Thursday, May 19, 2005
As amazing as it may sound, it looks like prosecutors want even more freedom to investigate without oversight. According to the New York Times here the government is seeking power so that they can "subpoena records from businesses and other institutions without a judge's sign-off if THEY declared that the material was needed as part of a foreign intelligence investigation." (emphasis added). Some questions here:
1. What makes something a foreign intelligence investigation? How connected will the conduct have to be to terrorism, and who will make the decision that it is connected closely enough? And what happens if the government makes the wrong decision?
2. Should US businesses be concerned about this proposal? Will they find records being obtained without them having the opportunity to appear before a judge and assert privileges or other defenses to the production of the documentation?
3. Is the FBI willing to disclose how they have used the powers they received so far; that is those powers provided in the name of terrorism? (see ACLU claims here) Has the Patriot Act been used in non-terrorism cases? And will it be enough to have oversight twice a year after the passage of this legislation?
This may be a white collar crime blog - - but when unmonitored power to obtain certain documents, without oversight, is being considered, everyone needs to start considering the ramifications of this possibility. Is judicial oversight really that problematic to fighting terrorism?