Justice Pushes for Looser Subpoena Rules

Justice Pushes for Looser Subpoena Rules

Bush Administration Wants Subpoena Power That Doesn't Require Approval From Judge or Grand Jury

The Associated Press
WASHINGTON Sept. 13 —
The Bush administration wants to bring to the war on terror a subpoena power that does not require federal investigators to seek approval from a judge or grand jury.
Justice Department officials say use of "administrative subpoenas" would enable the FBI to obtain information that might prevent a terror strike more quickly from records or witnesses. Critics say the extension of power is unnecessary and would permit investigations with no judicial supervision.

"It's just a grab for more and more power," said Gerald Lefcourt, a New York attorney and past president of the National Association of Criminal Defense Lawyers. "They want to do things that they know a judge won't approve of."

President Bush pressed Congress last week to unshackle law enforcement by adding terrorism to the list of investigations in which administrative subpoenas can be used. They already are used often in health-care fraud, child sex abuse and other cases.

Bush also wants lawmakers to expand the federal death penalty to cover more terror-related offenses and make terror suspects ineligible for release on bond.

The proposals were quickly dubbed "Patriot II" on Capitol Hill, a sequel to the Patriot Act passed shortly after the 2001 terror attacks. That law expanded government surveillance capabilities, toughened criminal penalties and removed a legal barrier that for years prevented information-sharing between intelligence agencies and criminal investigators and prosecutors.

The centerpiece of the new plan is the administrative subpoena, which Congress already has authorized for other cases. More than 4,000 of these subpoenas were issued by federal prosecutors in 2001, the latest year for which figures are available.

"For the sake of the American people, Congress should change the law and give law enforcement officials the same tools they have to fight terror that they have to fight other crime," Bush said in a speech last week.

The legislation, introduced by Rep. Tom Feeney, R-Fla., a day before Bush's speech, would enable prosecutors to use the administrative subpoena to elicit testimony from witnesses and require a person or business to produce "books, papers, documents, electronic data" or other evidence deemed necessary in a terrorism investigation.

Opponents say the Justice Department already has numerous legal tools to obtain records and compel witnesses to talk, including grand jury subpoenas that are routinely and easily issued by federal prosecutors. The FBI uses national security letters to require businesses to turn over a wide range of records in counterterror and counterintelligence investigations.

Also available in international terror probes is the secret Foreign Intelligence Surveillance Act warrant, including an emergency FISA warrant approved personally by Attorney General John Ashcroft, that provides a 72-hour window for wiretapping or eavesdropping before review by a secret court.

Timothy Edgar, legislative counsel for the American Civil Liberties Union, said the administrative subpoena gives the Justice Department "the power to get records from groups or individuals without any court supervision at all. This directly impacts on the privacy of citizens."

Justice officials counter that a business or individual can refuse to comply with an administrative subpoena, which would force prosecutors to convince a judge that the information is needed for an investigation. They also say the subpoenas provide immunity from lawsuits for businesses who would otherwise willingly disclose sensitive information about customers or clients.

In addition, prosecutors say grand jury subpoenas often order evidence to be turned over within a specified time. Administrative subpoenas require the evidence to be produced on the spot.

The fate of the proposals in Congress is uncertain.

A growing number of Democrats and Republicans have expressed skepticism about the existing Patriot Act powers and may be reluctant to give the Justice Department more. The administration also runs a risk that opponents could try to rescind some existing powers during debate.

"Many in Congress this time will be wary of writing any more blank checks for this administration without more accountability," said Sen. Patrick Leahy of Vermont, senior Democrat on the Senate Judiciary Committee.

WASHINGTON Sept. 13 —
The Bush administration wants to bring to the war on terror a subpoena power that does not require federal investigators to seek approval from a judge or grand jury.
Justice Department officials say use of "administrative subpoenas" would enable the FBI to obtain information that might prevent a terror strike more quickly from records or witnesses. Critics say the extension of power is unnecessary and would permit investigations with no judicial supervision.

"It's just a grab for more and more power," said Gerald Lefcourt, a New York attorney and past president of the National Association of Criminal Defense Lawyers. "They want to do things that they know a judge won't approve of."
President Bush pressed Congress last week to unshackle law enforcement by adding terrorism to the list of investigations in which administrative subpoenas can be used. They already are used often in health-care fraud, child sex abuse and other cases.
Bush also wants lawmakers to expand the federal death penalty to cover more terror-related offenses and make terror suspects ineligible for release on bond.
The proposals were quickly dubbed "Patriot II" on Capitol Hill, a sequel to the Patriot Act passed shortly after the 2001 terror attacks. That law expanded government surveillance capabilities, toughened criminal penalties and removed a legal barrier that for years prevented information-sharing between intelligence agencies and criminal investigators and prosecutors.
The centerpiece of the new plan is the administrative subpoena, which Congress already has authorized for other cases. More than 4,000 of these subpoenas were issued by federal prosecutors in 2001, the latest year for which figures are available.
"For the sake of the American people, Congress should change the law and give law enforcement officials the same tools they have to fight terror that they have to fight other crime," Bush said in a speech last week.
The legislation, introduced by Rep. Tom Feeney, R-Fla., a day before Bush's speech, would enable prosecutors to use the administrative subpoena to elicit testimony from witnesses and require a person or business to produce "books, papers, documents, electronic data" or other evidence deemed necessary in a terrorism investigation.
Opponents say the Justice Department already has numerous legal tools to obtain records and compel witnesses to talk, including grand jury subpoenas that are routinely and easily issued by federal prosecutors. The FBI uses national security letters to require businesses to turn over a wide range of records in counterterror and counterintelligence investigations.
Also available in international terror probes is the secret Foreign Intelligence Surveillance Act warrant, including an emergency FISA warrant approved personally by Attorney General John Ashcroft, that provides a 72-hour window for wiretapping or eavesdropping before review by a secret court.
Timothy Edgar, legislative counsel for the American Civil Liberties Union, said the administrative subpoena gives the Justice Department "the power to get records from groups or individuals without any court supervision at all. This directly impacts on the privacy of citizens."
Justice officials counter that a business or individual can refuse to comply with an administrative subpoena, which would force prosecutors to convince a judge that the information is needed for an investigation. They also say the subpoenas provide immunity from lawsuits for businesses who would otherwise willingly disclose sensitive information about customers or clients.
In addition, prosecutors say grand jury subpoenas often order evidence to be turned over within a specified time. Administrative subpoenas require the evidence to be produced on the spot.
The fate of the proposals in Congress is uncertain.
A growing number of Democrats and Republicans have expressed skepticism about the existing Patriot Act powers and may be reluctant to give the Justice Department more. The administration also runs a risk that opponents could try to rescind some existing powers during debate.
"Many in Congress this time will be wary of writing any more blank checks for this administration without more accountability," said Sen. Patrick Leahy of Vermont, senior Democrat on the Senate Judiciary Committee.
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