When a proposal surfaced last week to give the FBI administrative subpoenas in intelligence investigations, it set in motion a well-rehearsed order of battle.

Civil libertarians immediately denounced the expansion of power, which would enable the FBI, in secret and without prior judicial approval, to obtain personal information on anyone. The Justice Department insisted that the authority was necessary for war on terror, and justified it by citing the widespread availability of administrative subpoenas in other areas like drug investigations and health care fraud. Both sides, however, are overlooking the proposal's true potential.

Few would dispute that, in national security cases, the FBI will, at times, need access to personal information held by third parties, such as banks, telecommunications providers and credit bureaus. Criminal investigative tools, which are designed for an open, adversarial environment, aren't up to the task of collecting intelligence on spies and terrorists, since the government can't risk alerting the subjects of the investigation or revealing the sensitive sources that identifies them.

Therefore, the FBI needs to have the ability to collect information secretly. But how, absent overt checks and balances, do we ensure that the FBI won’t abuse the vague cause of "national security" to abridge constitutional rights or harass political dissidents?

Today, the FBI can send a "national security letter" to the custodian of relevant data. Although there are laws limiting the kind of information subject to this authority, the judgment as to whether the legal standard has been met is entirely that of the FBI official. A judge is never involved. The recipient of such a letter is then required to comply, is bound to secrecy, and has no alternative to any court.

The FBI's other choice is to seek an order from the Foreign Intelligence Surveillance Court (FISC) under the infamous Section 215 of the USA PATRIOT Act. However, the language of the act limits the ability of FISC to question the government's application. For civil libertarians, the problem with both options is that there is no effective way to discover or challenge any abuses.

The administrative subpoena represents a real improvement here. It allows the FBI to obtain any or all relevant information, but is not self-enforcing. An uncomfortable recipient can file a challenge in any federal court, or he can wait for the FBI to file an enforcement action. Either way, judicial review is assured. Although the ensuing litigation would be subject to secrecy provisions, those are not dissimilar to existing laws that govern the use of classified information in court. If the government moves the case to the FISC, it remains adversarial. Most importantly, the proposal invokes a well-established body of law that addresses the use of administrative subpoenas in other contexts. The reviewing court could look to decisions of the Supreme Court, and dozens of lower courts, that have crafted principles in order to prevent the abuse of authority.

Civil libertarians ought to embrace the administrative subpoena option as a means to institutionalize judicial oversight. Rather than argue about the scope of the FBI's authority, they should focus on ensuring that the proposed administrative subpoena power replaces, rather than supplements, existing authorities. They might also push for secrecy provisions that are more challenge-friendly. Through legal challenges they could address perceived abuses, and help create a body of law defining the boundaries around constitutionally sensitive information. Library records or any special category of information could be evaluated and protected as the need arises, in a manner appropriate to the circumstances of the day and subject to ongoing adjustment.

The government should go along with this, and allow what would then be the redundant national security letters and Section 215 disappear. The FBI could obtain by administrative subpoena any information that it can get under the current law, so there is no operational downside.

The government should acknowledge that the most effective national security tools are ones that incorporate clear protections, and are accepted as doing so by communities outside the intelligence establishment. Thus, the FBI could gain a flexible and effective tool that avoids the fate of Section 215, which so inflamed librarians and others that they defiantly shredded records rather have them exposed to the remote possibility of compelled production.

The current debate over the reauthorization of the PATRIOT Act often presumes a tradeoff between national security and protection of privacy. In this way, Congress has an opportunity to enact a provision enhancing both.

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