Duke Law School

Civil Liberties Online

PART A: Supplementing Funding or Otherwise Enhancing the Functioning of Existing Governmental Entities, Creating New Governmental Entities, and Evaluating the Government?s Need for Such Enhancement

Institutional Capacity: Enhancing the Government?s Institutional Capacity to Address Terrorist Activity

The USA PATRIOT Act creates new governmental entities in an effort to better equip itself to address terrorism. Specifically, in order to counter various forms of electronic crimes, section 105 requests that the "Director of the United States Secret Service shall take appropriate actions to develop a national network of electronic crime task forces, based on the New York Electronic Crimes Task Force model, throughout the United States, for the purpose of preventing, detecting, and investigating various forms of electronic crimes, including potential terrorist attacks against critical infrastructure and financial payment systems." Similarly, section 816 authorizes annual appropriations of fifty million dollars to establish regional computer forensic laboratories.

In other instances, the USA PATRIOT Act merely commissions reports regarding the feasibility and helpfulness of new government entities or functions. Section 906 asks for a joint report from the Secretary of the Treasury, the Attorney General, and the Director of Central Intelligence on the ability of existing government entities to assess and foresee the financial resources of international terrorist organizations, on the role that the Financial Crimes Enforcement Center should play, and on the recommendations of any other government entities that should be implemented relating to this area.  Similarly, section 907 directs the Director of Central Intelligence, with the Director of the FBI to report on the establishment of a center for translating foreign intelligence. Furthermore, section 1009 authorizes funding for the FBI to study the feasibility of providing airlines with computer access to the names of people the federal government suspects of terrorism. 

Several sections of the PATRIOT Act increase funding to reimburse various agencies for the cost of their anti-terrorism efforts. Section 1013 generally expresses the sense of the Senate that there should be an expanded level of public expenditures to prepare and respond to threats of bioterrorism. Also, section 101 establishes a separate fund known as the “Counter Terrorism Fund” to reimburse the Department of Justice for many of the costs of damages caused by terrorists and for the costs incurred by the Department in its attempt to prevent, investigate, and prosecute terrorism.  With section 103, the Act increases funding for the Technical Support Center of the FBI, pledging $200,000 for the fiscal years 2002, 2003 and 2004. Section 701 gives “ $50,000,000 for fiscal year 2002 and $100,000,000 for fiscal year 2003’’ to the Office of Justice Programs (OJP) to make grants and enter into contracts with state and local law enforcement agencies to identify and combat multi-jurisdictional criminal conspiracies.

The Act also authorizes necessary training for federal officials who do not ordinarily deal with foreign intelligence matters, in section 908, and grants to the DOJ the necessary sums to implement the program.  It demands that the Attorney General bequeath the necessary grants to state and local governments for terrorism and antiterrorism training of fire fighters and other first responders, under section 1005.  Sections 1014 and 1015 authorize appropriations for the OJP to make grants to the state and local units of government to enhance their capacity to respond to terrorist attacks and defines rules for their dispersal among the states and for the development of various integrated information and identification systems by authorizing additional appropriations and amending the act to permit grants for related terrorism purposes. Section 1016, entitled the “Critical Infrastructures Protection Act of 2001”, also funds the Department of Defenses’ Defense Threat Reduction Agency for activities of National Infrastructure and Analysis Center.  Furthermore, sections 611 – 614 concern Congress’s attempt to expedite the process of payment for Public Safety Officers involved in prevention, investigation, rescue, or recovery efforts related to a terrorist attack.

Sections 621 – 624, as amendments to the Victims of Crime Act of 1984, 42 U.S.C. ? 10601, ensure that laws providing relief to victims generally are applied to victims of terrorism. The Act also enhances the Attorney General’s and the Secretary of State’s ability to provide rewards to combat terrorism (Sections 501 and 502 respectively).

The Act also expands the power of certain agencies, enhancing their autonomy to allow for better and more efficient responses to potential terrorist activity or its results. Section 104 expands the list of pre-existing statutory exceptions to the ban on the use of armed forces to execute civilian law. Prior law included emergencies involving biological, chemical, or nuclear weapons but the Act amends that law to include emergencies involving other weapons of mass destruction.

Section 503 expands the range of crimes that would subject a prisoner to providing a DNA sample.  The expanded list now includes ‘‘any offense listed in section 2332b(g)(5)(B) of title 18, United States Code…any crime of violence (as defined in section 16 of title 18, United States Code)…any attempt or conspiracy to commit any of the above offenses.”  See Miller v. U.S. Parole Comm'n, 259 F.Supp. 2d 1166 (D. Kan. 2003) (declaring the constitutionality of DNA sample requirements for crimes added to the predicate list by the PATRIOT Act). Specifically, 18 U.S.C. 2332b(g)(B) refers to federal crimes of terrorism, as defined under that provision.  Courts have generally concluded that the collection of DNA information from convicted prisoners does not offend constitutional standards per se.  See Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998) (upholding an Oklahoma law that requires DNA samples from all those convicted of sex-related crimes, violent crimes, or other crimes in which biological evidence is recovered); Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999) (finding that a Connecticut statute requiring blood samples for all convicted sex offenders does not violate either the Fourth or Fourteenth Amendment).

The PATRIOT Act’s authority also travels the highways. Section 1012 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 “does not pose a security risk.”  The section also requires that states report information about issuance of hazardous material licenses upon request by the Secretary of Transportation.

As a tool to prevent further terrorism, several provisions enhance the government’s ability to confiscate property in conjunction with terrorist activity. Section 106 amends the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. ? 1701 (1977), to permit the President to confiscate property in response to foreign aggression “ when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, confiscate any property, subject to the jurisdiction  of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States”. Prior to this amendment, IEEPA had enabled the President to do so only when faced with extraordinary threats to our national security, foreign power, or economic well being, while the Trading with the Enemy Act (TWEA), 50 U.S.C. App. 1 (1917), gave him the power to confiscate only enemy property located within the U.S.  E.g., Holy Land Found. For Relief & Dev. v. Ashcroft, 333 F.3d 156 (D.D.C. 2003) (upholding confiscation of a charitable organization’s property after a designation by the Treasury Department’s Office of Foreign Asset Control); see, e.g., Smith v. FRB, 280 F.Supp. 2d 314 (S.D.N.Y. 2003) (affirming the President’s power under the IEEPA). Section 106 also amends IEEPA to regulate situations where the covered foreign person is within this country or otherwise subject to the jurisdiction of the U.S. rather than just in situations where the covered foreign property is within the country. Section 106 also allows the President to withhold funds during a pending investigation rather than await the outcome as was previously the case. Finally, this provision permits the government to present (in secret, ex parte and in camera) any classified information upon which an IEEPA decision has been based should the decision be subject to judicial review.  See Global Relief Found., Inc. v. O’Neill, 207 F.Supp. 2d 779 (N.D. Ill. 2002) (holding that the property of American individuals may be confiscated, pursuant to the broadened authority under the PATRIOT Act, if foreign powers hold an interest in that property).  The broadened authority to confiscate may be a signal that we are continuously fighting the war against terror. Cf. Silesian American Corp. v. Clark 332 U.S. 469 (1947) (concluding that the United States may confiscate property of its enemies during wartime).

Section 316 clarifies that the President’s power to determine the particulars under which the property is confiscated, administered and disposed of is subject to an innocent owner defense.  The confiscation is subject to judicial review.  Section 806 gives the President an alternative means to confiscate the property of terrorists.  It subjects the following property to civil forfeiture: ‘‘(i) of any individual, entity, or organization engaged in planning or perpetrating any act of domestic or international terrorism (as defined in section 2331) against the United States, citizens or residents of the United States, or their property, and all assets, foreign or domestic, affording any person a source of influence over any such entity or organization; (ii) acquired or maintained by any person with the intent and for the purpose of supporting, planning, conducting, or concealing an act of domestic or international terrorism (as defined in section 2331) against the United States, citizens or residents of the United States, or their property; or (iii) derived from, involved in, or used or intended to be used to commit any act of domestic or international terrorism (as defined in section 2331) against the United States, citizens or residents of the United States, or their property’’.This provision is a rare example in our legal system of an instance where property is confiscated based on its relationship to the owner rather than on its relationship to an offense.  It also may offend the First Amendment’s freedom of association.  See Emanuel Gross, The Influence of Terrorist Attacks on Human Rights in the United States: The Aftermath of September 11, 2001, 28 N.C.J. Int'l L. & Com. Reg. 1 (2002) (condemning section 806 for its criminalization of providing financial support to a group of one’s choosing).

Finally, since the fight against terrorism is a global battle, the PATRIOT Act directly concerns matters outside of the United States borders as well as inside. Section 1007 of the Act authorizes the appropriation of $5,000,000 for fiscal year 2002 for the Drug Enforcement Administration to train the police of Turkey and other countries in south and Central Asia in order to curb funding for the Taliban and al Qaeda by attacking heroin trafficking.

PATRIOT Act Provisions

  • Establishes a counter-terrorism fund to reimburse the Department of Justice for many of the costs of damages caused by terrorists and for the costs incurred by the Department in its attempt to prevent, investigate, and prosecute terrorism. (101)
  • Increases funding for the Technical Support Center of the FBI (103)
  • Expands the list of pre-existing statutory exceptions to the ban on the use of armed forces to execute civilian law. Prior law included emergencies involving biological, chemical, or nuclear weapons and but the ACT amends that law to include emergencies involving other weapons of mass destruction. (104)
  • In an attempt to counter various forms of electronic crimes, directs the establishment of a network of electronic crime task forces (105)
  • Enhances the Attorney General’s and the Secretary of State’s ability to provide rewards to combat terrorism. (501 and 502, respectively)
  • Expands the range of crimes which, if a prisoner is convicted of, would subject the prisoner to federal law allowing the Attorney general to collect DNA samples, to include the crime of terrorism, 18 U.S.C. 2332(b) or a crime of violence, 18 U.S.C. 16, or attempt or conspiracy to commit a crime of terrorism or violence. (503)
  • Expedites the process of payment for Public Safety Officers involved in prevention, investigation, rescue, or recovery efforts related to a terrorist attack. (611, 612, 613, 614)
  • Amends the Victims of Crime Act of 1984 in a way that makes it sensitive to the types of victims affected by terrorism. (621, 622, 623, 624)
  • Gives additional funding to the Office of Justice Programs to make grants and enter into contracts with state and local law enforcement agencies to identify and combat multi-jurisdictional criminal conspiracies (701)
  • Authorizes annual appropriations of $50 million to establish regional computer forensic laboratories (816)
  • Permits intelligence community agencies to defer submission of required Congressional intelligence reports. (904)
  • Asks for a joint report from the Secretary of the Treasury of the feasibility of reconfiguring existing government entities into an entity able to analyze the financial capabilities and resources of international terrorist organizations. (906)
  • Directs the Director of Central Intelligence, in consultation with the Director of the FBI to report on the establishment of a national virtual translation center (907)
  • Authorizes the necessary appropriations to train federal officials who do not ordinarily deal with foreign intelligence matters. (908)
  • Authorizes the appropriations of funds as grants to state and local governments for terrorism and antiterrorism training of fire fighters and other first responders. (1005)
  • Authorizes the appropriation of funding for the Drug Enforcement Administration to train the police of Turkey and other countries in south and Central Asia in order to curb funding for the Taliban and al Qaeda by attacking heroin trafficking. (1007)
  • Authorizes funding for the FBI to study the feasibility of providing airlines with computer access to the names of people the federal government suspects of terrorism. (1009)
  • Alters existing law (which prohibited, subject to limited exceptions, the DOD from contracting for fire fighting or security guard functioning to be performed on military installations) to allow for such services to be performed for a period up through 180 days after the completion of Operation Enduring Freedom. (1010)
  • Expresses the sense of the Senate that there should be an expanded level of public expenditures to prepare and respond to threats of bio-terrorism. (1013)
  • Authorizes appropriations for the OJP to make grants to the state and local units of government to enhance their capacity to respond to terrorist attacks and defines rules for their dispersal among the states. (1014)
  • Extends the Crime Identification Technology Act authorizing the OJP to issue state and local grants for the development of various integrated information and identification systems by authorizing additional appropriations and amending the act to permit grants for related terrorism purposes. (1015)
  • Authorizes funding for the Department of Defenses’ Defense Threat Reduction Agency for activities of National Infrastructure and Analysis Center (1016)
  • Amends IEEPA to permit the President to confiscate property merely in response to foreign aggression when the U.S. is engaged in armed hostilities or has been attacked by a foreign country or its nationals. Prior to this amendment, IEEPA had enabled him to do so only when faced with extraordinary threats to our national security, foreign power, or economic well being while TWEA gave him the power to confiscate only enemy property located within in the U.S. (106)
  • Amends IEEPA to cover situations where the covered foreign person is within this country or otherwise subject to the jurisdiction of the U.S. rather than just in situations where the covered foreign property is within the country. (106)
  • Allows the President to withhold funds during when an investigation is pending rather than await the outcome as was previously the case. (106)
  • Permits the government to present, in secret, ex parte and in camera, any classified information upon which an IEEPA decision has been based should the decision be subject to judicial review.  (106)
  • The president’s power to determine the particulars under which the property is confiscated, administered and disposed of is subject to an innocent owner defense (316)
  • Gives the president an alternative means to confiscate the property of terrorists by subjecting to civil forfeiture property wherever located 1) which belongs to an individual or entity planning or engaging in domestic or international terrorism against the U.S (as defined in 18 U.S.C. 2331) 2) which is acquired or maintained for use in furtherance of acts of domestic or international terrorism committed against Americans or 3) which is derived from or is useful for the commission of acts of domestic or international terrorism committed against Americans, 18 U.S.C. 981(a)(1)(G). Instructs that section 2339B (support of a terrorist organization) joins section 2339A as a money laundering predicate offense (806)

Other Relevant Provisons

  • Creates a national intelligence director to oversee U.S. intelligence programs and intelligence-related activities of the United States government Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Authorizes the creation of one or more national intelligence centers that could focus on regional security concerns. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  •  A law authorizing the creation of the Homeland Security department, which comprises 22 existing agencies and is charged with preventing terrorist attacks within the United States, reducing the nation's vulnerability to terrorism, minimizing damage from terrorist attacks and assisting with recovery from major attacks. The department coordinates counterterrorism and emergency response programs with state and local governments and the private sector. It determines and distributes threat warnings to the public and may consolidate emergency communications. Homeland Security Act of 2002 Pub. L. No. 107- 296, 116 Stat. 2135 (2002). 

Cases