The ACLU is frothing at the mouth.
Lisa Graves, the organization’s senior counsel for legislative strategy, railed that Congress was meeting in secret to “rewrite our Fourth Amendment rights.” Americans, she pined, were being threatened with the loss of what she described as their “reasonable expectation that their federal government will not gather records about their health, their wealth and the transactions of their daily life without probable cause of a crime and without a court order.” Shocking as this must seem after four nonstop years of such drivel, it turns out that Graves’s every hysterical utterance was, to put it charitably, grossly misleading.
So what is an administrative subpoena?
Unlike ordinary subpoenas that agents must obtain from a federal prosecutor backed by the power of a grand jury or a trial court, administrative-subpoena authority allows agents to compel production of information on their own — i.e., to issue subpoenas without consulting a prosecutor or a judge.
That sounds like a bigger deal than it is. Observe that we are only talking about information that is already subject to subpoena. This usually means information that is held by third parties, such as banks or phone companies. Such records do not implicate recognized privacy interests, and the government has long been permitted to compel their production without prior judicial permission. To be sure, this is not always the case: Sometimes a subpoena (whether ordinary or administrative) is issued to an individual, ordering him to surrender some of his own privately held information. But in those instances, the recipient does not have to comply immediately: He is free to go to court first and try to have the subpoena quashed or narrowed.
Notably, administrative subpoenas are not new. Federal agents have for decades been permitted unilaterally to issue this form of legal process in order to investigate such matters as narcotics trafficking, insider trading, health care fraud, and even violations of the Occupational Health and Safety Act (OSHA).
McCarthy goes on to note that the Intelligence committee passed the measure 11-4 which is saying a lot in these times. He adds an excellent analysis of why he thinks the administrative subpoena isn't a particularly useful tool with little upside and some downside. His point, though, is that the ACLU should argue the matter on its merits and not act as if the Constitution itself had been irreversibly damaged.