboard any vessel an explosive, biological agent, chemical weapon, or radioactive or nuclear materials, knowing that the item is intended to be used to commit a terrorist act. Any violation of this provision will be punishable by a fine and a maximum prison term of life and, if death results, the offense could be punished by a sentence of death.
Makes it a crime to damage or destroy a vessel or its parts, a maritime facility, or any apparatus used to store, load or unload cargo and passengers; perform an act of violence against or incapacitate any individual on a vessel, or at or near a facility; or knowingly communicate false information that endangers the safety of a vessel. Any violation of this section (including attempts and conspiracies) will be punished by a fine and/or imprisonment for a maximum of 20 years; if death results, the offense could be punished by a sentence of death. If an individual threatens to carry out the above-described offense, and has the apparent will and determination to carry out the threat, that threat is punishable by a fine and/or imprisonment for a maximum of 5 years.
Increases the maximum penalty for stowaways on vessels or aircraft from 1 year to 5 years imprisonment. If the act is committed with the intent to commit serious bodily injury and serious bodily injury occurs, it will be punishable by a fine and a maximum of 20 years imprisonment. If death results, it will be punishable by death or life imprisonment.
Makes it a crime to knowingly, and with the intent to commit international or domestic terrorism, bribe a public official to affect port security; or to receive a bribe in return for being influenced in public duties affecting port security, knowing that such influence will be used to commit, or plan to commit, an act of terrorism. A violation of this section is punishable by a maximum term of 15 years imprisonment.
TERRORIST FINANCING
Increases the civil penalty for terrorist financing from $10,000 to $50,000 per violation and to increase the criminal penalty from 10 years imprisonment to 20 years imprisonment with the maximum criminal fine remaining the same. Typical of the violation is illegal money transmitting business, including `hawala' networks, which terrorists and their sympathizers often use to transfer funds to terrorist organizations abroad. Methods for raising funds to support terrorist activities may be legal or illegal. Also, the objective of money laundering investigations is prosecution and forfeiture. Terrorist financing investigations share these objectives; however, the ultimate goal is to identify, disrupt, and cut off the flow of funds to terrorists, whether or not the investigation results in prosecutions.' Alternative remittance systems are utilized by terrorists to move and launder large amounts of money around the globe quickly and secretly. These remittance systems, also referred to as `hawala' networks, are used throughout the world, including the Middle East, Europe, North America and South Asia. These systems are desirable to criminals and non-criminals alike because of the anonymity, low cost, efficiency, and access to underdeveloped regions. The United States has taken steps to combat the `hawala' networks by requiring all money transmitters, informal or formal, to register as money services businesses.
SECRET SERVICE AND OTHER LAW ENFORCEMENT
The Secret Service is authorized to charge individuals who breach established security perimeters or engage in other disruptive or potentially dangerous conduct at National Special Security Events (NSSEs) if a Secret Service protectee is attending the designated event. Such security breaches at NSSEs that occur when the Secret Service protectee is not in attendance a also criminalized. Additionally, it doubles the statutory penalties (from 6 months to 1 year) for violations. Makes punishable by up to 10 years the thwarting of security procedures by individuals in possession of dangerous or deadly weapons. make it a Federal crime to knowingly produce, possess, or transfer a false identification document that could be used to gain unlawful and unauthorized access to any restricted area of a building or grounds in conjunction with a NSSE.
Forensic and other civilian personnel, such as fingerprint specialists, polygraph examiners, and handwriting analysts, are authorized to provide such assistance to the National Center for Missing and Exploited Children or local law enforcement agencies.
Maintains the Secret Service as a distinct component of the Department of Homeland Security while providing the Service with necessary operational latitude. It allows for the Director of the Secret Service to report directly to the Secretary of the Department of Homeland Security.