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Memo for Chertoff Patriot Act Subpoenas to Foreign Banks 8-6-02

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1.S.
Just
U.S.Depar1ment
Department ofof
Justice
USDOJ Seal

,;:,...
.

Office ofthe
of the Deputy
Deputy Assistant
Assistant Attomey
Attorney General
Office

I'Vashington, D-C.
D. C 20530
Washington,
20530

August 6, 2002

M E M O R A N D U M FOR
F O R MICHAEL
MICHAEL CHERTOFF
CHERTOFF
MEMORANDUM
ASSISTANT ATTORNEY
ATTORNEY GENERAL, CRIMINAL
CRIMINAL DTVISION
DIVISION
ASSISTANT

Whether Section
Section 3i9(b)
319(b) ofthe
of the Patriot
for the
the issuance
Issuance of
of Grand
Grand Jury
Jury
Whether
Patriot Act
Act Includes
Includes Authority
Authorityfor
Subpoenas
Foreign Banks
Banks That Maintain
Maintain Correspondent
Accounts in the
Subpoenas to Foreign
Correspondent Accounts
the United
United States
States

. The Asset Forfeiture
Forfeiture and Money Laundering Section ofyour
of your Division has asked for our
of the Uniting and Strengthening America By Providing
views concerning whether section 319(b) of
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of2001,
of 2001,
Pub. L. No. 107-56, tit. Ill, § 319(b), )115
272, 312-13 (to be codified
codified at 31 U_S.c.
U.S.C.
Pub_
15 Stat. 272,312-13
§ 5318(k)(3)(A)(i»
5318(k)(3)(A)(i)) ("Patriot Act") provides authority for the issuance of
of grand jury subpoenas to
to
i foreign banks that maintain correspondent accounts in the United States for records maintained
maintained
of the United States. 1)
outside of

319(b)
of the Treasury or the Attorney
9(b) provides in relevant part: "The Secretary of
Section 3]
or subpoena
subpoena to any foreign bank that maintains a correspondent
correspondent
General may issue a summons or
correspondent account, including
account in the United States and request records related to such correspondent
of the United States relating to the deposit of
of funds into the foreign
foreign
records maintained outside of
bank." !d.
Id. at 3313.
"'[t]he starting point in every case
13. As the Supreme Court has emphasized, "'[tJhe
involving construction
construction of
of a statute is the language itself'"
itself.'" Landreth
Timber Co. v. Landreth,
471
Landreth Timber
Landreth,471
U.S.
681, 685 (]985)
(1985) (alteration in original) (quoting Blue
Chip Stamps
Stamps v. Manor
Stores,
U.S_ 68],685
Blue Chip
Manor Drug
Drng Stores,
U.S. 723, 756 (1975) (Powell, J., concurring».
concurring)). In that regard, we presume that "Congress
"Congress
421 US.
'says in a statute what it means and means in a statute what it says there,'"
there,"' Hartford
Underwriters
Hartford Underwriters
Ins. Co. v. Union
Union Planters
U.S. 1,6
1, 6 (2000) (quoting Connecticut
Connecticut Nat
Planters Bank,
Bank, N.A.,
N.A., 530 U_S.
Nat'!7 Bank
Bank v.
Germain, 503 U.S.
(1992)). "There is, of
of course, no more persuasive evidence of
of the
Germain,
U.S_ 249, 254 (1992».
purpose of
of a statute thail
than the words by which the legislature undertook
undertook to give e.xpression
expression to its
wishes." United
United States
States v. American
Trucking
Ass'ns,
310
U.S.
534,
543
(1940).
Therefore, we
we
American Trucking Ass'ns,
effect to the literal meaning of
of the words ofa
of a statute unless to do so would
will give conclusive effect

I We address only the question whether section 319(b) authorizes federal grandjuries
grand juries to issue subpOenas
subpoenas
to
1o foreign
foreign banks
banks that
that maintain
maintain correspondent
correspondent accounts
accounts in
in the
the United
United States
Statesrequesting
requestingrecords
recordsrelated
related totosuch
such
. correspondent
We do nol
Correspondent accounts. We
not address whether there
there is
is any
any other
other source
source ofauthority
of authority for
for the
the issuance
issuance of
of such
" ")) subpoenas by aa federal grand jury.
jury.

South Dakota
Sioux Tribe, 522 U.S. 329, 346
lead to an absurd result. See, e.g., South
Dakota v. Yankton SiOla:
(1998); United
United Stotes
States v. X-Citement
of
(l998)~
X-Citement Video, Inc.,
Inc., 513 U.S. 64, 69-70 (1994). The language of
section 3
319(b)
" t h e Secretary of the Treasury or the Attorney General"
General"
I 9(b) expressly authorizes the "{tJhe
subpoenas, it does not, by its terms, authorize any other individual or entity to issue
to issue subpoenas~
subpoenas. Therefore, the plain terms of
of this provision indicate that the persons to whom the
subpoenas
Secretary of the Treasury and the
authority to issue a subpoena has been granted are only the Secretary'ofthe
staff has suggested that perhaps the term "Attorney
"Attorney General"
Attorney General. Although your staff
may be read to grant the grand jury subpoena authority, we do not agree that this term is
susceptible to such a reading. Federal grand juries operate independently from
from the prosecuting
attorney, see
see United
Engineering, Inc.,
Inc., 463 U.S. 418, 430 (1983); Jenkins
Jenkins v.
United States
States v. Sells
Sells Engineering,
v.
McKeithen, 395 U.S. 41
I, 430 (1969); Stirone
McKeithen,
411,
Stirone v.
v. United
United States,
States, 361 U.S. 212, 218 (1960).
Moreover, although federal prosecutors advise grand juries and assist them in gathering evidence,
function by, when
it is the federal courts that supervise them and assist in their investigative function
of documents and the testimony
testimony of
of witnesses. See
See Mistretta
Mistretta
necessary, compelling the production of
United States,
States, 488 U.S. 361,390
361, 390 n.]
n.166 (1989); Morrison
Olson, 487 U.S. 654,68
654, 681I n.20
v. United
Morrison v. Olson,
United States,
States, 359 U.S. 4],49
4 1 , 49 (]
(1959).
(1988); Brown
Br0l1.n v. United
959).

Furthermore, Congress has, in other statutes, explicitly recognized the distinction between
an Attorney General subpoena and a grand jury subpoena. For example, records obtained via a
grand jury subpoena are exempt from
customer notification
of the Right to
from the customer
notification requirements of
Privacy Act found in ]2
12 U.S.c.
U.S.C. § 3405 (2000). Id.
Financial Privacy"Act
/d. § 3413(i) (exempting grand jury
subpoenas
from
the
customer
notification
requirements
of
subpoenas from
notification
of the Act and permitting a court to order
notify a customer); id. § 3420(b){l)
3420(b)(1) (prohibiting notification
notification to a .
a financial institution not to notifY
person named in a grand jury subpoena in connection with investigations of
of crimes against
financial institutions or under the Controlled
Controlled Substances Act). However, subpoenas issued
pursuant to an administrative subpoena are not exempt from the notification
notification requirements. !d.
Id.
§ 3405(2). Additionally, in criminalizing the disclosure of the existence or contents of a subpoena
subpoena
for records of
of a financial institution for purposes of
of obstructing a judicial proceeding, Congress
has defined
defined "subpoena
"subpoena for records" as meaning "a Federal grand jury subpoena or
or a Department
of
of Justice subpoena." 18 U.S.c.
U.S.C. § 1510(b)(3)(B) (2000) (emphasis added). Furthermore, there
are other federal statutes that specifically
specifically refer
refer to grand jury subpoenas as distinct from
from
administrative subpoenas or court orders. See, e.g., id. § 2705(a)(l)(B);
.
2705(a)(1)(B); id. § 2520(d).
Therefore, it appears that when Congress wants to authorize orregulate
the
effect
of
grandjury
or regulate
effect of grand jury
subpoenas, it does so explicitly and not by generalreference
general reference to the Attorney General.
The only remaining question is whether this case presents some extraordinary
extraordinary
justify failing to give effect
circumstance that would justify
effect to the plain terms chosen by Congress. We
of no absurdity produced
are aware of
produced by reading section 319(b) according to its plain meaning.
Secretary ofthe
of the
Whether Congress has wisely chosen to give subpoena authority only to the Secretary
Treasury and the Attorney General, or whether it might have been wiser to grant such authority to
well, are.
are questions we do not answer here. We note only that reading the
the grand jury
jury as wen,
statute in accordance with its plain meaning does not produce the kind of
of absurd result that would
be required to overcome the statute's text.
.

2

In conclusion, the plain meaning of
9(b) of
of section 3)
319(b)
of the Patriot Act authorizes the
issuance of
of subpoenas only by the Secretary of
of the Treasury and the Attorney General, not by a
of no basis for concluding that giving effect
effect to the statute's
federal grand jury. We are aware of
plain meaning will lead to an absurd result. Therefore, we conclude that section 319(b) provides
no authority for the issuance of
of grand jury subpoenas to foreign banks that maintain a
correspondent account in the United States.
Please Jet
let us know if you have any additional questions or concerns regarding this matter.

Joan L. Larsen-signatureofJoanL.Larsen
Deputy Assistant Attorney General

3

 

 

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