Has the FBI failed in a Bush-blessed, attempted power-grab?
With several key provisions of the controversial Patriot Act set to expire later this year, Congress has been working for months on legislation that would extend and perhaps restrict those provisions.
Most of the debate has concerned whether the Patriot Act went too far and has focused on the measure’s Section 215, which allows the FBI to obtain library records and other “tangible things” in a terrorism or national security investigation by obtaining a warrant from the super-secret Foreign Intelligence Surveillance Act (FISA) court.
But the FBI, with the presumed approval of the White House, has been pushing for power that would go beyond that of the controversial Section 215. In particular, the bureau has wanted the new Patriot Act measure to award it the right to issue administrative subpoenas. With an administrative subpoena, an FBI agent could–without going to a court or a grand jury–demand that a person or institution hand over any record on another person or organization: financial papers, health records, library records, e-mails and more. The order would be subject to judicial review only if the recipient–say, an Internet service provider–opposed the order. Administrative subpoenas would give the FBI greater power than Section 215 and national security letters. (With a national security letter, the FBI can, without bothering a court, obtain a limited set of information–certain financial documents, credit reports and Internet-use records. But a federal court last year declared national security letters unconstitutional. The Bush Administration has filed an appeal.) Moreover, as Kate Martin, director of the Center for National Security Studies, notes, “The FBI wants this administrative subpoena power forever”–that is, with no sunset provision. Beating back the FBI’s demand for this authority would be a victory for the civil liberties community. And so far, the FBI has been losing.
Opposition to FBI administrative subpoenas has united civil libertarians of the left and right. Nancy Libin, staff counsel at the Center for Democracy and Technology, notes that administrative subpoena power is “really kind of scary. The FBI would have the right to approach any business or person and say, ‘Hand over whatever we want,’ and a gag order would be attached. You can’t challenge the subpoena. You can’t talk about it. If an FBI agent wants a grand jury subpoena, he has to go through a prosecutor. It’s not just an agent issuing a subpoena. Administrative subpoenas would make Section 215 moot.” Paul Rosenzweig, a senior legal fellow at the Heritage Foundation and a prominent champion of the original Patriot Act, says, “I don’t like administrative subpoenas. Judges have to be involved. A law that permits the uninhibited exercise of executive authority is bad.” And Suzanne Spalding, former assistant general counsel at the CIA, argues that “removing courts is a mistake.”