Michael Woods, a very smart lawyer who was at the FBI when I was at DOJ, makes the case for giving the FBI administrative subpoena power in terrorism cases in this op-ed today in the Washington Times.
It’s by far the best argument I have seen, but I’m still not convinced. I prefer the current solution offfered in part by Section 215: require agents to get a court order, even under a low threshold. I would then allow the same sort of judicial review as you would allow for a subpoena.
The reason I would require a court order isn’t that I think judicial review under a relevance standard puts up such a strong barrier. It doesn’t. Rather, getting FISA court approval is helpful because only DOJ can go to the FISA court and apply for a Section 215 order. To get the court order, the FBI has to clear the application through another part of the executive branch, namely DOJ’s Office of Intelligence Policy Review.
To an outsider, this may not seem like a big deal. After all, technically it’s one part of DOJ asking for permission from another part. But in practice, it creates a significant common-sense check on the FBI’s power. DOJ can not only ensure that the application meets the legal threshold, it can also ask about the overall course of the investigation and ensure that the request for information is appropriate as a matter of judgment. That check is missing under the administrative subpoena standard.
Finally, I can’t help but wonder whether the push for administrative subpoena power has been eased by the overreaction to Section 215, the so-called library records provision of the Patriot Act. By singling out Section 215 as a target, critics of the Patriot Act made it seem sui generis. As a tactical matter, this let the FBI say that it was willing to eliminate the power in favor of the subpoena power instead. As best I can tell, the fact that the subpoena power is greater than the Section 215 power has been more or less lost in the shuffle, as the subpoena power is more familiar and harder to hype than Section 215. If I’m right about that, it may turn out that Section 215 hype will end up helping to expand the scope of government power rather than limit it.
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