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March 9, 2007

FBI's Abuse of National Security Letters Highlights Need to Address Possible Fifth Amendment Defect

T
he NYTimes -- the paper of record -- writes today that the DOJ-OIG has raised serious concerns about the FBI's use of National Security Letters, which functionally are administrative subpoenas. The NSLs are used to obtain telephone, financial, and library records.

The Washington Post also covered this issue today.

The OIG complains "that the [B]ureau lacks sufficient controls to make sure the subpoenas, which do not require a judge’s prior approval, are properly issued and that it does not follow even some of the rules it does have."

I've previously asked whether DOJ administrative subpoenas used in criminal healthcare fraud investigations violate the Fifth Amendment's Grand Jury Clause. Only prosecutors have the authority to issue the HCF subpoenas. There is no accountability in their issuance to any counterbalancing constitutional force, such as the judiciary or -- more important in my view -- a grand jury.

But with NSLs -- which have been around since 1978, 18 years longer than HCF subpoenas -- the question of their constitutionality is even more serious. The reason is you're talking about FBI agents -- not prosecutors -- having the unsupervised authority to root around in a person's most personal information. There seems to be even less accountability than with HCF subpoenas because FBI agents, not career prosecutors subject at least to ethical constraints not applicable to non-lawyers, are issuing these subpoenas. Obviously, no Art. III judge and no grand jury exercises any check -- even if only in name.

Posted by shertaugh at March 9, 2007 8:54 AM