Administration Calls for Unprecedented Subpoena Powers

If federal regulators want to check on the companies they regulate, they can order the firms to turn over their records.

These “administrative subpoenas” are commonly used to enforce federal law in areas ranging from banking and stock trades to pharmaceuticals and pollution controls.

Last week, President Bush proposed to make administrative subpoenas a key tool in the war on terrorism -- and not just to obtain records.

The president said Atty. Gen. John Ashcroft should have the legal authority to order any person who might have information that is “relevant ... in any investigation” related to terrorism to submit in secret to being questioned and to turn over “any books, papers, documents or electronic data” that the government seeks.

Unlike in ordinary criminal investigations, Ashcroft would not need the approval of a grand jury or a judge to order witnesses to appear for questioning.

“The attendance of witnesses and the production of records may be required from any place in any state or in any territory or other place subject to the jurisdiction of the United States at any designated place of hearing,” the administration’s bill says.

President Bush unveiled his plan for broader investigative authority at the FBI’s national training academy on the eve of the second anniversary of the terrorist attacks on New York and the Pentagon.

“Under current law, there are unreasonable obstacles to investigating and prosecuting terrorism,” Bush said. “The House and Senate have a responsibility to act quickly on these matters. Untie the hands of our law enforcement officials so they can fight and win the war against terror,” he said to applause.

Administration officials say the new authority is needed so agents can quickly check hotel or bank records when they are pursuing a terrorist.

“Suppose we find out that a terrorist has gone to a chemical plant and made a purchase. And it’s a Saturday afternoon, and there’s no grand jury sitting. You need to move quickly because lives could be at stake. Any reasonable person would say that kind of authority should be available in the fight against terrorism,” said Mark Corallo, a spokesman for the Justice Department.

Most hotels or banks -- or in this example, the chemical plant -- are glad to turn over the records, he said. The subpoena, or legal order, ensures they will not be held liable for doing so, Corallo said.

Although Bush administration officials say their proposal would simply update the law to apply to terrorism cases, civil libertarians and defense lawyers say it would mark a fundamental change if it were adopted by Congress. Administrative subpoenas are now limited to civil and regulatory matters, and cannot be used in criminal probes.

The 4th Amendment protects “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches.” Rather than allow random searches by the police or federal agents, it says “no warrants shall issue, but upon probable cause, supported by oath or affirmation.”

For much of its history, the Supreme Court interpreted this provision as barring the government from seeking a person’s papers and records without a search warrant. In one famous opinion, Justice Oliver Wendell Holmes in 1924 said Congress was not free to authorize a “fishing expedition” into the private affairs of citizens in hope of finding evidence of a crime.

But the New Deal and the growth of the federal regulatory state made it clear that officials needed broad powers to check business records. The tax laws could not be enforced, for example, if agents were not able to obtain financial records.

By 1940, the courts had made it easier for agencies to gain access to information. Since they were enforcing the law, not prosecuting criminals, courts lowered the standards set by the 4th Amendment.

These days, administrative subpoenas are routine. In 2001, for example, federal prosecutors issued 2,102 of these orders in investigations of health-care frauds, according to Justice Department figures. The Environmental Protection Agency, the Federal Election Commission and the Commodity Futures Trading Commission also make regular use of subpoenas.

But the Bush-Ashcroft proposal breaks through a new barrier by authorizing these orders in strictly criminal probes, critics say.

“It is unprecedented to apply administrative subpoenas for use in a wholly criminal investigation. They want to eliminate the traditional check on overzealous prosecutors, which is the grand jury,” said Georgetown University law professor David Cole, a frequent foe of the administration’s legal tactics.

Under the proposal, prosecutors could question witnesses in a closed room.

The bill includes a “nondisclosure requirement” as well. “If the Attorney General certifies [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,” it says.

Grand juries operate in secret as well. And though they are often seen as a rubber stamp for the government, Cole said the mere presence of the jurors restrains prosecutors. “There is a real difference when a prosecutor knows 23 citizens are there observing what’s going on,” he said.

In criminal cases, the Supreme Court has continued to insist that the 4th Amendment puts a check on the government’s power to conduct searches.

“No assistant U.S. attorney has an independent regulatory purpose when issuing a subpoena like this. [It] abrogates complete power to the executive,” said Joshua Dratel, a criminal defense lawyer in New York.

The administration proposal was introduced in the House last week by Rep. Tom Feeney (R-Fla.).

Feeney came to national prominence in December 2000 during the dispute over the Florida election results. As speaker of the Florida House, he called a special legislative session to appoint a slate of electors for Bush, then governor of Texas, even though the outcome of the vote remained in doubt.

His bill says: “In any investigation concerning a federal crime of terrorism, the Attorney General may subpoena witnesses, compel the attendance and testimony of witnesses and require the production of any records ... that he finds relevant or material to the investigation.”

The proposal is likely to meet stiff resistance on Capitol Hill. During the debate about the Patriot Act in the fall of 2001, lawmakers said they would not go along with giving federal agents unchecked authority to conduct searches.

The Senate does not have a similar bill, and a spokesman for Judiciary Committee Chairman Orrin G. Hatch said the Utah Republican is not ready to endorse the use of expanded administrative subpoenas.

“We haven’t said anything on that yet, and we’re continuing to examine legislative options,” said Margarita Tapia, a spokeswoman for Hatch.