Free Expression Groups to Senate Intel: No Administrative Subpoenas

In a letter dated May 23 to Senate Select Committee on Intelligence Chairman Pat Roberts and Vice Chairman John D. Rockefeller IV, booksellers and free speech groups, including ABA, the Association of American Publishers (AAP), and the Center for Democracy and Technology (CDT) expressed their opposition to granting the FBI in national security investigations "administrative subpoena" powers. Administrative subpoenas would allow the FBI to write its own search and disclosure orders with no judicial approval.

On Thursday, May 26, Senate Select Committee on Intelligence will be conducting a closed-door "markup" session on the USA Patriot Act, where members will vote on a proposal to reauthorize the sunsetting provisions and expand the act by granting law enforcement "administrative subpoena" powers. According to the New York Times, some "civil rights advocates said they considered the new proposal to be a stealth 'power grab' by the F.B.I. and the administration at a time when the Senate had been preoccupied by debate over judicial filibusters."

In the letter, the groups stressed, "We are writing to express our opposition to granting to the FBI in national security investigations so-called "administrative subpoena" powers, which would allow the FBI to write its own search and disclosure orders with no judicial approval.

"At the very time when there seems to be an emerging consensus around adding meaningful checks and balances to Patriot Act powers to protect against government abuse, 'administrative subpoenas' would represent a new, unchecked power. At the very time when the Attorney General is supporting amendments to strengthen judicial oversight of orders under Section 215 of the Patriot Act, authorization of 'administrative subpoenas' would move radically in the opposite direction."

The letter reported that the FBI has sought general administrative subpoena power for decades, which Congress has repeatedly refused to grant "out of concern for the unchecked nature of such authority." The groups add, "[T]he FBI already has far-reaching compulsory powers to obtain any relevant information when it is investigating terrorism, under both its criminal and intelligence authorities.... [G]iven the widespread public and Congressional concern that some of the existing Patriot Act powers are not subject to sufficient checks and balances, there is no justification for going even further down the path of unchecked authority."

In addition to expanding the use of administrative subpoenas, according to an American Library Association press release, the Senate Intelligence Committee's proposed legislation would:

• Make permanent Patriot Act powers without safeguards. The bill makes all expiring provisions permanent, with one exception (Section 223).
  
  
• Not provide adequate safeguards to protect library and other private records. While the bill would (1) allow a recipient of a FISA records search order (Patriot Act Section 215) to consult with an attorney or other person necessary to comply with the request, and (2) make the standard for issuing an order explicitly made "relevant to" rather than "sought for," the bill offers no explicit right to challenge the records search order, or to challenge the gag order, even though multiple witnesses from the Department of Justice have stated that they would agree to such amendments.
  
  
• Apparently strike an existing First Amendment safeguard for records search powers. Under Section 215 of the Patriot Act, where an application for records is made under FISA, there is an express proviso that "such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." This safeguard is inadequate, but DOJ has pointed to it on countless occasions in defense of the Patriot Act.

In addition to ABA, AAP, and CDT, other signatories of the letter are: American Civil Liberties Union; American Policy Center; Association of American Physicians and Surgeons; Association of American Publishers; Bill of Rights Defense Committee; Center for American Progress; Center for National Security Studies; Cyber Privacy Project; Electronic Frontier Foundation; Electronic Privacy Information Center; Fairfax County Privacy Council; Free Congress Foundation; Friends Committee on National Legislation; Gun Owners of America; Liberty Coalition; National Asian Pacific American Legal Consortium; National Association of Criminal Defense Lawyers; People For the American Way; Privacilla.org; Republican Liberty Caucus; The Rutherford Institute; and U.S. Bill of Rights Foundation.

To read the letter in full, click here. --David Grogan