The Niqabi Paralegal

The name "administrative subpoena" contrasts with the "judicial subpoena", a standard investigative tool used in both civil and criminal cases to compel testimony and the production of evidence. Judicial subpoenas must be reviewed by a judge.

Many executive agencies have the authority to penalize people in some way for violation of the law that they administer, whether the punishment is a denial of unemployment or social security benefits, the revocation of a driver's license, or the deportation of an illegal immigrant. These agencies also have their own court systems set up to issue these decisions and handle appeals and contesting of decisions. It is within the context of these investigations and hearings that administrative subpoenas are used. Someone must still review the subpoena but instead of being a member of the judicial branch, that someone is an administrative official within the agency.

The FBI is not an ordinary executive agency, it is part of the criminal justice system and the cases it brings are tried in regular courts. Even espionage investigations take place under the supervision of the FISA court, which is part of the judicial branch.

One of the reasons that HR3037 is problematic is this attempt to allow the FBI to answer only to the Attorney General when it comes to terrorism investigations. But most everything about the bill is worrisome, as an analysis posted at TalkLeft shows (see also this analysis by the Center for Democracy and Technology).

Administrative subpoenas for criminal investigations were previously proposed in 2000's Fugitive Apprehension Act, which passed the Senate before dying in the House of Representatives after causing much alarm. The subpoenas re-appeared in the draft Patriot Act II.

The proposed administrative subpoenas for terrorism cases are similar to the already-existing National Security Letters (NSLs). NSLs are part of the FISA toolkit and have been used for years in foreign intelligence investigations. They were first proposed for use in domestic terrorism investigations in 1995; however it was Section 505 of the Patriot Act that made this authority available. NSLs have been used extensively (more and more) since the passage of the Patriot Act. In May, the Bush Administration attempted to give the CIA and the Pentagon (instead of just the FBI) authority to use NSLs but this was shot down by Congressional Democrats.

Currently, the FBI can only use NSLs to access records from those who hold them. The proposed administrative subpoenas, by contrast, can be used to compel testimony from anybody whom the government says is part of a "terrorism investigation". There is no judicial oversight, no way for anybody to question the government's claims, and those who are served with a subpoena are forbidden from disclosing this fact, on penalty of imprisonment.

Under this law, the FBI would be able to act completely on its own authority to question anybody in secret over just about anything it wants. The Supreme Court has held that the Fourth Amendment requires judicial oversight before the government can violate a person's privacy - this law would circumvent that. All the Attorney General has to do is say "terrorism" and the Fourth Amendment goes through the shredder.

Contrary to popular belief, most dictatorships have had a regular court system for dealing with ordinary criminal offenses with rules fairly similar to our own; the human rights violations usually come from the other court system that dictatorships set up, the one that's reserved for "enemies of the state", the one where defendants have no rights. That the Bush Administration is trying to set up something similar in America, however minor, is a perversion of everything this country stands for.

¹ The bill was introduced by Congressman Tom Feeney, most recently known for the Feeney Amendment limiting the sentencing discretion of federal judges (see TalkLeft's coverage of this issue). Before entering Congress in 2002, Feeney was Speaker of the Florida House of Representatives and is most famous for his plan to have the Florida Legislature select electors for Bush in the disputed 2000 election. Feeney was also once Jeb Bush's running mate.