In weighing whether the Patriot Act should be renewed, the Senate Intelligence Committee is recommending a modest (one might even say, a redundant) expansion of FBI investigative powers. So, as night follows day, Pavlov’s Dog, a.k.a. the ACLU, is drooling again.
The episode illustrates how far off the reservation this politicized epigone of a once-solid organization has gone, and how insidiously it has poisoned a much-needed discussion of the proper balance between liberty and security in a post 9/11 world. Even when a reasoned argument in favor of civil liberties is readily available (as it happens to be in this instance), the ACLU resists it, instinctually stooping instead to mindless demagoguery.
At issue is the tool known as the “administrative subpoena.” The Senate Intelligence Committee, under the direction of Chairman Pat Roberts (R., Kan.), voted last week to extend this method of gathering information to the FBI’s national-security investigations.
Unlike ordinary subpoenas that agents must obtain from a federal prosecutor backed by the power of a grand jury or a trial court, administrative-subpoena authority allows agents to compel production of information on their own–i.e., to issue subpoenas without consulting a prosecutor or a judge.
That sounds like a bigger deal than it is. Observe that we are only talking about information that is already subject to subpoena. This usually means information that is held by third parties, such as banks or phone companies. Such records do not implicate recognized privacy interests, and the government has long been permitted to compel their production without prior judicial permission. To be sure, this is not always the case: Sometimes a subpoena (whether ordinary or administrative) is issued to an individual, ordering him to surrender some of his own privately held information. But in those instances, the recipient does not have to comply immediately: He is free to go to court first and try to have the subpoena quashed or narrowed.
Notably, administrative subpoenas are not new. Federal agents have for decades been permitted unilaterally to issue this form of legal process in order to investigate such matters as narcotics trafficking, insider trading, health care fraud, and even violations of the Occupational Health and Safety Act (OSHA). No public uproar has resulted because most citizens don’t really care whether they are subpoenaed by, say, the FBI alone as opposed to the FBI in conjunction with a Justice Department lawyer. And, to the limited extent they might care, they understand that if an investigation is underway the information is probably going to be disclosed anyway, and is going to end up in the same place regardless of how the government goes about getting it.
Given how unremarkable all this is, it should come as no surprise that the Senate Intelligence Committee vote approving administrative subpoenas for national-security investigations was a lopsided 11-4. The measure won broad bipartisan support, including from the committee’s ranking member, Senator Jay Rockefeller (D., W. Va.). If that fact alone did not show what a ho-hum development this was, there is also the commonsense rationale: How can we not vest agents with at least as much authority to probe spies, saboteurs, and terrorists as they have long been given to root out OSHA violations and the like?
So how did the ACLU react to this relative non-event? By characteristically going straight to DEFCON 1. Lisa Graves, the organization’s senior counsel for legislative strategy, railed that Congress was meeting in secret to “rewrite our Fourth Amendment rights.” Americans, she pined, were being threatened with the loss of what she described as their “reasonable expectation that their federal government will not gather records about their health, their wealth and the transactions of their daily life without probable cause of a crime and without a court order.” Shocking as this must seem after four nonstop years of such drivel, it turns out that Graves’s every hysterical utterance was, to put it charitably, grossly misleading.
To begin with, given how firmly established subpoenas, and even administrative subpoenas, are in our system, legislation that would extend them cannot conceivably be a “rewrite” of the Fourth Amendment.
That Amendment, furthermore, is implicated only when government invades a privacy interest that society recognizes as reasonable. To the contrary, subpoenas, as noted above, are generally directed at information in the hands of third parties and thus not “private” (which is why the Supreme Court has long held that government access to third-party records does not sound constitutional alarms). And even when they are directed at privately held information, the recipient (as also noted above) can seek judicial redress before surrendering that information.
Therefore, as any senior ACLU official undoubtedly knows, it is perfectly lawful for the Justice Department to issue subpoenas–without probable cause and without any need to get a judge’s permission. It has been doing so hundreds of times a day, for eons.
Finally, on this occasion it is even more frivolous than usual for the ACLU to resort to the tired “nefarious government secrecy” page in its apoplectic playbook. Yes, some of the hearings leading up to the administrative subpoena vote were held in closed session. This is common with the Intelligence Committee, because its concerns involve, well, intelligence. It is difficult to imagine how the FBI might be expected to explain to the Senate the challenge of gathering sensitive information about terrorist organizations without providing details–details we’d rather not reveal to Osama bin Laden and his cohorts.
And can we possibly, just this once, get a grip here? Leaving aside that much of the committee’s proceedings were public, all that has happened so far is a bill has been voted out of a committee. It has not become law, and it won’t unless majorities of both houses of Congress, after laborious public debate, are satisfied about the need for this investigative enhancement.
Now, for what little it may be worth, I am not a fan of administrative subpoenas. I am not opposed to them–they’re too trivial in the greater scheme of things to work up any genuine passion over. But anyone following the battle to get truly crucial parts of the Patriot Act renewed has to question the wisdom of provoking a fight over administrative subpoenas at this moment. A fight with precious little upside, but whose occasion provides still more grist for the tireless ACLU propaganda offensive that has already immensely damaged the effort to acquaint Americans with the real Patriot Act, as opposed to the ghoulish imposter concocted by civil liberties extremists.
In point of fact, there is a very respectable cost-benefit argument that administrative subpoenas are of dubious value. It should not necessarily carry the day. But people of good will would have to consider it seriously, and if we actually had an authentic, nonpartisan civil-liberties organization in this country, that organization would be making it. Plainly, the ACLU is not that organization.
The argument goes like this. It is not apparent, after long experience with administrative subpoenas, that they yield anything that could not just as easily and less controversially be obtained by traditional methods that do not unduly hamstring the authorities. On the other side of the ledger, though, they encourage undesirable government practices that may occasionally cause innocent people needless invasions of privacy or render subpoena compliance unduly burdensome.
The principal rationale for allowing agents to write their own subpoenas rather than forcing them to consult with the Justice Department is the need-for-speed. This is unpersuasive. Agents and prosecutors work very well together, whether they are probing ordinary crimes or conducting national-security investigations. In federal districts like the one I for which I worked in New York City, the U.S. attorney’s office is the same kind of 24/7 operation that the FBI is–meaning there is never a time when a prosecutor is not available to support an agent who has an emergency. And good agents want to consult with a prosecutor during such times.
Further, our criminal and national-security laws are more complex than they used to be, and gone are the days when a large percentage of federal agents, especially from the FBI, were trained lawyers. Agents are surely superior to assistant U.S. attorneys at digging up information. Prosecutors, however, not only tend to be more knowledgeable about the types of evidence needed to establish either specific crimes or terror links that can form the legal basis for various counterterror options; they are also, as one would expect, more familiar with privacy law and judicial attitudes about privacy interests.
This is significant because even the most competently run investigations unavoidably intrude on innocent people. Public support of the government’s investigative efforts is dependent on judges, and, by extension, Americans, being confident that legal compulsion processes are being appropriately used–aggressively when necessary, but with sensitivity when they burden civilians and businesses who, through no fault of their own, happen to be in possession of relevant information. And let’s bear in mind that it is the prosecutor, not the agent, who will have to defend any subpoena that is challenged in court.
Consequently, there is a colorable contention to be made–on both libertarian and good-government grounds–that having a prosecutor participate in subpoena issuance is not only a standard practice but a highly desirable one. Of course we should all want the government to get the information it needs to protect us. But poorly drawn subpoenas force innocent citizens (including those who have neither the time nor the resources to challenge them in court) to surrender personal information that is far afield from legitimate inquiry. They are prohibitively costly (in effort and legal fees) for even a big corporation, let alone a small business, to comply with–costs that are passed along to all consumers. This is not to say government lawyers are never guilty of overbreadth. But as a rule, they can reasonably be expected to draw subpoenas more narrowly and expertly than an agent would.
The need-for-speed rationale is also overblown because subpoenas–administrative or otherwise–are generally not much of a factor during real emergencies, when time actually is of the essence.
If, for example, agents are worried that suspects will destroy evidence if it is not obtained quickly, they don’t use a subpoena. For a subpoena, as already mentioned, does not allow an agent to enter the premises and seize evidence; it merely empowers the agent to advise the person in possession of that evidence that he needs to produce it on a certain future date to the grand jury. Using a subpoena to try to get evidence from bad guys would, in effect, be telling the bad guys: “We’re investigating you and if you happen to have this incriminating evidence lying around, it might be a good idea to get rid of it.” (Breaking news: Murderers, drug dealers and swindlers have already left far behind the moral Rubicon where worry over a possible obstruction charge is a meaningful deterrent.)
No, when dealing with suspected criminals, agents get a search warrant from a court and then go in and take the evidence. They don’t serve subpoenas and then rely on the good faith of the crooks. On the other hand, when dealing with innocent people, the couple of minutes it takes to consult with a prosecutor to get a subpoena are not a concern–indeed, everyday citizens are frequently happy to help the FBI without being forced to.
So, though one would never know it from the ACLU, there is a sound answer to the question of why we might consider denying national-security agents a tool that has long been available to criminal investigators. Experience has not made a compelling case for administrative subpoenas as value-added, but they do present tangible downsides.
Mind you, not sky-is-falling, Constitution-has-been-destroyed, Big-Brother-is-watching dimensions of abuse. That’s idiotic, and an organization making such claims, as has become the ACLU’s wont, is not credible. We are just talking about occasional hassles that could easily be avoided. And by making the cost-free effort to avoid them, government might help convince Americans that, contrary to the ACLU smear campaign, it really is trying to strike the right balance between liberty and security.
–Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.