[Congressional Record Volume 154, Number 10 (Wednesday, January 23, 2008)]
[Senate]
[Pages S210-S214]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 3901. Mr. KENNEDY submitted an amendment intended to be proposed 
by him to the bill S. 2248, to amend the Foreign Intelligence 
Surveillance Act of 1978, to modernize and streamline the provisions of 
that Act, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 29, line 4, strike ``2013.'' and insert the 
     following: ``2010. Notwithstanding any other provision of 
     this Act, the transitional procedures under paragraphs (2)(B) 
     and (3)(B) of section 302(c) shall apply to any order, 
     authorization, or directive, as the case may be, issued under 
     title VII of the Foreign Intelligence Surveillance Act of 
     1978, as amended by this Act, in effect on December 31, 
     2010.''.
                                 ______
                                 
  SA 3902. Mr. KYL submitted an amendment intended to be proposed by 
him to the bill S. 2248, to amend the Foreign Intelligence Surveillance 
Act

[[Page S211]]

of 1978, to modernize and streamline the provisions of that Act, and 
for other purposes; which was ordered to lie on the table; as follows:

       At the appropriate place, insert the following:

     SEC. __. PREVENTION AND DETERRENCE OF TERRORIST SUICIDE 
                   BOMBINGS.

       (a) In General.--
       (1) Offense of rewarding or facilitating international 
     terrorist acts.--
       (A) In general.--Chapter 113B of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 2339E. Providing material support to international 
       terrorism

       ``(a) Definitions.--In this section:
       ``(1) The term `facility of interstate or foreign commerce' 
     has the same meaning as in section 1958(b)(2).
       ``(2) The term `international terrorism' has the same 
     meaning as in section 2331.
       ``(3) The term `material support or resources' has the same 
     meaning as in section 2339A(b).
       ``(4) The term `perpetrator of an act' includes any person 
     who--
       ``(A) commits the act;
       ``(B) aids, abets, counsels, commands, induces, or procures 
     its commission; or
       ``(C) attempts, plots, or conspires to commit the act.
       ``(5) The term `serious bodily injury' has the same meaning 
     as in section 1365.
       ``(b) Prohibition.--Whoever, in a circumstance described in 
     subsection (c), provides, or attempts or conspires to 
     provide, material support or resources to the perpetrator of 
     an act of international terrorism, or to a family member or 
     other person associated with such perpetrator, with the 
     intent to facilitate, reward, or encourage that act or other 
     acts of international terrorism, shall be fined under this 
     title, imprisoned for any term of years or for life, or both, 
     and, if death results, shall be imprisoned for any term of 
     years not less than 10 or for life.
       ``(c) Jurisdictional Bases.--A circumstance referred to in 
     subsection (b) is that--
       ``(1) the offense occurs in or affects interstate or 
     foreign commerce;
       ``(2) the offense involves the use of the mails or a 
     facility of interstate or foreign commerce;
       ``(3) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that affects 
     interstate or foreign commerce or would have affected 
     interstate or foreign commerce had it been consummated;
       ``(4) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that violates the 
     criminal laws of the United States;
       ``(5) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that is designed 
     to influence the policy or affect the conduct of the United 
     States Government;
       ``(6) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that occurs in 
     part within the United States and is designed to influence 
     the policy or affect the conduct of a foreign government;
       ``(7) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that causes or is 
     designed to cause death or serious bodily injury to a 
     national of the United States while that national is outside 
     the United States, or substantial damage to the property of a 
     legal entity organized under the laws of the United States 
     (including any of its States, districts, commonwealths, 
     territories, or possessions) while that property is outside 
     of the United States;
       ``(8) the offense occurs in whole or in part within the 
     United States, and an offender intends to facilitate, reward 
     or encourage an act of international terrorism that is 
     designed to influence the policy or affect the conduct of a 
     foreign government; or
       ``(9) the offense occurs in whole or in part outside of the 
     United States, and an offender is a national of the United 
     States, a stateless person whose habitual residence is in the 
     United States, or a legal entity organized under the laws of 
     the United States (including any of its States, districts, 
     commonwealths, territories, or possessions).''.
       (B) Technical and conforming amendments.--
       (i) Table of sections.--The table of sections for chapter 
     113B of title 18, United States Code, is amended by adding at 
     the end the following:

``2339D. Receiving military-type training from a foreign terrorist 
              organization.
``2339E. Providing material support to international terrorism.''.

       (ii) Other amendment.--Section 2332b(g)(5)(B)(i) of title 
     18, United States Code, is amended by inserting ``2339E 
     (relating to providing material support to international 
     terrorism),'' before ``or 2340A (relating to torture)''.
       (2) Increased penalties for providing material support to 
     terrorists.--
       (A) Providing material support to designated foreign 
     terrorist organizations.--Section 2339B(a) of title 18, 
     United States Code, is amended by striking ``15 years'' and 
     inserting ``30 years''.
       (B) Providing material support or resources in aid of a 
     terrorist crime.--Section 2339A(a) of title 18, United States 
     Code, is amended by striking ``imprisoned not more than 15 
     years'' and all that follows through ``life.'' and inserting 
     ``imprisoned for any term of years or for life, or both, and, 
     if the death of any person results, shall be imprisoned for 
     any term of years not less than 10 or for life.''.
       (C) Receiving military-type training from a foreign 
     terrorist organization.--Section 2339D(a) of title 18, United 
     States Code, is amended by striking ``ten years'' and 
     inserting ``25 years''.
       (D) Addition of attempts and conspiracies to an offense 
     relating to military training.--Section 2339D(a) of title 18, 
     United States Code, is amended by inserting ``, or attempts 
     or conspires to receive,'' after ``receives''.
       (b) Terrorist Murders, Kidnappings, and Assaults.--
       (1) Penalties for terrorist murder and manslaughter.--
     Section 2332(a) of title 18, United States Code, is amended--
       (A) in paragraph (1), by striking ``, punished by death'' 
     and all that follows and inserting ``and punished by death or 
     imprisoned for life;''; and
       (B) in paragraph (2), by striking ``ten years'' and 
     inserting ``30 years''.
       (2) Addition of offense of terrorist kidnapping.--Section 
     2332 of title 18, United States Code, is amended--
       (A) by redesignating subsections (c) and (d) as subsections 
     (d) and (e), respectively; and
       (B) by inserting after subsection (b) the following:
       ``(c) Kidnapping.--Whoever outside the United States 
     unlawfully seizes, confines, inveigles, decoys, kidnaps, 
     abducts, or carries away, or attempts or conspires to seize, 
     confine, inveigle, decoy, kidnap, abduct or carry away, a 
     national of the United States shall be fined under this title 
     and imprisoned for any term of years or for life.''.
       (3) Addition of sexual assault to definition of offense of 
     terrorist assault.--Section 2332(d) of title 18, United 
     States Code, as redesignated by paragraph (2) of this 
     subsection, is amended--
       (A) in paragraph (1), by inserting ``(as defined in section 
     1365, including any conduct that, if the conduct occurred in 
     the special maritime and territorial jurisdiction of the 
     United States, would violate section 2241 or 2242)'' after 
     ``injury'';
       (B) in paragraph (2), by inserting ``(as defined in section 
     1365, including any conduct that, if the conduct occurred in 
     the special maritime and territorial jurisdiction of the 
     United States, would violate section 2241 or 2242)'' after 
     ``injury''; and
       (C) in the matter following paragraph (2), by striking ``or 
     imprisoned'' and all that follows and inserting ``and 
     imprisoned for any term of years not less than 30 or for 
     life.''.
       (c) Terrorist Hoaxes Against Families of United States 
     Servicemen.--
       (1) Hoax statute.--Section 1038 of title 18, United States 
     Code, is amended--
       (A) in subsections (a)(1) and (b), by inserting ``or any 
     other offense listed under section 2332b(g)(5)(B) of this 
     title'' after ``title 49,''; and
       (B) in subsection (a)(2)--
       (i) in subparagraph (A), by striking ``, imprisoned not 
     more than 5 years, or both'' and inserting ``and imprisoned 
     for not less than 2 years nor more than 10 years'';
       (ii) in subparagraph (B), by striking ``, imprisoned not 
     more than 20 years, or both'' and inserting ``and imprisoned 
     for not less than 5 years nor more than 25 years''; and
       (iii) in subparagraph (C), by striking ``, imprisoned for 
     any term of years or for life, or both'' and inserting ``and 
     imprisoned for any term of years not less than 10 or for 
     life''.
       (2) Attacks on united states servicemen.--
       (A) In general.--Chapter 67 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1389. Prohibition on attacks on United States 
       servicemen on account of service

       ``(a) In General.--Whoever assaults, batters, or knowingly 
     destroys or injures the property of a United States 
     serviceman or of a member of the immediate family of a United 
     States serviceman, on account of the military service of that 
     serviceman or status of that individual as a United States 
     serviceman, or who attempts or conspires to do so, shall--
       ``(1) in the case of a simple assault, or destruction or 
     injury to property in which the damage or attempted damage to 
     such property is not more than $500, be fined under this 
     title in an amount not less than $500 and imprisoned not more 
     than 2 years;
       ``(2) in the case of destruction or injury to property in 
     which the damage or attempted damage to such property is more 
     than $500, be fined under this title in an amount not less 
     than $1000 and imprisoned not less than 90 days nor more than 
     10 years; and
       ``(3) in the case of a battery, or an assault resulting in 
     bodily injury, be fined under this title in an amount not 
     less than $2500 and imprisoned not less than 2 years nor more 
     than 30 years.
       ``(b) Exception.--This section shall not apply to a person 
     who is subject to the Uniform Code of Military Justice.
       ``(c) Definition.--In this section, the term `United States 
     serviceman'--
       ``(1) means a member of the Armed Forces, as that term is 
     defined in section 1388; and
       ``(2) includes a former member of the Armed Forces during 
     the 5-year period beginning on the date of the discharge from 
     the Armed Forces of that member of the Armed Forces.''.

[[Page S212]]

       (B) Technical and conforming amendment.--The table of 
     sections for chapter 67 of title 18, United States Code, is 
     amended by adding at the end the following:

``1389. Prohibition on attacks on United States servicemen on account 
              of service.''.
       (3) Threatening communications.--
       (A) Mailed within the united states.--Section 876 of title 
     18, United States Code, is amended by adding at the end the 
     following:
       ``(e) For purposes of this section, the term `addressed to 
     any other person' includes an individual (other than the 
     sender), a corporation or other legal person, and a 
     government or agency or component thereof.''.
       (B) Mailed to a foreign country.--Section 877 of title 18, 
     United States Code, is amended by adding at the end the 
     following:
       ``For purposes of this section, the term `addressed to any 
     person' includes an individual, a corporation or other legal 
     person, and a government or agency or component thereof.''.
       (d) Denial of Federal Benefits to Convicted Terrorists.--

       (1) In general.--Chapter 113B of title 18, United States 
     Code, as amended by this section, is amended by adding at the 
     end the following:

     ``Sec. 2339F. Denial of Federal benefits to terrorists

       ``(a) In General.--Any individual who is convicted of a 
     Federal crime of terrorism (as defined in section 2332b(g)) 
     shall, as provided by the court on motion of the Government, 
     be ineligible for any or all Federal benefits for any term of 
     years or for life.
       ``(b) Federal Benefit Defined.--In this section, `Federal 
     benefit' has the meaning given that term in section 421(d) of 
     the Controlled Substances Act (21 U.S.C. 862(d)).''.
       (2) Technical and conforming amendment.--The table of 
     sections for chapter 113B of title 18, United States Code, as 
     amended by this section, is amended by adding at the end the 
     following:

``Sec. 2339F. Denial of Federal benefits to terrorists.''.

       (e) Investigation of Terrorist Crimes.--
       (1) Nondisclosure of fisa investigations.--The following 
     provisions of the Foreign Intelligence Surveillance Act of 
     1978 are each amended by inserting ``(other than in 
     proceedings or other civil matters under the immigration 
     laws, as that term is defined in section 101(a)(17) of the 
     Immigration and Nationality Act (8 U.S.C. 1101(a)(17)))'' 
     after ``authority of the United States'':
       (A) Subsections (c), (e), and (f) of section 106 (50 U.S.C. 
     1806).
       (B) Subsections (d), (f), and (g) of section 305 (50 U.S.C. 
     1825).
       (C) Subsections (c), (e), and (f) of section 405 (50 U.S.C. 
     1845).
       (2) Multidistrict search warrants in terrorism 
     investigations.--Rule 41(b)(3) of the Federal Rules of 
     Criminal Procedure is amended to read as follows:
       ``(3) a magistrate judge--in an investigation of--
       ``(A) a Federal crime of terrorism (as defined in section 
     2332b(g)(g) of title 18, United States Code); or
       ``(B) an offense under section 1001 or 1505 of title 18, 
     United States Code, relating to information or purported 
     information concerning a Federal crime of terrorism (as 
     defined in section 2332b(g)(5) of title 18, United States 
     Code)--having authority in any district in which activities 
     related to the Federal crime of terrorism or offense may have 
     occurred, may issue a warrant for a person or property within 
     or outside that district.''.
       (3) Increased penalties for obstruction of justice in 
     terrorism cases.--Sections 1001(a) and 1505 of title 18, 
     United States Code, are amended by striking ``8 years'' and 
     inserting ``10 years''.
       (f) Improvements to the Classified Information Procedures 
     Act.--
       (1) Interlocutory appeals under the classified information 
     procedures act.--Section 7(a) of the Classified Information 
     Procedures Act (18 U.S.C. App.) is amended by adding at the 
     end ``The Government's right to appeal under this section 
     applies without regard to whether the order appealed from was 
     entered under this Act.''.
       (2) Ex parte authorizations under the classified 
     information procedures act.--Section 4 of the Classified 
     Information Procedures Act (18 U.S.C. App.) is amended--
       (A) in the second sentence--
       (i) by striking ``may'' and inserting ``shall''; and
       (ii) by striking ``written statement to be inspected'' and 
     inserting ``statement to be made ex parte and to be 
     considered''; and
       (B) in the third sentence--
       (i) by striking ``If the court enters an order granting 
     relief following such an ex parte showing, the'' and 
     inserting ``The''; and
       (ii) by inserting ``, as well as any summary of the 
     classified information the defendant seeks to obtain,'' after 
     ``text of the statement of the United States''.
       (3) Application of classified information procedures act to 
     nondocumentary information.--Section 4 of the Classified 
     Information Procedures Act (18 U.S.C. App.) is amended--
       (A) in the section heading, by inserting ``, and access 
     to,'' after ``of'';
       (B) by inserting ``(a) Discovery of Classified Information 
     From Documents.--'' before the first sentence; and
       (C) by adding at the end the following:
       ``(b) Access to Other Classified Information.--
       ``(1) If the defendant seeks access through deposition 
     under the Federal Rules of Criminal Procedure or otherwise to 
     non-documentary information from a potential witness or other 
     person which he knows or reasonably believes is classified, 
     he shall notify the attorney for the United States and the 
     district court in writing. Such notice shall specify with 
     particularity the classified information sought by the 
     defendant and the legal basis for such access. At a time set 
     by the court, the United States may oppose access to the 
     classified information.
       ``(2) If, after consideration of any objection raised by 
     the United States, including any objection asserted on the 
     basis of privilege, the court determines that the defendant 
     is legally entitled to have access to the information 
     specified in the notice required by paragraph (1), the United 
     States may request the substitution of a summary of the 
     classified information or the substitution of a statement 
     admitting relevant facts that the classified information 
     would tend to prove.
       ``(3) The court shall permit the United States to make its 
     objection to access or its request for such substitution in 
     the form of a statement to be made ex parte and to be 
     considered by the court alone. The entire text of the 
     statement of the United States, as well as any summary of the 
     classified information the defendant seeks to obtain, shall 
     be sealed and preserved in the records of the court and made 
     available to the appellate court in the event of an appeal.
       ``(4) The court shall grant the request of the United 
     States to substitute a summary of the classified information 
     or to substitute a statement admitting relevant facts that 
     the classified information would tend to prove if it finds 
     that the summary or statement will provide the defendant with 
     substantially the same ability to make his defense as would 
     disclosure of the specific classified information.
       ``(5) A defendant may not obtain access to classified 
     information subject to this subsection except as provided in 
     this subsection. Any proceeding, whether by deposition under 
     the Federal Rules of Criminal Procedure or otherwise, in 
     which a defendant seeks to obtain access to such classified 
     information not previously authorized by a court for 
     disclosure under this subsection must be discontinued or may 
     proceed only as to lines of inquiry not involving such 
     classified information.''.
                                 ______
                                 
  SA 3903. Mr. KYL submitted an amendment intended to be proposed by 
him to the bill S. 2248, to amend the Foreign Intelligence Surveillance 
Act of 1978, to modernize and streamline the provisions of that Act, 
and for other purposes; which was ordered to lie on the table; as 
follows:

       On page 8, between lines 12 and 13 insert the following:
       ``(3) Exception.--Paragraph (2) shall not apply to an 
     acquisition by an electronic, mechanical, or other 
     surveillance device outside the United States if a warrant 
     would not be required if such acquisition were conducted 
     outside the United States for law enforcement purposes.
       ``(4) Procedures.--
                                 ______
                                 
  SA 3904. Mr. CONRAD submitted an amendment intended to be proposed by 
him to the bill S. 1200, to amend the Indian Health Care Improvement 
Act to revise and extend the Act; which was ordered to lie on the 
table; as follows:

       On page 196, line 15, insert ``, including programs to 
     provide services using video or electronic delivery 
     methods,'' after ``trust lands''.
                                 ______
                                 
  SA 3905. Mr. SPECTER (for himself and Mr. Whitehouse) submitted an 
amendment intended to be proposed by him to the bill S. 2248, to amend 
the Foreign Intelligence Surveillance Act of 1978, to modernize and 
streamline the provisions of that Act, and for other purposes; which 
was ordered to lie on the table; as follows:

       On page 46, strike line 5 and all that follows through page 
     48, line 21, and insert the following:
       (6) Foreign intelligence surveillance court.--The term 
     ``Foreign Intelligence Surveillance Court'' means the court 
     established under section 103(a) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1803(a)).

     SEC. 202. SUBSTITUTION OF THE UNITED STATES IN CERTAIN 
                   ACTIONS.

       (a) In General.--
       (1) Certification.--Notwithstanding any other provision of 
     law, a Federal or State court shall substitute the United 
     States for an electronic communication service provider with 
     respect to any claim in a covered civil action as provided in 
     this subsection, if the Attorney General certifies to that 
     court that--
       (A) with respect to that claim, the assistance alleged to 
     have been provided by the electronic communication service 
     provider was--
       (i) provided in connection with an intelligence activity 
     involving communications that was--

       (I) authorized by the President during the period beginning 
     on September 11, 2001, and ending on January 17, 2007; and

[[Page S213]]

       (II) designed to detect or prevent a terrorist attack, or 
     activities in preparation for a terrorist attack, against the 
     United States; and

       (ii) described in a written request or directive from the 
     Attorney General or the head of an element of the 
     intelligence community (or the deputy of such person) to the 
     electronic communication service provider indicating that the 
     activity was--

       (I) authorized by the President; and
       (II) determined to be lawful; or

       (B) the electronic communication service provider did not 
     provide the alleged assistance.
       (2) Substitution.--
       (A) In general.--Except as provided in subparagraph (B), 
     and subject to subparagraph (C), upon receiving a 
     certification under paragraph (1), a Federal or State court 
     shall--
       (i) substitute the United States for the electronic 
     communication service provider as the defendant as to all 
     claims designated by the Attorney General in that 
     certification, consistent with the procedures under rule 
     25(c) of the Federal Rules of Civil Procedure, as if the 
     United States were a party to whom the interest of the 
     electronic communication service provider in the litigation 
     had been transferred; and
       (ii) as to that electronic communication service provider--

       (I) dismiss all claims designated by the Attorney General 
     in that certification; and
       (II) enter a final judgment relating to those claims.

       (B) Continuation of certain claims.--If a certification by 
     the Attorney General under paragraph (1) states that not all 
     of the alleged assistance was provided under a written 
     request or directive described in paragraph (1)(A)(ii), the 
     electronic communication service provider shall remain as a 
     defendant.
       (C) Determination.--
       (i) In general.--Substitution under subparagraph (A) shall 
     proceed only after a determination by the Foreign 
     Intelligence Surveillance Court that--

       (I) the written request or directive from the Attorney 
     General or the head of an element of the intelligence 
     community (or the deputy of such person) to the electronic 
     communication service provider under paragraph (1)(A)(ii) 
     complied with section 2511(2)(a)(ii)(B) of title 18, United 
     States Code;
       (II) the assistance alleged to have been provided was 
     undertaken by the electronic communication service provider 
     acting in good faith and pursuant to an objectively 
     reasonable belief that compliance with the written request or 
     directive under paragraph (1)(A)(ii) was permitted by law; or
       (III) the electronic communication service provider did not 
     provide the alleged assistance.

       (ii) Certification.--If the Attorney General submits a 
     certification under paragraph (1), the court to which that 
     certification is submitted shall--

       (I) immediately certify the questions described in clause 
     (i) to the Foreign Intelligence Surveillance Court; and
       (II) stay further proceedings in the relevant litigation, 
     pending the determination of the Foreign Intelligence 
     Surveillance Court.

       (iii) Participation of parties.--In reviewing a 
     certification and making a determination under clause (i), 
     the Foreign Intelligence Surveillance Court shall permit any 
     plaintiff and any defendant in the applicable covered civil 
     action to appear before the Foreign Intelligence Surveillance 
     Court pursuant to section 103 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1803).
       (iv) Declarations.--If the Attorney General files a 
     declaration under section 1746 of title 28, United States 
     Code, that disclosure of a determination made pursuant to 
     clause (i) would harm the national security of the United 
     States, the Foreign Intelligence Surveillance Court shall 
     limit any public disclosure concerning such determination, 
     including any public order following such an ex parte review, 
     to a statement that the conditions of clause (i) have or have 
     not been met, without disclosing the basis for the 
     determination.
       (3) Procedures.--
       (A) Tort claims.--Upon a substitution under paragraph (2), 
     for any tort claim--
       (i) the claim shall be deemed to have been filed under 
     section 1346(b) of title 28, United States Code, except that 
     sections 2401(b), 2675, and 2680(a) of title 28, United 
     States Code, shall not apply; and
       (ii) the claim shall be deemed timely filed against the 
     United States if it was timely filed against the electronic 
     communication service provider.
       (B) Constitutional and statutory claims.--Upon a 
     substitution under paragraph (2), for any claim under the 
     Constitution of the United States or any Federal statute--
       (i) the claim shall be deemed to have been filed against 
     the United States under section 1331 of title 28, United 
     States Code;
       (ii) with respect to any claim under a Federal statute that 
     does not provide a cause of action against the United States, 
     the plaintiff shall be permitted to amend such claim to 
     substitute, as appropriate, a cause of action under--

       (I) section 704 of title 5, United States Code (commonly 
     known as the Administrative Procedure Act);
       (II) section 2712 of title 18, United States Code; or
       (III) section 110 of the Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1810);

       (iii) the statutes of limitation applicable to the causes 
     of action identified in clause (ii) shall not apply to any 
     amended claim under that clause, and any such cause of action 
     shall be deemed timely filed if any Federal statutory cause 
     of action against the electronic communication service 
     provider was timely filed; and
       (iv) for any amended claim under clause (ii) the United 
     States shall be deemed a proper defendant under any statutes 
     described in that clause, and any plaintiff that had standing 
     to proceed against the original defendant shall be deemed an 
     aggrieved party for purposes of proceeding under section 2712 
     of title 18, United States Code, or section 110 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1810).
       (C) Discovery.--
       (i) In general.--In a covered civil action in which the 
     United States is substituted as party-defendant under 
     paragraph (2), any plaintiff may serve third-party discovery 
     requests to any electronic communications service provider as 
     to which all claims are dismissed.
       (ii) Binding the government.--If a plaintiff in a covered 
     civil action serves deposition notices under rule 30(b)(6) of 
     the Federal Rules of Civil Procedure or requests under rule 
     36 of the Federal Rules of Civil Procedure for admission upon 
     an electronic communications service provider as to which all 
     claims were dismissed, the electronic communications service 
     provider shall be deemed a party-defendant for purposes rule 
     30(b)(6) or rule 36 and its answers and admissions shall be 
     deemed binding upon the Government.
       (b) Certifications.--
       (1) In general.--For purposes of substitution proceedings 
     under this section--
       (A) a certification under subsection (a) may be provided 
     and reviewed in camera, ex parte, and under seal; and
       (B) for any certification provided and reviewed as 
     described in subparagraph (A), the court shall not disclose 
     or cause the disclosure of its contents.
       (2) Nondelegation.--The authority and duties of the 
     Attorney General under this section shall be performed by the 
     Attorney General or a designee in a position not lower than 
     the Deputy Attorney General.
       (c) Sovereign Immunity.--This section, including any 
     Federal statute cited in this section that operates as a 
     waiver of sovereign immunity, constitute the sole waiver of 
     sovereign immunity with respect to any covered civil action.
       (d) Civil Actions in State Court.--For purposes of section 
     1441 of title 28, United States Code, any covered civil 
     action that is brought in a State court or administrative or 
     regulatory bodies shall be deemed to arise under the 
     Constitution or laws of the United States and shall be 
     removable under that section.
       (e) Rule of Construction.--Except as expressly provided in 
     this section, nothing in this section may be construed to 
     limit any immunity, privilege, or defense under any other 
     provision of law, including any privilege, immunity, or 
     defense that would otherwise have been available to the 
     United States absent its substitution as party-defendant or 
     had the United States been the named defendant.
       (f) Effective Date and Application.--This section shall 
     apply to any covered civil action pending on or filed after 
     the date of enactment of this Act.
                                 ______
                                 
  SA 3906. Mr. MARTINEZ submitted an amendment intended to be proposed 
to amendment SA 3899 proposed by Mr. Dorgan (for himself, Ms. 
Murkowski, Mr. Baucus, Mr. Kennedy, Mr. Smith, Mr. Nelson of Nebraska, 
and Mr. Salazar) to the bill S. 1200, to amend the Indian Health Care 
Improvement Act to revise and extend the Act; which was ordered to lie 
on the table; as follows:

       At the end of title II, add the following:

     SEC. ___. INCREASED CIVIL MONEY PENALTIES AND CRIMINAL FINES 
                   FOR MEDICARE FRAUD AND ABUSE.

       (a) Increased Civil Money Penalties.--Section 1128A of the 
     Social Security Act (42 U.S.C. 1320a-7a) is amended--
       (1) in subsection (a), in the flush matter following 
     paragraph (7)--
       (A) by striking ``$10,000'' each place it appears and 
     inserting ``$20,000'';
       (B) by striking ``$15,000'' and inserting ``$30,000''; and
       (C) by striking ``$50,000'' and inserting ``$100,000''; and
       (2) in subsection (b)--
       (A) in paragraph (1), in the flush matter following 
     subparagraph (B), by striking ``$2,000'' and inserting 
     ``$4,000'';
       (B) in paragraph (2), by striking ``$2,000'' and inserting 
     ``$4,000''; and
       (C) in paragraph (3)(A)(i), by striking ``$5,000'' and 
     inserting ``$10,000''.
       (b) Increased Criminal Fines.--Section 1128B of the Social 
     Security Act (42 U.S.C. 1320a-7b) is amended--
       (1) in subsection (a), in the flush matter following 
     paragraph (6)--
       (A) by striking ``$25,000'' and inserting ``$100,000''; and
       (B) by striking ``$10,000'' and inserting ``$20,000'';
       (2) in subsection (b)--
       (A) in paragraph (1), in the flush matter following 
     subparagraph (B), by striking ``$25,000'' and inserting 
     ``$100,000''; and

[[Page S214]]

       (B) in paragraph (2), in the flush matter following 
     subparagraph (B), by striking ``$25,000'' and inserting 
     ``$100,000'';
       (3) in subsection (c), by striking ``$25,000'' and 
     inserting ``$100,000'';
       (4) in subsection (d), in the second flush matter following 
     subparagraph (B), by striking ``$25,000'' and inserting 
     ``$100,000''; and
       (5) in subsection (e), by striking ``$2,000'' and inserting 
     ``$4,000''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to civil money penalties and fines imposed for 
     actions taken on or after the date of enactment of this Act.

     SEC. ____. INCREASED SENTENCES FOR FELONIES INVOLVING 
                   MEDICARE FRAUD AND ABUSE.

       (a) False Statements and Representations.--Section 1128B(a) 
     of the Social Security Act (42 U.S.C. 1320a-7b(a)) is 
     amended, in clause (i) of the flush matter following 
     paragraph (6), by striking ``not more than 5 years'' and 
     inserting ``not more than 10 years''.
       (b) Anti-Kickback.--Section 1128B(b) of the Social Security 
     Act (42 U.S.C. 1320a-7b(b)) is amended--
       (1) in paragraph (1), in the flush matter following 
     subparagraph (B), by striking ``not more than 5 years'' and 
     inserting ``not more than 10 years''; and
       (2) in paragraph (2), in the flush matter following 
     subparagraph (B), by striking ``not more than 5 years'' and 
     inserting ``not more than 10 years''.
       (c) False Statement or Representation With Respect to 
     Conditions or Operations of Facilities.--Section 1128B(c) of 
     the Social Security Act (42 U.S.C. 1320a-7b(c)) is amended by 
     striking ``not more than 5 years'' and inserting ``not more 
     than 10 years''.
       (d) Excess Charges.--Section 1128B(d) of the Social 
     Security Act (42 U.S.C. 1320a-7b(d)) is amended, in the 
     second flush matter following subparagraph (B), by striking 
     ``not more than 5 years'' and inserting ``not more than 10 
     years''.
       (e) Effective Date.--The amendments made by this section 
     shall apply to criminal penalties imposed for actions taken 
     on or after the date of enactment of this Act.

     SEC. ___. INCREASED SURETY BOND REQUIREMENT FOR SUPPLIERS OF 
                   DME.

       (a) In General.--Section 1834(a)(16)(B) of the Social 
     Security Act (42 U.S.C. 1395m(a)(16)(B)) is amended by 
     striking ``$50,000'' and inserting ``$500,000''.
       (b) Effective Date.--The amendment made by this section 
     shall apply to the issuance (or renewal) of a provider number 
     for a supplier of durable medical equipment on or after the 
     date of enactment of this Act.

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