[House Report 106-669]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-669
======================================================================
PRESIDENTIAL THREAT PROTECTION ACT OF 2000
_______
June 12, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. McCollum, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 3048]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3048) to amend section 879 of title 18, United
States Code, to provide clearer coverage over threats against
former Presidents and members of their families, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 2
Purpose and Summary........................................ 4
Background and Need for the Legislation.................... 4
Hearings................................................... 7
Committee Consideration.................................... 7
Vote of the Committee...................................... 7
Committee Oversight Findings............................... 7
Committee on Government Reform Findings.................... 7
New Budget Authority and Tax Expenditures.................. 7
Congressional Budget Office Cost Estimate.................. 7
Constitutional Authority Statement......................... 9
Section-by-Section Analysis and Discussion................. 9
Agency Views............................................... 13
Changes in Existing Law Made by the Bill, as Reported...... 15
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Presidential Threat Protection Act
of 2000''.
SEC. 2. REVISION OF SECTION 879 OF TITLE 18, UNITED STATES CODE.
(a) In General.--Section 879 of title 18, United States Code, is
amended--
(1) by striking ``or'' at the end of subsection (a)(2);
(2) in subsection (a)(3)--
(A) by striking ``the spouse'' and inserting ``a
member of the immediate family''; and
(B) by inserting ``or'' after the semicolon at the
end;
(3) by inserting after subsection (a)(3) the following:
``(4) a person protected by the Secret Service under
section 3056(a)(6);'';
(4) in subsection (a)--
(A) by striking ``who is protected by the Secret
Service as provided by law,''; and
(B) by striking ``three years'' and inserting ``5
years''; and
(5) in subsection (b)(1)(B)--
(A) by inserting ``and (a)(3)'' after ``subsection
(a)(2)''; and
(B) by striking ``or Vice President-elect'' and
inserting ``Vice President-elect, or major candidate
for the office of President or Vice President''.
(b) Conforming Amendments.--
(1) Heading.--The heading for section 879 of title 18,
United States Code, is amended by striking ``protected by the
Secret Service''.
(2) Table of sections.--The item relating to section 879 in
the table of sections at the beginning of chapter 41 of title
18, United States Code, is amended by striking ``protected by
the Secret Service''.
SEC. 3. CLARIFICATION OF SECRET SERVICE AUTHORITY FOR SECURITY
OPERATIONS AT EVENTS AND GATHERINGS OF NATIONAL
SIGNIFICANCE.
Section 3056 of title 18, United States Code, is amended by adding
at the end the following:
``(e) Under the direction of the Secretary of the Treasury, the
United States Secret Service is authorized to coordinate the design,
planning, and implementation of security operations for any special
event of national significance, as determined by the President or the
President's designee.''.
SEC. 4. NATIONAL THREAT ASSESSMENT CENTER.
(a) Establishment.--The United States Secret Service (hereinafter
in this section referred to as the ``Service''), at the direction of
the Secretary of the Treasury, may establish the National Threat
Assessment Center (hereinafter in this section referred to as the
``Center'') as a unit within the Service.
(b) Functions.--The Service may provide the following to Federal,
State, and local law enforcement agencies through the Center:
(1) Training in the area of threat assessment.
(2) Consultation on complex threat assessment cases or
plans.
(3) Research on threat assessment and the prevention of
targeted violence.
(4) Facilitation of information sharing among all such
agencies with protective or public safety responsibilities.
(5) Programs to promote the standardization of Federal,
State, and local threat assessments and investigations
involving threats.
(6) Any other activities the Secretary determines are
necessary to implement a comprehensive threat assessment
capability.
(c) Report.--Not later than one year after the date of the
enactment of this Act, the Service shall submit a report to the
committees on the judiciary of the Senate and the House of
Representatives detailing the manner in which the Center will operate.
SEC. 5. ADMINISTRATIVE SUBPOENAS WITH REGARD TO PROTECTIVE INTELLIGENCE
FUNCTIONS OF THE SECRET SERVICE.
(a) In General.--Section 3486(a) of title 18, United States Code,
is amended--
(1) so that paragraph (1) reads as follows: ``(1)(A) In any
investigation of--
``(i)(I) a Federal health care offense or (II) a Federal
offense involving the sexual exploitation or abuse of children,
the Attorney General; or
``(ii) an offense under section 871 or 879, or a threat
against a person protected by the United States Secret Service
under paragraph (5) or (6) of section 3056, if the Director
of the Secret Service determines that the threat constituting
the offense or the threat against the person protected is
imminent, the Secretary of the Treasury;
may issue in writing and cause to be served a subpoena requiring the
production and testimony described in subparagraph (B).
``(B) Except as provided in subparagraph (C), a subpoena issued
under subparagraph (A) may require--
``(i) the production of any records or other things
relevant to the investigation; and
``(ii) testimony by the custodian of the things required to
be produced concerning the production and authenticity of those
things.
``(C) A subpoena issued under subparagraph (A) with respect to a
provider of electronic communication service or remote computing
service, in an investigation of a Federal offense involving the sexual
exploitation or abuse of children shall not extend beyond--
``(i) requiring that provider to disclose the name,
address, local and long distance telephone toll billing
records, telephone number or other subscriber number or
identity, and length of service of a subscriber to or customer
of such service and the types of services the subscriber or
customer utilized, which may be relevant to an authorized law
enforcement inquiry; or
``(ii) requiring a custodian of the records of that
provider to give testimony concerning the production and
authentication of such records or information.
``(D) As used in this paragraph, the term `Federal offense
involving the sexual exploitation or abuse of children' means an
offense under section 1201, 2241(c), 2242, 2243, 2251, 2251A, 2252,
2252A, 2260, 2421, 2422, or 2423, in which the victim is an individual
who has not attained the age of 18 years.'';
(2) in paragraph (3)--
(A) by inserting ``relating to a Federal health
care offense'' after ``production of records''; and
(B) by adding at the end the following: ``The
production of things in any other case may be required
from any place within the United States or subject to
the laws or jurisdiction of the United States.''; and
(3) by adding at the end the following:
``(5) At any time before the return date specified in the summons,
the person or entity summoned may, in the United States district court
for the district in which that person or entity does business or
resides, petition for an order modifying or setting aside the summons,
or a prohibition of disclosure ordered by a court under paragraph (6).
``(6)(A) A United State district court for the district in which
the summons is or will be served, upon application of the United
States, may issue an ex parte order that no person or entity disclose
to any other person or entity (other than to an attorney in order to
obtain legal advice) the existence of such summons for a period of up
to 90 days.
``(B) Such order may be issued on a showing that the things being
sought may be relevant to the investigation and there is reason to
believe that such disclosure may result in--
``(i) endangerment to the life or physical safety of any
person;
``(ii) flight to avoid prosecution;
``(iii) destruction of or tampering with evidence; or
``(iv) intimidation of potential witnesses.
``(C) An order under this paragraph may be renewed for additional
periods of up to 90 days upon a showing that the circumstances
described in subparagraph (B) continue to exist.
``(D) Whoever knowingly violates an order under this paragraph
shall be fined under this title or imprisoned not more than 5 years, or
both.
``(7) A summons issued under this section shall not require the
production of anything that would be protected from production under
the standards applicable to a subpoena duces tecum issued by a court of
the United States.
``(8) If no case or proceeding arises from the production of
records or other things pursuant to this section within a reasonable
time after those records or things are produced, the agency to which
those records or things were delivered shall, upon written demand made
by the person producing those records or things, return them to that
person, except where the production required was only of copies rather
than originals.
``(9) A subpoena issued under paragraph (1)(A)(i)(II) or (1)(A)(ii)
may require production as soon as possible, but in no event less than
24 hours after service of the subpoena.
``(10) As soon as practicable following the issuance of a subpoena
under paragraph (1)(A)(ii), the Secretary of the Treasury shall notify
the Attorney General of its issuance.''.
(b) Conforming Amendments.--
(1) Section heading.--The heading for section 3486 of title
18, United States Code, is amended by striking:
``in Federal health care investigations''.
(2) Table of sections.--The item relating to section 3486
in the table of sections at the beginning of chapter 223 of
title 18, United States Code, is amended by striking:
``in Federal health care investigations''.
(3) Conforming repeal.--Section 3486A, and the item
relating to that section in the table of sections at the
beginning of chapter 223, of title 18, United States Code, are
repealed.
(c) Technical Amendment.--Section 3486 of title 18, United States
Code, is amended--
(1) in subsection (a)(4), by striking ``summoned'' and
inserting ``subpoenaed''; and
(2) in subsection (d), by striking ``summons'' each place
it appears and inserting ``subpoena''.
Purpose and Summary
The principle purpose of H.R. 3048 is to clarify the
jurisdiction of the United States Secret Service to investigate
threats made against former Presidents or their families, or
the immediate families of the President, Vice President,
President Elect, Vice President Elect, and major candidates for
the office of President or Vice President and to provide the
Service with appropriate investigative tools to investigate
those threats. The bill also clarifies the authority of the
Secret Service to participate in the design, planning, and
implementation of security operations at special events of
national significance. Further, the bill authorizes the Service
to establish a National Threat Assessment Center as an office
within the Service. Finally, H.R. 3048 authorizes the Secretary
of the Treasury, in limited situations, to issue administrative
subpoenas in cases involving threats made against a person whom
the Secret Service is authorized to protect.
Background and Need for the Legislation
In 1998, the Department of Justice transmitted to the
Speaker of the House a draft bill entitled the Threat
Protection for Former Presidents Act of 1998 requesting the
bill be introduced and enacted in the House. That bill proposed
to expand the authority of the United States Secret Service in
a manner similar to section 2 of H.R. 3048. In June, 1999, the
Subcommittee on Crime held an oversight hearing of the Secret
Service during which various issues concerning the work of the
Service were discussed.\1\ During the hearing several areas
were identified as to which legislative changes would be
appropriate. The provisions of H.R. 3048 address a number of
those areas.
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\1\ The transcript of that hearing is available from the committee
as Serial No. 6.
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The principal change made by the bill is with respect to
the jurisdiction of the Secret Service to investigate threats
made against former Presidents or their families, or the
immediate families of the President, Vice President, President
Elect, the Vice President Elect, and major candidates for the
office of President or Vice President. Under current law, in
order for the Service to have jurisdiction to investigate a
threat made against any person, that person must currently be
receiving Secret Service protection.\2\ However, the immediate
family of major candidates for the office of President and Vice
President do not receive Secret Service protection and so,
threats made against them are not Federal crimes and may not be
investigated by the Service. Obviously, threats made against
children of candidates for President or Vice President are
often related to their candidacy, and should be investigated by
the Federal law enforcement agency charged with protecting the
candidate during the pendency of their campaign.
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\2\ 18 U.S.C. Sec. 879
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Similarly, should a former President decline Secret Service
protection, as has occurred in the past,\3\ threats made
against him would not be a Federal crime and may not be
investigated by the Secret Service. This potential problem will
be exacerbated by a change made to title 18 in 1994 which
requires that Secret Service protection for former Presidents
and their spouses terminate 10 years after the President leaves
office.\4\
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\3\ Former President Nixon declined Secret Service protection as of
August 1, 1985.
\4\ 18 U.S.C. Sec. 3056(a)(3). This provision will only apply to
Presidents who take office in and after 2001.
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To remedy this problem, H.R. 3048 will amend current law to
make it clear that it will be a Federal crime, which the Secret
Service is authorized to investigate, for any person to
threaten any current or former President, Vice President, or
the immediate family of that person, notwithstanding the fact
that the Secret Service may not be protecting the person at the
time the threat is made. This section of the bill will also
expand current Secret Service authority so that it may
investigate threats made against the immediate family of
candidates for the office of President, or Vice President.
H.R. 3048 will also clarify the authority of the Secret
Service to coordinate the design, planning, and implementation
of security operations at special events of national
significance, as determined by the President or his designee.
Under the authorizing statute for the Secret Service,\5\ the
Service is authorized to protect a number of persons,
including: the President, Vice President, former Presidents and
their spouse and certain of their children, visiting heads of
foreign states or governments, other distinguished visitors to
the United States, major candidates for the office of President
and Vice President, and certain other persons as to whom the
President directs receive such protection. Recently, the
President has directed the Secret Service to coordinate the
design, planning, and implementation of security operations at
special events of national significance. In some cases,
however, none of the persons specified in section 3056 may be
present at these events and, therefore, the Secret Service's
authority to coordinate the security for these events is
unclear.
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\5\ 18 U.S.C. Sec. 3056.
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Because the Secret Service is the preeminent law
enforcement agency in the world in planning security
operations, the committee believes it is appropriate that this
expertise be brought to bear in regard to the planning for
major events within the United States, such as summit meetings
of the G-7 economic ministers and Olympic Games hosted by the
United States. H.R. 3048 clarifies the authority of the Secret
Service to do this by specifically authorizing it to coordinate
the design, planning, and implementation of security operations
at these events.
H.R. 3048 also authorizes the Secretary of the Treasury to
issue administrative subpoenas in limited situations.
Administrative subpoenas are subpoenas issued by a law
enforcement agency rather than a United States court. Under
current law the authority to issue administrative subpoenas is
given to the Attorney General, but limited to cases involving
violations of Title 21 (i.e., drug cases), investigations
concerning a Federal health care offense, or investigations
involving child abuse and child sexual exploitation.\6\ During
the oversight hearing of the Service held by the Subcommittee
on Crime, the Service asked the committee to consider granting
it administrative subpoena authority for investigations under
sections 871 and 879 of title 18 (involving threats against the
President, former Presidents, and other persons protected by
the Service.). The bill grants the Secretary of the Treasury
this authority but limits its use by the Secretary only to
cases where the Director of the Service determines that the
threat being investigated is imminent.
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\6\ 18 U.S.C. Sec. Sec. 3486, 3486A; 21 U.S.C. Sec. 876.
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The administrative subpoena power proposed in the bill
would grant the Secretary the authority to require the
production of records and other things relevant to an
investigation (but not the testimony of persons) in cases
involving violations of those two statutes. The Service has
informed the committee that it would seek to use this power,
for example, in a situation where a person has made threats
against the President and is believed to be en route to act
upon those threats. The administrative subpoena authority would
enable the Service to expeditiously obtain credit card
receipts, rental car receipts, hotel receipts, and other
documentary evidence in an effort to track the progress of the
potential assassin. The Service's ability to obtain this
information promptly could be delayed under current law by the
time it takes to seek a court order or a grand jury subpoena
for this information, and could be delayed for several days if
the information is sought over a weekend when courts are
closed. Should the Service be delayed for several days in
obtaining this information, the potential assassin could more
easily elude interdiction prior to acting on his or her threat.
For this reason also, H.R. 3480 authorizes the Service to
request production of the records and relevant things sought
through the administrative subpoena within 24 hours.
The use by the Service of the new administrative subpoena
authority set forth in the bill is limited to investigations
involving the two types of cases listed above. The remainder of
the statute set forth in the bill is a consolidation of the two
administrative subpoena statutes that exist in title 18 today,
together with the new authority granted to the Secretary of the
Treasury under this bill, into one comprehensive statute. The
re-draft also contains provisions designed to give citizens
added protections against misuse of these subpoenas, including
provisions that give citizens the right to move a court to
quash an administrative subpoena and which describe the process
by which that may be accomplished.
Hearings
The committee's Subcommittee on Crime held no hearings on
H.R. 3048. The subcommittee did hold an oversight hearing on
the United States Secret Service on June 24, 1999 during which
various issues to which the bill relates were discussed.
Committee Consideration
March 16, 20000, the Subcommittee on Crime met in open
session and ordered favorably reported the bill H.R.3048, as
amended, by a voice vote, a quorum being present. On May 17,
2000, the committee met in open session and ordered favorably
reported the bill H.R. 3048 with an amendment by voice vote, a
quorum being present.
Vote of the Committee
During committee consideration of the bill, H.R. 3048, Mr.
McCollum offered an amendment in the nature of a substitute
incorporating amendments made to the bill during subcommittee
consideration, which was adopted by voice vote. There were no
rollcall votes.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the committee sets forth, with
respect to the bill, H.R. 3048, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 12, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3048, the
Presidential Threat Protection Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact for this
estimate is Mark Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Democratic Member
H.R. 3048--Presidential Threat Protection Act of 2000.
CBO estimates that implementing this legislation would have
no significant impact on the federal budget. The bill would
affect direct spending and receipts, so pay-as-you-go
procedures would apply, but we estimate that the amounts
involved would be less than $500,000 a year. H.R. 3048 contains
no intergovernmental or private-sector mandates as defined in
the Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
H.R. 3048 would broaden the current laws against
threatening persons protected by the Secret Service to cover
certain family members of major candidates for President and
Vice President. For cases involving threats against persons
protected by the Secret Service, the bill would provide
subpoena authority to the Secretary of the Treasury and would
increase the maximum penalties for offenders. H.R. 3048 also
would authorize the Secret Service to establish the National
Threat Assessment Center as a unit within that agency to
provide assistance to federal, state, and local law enforcement
agencies.
The Secret Service already provides assistance to federal
and nonfederal agencies for threat assessments through its
Office of Protective Research. Based on discussions with the
agency, CBO expects that establishing the National Threat
Assessment Center would not significantly increase the costs of
such assistance.
If H.R. 3048 were enacted, the federal government would be
able to pursue cases that it otherwise would not be able to
prosecute and could assign longer prison sentences to persons
convicted of threatening certain persons protected by the
Secret Service. CBO expects that any increase in federal costs
for law enforcement, court proceedings, or prison operations
would not be significant, however, because of the small number
of cases likely to be involved. Any such additional costs would
be subject to the availability of appropriated funds.
Because those prosecuted and convicted under H.R. 3048
could be subject to criminal fines, the federal government
might collect additional fines if the bill is enacted.
Collections of such fines are recorded in the budget as
governmental receipts (revenues), which are deposited in the
Crime Victims Fund and spent in subsequent years. CBO expects
that any additional receipts and direct spending would be less
than $500,000 each year.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in Article I, section 8, clause 18 of the
Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short Title.
Section 1 of the bill states the short title of the Act as
the ``Presidential Threat Protection Act of 2000.''
Section 2. Revision of Section 879 Title 18, United States Code.
Section 2 of the bill amends section 879 of title 18,
United States Code; the section that makes it a Federal crime
to threaten to kill, kidnap, or inflict bodily harm against
former Presidents or their families, or the immediate families
of the President, President-elect, Vice President, or the Vice
President-elect. Additionally, that section makes it a crime to
threaten major candidates for the office of President or Vice
President, or the spouses of those candidates. Under existing
section 879, it is a crime to threaten these individuals only
if the Secret Service is providing protection to them at the
time the threat is made.
The bill deletes the requirement that the Secret Service be
protecting the person named in that statute in order for a
threat made against that person to be a Federal crime. As a
result, the Service will be authorized to investigate threats
made against any of the persons named in section 879 regardless
of whether the Service is protecting them because simply
threatening a person named in that section will be a Federal
crime.
Section 2 of the bill also extends coverage of the statute
to the immediate family of candidates for the office President
or Vice President. Under current law, only the candidate and
his or her spouse are covered by the statute. Threats against
other members of the candidate's immediate family do not
violate section 879 and, therefore, do not provide the Secret
Service with a basis to investigate the threat. Under the
change made by the bill, threats against the immediate family
of candidates for the office of President or Vice President
will violate section 879, and may be invested by the Service.
Additionally, section 2 of the bill will amend section 879
of title 18 to make it a Federal crime which the Secret Service
would investigate to threaten any other person protected by the
Secret Service. Under section 3056 of title 18, the Service is
authorized to protect visiting heads of foreign states or
governments, other distinguished foreign visitors to the United
States, and certain other persons as to whom the President
directs are to receive such protection. Currently, threats
against these persons are not actionable under section 879.\7\
H.R. 3048 will make threats against these persons a violation
of section 879, which will give the Service the authority to
investigate the threats, if the person was protected by the
Service at the time a threat was made.
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\7\ Threats against some of these persons might violate other
Federal statutes. See, e.g., 18 U.S.C. Sec. Sec. 112, 1114.
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Finally, this section of the bill increases the maximum
penalty for violations of section 879 from three years to five
years. This change will bring the punishment for violations of
section 879 in line with the maximum punishment for the other
crimes listed in chapter 41 of title 18 (the chapter dealing
with extortion and threats.)
Section 3. Clarification of Secret Service Authority for Security
Operations at Events and Gatherings of National Significance.
The powers, authorities, and duties of the United States
Secret Service are described in section 3056 of title 18.\8\
With respect to its protective functions, the Secret Service is
authorized to protect a number of persons including: the
President, Vice President, former Presidents and their spouses
and some of their children, visiting heads of foreign states or
governments, other distinguish foreign visitors to the United
States, major candidates for the office the President and Vice
President, and certain other persons as to whom the President
directs are to receive such protection. In the past several
years, however, the President has also directed the Secret
Service to coordinate the design, planning, and implementation
of security operations at special events of national
significance (such as the 50th Anniversary Summit of the North
Atlantic Treaty Organization in 1999 and the annual meeting of
the International Monetary Fund and the World Bank in 2000.)
Because none of the persons specified in section 3056 may be
present at these events, or present at all times during the
event, the authority of the Secret Service to coordinate the
security for these events is unclear.
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\8\ Additional authorizing statutes concerning the Secret Service
are set forth in section 1752 of title 18 and section 202 of title 3.
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The committee believes that it is appropriate that the
expertise developed by the Secret Service in the area of
protective operations over the last 100 years be brought to
bear in coordinating the design, planning, and implementation
of security operations for these events. Section 3 of the bill,
therefore, extends the authority of the Secret Service so that
it may coordinate the design, planning, and implementation of
security operations for any special event of national
significance. The determination as to whether an event is of
such national significance as to fall within the meaning of
section 3 of the bill is to be determined by the President or
his designee. The decision as to whether the Service will
participate in any specific event is to be determined by the
Secretary of the Treasury. The committee intends that the
involvement of the Service at these events be limited to
security operations. This section of the bill is not intended
to authorize the Service to act as the lead Federal agency with
respect to all aspects of such event nor to usurp the authority
of other Federal agencies to conduct crises management,
consequence management, or criminal investigative activities in
connection with that event.
Section 4. National Threat Assessment Center.
Section 4 of the bill authorizes the Secret Service to
establish a National Threat Assessment Center as a unit within
the Service, at the direction of the Secretary of the Treasury.
Under the authorizing statute governing the operation of the
Service, no provision is made for it to share information or
research in the area of threat assessment and prevention of
targeted violence with other Federal, State, or local law
enforcement agencies. During the oversight hearing on the
Service held by the Subcommittee on Crime, the Service informed
the committee that it would like to share such information and
research, to consult with other law enforcement agencies in
complex threat assessment cases or with respect to plans to
prevent targeted violence, and to provide training to other
Federal, State, and local law enforcement agencies in the area
of threat assessment.
Section 4 of the bill provides the Service with this
authority, if directed to do so by the Secretary of the
Treasury. This section of the bill specifies the activities
that may be conducted through the National Threat Assessment
Center. It also provides that the Secretary may authorize the
center to perform such other activities that are necessary to
``implement a comprehensive threat assessment capability.''
This section of the bill requires the Service to submit a
report to the committee on the Judiciary of the Senate and of
the House of Representatives detailing the manner in which the
center will operate. The report is to be submitted not later
than one year after the date of enactment of the bill.
Section 5. Administrative Subpoenas with Regard to Protective
Intelligence Functions of the Secret Service.
Administrative subpoenas are subpoenas issued by a law
enforcement agency, rather than a United States court. Under
current law, the authority to issue administrative subpoenas is
granted only to the Attorney General and then only in very
limited situations.\9\ Only cases involving violations of title
21 (i.e., drug cases) or investigations concerning a Federal
health care offense \10\ or involving the sexual exploitation
or other abuse of children \11\ form the basis for the issuance
of an administrative subpoena.\12\
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\9\ The committee notes that the Attorney General may from time to
time make such provision s as he or she consider appropriate
authorizing the performance by any other officer, employee, or agency
of the Department of Justice of any function of the Attorney General.
See 28 U.S.C. Sec. 510.
\10\ Federal Health Care Offense is defined in 18 U.S.C. Sec. 24.
\11\ Due to inconsistent acts of Congress, administrative subpoenas
have been authorized in cases involving the sexual exploitation or
abuse of children under both section 3486 and section 3486A. See Public
Law No. 105- 277, Title I, Sec. 122 and Public Law No. 105-314, Title
I, Sec. 606. Section 3486A lists specific crimes for which these
subpoenas may be used while section 3486 does not. The authority under
section 3486A is far more limited, however, and applies only when the
subpoena is to be served on a provider of an ``electronic communication
service'' or ``remote computing service.'' Those terms are defined in
section 227 of the Victims of Child Abuse Act of 1990, which can be
found at 42 U.S.C. Sec. 13032.
\12\ 18 U.S.C. Sec. Sec. 3486, 3486A; 21 U.S.C. Sec. 876.
---------------------------------------------------------------------------
Section 5 of the bill would extend administrative subpoena
power to the Secretary of the Treasury \13\ for investigations
of: 1) violations of section 871 of title 18 (threats made
against the President, Vice President, or successor to the
office of President), 2) violations of section 879 of title 18
(threats made against former Presidents and their spouses,
immediately family of the President and Vice President, or
candidates for the office of President or Vice President), or
3) threats made against visiting foreign heads of state or
government, other distinguished foreign visitors to the United
States protected by the Service, or official U.S.
representatives performing missions abroad and who are
receiving Secret Service protection. This power may only be
exercised when the Director of the Secret Service determines
that the threat being investigated is imminent.
---------------------------------------------------------------------------
\13\ The committee notes that the Secretary may delegate the duties
and powers of the Secretary to another officer or employee of the
Department of the Treasury. See 31 U.S.C. Sec. 321(b)(2).
---------------------------------------------------------------------------
The administrative subpoena power granted to the Secretary
of the Treasury under the bill is further limited to requiring
only the production of records and other things relevant to the
investigation, and the testimony of the custodian of the
records and things required to be produced concerning the
production and authenticity of those things. Except for
testimony by the custodian of the records or things, the
administrative subpoena power of section 5 of the bill does not
authorize the government to require the testimony of any
person. The committee intends that the term ``records'' be
interpreted broadly to include, for example, books, papers, and
electronic media.
Under the bill, the Secretary of the Treasury is required
to notify the Attorney General whenever it issues an
administrative subpoena as soon as practicable. This provision
simply requires that notice be given. The Attorney General is
not required to approve the issuance of such a subpoena and the
failure by the Secretary to give this notice should not be
construed to have any impact on the validity of the subpoena.
Section 5 also amends current section 3486 of title 18,
which authorizes the Attorney General to issue administrative
subpoenas in connection with an investigation of a Federal
health care offense and section 3486A of title 18, which
authorizes the Attorney General to issue administrative
subpoenas in cases involving the sexual exploitation or abuse
of children. Section 5 of the bill repeals 3486A and folds the
authority contained in that section, together with the new
authority given to the Service under this bill, into section
3486 as amended by the bill. The bill retains the limitation
(currently in section 3486A) on the type of records that may be
requested from providers of electronic communication services
and remote computing services.\14\
---------------------------------------------------------------------------
\14\ These terms are defined at 42 U.S.C. Sec. 13032.
---------------------------------------------------------------------------
In consolidating these statutes into one section the bill
also adds new provisions to the administrative subpoena
statute, applicable in all instances in which a subpoena is
issued under the statute, to protect the rights of citizens.
For example, the bill provides a mechanism by which the person
or entity upon whom the administrative subpoena is served may
petition a United States District Court for an order modifying
or setting a side the summons, and specifies the district in
which such a petition may be filed. The bill also requires that
if no case or proceeding arises from the production of records
or things produced in response to an administrative subpoena
within a responsible time after the records or things are
produced, the person who produced the records or things may
demand their return by submitting a written demand to the
agency to which the records or things were delivered. The
agency is required to return those records or things to that
person, except where the production required was only of copies
rather than originals. Further, administrative subpoenas issued
by the Attorney General in child sexual exploitation and abuse
cases, or issued by the Secretary of the Treasury in threat
cases, may not require production of the things specified in
the subpoena in less than 24 hours after service of the
subpoena on the party required to make that production. Also,
as amended by the bill, section 3486 will make explicit that
any summons issued under the section is not to be construed to
require the production of anything that would be protected from
production under the standards applicable to a subpoena duces
tecum issued by a United States court. Simply stated, the
committee intends that administrative subpoenas not have any
greater scope than would a subpoena issued by a United States
court.
Finally, section 5 of the bill also provides a mechanism by
which the government may file an application in the United
States District Court for the district in which the summons is
or will be served, seeking an ex parte order prohibiting any
person or entity from disclosing the existence of the summons
for the period of up to 90 days. The statute specifies the
showing the government must make to obtain such an order and
provides that the order may be renewed for additional periods
of up to 90 days each upon a further showing that the
circumstances giving rise to the order continue to exist. There
is no limit on the number of times the order may be renewed.
The section also establishes a penalty of a fine, imprisonment
for up to five years, or both for any person who knowingly
violates an order of non-disclosure.
Agency Views
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, June 9, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This presents the views of the
Department of Justice on H.R. 3048, the ``Presidential Threat
Protection Act of 1999,'' as reported by the Subcommittee on
Crime. Our comments are limited to sections 2 and 5 of the
bill.
Revision of Section 879 of Title 18, United States Code
Section 2 of H.R. 3048 would expand the coverage of 18
U.S.C. Sec. 879, which punishes threats against former
Presidents, the immediate families of the President and Vice
President, major Presidential and Vice Presidential candidates,
and certain other persons protected by Secret Service. Because
the statute expressly limits coverage to designated persons
``who are protected by the Secret Service,'' there are
important gaps that need to be addressed. For example, future
protection of former Presidents by the Secret Service is
limited by 18 U.S.C. Sec. 3056(a)(3). Similarly, 18 U.S.C.
Sec. 3056(a)(7) provides for limited Secret Service protection
for spouses, but not the immediate families, of major
candidates for President and Vice President. Moreover, such
major candidates may decline Secret Service protection. In our
view, the Secret Service has a legitimate interest in
investigating threats against a former President or a current
major Presidential candidate regardless of whether the person
is actually receiving Secret Service protection. The status of
the person as a ``former President'' or ``major candidate'' is
generally the reason such a person is the subject of a threat,
not whether the person is protected by the Secret Service.
In addition, the bill would extend the threat coverage in
18 U.S.C. Sec. 879 to distinguished foreign visitors to the
United States and certain other persons receiving Secret
Service protection pursuant to 18 U.S.C. Sec. 3056(a)(6).
Finally, the bill would increase the statutory maximum penalty
for a violation of 18 U.S.C. Sec. 879 from three years to five
years.
The Department supports the changes made by section 2 of
the bill.
Administrative Subpoenas With Regard to the Protective Intelligence
Functions of the Secret Service
Section 5 of the bill would amend 18 U.S.C. Sec. 3486(a)
(relating to administrative subpoenas in federal health care
investigations), to allow the Secretary of the Treasury to
issue a subpoena requiring the production of records and
testimony in an investigation of an offense under 18 U.S.C.
Sec. Sec. 871 or 879 (threats against certain Secret Service
protectees) or a threat against a person protected by Secret
Service under 18 U.S.C. Sec. 3056(a)(5).
We appreciate the revisions to this section that were
adopted by the Subcommittee on Crime to address some of the
Department's concerns about this section. There remains,
however, an additional outstanding issue: whether the extension
of administrative subpoena power to the Secretary of the
Treasury would more prudently be incorporated in a new
statutory section related to the provisions that establish the
Secret Service and set forth its mission (e.g., 18 U.S.C.
Sec. 3056) rather than as an amendment to the existing health
care fraud administrative subpoena authority granted to the
Attorney General under section 3486. Also, we ask the Committee
to reconsider the proposed incorporation of 18 U.S.C.
Sec. 3486A (administrative subpoenas in child abuse and
exploitation cases) into section 3486.
The administrative subpoena power granted to the Attorney
General in 18 U.S.C. Sec. 3486 reflects a delicate balancing of
law enforcement, oversight, and privacy needs and issues, all
within the limited context of health care fraud investigations.
This statute, enacted as part of the Health Insurance
Portability and Accountability Act of 1996 (``HIPAA''), was
part of a special health care fraud and abuse initiative
included in the HIPAA legislation. Section 3486 was not
anticipated to serve as a vehicle by which to expand
administrative subpoena authority to other Cabinet officers for
special types of investigations unrelated to health care fraud.
The balance in section 3486 is reflected, for example, in
subsection (e)(3), which prohibits the reuse of health records
disclosed pursuant to such a subpoena against the patient
without prior court approval. Similar limitations on the Secret
Service would, we believe, be inapplicable in connection with
an administrative subpoena issued in the context of a
presidential threat investigation. In such an investigation,
the Secretary may need immediate access to information for the
explicit purpose of using it against a target to evaluate the
threat.
Likewise, the purpose underlying section 3486 relating to
health care fraud investigations is clearly distinguishable
from the purposes behind section 3486A. The latter statute
envisions the disclosure of records maintained by electronic
service providers, not health care providers. Intermingling
these two sections would, in our view, likely be
counteproductive and would, at a minimum, cause needless
confusion for investigators, prosecutors, and the courts. We
ask that sections 3486 and 3486A not be merged in the manner
contemplated by H.R. 3048.
The Office of Management and Budget has advised that there
is no objection to the submission of this report from the
standpoint of the Administration's program. Please do not
hesitate to call upon us if we may be of additional assistance.
Sincerely,
Robert Raben, Assistant Attorney General.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
CHAPTER 41--EXTORTION AND THREATS
Sec.
871. Threats against President and successors to the Presidency.
* * * * * * *
879. Threats against former Presidents and certain other persons
[protected by the Secret Service].
* * * * * * *
Sec. 879. Threats against former Presidents and certain other persons
[protected by the Secret Service]
(a) Whoever knowingly and willfully threatens to kill,
kidnap, or inflict bodily harm upon--
(1) a former President or a member of the immediate
family of a former President;
(2) a member of the immediate family of the
President, the President-elect, the Vice President, or
the Vice President-elect; [or]
(3) a major candidate for the office of President
or Vice President, or [the spouse] a member of the
immediate family of such candidate; or
(4) a person protected by the Secret Service under
section 3056(a)(6);
[who is protected by the Secret Service as provided by law,]
shall be fined under this title or imprisoned not more than
[three] 5 years, or both.
(b) As used in this section--
(1) the term ``immediate family'' means--
(A) * * *
(B) with respect to subsection (a)(2) and
(a)(3) of this section, a person to whom the
President, President-elect, Vice President, [or
Vice President-elect] Vice President-elect, or
major candidate for the office of President or
Vice President--
(i) is related by blood, marriage,
or adoption; or
(ii) stands in loco parentis;
* * * * * * *
CHAPTER 203--ARREST AND COMMITMENT
* * * * * * *
Sec. 3056. Powers, authorities, and duties of United States Secret
Service
(a) * * *
* * * * * * *
(e) Under the direction of the Secretary of the Treasury,
the United States Secret Service is authorized to coordinate
the design, planning, and implementation of security operations
for any special event of national significance, as determined
by the President or the President's designee.
* * * * * * *
CHAPTER 223--WITNESSES AND EVIDENCE
Sec.
3481. Competency of accused.
3486. Administrative subpoenas [in Federal health care investigations].
[3486A. Administrative subpoenas in cases involving child abuse and
child sexual exploitation.]
* * * * * * *
Sec. 3486. Administrative subpoenas [in Federal health care
investigations]
(a) Authorization.--[(1) In any investigation relating to
any act or activity involving a Federal health care offense, or
any act or activity involving a Federal offense relating to the
sexual exploitation or other abuse of children, the Attorney
General or the Attorney General's designee may issue in writing
and cause to be served a subpoena--
[(A) requiring the production of any records
(including any books, papers, documents, electronic
media, or other objects or tangible things), which may
be relevant to an authorized law enforcement inquiry,
that a person or legal entity may possess or have care,
custody, or control; or
[(B) requiring a custodian of records to give
testimony concerning the production and authentication
of such records.] (1)(A) In any investigation of--
(i)(I) a Federal health care offense or (II) a
Federal offense involving the sexual exploitation or
abuse of children, the Attorney General; or
(ii) an offense under section 871 or 879, or a
threat against a person protected by the United States
Secret Service under paragraph (5) or (6) of section
3056, if the Director of the Secret Service determines
that the threat constituting the offense or the threat
against the person protected is imminent, the Secretary
of the Treasury;
may issue in writing and cause to be served a subpoena
requiring the production and testimony described in
subparagraph (B).
(B) Except as provided in subparagraph (C), a subpoena
issued under subparagraph (A) may require--
(i) the production of any records or other things
relevant to the investigation; and
(ii) testimony by the custodian of the things
required to be produced concerning the production and
authenticity of those things.
(C) A subpoena issued under subparagraph (A) with respect
to a provider of electronic communication service or remote
computing service, in an investigation of a Federal offense
involving the sexual exploitation or abuse of children shall
not extend beyond--
(i) requiring that provider to disclose the name,
address, local and long distance telephone toll billing
records, telephone number or other subscriber number or
identity, and length of service of a subscriber to or
customer of such service and the types of services the
subscriber or customer utilized, which may be relevant
to an authorized law enforcement inquiry; or
(ii) requiring a custodian of the records of that
provider to give testimony concerning the production
and authentication of such records or information.
(D) As used in this paragraph, the term ``Federal offense
involving the sexual exploitation or abuse of children'' means
an offense under section 1201, 2241(c), 2242, 2243, 2251,
2251A, 2252, 2252A, 2260, 2421, 2422, or 2423, in which the
victim is an individual who has not attained the age of 18
years.
* * * * * * *
(3) The production of records relating to a Federal health
care offense shall not be required under this section at any
place more than 500 miles distant from the place where the
subpoena for the production of such records is served. The
production of things in any other case may be required from any
place within the United States or subject to the laws or
jurisdiction of the United States.
(4) Witnesses [summoned] subpoenaed under this section
shall be paid the same fees and mileage that are paid witnesses
in the courts of the United States.
(5) At any time before the return date specified in the
summons, the person or entity summoned may, in the United
States district court for the district in which that person or
entity does business or resides, petition for an order
modifying or setting aside the summons, or a prohibition of
disclosure ordered by a court under paragraph (6).
(6)(A) A United State district court for the district in
which the summons is or will be served, upon application of the
United States, may issue an ex parte order that no person or
entity disclose to any other person or entity (other than to an
attorney in order to obtain legal advice) the existence of such
summons for a period of up to 90 days.
(B) Such order may be issued on a showing that the things
being sought may be relevant to the investigation and there is
reason to believe that such disclosure may result in--
(i) endangerment to the life or physical safety of
any person;
(ii) flight to avoid prosecution;
(iii) destruction of or tampering with evidence; or
(iv) intimidation of potential witnesses.
(C) An order under this paragraph may be renewed for
additional periods of up to 90 days upon a showing that the
circumstances described in subparagraph (B) continue to exist.
(D) Whoever knowingly violates an order under this
paragraph shall be fined under this title or imprisoned not
more than 5 years, or both.
(7) A summons issued under this section shall not require
the production of anything that would be protected from
production under the standards applicable to a subpoena duces
tecum issued by a court of the United States.
(8) If no case or proceeding arises from the production of
records or other things pursuant to this section within a
reasonable time after those records or things are produced, the
agency to which those records or things were delivered shall,
upon written demand made by the person producing those records
or things, return them to that person, except where the
production required was only of copies rather than originals.
(9) A subpoena issued under paragraph (1)(A)(i)(II) or
(1)(A)(ii) may require production as soon as possible, but in
no event less than 24 hours after service of the subpoena.
(10) As soon as practicable following the issuance of a
subpoena under paragraph (1)(A)(ii), the Secretary of the
Treasury shall notify the Attorney General of its issuance.
* * * * * * *
(d) Immunity From Civil Liability.--Notwithstanding any
Federal, State, or local law, any person, including officers,
agents, and employees, receiving a [summons] subpoena under
this section, who complies in good faith with the [summons]
subpoena and thus produces the materials sought, shall not be
liable in any court of any State or the United States to any
customer or other person for such production or for
nondisclosure of that production to the customer.
* * * * * * *
[Sec. 3486A. Administrative subpoenas in cases involving child abuse
and child sexual exploitation
[(a) Authorization.--
[(1) In general.--In any investigation relating to
any act or activity involving a violation of section
1201, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A,
2260, 2421, 2422, or 2423 of this title in which the
victim is an individual who has not attained the age of
18 years, the Attorney General, or the designee of the
Attorney General, may issue in writing and cause to be
served a subpoena--
[(A) requiring a provider of electronic
communication service or remote computing
service to disclose the name, address, local
and long distance telephone toll billing
records, telephone number or other subscriber
number or identity, and length of service of a
subscriber to or customer of such service and
the types of services the subscriber or
customer utilized, which may be relevant to an
authorized law enforcement inquiry; or
[(B) requiring a custodian of records to
give testimony concerning the production and
authentication of such records or information.
[(2) Attendance of witnesses.--Witnesses summoned
under this section shall be paid the same fees and
mileage that are paid witnesses in the courts of the
United States.
[(b) Procedures Applicable.--The same procedures for
service and enforcement as are provided with respect to
investigative demands in section 3486 apply with respect to a
subpoena issued under this section.]
* * * * * * *