[Congressional Record Volume 150, Number 87 (Tuesday, June 22, 2004)]
[Senate]
[Pages S7178-S7180]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL:
  S. 2555. A bill to authorize the use of judicially enforceable 
subpoenas in terrorism investigations; to the Committee on the 
Judiciary.
  Mr. KYL. Mr. President, I rise today to introduce a bill that would 
authorize the Justice Department to issue judicially enforceable 
subpoenas in terrorism investigations.
  Here is how the JETS Act would work: it would allow the FBI to 
subpoena documents and records ``in any investigation of a Federal 
crime of terrorism.'' The bill would require the FBI to go to Federal 
court to enforce the subpoena in the event that the recipient declines 
to comply with it. It would also allow the recipient to make the first 
move and go to court to challenge the subpoena. The JETS Act also would 
allow the Justice Department to temporarily bar the recipient of a JET 
subpoena from disclosing to anyone other than his lawyer that he has 
received it. The FBI could bar such disclosure, however, only if the 
Attorney General certifies that ``otherwise there may result a danger 
to the national security of the United States.'' Also, the recipient of 
the subpoena would have the right to go to court to challenge the 
nondisclosure order. And finally, the JETS Act would protect the 
recipient from any civil liability that might otherwise result from his 
good-faith compliance with a JET subpoena.
  At the outset, it bears mention that the FBI already has ways of 
obtaining a subpoena when it needs one for a terrorism investigation: 
it simply finds an Assistant U.S. Attorney and asks him to issue a 
grand-jury subpoena to investigate a potential crime of terrorism. The 
advantages of the JETS Act--of giving the FBI direct authority to issue 
subpoenas--are not so much substantive as procedural. These advantages 
principally are two: 1. A grand-jury subpoena's ``return date''--the 
date by which the recipient of the subpoena is asked to comply--can 
only be a day on which a grand jury is convened. Therefore, a grand-
jury subpoena issued on a Friday evening cannot have a return date that 
is earlier than the next Monday. The JETS Act would allow the FBI to 
set an earlier return date, so long as that date allows ``a reasonable 
period of time within which the records or items [to be produced] can 
be assembled and made available.'' 2. Only an AUSA can issue a grand-
jury subpoena. Therefore, whenever the FBI wants to use a grand-jury 
subpoena in a terrorism case, it must find an AUSA. This can be 
difficult and time consuming in remote locations. The JETS Act would 
allow the FBI to forego this exercise.

       The Justice Department recently made its case as to why it 
     should be given JETS authority in its answers to Senator 
     Biden's written questions to Christopher Wray, the Assistant 
     Attorney General for the Criminal Division, following Mr. 
     Wray's testimony before the Judiciary Committee on October 
     21, 2003. Senator Biden asked Mr. Wray to cite ``instances 
     where your terrorism investigations have been thwarted due to 
     an inability to secure a subpoena from a grand jury in a 
     timely fashion.'' While Mr. Wray declined to provide the 
     details of those instances when the lack of direct authority 
     has posed a problem, he did offer the ``following 
     hypothetical situations, which could well arise, [and which] 
     illustrate the need for this investigative tool:''
       ``In the first scenario, anti-terrorism investigators learn 
     that members of an Al Qaeda cell recently stayed at a 
     particular hotel. They want to know how the cell members paid 
     for their rooms, in order to discover what credit cards they 
     may have used. When investigators ask the hotel manager to 
     produce the payment records voluntarily, the manager declines 
     to do so, explaining that company policy prohibits him from 
     revealing such information about customers without legal 
     process. If investigators had the authority to issue an 
     administrative subpoena, the hotel manager could disclose the 
     records about the Al Qaeda cell immediately without fear of 
     legal liability. In this situation, where the speed and 
     success of the investigation may be matters of life and 
     death, this disclosure would immediately provide 
     investigators with crucial information--such as the location 
     of the terrorists and the nature of their purchases--with 
     which to disrupt and prevent terrorist activity.
       ``In the second hypothetical situation, anti-terrorism 
     investigators learn on a Saturday morning that members of an 
     Al Qaeda cell have bought bomb-making materials from a 
     chemical company. They want to obtain records relating to the 
     purchase that may reveal what chemicals the terrorists 
     bought, as well as delivery records that might reveal the 
     terrorists' location. The investigators might seek quickly to 
     contact an Assistant United States Attorney, who might 
     immediately obtain a grand-jury subpoena for the records. 
     However, the third party who holds the records could lawfully 
     refuse to furnish them until the subpoena's `return date,' 
     which must be on a day the grand jury is sitting. Because the 
     grand jury is not scheduled to meet again until Monday 
     morning, investigators may not be able to obtain the 
     information for two days--during which time the Al Qaeda cell 
     may execute its plot. If investigators had the authority to 
     issue an administrative subpoena, which can set a very short 
     or immediate response deadline for information, they may be 
     able to obtain the records immediately and neutralize the 
     cell.''

  Mr. Wray concluded his answer by noting that ``[g]ranting FBI the use 
of [JETS authority] would speed those terrorism investigations in which 
subpoena recipients are not inclined to contest the subpoena in court 
and are willing to comply. Avoiding delays in these situations would 
allow agents to track and disrupt terrorist activity more 
effectively.''
  To place the JETS Act in context, it bears noting that granting the 
FBI direct authority to issue subpoenas in terrorism cases would hardly 
be anomalous. As the Justice Department's Office of Legal Policy 
recently noted in a published report, ``Congress has granted some form 
of administrative subpoena authority to most federal agencies, with 
many agencies holding several such authorities.'' (Report to Congress 
on the Use of Administrative Subpoena Authorities by Executive Branch 
Agencies and Entities, Pursuant to Public Law 106-544, Section 7.) The 
Justice Department ``identified approximately 335 existing 
administrative subpoena authorities held by various executive-branch 
entities under current law.'' Ibid.
  Among the more frequently employed of existing executive-subpoena 
authorities is 18 U.S.C. Sec.  3486's permission for the Attorney 
General to issue subpoenas ``[i]n any investigation of a Federal health 
care offense.'' According to the Public Law 106-544 Report, in the year 
2001 the federal government used Sec.  3486 to issue a total of 2,102 
subpoenas in health-care-fraud investigations. These subpoenas 
uncovered evidence of ``fraudulent claims and false

[[Page S7179]]

statements such as `upcoding,' which is billing for a higher level of 
service than that actually provided; double billing for the same visit; 
billing for services not rendered; and providing unnecessary 
services.''
  Executive agencies already have direct subpoena authority for many 
types of investigations. Thus it would not be exceptional for Congress 
to grant the same authority to the FBI for terrorism cases. Indeed, as 
Mr. Wray noted in his above-cited answers to questions, ``[b]ecause of 
the benefits that administrative subpoenas provide in fast-moving 
investigations, they may be more necessary in terrorism cases than in 
any other type of investigation.'' One can hardly contend that although 
the federal government can use subpoenas to investigate Mohammed Atta 
if it suspects that he is committing Medicare fraud, it should not be 
allowed to use the same powers if it suspects that he is plotting to 
fly airplanes into buildings.
  Granting direct subpoena authority to the FBI for terrorism cases 
first was proposed by the President last year, near the time of the 
second anniversary of the September 11 attacks. There is one criticism 
of the President's proposal that was made at that time that I believe 
needs to be addressed. The New York Times, in a September 14 story, 
described unnamed ``opponents'' as denouncing the proposal for 
``allow[ing] federal agents to issue subpoenas without the approval of 
a judge or grand jury.''
  This criticism reflects a misunderstanding of grand-jury subpoenas. 
The anonymous opponents of the President's proposal appear to be under 
the impression that the grand jury itself issues a grand-jury subpoena. 
This is not the case. Instead, a grand-jury subpoena is issued by an 
individual federal prosecutor, without any prior involvement by a judge 
or grand jury. As the U.S. Court of Appeals for the District of 
Columbia has noted, ``[i]t is important to realize that a grand jury 
subpoena gets its name from the intended use of the . . . evidence, not 
from the source of its issuance.'' Doe v. DiGenova, 779 F.2d at 80 n. 
11 (1985).
  Like the grand-jury subpoenas currently used to investigate potential 
crimes of terrorism, JET subpoenas also would be issued directly by 
investigators, without pre-approval from a court. It is thus important 
to keep in mind that a subpoena is merely a request for information--a 
request that cannot be enforced until its reasonableness has been 
reviewed by a federal judge. As Mr. Wray noted on behalf of the Justice 
Department in his answers to Senator Biden's questions:

       The FBI could not unilaterally enforce an administrative 
     subpoena issued in a terrorism investigation. As with any 
     other type of subpoena, the recipient of an administrative 
     subpoena issued in a terrorism investigation would be able to 
     challenge that subpoena by filing a motion to quash in the 
     United States District Court for the district in which that 
     person or entity does business or resides. If the court 
     denied the motion to quash, the subpoena recipient could 
     still refuse to comply. The government would then be required 
     to seek another court order compelling compliance with the 
     subpoena.

  This system guarantees protection for civil liberties. The courts 
take very seriously their role in reviewing subpoena-enforcement 
requests. As the Third Circuit has emphasized, ``the district court's 
role is not that of a mere rubber stamp, but of an independent 
reviewing authority called upon to insure the integrity of the 
proceeding.'' Wearly v. FTC, 616 F.2d at 665 (1980). The prospect of 
judicial oversight also inevitably restrains even the initial actions 
of executive agents. As the Public Law 106-544 Report notes, ``an 
agency must consider the strictures of [a motion to quash or a 
challenge to an enforcement order] before issuing an administrative 
subpoena.'' And finally, the system of separated authority to issue and 
review subpoenas has itself been recognized to guard civil liberties. 
The federal courts have found that ``[b]ifurcation of the power, on the 
one hand of the agency to issue subpoenas and on the other hand of the 
courts to enforce them, is an inherent protection against abuse of 
subpoena power.'' United States v. Security State Bank and Trust, 473 
F.2d at 641 (5th Cir. 1973).
  The administrative subpoena is a well-established investigative tool 
with built-in protections for civil liberties. Its use in antiterrorism 
investigations should not pose a threat to individual freedom.
  Finally, although the constitutionality of a tool so frequently used 
for so long might safely be assumed, it nevertheless merits describing 
exactly why subpoena power is consistent with the Fourth Amendment. A 
thorough explanation recently was provided by Judge Paul Niemeyer of 
the U.S. Court of Appeals for the Fourth Circuit. As Judge Niemeyer 
noted, the use a subpoena does not require a showing of probable cause 
because a subpoena is not a warrant--it does not authorize an immediate 
physical intrusion of someone's premises in order to conduct a search. 
Rather, subpoenas are subject only to the Fourth Amendment's general 
reasonableness requirement--and they are reasonable in large part 
because of the continuous judicial oversight of their enforcement. As 
Judge Niemeyer stated in his opinion for the court in In re Subpoena 
Duces Tecum, 228 F.3d at 347-49 (2000) (citations omitted):

       While the Fourth Amendment protects people ``against 
     unreasonable searches and seizures,'' it imposes a probable 
     cause requirement only on the issuance of warrants. U.S. 
     Const. amend. IV (``and no Warrants shall issue, but upon 
     probable cause, supported by Oath or affirmation,'' etc.). 
     Thus, unless subpoenas are warrants, they are limited by the 
     general reasonableness standard of the Fourth Amendment 
     (protecting the people against ``unreasonable searches and 
     seizures''), not by the probable cause requirement.
       ``A warrant is a judicial authorization to a law 
     enforcement officer to search or seize persons or things. To 
     preserve advantages of speed and surprise, the order is 
     issued without prior notice and is executed, often by force, 
     with an unannounced and unanticipated physical intrusion. 
     Because this intrusion is both an immediate and substantial 
     invasion of privacy, a warrant may be issued only by a 
     judicial officer upon a demonstration of probable cause--the 
     safeguard required by the Fourth Amendment. See U.S. Const. 
     amend. IV (``no Warrants shall issue, but upon probable 
     cause''). The demonstration of probable cause to a neutral 
     judicial officer places a checkpoint between the Government 
     and the citizen where there otherwise would be no judicial 
     supervision.
       ``A subpoena, on the other hand, commences an adversary 
     process during which the person served with the subpoena may 
     challenge it in court before complying with its demands. As 
     judicial process is afforded before any intrusion occurs, the 
     proposed intrusion is regulated by, and its justification 
     derives from, that process.
       ``If [the appellant in this case] were correct in his 
     assertion that investigative subpoenas may be issued only 
     upon probable cause, the result would be the virtual end to 
     any investigatory efforts by governmental agencies, as well 
     as grand juries. This is because the object of many such 
     investigations--to determine whether probable cause exists to 
     prosecute a violation--would become a condition precedent for 
     undertaking the investigation. This unacceptable paradox was 
     noted explicitly in the grand jury context in United States 
     v. R. Enterprises, Inc., where the Supreme Court stated:
       ``[T]he Government cannot be required to justify the 
     issuance of a grand jury subpoena by presenting evidence 
     sufficient to establish probable cause because the very 
     purpose of requesting the information is to ascertain whether 
     probable cause exists.''

  The U.S. Supreme Court first upheld the constitutionality of subpoena 
authority in 1911. United States v. Wilson, 31 S.Ct. at 542, concluded 
that ``there is no unreasonable search and seizure when a writ, 
suitably specific and properly limited in scope, calls for the 
production of documents which . . . the party procuring [the writ's] 
issuance is entitled to have produced.''
  The Wilson Court also noted that the subpoena power has deep roots in 
the common-law tradition roots--that stretch at least to Elizabethan 
times:

       ``no doubt can be entertained that there must have been 
     some process similar to the subpoena duces tecum to compel 
     the production of documents, not only before [the] time [of 
     Charles the Second], but even before the statute of the 5th 
     of Elizabeth. Prior to that statute, there must have been a 
     power in the Crown (for it would have been utterly impossible 
     to carry on the administration of justice without such power) 
     to require the attendance in courts of justice of persons 
     capable of giving evidence, and the production of documents 
     material to the cause, though in the possession of a 
     stranger.''

  The Supreme Court also has explicitly approved the use of subpoenas 
by executive agencies. In Oklahoma Press Pub. Co. v. Walling, 66 S.Ct. 
494 (1946), the Court found that the investigative role of an executive 
official in issuing a subpoena ``is essentially the same as the grand 
jury's, or the court's in issuing other pretrial orders for the 
discovery of evidence.'' Nearly fifty years ago, the U.S. Supreme Court 
in Walling was able to conclude that

[[Page S7180]]

Fourth Amendment objections to the use of subpoenas by executive 
agencies merely ``raise[] the ghost of controversy long since settled 
adversely to [that] claim.''
  Because granting direct subpoena authority to antiterror 
investigators would aid them in their important work, and would neither 
intrude upon civil liberties nor conflict with the Constitution, I 
propose the following bill, which would authorize judicially 
enforceable terrorism subpoenas.
  Mr. President, 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:

                                S. 2555

     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 ``Judicially Enforceable 
     Terrorism Subpoenas Act of 2004''.

     SEC. 2. ADMINISTRATIVE SUBPOENAS IN TERRORISM INVESTIGATIONS.

       (a) In General.--Chapter 113B of title 18, United States 
     Code, is amended by inserting after section 2332f the 
     following:

     ``Sec. 2332g. Judicially enforceable terrorism subpoenas

       ``(a) Authorization of Use.--
       ``(1) In general.--In any investigation concerning a 
     Federal crime of terrorism (as defined under section 
     2332b(g)(5)), the Attorney General may issue in writing and 
     cause to be served a subpoena requiring the production of any 
     records or other materials that the Attorney General finds 
     relevant to the investigation, or requiring testimony by the 
     custodian of the materials to be produced concerning the 
     production and authenticity of those materials.
       ``(2) Contents.--A subpoena issued under paragraph (1) 
     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.
       ``(3) Attendance of witnesses and production of records.--
       ``(A) In general.--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.
       ``(B) Limitation.--A witness shall not be required to 
     appear at any hearing more than 500 miles distant from the 
     place where he was served with a subpoena.
       ``(C) Reimbursement.--Witnesses summoned under this section 
     shall be paid the same fees and mileage that are paid to 
     witnesses in the courts of the United States.
       ``(b) Service.--
       ``(1) In general.--A subpoena issued under this section may 
     be served by any person designated in the subpoena as the 
     agent of service.
       ``(2) Service of subpoena.--
       ``(A) Natural person.--Service of a subpoena upon a natural 
     person may be made by personal delivery of the subpoena to 
     that person, or by certified mail with return receipt 
     requested.
       ``(B) Business entities and associations.--Service of a 
     subpoena 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.
       ``(C) Proof of service.--The affidavit of the person 
     serving the subpoena entered by that person on a true copy 
     thereof shall be sufficient proof of service.
       ``(c) Enforcement.--
       ``(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 the subpoenaed person 
     resides, carries on business, or may be found, to compel 
     compliance with the subpoena.
       ``(2) Order.--A court of the United States described under 
     paragraph (1) may issue an order requiring the subpoenaed 
     person, in accordance with the subpoena, to appear, to 
     produce records, or to give testimony touching the matter 
     under investigation. Any failure to obey the order of the 
     court may be punished by the court as contempt thereof.
       ``(3) Service of process.--Any process under this 
     subsection may be served in any judicial district in which 
     the person may be found.
       ``(d)  Nondisclosure requirement.--
       ``(1) In general.--If the Attorney General certifies that 
     otherwise there may result a danger to the national security 
     of the United States, no person shall disclose to any other 
     person that a subpoena was received or records were provided 
     pursuant to this section, other than to--
       ``(A) those persons to whom such disclosure is necessary in 
     order to comply with the subpoena;
       ``(B) an attorney to obtain legal advice with respect to 
     testimony or the production of records in response to the 
     subpoena; or
       ``(C) other persons as permitted by the Attorney General.
       ``(2) Notice of nondisclosure requirement.--The subpoena, 
     or an officer, employee, or agency of the United States in 
     writing, shall notify the person to whom the subpoena is 
     directed of the nondisclosure requirements under paragraph 
     (1).
       ``(3) Further applicability of nondisclosure 
     requirements.--Any person who receives a disclosure under 
     this subsection shall be subject to the same prohibitions on 
     disclosure under paragraph (1).
       ``(4) Enforcement of nondisclosure requirement.--Whoever 
     knowingly violates paragraphs (1) or (3) shall be imprisoned 
     for not more than 1 year, and if the violation is committed 
     with the intent to obstruct an investigation or judicial 
     proceeding, shall be imprisoned for not more than 5 years.
       ``(5) Termination of nondisclosure requirement.--If the 
     Attorney General concludes that a nondisclosure requirement 
     no longer is justified by a danger to the national security 
     of the United States, an officer, employee, or agency of the 
     United States shall notify the relevant person that the 
     prohibition of disclosure is no longer applicable.
       ``(e) Judicial Review.--
       ``(1) In general.--At any time before the return date 
     specified in a summons issued under this section, the person 
     or entity summoned may, in the United States district court 
     for the district in which that person or entity does business 
     or resides, petition for an order modifying or setting aside 
     the summons.
       ``(2) Modification of nondisclosure requirement.--Any court 
     described under paragraph (1) may modify or set aside a 
     nondisclosure requirement imposed under subsection (d) at the 
     request of a person to whom a subpoena has been directed, 
     unless there is reason to believe that the nondisclosure 
     requirement is justified because otherwise there may result a 
     danger to the national security of the United States.
       ``(3) Review of government submissions.--In all proceedings 
     under this subsection, the court shall review the submission 
     of the Federal Government, which may include classified 
     information, ex parte and in camera.
       ``(f) Immunity From Civil Liability.--Any person, including 
     officers, agents, and employees of a non-natural person, 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 or other person.
       ``(g) Guidelines.--The Attorney General shall, by rule, 
     establish such guidelines as are necessary to ensure the 
     effective implementation of this section.''.
       (b) Amendment to Table of Sections.--The table of sections 
     of chapter 113B of title 18, United States Code, is amended 
     by inserting after the item relating to section 2332f the 
     following:

``2332g. Judicially enforceable terrorism subpoenas.''.
                                 ______