Back at Ya, Strom

Rebutting Sen. Thurmond on the Fugitive Protection Act

By Dave Kopel of the Independence Institute

10/20/00 11:55 a.m., National Review Online. More by Kopel on the Fourth Amendment and searches and on federal criminal law.

Sen. Thurmond claims that I criticize the Fugitive Apprehension Act "in order to generate suspicion about…the government and its legitimate interest in apprehending those fleeing from justice." Sen. Thurmond is usually too much of a gentleman to stoop to the Clintonian tactic of claiming that people who oppose big-government intrusions on constitutional liberty are anti-government and pro-criminal.

For the record, I've served as an assistant attorney general for the State of Colorado, working on hazardous-waste enforcement. Before that, I was a prosecutor. My mother worked for many years as a federal government employee, the United States Bankruptcy Trustee for Colorado and Kansas. My father spent 22 years in the Colorado House of Representatives. I am for government and I am for law and order. Good government and law and order are founded on scrupulous adherence to constitutional values.

Sen. Thurmond writes that the bill "does not permit law-enforcement personnel to search anyone's home, business, or any other place for that matter. This legislation is about helping authorities get documentary information about the whereabouts of the most dangerous, violent fugitives who are roaming the streets of America. It is ridiculous to imply that the bill targets drunk drivers or gun owners — unless those people also happen to be felons who have committed rape, robbery, or murder."

The language of S. 2516 does not support Senator Thurmond's claim. Section (1)(a) of the bill plainly applies to any alleged felony under state or federal laws. This includes drunk driving and various paperwork gun offenses. The bill has no limitation to violent crimes, or to "felons who have committed rape, robbery, or murder."

Sen. Thurmond is right that the bill applies to "documentary information." That includes your personal medical records that are held in a doctor's office or an insurance company's files, your credit records in the custody of a credit-reporting company, your travel records in the custody of an airline, your disciplinary records held by the schools you attended, your personnel files in the custody of your employer, your financial records in the custody of your bank or broker, and your firearms purchase records in the custody of your firearms dealer.

And the bill also applies to records that are in your custody. So if you're sent an administrative warrant, then you must surrender those documents to the government. If you don't, then the government can enter your home or business without your consent, and take those records.

Under the bill, government agents would be able to write their own search warrants ("administrative subpoenas") rather than having to go to a judge or magistrate to ask them to issue the subpoena. Sen. Thurmond points out that administrative subpoenas have "been in existence for years" and are "used by federal law-enforcement agencies to investigate various crimes including drug trafficking, child pornography, and health-care fraud."

No matter what the context, administrative subpoenas are a terrible idea, because they allow search warrants to be issued without judicial approval, in direct violation of the Fourth Amendment. (It's true that courts these days refuse to strike down administrative-subpoena laws, as they refuse to take action against many other violations of the Fourth Amendment.) That past Congresses have been foolish enough to create administrative subpoenas about the then-hysteria of the moment does not mean that the current Congress should follow in their footsteps.

Part of my article criticized a provision allowing some of S. 2516's searches to be kept secret indefinitely. Sen. Thurmond points out that, while such a provision was in the original bill, it was removed from the version that passed the Senate. I stand corrected, and before writing my article, I should have read the later version bill, rather than the bill as introduced.

Sen. Thurmond writes, "I must also take exception to the contention that we have been 'sneaky' in our efforts to have this bill passed. A hearing was held on this issue in the Senate earlier this year, and the matter was also discussed in a House hearing. Finally, the legislation passed the Senate unanimously in July as a freestanding bill. My objection in the article wasn't to how Congress handled the bill during the summer — which is just the way Sen. Thurmond says. Rather, my concern is about efforts to push the bill through the House in the final days of Congress, with little opportunity for public input, or — even worse — efforts to roll S. 2516 into some giant appropriations bill.

In my article, I claimed that there was no real law-enforcement need for this bill. Today, when federal agents need to look at someone's personal records, they can ask a judge or a magistrate for a subpoena. That's how things have worked ever since 1789. Sen. Thurmond's article does not offer any reasons why the system that has worked for 211 years ought to be changed.