[Congressional Record Volume 146, Number 79 (Wednesday, June 21, 2000)]
[Senate]
[Pages S5556-S5558]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Kohl):
  S. 2761. A bill to fund task forces to locate and apprehend fugitives 
in Federal, State, and local felony criminal cases and to provide 
administrative subpoena authority; to the Committee on the Judiciary.


                    capturing criminals act of 2000

  Mr. LEAHY. Mr. President, as a former prosecutor, I am well aware 
that fugitives from justice are an important problem and that their 
capture is an essential function of law enforcement. According to the 
FBI, nearly 550,000 people are currently fugitives from justice on 
federal, state, and local felony charges combined. This means that 
there are almost as many fugitive felons as there are citizens residing 
in my home state of Vermont.
  The fact that we have more than one half million fugitives from 
justice, a significant portion of whom are convicted felons in 
violation of probation or parole, who have been able to flaunt courts 
order and avoid arrest, breeds disrespect for our laws and poses 
undeniable risks to the safety of our citizens. We must do better. The 
Leahy-Kohl ``Capturing Criminals Act of 2000,'' which I introduce 
today, will provide additional tools and resources to our federal law 
enforcement agencies to pursue and capture fugitive felons on both 
federal and state charges.
  Our federal law enforcement agencies should be commended for the job 
they have been doing to date on capturing federal fugitives and helping 
the states and local communities bring their fugitives to justice. The 
U.S. Marshals Service, our oldest law enforcement agency, has arrested 
over 120,000 federal, state and local fugitives in the past four years, 
including more federal fugitives than all the other federal agencies 
combined. In prior years, the Marshals Service spearheaded special 
fugitive apprehension task forces, called FIST Operations, that 
targeted fugitives in particular areas and was singularly successful in 
arresting over 34,000 fugitive felons.
  Similarly, the FBI has established twenty-four Safe Streets Task 
Forces exclusively focused on apprehending fugitives in cities around 
the country. Over the period of 1995 to 1999, the FBI's efforts have 
resulted in the arrest of a total of 132,292 fugitives, including 
64,336, who were state fugitives.
  The Capturing Criminals Act would help our law enforcement agencies 
keep the pressure on fugitives by authorizing the Attorney General to 
establish regional Fugitive Apprehension Task Forces, to be coordinated 
by the United States Marshals Service; authorizing administrative 
subpoenas for use in obtaining records relevant to finding federal and 
state fugitives; and, finally, requesting a comprehensive report on the 
administrative subpoena authorities held by federal agencies, which 
vary in scope, enforcement and privacy safeguards.
  ``Administrative subpoena'' is the term generally used to refer to a 
demand for documents or testimony by an investigative entity or 
regulatory agency that is empowered to issue the subpoena independently 
and without the approval of any grand jury, court or other judicial 
entity. I am generally skeptical of administrative subpoena power. 
Administrative subpoenas avoid the strict grand jury secrecy rules and 
the documents provided in response to such subpoenas are, therefore, 
subject to broader dissemination. Moreover, since investigative agents 
issue such subpoenas directly, without review by a judicial officer or 
even a prosecutor, fewer ``checks'' are in place to ensure the subpoena 
is issued with good cause and not merely as a fishing expedition.
  Nonetheless, unlike initial criminal inquiries, fugitive 
investigations present unique difficulties. Law enforcement may not use 
grand jury subpoenas since, by the time a person is a fugitive, the 
grand jury phase of an investigation is usually over. Use of

[[Page S5557]]

grand jury subpoenas to obtain phone or bank records to track down a 
fugitive would be an abuse of the grand jury. Trial subpoenas may also 
not be used, either because the fugitive is already convicted or no 
trial may take place without the fugitive.
  This inability to use trial and grand jury subpoenas for fugitive 
investigations creates a disturbing gap in law enforcement procedures. 
Law enforcement partially fills this gap by using the All Writs Act, 28 
U.S.C. Sec.  1651(a), which authorizes federal courts to ``issue all 
writs necessary or appropriate in aid of their respective jurisdictions 
and agreeable to the usages and principles of law.'' The procedures, 
however, for obtaining orders under this Act, and the scope and non-
disclosure terms of such orders, vary between jurisdictions.
  Thus, authorizing administrative subpoena power will help bridge the 
gap in fugitive investigations to allow federal law enforcement 
agencies to obtain records useful for tracking a fugitive's 
whereabouts. The Leahy-Kohl Capturing Criminals Act makes clear that 
the approval of a court remains necessary to obtain an order for 
nondisclosure of the subpoena and production of the requested records 
to the subscriber or customer to whom the records pertain.
  I am certainly not alone in recognizing the problem this nation has 
with fugitives from justice. Senators Thurmond and Biden have 
introduced the ``Fugitive Apprehension Act,'' S. 2516, specifically to 
address the difficulties facing law enforcement in this area. I commend 
both my colleagues for their leadership. While I agree with the general 
purposes of S. 2516, aspects of that bill would be problematic. I look 
forward to working with my colleagues on the Judiciary Committee to 
resolve the differences in our bills.
  Without detailing all of the differences in the bills, let me provide 
some examples. As introduced, S. 2516 would limit use of an 
administrative subpoena to those fugitives who have been ``indicted,'' 
which fails to address the fact that fugitives flee after arrest on the 
basis of a ``complaint'' and may flee after the prosecutor has filed an 
``information'' in lieu of an indictment. The Leahy-Kohl ``Capturing 
Criminals Act,'' by contrast, would allow use of such subpoenas to 
track fugitives who have been accused in a ``complaint, information or 
indictment.''
  In addition, S. 2516 requires the U.S. Marshal Service to report 
quarterly to the Attorney General (who must transmit the report to 
Congress) on use of the administrative subpoenas. In my view, while a 
reporting requirement is useful, the requirement as described in S. 
2516 is overly burdensome and insufficiently specific. The Leahy-Kohl 
``Capturing Criminals Act'' would require the Attorney General to 
report for the next three years to the Judiciary Committees of both the 
House and Senate with the following information about the use of 
administrative subpoenas in fugitive investigations: the number issued, 
by which agency, identification of the charges on which the fugitive 
was wanted and whether the fugitive was wanted on federal or state 
charges.
  Although S. 2516 outlines the procedures for enforcement of an 
administrative subpoena, it is silent on the mechanisms for both 
contesting the subpoena by the recipient and for delaying notice to the 
person about whom the record pertains. The Leahy-Kohl ``Capturing 
Criminals Act'' expressly addresses these issues.
  This legislation will help law enforcement--with increased resources 
for regional fugitive apprehension task forces and administrative 
subpoena authority--bring to justice both federal and state fugitives 
who, by their conduct, have demonstrated a lack of respect for our 
nation's criminal justice system. I look forward to working with my 
colleagues to ensure swift passage of this legislation.
  Mr. President, I ask unanimous consent that the text of my 
legislation be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2761

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Capturing Criminals Act of 
     2000''.

      SEC. 2. FUGITIVE APPREHENSION TASK FORCES.

       (a) In General.--The Attorney General is authorized to 
     establish, upon consultation with the Secretary of the 
     Treasury and appropriate law enforcement officials in the 
     States, Fugitive Apprehension Task Forces, consisting of 
     Federal, State, and local law enforcement authorities in 
     designated regions of the United States, to be coordinated by 
     the Director of the United States Marshals Service, for the 
     purpose of locating and apprehending fugitives, as defined by 
     section 1075 of title 18, United States Code, as added by 
     this Act.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated to the United States Marshals Service to 
     carry out the provisions of this section $20,000,000 for 
     fiscal year 2001, $5,000,000 for fiscal year 2002, and 
     $5,000,000 for fiscal year 2003.
       (c) Other Federal and State law.--Nothing in this section 
     shall be construed to limit the authority under any other 
     provision of Federal or State law to locate or apprehend a 
     fugitive .

      SEC. 3. ADMINISTRATIVE SUBPOENAS TO APPREHEND FUGITIVES.

       (a) In General.--Chapter 49 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1075. Administrative subpoenas to apprehend fugitives

       ``(a) Definitions.--In this section--
       ``(1) the term `fugitive' means a person who--
       ``(A) having been accused by complaint, information or 
     indictment, or having been convicted of committing, a felony 
     under Federal law, flees from or evades (or attempts to flee 
     from or evade) the jurisdiction of the court with 
     jurisdiction over the felony;
       ``(B) having been accused by complaint, information or 
     indictment, or having been convicted of committing, a felony 
     under State law, flees from or evades (or attempts to flee 
     from or evade) the jurisdiction of the court with 
     jurisdiction over the felony;
       ``(C) escapes from lawful Federal or State custody after 
     having been accused by complaint, information or indictment, 
     or convicted, of committing a felony under Federal or State 
     law; or
       ``(D) is in violation of paragraph (2) or (3) of the first 
     undesignated paragraph of section 1073;
       ``(2) the term `investigation' means, with respect to a 
     State fugitive described in subparagraph (B) or (C) of 
     paragraph (1), an investigation in which there is reason to 
     believe that the fugitive fled from or evaded (or attempted 
     to flee from or evade) the jurisdiction of the court, or 
     escaped from custody, in or affecting, or using any facility 
     of, interstate or foreign commerce, or as to whom an 
     appropriate law enforcement officer or official of a State or 
     political subdivision has requested the Attorney General to 
     assist in the investigation, and the Attorney General finds 
     that the particular circumstances of the request give rise to 
     a Federal interest sufficient for the exercise of Federal 
     jurisdiction under section 1075; and
       ``(3) the term `State' means a State of the United States, 
     the District of Columbia, and any commonwealth, territory, or 
     possession of the United States.
       ``(b) Scope.--In any investigation with respect to the 
     apprehension of a fugitive, the Attorney General may subpoena 
     witnesses for the purpose of the production of any records 
     (including books, papers, documents, electronic data, and 
     other tangible and intangible items that constitute or 
     contain evidence) that the Attorney General finds, based upon 
     articulable facts, are relevant to discerning the fugitive's 
     whereabouts. A subpoena under this subsection shall describe 
     the records or items required to be produced and prescribe a 
     return date within a reasonable period of time within which 
     the records or items can be assembled and made available.
       ``(c) Jurisdiction.--The attendance of witnesses and the 
     production of records may be required from any place in any 
     State or any other place subject to the jurisdiction of the 
     United States at any designated place where the witness is 
     served with a subpoena, except that a witness shall not be 
     required to appear more than 500 miles distant from the place 
     where the witness was served. Witnesses subpoenaed under this 
     section shall be paid the same fees and mileage that are paid 
     witnesses in the courts of the United States.
       ``(d) Service.--A subpoena issued under this section may be 
     served by any person designated in the subpoena as the agent 
     of service. Service upon a natural person may be made by 
     personal delivery of the subpoena to that person or by 
     certified mail with return receipt requested. Service may be 
     made upon a domestic or foreign corporation, a partnership, 
     or other unincorporated association that is subject to suit 
     under a common name, by delivering the subpoena to an 
     officer, a managing or general agent, or to any other agent 
     authorized by appointment or by law to receive service of 
     process. The affidavit of the person serving the subpoena 
     entered on a true copy thereof by the agent of service shall 
     be proof of service.
       ``(e)Enforcement.--
       ``(1) Noncompliance.--In the case of the contumacy by or 
     refusal to obey a subpoena issued to any person, the Attorney 
     General may invoke the aid of any court of the United States 
     within the jurisdiction of which the investigation is carried 
     on or of which the subpoenaed person is an inhabitant, or in 
     which he carries on business or may be found, to compel 
     compliance with

[[Page S5558]]

     the subpoena. The court may issue an order requiring the 
     subpoenaed person to appear before the Attorney General to 
     produce records if so ordered. Any failure to obey the order 
     of the court may be punishable by the court as contempt 
     thereof. All process in any such case may be served in any 
     judicial district in which the person may be found.
       ``(2) Rights of a subpoena recipient.--Not later than 20 
     days after the date of service of an administrative subpoena 
     under this section upon any person, or at any time before the 
     return date specified in the subpoena, whichever period is 
     shorter, such person may file, in the district court of the 
     United States for the judicial district within which such 
     person resides, is found, or transacts business, a petition 
     to modify or quash such subpoena on grounds that--
       ``(A) the terms of the subpoena are unreasonable or 
     unnecessary;
       ``(B) the subpoena fails to meet the requirements of this 
     section; or
       ``(C) the subpoena violates the constitutional rights or 
     any other legal right or privilege of the subpoenaed party.
       ``(3) Time for response.--The time allowed for compliance 
     with a subpoena in whole or in part shall be suspended during 
     the pendency of a petition filed under paragraph (2). Such 
     petition shall specify the grounds upon which the petitioner 
     relies in seeking relief.
       ``(f) Delayed Notice.--
       ``(1) In general.--Where an administrative subpoena is 
     issued under this section to a provider of electronic 
     communication service (as defined in section 2510 of this 
     title) or remote computing service (as defined in section 
     2711 of this title), the Attorney General may--
       ``(A) in accordance with section 2705(a) of this title, 
     delay notification to the subscriber or customer to whom the 
     record pertains; and
       ``(B) apply to a court, in accordance with section 2705(b) 
     of this title, for an order commanding the provider of 
     electronic communication service or remote computing service 
     not to notify any other person of the existence of the 
     subpoena or court order.
       ``(2) Subpoenas for financial records.--If a subpoena is 
     issued under this section to a financial institution for 
     financial records of any customer of such institution, the 
     Attorney General may apply to a court under section 1109 of 
     the Right to Financial Privacy Act of 1978 (12 U.S.C. 3409) 
     for an order to delay customer notice as otherwise required.
       ``(3) Nondisclosure requirements.--Except as provided in 
     paragraphs (1) and (2), the Attorney General may apply to a 
     court for an order requiring the party to whom an 
     administrative subpoena is directed to refrain from notifying 
     any other party of the existence of the subpoena or court 
     order for such period as the court deems appropriate. The 
     court shall enter such order if it determines that there is 
     reason to believe that notification of the existence of the 
     administrative subpoena will result in--
       ``(A) endangering the life or physical safety of an 
     individual;
       ``(B) flight from prosecution;
       ``(C) destruction of or tampering with evidence;
       ``(D) intimidation of potential witnesses; or
       ``(E) otherwise seriously jeopardizing an investigation or 
     undue delay of a trial.
       ``(g) Immunity From Civil Liability.--Any person, including 
     officers, agents, and employees, who in good faith produce 
     the records or items requested in a subpoena shall not be 
     liable in any court of any State or the United States to any 
     customer or other person for such production or for 
     nondisclosure of that production to the customer, in 
     compliance with the terms of a court order for nondisclosure.
       ``(h) Delegation.--The Attorney General and the Secretary 
     of the Treasury shall issue guidelines governing the issuance 
     of administrative subpoenas. Such guidelines shall mandate 
     that administrative subpoenas may be issued only after review 
     and approval of senior supervisory personnel within the 
     Department of Justice and the Department of the Treasury.
       ``(i) Report.--The Attorney General shall report in January 
     of each year to the Committees on the Judiciary of the Senate 
     and the House of Representatives on the number of 
     administrative subpoenas issued under this section, whether 
     each matter involved a fugitive from Federal or State 
     charges, and identification of the agency issuing the 
     subpoena and imposing the charges. This reporting requirement 
     shall terminate in 3 years after enactment.''.
       (b) Technical and Conforming Amendment.--The analysis for 
     chapter 49 of title 18, United States Code, is amended by 
     adding at the end the following:

``1075. Administrative subpoenas to apprehend fugitives.''.

     SEC. 4. STUDY AND REPORT OF THE USE OF ADMINISTRATIVE 
                   SUBPOENAS.

       Not later than December 31, 2001, the Attorney General 
     shall complete a study on the use of administrative subpoena 
     power by executive branch agencies or entities and shall 
     report the findings to the Committees on the Judiciary of the 
     Senate and the House of Representatives. Such report shall 
     include--
       (1) a description of the sources of administrative subpoena 
     power and the scope of such subpoena power within executive 
     branch agencies;
       (2) a description of applicable subpoena enforcement 
     mechanisms;
       (3) a description of any notification provisions and any 
     other provisions relating to safeguarding privacy interests;
       (4) a description of the standards governing the issuance 
     of administrative subpoenas; and
       (5) recommendations from the Attorney General regarding 
     necessary steps to ensure that administrative subpoena power 
     is used and enforced consistently and fairly by executive 
     branch agencies.
                                 ______