Bush Proposes Expanded Administrative Subpoena Power

September 10, 2003. President Bush gave a speech at the FBI Academy at Quantico, Virginia, on September 10, in which he stated that the Congress should pass legislation giving law enforcement new tools, including administrative subpoena power, to fight terrorism. On September 9, Rep. Tom Feeney (R-FL) introduced HR 3037, the "Antiterrorism Tools Enhancement Act of 2003", for this purpose.

President Bush stated in his address to Marines, FBI agents and others, that "The Patriot Act imposed tough new penalties on terrorists and those who support them. But as the fight against terrorists progressed, we have found areas where more help is required. Under current federal law, there are unreasonable obstacles to investigating and prosecuting terrorism, obstacles that don't exist when law enforcement officials are going after embezzlers or drug traffickers. For the sake of the American people, Congress should change the law, and give law enforcement officials the same tools they have to fight terror that they have to fight other crime."

Bush continued: "Here's some examples. Administrative subpoenas, which enable law enforcement officials to obtain certain records quickly, are critical to many investigations. They're used in a wide range of criminal and civil matters, including health care fraud and child abuse cases. Yet, incredibly enough, in terrorism cases, where speed is often of the essence, officials lack the authority to use administrative subpoenas. If we can use these subpoenas to catch crooked doctors, the Congress should allow law enforcement officials to use them in catching terrorists."

Rep. Feeney (at right), who is a member of the House Judiciary Committee, the committee with jurisdiction over the bill, stated in a release that "Congress needs to take every precaution possible to ensure that the American public is protected from the horrific acts of terrorism ... This legislation will provide continuity in the nationwide effort to defend the freedoms that we hold sacred while awarding greater enforcement ability to those who defend them."

HR 3037 would add a new section to Title 18 (the criminal code) titled "Administrative subpoenas in terrorism investigations".

This new section provides that "In any investigation concerning a Federal crime of terrorism (as defined in section 2332b(g)(5)), the Attorney General may subpoena witnesses, compel the attendance and testimony of witnesses, and require the production of any records (including books, papers, documents, electronic data, and other tangible things that constitute or contain evidence) that he finds relevant or material to the investigation." (Parentheses in original.)

It further provides that a witness may be directed by the subpoena to appear at any hearing within "500 miles distant from the place where he was served with a subpoena".

The bill further provides that the Attorney General may also mandate secrecy. The bills states that "If the Attorney General certifies that otherwise there may result a danger to the national security, no person shall disclose to any other person that a subpoena was received or records were provided pursuant to this section, other than to (A) those persons to whom such disclosure is necessary in order to comply with the subpoena, (B) an attorney to obtain legal advice with respect to testimony or the production of records in response to the subpoena, or (C) other persons as permitted by the Attorney General." Knowing violations would constitute crimes.

The bill also contains several significant limitations on judicial review of these administrative subpoenas, and the secrecy determinations. The bill states, in part, that "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."

First, judicial review would only be available "before the return date specified in the summons". In many situations, this time would run before the subpoenaed party could obtain counsel and prepare and file a legal challenge.

Second, the bill would limit standing to challenge a subpoena, or a secrecy determination, to the party served with the subpoena. The import of this is that in some cases the subpoena may be directed to an internet service provider (ISP) or communications carrier, but seek data on customers of the ISP or carrier. The customers whose data is sought would not have standing, under this language of this bill, to challenge the subpoena. Nor would industry groups or privacy advocates have standing to challenge a subpoena.

Third, the bill provides that in any challenge to a subpoena, the court may consider the government's information "ex parte and in camera". That is, the party challenging the subpoena may not learn, and therefore, may not be able to rebut, confront, or cross examine the evidence presented by the government.

Ex parte is legal Latin for something that is brought to the attention of the court by one party without notice to the other party; most ex parte communications are prohibited. In camera is legal Latin for something that happens in the judge's office, as opposed to in open court.

The bill also provides that "Any person, including officers, agents, and employees, who in good faith produce the records or items requested in a subpoena 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 or other person." This removes a disincentive of ISPs, carriers and other records holders to promptly disclose the information that they possess about third parties.

HR 3037 also would also amend Rule 41(b)(3) of the Federal Rules of Criminal Procedure to read as follows: "(3) a magistrate judge -- in an investigation of (A) a Federal crime of terrorism (as defined in 18 U.S.C. 2332b(g)(g)); or (B) an offense under 18 U.S.C. 1001 or 1505 relating to information or purported information concerning a Federal crime of terrorism (as defined in 18 U.S.C. 2332b(g)(5)) -- 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." (Parentheses in original.)

The current Rule 41(b)(3) was added by the PATRIOT Act. It created nationwide search warrants in terrorism cases. HR 3037 would expand the class of crime and offense investigations for which these warrants would be available.

Also on September 9, Attorney General John Ashcroft gave a speech in New York City in which he discussed the PATRIOT Act. He stated that it "updates our anti-terrorism laws to meet the challenges of new technology, and new threats."

Ashcroft continued that "In an age when terrorists have cellular, even satellite, phones, we must anticipate, out-think, and adapt to the new tactics and technology of our terrorist foes. Under the Patriot Act, prosecutors may now use a ``roving wiretap´´ to track a terror suspect's communication even when the suspected terrorist switches, changes, or abandons phones to avoid detection."

"Since 1986, we have effectively used roving wiretaps to track suspected drug dealers. Thanks to the Patriot Act, we can now use them to track the terrorist threat", said Ashcroft.