The consequences of enlisting federal grand juries in the war on terrorism: assessing the USA Patriot Act's changes to grand jury secrecy.

• Author: Beale, Sara Sun

1. INTRODUCTION

   The antiterrorism bill passed by Congress in the wake of the September 11 attacks, called the USA PATRIOT Act, (1) contains a subtle but important change to federal grand jury procedure as part of an effort to bring about increased coordination between law enforcement, national security, and defense efforts. Matters occurring before federal grand juries have historically been kept secret. Disclosure of grand jury materials has been permitted only to those directly involved in the enforcement of federal criminal law or by court order under sharply limited circumstances. The USA PATRIOT Act relaxes the secrecy rules to permit, for the first time, disclosures of grand jury material without a court order for purposes unrelated to the enforcement of federal criminal law. These changes have implications not only for the interests furthered by the secrecy provisions of grand jury procedure, but also for the larger question of the appropriate role and uses of federal grand juries.

2. A BRIEF HISTORY OF GRAND JURY AUTHORITY AND SECRECY

   The history of grand jury secrecy and the interests underlying the secrecy rules reflect a consistent theme: grand juries are exclusively intended for use in the investigation and prosecution of crimes. Any disclosure of grand jury material for a purpose other than direct criminal law enforcement requires a court order to be issued only upon a demonstration that there is a particularized and compelling need for such disclosure. Where exceptions to the general rule of secrecy have been carved out to recognize emerging challenges to law enforcement, these exceptions have been quite limited in scope. The exceptions have also been consistent in their use of judicial supervision to insure that disclosures are limited to circumstances that present a specific need that outweighs the need for secrecy.

   The grand jury wields enormous investigative power. Grand jury secrecy is critical to the grand jury's investigative effectiveness, but secrecy also serves to minimize the harm that may be caused by grand jury investigations. Secrecy thus reflects the dual function of the grand jury, as both a shield protecting those accused of serious federal offenses, and a sword that can be wielded by the government to ferret out wrongdoing.

   1. The Scope of the Grand Jury's Authority

      Operating outside of the public eye, the grand jury is the most powerful investigative agency in the federal criminal justice system. During the investigative phase the grand jury serves many of the same functions as federal police agencies, (2) such as the F.B.I., but the grand jury wields significant powers not shared by the other investigative agencies. The federal grand jury can compel the cooperation of persons who may have information relevant to the matters it is investigating. Persons who may have such information can lawfully refuse to be interviewed by police agencies such as the F.B.I., but any person can be subpoenaed to appear and testify under oath before a grand jury. (3) If individuals who are subpoenaed fail to appear or refuse to answer questions, they may be held in contempt absent a valid claim of privilege. (4) The contempt power gives the prosecution a powerful lever to compel cooperation, for a witness who refuses to testify can be held in custody for as long as eighteen months. (5) Indeed, a recalcitrant witness who is released at the end of the grand jury's term may be subpoenaed to appear again before subsequent grand juries, where the process may repeat itself. (6)

      The federal grand jury also has unparalleled access to documents and other property. Federal investigators who wish to examine real or documentary evidence must obtain either consent for a search or a search warrant based upon a showing of probable cause to believe that evidence of a crime will be discovered by the search authorized by the proposed warrant. (7) Thus the owner of documents or other evidence has a right to privacy that cannot be breached without his consent unless the government establishes probable cause before a neutral magistrate. (8) In contrast, the grand jury can subpoena the owner of documents or other evidence to present them to the grand jury -- on pain of contempt -- absent a valid claim of privilege. (9) No showing of probable cause is required to sustain the grand jury's subpoena for testimony or the production of evidence. (10) To the contrary, the Supreme Court has recognized that a subpoena is constitutionally valid unless the subpoenaed party shows that there is no reasonable possibility that the category of materials the government seeks will produce information relevant to the general subject of the grand jury's investigation. (11)

      Although the privilege against self-incrimination applies in the grand jury, it does not prevent the government from compelling the cooperation of third parties. If a witness or the custodian of a document asserts a valid privilege, he may be provided with use and derivative use immunity, and then be required to comply with the subpoena to testify or produce evidence. (12)

      Looking at the matter from the perspective of a witness (or target), the grand jury's investigative powers are subject to few limitations, and there are far fewer procedural protections available in a grand jury investigation than in an investigation conducted by any federal police agency.

   2. The Rule of Grand Jury Secrecy

      Along with the broad authority of grand juries to investigate crimes, there is a long-standing tradition of grand jury secrecy dating back to at least the seventeenth century. (13) The common-law tradition of grand jury secrecy was adopted in the United States and was later codified in Federal Rule of Criminal Procedure 6(e). (14) Rule 6(e) prohibits any disclosure of "matters occurring before the grand jury." (15) Absent a court order, grand jury material may only be disclosed to "another federal grand jury," (16) "an attorney for the government for use in the performance of such attorney's duty," (17) and "such government personnel" as an attorney for the government deems necessary to assist the government attorney "in the performance of such attorney's duty to enforce federal criminal law." (18) Where grand jury matters are disclosed to government personnel, those individuals are expressly forbidden to use the grand jury material for any other purpose than assisting the government attorney to enforce the federal criminal law. (19) The government attorney must also advise the district court of the disclosure of grand jury materials and the names of the government personnel to whom the disclosures were made. (20)

   3. The Courts' Role in Supervising Grand Jury Secrecy

      Disclosure of grand jury material to persons outside the circle of those directly involved in the grand jury's investigation has traditionally been supervised by the federal district courts. No one other than another federal grand jury, government attorneys, or personnel assisting them in enforcing the federal criminal law has been permitted access to grand jury material without first obtaining a court order supported by particularized findings that demonstrate a specific need for the information.

      Prior to 1985, there were only two circumstances in which a district court had the authority to order disclosure of grand jury material. First, disclosure could be ordered "preliminarily to or in connection with a judicial proceeding" (21) where a party was able to make a "strong showing of particularized need" for the grand jury materials. (22) Requests for disclosure during a grand jury investigation are seldom granted. (23) Second, courts are authorized to order disclosure of grand jury matters to a defendant "upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." (24)

      The requirement that any party seeking grand jury material make an extraordinary showing of need reflects a strong commitment to the secrecy of grand jury proceedings. This requirement also reflects the federal courts' role as gatekeepers of grand jury information charged with responsibility to ensure that the interests furthered by the secrecy rules are not unduly eroded. In performing this gatekeeper function, the courts have focused on at least three distinct interests served by secrecy:

      First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against the indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. (25) For these reasons, the Supreme Court has stated that it "must always be reluctant to conclude that a breach of this secrecy has been authorized." (26)

      The courts have been particularly hesitant to permit disclosure of grand jury information for any purpose other than the enforcement of criminal law. In United States v. Sells Engineering, the Supreme Court interpreted Rule 6(e) to prohibit the disclosure of grand jury materials to government attorneys for their use in civil litigation without both a showing of particularized need and a court order. (27) The Supreme Court premised its decision in part on a recognition that permitting the fruits of the grand jury's investigation to be disclosed for purposes other than criminal prosecution poses a threat "to the integrity of the grand jury itself." (28) The Court explained that:

      If prosecutors in a given case knew that their colleagues would be free to...