Yesterday's papers reported that Senator Roberts of the Senate Intelligence Committee has a bill in the works that would give the FBI the administrative subpoena authority it has been seeking in terrorism cases. So you're wondering: what's administrative subpoena authority? And should the FBI have it? I wanted to offer a few thoughts to shed light on the first question and frame the second. (Warning: long and inconclusive post ahead.)

  First some background, taken largely from my recent testimony on the Patriot Act. At the most basic level, any modern legal regime that allows the government to investigate crime or terrorism must address a number of basic methods for acquiring information. In particular, the law must cover three basic types of authorities:

1) Authority to conduct physical searches to retrieve physical evidence or collect information.
2) Authority to compel third parties to produce physical evidence or disclose information.
3) Authority to conduct real-time monitoring over communications networks.

  In the case of criminal investigations, the legal regime that covers these authorities is well established. The first authority is governed by the traditional Fourth Amendment warrant requirement. The police must have a search warrant based on probable cause to enter a home or business unless a person with apparent or actual authority over the place consents, exigent circumstances exist, or another exception to the warrant requirement applies.

  The second authority is governed by the Fourth Amendment rules governing subpoenas. A subpoena is an order to compel: it requires the recipient to either report to testify or to disclose physical evifence at a particular time and place. Although many different types of subpoenas exist, the basic idea is that the subpoena authority is vested in some body, whether in the grand jury (which is really run by prosecutors, but at least in theory is just a groups of citizens) or a government agency. A subpoena can be issued under a wide range of circumstances: the information need only be relevant to the government’s investigation, and compliance with the subpoena cannot be overly burdensome to the subpoena recipient. No judge is consulted before the subpoena is issued; instead, the recipient of the subpoena can challenge it in court before complying.

  So much for the regime applicable in criminal cases. What about the law for intelligence investigations? In these cases, the government is not trying to deter and punish crime, but rather to collect intelligence ifnromation about threats to the Nation so it can defend itself. The law governing monitoring for intelligence purposes is somewhat different than the law governing evidence collection for criminal cases. The Fourth Amendment’s requirements are much less clear – and generally less strong – than in the routine criminal context. As a general matter, the few courts that have confronted how the Fourth Amendment applies to intelligence collection have held that the rules are somewhat similar to the rules for criminal investigations but also more flexible. When the Fourth Amendment applies, information and evidence collection must be reasonable in light of the countervailing demands and interest of intelligence collection. See United States v. United States District Court, 407 U.S. 297, 323-24 (1972); In re Sealed Case, 310 F.3d 717, 745-46 (Foreign Int. Surv. Ct. Rev. 2002). This legal framework appears to place Congress in the primary role of generating the law governing intelligence collection, with the Fourth Amendment serving as a backstop that reviews Congress’s approach to ensure that it is constitutionally
reasonable.

  Congress has responded to the challenge by passing the Foreign Intelligence Surveillance Act, also known as “FISA.” FISA attempts to create a statutory regime for intelligence monitoring that largely parallels analogous rules for gathering evidence in criminal cases. First, 18 U.S.C. §§ 1821-29 covers the authority to conduct physical searches, a parallel to the provision of the Federal Rules of Criminal Procedure that allows investigators to obtain a search warrant in criminal cases. Second, 18 U.S.C. §§ 1861-62 and 18 U.S.C. § 2709 covers authority to compel third-parties to disclose records and physical evidence, a parallel to the provision of the Federal Rules of Criminal Procedure that allows the issuance of subpoenas in criminal investigations.

  Okay, enough background. The debates over the FISA-related provisions of the Patriot Act — and the current debate on whether the FBI should have administrative subpoena authority — focus primarily on the second type of authority: powers to compel third parties to produce physical evidence or disclose information. For the most part, such powers to compel are used to obtain business records from third parties, like the phone company, banks, Internet service providers, and the like that have records relating to what the suspect has been up to recently. (It generally doesn't work to serve an order to compel on a suspect directly, as that tips off the suspect to the surveillance and raises Fifth Amendment privilege issues.) Specifically, critics object to the weak privacy regulations found in provisions such as Section 215 of the Patriot Act that address the government’s power to compel third parties to produce physical evidence or disclose information in intelligence cases. And they object to vesting the power to issue such orders in an agency like the FBI. The general concern is that these orders to compel give the government too much power, as they allow the government to issue an order without getting careful judicial review of the order beforehand.

  So what standard should apply? The difficult part about this question is finding the right frame of reference. If your frame of reference is the grand jury subpoena power in the criminal context, then giving the FBI administrative subpoena power probably doesn't seem so objectionable — it raises some concerns, but isn't entirely objectionable. The reason is that the grand jury subpoena power is already tremendously broad. The Supreme Court has held that a grand jury subpoena can be issued if the order to compel seeks information that may be relevant to a criminal investigation. See United States v. R. Enterprises, Inc., 498 U.S. 292 (1991). This authority “paints with a broad brush” by design, permitting subpoenas to be issued ordering third parties to disclose physical evidence and information “merely on suspicion that the law is being violated, or even just because . . . assurance [is sought] that it is not.” Id. at 297 (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). The Court has justified this low standard on the ground that orders to compel evidence from third parties are preliminary investigative tools designed to determine if more invasive forms of surveillance are necessary. "[T]he Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists." See R. Enterprises, Inc., 498 U.S. at 297.

  The question is, should the government have an analogous power in intelligence investigations, and if so, what is exactly is the intelligence analogy to traditional criminal grand jury subpoena authority? On one hand, it makes some sense to give the government that power: if the government has long had the power to issue subpoenas in minor crime cases, it seems a bit strange that they don't have this same power in terrorism cases. In that sense, giving the FBI administrative subpoena power simply recognizes the historically contingent limitations on the grand jury power. At the same time, it's not clear that FBI administrative subpoena power would really be analogous to the grand jury power. If an FBI agent wants a subpoena, he still needs to go to a prosecutor; the proseuctor issues the subpoena in the name of the grand jury. This introduces one important check on the system, as the investigative agency cannot issue the grand jury subpoena itself. If you want the FBI to be tempered in its efforts by the check of another agency, administrative subpoena authority can seem troublesome.

  But once again, this depends on your frame of reference. More civil libertarian readers will object to the subpoena power, and argue that we should judge orders to compel evidence (category #2) based on the legal standards that traditionally govern orders to conduct direct searches (category #1). There are reasons why the law regulates category #2 less strongly than category #1 — Judge Friendly had the classic explanation in a case called United States v. Horowitz, and lawprof Bill Stuntz has doen a lot of great work on this area — but many will find these arguments unpersuasive and want orders to compel to follow the traditional warrant requirement. The subpoena power will seem like an end-run around the usual protections. At the same time, other readers may take the opposite frame of reference, and note that many agencies have had administrative subpoena power already, as detailed in this very good report from the Congressional Research Service. If lots of agencies have this power already, they'll reason, why not give it to the FBI for the most important of investigations?

  As this inconclusive post suggests, I'm not sure of where I come out on the bottom line. On one hand, I do think that the regime of intelligence investigation needs some kind of subpoena equivalent. All successful regimes of evidence collection rely on a mix of low-threshold investigatory steps and higher-threshold investigatory steps; the idea is that investigators should be able to do the less-invasive low-threshold investigatory steps to get evidence to be able to rule out or reaffirm the need to conduct more-invasive higher-threshold investigatory steps. I don't see why intelligence investigations are different on that score. At the same time, I'm not sure that giving the FBI administrative subpoena authority is the way to go. While a number of agencies have such power, they tend to have more limited scope. My initial sense is that there must be ways of increasing oversight beyond that of administrative subpoenas without interfering with their effectiveness as investigative tools. I hope Congress takes a hard look at them before giving the FBI administrative subpoena authority.

  Hat tip: Phil Carter, who also has thoughts on this.