|
and so cross-referenced (and because I actually enjoy doing things like this) I put together a 6-page summary of USA PATRIOT, based on the Congressional Research Analysis (what your representatives read).
Sorry for the long post but I hope someone finds this useful. Just the process of doing it helped me understand it better.
___________________________________________________________
USA PATRIOT Act: A Topical Summary
The USA PATRIOT Act (Unifying and Strengthening America by Providing Appropriate Tools and Resources to Intercept and Obstruct Terrorism) was signed into law by President Bush on October 26, 2001 in response to the terrorist attacks of September 11, 2001. The Act includes new laws and strengthens existing laws to prevent and prosecute terrorism. The provisions of the Act fall generally into five categories:
1. Tracking and gathering communications
2. Combating money laundering
3. Closing US borders to terrorists
4. Detaining and removing foreign terrorists from within US borders
5. New crimes, penalties, and procedures
1. Tracking and gathering communications
The Act includes amendments to existing law to allow law enforcement, in a criminal investigation:
- Court orders to install secret "caller ID" identification of the source and destination of email without a finding of the court (only necessary is government certification that it is likely to "produce information relevant to the investigation of a crime")
- Nationwide execution of such orders
- Nationwide access to phone company records (including credit card and bank account numbers) and the content of email or voice mail stored on a system for more than 180 days (in both cases the government agency still must provide a warrant, subpoena, or court order based on a finding of the court)
- access to all communications of a intruder or "hacker" without a court order
As safeguards against abuse the Act provides:
- a claim against the US for privacy violations by government personnel
- termination of many of the provisions with a sunset clause (Dec. 31, 2005).
Gathering intelligence on foreign nationals in the US is not restricted to criminal investigations. Although the Foreign Intelligence Surveillance Act (FISA) provides restrictions and safeguards on foreign intelligence gathering, USA PATRIOT eases some of them. Specifically, the Act:
- permits "roving" surveillance (order may not include specifics of place, facilities, or instrument when the court finds the target may use specificity to evade justice
- allows application for surveillance or a search order when gathering foreign intelligence is a significant reason for the application, rather than the reason
- authorizes secret "caller ID" for email and phone conversations
- sanctions court-ordered access to any tangible item rather than only business records held by lodging, car rental, and locker rental businesses
- carries a sunset provision and establishes a claim against the US for abuses by government personnel
Other surveillance-related provisions of the Act:
- permit, with some caveats, disclosure of matters occurring before a federal grand jury to any agency of law enforcement to assist in their official duties (this information was previously strictly confidential)
- authorize training for local law enforcement to recognize foreign intelligence when it has been intercepted, perhaps in the course of a domestic criminal investigation
- authorize the FBI to hire additional translators and improve other procedural efficiencies
2. Combating money laundering
The Act strengthens federal efforts to attack money laundering, or the flow of assets derived from or intended to facilitate the commission of crimes. To augment the power of existing law, the Act:
- requires businesses involved in cash transactions of more than $10,000 to file Suspicious Activity Reports (SARs) with the Treasury Department
- requires security dealers to file SARs for transactions over $5,000 which they suspect may be derived from illegal activity
- strengthens existing provisions to prevent financial employees from tipping off participants of a suspicious transaction
- authorizes the Secretary of the Treasury, under extraordinary circumstances, to require a particular financial institution to maintain strict records in their dealings with foreign customers and foreign financial institutions
- requires financial institutions to maintain 'due diligence' with regard to identifying the owners of foreign accounts and monitoring potential money laundering activity
- requires financial institutions to respond to Treasury requests for anti-money laundering records within 120 hours and to Justice or Treasury Department summons or subpoenas of records of foreign deposits within 7 days
- adds goods falsely classified, firearms trafficking, computer fraud and abuse, and providing material support to a terrorist organization to the list of predicate crimes for a money laundering prosecution
- increases penalties for counterfeiting
- forbids aliens suspected of money laundering from entering the US
- requires forfeiture of entire amount when more than $10,000 is smuggled into or out of the US, in lieu of a fine
- authorizes confiscation of all property of any individual or organization engaged in terrorism against the US (may in future interpretation run afoul of the Eighth Amendment's excessive fines clause)
- authorizes seizure of domestic bank accounts of foreign banks which are determined to have received money laundering deposits overseas
- establishes a procedure whereby a defendant may be ordered to transfer foreign proceeds of money laundering to the US for confiscation
3. Closing US borders to terrorists
The Act contains many stipulations aimed at preventing terrorist aliens from entering the country, including authorizing funds for:
- tripling the number of INS agents along the US-Canada border
- new border surveillance equipment
- feasability studies on the value of augmented fingerprinting, biometric scanning, and providing airlines with computer access to names of suspected terrorists
4. Detaining and removing foreign terrorists
USA PATRIOT redefines two of the five existing grounds for refusing admission and deporting foreign nationals relating to terrorism:
- engaging in terrorist activity is specifically enlarged in scope to include solicitation on behalf of terrorist organizaions, recruiting on their behalf, or providing them with material support (the Secretary of State or Attorney General may nullify a material support charge in certain cases)
- representing a terrorist organization has been enlarged by adding to organizations already identified under the Immigration and Nationality Act organizations which have been identified by the Secretary of State as being related to terrorism
Three new categories of inadmissibility and deportation were created:
- espousing terrorist activity
- being the spouse or child of an inadmissible alien associated with a terrorist organization, with some exceptions
- intending to engage in activities that could endanger the welfare, safety or security of the United States
The Act authorizes the detention of alien terrorist suspects for up to 7 days, after which time the suspect must be either charged, deported, or released. If held on charges a biannual review is required to show that the suspect's release would threaten national security or endanger an individual or the general public. This section is not consistent with the President's Military Order of November 13, 2001 which authorizes the Secretary of Defense to detain foreign terrorist suspects without express limitation except with regard to food, water, shelter, clothing, medical treatment, religious exercise, and a proscription on "invidious discrimination".
The act also provides several mechanisms whereby foreign victims of 9/11 may obtain relief, which include easing visa and administrative restrictions on family members.
4. New crimes, penalties, and procedures
Apart from the money laundering provisions already mentioned, new federal crimes created by the Act address:
- terrorist attacks on mass transportation facilities
- biological weapons offenses
- harboring terrorists
- providing terrorists material support
- conducting the affairs of an enterprise which affects interstate or foreign commerce through patterned commission of terrorist offenses
- fraudulent charitable solicitation
Some of thewse new crimes were created to fill gaps in existing law. Distinct provisions of the Act make federal crimes of:
- possessing biological material which cannot be justified for peaceful purposes
- possession of biological toxins or agents by a convicted felon, illegal alien, or fugitive
- harboring terrorists
- providing 'expert advice or assistance' to terrorists
The Act also increases penalties for terrorist-related crimes, especially those which endanger the public or result in loss of life.
Other procedural provisions of the Act include:
- increasing rewards for information in terrorism cases, and removing caps on the amount that can be offered (with some restrictions)
- expanding the authorization to employ the military in law enforcement when weapons of mass destruction are involved
- authorizing 'sneak and peek' search warrants
- permitting nationwide or worldwide execution of warrants in terrorism cases
- easing government access to confidential education records
- extending the authorization to collect DNA samples from convicted felons to include convicted terrorists
- lengthening the statute of limitations for terrorist crimes
- declaring overseas areas used by "American governmental entities for their activities" as being within the territory of the United States
- increasing compensation to victims of 9/11, and amending management procedures of the September 11th Victim Compensation Fund
- authorizing funds to expand institutional capacity of federal law enforcement agencies, including establishing regional forensic laboratories and a Secret Service national network task force to combat cybercrime
- requiring background criminal and immigration record checks for those applying for licenses to operate vehicles carrying hazardous materials
- allowing the President to impose trade restrictions on products which might be used for the design of weapons of mass destruction
One of the more conversial of these procedural stipulations was that authorizing "sneak and peek" search warrants. A sneak and peek warrant is one which authorizes officers to secretly enter, either physically or virtually; conduct a search, observe, take measurements, conduct examinations, smell, take pictures, copy documents, download or transmit computer files and depart without taking any tangible evidence or leaving notice of their presence.
The Fourth Amendment, which proscribes unreasonable search and seizure, was interpreted in Richards vs. Wisconsin (1997) to require officers to announce their purpose prior to a search, but the case also recognized exceptions where compliance will lead to destruction of evidence, flight of a suspect, or endangerment of the officers. Rule 41 of the Federal Rules of Criminal Procedure requires that officers leave a copy of the warrant and an inventory of what was taken, tangible and intangible, after a search. Rule 41 apparently would thus preclude sneak and peek searches entirely.
The Act takes the exceptions of the Fourth Amendment and applies them to Rule 41. How this apparent contradiction will be resolved in future decisions will probably hinge on the validity of equating the "unreasonableness" of secrecy pre- and post-search, and is unclear at this time.
Another controversial provision of the Act is that authorizing execution of warrants "within or outside the district" in terrorism cases. The Federal Rules require magistrates to issue warrants for property only within their judicial districts, unless the property is moved outside the district between the time the warrant is sought and when it is executed. The scope of the jurisdiction described in the Act clearly exceeds that of the Rules, and in the case of foreign execution of search warrants for persons, it could in theory be a mechanism for circumlocuting extradition proceedings.
Source: The USA Patriot Act: A Legal Analysis by Charles Doyle, Senior Specialist, American Law Division, Congressional Research Service, US Library of Congress
|
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(27 posts)
Send PM |
Profile |
Ignore
