Posted by Orin Kerr:
Should the FBI Have Administrative Subpoena Authority?:
http://volokh.com/archives/archive_2005_05_15-2005_05_21.shtml#1116609947
Yesterday's [1]papers reported that Senator Roberts of the Senate
Intelligence Committee has a bill in the works that would give the FBI
the administrative subpoena authority it has been seeking in terrorism
cases. So you're wondering: what's administrative subpoena authority?
And should the FBI have it? I wanted to offer a few thoughts to shed
light on the first question and frame the second. (Warning: long and
inconclusive post ahead.)
First, some background, taken from [2]my recent testimony on the
Patriot Act. At the most basic level, any modern legal regime that
allows the government to investigate crime or terrorism must address a
number of basic methods for acquiring information. In particular, the
law must cover three basic types of authorities:
1) Authority to conduct physical searches to retrieve physical
evidence or collect
information.
2) Authority to compel third parties to produce physical evidence
or disclose information.
3) Authority to conduct real-time monitoring over communications
networks.
In the case of criminal investigations, the legal regime that covers
these authorities is well established. The first authority is governed
by the traditional Fourth Amendment warrant requirement. The police
must have a search warrant based on probable cause to enter a home or
business unless a person with apparent or actual authority over the
place consents, exigent circumstances exist, or another exception to
the warrant requirement applies.
The second authority is governed by the Fourth Amendment rules
governing subpoenas. A subpoena is an order to compel: it requires the
recipient to either report to testify or to disclose physical evifence
at a particular time and place. Although many different types of
subpoenas exist, the basic idea is that the subpoena authority is
vested in some body, whether in the grand jury (which is really run by
prosecutors, but at least in theory is just a groups of citizens) or a
government agency. A subpoena can be issued under a wide range of
circumstances: the information need only be relevant to the
government�s investigation, and compliance with the subpoena cannot be
overly burdensome to the subpoena recipient. No judge is consulted
before the subpoena is issued; instead, the recipient of the subpoena
can challenge it in court before complying.
So much for the regime applicable in criminal cases. What about the
law for intelligence investigations? In these cases, the government is
not trying to deter and punish crime, but rather to collect
intelligence ifnromation about threats to the Nation so it can defend
itself. The law governing monitoring for intelligence purposes is
somewhat different than the law governing evidence collection for
criminal cases. The Fourth Amendment�s requirements are much less
clear � and generally less strong � than in the routine criminal
context. As a general matter, the few courts that have confronted how
the Fourth Amendment applies to intelligence collection have
held that the rules are somewhat similar to the rules for criminal
investigations but also more flexible. When the Fourth Amendment
applies, information and evidence collection must be reasonable in
light of the countervailing demands and interest of intelligence
collection. See United States v. United States District Court, 407
U.S. 297, 323-24 (1972); In re Sealed Case, 310 F.3d 717, 745-46
(Foreign Int. Surv. Ct. Rev. 2002). This legal framework appears to
place Congress in the primary role of generating the law governing
intelligence collection, with the Fourth Amendment serving as a
backstop that reviews Congress�s approach to ensure that it is
constitutionally
reasonable.
Congress has responded to the challenge by passing the Foreign
Intelligence Surveillance Act, also known as �FISA.� FISA attempts to
create a statutory regime for intelligence monitoring that largely
parallels analogous rules for gathering evidence in criminal cases.
First, 18 U.S.C. §§ 1821-29 covers the authority to conduct physical
searches, a parallel to the provision of the Federal Rules of Criminal
Procedure that allows investigators to obtain a search warrant in
criminal cases. Second, 18 U.S.C. §§ 1861-62 and 18 U.S.C. § 2709
covers authority to compel third-parties to disclose records and
physical evidence, a parallel to the provision of the Federal Rules of
Criminal Procedure that allows the issuance of subpoenas in criminal
investigations.
Okay, enough background. The debates over the FISA-related
provisions of the Patriot Act -- and the current debate on whether the
FBI should have administrative subpoena authority -- focus primarily
on the second type of authority: powers to compel third parties to
produce physical evidence or disclose information. For the most part,
such powers to compel are used to obtain business records from third
parties, like the phone company, banks, Internet service providers,
and the like that have records relating to what the suspect has been
up to recently. (It generally doesn't work to serve an order to compel
on a suspect directly, as that tips off the suspect to the
surveillance and raises Fifth Amendment privilege issues.)
Specifically, critics object to the weak privacy regulations found in
provisions such as Section 215 of the Patriot Act that address the
government�s power to compel third parties to produce physical
evidence or disclose information in intelligence cases. And they
object to vesting the power to issue such orders in an agency like the
FBI. The general concern is that these orders to compel give the
government too much power, as they allow the government to issue an
order without getting careful judicial review of the order beforehand.
So what standard should apply? The difficult part about this
question is finding the right frame of reference. If your frame of
reference is the grand jury subpoena power in the criminal context,
then giving the FBI administrative subpoena power probably doesn't
seem so objectionable -- it raises some concerns, but isn't entirely
objectionable. The reason is that the grand jury subpoena power is
already tremendously broad. The Supreme Court has held that a grand
jury subpoena can be issued if the order to compel seeks information
that may be relevant to a criminal investigation. See United States v.
R. Enterprises, Inc., 498 U.S. 292 (1991). This authority �paints with
a broad brush� by design, permitting subpoenas to be issued ordering
third parties to disclose physical evidence and information �merely on
suspicion that the law is being violated, or even just because . . .
assurance [is sought] that it is not.� Id. at 297 (quoting United
States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). The Court
has justified this low standard on the ground that orders to compel
evidence from third parties are preliminary investigative tools
designed to determine if more invasive forms of surveillance are
necessary. "[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." See R.
Enterprises, Inc., 498 U.S. at 297.
The question is, should the government have an analogous power in
intelligence investigations, and if so, what is exactly is the
intelligence analogy to traditional criminal grand jury subpoena
authority? On one hand, it makes some sense to give the government
that power: if the government has long had the power to issue
subpoenas in minor crime cases, it seems a bit strange that they don't
have this same power in terrorism cases. In that sense, giving the FBI
administrative subpoena power simply recognizes the historically
contingent limitations on the grand jury power. At the same time, it's
not clear that FBI administrative subpoena power would really be
analogous to the grand jury power. If an FBI agent wants a subpoena,
he still needs to go to a prosecutor; the proseuctor issues the
subpoena in the name of the grand jury. This introduces one important
check on the system, as the investigative agency cannot issue the
grand jury subpoena itself. If you want the FBI to be tempered in its
efforts by the check of another agency, administrative subpoena
authority can seem troublesome.
But once again, this depends on your frame of reference. More civil
libertarian readers will object to the subpoena power, and argue that
we should judge orders to compel evidence (category #2) based on the
legal standards that traditionally govern orders to conduct direct
searches (category #1). There are reasons why the law regulates
category #2 less strongly than category #1 -- Judge Friendly had the
classic explanation in a case called United States v. Horowitz, and
lawprof Bill Stuntz has doen a lot of great work on this area -- but
many will find these arguments unpersuasive and want orders to compel
to follow the traditional warrant requirement. The subpoena power will
seem like an end-run around the usual protections. At the same time,
other readers may take the opposite frame of reference, and note that
many agencies have had administrative subpoena power already, as
detailed in this [3]very good report from the Congressional Research
Service. If lots of agencies have this power already, they'll reason,
why not give it to the FBI for the most important of investigations?
As this inconclusive post suggests, I'm not sure of where I come out
on the bottom line. On one hand, I do think that the regime of
intelligence investigation needs some kind of subpoena equivalent. All
successful regimes of evidence collection rely on a mix of
low-threshold investigatory steps and higher-threshold investigatory
steps; the idea is that investigators should be able to do the
less-invasive low-threshold investigatory steps to get evidence to be
able to rule out or reaffirm the need to conduct more-invasive
higher-threshold investigatory steps. I don't see why intelligence
investigations are different on that score. At the same time, I'm not
sure that giving the FBI administrative subpoena authority is the way
to go. While a number of agencies have such power, they tend to have
more limited scope. My initial sense is that there must be ways of
increasing oversight beyond that of administrative subpoenas without
interfering with their effectiveness as investigative tools. I hope
Congress takes a hard look at them before giving the FBI
administrative subpoena authority.
Hat tip: [4]Phil Carter, who also has thoughts on this.
References
1. http://www.nytimes.com/2005/05/19/politics/19terror.html
2. http://intelligence.senate.gov/0504hrg/050419/kerr.pdf
3. http://www.fas.org/sgp/crs/natsec/RS22122.pdf
4.
http://www.intel-dump.com/archives/archive_2005_05_15-2005_05_21.shtml#1116507916
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