Congressional Record: June 7, 2005 (Senate)
Page S6147-S6149
ADMINISTRATIVE SUBPOENAS AND PATRIOT ACT REAUTHORIZATION
Mr. KYL. Mr. President, I understand that the senior Senator from
Oregon, Mr. Wyden, spoke yesterday regarding the reauthorization of the
USA PATRIOT Act. I look forward to the Senate acting later this year on
PATRIOT Act reauthorization, but today I just want to address one
aspect of the Senator's speech, his opposition to administrative
subpoena power.
In his speech, the Senator argued that any reauthorization should not
extend those subpoena powers to FBI terrorism investigators. He
correctly noted that Intelligence Committee Chairman Roberts has held
hearings about extending this authority, which is common within the
Government, to FBI agents investigating terrorism. I was happy to see
Chairman Roberts do this because last year I cosponsored S. 2555, the
Judicially Enforceable Terrorism Subpoenas Act. On June 22, 2004, I
chaired a hearing in the Judiciary Subcommittee on Terrorism,
Technology, and Homeland Security that examined this subpoena power and
heard testimony regarding how the subpoenas work and how the government
protects civil liberties when using them.
One of the things that struck me as I learned about administrative
subpoena power was how widespread it is in our Government and how
unremarkable a law enforcement tool it really is. It was for that
reason that I asked the Senate Republican Policy Committee, which I
chair, to examine this issue in greater detail, to study the
constitutional and civil liberties questions that critics have raised,
and to identify the other contexts where the Federal Government has
this power. The resulting report was consistent with my previous
research and the testimony that I had heard during my subcommittee
hearings. We give this subpoena power to postal investigators and Small
Business Administration bank loan auditors and IRS agents, and we do
not have a problem with Government abuse or deprivation of civil
liberties. Shouldn't we also give it to those who are charged with
rooting out terrorism before it strikes our neighborhoods?
I look forward to the upcoming debate on PATRIOT Act reauthorization,
and I certainly intend to support it. At the same time, I commend
Chairman Roberts for his efforts and hope that we will have the
opportunity to ensure that our FBI terrorism investigators are not
hamstrung as they continue to work to protect our Nation.
I ask unanimous consent that this policy paper, dated September 9,
2004, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Should Postal Inspectors Have More Power Than Federal Terrorism
Investigators?
Introduction
Congress is undermining federal terrorism investigations by
failing to provide terrorism investigators the tools that are
commonly available to others who enforce the law. In
particular, in the three years after September 11th, Congress
has not updated the law to provide terrorism investigators
with administrative subpoena authority. Such authority is a
perfectly constitutional and efficient means to gather
information about terrorist suspects and their activities
from third parties without necessarily alerting the suspects
to the investigation. Congress has granted this authority to
government investigators in hundreds of other contexts, few
of which are as compelling or life-threatening as the war on
terror. These include investigations relating to everything
from tax or Medicare fraud to labor-law violations to Small
Business Administration inquiries into financial crimes.
Indeed, Congress has even granted administrative subpoena
authority to postal inspectors, but not to terrorism
investigators.
This deficiency in the law must be corrected immediately.
Postal inspectors and bank loan auditors should not have
stronger tools to investigate the criminal acts in their
jurisdictions than do those who investigate terrorist acts.
The Senate can remedy this deficiency by passing legislation
like the Judicially Enforceable Terrorism Subpoenas (JETS)
Act, S. 2555. The JETS Act would update the law so that the
FBI has the authority to issue administrative subpoenas to
investigate possible terrorist cells before they attack the
innocent. The Act would ensure more efficient and speedy
investigations, while also guaranteeing that criminal
suspects will have the same civil liberties protections that
they do under current law.
Terrorism Investigators' Subpoena Authority is Too Limited
Federal investigators routinely need third-party
information when attempting to unravel a criminal enterprise.
In the context of a terrorism investigation, that information
could include: financial transaction records that show the
flow of terrorist financing; telephone records that could
identify other terrorist conspirators; or retail sales
receipts or credit card statements that could help
investigators uncover the plot at hand and capture the
suspects. When third parties holding that information decline
to cooperate, some form of subpoena demanding the information
be conveyed must be issued. The Supreme Court unanimously has
approved the use of subpoenas to gather information,
recognizing that they are necessary and wholly constitutional
tools in law enforcement investigations that do not offend
any protected civil liberties. [See unanimous decision
written by Justice Thurgood Marshall in SEC v. Jerry T.
O'Brien, Inc., 467 U.S. 735 (1984).]
There are different kinds of subpoenas, however, and under
current law, the only way that a terrorism investigator
(typically, the FBI) can obtain that third-party information
is through a ``grand jury subpoena.'' If a grand jury has
been convened, investigators can usually obtain a grand jury
subpoena and get the information they need, but that process
takes time and is dependent on a number of factors. First,
investigators themselves cannot issue grand jury subpoenas;
instead, they must involve an assistant U.S. Attorney so that
he or she can issue the subpoena. This process can be
cumbersome, however, because assistant U.S. Attorneys are
burdened with their prosecutorial caseloads and are not
always immediately available when the investigators need the
subpoena. Second, a grand jury subpoena is limited by the
schedule of a grand jury itself, because the grand jury must
be ``sitting'' on the day that the subpoena demands that the
items or documents be returned. Grand juries do not sit at
all times; indeed, in smaller jurisdictions, the only
impaneled grand jury may meet as little as ``one to five
consecutive days per month.'' [See United States Dept of
Justice, Federal Grand Jury Practice, at Sec. 1.6 (2000 ed.).
For example, in Madison, Wisc., the federal grand jury only
meets a few days every three weeks. See Clerk of the Court
for the Western District of Wisconsin, ``Grand Jury
Service,'' revised April 15, 2004.]
The following hypothetical illustrates the deficiency of
current law. Take the fact that Timothy McVeigh built the
bomb that destroyed the Oklahoma City Federal Building while
he was in Kansas; and take the fact that under current
practices, grand juries often are not sitting for 10-day
stretches in that state. If FBI agents had been tracking
McVeigh at that time and wanted information from non-
cooperative third parties--perhaps the supplier of materials
used in the bomb--those agents would have been unable to move
quickly if forced to rely on grand jury subpoenas. McVeigh
could have continued his bomb-building activities, and the
FBI would have been powerless to gather that third-party
information until the grand jury returned--as many as 10 days
later. [Information on Kansas federal grand jury schedules
provided to Senate Republican Policy Committee by Department
of Justice. In addition, Department of Justice officials have
testified to another scenario: even where grand juries meet
more often (such as in New York City), an investigator
realizing she urgently needs third-party information on
Friday afternoon still could not get that information until
Monday, because the grand jury would have gone home for the
weekend. See Testimony of Principal Deputy Assistant Attorney
General Rachel Brand before the Senate Judiciary Subcommittee
on Terrorism, Technology and Homeland Security on June 22,
2004.]
The current dependence on the availability of an assistant
U.S. Attorney and the schedule of a grand jury means that if
time is of the essence--as is often the case in terrorism
[[Page S6148]]
investigations--federal investigators, lacking the necessary
authority, could see a trail turn cold.
The Better Alternative: Administrative Subpoena Authority
The deficiency of grand jury subpoenas described above can
be remedied if Congress provides ``administrative subpoena''
authority for specific terrorism-related contexts. Congress
has authorized administrative subpoenas in no fewer than 335
different areas of federal law, as discussed below. [See U.S.
Department of Justice, Office of Legal Policy, Report to
Congress on the Use of Administrative Subpoena Authorities by
Executive Branch Agencies and Entities, May 13, 2002, at
p. 5 (hereinafter ``DOJ Report'').] Where administrative
subpoena authority already exists, government officials
can make an independent determination that the records are
needed to aid a pending investigation and then issue and
serve the third party with the subpoena. This authority
allows the federal investigator to obtain information
quickly without being forced to conform to the timing of
grand jury sittings and without requiring the help of an
assistant U.S. Attorney. And, as simply another type of
subpoena, the Supreme Court has made clear that it is
wholly constitutional. [See Jerry T. O'Brien, 467 U.S. at
747-50.]
The advantages of updating this authority are substantial.
The most important advantage is speed: terrorism
investigations can be fast-moving, and terrorist suspects are
trained to move quickly when the FBI is on their trail. The
FBI needs the ability to request third-party information and
obtain it immediately, not when a grand jury convenes.
Moreover, this subpoena power will help with third-party
compliance. As Assistant Attorney General Christopher Wray
stated in testimony before the Senate Judiciary Committee,
``Granting [the] FBI the use of [administrative subpoena
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.'' [Assistant Attorney
General Christopher Wray, in testimony before the Senate
Judiciary Committee, October 21, 2003.] Thus, Congress will
provide protection for a legitimate business owner who is
more than willing to comply with law enforcement, but who
would prefer to do so pursuant to a subpoena rather than
through an informal FBI request.
Constitutional Protections
It is important to note that nothing in the administrative
subpoena process offends constitutionally protected civil
liberties, as has been repeatedly recognized by the federal
courts.
First, the government cannot seek an administrative
subpoena unless the authorized federal investigator has found
the information relevant to an ongoing investigation. [See S.
2555, Sec. 2(a) (proposed 18 U.S.C. Sec. 2332g(a)(1)). The
Attorney General has the authority to delegate this power to
subordinates within the Department of Justice. See 28 U.S.C.
Sec. 510.] The executive branch--whether Republican or
Democrat--carefully monitors its agents to ensure that civil
liberties are being protected and that authorities are not
being abused. [See, for example, Executive Order Establishing
the President's Board on Safeguarding Americans' Civil
Liberties (August 27, 2004), detailing extensive interagency
oversight of civil liberties protections for Americans.]
Second, the administrative subpoena is not self-enforcing.
There is no fine or penalty to the recipient if he refuses to
comply. Thus, if the recipient of an administrative subpoena
believes that the documents or items should not be turned
over, he can file a petition in federal court to quash the
subpoena, or he can simply refuse to comply with the subpoena
and force the government to seek a court order enforcing the
subpoena. And, as one federal court has emphasized, the
district court's ``role is not that of a mere rubber stamp.''
[Wearly v. Federal Trade Comm'n, 616 F.2d 662, 665 (3rd Cir.
1980).] Just as a grand jury subpoena cannot be unreasonable
or oppressive in scope [Federal Grand Jury Practice, at
Sec. 5.40], an administrative subpoena must not overreach by
asking for irrelevant or otherwise-protected information.
The Supreme Court has addressed the standards for enforcing
administrative subpoenas.
In United States v. Powell, the Supreme Court held that an
administrative subpoena will be enforced where (1) the
investigation is ``conducted pursuant to a legitimate
purpose,'' (2) the subpoenaed information ``may be relevant
to that purpose,'' (3) the information sought is not already
in the government's possession, and (4) the requesting
agency's internal procedures have been followed. [379 U.S.
48, 57-58 (1964); see also EEOC v. Shell Oil, 466 U.S. 54, 73
n.26 (1984) (citing Powell in EEOC context and adding that
the request for information cannot be ``too indefinite'' or
made for an ``illegitimate purpose''); Jerry T. O'Brien, 467
U.S. at 747-48 (reaffirming Powell in context of SEC
administrative subpoena).] In addition, the Supreme Court has
stated that the recipient may challenge the subpoena on ``any
appropriate ground'' [Reisman v. Caplin, 375 U.S. 440, 449
(1964)]. which could include a privilege against self-
incrimination, religious freedom, freedom of association,
attorney-client privilege, or other grounds for resisting
subpoenas in the grand jury context. [See cases collected in
Graham Hughes, Administrative Subpoenas and the Grand Jury:
Converging Streams of Civil and Compulsory Process, 47 Vand.
L. Rev. 573, 589 (1994), cited in DOJ Report, at p. 9 n.19.]
This ``bifurcation of 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 Bank and Trust,
473 F.2d 638, 641 (5th Cir. 1973).]
Third, where the authorized agent has not specifically
ordered the administrative subpoena recipient not to disclose
the existence of the subpoena to a third party, the recipient
can notify the relevant individual and that individual may
have the right to block enforcement of the subpoena himself.
[In Jerry T. O'Brien, the Supreme Court noted that a ``target
may seek permissive intervention in an enforcement action
brought by the [Securities & Exchange] Commission against the
subpoena recipient'' or may seek to restrain enforcement of
the administrative subpoena. 467 U.S. at 748.] In many cases
the ``target'' (as opposed to the recipient) will have full
knowledge of the subpoena.
However, this is not always the case; sometimes the
administrative subpoena authority includes a provision
prohibiting the recipient from discussing the subpoena with
anyone other than his or her attorney. Some critics have
argued that federal investigators should not be able to
gather information related to an individual without notifying
that individual, and that every person has an inherent right
to know about those investigations. [See generally Jerry T.
O'Brien, 467 U.S. at 749-50 (rejecting demand that SEC must
notify any potential defendant of existence of pending
administrative subpoena).] But, as the Supreme Court has
held, there is no constitutional requirement that the subject
of an investigation receive notice that the administrative
subpoena has been served on a third party. Justice Thurgood
Marshall wrote for a unanimous Court that a blanket rule
requiring notification to all individuals would set an unwise
standard. [Id. at 749-51. The issue in that case was the
nondisclosure provisions of the administrative subpoena
authority used by the SEC when investigating securities
fraud.] He explained that investigators use administrative
subpoenas to investigate suspicious activities without any
prior government knowledge of who the wrongdoers are, so
requiring notice often would be impossible. [Id. at 749.]
Moreover, granting notice to individuals being investigated
would ``have the effect of laying bare the state of the
[government's] knowledge and intentions midway through
investigations'' and would ``significantly hamper'' law
enforcement. [Id. at 750 n.23.] Providing notice to the
potential target would ``enable an unscrupulous target to
destroy or alter documents, intimidate witnesses,'' or
otherwise obstruct the investigation. [Id. at 750.] The Court
further emphasized that where ``speed in locating and
halting violations of the law is so important,'' it would
be foolhardy to provide notice of the government's
administrative subpoenas. [Id. at 751.]
most government agencies have administrative subpoena authority
Given these extensive constitutional protections, it is
unsurprising that Congress has extended administrative
subpoena authority so widely. Current provisions of federal
law grant this authority to most government departments and
agencies. [DOJ Report, at p. 5. See appendices A-C to DOJ
Report that describe and provide the legal authorization for
each of these administrative subpoena powers.] These
authorities are not restricted to high-profile agencies
conducting life-or-death investigations. To the contrary,
Congress has granted administrative subpoena authority in far
less important contexts. For example, 18 US.C. Sec. 3061
authorizes postal inspectors to issue administrative
subpoenas when investigating any ``criminal matters related
to the Postal Service and the mails.'' One can hardly contend
that federal investigators should be able to issue
administrative subpoenas to investigate Mohammed Atta if they
suspect he broke into a mailbox but should not have the same
authority if they suspect he is plotting to fly airplanes
into buildings.
It is not just postal inspectors who have more powerful
investigative tools than terrorism investigators. Congress
has granted administrative subpoena authorities for a wide
variety of other criminal investigations. A partial list
follows:
Small Business Administration investigations of criminal
activities under the Small Business Investment Act, such as
embezzlement and fraud. [Congress granted administrative
subpoena authority to the Small Business Administration
through section 310 of the Small Business Investment Act of
1958. Delegation to investigators and other officials is
authorized by 15 U.S.C. Sec. 634(b). Relevant criminal
provisions also include the offer of loan or gratuity to bank
examiner (18 U.S.C. Sec. 212), acceptance of a loan or
gratuity by bank examiner (18 U.S.C. Sec. 213), and receipt
of commissions or gifts for procuring loans (18 U.S.C.
Sec. 215).]
Internal Revenue Service investigations of such crimes as
tax evasion. [Congress granted administrative subpoena
authority to the Small Business Administration through
section 310 of the Small Business Investment Act of 1958.
Delegation to investigators and other officials is authorized
by 15 U.S.C. Sec. 634(b). Relevant criminal provisions also
include the offer of loan or gratuity to bank examiner (18
U.S.C. Sec. 212), acceptance of a
[[Page S6149]]
loan or gratuity by bank examiner (18 U.S.C. Sec. 213), and
receipt of commissions or gifts for procuring loans (18
U.S.C. Sec. 215).]
The Bureau of Immigration and Customs Enforcement
investigations of violations of immigration law. [See 8
U.S.C. Sec. 1225(d)(4) (granting administrative subpoena
power to ``any immigration officer'' seeking to enforce the
Immigration and Naturalization Act).]
Federal Communications Commission investigations of
criminal activities, including obscene, harassing, and
wrongful use of telecommunications facilities. [See 47 U.S.C.
409(e) (granting subpoena authority to FCC); 47 U.S.C.
Sec. 155(c)(1) (granting broad delegation power so that
investigators and other officials can issue administrative
subpoenas); 47 U.S.C. Sec. 223 (identifying criminal
provision for use of telecommunications system to
harass).]
Nuclear Regulatory Commission investigations of criminal
activities under the Atomic Energy Act. [See 42 U.S.C.
Sec. 220l(c) (providing subpoena authority to Nuclear
Regulatory Commission); 42 U.S.C. Sec. 2201(n) (empowering
the Commission to delegate authority to General Manager or
``other officers'' of the Commission).]
Department of Labor investigations of criminal activities
under the Employee Retirement Income Security Act (ERISA).
[See 29 U.S.C. Sec. 1134(c) (authorizing administrative
subpoenas); Labor Secretary's Order 1-87 (April 13, 1987)
(allowing for delegation of administrative subpoena authority
to regional directors).]
Criminal investigations under the Export Administration
Act, such as the dissemination or discussion of export-
controlled information to foreign nationals or
representatives of a foreign entity, without first obtaining
approval or license. [See 50 App. U.S.C. Sec. 2411 (granting
administrative subpoena authority for criminal
investigations).]
Corporation of Foreign Security Holders investigations of
criminal activities relating to securities laws. [See 15
U.S.C. Sec. 77t(b) (granting administrative subpoena
authority in pursuit of criminal investigations).]
Department of Justice investigations into health care fraud
[See 18 U.S.C. Sec. 3486(a)(1)(A)(i)(I) (granting
administrative subpoena authority).] and any offense
involving the sexual exploitation or abuse of children. [See
18 U.S.C. Sec. 3486(a) (granting administrative subpoena
authority).]
Moreover, Congress has authorized the use of administrative
subpoenas in a great number of purely civil and regulatory
contexts--where the stakes to the public are even lower than
in the criminal contexts above. Those include enforcement in
major regulatory areas such as securities and antitrust, but
also enforcement for laws such as the Farm Credit Act, the
Shore Protection Act, the Land Remote Sensing Policy Act, and
the Federal Credit Union Act. [DOJ Report, App. A1 & A2.]
Nor are these authorities dormant. The Department of
Justice reports, for example, that federal investigators in
2001 issued more than 2,100 administrative subpoenas in
connection with investigations to combat health care fraud,
arid more than 1,800 administrative subpoenas in child
exploitation investigations. [DOJ Report, at p. 41.] These
authorities are common and pervasive in government--just not
where it arguably counts most, in terrorism investigations.
s. 2555 would update the administrative subpoena authority
S. 2555, the Judicially Enforceable Terrorism Subpoenas Act
of 2004 (the ``JETS Act''), would enable terrorism
investigators to subpoena documents and records in any
investigation concerning a federal crime of terrorism--
whether before or after an incident. As is customary with
administrative subpoena authorities, the recipient of a
JET subpoena could petition a federal district court to
modify or quash the subpoena. Conversely, if the JET
subpoena recipient simply refused to comply, the
Department of Justice would have to petition a federal
district court to enforce the subpoena. In each case,
civil liberties would be respected, just as they are in
the typical administrative subpoena process discussed
above.
The JETS Act also would allow the Department of Justice to
temporarily bar the recipient of an administrative subpoena
from disclosing to anyone other than his lawyer that he has
received it, therefore protecting the integrity of the
investigation. However, the bill imposes certain safeguards
on this non-disclosure provision: disclosure would be
prohibited only if the Attorney General certifies that
``there may result a danger to the national security of the
United States'' if any other person were told of the
subpoena's existence. [S. 2555, Sec. 2(a) (proposed 18 U.S.C.
Sec. 2332g(c)).] Moreover, the JET subpoena recipient would
have the right to go to court to challenge the nondisclosure
order, and the Act would protect the recipient from any civil
liability that might otherwise result from his good-faith
compliance with such a subpoena.
Given the protections for civil liberties built into the
authority and its widespread availability in other contexts,
there is little excuse for failing to extend it to the FBI
agents who are tracking down terrorists among us.
Conclusion
Congress is hamstringing law enforcement in the war on
terror in failing to provide a proven tool--administrative
subpoena authority--for immediate use for the common good.
Federal investigators should have the same tools available to
fight terrorism as do investigators of mail theft, Small
Business Administration loan fraud, income-tax evasion, and
employee-pension violations. S. 2555 provides a means to
update the law and accomplish that worthy goal.
____________________
