Speaking yesterday at the FBI training academy in Quantico, Va., President Bush argued that terror investigators should be allowed to use "administrative subpoenas," which do not require the approval of a judge. "If we can use these subpoenas to catch crooked doctors," he said, "the Congress should allow law enforcement officials to use them in catching terrorists." What are administrative subpoenas, and who can use them?
Unlike a traditional court-ordered subpoena—a request for testimony or documents from a third party that's authorized by a judge or grand jury—an administrative subpoena is authorized by officials in the Food and Drug Administration, the Treasury, or whatever other agency government investigators might be working for. They're actually a widely available tool: Investigators can issue "administrative subpoenas" in cases of racketeering, health-care fraud, and over 300 other areas of law. (Congress occasionally grants agencies this authority to help them streamline investigations.) As with any other subpoena, those who fail to comply face penalties—including contempt of court charges or fines. With an administrative subpoena, however, investigators must get a special U.S. District Court order before imposing such punishments. * So Bush's speech was correct: It is possible to subpoena evidence for a health fraud investigation without going through a judge.
What Bush did not mention is that terror investigators already have many administrative subpoenalike powers, some of which were expanded by the Patriot Act. According to Section 505 of the act, the attorney general or his chosen delegate can issue a "national security letter" requesting information on various financial records, e-mail, and phone logs that would aid a terror investigation. Hundreds of these letters have already been issued, judging by a heavily redacted document extracted from the Department of Justice by an ACLU Freedom of Information Act suit. However, according to a Justice spokesman, these letters are not binding—if a company served with an NSL refused to provide your phone records, investigators would still need an old-fashioned subpoena to threaten any sort of punishment.
If terror investigators can already use NSLs and grand jury subpoenas, why might they want to add administrative subpoenas to their arsenal? The Justice spokesman noted that administrative subpoenas can be served faster than grand jury subpoenas since "no grand jury meets at 4 a.m. on a Saturday morning." They would also save federal investigators the effort of justifying their actions to a grand jury. And, of course, they would be backed by the indirect threat of contempt charges for any who fail to comply.
Bonus Explainer: What does "subpoena" actually mean? The term comes from the medieval Latin sub poena, which means "under penalty."
Explainerthanks Ronald Clark of Arent, Fox, Kintner, Plotkin, & Kahn, PLLC, and Mark Corallo of the Department of Justice.
Correction, Sept. 15, 2003: The original version of this article incorrectly equated administrative subpoenas with court-ordered subpoenas, stating that all subpoenas carry punishments for those who do not comply. In fact, investigators who issue an administrative subpoena must still get a court order before any fines or contempt of court charges can be brought against an unwilling witness. (Return to corrected sentence.)
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