The FBI on Tuesday asked the U.S. Congress for sweeping new powers to seize business or private records, ranging from medical information to book purchases, to investigate terrorism without first securing approval from a judge.
Valerie Caproni, FBI general counsel, told the U.S. Senate Intelligence Committee her agency needed the power to issue what are known as administrative subpoenas to get information quickly about terrorist plots and the activities of foreign agents.
Civil liberties groups have complained the subpoenas, which would cover medical, tax, gun-purchase, book purchase, travel and other records and could be kept secret, would give the FBI too much power and could infringe on privacy and free speech.
“This type of subpoena authority would allow investigators to obtain relevant information quickly in terrorism investigations, where time is often of the essence,” Caproni testified.
Subpoenas could be added to Patriot Act
The issue of administrative subpoenas dominated the hearing, which was called to discuss reauthorization of clauses of the USA Patriot Act due to expire at the end of this year.
The act was passed shortly after the Sept. 11, 2001, attacks. However administrative subpoena power was not in the original law. The proposed new powers, long sought by the FBI, have been added by Republican lawmakers, acting on the wishes of the Bush administration, to the new draft of the USA Patriot Act.
Committee chairman, Kansas Sen. Pat Roberts, noted that other government agencies already had subpoena power to investigate matters such as child pornography, drug investigations and medical malpractice. He said it made little sense to deny those same powers to the FBI to investigate terrorism or keep track of foreign intelligence agents.
But opponents said other investigations usually culminated in a public trial, whereas terrorism probes would likely remain secret and suspects could be arrested or deported or handed over to other countries without any public action.
Closed meeting
Roberts intends to hold a closed meeting on Thursday, above the objections of some Democrats, to move the legislation forward out of his committee. But the provision still faces a long road before it becomes law, since the Senate Judiciary Committee also has jurisdiction over the bill, while the House of Representatives is drawing up its own legislation.
Democrats on the committee expressed concerns and pressed Caproni to give examples of cases where the lack of such powers had hampered an investigation.
“I am not aware of any time in which Congress has given directly to the FBI subpoena authority. That doesn’t make it right or wrong. It just needs to be thought about,” said West Virginia Democrat Jay Rockefeller.
Caproni said she could not cite a case where a bomb had exploded because the FBI lacked this power, but that did not mean one could not explode tomorrow.
Individuals unlikely to challenge subpoena
She gave a theoretical example of a case where the FBI suspected that a terrorist was about to do something but did not exactly where he was. In such a case, it might subpoena hotel or EZ-pass records, which would show where and when he had driven through toll booths in the eastern United States.
Under the proposed legislation, those served with subpoenas would have the right to challenge them in court. But civil liberties groups said few were likely to do so, and the person being investigated would be unlikely even to know that the FBI was seeking his personal records.
For example, if the FBI demanded a person’s medical records from his doctor, the doctor could challenge the order if he wished, but the individual could not.
“Ordinary citizens are storing information not in their homes or even on portable devices but on networks, under the control of service providers who can be served with compulsory process and never have to tell the subscribers that their privacy has been invaded,” said James Dempsey of the Center for Democracy, one of several groups opposing the provision.
