PART A: Providing for New and Enhanced Laws against Terrorism Created within the Existing Law Enforcement Paradigm

Prosecutorial Tools: Sharpening the Government's Prosecutorial Tools against Terrorism

Many of the USA PATRIOT Acts’ changes to the government’s ability to prosecute terrorism fit within the traditional approach toward law enforcement. These changes increase the scope or power of the government’s prosecutorial arsenal but do not change the basic approach to the definition of crimes and attempts.

The PATRIOT Act adjusts the meaning of domestic and international terrorism under the Anti-Terrorism Act, 18 U.S.C. ? 2331 (2005), and augments various definitions of terrorist-related crimes used throughout the United States Code. Previously, “mass destruction” was not one of the predicate crimes that characterized activities as international terrorism.  Previously, assassination and kidnapping that appeared to be intended to affect the conduct of a government were the only two identified crimes.  Section 802 changes the activities that are international terrorism under the Anti-Terrorism Act, 18 U.S.C. ? 2331 to include activities appearing “intended to affect the conduct of a government by mass destruction, assassination, or kidnapping.”  Furthermore, section 802 adds the definition for domestic terrorism.  Whereas previously such a definition did not exist, section 802 uses the following language: “ the term ‘domestic terrorism’ means activities that…involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended…to intimidate or coerce a civilian population;…to influence the policy of a government by intimidation or coercion; or…to affect the conduct of a government by mass destruction, assassination, or kidnapping; and…occur primarily within the territorial jurisdiction of the United States.’’

Part of the federal law against terrorism, 18 U.S.C. ? 2332b (2005), prescribes separate penalties for activities that transcend national boundaries and result in crimes of terrorism within the United States. Section 808 redefines acts of terrorism that transcend national boundaries.  Specifically, the section drops a number of less serious crimes from the definition under 18 U.S.C. ?2332b, such as simple assault, bomb scares, and malicious mischief, and places several more serious crimes, such as biological weapons offenses, cybercrime, and terrorist attacks on mass transit, within the United States jurisdiction under the primary investigative responsibility of the Attorney General.  See Jose R. Almonte, For the Sake of National Security: The Scope of the United States Attorney General's Authority in Light of 8 C.F.R. 236.6, 56 Rutgers L. Rev. 817 (2004) (pointing out that the Attorney General has received immense power through the PATRIOT Act, including with section 808).  Previously, most acts of terrorism were subject to an eight year statute of limitation.  Section 809 eliminates the statute of limitations for any federal crime of terrorism (as defined by 18 U.S.C. ? 2332b(g)(5)(B) and as amended by section 808) for instances in which “ the commission of such offense resulted in, or created a foreseeable risk of, death or serious bodily injury to another person’’.  However, all other types of terrorism become subject to the eight year statute of limitations, with the exception of explosives and arson offenses subject to the ten year statute of limitations.

Federal law 18 U.S.C. ? 1030 punishes fraud and certain other activities related to computers.  Previously, there was criminal or civil liability for computer-related acts that either involved losses of $5000 or more due to the invasive action, adversely affected certain medical data, caused a physical injury, or threatened public health or safety.  18 U.S.C. ? 1030(a)(5). To these illegal acts, section 814 adds “ damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security’’.  The section also clarifies the meaning of “losses” for the calculation of the $5000, increases the maximum penalty for intentionally damaging a federally protected computer, and broadens the scope to federally protected computers used by or for the government in furtherance of the administration of justice. See Ryan P. Wallace, Adam M. Lusthaus & John Hwan (Justin) Kim,Twentieth Survey of White Collar Crime: Computer Crimes, 42 Am. Crim. L. Rev. 223 (2005) (describing the various ways the PATRIOT Act criminalized computer-related actions).  Section 817 newly outlaws the possession of biological agents or toxins that cannot be “reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose” and makes it a federal offense for certain individuals, particularly convicted aliens and fugitives, to possess biological toxins or agents.

Section 804 extends the extraterritorial jurisdiction of the United States “with respect to offenses committed by or against a national of the United States.”  It permits American jurisdiction on “the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States…[and on] residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.” 

Section 801 strengthens the law against mass transportation crimes.  Previously, the law criminalized aggression against vehicles of mass transportation in a piece-meal approach.  However, section 801 fills in the gaps between the various pre-existing laws by generally making a violent or terrorist act against a vehicle of mass transportation a federal crime when “ such act is committed, or in the case of a threat or conspiracy such act would be committed, on, against, or affecting a mass transportation provider engaged in or affecting interstate or foreign commerce, or if in the course of committing such act, that person travels or communicates across a State line in order to commit such act, or transports materials across a State line in aid of the commission of such act”.  After the passage of this provision, debate arose as to whether aircrafts were included in the pertinent definition of “vehicle”.  In United States v. Reid, the district court, after reviewing the United States Code as well as the history of section 801, concluded that “vehicle” did not comprise aircraft.  206 F.Supp. 2d 132 (D.Mass. 2002).  In response to this case, Congress then amended the statute to clarify that vehicle includes any means of transportation on land, in water, or through air. 18 U.S.C. ? 1993 (2005), amended by Pub. L. No. 108-21, 117 Stat. 650, 692 (2003).

Section 221 expands permissible export bans under the Trade Sanctions Reform and Export Enhancement Act of 2000 to products that might facilitate the design as well as the development or production of a biological, chemical, or mass destruction weapon and also allows sale of agricultural and medical products to groups in Syria, North Korea, and (with special licenses) to areas of Afghanistan controlled by the Taliban.  Section 221 further expands banning power where there are violations of anti-terrorism provisions.  This expansion allows for more governmental control over relations with foreign powers and those planning terrorism.

The USA PATRIOT Act makes other adjustments to the penalties associated with various already-existing crimes. Section 810 increases the maximum penalties for various crimes of terrorism, such as increasing punishment for providing material support to a terrorist from ten to fifteen years and increasing penalties for life-threatening arson or arson of a residence within federal jurisdiction from twenty years to any number of years or life imprisonment. The Act also establishes in section 811 equivalent sanctions for conspiracy and some underlying offenses as is done in some, but not all, other federal criminal statutes.  And finally, section 812 amends prior law limiting the length of supervised release imposed on a convicted defendant in addition to his sentence.  (Supervised release is similar to parole but it is usually imposed in addition to rather than in place of a prison term.) Section 812 provides for a supervisory release term of life or any terms of years following convictions for a federal crime of terrorism as defined in 18 U.S.C. ? 2332b which resulted in death or involved a foreseeable risk of death or serious bodily injury, whereas prior law capped the length at five years for most crimes and violations.  18 U.S.C. ? 3583.

PATRIOT Act Provisions

• Expands permissible export bans to products that might facilitate the design as well as the development or production of a biological, chemical, or mass destruction weapon; also allows sale of agricultural and medical products to groups in Syria, North Korea, and (with special licenses) to areas of Afghanistan controlled by the Taliban; and further expands banning power where there are violation of anti-terrorism provisions (221)
• Fills in gaps between various pre-existing laws which had prior to the Act criminalized crimes against vehicles of mass transportation in a piece-meal approach. Does so by generally making any terrorist attack or other act of violence against mass transportation systems punishable as federal crimes when the violation involves interstate travel, communication, or transportation of materials or that involves a carrier engaged in or affecting interstate or foreign commerce. (801)
• Adjusts the last element of the prior definition of international terrorism to “intended to affect the conduct of a government by mass destruction, assassination, or kidnapping. Has implications for any current law the effect of which depends on the functional definition of “international terrorism” including 18 U.S.C. ?2333 (802)
• Creates a new federal crime of domestic terrorism, which includes any dangerous acts that “appear to be intended… to involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended…to intimidate or coerce a civilian population;…to influence the policy of a government by intimidation or coercion; or…to affect the conduct of a government by mass destruction, assassination, or kidnapping; and…occur primarily within the territorial jurisdiction of the United States.’’
• Declares as within the territorial jurisdiction of the U.S. overseas areas used by American governmental entities for their activities or residences for their personnel to the extent that crimes are committed there by or against an American. (804)
• Amends the definition of “federal crimes of terrorism” found at 2332(b)(g)(5)(b) for consistency with the term’s use in various other sections of the PA. This section’s definition of terrorism is relevant to a prohibition on acts of terrorism transcending national boundaries. The Section drops a number of less serious crimes from the definition and places several more serious crimes within US jurisdiction. (808)
• Eliminates the statute of limitations for any federal crime of terrorism (as defined by 18 U.S.C. 2332b(g)(5)(B) as it is amended by 808) for any federal crime of terrorism that risks or results in death or serious bodily injury. In the absence of such a risk or result, all other terrorism become subject to the eight year statute of limitations (previously enacted into law for several terrorist offenses) unless already covered by the ten year statute for explosives and arson offenses. (809)
• Increase the maximum penalties for various crimes of terrorism. (810)
• Establishes equivalent sanctions for conspiracy and the underlying offense in cases (as is done in some, but not all other federal criminal statutes) (811)
• Amends prior law limiting the length of supervised release imposed on a convicted defendant in addition to his sentence. Provides for a supervisory release terms of life or any terms of years  (prior law has capped the length at 5 years for most crimes and violations) following convictions for a federal crime of terrorism as defined in 18 U.S.C. 2332b (812)
• Adds various terrorism offenses to the predicate offense list for RICO which proscribes acquiring or operating, through the patterned commission of any of a series of predicate offenses, and enterprise whose activities affect interstate or foreign commerce (813)
• Creates a new category triggering criminal or civil liability for causing damage to a federally protected computer for damage affects a computer system used by or for the government for the administration of justice, national defense, or national security. Prior law triggered liability which either involved losses of $5000 or more, adversely affected certain medical data, caused a physical injury, or threatened public health or safety. Also clarifies the meaning of “losses” for the calculation of the $5000 and increases the maximum penalty for intentionally damaging a federally protected computer and broadened the scope to federally protected computers used by or for the government in furtherance of the administration of justice. Clarified the meaning of loss. (814)
• Outlaws the possession of biological agents or toxins that cannot be justified by a peaceful purpose and made it a federal offense for certain individuals (convicted aliens, and fugitives to possess biological toxins or agents. (817)
• Amends prior law (providing authority to the Secretary of Transportation over the transportation of hazardous materials) by limiting the issuance of hazardous material licenses to instances where the Secretary of Transportation has certified that the applicant is not a security risk. Also, amends other prior law (authority over commercial motor vehicle operators) with respect to the minimum standards for commercial motor vehicle operator fitness to include a determination that the applicant does not pose a security risk. (1012)

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Cases

• United States v. Reid, 206 F. Supp. 2d 132 (D. Mass 2002)