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An administrative subpoena under U.S. law is a subpoena issued by a federal agency without prior judicial oversight. Critics say that administrative subpoena authority is a violation of the Fourth Amendment to the United States Constitution, while proponents say that it provides a valuable investigative tool. [1] [2]
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Philip Hamburger argues historical antecedents for the modern-day administrative subpoena date back as far as the Star Chamber and the prerogative courts, which issued warrants and subpoenas that were not subject to significant procedural safeguards or the rule of law. [3]
Administrative subpoenas have most commonly been issued by the Offices of the Inspector General of various federal agencies. [4] The Drug Enforcement Administration was granted administrative subpoena authority under the Comprehensive Drug Abuse Prevention and Control Act of 1970. [2] In 1996 Congress expanded the authority to issue the subpoenas to the Federal Bureau of Investigation when investigating health care fraud cases under the Health Insurance Portability and Accountability Act. More recently, Public law 106-544 December 19, 2000 the Department of Justice has attempted to expand administrative subpoena authority to terrorism investigations through amendments to the Patriot Act. [4] [5]
The United States Department of the Treasury's Office of Foreign Assets Control (OFAC) also frequently utilizes administrative subpoenas to initiate civil investigations of U.S. economic sanctions violations. OFAC subpoenas are typically to be responded to in 30 days and require the subpoenaed party to turn over full and complete information, as well as, supporting documentation to verify the information provided in the response.
Courts typically exercise substantial deference to the agency requesting the subpoena in deciding whether to enforce it. [6] [7] The decision of a district court to enforce an administrative subpoena is reviewed for abuse of discretion, [8] itself a deferential standard.
The USA PATRIOT Act was a landmark Act of the United States Congress, signed into law by President George W. Bush. The formal name of the statute is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, and the commonly used short name is a contrived acronym that is embedded in the name set forth in the statute.
The United States Marshals Service (USMS) is a federal law enforcement agency in the United States. The USMS is a bureau within the U.S. Department of Justice, operating under the direction of the Attorney General, but serves as the enforcement arm of the United States federal courts to ensure the effective operation of the judiciary and integrity of the Constitution. It is the oldest U.S. federal law enforcement agency, created by the Judiciary Act of 1789 during the presidency of George Washington as the "Office of the United States Marshal". The USMS as it stands today was established in 1969 to provide guidance and assistance to U.S. Marshals throughout the federal judicial districts.
An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state, which authorizes the arrest and detention of an individual, or the search and seizure of an individual's property.
A material witness is a person with information alleged to be material concerning a criminal proceeding. The authority to detain material witnesses dates to the First Judiciary Act of 1789, but the Bail Reform Act of 1984 most recently amended the text of the statute, and it is now codified at 18 U.S.C. § 3144. The most recent version allows material witnesses to be held to ensure the giving of their testimony in criminal proceedings or to a grand jury.
The Federal Bureau of Narcotics (FBN) was an agency of the United States Department of the Treasury, established in the Department of the Treasury by an act of June 14, 1930, consolidating the functions of the Federal Narcotics Control Board and the Narcotic Division. These older bureaus were established to assume enforcement responsibilities assigned to the Harrison Narcotics Tax Act of 1914 and the Jones–Miller Narcotic Drugs Import and Export Act of 1922.
The United States Office of Special Counsel (OSC) is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority comes from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment and Reemployment Rights Act (USERRA). OSC's primary mission is the safeguarding of the merit system in federal employment by protecting employees and applicants from prohibited personnel practices (PPPs), especially reprisal for "whistleblowing." The agency also operates a secure channel for federal whistleblower disclosures of violations of law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; and substantial and specific danger to public health and safety. In addition, OSC issues advice on the Hatch Act and enforces its restrictions on partisan political activity by government employees. Finally, OSC protects the civilian employment and reemployment rights of military service members under USERRA. OSC has around 120 staff, and the Special Counsel is an ex officio member of Council of Inspectors General on Integrity and Efficiency (CIGIE), an association of inspectors general charged with the regulation of good governance within the federal government.
The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title II: Enhanced Surveillance Procedures granted increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections containing a sunset clause which sets an expiration date, December 31, 2005, for most of the title's provisions. This was extended twice: on December 22, 2005 the sunset clause expiration date was extended to February 3, 2006 and on February 2 of the same year it was again extended, this time to March 10.
The following are controversial invocations of the USA PATRIOT Act. The stated purpose of the Act is to "deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes." One criticism of the Act is that "other purposes" often includes the detection and prosecution of non-terrorist alleged future crimes.
The following is a section summary of the USA PATRIOT Act, Title II. The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. Title II: Enhanced Surveillance Procedures gave increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections containing a sunset clause which sets an expiration date, 31 December 2005, for most of the title's provisions. On 22 December 2005, the sunset clause expiration date was extended to 3 February 2006.
The American Bar Association passed resolutions on the USA PATRIOT Act that asked the U.S. Government "to conduct a thorough review of the implementation of the powers granted to the Executive Branch under the Act before considering legislation that would extend or further expand such powers ...." and "to conduct regular and timely oversight including public hearings ... to ensure that government investigations undertaken pursuant to the Foreign Intelligence Surveillance Act ... do not violate the First, Fourth, and Fifth Amendments of the Constitution ...." They also set up a website to discuss issues in relation to the Act, and thus the Patriot Debates were born, where various people debated specific sections.
A national security letter (NSL) is an administrative subpoena issued by the United States government to gather information for national security purposes. NSLs do not require prior approval from a judge. The Stored Communications Act, Fair Credit Reporting Act, and Right to Financial Privacy Act authorize the United States government to seek such information that is "relevant" to authorized national security investigations. By law, NSLs can request only non-content information, for example, transactional records and phone numbers dialed, but never the content of telephone calls or e-mails.
Warrantless searches are searches and seizures conducted without court-issued search warrants.
The North Carolina State Bureau of Investigation (SBI) is a state-level law enforcement agency in North Carolina.
The history of the USA PATRIOT Act involved many parties who opposed and supported the legislation, which was proposed, enacted and signed into law 45 days after the September 11 terrorist attacks in 2001. The USA PATRIOT Act, though approved by large majorities in the U.S. Senate and House of Representative, was controversial, and parts of the law were invalidated or modified by successful legal challenges over constitutional infringements to civil liberties. The Act had several sunset provisions, most reauthorized by the USA PATRIOT Improvement and Reauthorization Act of 2005 and the USA PATRIOT Act Additional Reauthorizing Amendments Act. Both reauthorizations incorporated amendments to the original USA PATRIOT Act, and other federal laws.
Crowell v. Benson, 285 U.S. 22 (1932) is the landmark United States Supreme Court administrative law decision that outlined the adjudicatory authority of administrative agencies under Article III of the Constitution. The Court held that the United States Employees' Compensation Commission satisfied Fifth Amendment Due Process and the requirements of Article III with its court-like procedures and because it invests the final power of decision in Article III courts.
Zurcher v. Stanford Daily, 436 U.S. 547 (1978), is a United States Supreme Court case from 1978 in which The Stanford Daily, a student newspaper at Stanford University, was searched by police after they suspected the paper to be in possession of photographs of a demonstration that took place at the university's hospital in April 1971. The Stanford Daily filed a suit claiming that under the protection of the First and Fourth Amendments of the Constitution, the warrants were unconstitutional and that the searches should have fallen under the context of subpoenas. The Supreme Court ruled against The Stanford Daily; however, Congress later passed the Privacy Protection Act of 1980, which provides additional protections against searches and seizures to the press and individuals who disseminate information to the public, unless that individual is suspected of a crime or a life-threatening situation is present.
The Bureau of Indian Affairs Police, Office of Justice Services, also known as BIA Police, is the law enforcement arm of the United States Bureau of Indian Affairs. The BIA's official mission is to "uphold the constitutional sovereignty of the Federally recognized Tribes and preserve peace within Indian country". It provides police, investigative, corrections, technical assistance, and court services across the over 567 registered Indian tribes and reservations, especially those lacking their own police force; additionally, it oversees tribal police organizations. BIA services are provided through the Office of Justice Services Division of Law Enforcement.
Civil forfeiture in the United States, also called civil asset forfeiture or civil judicial forfeiture, is a process in which law enforcement officers take assets from people who are suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property such as a pile of cash or a house or a boat, such that the thing is suspected of being involved in a crime. To get back the seized property, owners must prove it was not involved in criminal activity. Sometimes it can mean a threat to seize property as well as the act of seizure itself. Civil forfeiture is not considered to be an example of a criminal justice financial obligation.
Microsoft Corp. v. United States, known on appeal to the U.S. Supreme Court as United States v. Microsoft Corp., 584 U.S. ___, 138 S. Ct. 1186 (2018), was a data privacy case involving the extraterritoriality of law enforcement seeking electronic data under the 1986 Stored Communications Act, Title II of the Electronic Communications Privacy Act of 1986 (ECPA), in light of modern computing and Internet technologies such as data centers and cloud storage.
A civil investigative demand (CID) is a discovery tool used by a number of executive agencies in the United States to obtain information relevant to an investigation. By contrast with other discovery mechanisms, CIDs are typically issued before a complaint has been filed by the government in order to commence a lawsuit against the recipient of the CID. CIDs are considered a type of administrative subpoena.
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