A New Subpoena
Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 1, Issue 1 along with a link to an electronic copy of the full form of the piece.
Since the terrorist attacks of September 11, 2001, the government’s use of national security letters (NSLs) has generated substantial controversy. F ar from its popular image as draconian, intrusive, and constitutionally suspect, the current NSL is a weak, limited instrument, generally inadequate to its task. The NSL should be replaced by a new National Security Subpoena, patterned after federal grand jury and administrative subpoenas, both of which have long legal pedigrees. They have evolved on parallel legal tracks over time as primary fact-finding tools of what courts have recognized as the federal government’s power of inquiry, issued on what amounts to low-threshold reasonable suspicion. Reserving enforcement of federal subpoenas to Article III courts has successfully preserved a constitutional balance by allowing reasonable federal investigation while preserving individual rights against abusive or inappropriate invasions of privacy. Many years of experience with grand jury and the commonly-used administrative subpoenas have proven them to be models for a transformed NSL–one better suited to a world of bioterrorism and dirty bombs. The 2006 amendments to the Patriot Act, for the first time extending statutory judicial review to national security letters, laid the groundwork for replacing the outmoded, cumbersome, and controversial NSL with something much more useful. The new subpoena would substantially improve investigators’ effectiveness while enhanced executive supervision and independent judicial review would ensure enforcement of constitutional limits.
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Christophir Kerr is a J.D. graduate of the Steston University College of Law.