Why FBI Intelligence Subpoenas Threaten Civil Liberties

The Senate Select Committee on Intelligence has reported out a bill, S. 1266, that threatens civil liberties because it authorizes the FBI to issue so-called “”administrative subpoenas”” in intelligence investigations “”to protect against”” international terrorism or spying for any records or other materials it considers relevant to its intelligence probe. These special, secret subpoenas would be issued without any accountability to a judge, unless challenged by the recipient. If S. 1266 is enacted, these secret FBI subpoenas would dramatically alter the balance between government power and individual liberty. Congress has rejected such powers for the FBI in the past. It should do so again.

FBI Intelligence Investigations Pose Special Risks to Democratic Freedoms

Intelligence investigations are exceedingly broad and can investigate lawful activity, including First Amendment activity.

• The subpoenas could investigate lawful activity. They are not for investigations of terrorism but investigations to protect against terrorism or other national security threats.
• Information that might be sought for an investigation to protect against terrorism or other national security threats is almost limitless.
• For example, imagine an investigation to “”protect against”” a possible terrorist threat against the Internet – not based on any specific plot. What private information might be relevant to such an inquiry?
• Another example – an investigation, again not based on any specific conspiracy, to “”protect against”” the possibility that young men who show special interest in the “”end times”” may be recruited for terrorism. A list of people who checked out books on this topic might certainly be “”relevant”” to such an investigation
• The only protection – that an investigation of a U.S. person may not be based solely on First Amendment activity – provides little protection because investigations are almost never based on one factor alone.

· Intelligence investigations are secret.

• The proposed FBI subpoenas contain an automatic, permanent secrecy order preventing a recipient from disclosing the demand and alerting the public to government abuse.
• Unlike criminal or administrative investigators, intelligence investigators will likely not have to account for their actions in a trial or other public proceeding.
• For example, the result of a secret FBI intelligence investigation may be that a person is prevented from flying by being placed on a no-fly list, or is secretly “”rendered”” to detention by a foreign government.

Ample Powers Already Exist to Obtain Records for Terrorism Investigations

· The FBI already has ample powers to obtain relevant records (including sensitive records like library records, medical records, and other confidential records) relevant to terrorism.

· If there is a reasonable indication of criminal activity warranting a criminal investigation of terrorism, the FBI can obtain:

o Search warrants based on probable cause and approved by a neutral magistrate, which can be immediately executed and can, in an emergency, be obtained by telephone.

o An order from a grand jury properly convened to investigate a federal crime, which can, in an emergency, require the return “”forthwith”” of relevant materials.

· If the FBI is conducting an intelligence investigation to “”protect against”” international terrorism or other national security threats, it can:

o Obtain a secret business records order from the Foreign Intelligence Surveillance Court, based on a certification it is “”sought for”” such an investigation, and

o For communications service provider records, financial records, or credit reports, issue a secret “”national security letter”” (which is like an administrative subpoena in some respects) compelling the business to turn over the records.

· Providing a broad FBI secret subpoena would have the effect of rendering the debate on the limits of FISA records authority and NSLs essentially meaningless, because secret FBI subpoenas will take their place.

· Creating FBI subpoenas would essentially get rid of the already greatly diminished role of judges in overseeing FISA records demands before they are issued under section 215 of the Patriot Act.

o The requirement of prior FISA court review for records demands provided in section 215 – although inadequate because the standards are overly broad – was an important reason why Congress agreed to the Patriot Act.

o Even in the days immediately after 9/11, Congress rejected unfettered FBI access to records in intelligence probes because of the impact such a secret power would have on basic freedoms.

No Valid Precedent Exists for FBI Intelligence Agents to Have Broad Subpoena Powers

· Proponents argue that there already exist 335 “”administrative subpoenas”” that permit the government to obtain records without a court or grand jury – what’s one more?

· In fact, the vast majority – 330 – of these are true “”administrative subpoenas”” – subpoenas that allow regulatory agencies to obtain records in order to ensure compliance by the industry being regulated.

· FBI intelligence agents are not a regulatory agency and the subjects of their investigations – which can include religious, political, and other lawful activities of American citizens – are certainly not a regulated industry.

· Each of the five “”administrative subpoenas”” that used mainly in criminal investigations is far narrower than the authority the FBI is now seeking:

o Inspector General subpoenas (5 U.S.C. App III) – IGs are unique watchdogs primarily focused on government wrongdoing – waste, fraud and abuse;

o Secret Service subpoenas (18 U.S.C. § 3486(a)(1)(A)(ii) – These narrow subpoenas are only allowed for an “”imminent”” threat to a protectee and are rarely used as a result (normally, grand jury subpoenas are used);

o Justice Department Medicare/Medicaid fraud subpoenas (18 U.S.C. § 3486(a)(1)(A)(i)(I)) – these subpoenas, while criminal, involve investigations of a highly regulated government program involving the use of taxpayer funds, with special protection for patient privacy;

o FBI Controlled Substances Act subpoenas (21 U.S.C. § 876) – these subpoenas grew out of a regulatory scheme involving pharmacies and doctors dispensing of regulated drugs; the FBI acquired this power when it was given joint jurisdiction over enforcement with the Drug Enforcement Agency (DEA);

o FBI child abuse subpoenas (18 U.S.C. § 3486(a)(1)(C)) – these are mainly used to obtain subscriber account information from ISP – a power the FBI already has in intelligence investigations using “”national security letters.””

FBI Cannot Be Expect to Act As a Check on Itself

· With few exceptions, the FBI’s ability to compel production of records in both criminal and national security investigations is subject not only to after-the-fact judicial review, but also to outside checks on the issuance of such demands.

· In criminal investigations, most subpoenas are issued under the authority of the grand jury.

o The grand jury is an ancient institution recognized by the Magna Carta in 1215 and its independence from the prosecution was settled long before the Constitution.

o Grand jurors are ordinary citizens who act as a check on both prosecutors and the FBI – operating (in the words of a handbook for grand jurors) both as a “”sword”” and a “”shield”” – “”protecting citizens from unwarranted or inappropriate prosecutions.””

o Grand jurors take an oath to inquire “”diligently and objectively”” and are to determine “”without malice, fear, hatred, or other emotion”” whether there is probable cause that a crime has been committed.

o Grand jury subpoenas can only be obtained with the approval of a federal prosecutor for the purpose of further the grand jury’s investigation into serious federal crimes.

· In intelligence investigations, the FBI operates under the authority of the Foreign Intelligence Surveillance Court.

o The FISC also operates as a “”sword”” (permitted extraordinary, secret surveillance) and a “”shield”” (acting as a check on the executive’s national security powers.)

o FISC approval is required for the FBI to use intrusive intelligence surveillance powers – including wiretaps, physical searches, and demands for records.

· Administrative subpoenas would give the FBI all of the extraordinary, secret powers of the grand jury and the FISA court, without the historic independence of those powers from the executive that allows those institutions also to function as a “”shield”” against government excess.

Review After-the-Fact Is An Insufficient Check for Intelligence Investigations

· Vast quantities of information are held by third parties and businesses as a result of the digital revolution, including intimate details medical records, genetic information, or a personal calendar.

· Businesses or other third parties will receive immunity and their customers will never know their records have been obtained. As a result, they have little or no incentive to challenge.

· The standard of review of “”administrative subpoenas”” is based on judicial deference to administrative agency regulatory expertise, and is entirely inappropriate to protect against abuse of the FBI’s intelligence powers.

· For example, if a runaway FBI agent requested that a credit card company secret disclose all the credit card purchases of the members of an unpopular organization, the company would have little incentive to seek review because it 1) is unlikely to succeed in a challenge under the deferential standard applied to administrative subpoenas, 2) will receive immunity for complying, and 3) will never have to inform its customers their privacy was violated.

Strong Checks Are Needed Because the Stakes Are Higher

· FBI intelligence investigations to protect against national security threats can lead to outcomes far more serious than investigations of “”crooked doctors”” or other administrative probes.

· Intelligence information is often used outside a transparent court process to take adverse action, such as by putting a suspect on a “”no fly”” list or being fired from a government job.

· “”Crooked doctors”” do not face being locked up as illegal enemy combatants without charge or access to a lawyer; being “”rendered”” to Egypt or Syria to face possible torture; being deported with secret evidence; or being charged with one of the 23 federal terrorism crimes that carries a death sentence.