09 27 07 administrative subpoenas

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CRIMINAL DEFENSE ATTORNEYS KNOW FIRST HAND THE FBI

CANNOT BE TRUSTED WITH UNCHECKED INVESTIGATIVE

POWERS, ADMINISTRATIVE SUBPOENAS

The USA Patriot Act was became law on October 26, 2001 some sixweeks after the 9/11 terrorists attacks on the twin towers of the World TradeCenter. The Act increased the governments surveillance powers in bothcriminal and intelligence investigations, permitting an easier process for thelaw enforcement and intelligence communities to share information whileconducting these two types of investigations.

The U.S. Justice Department maintains that many of the tools the [Patriot]Act provides to law enforcement to fight terrorism have been used fordecades to fight organized crime and drug dealers. The ACLU has been

highly critical of this position, pointing out that it is based on a falseequation of foreign intelligence investigations with terrorism investigations,and criminal investigations with non-terrorism investigations (i.e.,organized crime and drug dealers).

The ACLU underscores its criticism by saying that terrorists can beinvestigated with criminal powers and that foreign intelligence powers arenot limited exclusively to terrorists. The civil rights group on its websitethen defined both types of investigations:

Criminal investigations are investigations of federal crimes, usingpowers like criminal search warrants and jury subpoenas. Criminalinvestigations are not limited to ordinary street crime or the Mafia,

but can and do include investigations of terrorists, including AlQaeda. Criminal investigations are also not limited to crimes that havealready happened, but can also include the investigation and

prevention of what are called inchoate crimes, including conspiracy,attempt, and solicitation. The guidelines for conducting criminalinvestigations (including what level of suspicion is required for

certain intrusive techniques) are public.

Foreign intelligence investigations are domestic investigations toobtain foreign intelligence information, often using the special

powers of the Foreign Intelligence Surveillance Act (FISA). Foreignintelligence investigations may involve investigation of criminalactivities of American citizens and residents. The guidelines for


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conducting foreign intelligence investigations (including what type ofsuspicion is required for certain intrusive techniques) are classified.

Three years after 9/11, the Federal Bureau of Investigation created itsStrategic Plan 2004-2009 a five-year road map of the strategic goals andobjectives of the agency and its commitment to fulfill the imperatives of thePresident, the Attorney General, and the Director of Central Intelligence(DCI). Federal Director Robert Meuller established ten priorities for theagency:

Protect the United States from terrorist attack.

Protect the United States against cyber-based attacks and hightechnology crimes.

Combat public corruption at all levels.

Protect civil rights.

Combat transnational and national criminal organizations andenterprises.

Combat white color crime.

Combat significant violent crime.

Support federal, state, local, and international partners.

Upgrade technology to successfully perform the FBIs mission.

Five years before 9/11, the United States Congress enacted the Health

Insurance Portability and Accountability Act of 1996 (HIPPA). See: 18U.S.C. 3486 (2000). Under this legislation, the Attorney General wasvested with administrative subpoena power to conduct criminalinvestigations into health care fraud. Congress created this power inresponse to the public outcry against this prevalent crime and its effect onthe rising cost of health care. See: Berkower, Risa, Sliding Down aSlippery Slope? The Future Use of Administrative Subpoenas in CriminalInvestigations, 75 Fordham L. Rev. 2251, 2252 (April 2005)[hereinafterFordham].

Administrative subpoena power is an extraordinary governmentinvestigatory weapon because it allows its investigators to bypass the FourthAmendments probable cause requirement to gain access to private records.See: Powell v. United States, 379 U.S. 48, 57 (1964)[holding that IRSadministrative subpoenas do not have to satisfy probable cause requirement];


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SEC v. Jerry T. OBrien, Inc., 467 U.S. 735, 741-42 (1984)[applying Powellto all administrative subpoenas].

Berkower wrote that in a May, 2002 report to Congress. the Department ofJustice's Office of Legal Policy found that Congress had granted health carefraud investigators a highly effective investigatory tool. Administrativesubpoenas proved extremely useful to both investigators and prosecutors

because, unlike traditional investigatory tools, the administrative subpoenasenabled law enforcement agents acting on mere suspicion to access privateinformation and placed few prohibitions on the use of that information. Id.,Fordam at 2252. See also: Office of Legal Policy, U.S. Department ofJustice, Report to Congress on the Use of Administrative SubpoenaAuthorities by Executive Branch Agencies and Entities 35 (2002)[reportrequired by the Presidential Threat Protection Act of 2000][hereinafter DOJ

Report].

To illustrate traditional usage of administrative subpoenas, Berkowerpresented an example where FBI agents suspect a physician is involved in ascheme to defraud health insurance companies through over-billing. Whilethey do not have sufficient probable cause for a search warrant, the agencycan use its administrative subpoena power to compel the production of thedoctors records; and if those records reveal any evidence of fraud, the U.S.Attorney can prosecute the physician. Id., Fordam.

The Fourth Amendments probable cause requirement not only protectsthose suspected of criminal wrongdoing but innocent citizens as well fromunreasonable government intrusion into their private lives. It is disturbingthat administrative subpoena power can circumvent this fundamentalconstitutional protection. Berkower presented an even scarier scenario toillustrate this concern: the FBI suspect that a chemical attack is being

planned by an al-Qaeda sleeper cell in a particular city. The FBI targets ahardware store where the agency believes the chemicals to be used in theattack were purchased, but they do not have the necessary probable cause to

get a search warrant to seize the stores sales records. Should the agency beallowed to go after those records with an administrative subpoena?

Since 9/11, the FBI, and other federal officials, have lobbied Congress thatthe agency should have this power. See: Cuming, Alfred & Masse, Todd,Congressional Research Service, FBI Intelligence Reform Since September11, 2001: Issues and Options for Congress 1, 4 (Apr. 6, 2004). President


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Bush has strongly supported these lobbying efforts, saying: [i]f we can usethese [administrative] subpoenas to catch crooked doctors the Congressshould allow law enforcement officials to use them in catching terrorists.See: Sanger, David E., President Urging Wider U.S. Powers in TerrorismLaw, N.Y. Times, Sept. 11, 2003, at A1 (quoting President Bush's Sept. 10,2002 address at the FBI training academy in Quantico, Virginia).Immediately after 9/11, Congress was willing to expand the FBIs traditionalinvestigatory powers in its intelligence-gathering. Title V, Section 505, ofthe Patriot Act amended 18 U.S.C. 2709 to allow the FBI to issueNational Security Letters (NSL) to wire or electronic communicationservice providers. An NSL is an administrative subpoena that allows theFBI to gain access to subscriber information or electroniccommunication transactional records held by internet service providers,

when this information is relevant to an authorized investigation to protectagainst international terrorism or clandestine intelligence activities See:Doe v. Gonzales, 449 F.3d 415, 417-18 (2nd Cir. 200). See also: 18 U.S.C. 2709(a) & (b)(2).

The Patriot Act, however, did not extend to the FBI the broad powers toconduct domestic terrorism investigations that it enjoys conductinginternational investigations. The Bush administration, therefore, has pushedhard for an increase in the FBIs investigatory powers in domestic terrorismcases. Id., DOJ Report.

Should HIPPAs administrative subpoena power be extend to the FBI indomestic terrorism investigations? Berkower discussed this thorny issue atlength:

President Bush, the Justice Department, and individual Congressmenand Senators have all pushed Congress to grant administrativesubpoena power to the FBI for terrorism investigations. Proponentsargue that the FBI should have the power to obtain on demand any

documents or tangible things related to a domestic terrorisminvestigation. Two bills to authorize administrative subpoena powerfor terrorism investigations have already been proposed in bothhouses of Congress. The proposals would allow the FBI to issue itsown subpoenas. Subpoenaed parties that comply with the demandwould be granted immunity from any resulting civil liability. Incircumstances where the Attorney General self-certifies that


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disclosure would endanger national security, subpoena recipientswould be barred from disclosing to anyone, except legal counsel, thatthe subpoena was issued. These bills immediately sparked heateddebates in the House and Senate Judiciary Committee hearings.

The debate over whether administrative subpoena power should begiven to the FBI for terrorism investigations raises three importantquestions. First, and most importantly, can this power be grantedwithout undermining Fourth Amendment safeguards againstunreasonable searches and seizures? Second, if Congress does givethe FBI administrative subpoena power, what limitations, if any,should be imposed upon the FBI in using the power? Finally, on a

practical level, would administrative subpoenas provide investigatorswith too much information to be useful as an effective investigatory

tool?

Although giving the FBI administrative subpoena power for

terrorism investigations would be an unprecedented grant of

power, supporters argue that Fourth Amendment rights would not beinfringed. According to the federal appellate courts that haveexamined the use of administrative subpoenas in criminal health carefraud investigations, the subpoenas do not violate the FourthAmendment. Administrative subpoena power could not be abused byinvestigators because the subpoenas would be subject to judicialreview and could only be enforced by a federal court. As with alladministrative subpoenas, any subpoenaed party could bring achallenge to the demand in federal court, subject to the Powellreasonableness test, and a denial of a motion to quash would beimmediately appealable as a final order. Since judicial review wouldensure that only the reasonable subpoenas are enforced, use of thesubpoenas would not violate Fourth Amendment rights. Criticsrespond to these proposals with two concerns.

First, as in the health care context, administrative subpoenas forterrorism investigations would permit the government to use

private information obtained without probable cause in a criminal

investigation. However, differences between health care fraud andterrorism indicate that while a relaxed Fourth Amendment standardmay be appropriate for health care investigations, this may not be thecase for terrorism investigations. A health care fraud investigation is


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similar to a regulatory agency investigation because, since theevidence of wrongdoing only exists in a provider's business andfinancial records, a probable cause requirement would impede aneffective investigation. A terrorism investigation, however, could be

pursued by using many tactics; useful information could likely comefrom many sources, not just one determinate set of business records.As a result, applying a relaxed Fourth Amendment standard toterrorism investigations may not always be necessary. However,applying this relaxed standard to all terrorism investigations

would enable the FBI to evade Fourth Amendment probable

cause requirements to access suspects' private information in a

wide range of circumstances.

Adding to the gravity of this Fourth Amendment problem, critics

note that terrorism administrative subpoenas would give the FBIaccess to an unprecedented amount of private information without

probable cause. Administrative subpoenas provide investigators withaccess to all information relevant to the investigation. But becauseof the differences between Medicare fraud and terrorism,administrative subpoenas in the terrorism context would give the

FBI access to significantly more information. Since Congressdefined health care fraud narrowly, the range of documents relevantto the crime is limited to the provider's professional, business, andfinancial records. However, as the September 11, 2001 attacksunfortunately demonstrated, and as the federal international terrorismstatute reflects, the range of information that could be related toterrorist activities is infinitely broad--anything from flight schoolenrollment to rental car reservations. Administrative subpoena powercould be an effective investigatory tool for the FBI because it would

provide broad access to private information, but the informationwould come at the cost of individuals' Fourth Amendment privacyrights in many different contexts.

Second, critics argue, in practice, judicial safeguards would notprotect individuals' privacy from unreasonable terrorismadministrative subpoenas. Even if a reasonableness standard wouldnot violate the Fourth Amendment, judicial review would not weedout unreasonable subpoenas because recipients have no incentive tochallenge the demands. To challenge a subpoena, the recipient facesa high burden of proof to prevail and must bear all litigation


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costs. While this alone is not significant, as courts acceptadministrative subpoenas as legitimate in other contexts despite theseconditions, using these subpoenas in terrorism investigations would besubtly--but critically--different. When the FBI subpoenas a health care

provider's records in a Medicare fraud investigation, that health careprovider is under investigation. However, if the FBI were to subpoenaan internet service provider's business records for a terrorisminvestigation, the investigation would likely be focused on one ofthe company's clients, not the company itself. The internet service

provider would be a third party, not under investigation, and would beshielded from all civil liability, including lawsuits for violating

privacy agreements with customers. Further, the customersthemselves, even if alerted to the demand, do not have standing to

challenge the demand. While the subpoenaed health care provider

would have an incentive-- the provider's own future criminalliability--to bear the costs and the high risk of losing a motion toquash the subpoena, a third party insulated from liability has nosimilarly compelling reason to resist compliance with evenunreasonable subpoenas. In the context of terrorism investigations,

because third party subpoena recipients have no incentive to challengethe FBI's demands, judicial review cannot actually protect the privacyrights of individuals under investigation. Id., Fordam at 2271-76[footnotes omitted](Emphasis supplied).

FBI Director Mueller has publicly conceded that his agency abused theenhanced surveillance powers granted to the FBI by Congress in the PatriotAct. The agency has sought, and secured, a significant number of NSLs thatwere nothing more than fishing expeditions into the private lives of theclients of internet service providers. Allowing the FBI, and other intelligencegathering agencies, to circumvent the constitutional restraints associatedwith traditional investigatory tools, such as search warrants/probable causeand grand jury subpoenas, to obtain private information puts the veryconcept of individual privacy at significant risk.

Some federal district court judges agree. On September 6, 2007 a New Yorkfederal judge struck down the NSL provisions of the Patriot Act that allowsthe FBI e-mail and telephone data from internet service providers without asearch warrant. More recently, September 26, 2007, an Oregon federal judgestruck down two provisions of the Patriot Act because they permit theexecutive branch of government to conduct surveillance and searches of


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American citizens without satisfying the probable cause requirements of theFourth Amendment. U.S. District Judge Ann Aiken observed that for over200 years, this Nation has adhered to the rule of law with unparalleledsuccess. A shift to a Nation based on extra-constitutional authority is

prohibited, as well as ill-advised.

The Oregon ruling came in the case of attorney Brandon Mayfield. In 2004following a terrorist attack in Spain, the FBI bungled a fingerprint analysisand arrested Mayfield as a conspirator in that attack. Utilizing its expandedPatriot Act powers, the FBI secretly entered Mayfields house and lawoffices to plant surveillance bugs, search his computer files, examine his

personal photos, and monitor his telephone conversations in his law office.

In 2006 the FBI was forced to settle a civil rights lawsuit filed by Mayfield,

agreeing to pay the attorney $2 million in damages and apologize for thesuffering the agency caused him. The FBI settled the Mayfield lawsuit

because it did not want its pattern of unlawful surveillance activities, whichDirector Mueller has conceded to, revealed in a public trial.

In response to cases like Brandon Mayfield, Congress on March 9, 2006amended the Patriot Act with what has become known as theReauthorization Act. This act significantly altered 18 U.S.C. 2709 andadded new provisions codified in 18 U.S.C. 3511 which now governs

judicial review of FBI requests for NSLs and permits recipients of an NSL tochallenge them in court. See, Doe v. Gonzales, supra, 449 F.3d at 418-19

The Reauthorization Act itself poses several significant constitutionalconcerns. First, it bars a reviewing court from either vacating or modifyingnon-disclosure orders associated with NSLs except in situations wherethere is no reason to believe that the disclosure would be harmful. Second,the reviewing court is forced to pay judicial deference to any executivedetermination of whether such disclosure would be harmful. In effect, thereis no meaningful judicial review under the Reauthorization Act. See: Jaffer,

Jameal, Panel Report: Secret Evidence in the Investigative Stage: FISA,Administrative Subpoenas, and Privacy, Cardoza Public Law, Policy andEthics Journal 7, 25 (Fall 2006).

Berkower identified three significant differences between administrativesubpoena power and the two traditional criminal investigatory tools: searchwarrants and grand jury proceedings.


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First, as previously noted, administrative subpoenas do not require probablecause prior to issuance. This constitutional requirement has roots that aredeep in our [nations] history and was created to protect private citizensfrom indiscriminate searches and seizures. See: Henry v. United States, 361U.S. 98, 100 (1959). See also: Illinois v. Gates, 462 U.S. 213, 236 (1983)[possession of a warrant by officers conducting an arrest or search greatlyreduces the perception of unlawful or intrusive police conduct]; UnitedStates v. Chadwick, 433 U.S. 1, 9 (1977)[a search warrant assures theindividual whose property is searched or seized of the lawful authority of theexecuting officer, his need to search, and the limits of his power to search].

Second, while a district courts denial of a motion to quash or modify anadministrative subpoena is an appealable order, the appellate courts rarely

intervene because administrative subpoenas do not enjoy the same FourthAmendment protection of reasonableness as a search warrant. The SupremeCourt has set forth a narrow four-prong test for assessing the reasonablenessof administrative subpoenas under the Fourth Amendment:

Whether the investigation is conducted pursuant to a legitimatepurpose.

Whether the information requested by the subpoena is relevant forthis purpose.

Whether the information sought is already within the agencyspossession.

Whether the agency followed all statutory requirements in using thesubpoena.

See: Powell, supra, 379 U.S. at 57-58.

Finally, unlike grand jury proceedings whose information is secret,information obtained through an administrative subpoena can be shared

between government agencies. The Supreme Court has established fivejustifications for grand jury secrecy:

To prevent criminal suspects from fleeing.

To ensure that the grand jury can deliberate freely.

To prevent witness tampering or subornation of perjury.

To encourage witnesses to testify fully and honestly;


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To protect the privacy of accused parties who are ultimatelyexonerated.

See: Douglas Oil, Co. v. Petrol Oil Stops Northwest, 441 U.S. 211, 219 n. 10

(1979). See also: Fordham, supra, at 2251-64.

While Congress continues to debate the issue of whether the FBI should begranted administrative subpoena power in terrorism investigations,Berkower has identified limitations that should be placed on the agencysuse of the information obtained through these subpoenas:

If Congress grants administrative subpoena power to the FBI forterrorism investigations, the question then becomes how, if at all,Congress should limit the power. Advocates in favor of granting the

FBI terrorism subpoena power regularly cite the effectiveness ofadministrative subpoenas in investigating and prosecuting Medicarefraud to justify using the power in a wide range of terrorisminvestigations. Critics, however, point out that Congress subjectedMedicare fraud subpoena power to strict limitations to protect the

privacy of patients uninvolved in the fraud. In the terrorism context,without clearly defined boundaries, critics argue, administrativesubpoena power would give the FBI extraordinary power that could

be too easily abused or overused. In its report, the 9/11 Commission

stated that in considering the future tools necessary to fight terrorism,in light of concerns for civil liberties, [i]f [an executive branch]power is granted, there must be adequate guidelines and oversight

to properly confine its use. Using the 9/11 Commission'srecommendation as a starting point, and drawing upon the FBI'sexperience with Medicare fraud administrative subpoenas, twoquestions arise regarding the necessary limits on FBI subpoena power.

1. Governmental Use of Information Accessed ThroughAdministrative Subpoenas

The usefulness of the information obtained by an administrativesubpoena would be different in a health care investigation and in aterrorism investigation. An administrative subpoena is useful toMedicare fraud investigators because it provides access to adeterminative set of documents: the health care provider's businessand financial records. After an investigation ends, however, the statute


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requires that the seized records cannot be used further unless theyreveal evidence of additional Medicare fraud. In the health carecontext, Congress outlawed using any confidential informationaccessed by administrative subpoenas in a larger criminal

investigation because such an investigation would compromise the

privacy rights of patients not implicated in the fraud.

In the terrorism context, however, the vast amounts of informationobtained by administrative subpoenas would likely be used for

data mining. Objectively, data mining presents terrorisminvestigators with a useful tool because it picks out significant

patterns in huge quantities of information. Data mining enablesinvestigators to connect the dots between seemingly insignificantevents. In the months leading up to September 11, 2001, the FBI

failed to notice and connect significant pieces of information thatcould have uncovered the terrorist plot, in part because of insufficientinformation analysis. As Mary DeRosa points out in her report on datamining for the Center for Strategic and International Studies, basicdata mining using government watch list information, airlinereservation records, and aggregated publicly available data wouldhave linked together and identified all nineteen of the September 11,2001 hijackers. Because of the growing importance of subtle andsuperficially unconnected pieces of information, computer-based datamining could provide valuable assistance to investigators faced withlarge quantities of potentially relevant information.

Additionally, as Professor Philip Heymann points out, as the FBIshifts its focus from ex-post criminal investigations to ex-anteterrorism investigations, the FBI must also recognize that terrorism

prevention requires a much more complete set of information than isnecessary to solve a crime after the fact. Investigation of a crime afterit occurs can take years, and the crime scene itself can often providevaluable leads. Counter-terrorism investigators working to prevent an

attack, however, must tackle the much more difficult task of findingtraces of a plan, [as opposed to] traces of a completed event underthe pressure of a serious deadline. Additionally, although convictingmost of the perpetrators of a successful crime could be considered asuccess, locking up less than a critical mass of a group planning afuture crime has to be considered a failure. Since terrorisminvestigators must find patterns in huge quantities of data, data mining


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of information obtained through administrative subpoenas couldsignificantly boost the success of these investigations.

Recognizing that data mining could provide terrorism investigatorswith useful information, critics nonetheless argue that thepossibility of mission creep further augments the Fourth

Amendment concerns surrounding administrative subpoenas. Anassembled network ofinformation set up for data mining couldeasily be used to fight crime other than terrorism. If data mining

proves to be an effective tool to fight terrorism, Congress could betempted to permit its use to help investigate the next type of high

profile illegal behavior. However, since administrative subpoenasaccess information without probable cause, mission creep could

lead to criminal prosecutions for crimes other than terrorism on

the basis of private information obtained without probable cause.Data mining experts admit that without government-wide guidelinesfor the future use of information collected by administrative subpoena,mission creep could definitely occur. Although such crimes maylegitimately demand authorities' attention, there will be lessopportunity for robust public debate on . . . expanded use of newtools once they have been implemented for one purpose--that is,Congress may be unable to resist sliding down a slippery slope. IfCongress were to authorize the use of data mining from administrativesubpoenas for other types of crime,

the breach of all individuals'privacy would be vastly expanded, and targeted individuals would

again be subject to prosecution based upon private information

obtained without probable cause.

2. Delegation of Authority to Issue Administrative Subpoenas

Second, how far down the chain of command would subpoenaissuing power be delegated? The bills proposed in Congress wouldgive the Attorney General administrative subpoena power that

could be delegated to the director of the FBI, who could furtherdelegate the power to agents. In the health care context, since theAttorney General has not delegated this power to the FBI, prosecutors'gatekeeping power to issue the subpoenas places an informal check ontheir indiscriminate use. Since prosecutors face asymmetricaccountability, their interests are not wholly aligned withinvestigators' interests, and a prosecutor may be less likely to risk


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issuing a subpoena for an investigation unlikely to bear fruit.Similarly, in the terrorism context, limiting administrative subpoena

power to traditionally risk-averse prosecutors would provide anadditional check on abuses of this power. Although the strength of

prosecutors' gatekeeping power would hinge on their response to thepressures of post-September 11, 2001 terrorism investigations,prosecutors could still provide a check on agents conductingoverreaching terrorism investigations. Id., Fordam at 2277-81[footnotes omitted](Emphasis supplied).

This prosecutorial gate-keeping power did not prevent the FBI fromseriously abusing its Patriot Act powers to secure NSLs. There is no reasonto believe that this law enforcement agency, or any other intelligence-gathering agency, would conduct domestic terrorism investigations

responsibly with administrative subpoena power. The FBI is currently usingtraditional criminal investigatory tools to gather information and evidence(money laundering, for example) designed exclusively to produceterrorism indictments.

Armed with administrative subpoena power to conduct criminal/terrorismrelated investigations, the FBI would ultimately compile privateinformation through data mining on every man, woman, and child (alongwith pets) in the United States. In effect, innocent, unsuspecting Americancitizens would become quasi-enemy combatants in this uncheckedintelligence-gathering process.


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