国会纪录：2004年6月22日（参议院）Page S7178-S7193关于引入克利先生的账单：S. 2555.一项授权在恐怖主义调查中使用司法可执行的子公司的条例草案;向司法委员会委员会。Kyl先生。主席先生，我今天上升了介绍一项法案，该法案将授权司法部在恐怖主义调查中发出司法可执行的子弹。这是Jets法案的工作方式：它将允许联邦调查局向汇总文件和记录“在任何对联邦恐怖主义犯罪的调查中。”该法案将要求联邦调查局进入联邦法院才能执行该子招生事件收件人拒绝遵守它。它还允许收件人制定第一次举动并前往法庭挑战传票。喷气机法案也将允许司法部暂时禁止喷气子引导者的收件人披露他以外的任何人都收到了他的律师。然而，只有当律师一般证明“否则可能会导致美国国家安全可能导致危险的律师就可以留下这种披露。”“也是，传票的收件人有权前往法庭挑战非学位秩序。 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.''. ______