[Congressional Record Volume 147, Number 112 (Friday, August 3, 2001)]
[Senate]
[Pages S8915-S8917]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THURMOND (for himself, Mr. Biden, and Mr. Hatch):
  S. 1351. A bill to provide administrative subpoena authority to 
apprehended fugitives; to the Committee on the Judiciary.
  Mr. THURMOND. Mr. President, I rise today to introduce legislation 
that would help Federal law enforcement track down and apprehend 
dangerous fugitives who are roaming the streets of America.
  I am pleased to have as original cosponsors Senator Biden and Senator 
Hatch. Both of them are distinguished members of this Body with 
extensive knowledge in crime issues, and I greatly appreciate their 
support on this important legislation.
  Fugitives from justice pose a serious threat to public safety. These 
criminals are evading the criminal justice system with impunity, and 
many of them are committing more crimes while they are free. We should 
help law enforcement bring them to justice and prevent future crime.
  It has been estimated that fifty percent of the crime in America is 
committed by five percent of the offenders. It is these serious, repeat 
criminals, many of whom are fugitives, that law enforcement must 
address today.
  There are over 550,000 felony or other serious Federal and State 
fugitives listed in the National Crime Information Center database. The 
number has more than doubled since 1987, and is growing every year.
  This bill would respond to the growing fugitive threat by providing 
the Justice Department administrative subpoena authority for fugitives. 
Federal officers already have this crime-fighting tool in other areas, 
and this legislation would fill a serious gap that currently exists for 
fugitive investigations. Information such as telephone or apartment 
records may provide the missing link to track down a fugitive. Also, it 
can be critical to track down leads very quickly because fugitives are 
often transient and the trail can quickly become cold.
  The grand jury is routinely available to obtain information about the 
whereabouts of those who are suspected of committing crimes. 
Surprisingly, the same cannot be said for those who were caught but got 
away. The grand jury is generally not an option to get information 
about known fugitives who are evading justice.
  It is true that a Federal prosecutor can seek the approval of a judge 
for a administrative subpoena under the All Writs Act. However, it is a 
long, time-consuming process to get overworked federal judges with 
crowded dockets to act on these requests, especially if they are not 
rare. In any event, it may be too late by the time the court responds. 
Administrative subpoenas can prevent costly delays.
  Last year, we worked hard to give law enforcement tools to address 
the serious fugitive threat, holding hearings and moving important 
legislation. The Congress authorized $40 million over three years to 
create task forces led by the Marshals Service to apprehend dangerous 
fugitives. As part of this effort, the Senate passed administrative 
subpoena authority twice by unanimous consent last year. However, this 
authority was not included in the final legislation because it stalled 
in the House last year. I hope that, as we explain the need for this 
authority and how it is really a very narrow expansion beyond current 
law, we will receive widespread support in both Houses of Congress.

  Administrative subpoenas are not new to federal law enforcement. They 
have existed for years to help authorities solve various crimes, 
including drug offenses, child pornography, and even health care fraud. 
However, this bill places greater restrictions on the use of the 
subpoenas than currently exist in these other areas. These subpoenas 
could be used only to obtain documents and records, not testimony.
  None of us want a subpoena issued unless it is needed and fully 
complies with the law. This bill contains procedures for people to 
challenge the subpoena that they receive and have a judge review 
whether it should be issued. Judicial review is required in any case 
where the person requests it.
  The subpoena authority has no impact on the Fourth Amendment and its 
general prohibition on searches and seizures without a court-approved 
warrant. Courts have routinely upheld administrative subpoenas as 
entirely consistent with the Fourth Amendment. Administrative subpoenas 
do not allow law enforcement to enter a home or business to conduct any 
search. They only allow the government to receive documentary 
information that they can show will help them find felons who are on 
the run.
  In summary, this legislation would help authorities get the 
information they need to find dangerous fugitives before it is too 
late. I am pleased that this proposal has the endorsement of law 
enforcement organizations, including the Fraternal Order of Police, the 
National Association of Police Organizations, and the Federal Law 
Enforcement Officers Association.
  I encourage my colleagues to stand up for law enforcement and support 
this important legislation. I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

[[Page S8916]]

                                S. 1351

       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 ``Fugitive Apprehension Act of 
     2001''.

     SEC. 2. 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) Fugitive.--The term `fugitive' means a person who--
       ``(A) having been accused by complaint, information, or 
     indictment under Federal law or having been convicted of 
     committing a felony under Federal law, flees or attempts to 
     flee from or evades or attempts to evade the jurisdiction of 
     the court with jurisdiction over the felony;
       ``(B) having been accused by complaint, information, or 
     indictment under State law or having been convicted of 
     committing a felony under State law, flees or attempts to 
     flee from, or evades or attempts to 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 having been convicted of committing a felony under Federal 
     or State law; or
       ``(D) is in violation of subparagraph (2) or (3) of the 
     first undesignated paragraph of section 1073.
       ``(2) Investigation.--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 pursuant to section 1075.
       ``(b) Subpoenas and Witnesses.--
       ``(1) Subpoenas.--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 on 
     articulable facts, are relevant to discerning the whereabouts 
     of the fugitive. 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.
       ``(2) Witnesses.--The attendance of witnesses and the 
     production of records may be required from any place in any 
     State or other place subject to the jurisdiction of the 
     United States at any designated place where the witness was 
     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 summoned under this 
     section shall be paid the same fees and mileage that are paid 
     witnesses in the courts of the United States.
       ``(c) Service.--
       ``(1) Agent.--A subpoena issued under this section may be 
     served by any person designated in the subpoena as the agent 
     of service.
       ``(2) Natural person.--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.
       ``(3) Corporation.--Service may be made upon a domestic or 
     foreign corporation or upon a partnership or other 
     unincorporated association that is subject to suit under a 
     common name, by delivering the subpoena to an officer, to a 
     managing or general agent, or to any other agent authorized 
     by appointment or by law to receive service of process.
       ``(4) Affidavit.--The affidavit of the person serving the 
     subpoena entered on a true copy thereof by the person serving 
     it shall be proof of service.
       ``(d) Contumacy or Refusal.--
       ``(1) In general.--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 the subpoena. The court may issue an order 
     requiring the subpoenaed person to appear before the Attorney 
     General to produce records if so ordered.
       ``(2) Contempt.--Any failure to obey the order of the court 
     may be punishable by the court as contempt thereof.
       ``(3) Process.--All process in any case to enforce an order 
     under this subsection may be served in any judicial district 
     in which the person may be found.
       ``(4) Rights of 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 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 
     oppressive;
       ``(B) the subpoena fails to meet the requirements of this 
     section; or
       ``(C) the subpoena violates the constitutional rights or 
     any other legal rights or privilege of the subpoenaed party.
       ``(e) Guidelines.--
       ``(1) In general.--The Attorney General shall issue 
     guidelines governing the issuance of administrative subpoenas 
     pursuant to this section.
       ``(2) Review.--The guidelines required by this subsection 
     shall mandate that administrative subpoenas may be issued 
     only after review and approval of senior supervisory 
     personnel within the respective investigative agency or 
     component of the Department of Justice and of the United 
     States Attorney for the judicial district in which the 
     administrative subpoena shall be served.
       ``(f) Nondisclosure Requirements.--
       ``(1) In general.--Except as otherwise provided by law, 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.
       ``(2) Order.--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.''.
       (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.''.

  Mr. BIDEN. Mr. President, I am pleased today to be able to join with 
Senators Thurmond and Hatch in introducing the Fugitive Apprehension 
Act of 2001. This bill authorizes the Attorney General to issue 
administrative subpoenas in cases involving fugitives. Its passage will 
provide law enforcement with the tools it needs to more effectively 
track and apprehend fugitives from justice, and I look forward to its 
prompt consideration.
  Crime across the country continues to trend downwards, though we have 
seen some mixed statistical signals of late. As chairman of the newly-
created Judiciary Subcommittee on Crime and Drugs, I am extremely 
concerned by the Nation's fugitive problem. According to estimates from 
the Department of Justice, there are approximately 54,000 fugitives 
from justice in Federal cases. A total of 565,611 fugitives, including 
state and local felony cases, have been entered into the database of 
the National Crime Information Center, up from 340,000 10 years ago. 
But this figure only begins to measure the problem, as the National 
Crime Information Center receives just 20 percent of all outstanding 
State and local felony warrants.
  These fugitives from justice are a very real and dangerous concern. 
For example, last December, there was a shooting in Wilmington, DE. The 
shooter was charged with attempted murder and weapons violations and 
was jailed in Chester, PA, on a separate, earlier shooting charge. He 
then posted $500 bail on those charges, and promptly fled the 
jurisdiction. Members of Delaware's Violent Fugitive Task Force soon 
determined this violent criminal was hiding out in West Los Angeles. 
They alerted local FBI agents, who soon located the fugitive in a car 
and tried to stop him. He led the agents on a two-mile, high-speed 
chase, crashed into a pole, then tried to escape on foot. He was 
eventually captured, arrested, and he was recently returned to Delaware 
to face charges. This fugitive is particularly dangerous: he has a long 
record of drug and other offenses, including 52 arrests in Delaware 
dating all the way back to when he was 13.

[[Page S8917]]

  Unfortunately, this incident from my home State is not an isolated 
one, and we should not hamstring law enforcement when they try to catch 
these criminals. To better equip our Federal law enforcement agents 
with the resources they need to track and apprehend dangerous fugitives 
from justice, we need to make some changes to our criminal laws. The 
Fugitive Apprehension Act of 2001 gives the Attorney General, 
principally through the United States Marshals Service, authority to 
issue administrative subpoenas in cases involving fugitives. Last year, 
the Director of the Marshals Service testified as to the need for these 
subpoenas in fugitive cases; he noted that seldom is a grand jury 
available to issue a subpoena in these instances. In fugitive cases, 
time is often of the essence and successful investigations depend on 
real-time information, such as telephone subscriber and credit records. 
The time required to get a court order can make the difference between 
whether a fugitive is apprehended or remains at large.
  Given the privacy concerns that rightfully arise whenever Fourth 
Amendment protections are impacted, I want to take a moment to describe 
some of the safeguards in the bill we introduce today. First, and 
importantly, the bill's provisions apply only to those fugitives 
charged with or convicted of violent felonies or trafficking in drugs.
  Second, the bill in no way authorizes searches by law enforcement 
agencies; the subpoenas envisioned by the bill may be used only to 
obtain documents. Witness testimony and searches still must meet the 
Constitution's warrant requirement.
  Third, each administrative subpoena issued must be approved by the 
local United States Attorney for the district in which the subpoena 
will be served. I realize the Marshals Service and other law 
enforcement groups would rather this safeguard not be in the bill, but 
I insisted upon its inclusion at this point so as to ensure this new 
investigative power is not abused. I look forward to continuing my 
discussions with the Marshals Service and others concerning the effect 
this safeguard could have on their fugitive apprehensions.
  Fourth, the bill allows the person on whom an administrative subpoena 
is served to request to a court that it be overturned--judicial review 
is mandated each time an administrative subpoena is challenged.
  I am mindful of the fact that Federal law enforcement already has 
administrative subpoena power in other types of cases, including drug 
enforcement, child abuse and child pornography investigations. The need 
for administrative subpoena authority should be more clear in fugitive 
cases; there, the criminal being pursued has already proven his danger 
to society by committing a very serious crime. The bill we are 
introducing today is quite limited in scope, and its built in 
safeguards coupled with the opportunity for judicial review I believe 
balance well the rights of individuals with the clear need to catch 
those violent criminals on the lam, criminals whose very presence on 
our streets threatens us all. I thank Senator Thurmond for his 
leadership in this area, and I look forward to working with him and 
Senator Hatch to see this bill signed into law.
                                 ______