an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Friday Bush Administration Bad News: FBI abused power to obtain business and personal records without prior judicial approval
The Justice Department Inspector General's Office now reports (here and here) that the FBI abused the administrative subpoena process, by which FBI agents can demand personal records without having to appear before a neutral magistrate. This is not the first time that the FBI's practices have come under scrutiny.
As usual with bad news from the Bush Administration, this material comes out on Friday in order to dampen media coverage. From the New York Times:
The F.B.I. has improperly used provisions of the USA Patriot Act to obtain thousands of telephone, business and financial records without prior judicial approval, the Justice Department’s inspector general said today in a report that embarrassed the F.B.I. and ignited outrage on Capitol Hill.
The report found that the bureau lacked sufficient controls to make sure that its agents were acting properly when they obtained records using administrative subpoenas, which do not require a judge’s prior approval. And the report found that the bureau does not follow some of the rules it does have on the matter.
Robert S. Mueller III, the director of the Federal Bureau of Investigation, called a news conference today to accept responsibility for the lapses, and to pledge his best efforts to see that they are not repeated.
“How could this happen?” Mr. Mueller asked rhetorically. “Who is to be held accountable? And the answer to that is, I am to be held accountable.”
Under the USA Patriot Act, the bureau has issued more than 20,000 demands for information known as national security letters. The report concluded that the program lacks effective management, monitoring, and reporting procedures.
You may recall that one of the effects of the USA Patriot Act was to ease the standards for obtaining records without a warrant. By easing the standards for issuing national security letters, it became even more imperative for someone outside the executive branch to make sure that these new powers were not being misused. However, you may also recall that one of the Bush Administration's infamous signing statements maintained that the Administration could refuse to provide information to Congress necessary for oversight of the FBI's use of national security letters under the USA Patriot Act.
Best not to refer to the investigative techniques discussed in these reports as "administrative subpoenas." The first OIG report you link concerns "national security letters" (principally authorized in 18 USC 2709). These can be issued by the FBI directed to "wire or electronic communication service provider[s]" and, under another similar provision, credit reporting services, for national security investigative purposes. Because they are issued by an agency without judicial approval, and are compulsory (unless challenged in court), they do operate as a sort of administrative subpoena or summons, although that's not what they're called. The second concerns requests for "business records" under sec. 215 of the PATRIOT Act, the provision popularly reviled as the "library records" power. This section authorizes applications for production orders from the FISA Court, not any sort of administrative summons or subpoena. Neither of these, supposedly, is for use in a criminal investigation. The FBI does (disturbingly) have authority to issue "administrative subpoenas" under 18 USC 3486(a)(1)(A), without court review, in the investigation of any federal health care office or child sexual exploitation or abuse case.
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