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Comments on Criminal Issues
September 30, 2007
CRIMINAL DEFENSE ATTORNEYS KNOW FIRST HAND THE FBI CANNOT BE TRUSTED WITH UNCHECKED INVESTIGATIVE POWERS, ADMINISTRATIVE SUBPOENAS
The USA Patriot Act was became law on October 26, 2001 – some six weeks after the 9/11 terrorists attacks on the twin towers of the World Trade Center. The Act increased the government’s surveillance powers in both criminal and intelligence investigations, permitting an easier process for the law enforcement and intelligence communities to share information while conducting these two types of investigations.
The U.S. Justice Department maintains that “many of the tools the [Patriot] Act provides to law enforcement to fight terrorism have been used for decades to fight organized crime and drug dealers.” The ACLU has been highly critical of this position, pointing out that it “is based on a false equation of foreign intelligence investigations with terrorism investigations, and criminal investigations with non-terrorism investigations (i.e., ‘organized crime and drug dealers’).”
The ACLU underscores its criticism by saying that terrorists can be investigated with criminal powers and that foreign intelligence powers are not limited exclusively to terrorists. The civil rights group on its website then defined both types of investigations:
• Criminal investigations are investigations of federal crimes, using powers like criminal search warrants and jury subpoenas. Criminal investigations are not limited to “ordinary” street crime or the Mafia, but can and do include investigations of terrorists, including Al Qaeda. Criminal investigations are also not limited to crimes that have already happened, but can also include the investigation and prevention of what are called “inchoate” crimes, including conspiracy, attempt, and solicitation. The guidelines for conducting criminal investigations (including what level of suspicion is required for certain intrusive techniques) are public.
• Foreign intelligence investigations are domestic investigations to obtain “foreign intelligence information,” often using the special powers of the Foreign Intelligence Surveillance Act (FISA). Foreign intelligence investigations may involve investigation of criminal activities of American citizens and residents. The guidelines for conducting foreign intelligence investigations (including what type of suspicion is required for certain intrusive techniques) are classified.
Three years after 9/11, the Federal Bureau of Investigation created its “Strategic Plan 2004-2009” – a five-year road map of the strategic goals and objectives of the agency and its commitment to fulfill the imperatives of the President, the Attorney General, and the Director of Central Intelligence (DCI). Federal Director Robert Meuller established ten priorities for the agency:
• Protect the United States from terrorist attack.
• Protect the United States against cyber-based attacks and high technology crimes.
• Combat public corruption at all levels.
• Protect civil rights.
• Combat transnational and national criminal organizations and enterprises.
• Combat white color crime.
• Combat significant violent crime.
• Support federal, state, local, and international partners.
• Upgrade technology to successfully perform the FBI’s mission.
Five years before 9/11, the United States Congress enacted the Health Insurance Portability and Accountability Act of 1996 (HIPPA). See: 18 U.S.C. § 3486 (2000). Under this legislation, the Attorney General was vested with “administrative subpoena power” to conduct criminal investigations into health care fraud. Congress created this power in response to the “public outcry against this prevalent crime and its effect on the rising cost of health care.” See: Berkower, Risa, “Sliding Down a Slippery Slope? The Future Use of Administrative Subpoenas in Criminal Investigations,” 75 Fordham L. Rev. 2251, 2252 (April 2005)[hereinafter “Fordham”].
“Administrative subpoena power” is an extraordinary government investigatory weapon because it allows its investigators to bypass the Fourth Amendment’s probable cause requirement to gain access to private records. See: Powell v. United States, 379 U.S. 48, 57 (1964)[holding that IRS administrative subpoenas do not have to satisfy probable cause requirement]; SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 741-42 (1984)[applying Powell to all administrative subpoenas].
Berkower wrote that “in a May, 2002 report to Congress. the Department of Justice's Office of Legal Policy found that Congress had granted health care fraud investigators a highly effective investigatory tool. Administrative subpoenas proved extremely useful to both investigators and prosecutors because, unlike traditional investigatory tools, the administrative subpoenas enabled law enforcement agents acting on mere suspicion to access private information and placed few prohibitions on the use of that information.” Id., Fordam at 2252. See also: Office of Legal Policy, U.S. Department of Justice, Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities 35 (2002)[report required by the Presidential Threat Protection Act of 2000][hereinafter “DOJ Report”].
To illustrate traditional usage of administrative subpoenas, Berkower presented an example where FBI agents suspect a physician is involved in a scheme to defraud health insurance companies through over-billing. While they do not have sufficient probable cause for a search warrant, the agency can use its administrative subpoena power to compel the production of the doctor’s records; and if those records reveal any evidence of fraud, the U.S. Attorney can prosecute the physician. Id., Fordam.
The Fourth Amendment’s probable cause requirement not only protects those suspected of criminal wrongdoing but innocent citizens as well from unreasonable government intrusion into their private lives. It is disturbing that administrative subpoena power can circumvent this fundamental constitutional protection. Berkower presented an even scarier scenario to illustrate this concern: the FBI suspect that a chemical attack is being planned by an al-Qaeda sleeper cell in a particular city. The FBI targets a hardware store where the agency believes the chemicals to be used in the attack were purchased, but they do not have the necessary probable cause to get a search warrant to seize the store’s sales records. Should the agency be allowed to go after those records with an administrative subpoena?
Since 9/11, the FBI, and other federal officials, have lobbied Congress that the agency should have this power. See: Cuming, Alfred & Masse, Todd, Congressional Research Service, FBI Intelligence Reform Since September 11, 2001: Issues and Options for Congress 1, 4 (Apr. 6, 2004). President Bush has strongly supported these lobbying efforts, saying: “’[i]f we can use these [administrative] subpoenas to catch crooked doctors … the Congress should allow law enforcement officials to use them in catching terrorists’.” See: Sanger, David E., “President Urging Wider U.S. Powers in Terrorism Law,” N.Y. Times, Sept. 11, 2003, at A1 (quoting President Bush's Sept. 10, 2002 address at the FBI training academy in Quantico, Virginia).
Immediately after 9/11, Congress was willing to expand the FBI’s traditional investigatory powers in its intelligence-gathering. Title V, Section 505, of the Patriot Act amended 18 U.S.C. § 2709 to allow the FBI to issue “National Security Letters” (NSL) to wire or electronic communication service providers. An NSL “is an administrative subpoena that allows the FBI to gain access to … ‘subscriber information … or electronic communication transactional records’ held by internet service providers, when this information is ‘relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities …’” See: Doe v. Gonzales, 449 F.3d 415, 417-18 (2nd Cir. 200). See also: 18 U.S.C. § 2709(a) & (b)(2).
The Patriot Act, however, did not extend to the FBI the broad powers to conduct domestic terrorism investigations that it enjoys conducting international investigations. The Bush administration, therefore, has pushed hard for an increase in the FBI’s investigatory powers in domestic terrorism cases. Id., DOJ Report.
Should HIPPA’s administrative subpoena power be extend to the FBI in domestic terrorism investigations? Berkower discussed this thorny issue at length:
“President Bush, the Justice Department, and individual Congressmen and Senators have all pushed Congress to grant administrative subpoena power to the FBI for terrorism investigations. Proponents argue that the FBI should have the power to obtain on demand any documents or ‘tangible things’ related to a domestic terrorism investigation. Two bills to authorize administrative subpoena power for terrorism investigations have already been proposed in both houses of Congress. The proposals would allow the FBI to issue its own subpoenas. Subpoenaed parties that comply with the demand would be granted immunity from any resulting civil liability. In circumstances where the Attorney General self-certifies that disclosure would endanger national security, subpoena recipients would be barred from disclosing to anyone, except legal counsel, that the subpoena was issued. These bills immediately sparked heated debates in the House and Senate Judiciary Committee hearings.
“The debate over whether administrative subpoena power should be given to the FBI for terrorism investigations raises three important questions. First, and most importantly, can this power be granted without undermining Fourth Amendment safeguards against unreasonable searches and seizures? Second, if Congress does give the FBI administrative subpoena power, what limitations, if any, should be imposed upon the FBI in using the power? Finally, on a practical level, would administrative subpoenas provide investigators with too much information to be useful as an effective investigatory tool?
“Although giving the FBI administrative subpoena power for terrorism investigations would be an unprecedented grant of power, supporters argue that Fourth Amendment rights would not be infringed. According to the federal appellate courts that have examined the use of administrative subpoenas in criminal health care fraud investigations, the subpoenas do not violate the Fourth Amendment. Administrative subpoena power could not be abused by investigators because the subpoenas would be subject to judicial review and could only be enforced by a federal court. As with all administrative subpoenas, any subpoenaed party could bring a challenge to the demand in federal court, subject to the Powell reasonableness test, and a denial of a motion to quash would be immediately appealable as a final order. Since judicial review would ensure that only the reasonable subpoenas are enforced, use of the subpoenas would not violate Fourth Amendment rights. Critics respond to these proposals with two concerns.
“First, as in the health care context, administrative subpoenas for terrorism investigations would permit the government to use private information obtained without probable cause in a criminal investigation. However, differences between health care fraud and terrorism indicate that while a relaxed Fourth Amendment standard may be appropriate for health care investigations, this may not be the case for terrorism investigations. A health care fraud investigation is similar to a regulatory agency investigation because, since the evidence of wrongdoing only exists in a provider's business and financial records, a probable cause requirement would impede an effective investigation. A terrorism investigation, however, could be pursued by using many tactics; useful information could likely come from many sources, not just one determinate set of business records. As a result, applying a relaxed Fourth Amendment standard to terrorism investigations may not always be necessary. However, applying this relaxed standard to all terrorism investigations would enable the FBI to evade Fourth Amendment probable cause requirements to access suspects' private information in a wide range of circumstances.
“Adding to the gravity of this Fourth Amendment problem, critics note that terrorism administrative subpoenas would give the FBI access to an unprecedented amount of private information without probable cause. Administrative subpoenas provide investigators with access to all information “relevant to” the investigation. But because of the differences between Medicare fraud and terrorism, administrative subpoenas in the terrorism context would give the FBI access to significantly more information. Since Congress defined health care fraud narrowly, the range of documents ‘relevant to’ the crime is limited to the provider's professional, business, and financial records. However, as the September 11, 2001 attacks unfortunately demonstrated, and as the federal international terrorism statute reflects, the range of information that could be ‘related to’ terrorist activities is infinitely broad--anything from flight school enrollment to rental car reservations. Administrative subpoena power could be an effective investigatory tool for the FBI because it would provide broad access to private information, but the information would come at the cost of individuals' Fourth Amendment privacy rights in many different contexts.
“Second, critics argue, in practice, judicial safeguards would not protect individuals' privacy from unreasonable terrorism administrative subpoenas. Even if a reasonableness standard would not violate the Fourth Amendment, judicial review would not weed out unreasonable subpoenas because recipients have no incentive to challenge the demands. To challenge a subpoena, the recipient faces a high burden of proof to prevail and must bear all litigation costs. While this alone is not significant, as courts accept administrative subpoenas as legitimate in other contexts despite these conditions, using these subpoenas in terrorism investigations would be subtly--but critically--different. When the FBI subpoenas a health care provider's records in a Medicare fraud investigation, that health care provider is under investigation. However, if the FBI were to subpoena an internet service provider's business records for a terrorism investigation, the investigation would likely be focused on one of the company's clients, not the company itself. The internet service provider would be a third party, not under investigation, and would be shielded from all civil liability, including lawsuits for violating privacy agreements with customers. Further, the customers themselves, even if alerted to the demand, do not have standing to challenge the demand. While the subpoenaed health care provider would have an incentive-- the provider's own future criminal liability--to bear the costs and the high risk of losing a motion to quash the subpoena, a third party insulated from liability has no similarly compelling reason to resist compliance with even unreasonable subpoenas. In the context of terrorism investigations, because third party subpoena recipients have no incentive to challenge the FBI's demands, judicial review cannot actually protect the privacy rights of individuals under investigation.” Id., Fordam at 2271-76[footnotes omitted](Emphasis supplied).
FBI Director Mueller has publicly conceded that his agency abused the enhanced surveillance powers granted to the FBI by Congress in the Patriot Act. The agency has sought, and secured, a significant number of NSLs that were nothing more than “fishing expeditions” into the private lives of the clients of internet service providers. Allowing the FBI, and other intelligence gathering agencies, to circumvent the constitutional restraints associated with traditional investigatory tools, such as search warrants/probable cause and grand jury subpoenas, to obtain private information puts the very concept of individual privacy at significant risk.
Some federal district court judges agree. On September 6, 2007 a New York federal judge struck down the NSL provisions of the Patriot Act that allows the FBI e-mail and telephone data from internet service providers without a search warrant. More recently, September 26, 2007, an Oregon federal judge struck down two provisions of the Patriot Act because they permit “the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.” U.S. District Judge Ann Aiken observed that “for over 200 years, this Nation has adhered to the rule of law – with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised.”
The Oregon ruling came in the case of attorney Brandon Mayfield. In 2004 following a terrorist attack in Spain, the FBI bungled a fingerprint analysis and arrested Mayfield as a conspirator in that attack. Utilizing its expanded Patriot Act powers, the FBI secretly entered Mayfield’s house and law offices to plant surveillance bugs, search his computer files, examine his personal photos, and monitor his telephone conversations in his law office.
In 2006 the FBI was forced to settle a civil rights lawsuit filed by Mayfield, agreeing to pay the attorney $2 million in damages and apologize for the suffering the agency caused him. The FBI settled the Mayfield lawsuit because it did not want its pattern of unlawful surveillance activities, which Director Mueller has conceded to, revealed in a public trial.
In response to cases like Brandon Mayfield, Congress on March 9, 2006 amended the Patriot Act with what has become known as the “Reauthorization Act.” This act significantly altered 18 U.S.C. § 2709 and added new provisions codified in 18 U.S.C. § 3511 which now governs judicial review of FBI requests for NSLs and permits recipients of an NSL to challenge them in court. See, Doe v. Gonzales, supra, 449 F.3d at 418-19
The Reauthorization Act itself poses several significant constitutional concerns. First, it bars a reviewing court from either vacating or modifying non-disclosure orders associated with NSLs except in situations where “there is no reason to believe” that the disclosure would be harmful. Second, the reviewing court is forced to pay judicial deference to any executive determination of whether such disclosure would be harmful. In effect, there is no meaningful judicial review under the Reauthorization Act. See: Jaffer, Jameal, “Panel Report: Secret Evidence in the Investigative Stage: FISA, Administrative Subpoenas, and Privacy,” Cardoza Public Law, Policy and Ethics Journal 7, 25 (Fall 2006).
Berkower identified three significant differences between administrative subpoena power and the two traditional criminal investigatory tools: search warrants and grand jury proceedings.
First, as previously noted, administrative subpoenas do not require probable cause prior to issuance. This constitutional requirement has “roots that are deep in our [nation’s] history” and was created to protect private citizens from indiscriminate searches and seizures. See: Henry v. United States, 361 U.S. 98, 100 (1959). See also: Illinois v. Gates, 462 U.S. 213, 236 (1983)[“possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct”]; United States v. Chadwick, 433 U.S. 1, 9 (1977)[a search warrant “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search”].
Second, while a district court’s denial of a motion to quash or modify an administrative subpoena is an appealable order, the appellate courts rarely intervene because administrative subpoenas do not enjoy the same Fourth Amendment protection of reasonableness as a search warrant. The Supreme Court has set forth a narrow four-prong test for assessing the reasonableness of administrative subpoenas under the Fourth Amendment:
• Whether the investigation is conducted pursuant to a legitimate purpose.
• Whether the information requested by the subpoena is relevant for this purpose.
• Whether the information sought is already within the agency’s possession.
• Whether the agency followed all statutory requirements in using the subpoena.
See: Powell, supra, 379 U.S. at 57-58.
Finally, unlike grand jury proceedings whose information is secret, information obtained through an administrative subpoena can be shared between government agencies. The Supreme Court has established five justifications for grand jury secrecy:
• To prevent criminal suspects from fleeing.
• To ensure that the grand jury can deliberate freely.
• To prevent witness tampering or subornation of perjury.
• To encourage witnesses to testify fully and honestly;
• To protect the privacy of accused parties who are ultimately exonerated.
See: Douglas Oil, Co. v. Petrol Oil Stops Northwest, 441 U.S. 211, 219 n. 10 (1979). See also: Fordham, supra, at 2251-64.
While Congress continues to debate the issue of whether the FBI should be granted administrative subpoena power in terrorism investigations, Berkower has identified limitations that should be placed on the agency’s use of the information obtained through these subpoenas:
”If Congress grants administrative subpoena power to the FBI for terrorism investigations, the question then becomes how, if at all, Congress should limit the power. Advocates in favor of granting the FBI terrorism subpoena power regularly cite the effectiveness of administrative subpoenas in investigating and prosecuting Medicare fraud to justify using the power in a wide range of terrorism investigations. Critics, however, point out that Congress subjected Medicare fraud subpoena power to strict limitations to protect the privacy of patients uninvolved in the fraud. In the terrorism context, without clearly defined boundaries, critics argue, administrative subpoena power would give the FBI extraordinary power that could be too easily abused or overused. In its report, the 9/11 Commission stated that in considering the future tools necessary to fight terrorism, in light of concerns for civil liberties, ‘[i]f [an executive branch] power is granted, there must be adequate guidelines and oversight to properly confine its use.’ Using the 9/11 Commission's recommendation as a starting point, and drawing upon the FBI's experience with Medicare fraud administrative subpoenas, two questions arise regarding the necessary limits on FBI subpoena power.
“1. Governmental Use of Information Accessed Through Administrative Subpoenas
“The usefulness of the information obtained by an administrative subpoena would be different in a health care investigation and in a terrorism investigation. An administrative subpoena is useful to Medicare fraud investigators because it provides access to a determinative set of documents: the health care provider's business and financial records. After an investigation ends, however, the statute requires that the seized records cannot be used further unless they reveal evidence of additional Medicare fraud. In the health care context, Congress outlawed using any confidential information accessed by administrative subpoenas in a larger criminal investigation because such an investigation would compromise the privacy rights of patients not implicated in the fraud.
“In the terrorism context, however, the vast amounts of information obtained by administrative subpoenas would likely be used for data mining. Objectively, data mining presents terrorism investigators with a useful tool because it picks out significant patterns in huge quantities of information. Data mining enables investigators to ‘connect the dots’ between seemingly insignificant events. In the months leading up to September 11, 2001, the FBI failed to notice and connect significant pieces of information that could have uncovered the terrorist plot, in part because of insufficient information analysis. As Mary DeRosa points out in her report on data mining for the Center for Strategic and International Studies, basic data mining using government watch list information, airline reservation records, and aggregated publicly available data would have linked together and identified all nineteen of the September 11, 2001 hijackers. Because of the growing importance of subtle and superficially unconnected pieces of information, computer-based data mining could provide valuable assistance to investigators faced with large quantities of potentially relevant information.
“Additionally, as Professor Philip Heymann points out, as the FBI shifts its focus from ex-post criminal investigations to ex-ante terrorism investigations, the FBI must also recognize that terrorism prevention requires a much more complete set of information than is necessary to solve a crime after the fact. Investigation of a crime after it occurs can take years, and the crime scene itself can often provide valuable leads. Counter-terrorism investigators working to prevent an attack, however, must tackle the much more difficult task of finding ‘traces of a plan, [as opposed to] traces of a completed event’ under the pressure of a serious deadline. Additionally, although convicting most of the perpetrators of a successful crime could be considered a success, ‘locking up less than a critical mass of a group planning a future crime has to be considered a failure.’ Since terrorism investigators must find patterns in huge quantities of data, data mining of information obtained through administrative subpoenas could significantly boost the success of these investigations.
“Recognizing that data mining could provide terrorism investigators with useful information, critics nonetheless argue that the possibility of “mission creep” further augments the Fourth Amendment concerns surrounding administrative subpoenas. An assembled network of information set up for data mining could easily be used to fight crime other than terrorism. If data mining proves to be an effective tool to fight terrorism, Congress could be tempted to permit its use to help investigate the next type of high profile illegal behavior. However, since administrative subpoenas access information without probable cause, mission creep could lead to criminal prosecutions for crimes other than terrorism on the basis of private information obtained without probable cause. Data mining experts admit that without government-wide guidelines for the future use of information collected by administrative subpoena, mission creep could definitely occur. Although such crimes may legitimately demand authorities' attention, ‘there will be less opportunity for robust public debate on . . . expanded use’ of ‘new tools once they have been implemented for one purpose’--that is, Congress may be unable to resist sliding down a slippery slope. If Congress were to authorize the use of data mining from administrative subpoenas for other types of crime, the breach of all individuals' privacy would be vastly expanded, and targeted individuals would again be subject to prosecution based upon private information obtained without probable cause.
“2. Delegation of Authority to Issue Administrative Subpoenas
“Second, how far down the chain of command would subpoena issuing power be delegated? The bills proposed in Congress would give the Attorney General administrative subpoena power that could be delegated to the director of the FBI, who could further delegate the power to agents. In the health care context, since the Attorney General has not delegated this power to the FBI, prosecutors' gatekeeping power to issue the subpoenas places an informal check on their indiscriminate use. Since prosecutors face ‘asymmetric accountability,’ their interests are not wholly aligned with investigators' interests, and a prosecutor may be less likely to risk issuing a subpoena for an investigation unlikely to bear fruit. Similarly, in the terrorism context, limiting administrative subpoena power to traditionally risk-averse prosecutors would provide an additional check on abuses of this power. Although the strength of prosecutors' gatekeeping power would hinge on their response to the pressures of post-September 11, 2001 terrorism investigations, prosecutors could still provide a check on agents conducting overreaching terrorism investigations.” Id., Fordam at 2277-81 [footnotes omitted](Emphasis supplied).
This prosecutorial “gate-keeping power” did not prevent the FBI from seriously abusing its Patriot Act powers to secure NSLs. There is no reason to believe that this law enforcement agency, or any other intelligence-gathering agency, would conduct domestic terrorism investigations responsibly with administrative subpoena power. The FBI is currently using traditional criminal investigatory tools to gather information and evidence (money laundering, for example) designed exclusively to produce “terrorism” indictments.
Armed with administrative subpoena power to conduct criminal/terrorism related investigations, the FBI would ultimately compile “private information” through “data mining” on every man, woman, and child (along with pets) in the United States. In effect, innocent, unsuspecting American citizens would become quasi-“enemy combatants” in this unchecked intelligence-gathering process.
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