Conyers: DHS Subpoena Authorization Premature
Washington, DC, November 3, 2011
Tags: Government Oversight
Today, the House Judiciary Committee Subcommittee on Immigration Policy and Enforcement voted to authorize the subcommittee chairman to issue a subpoena to the Department of Homeland Security (DHS) following a request from Chairman Lamar Smith (R-TX.) for sensitive law enforcement data related to persons who have come into contact with the Immigration and Customs Enforcement Agency (ICE). Ranking Member John Conyers, Jr. (D-Mich.) made the following statement at the subcommittee’s meeting:
“The congressional subpoena is one of the most powerful weapons in this committee’s arsenal. So I take the proposal under consideration today very seriously. However, I do not believe that it is appropriate for the subcommittee to be authorizing the issuance of a subpoena today given the breadth of the information requested, the complexity of the privacy issues involved, and the considerable effort that has been made by the Department of Homeland Security and the Department of Justice to provide a response to the request. Also, as this markup began, we had no assurance that the Majority would not make this massive amount of sensitive information public.
“Clearly, there are significant and complex privacy issues raised by the subpoena. As I understand it, the Chair is seeking sensitive law enforcement information on 300,000 or more individuals who have come to ICE’s attention over the last two and one half years. This includes information on individuals who may be U.S. citizens as well as lawful permanent residents.
“Second, I do not believe we are at a point where any of us can state that recourse to negotiations have failed. From the day Secretary Napolitano left this chamber last Wednesday to the moment we started this meeting, DHS has worked diligently to provide us with a full response to Chairman Smith’s questions. Just two hours ago, DHS informed my staff and Chairman Smith’s staff that although the FBI is not permitting DHS to release FBI numbers, DHS is right now generating a response that will provide the committee with almost all of the information requested.
“I cannot speak about the delay that preceded last week’s oversight hearing, when the Chairman raised the matter with the Secretary. But with respect to the delay that has taken place over the past week, I understand that is related to the sensitive nature of the information requested, particularly the privacy concerns and the breadth of the request. We have every reason to believe that the administration worked diligently to solve those problems and we now know that information will be on its way within the next few days.
“Until we have some sign of deliberate delay, and as long as our line of communication with DHS remains open and productive, I cannot support this subpoena.
“Having said that, I would like to state for the record that the committee has a legitimate oversight role with regard to ICE and that when necessary the authorization of issuance of subpoena may be appropriate. As a former Chairman I was not shy about protecting the committee’s prerogatives, even going to the house floor and the courts where and when necessary.
“For example, the U.S. Attorneys subpoenas issued by Judiciary in the 110th Congress came at the end of a months-long, bicameral, bipartisan negotiation.
“With respect to Administration officials, we only resorted to a subpoena when individuals failed to appear despite our negotiations. For example, we only compelled Karl Rove to appear after he refused our invitation and invoked an absolute immunity from testifying before the committee—and even then we accommodated his request to be deposed, rather than to give testimony.
“With respect to materials we requested from the Department of Justice, we first engaged in a lengthy back-and-forth with all parties—documents were provided, we took the opportunity to react, and we shared them with the minority. Only after that process broke down did we resort to a subpoena.
“Moreover, the U.S. Attorney subpoenas came in the context of a national inquiry of considerable public interest and controversy. Subpoenas were only issued after multiple hearings on both sides of the Hill, after the questions under investigation were fully understood by all parties.
“In comparison, this committee’s inquiry into a particular and recent policy of the Department of Homeland Security has just begun. We have had only a few minutes to study the privacy concerns—raised by the FBI, as well as DHS—that appear to hold back the Administration at this point. We do not yet fully understand the inter-agency process that led to this decision by the Administration.
“This premature subpoena short circuits the constitutionally required accommodation process. As Chairman, I worked to fulfill our obligation, under law, to work out our disputes before resorting to subpoena. I only ask the same today.
“I also recognize that there is precedent for the committee seeking information on criminal convictions involving undocumented aliens as recently as 1999. I understand and appreciate the Chair’s frustration that his request has been pending since late August. However, given the breadth and complexity of this request, the involvement of multiple agencies and the very sensitive privacy issues, I believe that at this point in the process our focus should be on negotiations, not confrontation.”