Terrorism Subpoenas

Section 215 of the USA Patriot Act is back in the news. The debate has focused on libraries because that's where the opponents of the Act believe they have the most rhetorical leverage, but, as Heather MacDonald pointed out in yesterday's Washington Post (thanks to Jonathan for the pointer), the rubber meets the road in the comparison of Section 215 orders and Grand Jury Subpoenas, which have been used for decades to conduct criminal investigations. In my fairly uneducated judgment, they are quite similar, and the differences seem justified by the threat of terrorism.

Section 215 is broad grant of authority, applicable to more than just libraries:

(a)(1) The [FBI] may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

It applies to anything relevant to the investigation from anyone other than the person being investigated. (Ostensibly that person would keep his or her right to avoid self incrimination.)

A Federal Grand Jury subpoena, however, is similarly broad. Federal Rule of Criminal Procedure 17 states:

A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates.

A grand jury subpoena is limited to anything relevant from anyone other that the defendant (who can invoke his right to avoid self incriminatior), just like the Section 215 order.

Furthermore, both the grand jury subpoena and the Section 215 order have very little oversight. In practice, a prosecutor doesn't even have to go to the grand jury to get a grand jury subpoena. Rule 17 has been interpreted to allow federal prosecutors to issue subpoenas without the prior approval of the grand jury (see 957 F.2d 749), and to decide what parts, if any, of the subpoena's evidence to present to the grand jury. Compared to that limited oversight, the requirements of Section 215 look pretty good:

(b) Each application under this section--
(1) shall be made to . . . a judge of the court established by section 103(a) . . . [and]
(2) shall specify that the records concerned are sought for an authorized investigation conducted . . . against international terrorism or clandestine intelligence activities.

Its true that grand jury subpoenas are regulated by grand jury members, who are not paid by the government, while 215 orders are regulated by judges, who are paid by the government, but I'm not sure that makes a practical difference. If anything, the judge in the 215 context provides at least a chance to stop the investigation before it occurs, while a grand jury can't stop a subpoena they don't know is being issued. So, unless we're willing to claim that there is something really wrong with the grand jury system (which, in fairness, some folks are willing to say), it seems like 215 orders should be ok, too.

- posted by Tom Sawyer @ 11:33 AM