Grand Jury Provisions of the
Patriot Act of 2001 Introduction Many Americans, especially civil libertarians, have reacted with dismay and fear to the recent passage of the anti-terrorist Patriot Act. The act, however, is a lengthy and complex document. We at Trialbriefs.com believe that thinking people, whatever their political leanings and beliefs regarding civil liberties, will form more intelligent opinions by reading careful analysis of small portions of the act. Thus, in this week’s analysis, we turn our attention to a the section of the Patriot Act called "Authority to Share Criminal Investigative Information," specifically the subsection called "Authority to Share Grand Jury Information." This part of the act amends existing laws governing the secrecy of federal grand juries. Please click here for the full text of this section. What is a grand jury, and what do grand juries do? Are grand jury activities secret? Does the Patriot Act erode grand jury secrecy measures? Do these grand jury provisions expire in December 2005 like most parts of the Patriot Act do? Will these changes to grand jury secrecy provisions erode the civil rights of Americans? |
| What is a
grand jury, and what do grand juries do? A grand jury is an investigative body comprising ordinary citizens. Although a prosecutor guides the jurors, who are laypeople, the jurors do not have to relegate themselves to being the prosecutor’s "rubber stamp." They can take an active role in the investigation by formulating and asking questions. Unlike the trial jury, or petit jury, with which most people are familiar, grand jurors do not make determinations of guilt using the "beyond a reasonable doubt" standard of proof. Instead, they use the lower standard of probable cause to decide whether to indict the target(s) of their investigation. If an indictment or true bill is issued, the indicted person then stands trial before a petit jury. About half the states use some form of the grand jury, but rules and regulations vary widely. In some states, prosecutors routinely turn to grand juries to initiate criminal proceedings; in other states, prosecutors themselves file a document called an information to initiate a trial, turning to grand juries only in special circumstances-for example, in Colorado’s JonBenet Ramsey murder investigation. However, the provisions of the Patriot Act apply only to federal grand juries. The Fifth Amendment to the U.S. Constitution requires a grand jury indictment for federal criminal charges. In recent times, public attention was drawn to federal grand juries during the Whitewater investigation and also the investigation led by special prosecutor Ken Starr into former President Clinton’s affair with Monica Lewinsky and the perjury allegations that resulted. |
| Are grand jury activities
secret? In sharp contrast to trials in open court before petit juries, the type of jury most people are familiar with, federal grand juries operate under a general rule of secrecy. No judge moderates the proceedings. The only people allowed in a federal grand jury room while the jury is in session are attorneys for the government; the witness under examination; and interpreters, stenographers and operators of recording devices. All are sworn to secrecy, and any violation of the rule of secrecy is punishable as contempt of court. These secrecy provisions are outlined in the Federal Rules of Criminal Procedure as well as in the new Patriot Act. In many ways, secrecy is at the very heart of grand jury proceedings. The present American version of the grand jury has its roots in English common law, where the grand jury served as a buffer between the king (and his prosecutors) and the common people. In small close-knit communities, secrecy was essential to ensure that investigations could be conducted without allowing jurors to be influenced by community pressure or maligning the reputations of suspects who proved to be innocent. According to the American Bar Association, while "[s]ecrecy was originally designed to protect the grand jurors from improper pressures," "[t]he modern justifications are to prevent the escape of people whose indictment may be contemplated, to ensure that the grand jury is free to deliberate without outside pressure, to prevent subornation of perjury or witness tampering prior to a subsequent trial, to encourage people with information about a crime to speak freely, and to protect the innocent accused from disclosure of the fact that he or she was under investigation." ABA online FAQ re Grand Jury System. An important argument for secrecy is that the grand jury is an institution with sweeping powers, and jurors are allowed to chase after people and clues that might end up having absolutely nothing to do with the case at hand. Jurors can listen to hearsay and other evidence that wouldn’t normally be admissible in court. One case in which grand jurors tested the limits of grand jury secrecy was Colorado’s Rocky Flats investigation. For more information about this case, please click here. |
| Does
the Patriot Act erode grand jury secrecy measures? Even before the Patriot Act was passed, grand jury secrecy was not absolute, and the rule of grand jury secrecy could be set aside in certain situations. Witnesses testifying before federal grand juries have never been sworn to secrecy, and therefore they are free to disclose any information they have to anyone. As the American Bar Association puts it, "[t]here is a basic revulsion in the United States about secret testimony." Furthermore, the law already contained a broad provision allowing grand jury information to be disclosed to government attorneys or to government personnel who could use it to help government lawyers enforce federal criminal law. The pre-Patriot law also outlined four specific situations where secrecy provisions
could be set aside. Under this part of the law, information can be disclosed in four
special cases:
Perhaps most significantly, the Patriot Act lengthens the list of officials who are permitted to receive grand jury information. "This bill will authorize the expanded sharing with intelligence agencies of information collected as part of a criminal investigation, and the expanded use of foreign intelligence surveillance tools and information in criminal investigations," said Senator Patrick Leahy of Vermont during an October 25 Senate session. "Where foreign-sponsored terrorism is the target of an investigation, criminal and foreign intelligence jurisdictions clearly overlap and agencies must coordinate their efforts accordingly. The bill enters new and uncharted territory by breaking down traditional barriers between law enforcement and foreign intelligence." The Patriot Act allows the sharing of grand jury information with the following types of officials:
The Patriot Act also expands the purpose for which grand jury information can be shared. Before the Patriot Act, the information could only be shared in order to help enforce federal criminal or state law. Now, with the act in place, such information can be disclosed to government agents to help them protect against:
Officials are also permitted to receive grand jury information relating to: |
| Do
these grand jury provisions expire in December 2005 like most parts of the Patriot Act do? No. The grand jury provisions are exempt from the act’s "sunset" clause. |
| Will
these changes to grand jury secrecy provisions erode the civil rights of Americans? First, it is important to note that these provisions are judicially directed, that is, overseen by the courts. When grand jury information is shared, a government attorney must file with the court a sealed statement of what information was released and to whom. The law explicitly states that any shared information should be used by federal officials only in the conduct of their official duties. Also, in addition to the normal constitutional review by the judiciary, the Patriot Act will have the continued scrutiny of elected officials who make up the bipartisan Congress. There is no question, however, that the Patriot Act, including the grand jury provisions, does expand the United States government’s power to gather information about its citizens. As Leahy said in his October 25 statement: "[P]otentially, whenever a criminal investigation acquires information about an American citizen’s relationship with a foreign country or its government, that information is eligible to be disseminated widely as ‘foreign intelligence information’ - even if the information is about entirely lawful activities, business transactions, political relationships, or personal opinions. "Criminal investigations acquire voluminous information about persons who are not involved in illegal activity," Leahy continued. For example, Leahy said, "[i]mmunity is granted to compel testimony before grand juries about people who are never indicted." Only time will tell how the act will actually be used and how effective it will be. Leahy predicted in his statement that the act will "face difficult tests in the courts," and that "Congress may have to revisit these issues at some time in the future when the present crisis has passed." |
| Will
the grand jury provisions and other parts of the Patriot Act be misused for purposes other
than interrupting and obstructing terrorist acts? The use of the Patriot Act is one thing, but the misuse of the act is another matter altogether. Any official involved in the justice system or with other arms of government has the potential to engage in illegal or unethical behavior that would compromise a citizen’s civil rights. With the enforcement of the Patriot Act, as with the enforcement of any other law, people could make mistakes or deliberately violate the law. Long before the conception of or passage of the Patriot Act, the government used its powers to gather and disseminate intelligence to severely violate the civil rights of its citizens. Also included in Leahy’s October 25 statement was an informative discussion about the United States government’s past misuse of investigative powers. Leahy offers a brief history of intelligence abuses, from the findings of the Church Committee to COINTELPRO. "These methods of domestic political surveillance and covert manipulation and disruption have no place in a free society," Leahy concluded. |
