As resistance rises to the Patriot Act and its progeny — in Congress, among some judges, and in citizens in 159 towns and cities across the country — Attorney General John Ashcroft has been the focus of this disquiet. But on September 10, at the FBI Training Academy in Quantico, Virginia, President Bush himself, going beyond the Patriot Act, urged that federal agencies be allowed to issue “administrative subpoenas” in terrorism investigations — without approval from judges or grand juries.
For more than two years, the attorney general and other government officials have assured us that all measures taken to investigate possible links to terrorist activity would have to be approved by a judge — and that includes the Foreign Intelligence Surveillance Court, which issues subpoenas and warrants using lower standards than in the Fourth Amendment to the Bill of Rights.
Administrative subpoenas have been issued before, but only under narrow, specific grounds in cases — as the president noted — such as health-care frauds. But under the bill introduced in the House by Florida Republican Rep. Tom Feeney (HR 3037, the “Antiterrorism Tools Enhancement Act of 2003”), these nonjudicial subpoenas would be unprecedentedly wide-ranging, regarding, as the bill states, “information or purported information concerning a federal crime of terrorism.”
Until now, with some judicial supervision, this authority has included the FBI’s comparing the titles of library books with the names of people, including citizens, who have borrowed them, as well as to those people who have been giving “material support” — loosely defined — to organizations on a government terrorist list.
But these proposed nonjudicial administrative subpoenas can demand all sorts of personal records — including medical and travel records, DNA, e-mails, and data on your computer. The records can be obtained from a third party (an office or institution), or you have to appear before a government agency in order to defend them. If they come from a third party, you may never know how much the government knows about you.
Moreover, the proposed law contains a gag rule. With narrow exceptions, the law states that if the attorney general “certifies that otherwise there may result a danger to the national security, no person shall disclose to any other person that a subpoena was received or records were provided pursuant to this section.” Obviously, this radical invasion of what’s left of individual privacy is being done in the name of national security, so the gag rule kicks in.
Should the subpoena later be challenged in court, that judicial review would also be conducted in secret. And while a judge might decide to permit a person who has been subpoenaed to disclose that unnerving fact, the ability for the person to say he or she has been subpoenaed may also be prevented, says the bill, if “there may result a danger to national security.”
Having covered criminal investigations as a reporter, I know that if a subpoena is needed immediately, a judge can be reached quickly, especially in this technological age. Judges have home telephones, e-mail addresses, faxes, pagers, cell phones and some even have palm computers to further access information.
Revealingly, when answering criticism that (despite such access to judges) the government still wants to bypass judges, Justice Department spokesman Mark Corallo presented a hypothetical drama to The New York Times’ first-rate legal reporter Eric Lichtblau. The FBI gets a tip in the middle of the night that an unidentified terrorist has gone to Boston. Under the new Bush-supported bill, as Lichtblau reported on Sept. 14:
“The FBI, rather than waiting for a judicial order, could subpoena all the Boston hotels to get registries for each of their guests, then run those names against a terrorist database for a match.”
But under this dragnet search, a name can be matched against an inaccurate entry — and there have been more than a few — and put in a government terrorist database. And that person, who could easily be an innocent American citizen, may find that, instead of boarding the next plane, they are being interrogated by the FBI.
With members of Congress hearing more and more from their constituents that the government has gone too far in revising individual liberties in the Constitution, I tend to believe that federal lawmakers are going to look very hard at these administrative subpoenas. Even Pennsylvania Republican Sen. Arlen Specter, who supports the president’s call to expand federal death penalties for suspects with links, however indirect, to terrorism deaths, says that these omnivorous subpoenas “may be too sweeping.” Mr. Specter wants to hold hearings.
And, Mr. President, he won’t be alone.