posted on August 15, 2003 11:34:37 AM new
Howls of rage went up after the Joint Terrorism Task Force, guns drawn, arrested Maher Hawash in the parking lot of an Intel Corp. facility in March and placed him in solitary confinement. The protests intensified as prosecutors detained him without charges for more than a month in an Oregon jail while they pored over the evidence.
This all came as a particular shock, for Maher Mofeid "Mike" Hawash personified the American success story. A Palestinian born in Nablus in 1964 and reared in Kuwait, he arrived in the United States in 1984, earning degrees in electrical engineering at the University of Texas. He went on to work for Compaq in 1989 and became a U.S. citizen in 1990.
His career at Intel began in 1992, where he worked on video technologies. When his father fell ill, he got Intel to transfer him to its plant in Israel, where he lived for two years. He married Lisa Ryan in 1995 and fathered two children. In 1997 he published a well-received book on video graphic formats with the prestigious scientific press Addison-Wesley.
Hawash had achieved much by 2000. He worked at one of the world's greatest companies, earned nearly $360,000 a year, had a circle of friends, and was admired for his volunteer activities.
But that same year, neighbors reported to the FBI, he became noticeably more devout. He grew a beard, wore Arab clothing, prayed five times a day and regularly attended mosque. He also became noticeably less friendly.
Further inquiry found that Hawash paid up his house mortgage (interest payments go against Islamic law) and donated more than $10,000 to the Global Relief Foundation, an Islamic charity subsequently closed for financing terrorist groups. Early in 2001, he went on pilgrimage to Mecca. And "Middle Eastern males" were seen coming and going from his house.
Friends and co-workers condemned such information as "guilt by association." Nothing in Hawash's actions, they insisted, justified his incarceration, and they made their views known. They launched FreeMikeHawash.org and wrote letters to the editor. They set up a legal defense fund and staged protests on the streets of Portland, Ore.
Hawash's former boss at Intel, Steven McGeady, became his champion, portraying Hawash as an average "Arab-American with a job and a family." McGeady dubbed the arrest "Alice in Wonderland meets Franz Kafka" and dismissed the charges against Hawash as "baseless" or "completely insane."
Supporters filled Northwest newspapers with alarms. One professor portrayed Hawash's incarceration as "part of a consistent pattern of suppression of civil liberties." Columnists and letter writers compared the United States to a "Third World country," Orwell's "1984," Nazi Germany or the Soviet Union. Militant Islamic groups like the Council on American-Islamic Relations saw in Hawash's arrest "serious damage" to the standing of American Muslims.
Hawash's high-powered career and supporters together turned him into the symbol of the pious Muslim victimized by a biased and overzealous justice system.
And then, on Aug. 6, this whole illusionary edifice came crashing down: Hawash pleaded guilty to conspiring to help the Taliban. He also agreed to cooperate fully with the prosecution and waived his right to appeal his conviction and sentence. In return, the government dismissed the other counts against Hawash.
How did his supporters take this news? A media search turns up not a single mea culpa. Instead, they responded with denial and silence. "I don't know if I feel betrayed. I'm not dwelling on that now," said one of his staunchest sympathizers. "I want to hear directly from him before I believe it," said another. At the Aug. 6 hearing, reports the Oregonian newspaper, "The throngs of friends and supporters who publicly protested on Hawash's behalf at previous hearings" were noticeably absent. Militant Islamic lobby groups lost their voice.
In short, while Hawash confessed to his crime, his supporters refused to admit their mistakes.
There are two lessons here. First, profiling can work. Alert neighbors reporting on apparently militant Islamic activities brought Hawash to law enforcement's attention.
Second, sympathizers of terrorist suspects are entitled to express surprise and tell heart-warming stories about them. But shrill charges of racism and appalling comparisons to Nazi Germany impede the U.S. government's efforts to protect Americans.
posted on August 15, 2003 02:43:17 PM new
Just wait till the Victory Act and the Homeland Security Act (Patriot Act 2) get passed. We will all be profiled as terroists.
I have posted the bill but apparently you never took the time to read the new laws
posted on August 15, 2003 02:49:18 PM new
Secret Patriot Act II Destroys
Remaining US Liberty
Total Police State Takeover
The Secret Patriot Act II Destroys What
Is Left of American Liberty
By Alex Jones
www.infowars.com
2-11-3
Congressman Ron Paul (R-Tex) told the Washington Times that no member of Congress was allowed to read the first Patriot Act that was passed by the House on October 27, 2001. The first Patriot Act was universally decried by civil libertarians and Constitutional scholars from across the political spectrum. William Safire, while writing for the New York Times, described the first Patriot Act's powers by saying that President Bush was seizing dictatorial control.
On February 7, 2003 the Center for Public Integrity, a non-partisan public interest think-tank in DC, revealed the full text of the Domestic Security Enhancement Act of 2003. The classified document had been leaked to them by an unnamed source inside the Federal government. The document consisted of a 33-page section by section analysis of the accompanying 87-page bill.
*Note: On February 10, 2003 I discovered that not only was there a house version that had been covertly brought to Hastert, but that many provisions of the now public Patriot Act II had already been introduced as pork barrel riders on Senate Bill S. 22. Dozens of subsections and even the titles of the subsections are identical to those in the House version. This is very important because it catches the Justice Department in a bald-faced lie. The Justice Department claimed that the secret legislation brought into the House was only for study, and that at this time there was no intention to try and pass it. Now upon reading S. 22, it is clear that the leadership of the Senate is fully aware of the Patriot Act II, and have passed these riders out of their committees into the full bill. I spent two hours scanning through S. 22 and, let me tell you, it is a nightmare for anyone who loves liberty. It even contains the Our Lady of Peace Act that registers all gun owners. It bans the private sale of all firearms, creates a Federal ballistics database, and much more.
The bill itself is stamped 'Confidential ö Not for Distribution.' Upon reading the analysis and bill, I was stunned by the scientifically crafted tyranny contained in the legislation. The Justice Department Office of Legislative Affairs admits that they had indeed covertly transmitted a copy of the legislation to Speaker of the House Dennis Hastert, (R-Il) and the Vice President of the United States, Dick Cheney as well as the executive heads of federal law enforcement agencies.
It is important to note that no member of Congress was allowed to see the first Patriot Act before its passage, and that no debate was tolerate by the House and Senate leadership. The intentions of the White House and Speaker Hastert concerning Patriot Act II appear to be a carbon copy replay of the events that led to the unprecedented passage of the first Patriot Act.
There are two glaring areas that need to be looked at concerning this new legislation:
1. The secretive tactics being used by the White House and Speaker Hastert to keep even the existence of this legislation secret would be more at home in Communist China than in the United States. The fact that Dick Cheney publicly managed the steamroller passage of the first Patriot Act, insuring that no one was allowed to read it and publicly threatening members of Congress that if they didn't vote in favor of it that they would be blamed for the next terrorist attack, is by the White House's own definition terrorism. The move to clandestinely craft and then bully passage of any legislation by the Executive Branch is clearly an impeachable offense.
2. The second Patriot Act is a mirror image of powers that Julius Caesar and Adolf Hitler gave themselves. Whereas the First Patriot Act only gutted the First, Third, Fourth and Fifth Amendments, and seriously damaged the Seventh and the Tenth, the Second Patriot Act reorganizes the entire Federal government as well as many areas of state government under the dictatorial control of the Justice Department, the Office of Homeland Security and the FEMA NORTHCOM military command. The Domestic Security Enhancement Act 2003, also known as the Second Patriot Act is by its very structure the definition of dictatorship.
I challenge all Americans to study the new Patriot Act and to compare it to the Constitution, Bill of Rights and Declaration of Independence. Ninety percent of the act has nothing to do with terrorism and is instead a giant Federal power-grab with tentacles reaching into every facet of our society. It strips American citizens of all of their rights and grants the government and its private agents total immunity.
Here is a quick thumbnail sketch of just some of the draconian measures encapsulated within this tyrannical legislation:
SECTION 501 (Expatriation of Terrorists) expands the Bush administration's "enemy combatant" definition to all American citizens who "may" have violated any provision of Section 802 of the first Patriot Act. (Section 802 is the new definition of domestic terrorism, and the definition is "any action that endangers human life that is a violation of any Federal or State law." Section 501 of the second Patriot Act directly connects to Section 125 of the same act. The Justice Department boldly claims that the incredibly broad Section 802 of the First USA Patriot Act isn't broad enough and that a new, unlimited definition of terrorism is needed.
Under Section 501 a US citizen engaging in lawful activities can be grabbed off the street and thrown into a van never to be seen again. The Justice Department states that they can do this because the person "had inferred from conduct" that they were not a US citizen. Remember Section 802 of the First USA Patriot Act states that any violation of Federal or State law can result in the "enemy combatant" terrorist designation.
SECTION 201 of the second Patriot Act makes it a criminal act for any member of the government or any citizen to release any information concerning the incarceration or whereabouts of detainees. It also states that law enforcement does not even have to tell the press who they have arrested and they never have to release the names.
SECTION 301 and 306 (Terrorist Identification Database) set up a national database of "suspected terrorists" and radically expand the database to include anyone associated with suspected terrorist groups and anyone involved in crimes or having supported any group designated as "terrorist." These sections also set up a national DNA database for anyone on probation or who has been on probation for any crime, and orders State governments to collect the DNA for the Federal government.
SECTION 312 gives immunity to law enforcement engaging in spying operations against the American people and would place substantial restrictions on court injunctions against Federal violations of civil rights across the board.
SECTION 101 will designate individual terrorists as foreign powers and again strip them of all rights under the "enemy combatant" designation.
SECTION 102 states clearly that any information gathering, regardless of whether or not those activities are illegal, can be considered to be clandestine intelligence activities for a foreign power. This makes news gathering illegal.
SECTION 103 allows the Federal government to use wartime martial law powers domestically and internationally without Congress declaring that a state of war exists.
SECTION 106 is bone-chilling in its straightforwardness. It states that broad general warrants by the secret FSIA court (a panel of secret judges set up in a star chamber system that convenes in an undisclosed location) granted under the first Patriot Act are not good enough. It states that government agents must be given immunity for carrying out searches with no prior court approval. This section throws out the entire Fourth Amendment against unreasonable searches and seizures.
SECTION 109 allows secret star chamber courts to issue contempt charges against any individual or corporation who refuses to incriminate themselves or others. This sections annihilate the last vestiges of the Fifth Amendment.
SECTION 110 restates that key police state clauses in the first Patriot Act were not sunsetted and removes the five year sunset clause from other subsections of the first Patriot Act. After all, the media has told us: "this is the New America. Get used to it. This is forever."
SECTION 111 expands the definition of the "enemy combatant" designation.
SECTION 122 restates the government's newly announced power of "surveillance without a court order."
SECTION 123 restates that the government no longer needs warrants and that the investigations can be a giant dragnet-style sweep described in press reports about the Total Information Awareness Network. One passage reads, "thus the focus of domestic surveillance may be less precise than that directed against more conventional types of crime."
*Note: Over and over again, in subsection after subsection, the second Patriot Act states that its new Soviet-type powers will be used to fight international terrorism, domestic terrorism and other types of crimes. Of course the government has already announced in Section 802 of the first USA Patriot act that any crime is considered domestic terrorism.
SECTION 126 grants the government the right to mine the entire spectrum of public and private sector information from bank records to educational and medical records. This is the enacting law to allow ECHELON and the Total Information Awareness Network to totally break down any and all walls of privacy.
The government states that they must look at everything to "determine" if individuals or groups might have a connection to terrorist groups. As you can now see, you are guilty until proven innocent.
SECTION 127 allows the government to takeover coroners' and medical examiners' operations whenever they see fit. See how this is like Bill Clinton's special medical examiner he had in Arkansas that ruled that people had committed suicide when their arms and legs had been cut off.
SECTION 128 allows the Federal government to place gag orders on Federal and State Grand Juries and to take over the proceedings. It also disallows individuals or organizations to even try to quash a Federal subpoena. So now defending yourself will be a terrorist action.
SECTION 129 destroys any remaining whistleblower protection for Federal agents.
SECTION 202 allows corporations to keep secret their activities with toxic biological, chemical or radiological materials.
SECTION 205 allows top Federal officials to keep all their financial dealings secret, and anyone investigating them can be considered a terrorist. This should be very useful for Dick Cheney to stop anyone investigating Haliburton.
SECTION 303 sets up national DNA database of suspected terrorists. The database will also be used to "stop other unlawful activities." It will share the information with state, local and foreign agencies for the same purposes.
SECTION 311 federalizes your local police department in the area of information sharing.
SECTION 313 provides liability protection for businesses, especially big businesses that spy on their customers for Homeland Security, violating their privacy agreements. It goes on to say that these are all preventative measures ö has anyone seen Minority Report? This is the access hub for the Total Information Awareness Network.
SECTION 321 authorizes foreign governments to spy on the American people and to share information with foreign governments.
SECTION 322 removes Congress from the extradition process and allows officers of the Homeland Security complex to extradite American citizens anywhere they wish. It also allows Homeland Security to secretly take individuals out of foreign countries.
SECTION 402 is titled "Providing Material Support to Terrorism." The section reads that there is no requirement to show that the individual even had the intent to aid terrorists.
SECTION 403 expands the definition of weapons of mass destruction to include any activity that affects interstate or foreign commerce.
SECTION 404 makes it a crime for a terrorist or "other criminals" to use encryption in the commission of a crime.
SECTION 408 creates "lifetime parole" (basically, slavery) for a whole host of crimes.
SECTION 410 creates no statute of limitations for anyone that engages in terrorist actions or supports terrorists. Remember: any crime is now considered terrorism under the first Patriot Act.
SECTION 411 expands crimes that are punishable by death. Again, they point to Section 802 of the first Patriot Act and state that any terrorist act or support of terrorist act can result in the death penalty.
SECTION 421 increases penalties for terrorist financing. This section states that any type of financial activity connected to terrorism will result to time in prison and $10-50,000 fines per violation.
SECTIONS 427 sets up asset forfeiture provisions for anyone engaging in terrorist activities.
There are many other sections that I did not cover in the interest of time. The American people were shocked by the despotic nature of the first Patriot Act. The second Patriot Act dwarfs all police state legislation in modern world history.
Usually, corrupt governments allow their citizens lots of wonderful rights on paper, while carrying out their jackbooted oppression covertly. From snatch and grab operations to warantless searches, Patriot Act II is an Adolf Hitler wish list.
You can understand why President Bush, Dick Cheney and Dennis Hastert want to keep this legislation secret not just from Congress, but the American people as well. Bill Allison, Managing Editor of the Center for Public Integrity, the group that broke this story, stated on my radio show that it was obvious that they were just waiting for another terrorist attack to opportunistically get this new bill through. He then shocked me with an insightful comment about how the Federal government was crafting this so that they could go after the American people in general. He also agreed that the FBI has been quietly demonizing patriots and Christians and "those who carry around pocket Constitutions."
I have produced two documentary films and written a book about what really happened on September 11th. The bottom line is this: the military-industrial complex carried the attacks out as a pretext for control. Anyone who doubts this just hasn't looked at the mountains of hard evidence.
Of course, the current group of white collar criminals in the White House might not care that we're finding out the details of their next phase. Because, after all, when smallpox gets released, or more buildings start blowing up, the President can stand up there at his lectern suppressing a smirk, squeeze out a tear or two, and tell us that "See I was right. I had to take away your rights to keep you safe. And now it's your fault that all of these children are dead." From that point on, anyone who criticizes tyranny will be shouted down by the paid talking head government mouthpieces in the mainstream media.
You have to admit, it's a beautiful script. Unfortunately, it's being played out in the real world. If we don't get the word out that government is using terror to control our lives while doing nothing to stop the terrorists, we will deserve what we get - tyranny. But our children won't deserve it.
Alex Jones' article, Secret Patriot Act II Destroys What is Left of American Liberty, reminds me:
In the 1970's I had a friend who had penpals all over the world. One day he wrote me that his pal in the Soviet Union had written that he feared for his life because the KGB were shadowing his every move. He never knew why. A stray word perhaps? Then one day he just disappeared, as so many seemed to do. And I thanked God that I lived in a country where that kind of thing didn't happen.
The story is told that shortly after Nikita Khrushchev was made leader of the Soviet Union, he was addressing a large audience on the iniquities of Joseph Stalin when suddenly a voice shot out from the back of the hall: "You were one of his colleagues, why didn't you stop him?"
Glaring round the crowded hall, Khrushchev bellowed: "Who said that?"
posted on August 15, 2003 02:55:02 PM new
Patriot Act II (draft)
Document processing courtesy of Soylent Communications.
Source document:
http://www.pbs.org/now/politics/patriot2-hi.pdf
electronic history:
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
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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.
3
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.
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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
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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.
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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.
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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).
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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
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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
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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.
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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
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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.
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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;
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(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
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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
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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" statu
posted on August 15, 2003 03:07:33 PM new
The only terroists are the Neo Cons in the white house and the Saudi Arabians
[ edited by bigcitycollectables on Aug 15, 2003 03:08 PM ]
posted on August 15, 2003 04:37:27 PM new
bigcitycollectibles - I will join the growing list of fellow posters here who would ask that you PLEASE stop posting these VERY lengthy copy and pastes.
One has to scroll forever to get through them. A link to your 'point' would work just as well.
posted on August 15, 2003 04:46:31 PM new
Everytime I see an article like this I am more convinced than before that Bush is on the right track. We know there are cells in the US, just as there are all around the world.
A similar article I read said that part of his plea agreement was he would testify against his four/five cohorts also.
I remember, here on these boards, when people were screaming at the suggestion people keep their eyes open to what's going on around them...and report any suspicions they may have to the proper authorities. And of course all the civil rights groups and their belly-aching.
posted on August 15, 2003 05:28:49 PM new
Everytime I see an article like this I am more convinced than before that Bush is on the right track. We know there are cells in the US, just as there are all around the world.
Linda, its comments like this that let me know without a doubt that you dont read what I post.
After all the informtion Ive shared on this board any normal person would wake up from the NOZIFICATION process this administartion has put them through
posted on August 15, 2003 05:32:44 PM new
Here's another one today, they're in the online papers all the time. An airport employee kept his eyes open. Scream racial profiling, scream their rights are being violated, the Bush administration and it's war on terrorism is working. And if they also hold these guys for 2 months or year, I could care less.
Law-enforcement authorities said both men, who were not identified, carried Pakistani passports.
They told Port of Seattle police they paid alien-smugglers to bring them into the country through the port of entry at Blaine, Wash., whence they then made their way to the Seattle-Tacoma airport.
One had a Canadian driver's license; the other carried a driver's license issued in New York.
The men, ages 36 and 29, were arrested about 10 p.m. on the airport's ticketing level after an American Airlines ticket agent became suspicious and ran their names through the Transportation Security Administration's no-fly database of suspected terrorists.
They had been seen together at the airport, according to Port of Seattle Police, but went to separate airline counters to purchase one-way tickets to New York.
posted on August 15, 2003 07:59:16 PM new
"....the people can always be brought to the bidding of the leaders...tell them they are being attacked, and denounce the pacfists for lack of patriotism and exposing the country to danger..." - Hermann Goering
posted on August 15, 2003 08:19:52 PM new
"You wouldn't bother to read them just disparage them out of hand. And that would be who's choice? Mine, I believe.
You have to ask yourself, why does the Bush regime want a bill passed that they don't want us to know anything about?
As you well know this will be voted on....voted on by the people we have elected to represent us. The posted material is a DRAFT!!!
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