David Kravetz of Wired’s Threat Level blog documents how the use of administrative subpoenas and techniques like National Security Letters have made the 4th Amendment essentially a dead letter — all in the name of fighting terrorism, though they are rarely used for that purpose.
But by law, utilities must hand over customer records — which include any billing and payment information, phone numbers and power consumption data — to the DEA without court warrants if drug agents believe the data is “relevant” to an investigation. So the utility eventually complied, after losing a legal fight earlier this month.
Meet the administrative subpoena (.pdf): With a federal official’s signature, banks, hospitals, bookstores, telecommunications companies and even utilities and internet service providers — virtually all businesses — are required to hand over sensitive data on individuals or corporations, as long as a government agent declares the information is relevant to an investigation. Via a wide range of laws, Congress has authorized the government to bypass the Fourth Amendment — the constitutional guard against unreasonable searches and seizures that requires a probable-cause warrant signed by a judge.
In fact, there are roughly 335 federal statutes on the books (.pdf) passed by Congress giving dozens upon dozens of federal agencies the power of the administrative subpoena, according to interviews andgovernment reports. (.pdf)…
Anecdotal evidence suggests that federal officials from a broad spectrum of government agencies issue them hundreds of thousands of times annually. But none of the agencies are required to disclose fully how often they utilize them — meaning there is little, if any, oversight of this tactic that’s increasingly used in the war on drugs, the war on terror and, seemingly, the war on Americans’ constitutional rights to be free from unreasonable government trespass into their lives.
That’s despite proof that FBI agents given such powers under the Patriot Act quickly began to abuse them and illegally collected Americans’ communications records, including those of reporters. Two scathing reports from the Justice Department’s Inspector General uncovered routine and pervasive illegal use of administrative subpoenas by FBI anti-terrorism agents given nearly carte blanche authority to demand records about Americans’ communications with no supervision.
When Julius and Augustus Caesar transformed the Roman Republic into the Roman Empire, they cleverly left the Senate in place while denying it any real authority. The trappings of the old republic remained in place even while the nature of the government changed completely. Much the same thing has gone on over the last few decades in this country. We remain a representative democracy, choosing our leaders in elections every few years, but the constitutional safeguards that were intended to prevent an imperial government have become dead-letter laws, ignored daily on whatever pretext those elected leaders see fit to invent at that moment.