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Bush's New Terror Proposals

By Jeralyn, Section Legislation
Posted on Thu Sep 11, 2003 at 05:56:50 PM EST
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Here is the text of the new terror bill President Bush is promoting. It is H.R. 3037, introduced September 9 by Congressman Tom Feeney.

Several people have asked what's so bad about allowing the Government to bypass the courts and get administrative subpoenas. Here are the details of the provision, with analysis, by Kyle O'Dowd, Legislative Director for the National Association of Criminal Defense Lawyers (NACDL):

Overview:

  • Allows DOJ to issue non-judicial subpoena to persons or entities requiring that they appear (most likely, in the U.S. Attorney’s office) to produce records and answer questions
  • Applies to any investigation concerning a Federal crime of terrorism
  • Area of questioning not limited to authenticity of any documents produced
  • Requires attendance up to 500 miles away
  • Allows AG to issue non-judicial gag order and punishes violations with incarceration
  • In the event the subpoena is challenged in court, judicial review of the government’s submission is conducted in secret

Analysis:

  • Similar to authority requested by DOJ and rejected by Congress during PATRIOT Act negotiations, and included in DOJ’s notorious PATRIOT II draft (Domestic Security Enhancement Act of 2003) and the recent draft VICTORY Act
  • Circumvents the traditional requirement that such investigative subpoenas be issued by a federal grand jury, a constitutionally mandated body comprised of 23 citizens
  • President Bush has said that he wants DOJ to have the same power that is currently available “to catch crooked doctors,” but the statute authorizing administrative subpoenas in health care fraud cases limits questioning to matters relevant to document production and authenticity
  • There's no grand jury and probably no defense lawyer present to discourage prosecutors from employing abusive and unfairly coercive tactics against innocent persons
  • This power to conduct private inquisitions would be subject to tremendous abuse; in the words of Judge Learned Hand, except for torture, “it would be hard to find a more effective tool for tyranny than the power of unlimited and unchecked ex parte examination.”

NACDL issued this press release today criticizing Bush's new support of additional patriot act powers:

"Again, in the name of freedom, the Bush administration is proposing to take more freedom, this time not just from mere suspects, but from judges.

"Records indicate that courts overseeing the government's war on terror have been little more than rubber stamps, as evidenced by the Foreign Intelligence Surveillance Court's granting of virtually every request for a search by the government. We should be gravely concerned that the government now wants to avoid even that amount of oversight; we should ask ourselves what it is that they want to do that they don't even want sympathetic judges to know about.

"No one can argue that the system of checks and balances which the founders built into our government has not been a key to our success. History tells us that a continuing attempt by one branch of government to circumvent the power of another is a warning we should not ignore."

Update: Another lawyer writes in:

....the area of compelled testimony and questioning is virtually unlimited -- and at the discretion of the AG to determine whether he believes the testimony is relevant and material. Even assuming a court has the power under this
amendment to step in, this sets no standard for when and under what
conditions a court may intervene.

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