Posted by Orin Kerr:
The Case for and Against Administrative Subpoenas:
http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118344107
Michael Woods, a very smart lawyer who was at the FBI when I was at
DOJ, makes the case for giving the FBI administrative subpoena power
in terrorism cases in [1]this op-ed today in the Washington Times.
It's by far the best argument I have seen, but I'm still not
convinced. I prefer the current solution offfered in part by Section
215: require agents to get a court order, even under a low threshold.
I would then allow the same sort of judicial review as you would allow
for a subpoena.
The reason I would require a court order isn't that I think judicial
review under a relevance standard puts up such a strong barrier. It
doesn't. Rather, getting FISA court approval is helpful because only
DOJ can go to the FISA court and apply for a Section 215 order. To get
the court order, the FBI has to clear the application through another
part of the executive branch, namely DOJ's Office of Intelligence
Policy Review.
To an outsider, this may not seem like a big deal. After all,
technically it's one part of DOJ asking for permission from another
part. But in practice, it creates a significant common-sense check on
the FBI's power. DOJ can not only ensure that the application meets
the legal threshold, it can also ask about the overall course of the
investigation and ensure that the request for information is
appropriate as a matter of judgment. That check is missing under the
administrative subpoena standard.
Finally, I can't help but speculate on much of the push for
administrative subpoena power has been eased by the overreaction to
Section 215, the so-called library records provision of the Patriot
Act. By singling out Section 215 as a target, critics of the Patriot
Act made it seem sui generis. As a tactical matter, this let the FBI
say that it was willing to eliminate the power in favor of the
subpoena power instead. As best I can tell, the fact that the subpoena
power is greater than the Section 215 power has been more or less lost
in the shuffle, as the subpoena power is more familiar and harder to
hype than Section 215. If I'm right about that, it may turn out that
the Section 215 hype will end up helping to further the scope of
government power rather than limit it.
References
1. http://washingtontimes.com/op-ed/20050608-093551-3061r.htm
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