Bush takes facism to new levels....or tries to....Hell...we don't need Grand Juries....they are made up of REAL AMERICANS
Administration Calls for Unprecedented Subpoena
Powers
Bush's proposal to bypass grand juries to fight terrorism is likely to meet with resistance.
By David G. Savage and Richard B. Schmitt, Times Staff Writers
WASHINGTON — If federal regulators want to check on the companies
they regulate, they can order the firms to turn over their records.
These "administrative subpoenas" are commonly used to enforce federal law in
areas ranging from banking and stock trades to pharmaceuticals and pollution
controls.
Last week, President
Bush proposed to make
administrative subpoenas
a key tool in the war on
terrorism — and not just
to obtain records.
The president said Atty.
Gen. John Ashcroft
should have the legal
authority to order any
person who might have
information that is
"relevant in any
investigation" related to
terrorism to submit in secret to being questioned
and to turn over "any books, papers, documents or electronic data" that the government seeks.
Unlike in ordinary criminal investigations, Ashcroft would not need the approval of a grand jury or a
judge to order witnesses to appear for questioning.
"The attendance of witnesses and the production of records may be required from any place in any
state or in any territory or other place subject to the jurisdiction of the United States at any designated
place of hearing," the administration's bill says.
President Bush unveiled his plan for broader investigative authority at the FBI's national training
academy on the eve of the second anniversary of the terrorist attacks on New York and the Pentagon.
"Under current law, there are unreasonable obstacles to investigating and prosecuting terrorism," Bush
said. "The House and Senate have a responsibility to act quickly on these matters. Untie the hands of
our law enforcement officials so they can fight and win the war against terror," he said to applause.
Administration officials say the new authority is needed so agents can quickly check hotel or bank
records when they are pursuing a terrorist.
"Suppose we find out that a terrorist has gone to a chemical plant and made a purchase. And it's a
Saturday afternoon, and there's no grand jury sitting. You need to move quickly because lives could be
at stake. Any reasonable person would say that kind of authority should be available in the fight against
terrorism," said Mark Corallo, a spokesman for the Justice Department.
Most hotels or banks — or in this example, the chemical plant — are glad to turn over the records, he
said. The subpoena, or legal order, ensures they will not be held liable for doing so, Corallo said.
Although Bush administration officials say their proposal would simply update the law to apply to
terrorism cases, civil libertarians and defense lawyers say it would mark a fundamental change if it were
adopted by Congress. Administrative subpoenas are now limited to civil and regulatory matters, and
cannot be used in criminal probes.
The 4th Amendment protects "the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches." Rather than allow random searches by the police or federal
agents, it says "no warrants shall issue, but upon probable cause, supported by oath or affirmation."
For much of its history, the Supreme Court interpreted this provision as barring the government from
seeking a person's papers and records without a search warrant. In one famous opinion, Justice Oliver
Wendell Holmes in 1924 said Congress was not free to authorize a "fishing expedition" into the private
affairs of citizens in hope of finding evidence of a crime.
But the New Deal and the growth of the federal regulatory state made it clear that officials needed
broad powers to check business records. The tax laws could not be enforced, for example, if agents
were not able to obtain financial records.
By 1940, the courts had made it easier for agencies to gain access to information. Since they were
enforcing the law, not prosecuting criminals, courts lowered the standards set by the 4th Amendment.
These days, administrative subpoenas are routine. In 2001, for example, federal prosecutors issued
2,102 of these orders in investigations of health-care frauds, according to Justice Department figures.
The Environmental Protection Agency, the Federal Election Commission and the Commodity Futures
Trading Commission also make regular use of subpoenas.
But the Bush-Ashcroft proposal breaks through a new barrier by authorizing these orders in strictly
criminal probes, critics say.
"It is unprecedented to apply administrative subpoenas for use in a wholly criminal investigation. They
want to eliminate the traditional check on overzealous prosecutors, which is the grand jury," said
Georgetown University law professor David Cole, a frequent foe of the administration's legal tactics.
Under the proposal, prosecutors could question witnesses in a closed room.
The bill includes a "nondisclosure requirement" as well. "If the Attorney General certifies [there] may
result a danger to the national security, no person shall disclose to any other person that a subpoena
was received or records were provided," it says.
Grand juries operate in secret as well. And though they are often seen as a rubber stamp for the
government, Cole said the mere presence of the jurors restrains prosecutors. "There is a real difference
when a prosecutor knows 23 citizens are there observing what's going on," he said.
In criminal cases, the Supreme Court has continued to insist that the 4th Amendment puts a check on
the government's power to conduct searches.
"No assistant U.S. attorney has an independent regulatory purpose when issuing a subpoena like this.
[It] abrogates complete power to the executive," said Joshua Dratel, a criminal defense lawyer in New
York.
The administration proposal was introduced in the House last week by Rep. Tom Feeney (R-Fla.).
Feeney came to national prominence in December 2000 during the dispute over the Florida election
results. As speaker of the Florida House, he called a special legislative session to appoint a slate of
electors for Bush, then governor of Texas, even though the outcome of the vote remained in doubt.
His bill says: "In any investigation concerning a federal crime of terrorism, the Attorney General may
subpoena witnesses, compel the attendance and testimony of witnesses and require the production of
any records that he finds relevant or material to the investigation."
The proposal is likely to meet stiff resistance on Capitol Hill. During the debate about the Patriot Act in
the fall of 2001, lawmakers said they would not go along with giving federal agents unchecked authority
to conduct searches.
The Senate does not have a similar bill, and a spokesman for Judiciary Committee Chairman Orrin G.
Hatch said the Utah Republican is not ready to endorse the use of expanded administrative subpoenas.
"We haven't said anything on that yet, and we're continuing to examine legislative options," said
Margarita Tapia, a spokeswoman for Hatch.
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