On The Use of Administrative Subpoenas

 We are hearing a lot these days about the use of administrative subpoenas. While in very specific and very limited cases defined by Congressional statutes, they are legal and binding, the uses they are being put to are unconstitutional and an illegal attempt to by-pass probable cause - the legal standard for issuing a judicial subpoena. This is the most authoritarian and frightening use of executive power I have seen to date. It allows, unchecked by due process, the seizing of private information, the detention of persons protected by 1st, 4th, 5th and 14th amendment rights (which apply to everyone occupying American space, not just citizens), and the subsequent "fruit of the poisonous tree" prosecutions using information obtained without probable cause.

Google released private information they had collected on a Cornell student journalist to Immigration and Customs Enforcement (ICE) on the basis of an administrative warrant. Let me first say that ICE is not one of the agencies defined by statute to be able to issue administrative warrants. Administrative warrants can be used in controlled substances situation (which are carefully defined in the statutes), child protection, Presidential protection by the U.S. Marshall's Service and Inspectors General gathering information for an internal investigation. That's it. Now I am no lawyer, but that's all my investigations into administrative warrants uncovered. So Google released information they promised was private to the government on the basis of an illegal subpoena. They didn't even demand an judicial subpoena, the basis of which is probable cause. So Google (or Alphabet) joins the long list of tech megacorps to cave to the government...surprise.

Here's the 4th amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Please note the very specific reference to probable cause. Precedence in the U.S. has further required that the determination of probable cause is suited only to the judicial branch. A judge must hear the reasonable, specific evidence that supplies probable cause to believe a crime has been committed. Then and only then will the judge sign a subpoena in furtherance of gathering proof beyond a reasonable doubt. That is constitutional law in America. There is no place in the 4th amendment that allows any other process. Any other process, by Constitutional definition, is unreasonable and illegal.

So why is Google obeying administrative subpoenas? Why are administrative warrants being issued by ICE? Why, oh why, is the executive branch trying to end around the Constitution? And why the hell isn't Congress doing anything about it? Yet another point to remember come November. 

Let me assure my readers that should I fall victim to an administrative warrant or subpoena, if any of my family does, then I will exhaust every resource I can gather to not only fight it, but to hold the issuing party or parties accountable to Constitutional law. If Congress won't take care of the American people, we're gonna have to do it ourselves.

These are scary times. It is reasonable to be scared. It is also reasonable to be very, very angry. Our politicians and institutions have failed us. Our government seeks to whitewash our population and control our behavior, if not our thoughts. Doesn't that sound more like Afghanistan than America? The difference is, in America, we can still change it. Use your voice, your vote, your money and your time to insure that the Constitution isn't just an old piece of paper, that the ideals and protections guaranteed by the Constitution are real and meaningful to everyone.

I may not agree with you, hell, I probably don't, but I will fight for your right to disagree with me. Disagreement and contemplative discussion breeds understanding and compromise for a better society. An inclusive and multi-cultural society. And trust me, America has ALWAYS been a multi-cultural society. We need dissent and viewpoints that have different histories and cultures in order to improve the great nation we already have. We need different opinions and ideas that come from a diverse group of background and experiences. We need the ivory towers and the farm workers, the masons and the technicians, the physicist and the steel worker, the immigrant and the native-born. We need all of us, working together to form a more perfect union. And we do not need or want a government that seeks to limit that potential.

UNUM