Expansion of forfeiture powers under the USA
PATRIOT Act
excerpted from FEAR’s Asset Forfeiture Defense Manual
Expansion of federal forfeiture statutes is a key feature of the Patriot Act. The bill came very close — but did not manage to derail CAFRA’s positive reforms (although the Administration tried!) Senator Leahy said in his remarks to Congress: "I am also pleased that a number of provisions that would have undermined the Civil Asset Forfeiture Reform Act of 200, which I sponsored in the Senate, have been removed."2
Although the Patriot Act doesn’t appear to have tinkered with forfeiture procedure, it does add a host of new forfeitable offenses–not all of them related to terrorism.
Among the expanded forfeiture powers is an amendment to the powers the president already had under the International Emergency Economic Powers provisions, 50 U.S.C. § 1702, by adding the following:
[W]hen the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, [the U.S. may] 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; and all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe....3
The Patriot Act vastly expanded bank and financial transaction reporting requirements under the Bank Secrecy Act and other statutes requiring reports which are fed into the FinCEN database and shared with law enforcement nationwide.4
The Patriot Act also vastly expanded the power of law enforcement to intercept wire, oral and electronic communication relating to terrorism5 and computer fraud,6 and allows the government access to voice mails (with a court order and probable cause, or with a single search warrant that is valid nationwide.)7 It expands authority under the Foreign Intelligence Surveillance Act of 1978 to allow roving surveillance (wiretaps can now jump from phone to phone following a person).8
The Act increases the number of federal district judges who may serve on the special Foreign Intelligence Surveillance Act court — from seven to eleven. Most people have never heard of this court, although the statute authorizing it was enacted in 1978. The judges on this special court, though comprised of regular Article III federal judges appointed in the traditional manner, are hand selected by the Chief Justice9 and probably don’t include any card-carrying members of the ACLU.
"Sneak and Peak" search warrants
These judges meet in secret to approve special search warrants that allow law enforcement to search premises (inside the U.S.) without disclosing that they’ve been searched, among other things.
The Patriot Act also expands the use of these warrants for secret searches beyond the FISA court to include warrants obtainable from any federal district court judge. Patriot Act § 213 amends 18 U.S.C. § 3103a–an innocuous statute that says search warrants may be issued to search for evidence of any federal criminal offense and refers to Federal Criminal Rule 41 for procedures and requirements–to add this language:
With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if:
· the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result...
· the warrant prohibits the seizure of any tangible property, any wire or electronic communication... except where the court finds reasonable necessity for the seizure; and
· the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.10
The Act gives immunity from law suits to "any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under [the FISA] Act."11
If any of this
sounds unconstitutional to you, don’t worry. Section 901 — in the words
of Congress’s "section by section analysis" — "requires the DCI [the
Director of the Central Intelligence Agency] — to assist the Attorney
General in ensuring that FISA efforts are consistent with
constitutional and statutory civil liberties." With the Director of the
CIA himself protecting our constitutional rights and civil liberties,
what more can we want?
Endnotes:
1. Senator Feingold said, in his statement to Congress, 107 Cong. Rec. S11005, 11020 (October 25, 2001):
The administration’s proposed bill contained vast new powers for law enforcement, some seemingly drafted in haste and others that came from the FBI’s wish list that Congress has rejected in the past. You may remember that the Attorney General announced his intention to introduce a bill shortly after the September 11 attacks. He provided the text of the bill the following Wednesday, and urged Congress to enact it by the end of the week. That was plainly impossible, but the pressure to move on this bill quickly, without deliberation and debate, has been relentless ever since.
2. 107 Cong. Rec. S11005 (October 25, 2001).
3. USA Patriot Act § 106.
4. The Bank Secrecy Act, FinCEN and other Big Brother mechanisms by which the U.S. gathers information on its citizens by imposing reporting requirements on banks and other third parties will be covered in volume 2, in the chapter on Criminal Investigation and Discovery.
5. USA Patriot Act § 201. 6. USA Patriot Act § 202.
7. USA Patriot Act § 209. 8. USA Patriot Act § 206.
9. See 50 U.S.C. § 1803. "The Chief Justice of the United States shall publicly designate seven district court judges from seven of the United States judicial circuits who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this Act..." 50 U.S.C. § 1893(a). Subsection (b) of that statute creates a three-judge court of appeals so to speak, comprised of three judges also hand-picked by the Chief Justice. If any judge from the first tier refuses to approve a government request for electronic surveillance, they must submit their reasons in writing to the three-judge court of review, who can override the first judge’s decision. If the court of review denies the government’s request, they must submit a written statement of reasons to the Supreme Court, which then reviews the request. This statutory scheme has been in effect since 1978.
10. USA Patriot Act
§ 213. 11. USA Patriot Act § 225.