When a proposal surfaced last week to give the FBI administrative subpoenas in intelligence investigations, it set in motion a well-rehearsed order of battle.
Civil libertarians immediately denounced the expansion of power, which would enable the FBI, in secret and without prior judicial approval, to obtain personal information on anyone. The Justice Department insisted that the authority was necessary for war on terror, and justified it by citing the widespread availability of administrative subpoenas in other areas like drug investigations and health care fraud. Both sides, however, are overlooking the proposal’s true potential.
Few dispute that, in national security cases, the FBI sometimes needs access to personal information held by third parties, such as banks, telecommunications providers and credit bureaus. Criminal investigative tools, which are designed for an open, adversarial environment, aren’t up to the task of collecting intelligence on spies and terrorists, since the government can’t risk either alerting the subjects of the investigation or revealing the sensitive sources that identified them.
The FBI, therefore, needs the ability to collect information secretly. But how, absent overt checks and balances, do we ensure that the FBI doesn’t abuse the nebulous cause of “national security” to abridge constitutional rights or harass political dissidents?
Today, the FBI can send a “national security letter” to the custodian of relevant data. Although the law limits the kind of information subject to this authority, the judgment as to whether the legal standard has been met is entirely that of the FBI official — no judge is ever involved. The recipient of such a letter is required to comply, is bound to secrecy, and has no clear recourse to any court.
The FBI’s other option is to seek an order from the Foreign Intelligence Surveillance Court under the infamous Section 215 of the Patriot Act. However, the language of the act limits the ability of that court to question the government’s application. For civil libertarians, the problem with both options is that there is no effective way to discover or challenge abuses.
The administrative subpoena represents a real improvement here. It lets the FBI obtain all relevant information, but is not self-enforcing. An uncomfortable recipient can file a challenge in any federal court, or can wait for the FBI to file an enforcement action. Either way, judicial review is assured. Although the ensuing litigation would be subject to secrecy provisions, those are not dissimilar to existing laws governing the use of classified information in court. If the government moves the case to the Foreign Intelligence Surveillance Court, it remains adversarial (unlike all other proceedings in that court). Most importantly, the proposal invokes a well-established body of law addressing the use of administrative subpoenas in other contexts. The reviewing court could look to decisions of the Supreme Court, and dozens of lower courts, that have crafted principles to prevent the abuse of authority.
Civil libertarians, therefore, ought to embrace the administrative subpoena option as a means to institutionalize judicial oversight. Rather than arguing about the scope of the FBI’s authority, they should instead focus on ensuring that the proposed administrative subpoena power replaces, rather than supplements, the existing authorities. They might also push for secrecy provisions that are more challenge-friendly (perhaps some that vest more discretion in the reviewing court, or weaken the presumption for non-disclosure). Through legal challenges they could then address perceived abuses, and help create a body of law that defines the boundaries around constitutionally sensitive information.
Library records or any special category of information could be evaluated and protected as the need arises, in a manner appropriate to the circumstances of the day and subject to ongoing adjustment.
The government ought to go along with this, and let what would then be the redundant national security letters and Section 215 disappear. The FBI could obtain by administrative subpoena any information that it can get under the current law, so there is no operational downside.
The government should acknowledge that the most effective national security tools are ones that incorporate clear protections, and are accepted as doing so by communities outside the intelligence establishment. In this way, the FBI could gain a flexible and effective tool that avoids the fate of Section 215, which so inflamed librarians and others that they defiantly shredded records rather than expose them to the remote possibility of compelled production.
The current debate over the reauthorization of the Patriot Act often presumes a tradeoff between national security and protection of privacy. Here, Congress has a rare opportunity to enact a provision that enhances both.
Michael J. Woods is an executive at MZM Inc. and a former FBI attorney.
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