I am pleased that we were able to reconcile in the Thurmond-Biden-Leahy substitute amendment to S. 2516, the significant differences between that bill, as introduced, and S. 2761, “The Capturing Criminals Act,” which I introduced with Senator Kohl on June 21, 2000. I commend Senators Thurmond and Biden for their leadership on this issue and am glad we were able to make a number of changes to the bill to ensure that the authority granted is consistent with privacy and other appropriate safeguards.

As a former prosecutor, I am well aware that fugitives from justice are an important problem and that their capture is an essential function of law enforcement. According to the FBI, nearly 550,000 people are currently fugitives from justice on federal, state, and local felony charges combined. This means that there are almost as many fugitive felons as there are citizens residing in my home state of Vermont.

The fact that we have more than one half million fugitives from justice, a significant portion of whom are convicted felons in violation of probation or parole, who have been able to flaunt courts order and avoid arrest, breeds disrespect for our laws and poses undeniable risks to the safety of our citizens.

Our federal law enforcement agencies should be commended for the job they have been doing to date on capturing federal fugitives and helping the states and local communities bring their fugitives to justice. The U.S. Marshals Service, our oldest law enforcement agency, has arrested over 120,000 federal, state and local fugitives in the past four years, including more federal fugitives than all the other federal agencies combined. In prior years, the Marshals Service spearheaded special fugitive apprehension task forces, called FIST Operations, that targeted fugitives in particular areas and was singularly successful in arresting over 34,000 fugitive felons.

Similarly, the FBI has established twenty-four Safe Streets Task Forces exclusively focused on apprehending fugitives in cities around the country. Over the period of 1995 to 1999, the FBI’s efforts have resulted in the arrest of a total of 65,359 state fugitives.

Nevertheless, the number of outstanding fugitives is too large. The substitute amendment we consider today will help make a difference by providing new but limited administrative subpoena authority to the Department of Justice to obtain documentary evidence helpful in tracking down fugitives and by authorizing the Attorney General to establish fugitive task forces. “Administrative subpoena” is the term generally used to refer to a demand for documents or testimony by an investigative entity or regulatory agency that is empowered to issue the subpoena independently and without the approval of any grand jury, court or other judicial entity. I am generally skeptical of administrative subpoena power. Administrative subpoenas avoid the strict grand jury secrecy rules and the documents provided in response to such subpoenas are, therefore, subject to broader dissemination. Moreover, since investigative agents issue such subpoenas directly, without review by a judicial officer or even a prosecutor, fewer “checks” are in place to ensure the subpoena is issued with good cause and not merely as a fishing expedition.

Nonetheless, unlike initial criminal inquiries, fugitive investigations present unique difficulties. Law enforcement may not use grand jury subpoenas since, by the time a person is a fugitive, the grand jury phase of an investigation is usually over. Use of grand jury subpoenas to obtain phone or bank records to track down a fugitive would be an abuse of the grand jury. Trial subpoenas may also not be used, either because the fugitive is already convicted or no trial may take place without the fugitive.

This inability to use trial and grand jury subpoenas for fugitive investigations creates a gap in law enforcement procedures. Law enforcement partially fills this gap by using the All Writs Act, 28 U.S.C. § 1651(a), which authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The procedures, however, for obtaining orders under this Act, and the scope and non-disclosure terms of such orders, vary between jurisdictions.

Thus, authorizing administrative subpoena power will help bridge the gap in fugitive investigations to allow federal law enforcement agencies to obtain records useful for tracking a fugitive’s whereabouts.

The Thurmond-Biden-Leahy substitute amendment incorporates a number of provisions from the Leahy-Kohl “Capturing Criminals Act” and makes significant and positive modifications to the original version of S. 2516. First, as introduced, S. 2516 would have limited use of an administrative subpoena to those fugitives who have been “indicted,” and failed to address the fact that fugitives flee after arrest on the basis of a “complaint” and may flee after the prosecutor has filed an “information” in lieu of an indictment. The substitute amendment, by contrast, would allow use of such subpoenas to track fugitives who have been accused in a “complaint, information or indictment.”

Second, S.2516, as introduced, would have required the U.S. Marshal Service to report quarterly to the Attorney General (who must transmit the report to Congress) on use of the administrative subpoenas. While a reporting requirement is useful, the requirement as described in the original S. 2516 was overly burdensome and insufficiently specific. The substitute amendment, as in the Capturing Criminals Act, would require the Attorney General to report for the next three years to the Judiciary Committees of both the House and Senate with the following information about the use of administrative subpoenas in fugitive investigations: the number issued, by which agency, identification of the charges on which the fugitive was wanted and whether the fugitive was wanted on federal or state charges.

Third, although the original S. 2516 outlined the procedures for enforcement of an administrative subpoena, it was silent on the mechanisms for contesting the subpoena by the recipient. The substitute amendment expressly addresses this issue. As set forth in the Capturing Criminals Act, this substitute amendment would allow a person who is served with an administrative subpoena to petition a court to modify or set aside the subpoena on grounds that compliance would be “unreasonable or oppressive” (a standard used in Fed. R. Crim. P. 17 for trial subpoenas) or would violate constitutional or other legal rights of the person.

Fourth, the original S. 2516 did not provide, or set forth a procedure, for the government to command a custodian of records not to disclose or to delay notice to a customer about the existence of the subpoena. This is particularly critical in fugitive investigations when law enforcement does not want to alert the fugitive that the police are on his/her trail. The substitute amendment incorporates from the Capturing Criminals Act the express authority for law enforcement to apply for a court order directing the custodian of records to delay notice to subscribers of the existence of the subpoena on the same terms applicable in current law to other subpoenas issued to phone companies and other electronic service providers and to banks.

Fifth, the original S. 2516 did not provide any immunity from civil liability for persons complying with administrative subpoenas in fugitive investigations. As in the Capturing Criminals Act, the substitute amendment would provide immunity from civil liability for good faith compliance with an administrative subpoena, including non-disclosure in compliance with the terms of a court order.

Sixth, S. 2516, as introduced, would have authorized use of an administrative subpoena upon a finding by the Attorney General that the documents are “relevant and material,” which is further defined to mean that “there are articulable facts that show the fugitive’s whereabouts may be discerned from the records sought.” Changing the standard for issuance of a subpoena from “relevancy” to a hybrid of “relevant and material” sets a confusing and bad precedent. Accordingly, the substitute amendment would authorize issuance of an administrative subpoena for documents if the Attorney General finds based upon articulable facts that they are relevant to discerning the fugitive’s whereabouts.

Seventh, the original S. 2516 authorized the Attorney General to issue guidelines delegating authority for issuance of administrative subpoenas only to the Director of the U.S. Marshals Service, despite the fact that the FBI, and the Drug Enforcement Administration also want this authority to find fugitives on charges over which they have investigative authority. The substitute amendment would authorize the Attorney General to issue guidelines delegating authority for issuance of administrative subpoenas to supervisory personnel within components of the Department.

Eighth, the original S. 2516 did not address the issue that a variety of administrative subpoena authorities exist in multiple forms in every agency. The substitute amendment incorporates from the Capturing Criminals Act a requirement that the Attorney General provide a report on this issue.

Finally, as introduced, S. 2516 authorized the U.S. Marshal Service to establish permanent Fugitive Apprehension Task Forces. By contrast, the substitute amendment would authorize $40,000,000 over three years for the Attorney General to establish multi-agencytask forces (which will be coordinated by the Director of the Marshals Service) in consultation with the Secretary of the Treasury and the States, so that the Secret Service, BATF, the FBI and the States are able to participate in the Task Forces to find their fugitives.

This Thurmond-Biden-Leahy substitute amendment makes necessary changes to this bill that will help law enforcement – with increased resources for regional fugitive apprehension task forces and administrative subpoena authority – bring to justice both federal and state fugitives who, by their conduct, have demonstrated a lack of respect for our nation’s criminal justice system. I look forward to working with my colleagues to ensure swift passage of this legislation.