Congressional Record: June 22, 2004 (Senate)
Page S7178-S7193
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KYL:
S. 2555. A bill to authorize the use of judicially enforceable
subpoenas in terrorism investigations; to the Committee on the
Judiciary.
Mr. KYL. Mr. President, I rise today to introduce a bill that would
authorize the Justice Department to issue judicially enforceable
subpoenas in terrorism investigations.
Here is how the JETS Act would work: it would allow the FBI to
subpoena documents and records ``in any investigation of a Federal
crime of terrorism.'' The bill would require the FBI to go to Federal
court to enforce the subpoena in the event that the recipient declines
to comply with it. It would also allow the recipient to make the first
move and go to court to challenge the subpoena. The JETS Act also would
allow the Justice Department to temporarily bar the recipient of a JET
subpoena from disclosing to anyone other than his lawyer that he has
received it. The FBI could bar such disclosure, however, only if the
Attorney General certifies that ``otherwise there may result a danger
to the national security of the United States.'' Also, the recipient of
the subpoena would have the right to go to court to challenge the
nondisclosure order. And finally, the JETS Act would protect the
recipient from any civil liability that might otherwise result from his
good-faith compliance with a JET subpoena.
At the outset, it bears mention that the FBI already has ways of
obtaining a subpoena when it needs one for a terrorism investigation:
it simply finds an Assistant U.S. Attorney and asks him to issue a
grand-jury subpoena to investigate a potential crime of terrorism. The
advantages of the JETS Act--of giving the FBI direct authority to issue
subpoenas--are not so much substantive as procedural. These advantages
principally are two: 1. A grand-jury subpoena's ``return date''--the
date by which the recipient of the subpoena is asked to comply--can
only be a day on which a grand jury is convened. Therefore, a grand-
jury subpoena issued on a Friday evening cannot have a return date that
is earlier than the next Monday. The JETS Act would allow the FBI to
set an earlier return date, so long as that date allows ``a reasonable
period of time within which the records or items [to be produced] can
be assembled and made available.'' 2. Only an AUSA can issue a grand-
jury subpoena. Therefore, whenever the FBI wants to use a grand-jury
subpoena in a terrorism case, it must find an AUSA. This can be
difficult and time consuming in remote locations. The JETS Act would
allow the FBI to forego this exercise.
The Justice Department recently made its case as to why it
should be given JETS authority in its answers to Senator
Biden's written questions to Christopher Wray, the Assistant
Attorney General for the Criminal Division, following Mr.
Wray's testimony before the Judiciary Committee on October
21, 2003. Senator Biden asked Mr. Wray to cite ``instances
where your terrorism investigations have been thwarted due to
an inability to secure a subpoena from a grand jury in a
timely fashion.'' While Mr. Wray declined to provide the
details of those instances when the lack of direct authority
has posed a problem, he did offer the ``following
hypothetical situations, which could well arise, [and which]
illustrate the need for this investigative tool:''
``In the first scenario, anti-terrorism investigators learn
that members of an Al Qaeda cell recently stayed at a
particular hotel. They want to know how the cell members paid
for their rooms, in order to discover what credit cards they
may have used. When investigators ask the hotel manager to
produce the payment records voluntarily, the manager declines
to do so, explaining that company policy prohibits him from
revealing such information about customers without legal
process. If investigators had the authority to issue an
administrative subpoena, the hotel manager could disclose the
records about the Al Qaeda cell immediately without fear of
legal liability. In this situation, where the speed and
success of the investigation may be matters of life and
death, this disclosure would immediately provide
investigators with crucial information--such as the location
of the terrorists and the nature of their purchases--with
which to disrupt and prevent terrorist activity.
``In the second hypothetical situation, anti-terrorism
investigators learn on a Saturday morning that members of an
Al Qaeda cell have bought bomb-making materials from a
chemical company. They want to obtain records relating to the
purchase that may reveal what chemicals the terrorists
bought, as well as delivery records that might reveal the
terrorists' location. The investigators might seek quickly to
contact an Assistant United States Attorney, who might
immediately obtain a grand-jury subpoena for the records.
However, the third party who holds the records could lawfully
refuse to furnish them until the subpoena's `return date,'
which must be on a day the grand jury is sitting. Because the
grand jury is not scheduled to meet again until Monday
morning, investigators may not be able to obtain the
information for two days--during which time the Al Qaeda cell
may execute its plot. If investigators had the authority to
issue an administrative subpoena, which can set a very short
or immediate response deadline for information, they may be
able to obtain the records immediately and neutralize the
cell.''
Mr. Wray concluded his answer by noting that ``[g]ranting FBI the use
of [JETS authority] would speed those terrorism investigations in which
subpoena recipients are not inclined to contest the subpoena in court
and are willing to comply. Avoiding delays in these situations would
allow agents to track and disrupt terrorist activity more
effectively.''
To place the JETS Act in context, it bears noting that granting the
FBI direct authority to issue subpoenas in terrorism cases would hardly
be anomalous. As the Justice Department's Office of Legal Policy
recently noted in a published report, ``Congress has granted some form
of administrative subpoena authority to most federal agencies, with
many agencies holding several such authorities.'' (Report to Congress
on the Use of Administrative Subpoena Authorities by Executive Branch
Agencies and Entities, Pursuant to Public Law 106-544, Section 7.) The
Justice Department ``identified approximately 335 existing
administrative subpoena authorities held by various executive-branch
entities under current law.'' Ibid.
Among the more frequently employed of existing executive-subpoena
authorities is 18 U.S.C. Sec. 3486's permission for the Attorney
General to issue subpoenas ``[i]n any investigation of a Federal health
care offense.'' According to the Public Law 106-544 Report, in the year
2001 the federal government used Sec. 3486 to issue a total of 2,102
subpoenas in health-care-fraud investigations. These subpoenas
uncovered evidence of ``fraudulent claims and false
[[Page S7179]]
statements such as `upcoding,' which is billing for a higher level of
service than that actually provided; double billing for the same visit;
billing for services not rendered; and providing unnecessary
services.''
Executive agencies already have direct subpoena authority for many
types of investigations. Thus it would not be exceptional for Congress
to grant the same authority to the FBI for terrorism cases. Indeed, as
Mr. Wray noted in his above-cited answers to questions, ``[b]ecause of
the benefits that administrative subpoenas provide in fast-moving
investigations, they may be more necessary in terrorism cases than in
any other type of investigation.'' One can hardly contend that although
the federal government can use subpoenas to investigate Mohammed Atta
if it suspects that he is committing Medicare fraud, it should not be
allowed to use the same powers if it suspects that he is plotting to
fly airplanes into buildings.
Granting direct subpoena authority to the FBI for terrorism cases
first was proposed by the President last year, near the time of the
second anniversary of the September 11 attacks. There is one criticism
of the President's proposal that was made at that time that I believe
needs to be addressed. The New York Times, in a September 14 story,
described unnamed ``opponents'' as denouncing the proposal for
``allow[ing] federal agents to issue subpoenas without the approval of
a judge or grand jury.''
This criticism reflects a misunderstanding of grand-jury subpoenas.
The anonymous opponents of the President's proposal appear to be under
the impression that the grand jury itself issues a grand-jury subpoena.
This is not the case. Instead, a grand-jury subpoena is issued by an
individual federal prosecutor, without any prior involvement by a judge
or grand jury. As the U.S. Court of Appeals for the District of
Columbia has noted, ``[i]t is important to realize that a grand jury
subpoena gets its name from the intended use of the . . . evidence, not
from the source of its issuance.'' Doe v. DiGenova, 779 F.2d at 80 n.
11 (1985).
Like the grand-jury subpoenas currently used to investigate potential
crimes of terrorism, JET subpoenas also would be issued directly by
investigators, without pre-approval from a court. It is thus important
to keep in mind that a subpoena is merely a request for information--a
request that cannot be enforced until its reasonableness has been
reviewed by a federal judge. As Mr. Wray noted on behalf of the Justice
Department in his answers to Senator Biden's questions:
The FBI could not unilaterally enforce an administrative
subpoena issued in a terrorism investigation. As with any
other type of subpoena, the recipient of an administrative
subpoena issued in a terrorism investigation would be able to
challenge that subpoena by filing a motion to quash in the
United States District Court for the district in which that
person or entity does business or resides. If the court
denied the motion to quash, the subpoena recipient could
still refuse to comply. The government would then be required
to seek another court order compelling compliance with the
subpoena.
This system guarantees protection for civil liberties. The courts
take very seriously their role in reviewing subpoena-enforcement
requests. As the Third Circuit has emphasized, ``the district court's
role is not that of a mere rubber stamp, but of an independent
reviewing authority called upon to insure the integrity of the
proceeding.'' Wearly v. FTC, 616 F.2d at 665 (1980). The prospect of
judicial oversight also inevitably restrains even the initial actions
of executive agents. As the Public Law 106-544 Report notes, ``an
agency must consider the strictures of [a motion to quash or a
challenge to an enforcement order] before issuing an administrative
subpoena.'' And finally, the system of separated authority to issue and
review subpoenas has itself been recognized to guard civil liberties.
The federal courts have found that ``[b]ifurcation of the power, on the
one hand of the agency to issue subpoenas and on the other hand of the
courts to enforce them, is an inherent protection against abuse of
subpoena power.'' United States v. Security State Bank and Trust, 473
F.2d at 641 (5th Cir. 1973).
The administrative subpoena is a well-established investigative tool
with built-in protections for civil liberties. Its use in antiterrorism
investigations should not pose a threat to individual freedom.
Finally, although the constitutionality of a tool so frequently used
for so long might safely be assumed, it nevertheless merits describing
exactly why subpoena power is consistent with the Fourth Amendment. A
thorough explanation recently was provided by Judge Paul Niemeyer of
the U.S. Court of Appeals for the Fourth Circuit. As Judge Niemeyer
noted, the use a subpoena does not require a showing of probable cause
because a subpoena is not a warrant--it does not authorize an immediate
physical intrusion of someone's premises in order to conduct a search.
Rather, subpoenas are subject only to the Fourth Amendment's general
reasonableness requirement--and they are reasonable in large part
because of the continuous judicial oversight of their enforcement. As
Judge Niemeyer stated in his opinion for the court in In re Subpoena
Duces Tecum, 228 F.3d at 347-49 (2000) (citations omitted):
While the Fourth Amendment protects people ``against
unreasonable searches and seizures,'' it imposes a probable
cause requirement only on the issuance of warrants. U.S.
Const. amend. IV (``and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,'' etc.).
Thus, unless subpoenas are warrants, they are limited by the
general reasonableness standard of the Fourth Amendment
(protecting the people against ``unreasonable searches and
seizures''), not by the probable cause requirement.
``A warrant is a judicial authorization to a law
enforcement officer to search or seize persons or things. To
preserve advantages of speed and surprise, the order is
issued without prior notice and is executed, often by force,
with an unannounced and unanticipated physical intrusion.
Because this intrusion is both an immediate and substantial
invasion of privacy, a warrant may be issued only by a
judicial officer upon a demonstration of probable cause--the
safeguard required by the Fourth Amendment. See U.S. Const.
amend. IV (``no Warrants shall issue, but upon probable
cause''). The demonstration of probable cause to a neutral
judicial officer places a checkpoint between the Government
and the citizen where there otherwise would be no judicial
supervision.
``A subpoena, on the other hand, commences an adversary
process during which the person served with the subpoena may
challenge it in court before complying with its demands. As
judicial process is afforded before any intrusion occurs, the
proposed intrusion is regulated by, and its justification
derives from, that process.
``If [the appellant in this case] were correct in his
assertion that investigative subpoenas may be issued only
upon probable cause, the result would be the virtual end to
any investigatory efforts by governmental agencies, as well
as grand juries. This is because the object of many such
investigations--to determine whether probable cause exists to
prosecute a violation--would become a condition precedent for
undertaking the investigation. This unacceptable paradox was
noted explicitly in the grand jury context in United States
v. R. Enterprises, Inc., where the Supreme Court stated:
``[T]he Government cannot be required to justify the
issuance of a grand jury subpoena by presenting evidence
sufficient to establish probable cause because the very
purpose of requesting the information is to ascertain whether
probable cause exists.''
The U.S. Supreme Court first upheld the constitutionality of subpoena
authority in 1911. United States v. Wilson, 31 S.Ct. at 542, concluded
that ``there is no unreasonable search and seizure when a writ,
suitably specific and properly limited in scope, calls for the
production of documents which . . . the party procuring [the writ's]
issuance is entitled to have produced.''
The Wilson Court also noted that the subpoena power has deep roots in
the common-law tradition roots--that stretch at least to Elizabethan
times:
``no doubt can be entertained that there must have been
some process similar to the subpoena duces tecum to compel
the production of documents, not only before [the] time [of
Charles the Second], but even before the statute of the 5th
of Elizabeth. Prior to that statute, there must have been a
power in the Crown (for it would have been utterly impossible
to carry on the administration of justice without such power)
to require the attendance in courts of justice of persons
capable of giving evidence, and the production of documents
material to the cause, though in the possession of a
stranger.''
The Supreme Court also has explicitly approved the use of subpoenas
by executive agencies. In Oklahoma Press Pub. Co. v. Walling, 66 S.Ct.
494 (1946), the Court found that the investigative role of an executive
official in issuing a subpoena ``is essentially the same as the grand
jury's, or the court's in issuing other pretrial orders for the
discovery of evidence.'' Nearly fifty years ago, the U.S. Supreme Court
in Walling was able to conclude that
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Fourth Amendment objections to the use of subpoenas by executive
agencies merely ``raise[] the ghost of controversy long since settled
adversely to [that] claim.''
Because granting direct subpoena authority to antiterror
investigators would aid them in their important work, and would neither
intrude upon civil liberties nor conflict with the Constitution, I
propose the following bill, which would authorize judicially
enforceable terrorism subpoenas.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2555
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Judicially Enforceable
Terrorism Subpoenas Act of 2004''.
SEC. 2. ADMINISTRATIVE SUBPOENAS IN TERRORISM INVESTIGATIONS.
(a) In General.--Chapter 113B of title 18, United States
Code, is amended by inserting after section 2332f the
following:
``Sec. 2332g. Judicially enforceable terrorism subpoenas
``(a) Authorization of Use.--
``(1) In general.--In any investigation concerning a
Federal crime of terrorism (as defined under section
2332b(g)(5)), the Attorney General may issue in writing and
cause to be served a subpoena requiring the production of any
records or other materials that the Attorney General finds
relevant to the investigation, or requiring testimony by the
custodian of the materials to be produced concerning the
production and authenticity of those materials.
``(2) Contents.--A subpoena issued under paragraph (1)
shall describe the records or items required to be produced
and prescribe a return date within a reasonable period of
time within which the records or items can be assembled and
made available.
``(3) Attendance of witnesses and production of records.--
``(A) In general.--The attendance of witnesses and the
production of records may be required from any place in any
State, or in any territory or other place subject to the
jurisdiction of the United States at any designated place of
hearing.
``(B) Limitation.--A witness shall not be required to
appear at any hearing more than 500 miles distant from the
place where he was served with a subpoena.
``(C) Reimbursement.--Witnesses summoned under this section
shall be paid the same fees and mileage that are paid to
witnesses in the courts of the United States.
``(b) Service.--
``(1) In general.--A subpoena issued under this section may
be served by any person designated in the subpoena as the
agent of service.
``(2) Service of subpoena.--
``(A) Natural person.--Service of a subpoena upon a natural
person may be made by personal delivery of the subpoena to
that person, or by certified mail with return receipt
requested.
``(B) Business entities and associations.--Service of a
subpoena may be made upon a domestic or foreign corporation,
or upon a partnership or other unincorporated association
that is subject to suit under a common name, by delivering
the subpoena to an officer, to a managing or general agent,
or to any other agent authorized by appointment or by law to
receive service of process.
``(C) Proof of service.--The affidavit of the person
serving the subpoena entered by that person on a true copy
thereof shall be sufficient proof of service.
``(c) Enforcement.--
``(1) In general.--In the case of the contumacy by, or
refusal to obey a subpoena issued to, any person, the
Attorney General may invoke the aid of any court of the
United States within the jurisdiction of which the
investigation is carried on, or the subpoenaed person
resides, carries on business, or may be found, to compel
compliance with the subpoena.
``(2) Order.--A court of the United States described under
paragraph (1) may issue an order requiring the subpoenaed
person, in accordance with the subpoena, to appear, to
produce records, or to give testimony touching the matter
under investigation. Any failure to obey the order of the
court may be punished by the court as contempt thereof.
``(3) Service of process.--Any process under this
subsection may be served in any judicial district in which
the person may be found.
``(d) Nondisclosure requirement.--
``(1) In general.--If the Attorney General certifies that
otherwise there may result a danger to the national security
of the United States, 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.
``(2) Notice of nondisclosure requirement.--The subpoena,
or an officer, employee, or agency of the United States in
writing, shall notify the person to whom the subpoena is
directed of the nondisclosure requirements under paragraph
(1).
``(3) Further applicability of nondisclosure
requirements.--Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on
disclosure under paragraph (1).
``(4) Enforcement of nondisclosure requirement.--Whoever
knowingly violates paragraphs (1) or (3) shall be imprisoned
for not more than 1 year, and if the violation is committed
with the intent to obstruct an investigation or judicial
proceeding, shall be imprisoned for not more than 5 years.
``(5) Termination of nondisclosure requirement.--If the
Attorney General concludes that a nondisclosure requirement
no longer is justified by a danger to the national security
of the United States, an officer, employee, or agency of the
United States shall notify the relevant person that the
prohibition of disclosure is no longer applicable.
``(e) Judicial Review.--
``(1) In general.--At any time before the return date
specified in a summons issued under this section, 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.
``(2) Modification of nondisclosure requirement.--Any court
described under paragraph (1) may modify or set aside a
nondisclosure requirement imposed under subsection (d) at the
request of a person to whom a subpoena has been directed,
unless there is reason to believe that the nondisclosure
requirement is justified because otherwise there may result a
danger to the national security of the United States.
``(3) Review of government submissions.--In all proceedings
under this subsection, the court shall review the submission
of the Federal Government, which may include classified
information, ex parte and in camera.
``(f) Immunity From Civil Liability.--Any person, including
officers, agents, and employees of a non-natural person, 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.
``(g) Guidelines.--The Attorney General shall, by rule,
establish such guidelines as are necessary to ensure the
effective implementation of this section.''.
(b) Amendment to Table of Sections.--The table of sections
of chapter 113B of title 18, United States Code, is amended
by inserting after the item relating to section 2332f the
following:
``2332g. Judicially enforceable terrorism subpoenas.''.
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